Friday, September 18, 2009
A three-judge panel of the Court of Appeals of Indiana, Indiana's intermediate appellate court, ruled yesterday in League of Women Voters v. Rokita that the state's voter-ID law violated the state constitutional equal protection clause. The law requires, with certain narrow exceptions discussed below, that Indiana voters produce a valid, government-issued picture identification card before voting. This is the same law that the United State Supreme Court upheld last year in Crawford v. Marion County.
Indiana's equal protection clause, the "Equal Privileges and Immunities Clause," Article I, Section 23 of the state constitution, reads as follows:
The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.
According to the panel, Section 23 does not use the same varying degrees of scrutiny that courts use in applying federal equal protection. Instead, "[l]egislative classification becomes a judicial question only where the lines drawn appear arbitrary or manifestly unreasonable, and the challenger must negate every reasonable basis for the classification." League of Women Voters v. Rokita (quoting W.C.B. v. State). And judicial deference--"substantial deference to legislative discretion"--is built into the analysis. League of Women Voters (citing Collins v. Day).
In overturning the voter-ID law, the Court of Appeals focused on the two more nonsensical classifications in the statute. First, the law exempts absentee voters from the ID requirement, creating one class that must show an ID (in-person voters) and another class that need not show ID (absentee voters). Second, the law exempts voters who reside at a precinct polling place that is located at a state licensed care facility where the voter resides, creating one class that must show an ID (those who do not reside at such facilities) and another class that need not show ID (those who do reside at such facilities). The court held that neither of these classification advanced the state's interest in reducing voter fraud. The court further ruled that the first classification was non-severable and thus overturned the entire act.
Why the different result here than in Crawford? It's not (merely) that this case came up under the state constitution, not the federal constitution. (This particular state constitutional provision didn't obviously provide any greater protection than the federal Equal Protection Clause.) Instead, it's the way the cases were litigated. In Crawford, the Supreme Court focused on the right to vote and sidestepped the classifications. Putting this in a right-to-vote framework triggered the analysis under Anderson v. Celebrezze--a case that modified (some might say gutted) Harper v. Virginia Bd. of Elections by holding that "evenhanded restrictions" on the right to vote that are designed to protect the integrity of the process are perfectly fine, even as a poll tax (as in Harper) runs afoul of the Equal Protection Clause.
In contrast, in League of Women Voters, the court focused on the classifications--different treatment with respect to ID requirements that failed on their face to advance the state's interests. (Justice Souter discussed these classifications in his dissent in Crawford, but the classifications did not get the attention of the majority.)
Thus the Indiana Court of Appeals didn't (necessarily) rule that Indiana's equal protection doctrine "goes beyond" what federal Equal Protection demands. (The court didn't even cite Crawford in this portion of its opinion.) Instead, it simply took a different approach--an approach based more squarely on the classifications and less on the right to vote.
The state will surely appeal, as suggested by Governor Daniels in today's NYT piece on the case.
Thursday, September 17, 2009
In the NYRB article "The Torture Memos: The Case Against the Lawyers," David Cole (Georgetown) provides a brief rehearsal of the major arguments, legal authorities, and chronologies surrounding the attorneys Jay Bybee, John Yoo, Daniel Levin, and Steven Bradbury, the authors of the so-called "torture memos."
Cole's ultimate conclusion is that the "least President Obama should do, therefore, is to appoint an independent, nonpartisan commission of distinguished citizens, along the lines of the 9/11 Commission, to investigate and assess responsibility for the United States' adoption of coercive interrogation policies."
It's a relatively brief article intended for a general (if sophisticated) audience; it would make a great basis for a class discussion, simulation, or exercise in a law school, graduate, or undergraduate constitutional law class.
Wednesday, September 16, 2009
Seattle University hosted a conference this week on Caperton v. A.T. Massey Coal Co., the case from last term holding that the Due Process Clause required recusal by West Virginia Supreme Court Justice Brent Benjamin in a case where Benjamin received $3 million in contributions for his judicial election campaign from one of the parties. Professor Andy Siegel's (Seattle U.) blog post on the conference is here; we've posted on the case here and on Justice O'Connor's speech (at the conference) here.
The conference page contains links to two sessions and to Justice O'Connor's speech.
Thanks to Professor and Associate Dean Maggie Chon (Seattle U.) for the heads-up on the conference.
Monday, September 14, 2009
This evening's Washington Post reports on a speech by retired Justice Sandra Day O'Connor at the Seattle University School of Law. In the speech, Justice O'Connor voiced her disapproval of judicial elections. She stated that judicial elections produce a "
The Defense Department announced that it will implement case review panels for detainees at Bagram Air Base in Afghanistan, offering detainees their first meaningful opportunity to challenge their detention.
Bagram houses about 600 detainees, some of whom have been there for six years. Unlike detainees at Guantanamo, they have had no access to counsel and no significant measure of due process in challenging their detention.
According to the announcement, new detainees will undergo a case review within 60 days of being incarcerated, with further reviews about every six months. Detainees will have a "personal representative," not an attorney, to help them through the review process.
The Pentagon says that the changes are designed to keep only the most dangerous detainees locked up. But the move may be designed for another reason, too. The government may see this as enhancing its position in its appeal of Judge Bates's (D.D.C.) ruling last spring that the privilege of habeas corpus extends to Bagram. Particularly, the government may use this to argue that it has provided adequate process to detainees challenging the basis of their detention--a key factor, under Boumediene, in Judge Bates's ruling.
But in Boumediene, the Court ruled that habeas extended to Guantanamo because the procedures under the Detainee Treatment Act did not provide an adequate substitute for habeas review. The changes at Bagram would have to include processes that well exceed those in the DTA, and compare favorably to full habeas review, for this argument to take. The preliminary sketch in the Pentagon's announcement falls short. (Most notably absent: the right to counsel.)
Still, the administration will undoubtedly press its argument that habeas at Bagram raises practical obstacles that make it unworkable--largely a function of Bagram's location in an active combat zone. Bates's ruling--that Bagram is really no different than Guantanamo, and, anyway, any practical obstacles unique to Bagram are of the government's own making--may be at its most vulnerable on this point. (Given the ruling in Boumediene, this may be all that's left for the government.)
Sunday, September 13, 2009
State lawmakers in several states have sought to introduce measures to curtail federal health care reform, according to a report yesterday by the AP. The effort has so far been most successful in Arizona, where a proposed state constitutional amendment will appear on the ballot in 2010. The bill reads in relevant part:
A. To preserve the freedom of Arizonans to provide for their health care:
1. A law or rule shall not compel, directly or indirectly, any person, employer or health care provider to participate in any health care system.
2. A person or employer may pay directly for lawful health care services and shall not be required to pay penalties or fines for paying directly for lawful health care services. A health care provider may accept direct payment for lawful health care services and shall not be required to pay penalties or fines for accepting direct payment from a person or employer for lawful health care services.
B. Subject to reasonable and necessary rules that do not substantially limit a person's options, the purchase or sale of health insurance in private health care systems shall not be prohibited by law or rule.
This measure, and others like it, would certainly run up against federal preemption under any comprehensive federal reform bill.
On the flip side, protesters again suggested at Saturday's protest on the National Mall that federal health care reform would increase the size and scope of the federal government beyond what the founders intended. But any federal reform measure currently in play would fit comfortably within Congress's authority under the Commerce Clause and the Court's "substantial effects" test--i.e., that Congress can regulate under the Commerce Clause anything that has a "substantial effect" upon interstate commerce.
Given the reality of federal supremacy, the expansive federal authority under the Commerce Clause, and a sprawling health care system that pervades the national economy (isn't that exactly the problem?), the state efforts to limit federal health care reform and the arguments that federal health care reform exceed the federal government's powers have no real traction in our federal constitutional system. But they seem to have garnered enough of a following to at least signal that some number think, on principle or merely because of politics, that the federal government has no business in health care reform.