Sunday, November 17, 2013
Churches join the NAACP's lawsuit challenging North Carolina's new election laws limiting early voting and same-day registration; and Wisconsin Republicans seek to end weekend voting, while the Wisconsin Assembly passes a new voter ID bill.
United Methodist Church prosecutes Pennsylvania pastor under church law for performing same-sex marriage for his son and his son's partner; and, Wyoming Senate candidate Liz Chaney explains her opposition to same-sex marriage.
NYC Mayor-elect de Blasio meets with NYPD commissioner Kelly, who recently criticized Democrats for opposition NYPD's stop-and-frisk policy.
In Spain, topless women interrupt anti-abortion rally with chants of 'Abortion is sacred.'
November 17, 2013 in Abortion, Civil Rights Litigation, Election Law, First Amendment, Fourth Amendment, Freedom of Assembly, Freedom of Religion, Freedom of Speech, Religion, Right to Vote, Same-sex marriage, Stop-and-frisk, Theories of Punishment, Voter ID | Permalink | Comments (0)
Friday, November 15, 2013
Earlier this year, Gov. John Kasich (R) signed into law a new restriction requiring circulators of candidacy petitions to be residents of Ohio. The law states:
Except for a nominating petition for presidential electors, no person shall be allowed to circulate any petition unless the person is a resident of this state and is at least eighteen years of age. O.R.C. 3503.06(C)(1)(a).
In September, the 1851 Center for Constitutional Law challenged the law on the grounds that it violated the First Amendment, and last week the Libertarian Party of Ohio (LPO) joined the suit.
Today The Columbus Dispatch reports that a federal judge has suspended this provision:
The Libertarian Party of Ohio (LPO) and the 1851 Center had requested the preliminary injunction preventing Secretary of State Jon Husted (R) from enforcing the provision citing the Sixth Circuit U.S. Court of Appeals ruling in Nader v. Blackwell, in which the court held that requiring circulators of candidacy petitions to reside in the state violated the First Amendment. 545 F.3d. 459, 475 (6th Cir. 2008).
Yesterday's decision comes just a week after Gov. Kasich signed into law further restrictions on the ability of minor parties to gain access to the ballot. The new restrictions would require minor party candidates to obtain 28,000 signatures to be placed on the ballot in 2014, and the criteria for ballot access would increase after 2015.
The LPO's lawsuit includes allegations that the new law impermissibly restricts it from holding a party primary. The party seeks a preliminary injunction preventing Sec. Husted from removing the LPO from Ohio's primary and general election ballots in 2014.
CRL&P related posts:
- Ohio governor signs controversial ballot access bill, opponents to file lawsuit
- Ohio legislature to vote on controversial ballot access bill this week
- Ohio Senate passes bill imposing new restrictions on third party ballot access
Ten homeless people file civil rights lawsuit to keep city from evicting them from a local landfill.
NYC's stop-and-frisk policy results in conviction in just 3 percent of cases.*
Disabled man sues city under ADA for right to keep his service dog--a pit bull.
California judge rejects challenge to local ordinance banning the use of 'sign waver' advertisements.
Pennsylvania judge rejects request to block challenge to the state law banning recognition of same-sex marriages; Hawaii judge upholds state's new same-sex marriage law; and, transgender woman's employment discrimination case is tossed.
Jimmy Carter says the U.S. should abolish the death penalty.
* Correction: A helpful reader observed that the second link above was incorrect. It previously stated that New York City's stop-and-frisk policy leads to sentences of 30 days or more in just 1.5 percent of the cases, but the rate is actually much lower than that. In fact, the AG's report states on page 3:
Less than one in seventeen SQF arrests, or 0.3% of stops, resulted in sentences of more than 30 days of imprisonment.
Thursday, November 14, 2013
Members of Occupy Philadelphia recently filed a lawsuit against the city's police commissioner and a number of officers alleging violations of their civil rights.
Nearly two years ago, police arrested 31 protesters after shutting down the camp they inhabited across from City Hall. After the protesters dispersed, police reportedly followed a group of them and arrested them in the early morning on the grounds that they would disrupt traffic.
Last year, a Municipal Court judge aquitted the protesters of all charges.
The members claims include false arrest and violations of their First Amendment rights.
The Philadelphia Daily News reports:
One of the more active of scores of protest encampments that arose in fall 2011 to protest income inequality and related issues, Occupy Philadelphia camped out in Dilworth Plaza adjacent to City Hall for 55 days. The city shut down the camp - which numbered several hundred Occupiers at the peak - to make room for renovation work.
After police raided the Dilworth site on Nov. 30, 2011, cops - including mounted officers - followed Occupy protesters for several hours and finally arrested the group just before 5 a.m. on 15th Street near Callowhill, claiming the demonstrators would snarl rush-hour traffic.
Since then, other Occupy members who were arrested over the 55 days - including 12 busted at a sit-in at a Wells Fargo branch lobby in Center City - have been found not guilty.
Krasner said the 26 plaintiffs are seeking economic damages for their allegedly false arrest, as well as changes in city policy to allow protesters to exercise their right of free assembly in the future. The group is also represented by Lloyd Long and Paul Hetznecker.
Northern Illinois University student has been arrested after police discovered an AR-15 rifle and a handgun in his dorm room; federal agents claim gun made by a 3-D printer could threaten security; Iowa gun store owner has been arrested after selling fully automatic machine gun; Milwaukee youth help city officials develop strategies to reduce gun violence; and a Florida woman pulls a gun on a journalist.
Sen. Rubio is scheduled to speak at a conference led by an anti-gay activist; Indiana woman has been denied access to her partner who is currently unconscious in the hospital; and five Senagalese women could face as much as five years in prison because they are lesbians.
Supreme Court considers whether law enforcement officials violate the Fourth Amendment when they search an apartment after one roomate denies them entry but another later permits it; and TSA's profiling program is ineffective.
Students decry lack of diversity at UCLA; and federal court hears oral argument on University of Texas's addmission policy that considers race.
Former Dolphin's offensive lineman Jonathan Martin might sue the team for harassment and discrimination.
ProPublica documents China's efforts to censor Twitter messages.
Tuesday, November 12, 2013
Officials in one Michigan school district have reversed their decision forbidding students to wear T-shirts honoring a classmate who recently died of leukemia. School administrators originally had told the students that they could not wear the shirts because of the emotional impact--the shirts might have exacerbated the grief felt by some students. But, students and parents complained, and the school district acquiesced.
The article begins:
A southern Michigan school district has reversed its decision to bar students from wearing T-shirts honoring a 12-year-old classmate who died over the weekend following a long battle with cancer.
At least a dozen students showed up to Lakeview Middle School in Battle Creek on Monday wearing blue or orange T-shirts to honor sixth-grader Caitlyn Jackson, who died Saturday after fighting leukemia for years, the Battle Creek Enquirer reported. Blue was Caitlyn's favorite color and orange is worn to honor those like her with leukemia, and some of the shirts were from various benefits for Caitlyn over the years.
When students arrived at school, administrators asked them to change out of the shirts, turn them inside-out or tape over Caitlyn's name.
Notably, district officials originally justified the prohibition under measures created to deal with crises. As the Associated Press reports:
[The school's finance director] said the district decided Sunday to not allow the T-shirts in keeping with its crisis management plan, which bars permanent memorials on the belief that they can remind students of their grief and make it worse. Parents weren't informed of the decision.
I doubt that student-made T-shirts qualify as "permanent memorials" (although a more pointed definition of the terms might be necessary), and I question the virtue of the district's policy.
Schools not only teach intellectual skills, but they also serve to socialize students for future integration into society and the workforce. Dealing with grief and loss are necessary components of that socialization process.
Further, emotionally trying experiences often are not private matters. Many people will have to deal with the loss of a co-worker or a classmate. Natural disasters often disrupt whole communities; and, as the 9-11 attacks demonstrated, the pain and trauma of a single event can significantly impact entire regions, even the country.
After completing primary and secondary school, students hopefully have developed the intellectual and emotional skills to manage their future education and/or careers even in difficult circumstances. I find it difficult to believe that ignoring grief is the best way to prepare students for that eventuality.
Moreover, the administrator's ban on the shirts likely violated the First Amendment speech rights of the students who wore them. Some students certainly feel grief due to the death of a classmate, but the T-shirts probably do not detract from their educational experiences.
Sorrowful students will continue to feel the attendant pain of losing a friend. But, the now-empty desk creates that sadness. Not the T-shirts.
Fifth Circuit prepares to hear arguments over another University of Texas admissions policy that considers race.
Supreme Court could hear challenge to New Mexico Supreme Court's decision requiring a photography company to offer its services to gay couples.
WaPo's Cilizza details the places from which most of the country's campaign cash comes.
Cleveland tears down a school that was the focus of civil rights protests, a place where one protester died.
Angolan officials arrest five women on suspicion of being lesbians.
Thursday, November 7, 2013
WaPo breaks down Senate votes for and against Employment Non-Discrimination Act.
Florida Supreme Court rules that the woman who donated her egg to her partner has equal rights to the child after the relationship later dissolved.
Supreme Court hears "unusually testy oral-argument session" over right of a town council to pray before meetings.
Iowa State Bar Assocation president defends judge currently under fire for a recent ruling blocking ban on Planned Parenthood's use of teleconferences to administer abortion pills.
Brown University may punish students who booed NYPD commissioner.
Case Western Law School dean embroiled in scandal over allegations that he sexually harrassed faculty has taken a leave of absence.
Sunday, November 3, 2013
Honolulu PD follows growing national trend banning visible tattoos.
Snowden claims increasing scrutiny of NSA and calls for its reform prove he was right to leak collected surveillance information.
Sen. Booker will enthusiastically support ENDA.
NYPD will not reform its stop-and-frisk policy until city's appeal is heard sometime next year by a new judge.
Guardian column argues that 'indoor prostitution' should be legalized.
Saturday, November 2, 2013
Employment Non-Discrimation Act (ENDA) has bipartisan support in the Senate, but It's unlikely to come up for a vote in the House. Since Supreme Court struck down parts of DOMA, gay rights activists have increased efforts in state legislatures and courts.
Snowden claims the U.S. 'seeks to criminalize political speech' and says he wants to testify before Congress.
Alabama inmate alleges that warden ignored assaults and rape.
Texas court strikes down ban on sexually explicit online conversations with minors as unconstitutionally overbroad.
Friday, November 1, 2013
The title of this post comes from this article reporting that a federal judge has rejected the challenge by anti-abortion protesters to a noise zoning ordiance. The article begins:
Anti-abortion protesters cannot enjoin a law that regulates noise around health care facilities, a federal judge ruled.
In response to public comments regarding the effects of amplified sounds on patients, West Palm Beach has a law that creates a quiet zone around health care facilities.
The ordinance bans shouting and use of a loud speaker among other loud noises within 100 feet of the property line, including private property within that distance.
Mary Susan Pine and Marilyn Blackburn are a part of group that assembles outside the Presidential Women's Center in West Palm Beach to protest against abortions and educate women about other alternatives.
Under an older version of the ordinance, Pine was fined $250 for using a bull horn in the quiet zone.
They sought an injunction, but U.S. District Judge Donald Middlebrooks shot them down Tuesday.
Pro Publica breaks down the effects of the Supreme Court's decision in Shelby County v. Holder.
At University of North Texas, students sign petitions to get rape-kit access.
NPR asks whether race affects stand your ground laws.
CRL&P is happy to share this fascinating story about a local defense attorney whose passionate advocacy on behalf of his client gave us this:
When prosecutors in Williamson County tried to ban a defense attorney from referring to them as "the government" in court, defense attorney Drew Justice had a demand of his own:
From now on, call me "Captain Justice."
The prosecution apparently thought that reference to it as "the government" was pejorative and was an attempt to prejudice its case, so naturally it filed a motion to quell the term's use. But, Captain Justice was about to loosen his tie.
Justice fired off his own motion in response. It included conventional references to case law, the First Amendment — technical stuff that one would expect in a court filing.
And then he got creative.
If the court sided with Rettig, he demanded his client no longer be referred to as "the Defendant," but instead be called "Mister," "the Citizen Accused" or "that innocent man" — since all defendants are presumed innocent until a judge or jury finds them guilty. As for himself, clearly "lawyer" or "defense attorney" wouldn't do him, well, justice.
"Rather, counsel for the Citizen Accused should be referred to primarily as the 'Defender of the Innocent.' … Alternatively, counsel would also accept the designation 'Guardian of the Realm,' " Justice wrote.
And since prosecutors are often referred to formally as "General" in court, Justice, in an effort to be flexible, offered up a military title of his own.
"Whenever addressed by name, the name 'Captain Justice' will be appropriate."
Gathering steam, he went on to say that even "the defense" wasn't adequate and that "the Resistance" would be far more appropriate.
He then concluded his motion, returning to the formal language of court documents — sort of.
"WHEREFORE, Captain Justice, Guardian of the Realm and Leader of the Resistance, primarily asks that the Court deny the State's motion, as lacking legal basis."
The prosecution reportedly was "disappointed" by Captain Justice's response, and wanted to keep its mind on the specifics of the case.
Thursday, October 31, 2013
Second Circuit stays lower court's stop-and-frisk ruling.
Twenty-three percent of Republicans want more women to be elected to office.
Brown University student defends protest against NYPD commissioner as a successful exercise of free speech.
Hawaii is ready to legalize gay marriage.
Chelsea Manning could sue if she doesn't get treatment for gender identity disorder.
Oneida Nation representatives meet with NFL to discuss the movement to change the name of Washington's football team, but NFL stands firm.
The "I ♥ Boobies!" bracelets are heading to the Supreme Court! Indeed, after the Third Circuit ruled it could not ban the bracelets, a Pennsylvania school district has voted 7-1 to appeal the decision. The district claims that the ruling compromised the disciplinary authority of the school. I wonder, however, whether that authority has been so weakened so as to justify the district's expenditure of taxpayer dollars to continue the fight. No matter, at least the district's students are having the opportunity to learn about the First Amendment.
The USA Today reports:
A Pennsylvania school district says it will take its fight against "I (heart) Boobies!" bracelets to the U.S. Supreme Court.
The Easton Area School District board voted 7-1 Tuesday night to appeal a decision rejecting its claim the bracelets are lewd and should be banned from school.
The 3rd U.S. Circuit Court of Appeals also determined the district didn't prove the bracelets are disruptive when it upheld a lower court's decision in August.
The bracelets are designed to promote breast cancer awareness among young people. Two girls challenged the school's ban in 2010.
Superintendent John Reinhart tells The Express-Times of Easton the ruling compromised administrators' ability to determine what is and is not appropriate in school.
Dissenting board member Frank Pintabone says the district should let the matter go.
CRL&P has noted several arguments for considering the right to vote as protected First Amendment speech.
Voting was done publicly until the end of the 19th century, and open voting changes the nature of the expression. Viva voce voting, for example, required voters to announce their votes publicly, and this declaration had persuasive value. The most respected citizens voted first, and thus candidates sought their support in order to influence voters down the line.
George Washington played this game in order to win his first election. In The Varieties of Political Experience in Eighteenth-Century America, Professor Richard Beeman explains:
Voting in Virginia was conducted viva voce, so the assembled freeholders (and candidates) were able to watch the course of the election as it unfolded...
As the balloting proceeded, it was apparent to all assembled at the courthouse that virtually all of the men of influence in the county had swung their support to Washington... The strategy of marshalling a prominent display of support early in the election was, at least in this case, highly successful, as Washington raced to an early lead that only grew as the day wore on.
Ultimately, the question is whether voting communicates an idea. Even ignoring the context of voting in small rural communities, the expressive value of viva voce voting is at least as expressive as some forms of protected First Amendment political speech (e.g. flag burning, political yard signs, etc.) Further, as Justice Thomas observed in his dissent in Nixon v. Shrink Missouri Gov't PAC, "[I]t is up to the citizens...to determine who shall speak, the means they will use, and the amount of speech sufficient to inform and persuade." 528 U.S. 377, 420 (2000).
Today, The Atlantic calls for a constitutional amendment for the right to vote:
It is becoming increasingly obvious that the Supreme Court decision in Shelby County v. Holder, which eviscerated the Voting Rights Act, is leading to a new era of voter suppression that parallels the pre-1960s era—this time affecting not just African-Americans but also Hispanic-Americans, women, and students, among others.
The reasoning employed by Chief Justice John Roberts in Shelby County—that Section 5 of the act was such a spectacular success that it is no longer necessary—was the equivalent of taking down speed cameras and traffic lights and removing speed limits from a dangerous intersection because they had combined to reduce accidents and traffic deaths.
In North Carolina, a post-Shelby County law not only includes one of the most restrictive and punitive voter-ID laws anywhere but also restricts early voting, eliminates same-day voting registration, ends pre-registration for 16- and 17-year-olds, and bans many provisional ballots. Whatever flimsy voter-fraud excuse exists for requiring voter ID disappears when it comes to these other obstacles to voting
In Texas, the law could require voters to travel as much as 250 miles to obtain an acceptable voter ID—and it allows a concealed-weapon permit, but not a student ID, as proof of identity for voting. Moreover, the law and the regulations to implement it, we are now learning, will create huge impediments for women who have married or divorced and have voter IDs and driver's licenses that reflect maiden or married names that do not exactly match. It raises similar problems for Mexican-Americans who use combinations of mothers' and fathers' names.
In a recent election on constitutional issues, a female Texas District Court judge, Sandra Watts, who has voted for 49 years in the state, was challenged in the same courthouse where she presides; to overcome the challenge, she will have to jump through hoops and possibly pay for a copy of her marriage license, an effective poll tax on women.
The Justice Department is challenging both laws, but through a much more cumbersome and rarely successful provision of the Voting Rights Act that is still in force. It cannot prevent these laws and others implemented by state and local jurisdictions, many of which will take effect below the radar and will not be challenged because of the expense and difficulty of litigation.
Wednesday, October 30, 2013
Group pushing for state laws criminalizing revenge porn, but future efforts could be aimed at federal government.
Glenn Greenwald appeared on Anderson 360 last night to discuss the revelation that the NSA was spying on allies.
Woman sues Texas over ban on same-sex marriage.
NY Post claims former employee's allegations of a hostile work environment related to the controversial Obama/chimpanzee cartoon are trivial.
The title of this post comes from this article highlighting how pro-marijuana reform groups' use of advertising billboards on buses is making some officials nervous. The article is from McClatchy, who incidentally is in the early led for today's best pun. The article begins:
When televangelist Pat Robertson announced his support for legalizing marijuana last year, pot backers wasted no time in putting his picture on an electronic billboard in Colorado.
Marijuana billboards have popped up along busy freeways from Seattle to Florida. In September, one greeted fans going to Sports Authority Field at Mile High Stadium in Denver for the first NFL game of the season. In July, pot supporters tried to get a video ad on a jumbo screen outside a NASCAR event in Indianapolis, but objections forced them to pull it in the last minute.
In the latest twist, pro-pot billboards are emblazoned on city buses in Portland, Maine, aimed at winning votes for a Nov. 5 ballot measure that would make the city the first on the East Coast to legalize marijuana for recreational use.
Critics fear that the increased advertising is a sign of things to come as support for legalization continues to grow, reflected by a Gallup poll released last week that found backing from a record high 58 percent of Americans. They see the stepped-up promotion as a dangerous trend that will lead to more drug abuse among children.
Tuesday, October 29, 2013
On Sunday, Professor Ruthann Robson of the Constitutional Law Prof Blog discussed state anti-masking laws and the interesting impact those laws could have during Halloween. She begins:
Many states have anti-masking statutes, criminalizing the wearing of a mask or identity concealing face covering.
In some states, the statutes are known as anti-Klan statutes, although by their terms they do not limit their coverage to Klan regalia. The Georgia Supreme Court upheld the state's anti-masking statute, O.C.G.A. 16-11-38, against a First Amendment challenge in State v. Miller (1990). Shade Miller, who was arrested for appearing in KKK regalia alone near the courthouse in Gwinnet County, purportedly to protest the anti-mask statute, argued that the statute was overbroad. In addressing Miller’s argument, the court interpreted the statute narrowly, but not so narrowly as to exclude the KKK. Instead, the court required the mask-wearer to have intent to conceal his identity and further that the statute would “apply only to mask-wearing conduct when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence.”
Her full post can be found here.
Monday, October 28, 2013
Politico: N.Y. Times rejects Banksy op-ed
The title of this post comes from this recent article arguing that imposing prison sentences for hate speech is disproportionate to the harm stemming from such speech, and as a result is an injustice to the speaker. Here is the abstract:
We question the justice of using prison sentences to control hate speech. It is argued that prison sentences should be used only to deter offensive and hateful speech that harms others. However, the harm requirement cannot be satisfied merely by demonstrating theoretical harm in the abstract, as Jeremy Waldron does in his recent book. Instead, factual harm has to be demonstrated because prison is in fact very harmful for the expresser of the offensive and hateful speech. There is noting wrong with penal measures being used to deter this kind of speech, but harmful prison sentences should not be used to deter harmless speech. Waldron asserts that the United States should follow the British model, among others, of using prison to control and chill free (hate) speech. Waldron wants a model of unfree speech for some. We aim to show that the United States should resist enacting hate speech laws similar to the unjust laws found in Britain, where people have received long prison sentences for uttering offensive and hateful thoughts. To use prison sentences is to use a sledgehammer to crack a walnut: it is a grossly disproportionate and unjust penal response. Particular issue is taken with Waldron’s harm theory. The core element of the paper is the Waldron debate, because the type of vacuous harm theory he puts forward has the potential to be used by lawmakers to justify unjust penal responses such as harmful prison sentences for harmless (even though grossly offensive) speech.
The title above comes from this post from Wait A Second!, a blog which tracks the civil rights decisions of the Second U.S. Circuit Court of Appeals. Today, it highlights the recently decided case that struck down imposed limits on per annum political contributions by individuals. The post begins:
Is there a more hated Supreme Court ruling in recent years than Citizens United, which struck down on First Amendment grounds certain restrictions on corporate campaign contributions? Love it or hate it, Citizens United is here to stay, and it just knocked down a campaign finance law in New York.
The case is New York Progress and Protection PAC v. Walsh, decided on October 24. This case was argued on October 18, so the urgency is clear, as irreparable harm is inherent in First Amendment violations, and the plaintiff supports the New York City mayoral campaign of Joseph Lhota, who needs the money in time for the election in November.
The law in New York imposed a $150,000 aggregate annual limit on certain political contributions by any person in New York State. So the plaintiff -- which makes independent expenditures without prearrangement or coordination with a candidate -- cannot receive more than that amount from any individual contributor in any calendar year. NYPPP alleges that "the cap violates its core First Amendment right to advocate in favor of Joseph Lhota in the upcoming mayoral election."
Post-Watergate, Congress took a hard look at campaign finance laws. When the money people challenged these restrictions under the First Amendment (on the theory that campaign contributions and spending constitutes political speech), the Supreme Court in Buckley v. Valeo (1976) said the Constitution allows for some of these campaign finance restrictions in the interest of combating corruption. When Congress enacted the McCain-Feingold campaign finance restrictions in 2002, a new Supreme Court began chipping away at it, and the Citizens United ruling said that the government has no anti-corruption interest in limiting independent expenditures.
I am sure the lawyers representing the State of New York worked valiantly in defending the law that the Second Circuit took up in this case. But Citizens United makes this result a foregone conclusion. Under Citizens United, "it follows that a donor to an independent expenditure committee such as NYPPP is even further removed from political candidates and may not be limited in his ability to contribute to such committees. All federal circuit courts that have addressed this issue have so held."
High school student who dressed as a homeless man pursuant to an assignment gets suspended for failing to identify himself to school officials quickly enough.
Christian school allegedly required black student to attend spiritual retreat glorifying Confederate history and Confederate flag.
ACLU requests that ICE immediately desist arresting people arriving at the courthouse to pay traffic tickets.
New GPS tracking projectile allows police to attach GPS to vehicles reducing the risk of chases.
New report says President Obama did not know about NSA's surveillance of foreign leaders.
Sunday, October 27, 2013
Judge dismisses false arrest lawsuit in which the wrong man was arrested and held in prison for five days before police realized their mistake.
Macy's now joined with Barney's in scandal over allegations that the businesses profiled black shoppers making expensive purchases and detained them, while Barney's vows to review its policies.
Wisconsin becomes latest state to consider enacting legislation criminalizing revenge porn.
Protesters marched in Washington on Saturday decrying the NSA's online surveillance program.
FBI investigates the recent killing by police of 13-year-old carrying a plastic gun.
Saturday, October 26, 2013
At CU however, cowboys are not totally fine.
"When you dress up as a cowboy, and you have your sheriff badge on and a big cowboy hat, that's not a representation of a cowboy, that's not a representation of people who work on a ranch that's not a representation of people who live in the West, that's kind of a crude stereotype," CU spokesman Bronson Hilliard told Campus Reform.
Line-drawing is difficult; the difference between mockery and good-taste is sometimes not so clear. Indeed, that line depends on context, and context depends on both individual and community experiences. Whether a costume is a "crude stereotype" or an allusion to an iconic American symbol like John Wayne or Kirk Douglas might be disputed in different parts of the county.
Friday, October 25, 2013
Yesterday, Slate contributor Dalia Lithwick pointed out that available data used to prognosticate the likely outcomes of new voter ID laws is outdated, and that it is no more clear that Democratic women will be disenfranchised than Republican women. Lithwick's focus on the effect of voter ID laws is necessary, but the problem with voter ID is judicial rather than legislative. The problem isn't whether voter ID laws will disenfranchise Democratic or Republican voters. The problem is that the laws disenfranchise voters. Period.
Voter ID laws have grown in popularity since the Supreme Court's decision in Crawford v. Marion County. In that case, the Court balanced the justification for the Indiana voter ID law against the burden on the right to vote. Liberal and conservative justices united to limit the right to vote, holding that the burden placed on that right was effectively de minimis and that states had a super important interest in preventing fraud (a decision which has been the subject of new interest following J. Posner's recent guilty plea regarding his part in validating the law as the author of the Court of Appeals' opinion).
But, the decision placed the burden of proof on the wrong party--the people. States should always have the burden of showing that regulations that infringe on even a small number of voters actually addresses a real threat or need. Otherwise, how "fundamental" is the right to vote, really? Under this standard, politicians need virtually no reason to manipulate the electorate to their advantage. Any regulation that has as its goal the "purity of the ballot box" is valid. Indeed, fraud becomes the catchall justification for infringing on the individual right to vote.
More robust protection for the right to vote is needed. A simple step would be to require strict scrutiny for all laws aimed at the rights of voters to cast ballots (which could easily be achieved by recognizing the right to vote as First Amendment political speech). This change would not affect states' ability to create laws addressing election issues, it would just prevent them from creating those issues to justify those laws.