Saturday, November 15, 2008
Robert Correales' Don't Ask, Don't Tell: A Dying Policy On The Precipice, 44 Cal. W.L.Rev. 413 (2008), provides an excellent discussion of the issues. Correales, an Assistant Professor of Law at William S. Boyd School of Law, University of Nevada, Las Vegas, rehearses the complicated history of the policy's genesis - - - a history worth reviewing for ConLawProfs who recall Clinton's pre- Inaugural "promise" to remedy the ban on "homosexuals" serving in the military which led to the post-Inaugural (and current) policy, known most correctly as "don't ask, don't tell, don't pursue, and don't harass" policy. Clinton's compromise policy was meant to be an improvement for sexual minority service personnel. Instead, as Correales argues:
In reality, little has changed since the passage of the policy. Indeed, things may be even worse for gay people in uniform under the new policy. Despite the new openness to military service by gay men and women expressed by some supporters of “Don't Ask, Don't Tell,” homosexual identity has continued to be used to instigate military discharges. Several studies have revealed that the military's aggressive enforcement of the de facto gay ban represented by “Don't Ask, Don't Tell” resulted in a significant increase in discharges based on sexual orientation in the first seven years under the policy, as compared to the previous ten years under the complete ban. However, a study compiled by the Michael D. Palm Center shows that, as has been the case with virtually every war, personnel shortages during the wars in Iraq and Afghanistan have resulted in a sharp reduction of gay discharges. Indeed, as a result of the severe personnel shortages, many openly gay military members have been allowed, or have even been required, to finish their terms, undermining the military's most aggressive argument in opposition to their service.
The forced separation of gay and lesbian service members from the United States military since the passage of “Don't Ask, Don't Tell” has resulted in a tremendous loss of human potential. It has also resulted in large financial losses in every branch. In a 2005 study of the financial costs and costs of critical skills of the policy, the GAO found that although the total cannot be accurately estimated, the first ten-year period of the policy was extremely costly to the DOD. According to the GAO, the average annual cost from 1994-2003 to recruit military service members was $10,500 per person. During that time, 9352 gay service members were discharged, resulting in an estimated total cost of approximately $95 million to recruit replacements. The estimated cost to train replacements for the service members separated under the policy totaled roughly $95 million. The Navy spent an estimated $48.8 million, the Air Force spent an estimated $16.6 million, and the Army spent an estimated $29.7 million. Those figures do not include the cost to train replacements in the Marine Corps. Importantly, because of a lack of data, the figures do not include the cost of investigation, counseling/pastoral service for discharged members, separation procedures, the cost of review board operations and the cost of defending legal challenges to the policy. A more comprehensive study of the cost of the policy, conducted by a blue ribbon commission organized by the University of California at Santa Barbara, concluded that the actual cost of implementing the policy was almost twice as much as the GAO estimated, or approximately $363 million dollars.
The cost of forced separation to the military and service members is much more than economic.
Id. at 430-432 (footnotes omitted).
Correales then analyzes the issue of military deference, arguing that it is the barrier to meaningful judicial scrutiny of the policy, despite United States Supreme Court decisions in Romer v. Evans and Lawrence v. Texas. Rather than deference, he argues, the judiciary should be considering the Military and Congressional animus toward sexual minorities that animated the compromise policy:
Despite the revisionist recollection of some courts, Congressional debates over the Clinton proposal were anything but balanced. Discussion of Clinton's proposal took place amidst a political firestorm, in which Clinton was aggressively demeaned as a captive of a special interest group who did not have the credentials to lead the military. The political tension generated by opponents of the President's proposal threatened to undermine the Clinton administration's ability to govern, not just in military affairs, but in other areas. Not only did President Clinton face a veto-proof majority in Congress in support of the former ban, Clinton was essentially held hostage to a potential public relations disaster in the form of a threat by the Joint Chiefs of Staff to resign en masse if he persisted in going forward with his proposal to eliminate the gay ban. Not surprisingly, the “compromise” to which Clinton eventually agreed essentially left the status quo unchanged.
Id. at 461 (footnotes omitted).
A number of media outlets are issuing invitations to provide "input" to President-Elect Obama. What should he be reading? What movies should he see? And, on my favorite alternative radio station, who should perform what song at the Inauguration? Regarding law review articles, my nomination for this week's reading is Correales' article on the "don't ask, don't tell" policy. Although there are quite a number of law review articles discussing the military's "gay ban" (almost all of them critical), Correales' article provides an excellent overview and a compelling argument.
It is also student-friendly and would make a great basis for a discussion of the ban. Perhaps an assignment preparing a briefing paper for the President-Elect? And for bonus points, students might be prompted to select an accompanying song and performer.
Friday, November 14, 2008
The Chicago Tribune reported today that the Bush administration "quietly weakened" a "tough new [EPA] rule aimed at clearing the nation's air" of lead. "[T]he administration quietly weakened that provision at the last minute by exempting dozens of polluters from scrutiny," according to the story.
OMB Watch thoroughly explores the issues, including links to administration regulations on a variety of matters and possible Congressional responses, here.
I previously posted on this here.
Al-Marri was a Qatari national lawfully residing in the U.S. when he was arrested and turned over to military authorities. He has been detained without charge for more than five years in a South Carolina Navy brig. I previously posted on this here and here; WaPo reports on the most recent developments here.
Several new briefs have been filed; they're well worth a look for arguments on and analysis of executive authority to indefinitely detain individuals lawfully in the U.S. without charge. Petitioner Al-Marri filed his Reply to the government's opposition to cert. on Monday; Professors of Constitutional Law and of the Federal Courts filed an amicus brief; and Former Federal Judges and Former Senior DOJ Officials filed an amicus brief. (Many thanks to the ACLU for collecting appellate filings in the case here.)
The Fourth Circuit en banc decision is here.
Hello colleagues. Here's this week's edition of the Teaching Assistant.
The Supreme Court heard an interesting argument this week. The legal issue - should federal gun laws be applied to limit gun ownership of those convicted of a misdemeanor assualt or battery occuring in the home, but not a crime of "domestic violence?" The social issue? Most states do not have a misdemeanor domestic violence law. A link to the argument transcript is here. One highlight from the argument - Justice Scalia's comment that the domestic violence charge in the case was "not that serious an offense." Criticism of that position can be found here.
On the equal protection front, hate crimes against Latinos are on the rise. Also, it turns out that workplace flexibility rules gain more acceptance when men, rather than women, take advantage of the benefit.
Finally, this story proves that Con Law can be both relevant and fun. What would happen if (God forbid) George Bush, Dick Cheney, Barack Obama, Joe Biden, and the Congressional leadership all met some terrible fate at 11:55 a.m. on January 20th? The answer, according to the Wall Street Journal, is not so simple. Yes, we have a presidential sucession law, but the problem with the inaugaration scenario is the most of the people that are in line for the presidency will not have been confirmed by the Senate by January 20. So, in such a situation, assuming that the previous Secretary of State had not resigned, he or she would assume office. Yes, that would mean President Condoleeza Rice would be in charge. The problems here are not merely practical. The WSJ article references noted Con Law Professor Akil Reed Amar's analysis of why the sucession act may be unconstitutional. So, there are a mulitude of issues. Of course, the chance that something will happen is very small, but the question is an interesting one.
That's all for now. See you next week everyone!
Thursday, November 13, 2008
The NYT (Charlie Savage) published an interesting article yesterday anticipating claims of executive privilege by soon-to-be-former Bush adminsitration officials. (Many thanks to my student Michael Eisnach for the tip. I previously posted on Bush officials' assertions of executive privilege here.)
The piece traces the practice back to Truman, who, in 1953--after he left office--asserted the privilege against a Congressional subpoena. (Congress backed down.) The Court first addressed the privilege for former presidents in 1977 in Nixon v. Administrator of General Services, three years after U.S. v. Nixon.
The piece also explores the politics of Congressional investigations into Bush administration practices after Obama takes office.
From the article:
“The Bush administration overstepped in its exertion of executive privilege, and may very well try to continue to shield information from the American people after it leaves office,” said Senator Sheldon Whitehouse, Democrat of Rhode Island, who sits on two committees, Judiciary and Intelligence, that are examining aspects of Mr. Bush’s policies.
Topics of open investigations include the harsh interrogation of detainees, the prosecution of former Gov. Don Siegelman of Alabama, secret legal memorandums from the Justice Department’s Office of Legal Counsel and the role of the former White House aides Karl Rove and Harriet E. Miers in the firing of federal prosecutors.
Mr. Bush has used his executive powers to block Congressional requests for executive branch documents and testimony from former aides. But investigators hope that the Obama administration will open the filing cabinets and withdraw assertions of executive privilege that Bush officials have invoked to keep from testifying.
An interesting, albeit brief, article from Huffington Post by Douglas Kendall, entitled Obama and the Constitution: Our Nation's Unfinished Business, provides the following Constitutional goals for the new Administration:
Birthright citizenship is guaranteed by the opening words of the Fourteenth Amendment, yet conservative politicians and activists each year argue that persons born in this country to undocumented immigrants should be stripped of the citizenship the Fourteenth Amendment plainly confers.
The Privileges or Immunities Clause was written to protect the substantive fundamental rights of all Americans, but was effectively read out of the Constitution by the Supreme Court in 1873. That precedent still stands today.
Congress was meant to have broad power to enforce the constitutional rights guaranteed by the Reconstruction Amendments. After all, a Supreme Court that decided Dred Scott could easily write fundamental protections out of the document. But shortly after Reconstruction, the Supreme Court sharply limited the enforcement powers of Congress. Today these precedents remain, and are used to invalidate civil rights legislation, such as the Violence Against Women Act. While the Court often defers to congressional exercises of its enumerated powers, it rarely does so when Congress attempts to enforce constitutional guarantees of liberty and equality.
These issues (and more) will be discussed at the ACS meeting, today and tomorrow.
Thinking about attacking the precedent of The Slaughterhouse Cases, 1873, once seemed an exercise in windmill tilting. Interestingly enough, the idea came up in my classroom discussion of the Second Amendment case from last term, District of Columbia v. Heller.
Wednesday, November 12, 2008
There are more stories to watch in the transition. Here is a recap of the recent stories.
The Executive Branch
My co-bloggers and I have been posting about the so-called "midnight regulations" being passed by the Bush administration. As it turns it out, an obscure law from the Clinton administration may unravel the plan. It is the Congressional Review Act of 1996. According to politico, "The law contains a clause determining that any regulation finalized within 60 legislative days of congressional adjournment is considered to have been legally finalized on the 15th legislative day of the new Congress, likely sometime in February. Congress then has 60 days to review it and reverse it with a joint resolution that can’t be filibustered in the Senate. In other words, any regulation finalized in the last half-year of the Bush administration could be wiped out with a simple party-line vote in the Democrat-controlled Congress."
Blogger Jack Balkin has a great piece in The Guardian about how the Obama administration might use the expanded executive powers that it will inherit from the previous administration. Ilya Somin of the VC also weighs in on this topic. Finally, the Wall Street Journal has a post entitled Executive Orders 101, in case you (or your students) need a refresher on the subject.
The Legislative Agenda
William Araiza - Con Law Professor and Con Law case book author - has a wonderfully informative and insightful piece on what the Obama administration might do with civil rights legislation. Apparently, priorities include passing the Fair Pay Act, the Employment Non-Discrimination Act, and the Matthew Shepard Act. Moreover, Professor Araiza has a great analysis of why the the Commerce Clause is a proper vehicle for this legislation, unless of course the Congress wants use the commerce power to abrogate state immunity, in which case they might run into a roadblock - or eleven. It's well worth reading.
No updates on the speculation game at this time. However, Findlaw's Writ has a great piece on whether empathy is a quality that judges should possess. Your students will likely appreciate the well-presented and nuanced arguments as well.
More to come, as always!
Will President Obama retreat from the Bush administration's extreme assertions of executive authority?
This question is getting some attention in the blogosphere (even if it got disappointingly little attention during the campaign). Check out Marisa Taylor and Michael Doyle's piece at McClatchy; Eric Posner (and commenters) at Volokh; and Ilya Somin (and commenters) at Volokh.
The Supreme Court today vacated a district court's preliminary injunction, which prohibited the Navy from using MFA sonar during its training exercises. The Court's ruling is here; my previous post on the case is here.
NRDC sued the Navy, seeking declaratory and injunctive relief for the Navy's alleged violation of the National Environmental Policy Act. Particularly, the NRDC claimed that the Navy should have completed an environmental impact statement before conducting the latest round of exercises. The district court granted a preliminary injunction.
The Navy argued to the Council on Environmental Quality--an executive branch agency--that the injunction represented an "emergency circumstance," and that the CEQ could therefore authorize "alternative arrangements" under its regulations to allow the Navy to continue training. The CEQ agreed, and the Navy argued on appeal that the CEQ ruling nullified the injunction.
The Supreme Court had little to say about the CEQ process in its ruling; instead, it vacated based on the district court's failure to seriously consider the public interest in granting the preliminary injunction. But Justices Ginsburg and Souter in dissent wrote this:
CEQ's hasty decision on a one-sided record is no substitute for the District Court's considered judgment based on a two-sided record. More fundamentally, even an exemplary CEQ review could not have effected the short circuit the Navy sought. CEQ lacks authority to absolve an agency of its statutory duty to prepare an EIS. . . . If the Navy sought to avoid its NEPA obligations, its remedy lay in teh Legislative Branch. The Navy's alternative course--rapid, self-serving resort to an office in the White House--is surely not what Congress had in mind when it instructed agencies to comply with NEPA "to the fullest extent possible."
Tuesday, November 11, 2008
Judge Henry H. Kennedy, Jr., of the D.C. District denied the administration's motion to dismiss in the case over the White House's sloppy record-keeping of its e-mails. He ruled, among other things, that the plaintiffs have satisfied Article III standing requirements. The NYT reports here.
Citizens for Responsibility and Ethics in Washington and The National Security Archive sued the Executive Office of the President over its failure to comply with record-keeping requirements under the Federal Records Act and the APA, which resulted in millions of missing e-mails. CREW collects the litigation documents and more here; The National Security Archive page is here. (Just browse these pages to get a sense of magnitude of this issue. Thank you, CREW, National Security Archive.)
Most of Judge Kennedy's opinion deals with statutory questions, but he analyzes the plaintiffs' standing--and rules in their favor--on pages 13 to 20. You might also want to take a look at the complaint; pages 14 to 22 of the administration's motion to dismiss; and pages 22 to 28 of plaintiffs' opposition.
Taken together these materials make a nice case study on Article III standing in a current, interesting, and important case.
Welcome to a new regular feature. The problem with teaching Con Law is that there is so much to learn about how to teach the subject. As we pondered this reality, we decided to create a feature titled "Profiles in Con Law Teaching." The point of the "Profiles" series is to highlight a prominent Con Law scholar who is also an excellent teacher. Our goal is to mine the expertise of these individuals so that we might all benefit from their knowledge.
I am pleased to announce that Professor H. Jefferson Powell is the subject of our first profile. Professor Powell teaches at the Duke University School of Law. In addition to being a prolific scholar (if you haven't yet read his essay on the Curtis-Wright case in the Presidential Power Stories collection, you are missing a truly enlightening piece), Professor Powell has won several teaching awards. Recently, he graciously agreed to provide his thoughts on the teaching of Constitutional Law.
Professor Powell began teaching Con Law in 1984. He most enjoys "working out with the students the way in which constitutional law arguments are structured, in terms of what counts as an argument and how the conflicting arguments are dealt with in the opinion or opinions we read." When asked what a typical day in his classroom is like, Professor Powell stated, "Whenever possible I try to discuss only one major case, with other new cases coming in as means of further elaborating/distinguishing/implicitly criticizing the main case. I usually ask a student to "set up" the case by reminding us what the issues were, and go on from there with a discussion that, when things go well, involves many contributors."
A common problem confronting Con Law professors is how to make issues such as the commerce clause interesting. On this point, Professor Powell advises, "Since my course focuses on the structure and forms of argument, more than the substance, I encourage students to see the common issues that cut across doctrinal areas. Grasping commerce clause disagreements is directly relevant to understanding how to make and evaluate arguments in, say, equal protection or substantive due process."
Finally, Professor Powell was asked what advice he would give to both new and seasoned con law profs. To the new law prefessors, he says, " Don't be afraid to change your mind. Have fun." For those who have been teaching the subject for some time, he states, "Perhaps it can be helpful to take a break. I didn't teach con law for several years and came back to it greatly refreshed."
We hope you enjoyed this profile. Please look for new profiles each week. Enjoy!
Monday, November 10, 2008
As President-Elect Barack Obama packs up boxes and calls U-Haul for quotes from Hyde Park to Pennsylvania Avenue, it's worth keeping an eye on the lawyers that will play a role in the new administration. While I posted on this Friday, much has happened even over the weekend. So, each week (or as often as is necessary) until the inaugaration, I will provide a summary of major transition happenings.
The Executive Branch
As speculated prior to the election, the leadership of the Defense Department and the CIA may remain unchanged. The same cannot be said for the rest of Washington. The race for the AG position has gained a few more contenders, including Tim Kaine, governor of Virginia, and Jamie Gorelick, a former deputy attorney general in the Clinton administration. However, as the article notes, no matter who should win the position, the issues the candidates should be considering are "warrantless surveillance, the legal status of Guantánamo Bay detainees and integration techniques."
The New Jersey Star-Ledger has a great piece about the possible shift on the Court brought by an Obama administration. The article states that unless Kennedy - the perrenial swing vote - retires soon, the Court's current 5-4 deadlock will remain for some time. However, if President Obama should be reelected in 2012, it's possible that either Kennedy and/or Scalia, both of whom will be 80 by that time, will retire. Legal Times has another wonderful piece on what motivates a justice to stay or leave - and usually, it isn't politics, though politics sometimes plays a small role.
When we get more news, I'll update accordingly, so watch this space!
The AP reports that advisers to President-Elect Obama are considering plans to close Guantanamo. Under the plan, detainees would either be shipped to the U.S. for criminal trial, released, or tried before a new court designed to deal with "sensitive national security cases." According to the report, the plan drew criticism from some detainee lawyers and skepticism from some Democrats.
On a different topic, The New York Times reports that Obama is "poised to move switftly" to reverse course on stem-cell research, expansion of oil and gas drilling, and other executive actions by the Bush administration. (I posted last week on midnight regulations in the Bush administration here.) The article, quoting Podesta:
"There’s a lot that the president can do using his executive authority without waiting for Congressional action, and I think we’ll see the president do that,” John D. Podesta, a top transition leader, said Sunday. “He feels like he has a real mandate for change. We need to get off the course that the Bush administration has set."
After an historical election cycle, we must now get back to the business of governing. With that in mind, we should consider the role of the executive in history, and in the coming administration.
When considering history, an article in Sunday's New York Times - "After the Imperial Presidency" - outlines the history of executive privilege, with anecdotes from the early days of the republic to the outgoing administration. Among the more interesting observations is that after the Clinton investigations and impeachment, George W. Bush was supposed to be the first "post-imperial president." He was supposed to enter a presidency weakened by his predecessor. But a funny thing happened on the way to the Oval Office. Under the guise of national security - where the president admittedly enjoys great powers - the Bush administration:
"claimed the authority to deny captured enemy combatants - U.S. citizens and non-citizens alike - such basic due process rights as access to a lawyer. It created a detention facility on Guantanamo Bay that it declared was outside the jurisdiction of the federal courts and built a new legal system - without any input from Congress - to try enemy combatants. And it argued that the president's commander-in-chief powers gave him the authority to violate America's laws and treaties, including the Geneva conventions.
The assertion and expansion of presidential power is arguably the defining feature of the Bush years . . . [As a result, the] next president will enter office as the most powerful president who has ever sat in the White House."
The article is a must read, both for the history it conveys and its discussion of the inner workings of the sometimes contentious relationship between Congress and the Executive.
Having examined the past, what does the future hold for the executive branch? Well, one would hope that a former professor of Constitutional Law would understand the job description. But as we all know, the trouble with the Constitution is that there are very few bright line rules. It's possible that President Obama could use his legal acumen to continue to expand the powers of the executive, as argued by Judge Posner at the VC. However, I would posit that if the opinions in Hamdi, Hamdan, and Boumediene are any indication, after the Bush administration the Court will not treat an expansive reading of Article II in a generous manner.
Do we have any indication at this time of the approach President-Elect Obama might prefer? Well, as the NYT article notes, both President-Elect Obama and Senator McCain had little to say on the issue during the campaign (and admittedly, the media did not press the issue), so there aren't many tea leaves to be read. Nonetheless, word on the street is that the President-Elect is considering a plan that will shutter Guantanamo Bay and try the alleged combatants in U.S. criminal courts or national security courts. Although some doubt Obama's ability to successful close the prison, if he does, that might send a clear signal to friends and foes alike that he does not intend to further elasticize the presidential role.
Senate Majority Leader Harry Reid (D-NV) seems confident that the Senate will expel Alaskan Senator Ted Stevens over his recent conviction for violating federal ethics laws for failing to report tens of thousands of dollars worth of gifts and services from friends.
Others are not so sure. Sandy Levinson at Balkinization started a discussion on the constitutionality of expulsion here. The post and comments are well worth a look. Levinson starts with U.S. Term Limits v. Thornton and the qualification clause in Article I, section 5, clause 1, which states:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . .
A commenter moves the exchange in the direction of Powell v. McCormack and the punishment and expulsion clauses in Article I, section 5, clause 2, which states:
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Because Stevens is clearly qualified to sit in the Senate--see Article I, section 3, clause 3, requiring senators to be 35 years old, "nine Years a Citizen of the United States," and "an Inhabitant of that State for which he shall be chosen"--the Senate could only punish him for "disorderly Behaviour" or expel him by a two-thirds vote under Article I, section 5, clause 2. But what is "disorderly Behaviour," who gets (ultimately) to decide, and does "disorderly Behaviour" (or some other qualifier) apply to the expulsion clause (or may the Senate expel for no reason at all with a two-thirds vote)? And of what relevance, if any, is his re-election by Alaskan voters after the verdict?
Senate rules and practices give little guidance. The Standing Rules of the Senate mention punishment or expulsion as a consequence only for "disclosing a secret of confidential business" of the Senate. Only 15 senators have been expelled since 1789; 14 of those were expelled for supporting the Confederacy during the Civil War. A CRS report explores the practices in the House, from which we might make some inferences about practices in the Senate. Point of Order (blog) has a discussion here.
On November 19, 2008, the Chicago Board of Education seems set to vote on the Social Justice High School-Pride campus, slated to open in the Fall of 2010. According to the Social Justice High School website, the purpose is to:
create a new high school campus to address the needs of the underserved population of lesbian, gay, bisexual, transgender, and questioning youth and their allies (LGBTQA youth). Research shows that there are low attendance rates and high drop-out rates among LGBTQA youth, and they struggle with harassment, depression, poor academic achievement, and suicide. Our goal is to provide a school with a safe, affirming, and supportive environment where every student — particularly LGBTQA youth — would develop the knowledge and skills needed to create better lives for themselves and their families and to succeed in their post-secondary pursuits. We envision a succession of graduates attending college or other post-secondary institutions at high rates, becoming transformative and successful members of society who recognize the responsibility to improve their communities and the world. Thus, the Social Justice High School–Pride Campus would improve on current conditions for LGBTQA youth in Chicago’s public schools and would be a national model for best practices in the education of LGBTQA youth.
The Chicago planners reportedly took as their inspiration two other public schools for LGBTQ youth – one in New York and one in Milwaukee.
New York’s Harvey Milk High School began in 1985 as a small institution that provided GED classes primarily to minority students and was operated under the umbrella of the Hetrick-Martin Institute, a 25-year-old social service agency serving at-risk LGBTQ teens. In 2003, The Harvey Milk High School joined New York City’s “carnival” of highly specialized military, trade, and other targeted public schools. Soon thereafter, Democratic state senator Ruben Diaz Sr., represented by Liberty Counsel, a Florida-based organization, brought a lawsuit against the school. The suit was settled by slightly amending the purpose of the school to not limits its admission to exclusively to "gay" students.
In Milwaukee, Alliance High School, a public school opened in 2005 advertises itself as “A Milwaukee School where you can be who you are.” It was chartered as a safe space based upon findings of bullying and low academic achievement of LGBTQ youth with a mission statement “to provide a safe, student-centered, and academically challenging environment to meet the needs of all students.” Interestingly, this school operates year-round, and in a “college-like atmosphere”, the students can select their courses to fit preference, educational objectives, and interest, and is one of several other targeted-learning schools in the Milwaukee area. There are no reported lawsuits.
For classroom (or exam) use, the Pride Campus provides an excellent equal protection problem. It illustrates the “anomalous result” that Justice Stevens described in his dissenting opinion in Adarand when the "tiers of strict scrutiny" meet the Court's affirmative action jurisprudence. It also highlights the issue of “animus” for the type of heightened rational basis review the Court employed in Romer v. Evans for a sexual orientation classification: In Pride Campus, the government interest is positive rather than a desire to harm a politically unpopular group. Additionally, it poses the question of the equal protection classification, given the inclusion of “allies.”
RR (thanks to Laura Mott for research assistance).
Sunday, November 9, 2008
With all the scholarly attention on voting rights--and with all the public attention in the wake of the 2000 and 2004 presidential elections--equally important voter registration issues have gone largely ignored. Professor Dan Tokaji (of Ohio State and the Equal Vote blog at Election Law at Moritz) seeks to fill that void with Voter Registration and Election Reform, recently posted on ssrn and appearing in the William & Mary Bill of Rights Journal. This is a very good piece and a welcome addition to the scholarship on voting rights; I highly recommend it.
Tokaji begins by explaining the importance of voter registration and putting his work in historical context:
Voter registration matters. Political candidates, parties, and advocacy groups have always understood this, devoting a great deal of time and resources to ensuring that their supporters are registered. Less nobly, there have been frequent attempts by political operatives to impede participation through the adoption and uneven application of registration rules. Examples include the exclusion of urban immigrants, ethnic minorities, and laborers during the nineteenth century, the mass disfranchisement of southern blacks through most of the twentieth century, and the aggressive purging and caging practices of recent years. . . .
Though voting technology and voter identification issues have typically attracted the lion's share of public attention in the area of election administration, the set of legal issues surrounding voter registration have become even more significant. In fact, voter registration became the big issue of the 2008 election season, just as were voting machines in 2000 and provisional ballots in 2004.
Despite the importance of voter registration, he argues that the lack of attention may result from "the fact that voter registration rules remain almost entirely a product of statutory law, having not (yet) been constitutionalized . . . ."
Tokaji first explores the fascinating history of voter registration, highlighting the politicization of voter registration requirements and the ways that registration requirements have been used through the early 20th century to exclude blacks from the polls:
The end result of the web of registration requirements, literacy or understanding tests, residence requirements, threats, violence, and other tactics was that over ninety percent of blacks who had previously been registered were disenfranchised by the early 1900s. In the early 1940s, the black registration rate in every one of the southern states was still under seven percent.
He argues in terms that resonate today: "Voter registration has thus been a means not only of promoting election integrity, but also of impeding eligible citizens' access to the ballot."
Tokaji next surveys the patchwork of federal and state laws on voter registration, starting with the 1965 VRA, the 1993 National Voter Registration Act, and the 2002 Help America Vote Act. He concludes that the evidence on how well state voter registration systems are functioning is "decidedly mixed": The U.S. Election Assistance Commission showed that voter registration actually declined from 2004 to 2006; and the EAC reported in 2006 that the most common reason why provisional ballots were rejected was that the voter was not registered (a result that may have been driven by voter error, third party error, or public agency or official error--we just don't know).
Tokaji next highlights the current the legal issues in litigation, focusing on four areas: problems with state maintenance of voter registration lists (see my recent post here); problems with voter registration through state agencies; problems with third party registration drives; and problems showing proof of eligibility at the polls. He argues that while better enforcement of existing legislation through the federal courts is necessary to open and fair voter registration, it is not sufficient.
And so Tokaji concludes his piece with a series of recommendations. He argues that we should tailor voter registration laws to inrease access for those underrepresented at the polls--lower income groups, young adults, and racial minorities--so that actual voters better represent the citizenry as a whole. And while there is little evidence that increasing registration among these groups will lead to increased voter fraud--even as any voter registration effort leads to some increase in voter registration fraud--voter registration requirements should still be sensitive to issues of integrity.
How to do this? Tokaji offer six ideas, moving roughly from modest to controversial. First, registration portability: Allow voters who move within a state to transfer their registration to their new address on election day. Second, automatic voter registration: Register voters automatically when they sign-up or register for certain other public services, or, e.g., when they graduate high school. Third, election day registration: Allow eligible persons to register on election day. Fourth, federalize registration rolls: "transfer responsibility for the maintenance of voter registration lists from the states to the federal level." Fifth, universal registration: Transfer registration responsibility from the voter to the government. And sixth, compulsory registration.
While these last two or three might meet some ideological resistance, and while others would undoubtedly run up against objections based on protecting the integrity of the polls, most of these solutions are, at bottom, quite reasonable ways to increase voter registration.
Tokaji's piece is an important move in starting to fill a gap in scholarship on voter registration. It raises many questions and ideas that beg for additional scholarly attention. And the piece will make a very nice complement to your course material on voting rights. I highly recommend this.