January 29, 2011
Egypt's Constitution: Presidential Election
Several provisions of the Constitution of the Arab Republic of Egypt address the election of President. The ongoing events in Egypt raise the possibility that the three decade Presidency of Hosni Mubarak (pictured right) is coming to an end.
Article 75 provides that the President must be "must be an Egyptian born to Egyptian parents and enjoy civil and political rights. His age must not be less than 40 Gregorian years." However, it is the next section that governs the process:
The President shall be elected by direct, public, secret ballot. For an applicant to be accepted as a candidate to presidency, he shall be supported by at least 250 elected members of the People's Assembly, the Shura Council and local popular councils on governorate level, provided that those shall include at least 65 members of the People's Assembly, 25 of the Shura Council and ten of every local council in at least 14 governorates.
The number of members of the People's Assembly, the Shura Council and local popular councils on governorate level supporting candidature shall be raised in pro-rata to any increase in the number of any of these councils. In all cases, support may not be given to more than one candidate.
Procedures related to this process shall be regulated by the law. Political parties, which have been founded at least five years before the starting date of candidature and have been operating uninterruptedly for this period, and whose members have obtained at least 5% of the elected members of both the People's Assembly and the Shura Council, may nominate for presidency a member of their respective upper board, according to their own by-laws, provided he has been a member of such board for at least one consecutive year.
As an exception to the provisions of the fore-mentioned paragraph, any political party may nominate for the first presidential elections, to be conducted following the enactment of this Article, a member of its higher board, established before May 10, 2005 according to its by- law. Candidature applications shall be submitted to an independent committee, named the Presidential Elections Committee. The committee shall be composed of the head of the Supreme Constitutional Court as a chairman and the head of the Cairo Court of Appeal, the most senior deputy of the head of the Supreme Constitutional Court, the most senior deputy of the head of the Court of Cassation, the most senior deputy of the State Council and five public figures, recognized for impartiality.
Three of the fore-mentioned public figures shall be selected by the People's Assembly and the other two by the Shura Council upon a recommendation of the bureaus of both houses for a period of five years. The law shall determine who will act on behalf of the chairman or any member of the committee, should there be some reason for their absence.
This committee shall exclusively have the following competences:
- To declare the initiation of candidature and supervise procedures for declaring the final list of candidates;
- To generally supervise balloting and vote-counting procedures;
- To announce elections results;
- To decide on all appeals, challenges and all matters related to its competences, including conflict of jurisdiction;
- To draw up by-laws regulating its modus operandi and method of practicing its competences.
The committee's resolutions shall be passed with a majority of at least seven members. Its resolutions shall be final, self-enforcing and incontestable by any means or before any authority whatsoever. Its resolutions may not be challenged through construing or stay of execution. The law regulating presidential elections shall determine other competences for the committee. The law shall also determine regulating rules governing the nomination of a candidate to replace another one who has vacated his seat for some reasons other than assignment within the period between the starting date of candidature and before the termination of voting. Voting shall be conducted in one single day. The presidential elections committee shall establish committees to administer stages of the voting and ballot-counting process. The committee shall establish main committees to be composed of members of the judiciary to supervise the process in accordance with such rules and regulations as may be decided by the committee.
Election of the president shall be declared when candidates have obtained an absolute majority of the number of valid votes. In the event that none of the candidates has obtained such majority, election shall be repeated, at least after seven days, between the two candidates who have obtained the largest number of votes. Should another candidate obtain a number of valid votes equal to those of the second, he shall take part in the re-election. In this case, the candidate who has obtained the largest number of votes will be declared winner. Voting for electing the president shall be effected, even though one single candidate has applied or even if he was the only candidate remaining due to assignment of the rest of candidates or due to failure to field another candidate in lieu of the one vacating his seat. In this case, the candidate who has obtained the absolute majority of the number of valid votes shall be declared winner.
The law shall regulate procedures to be followed in the event the candidate has failed to obtain this majority. The President shall submit the draft law regulating the presidential elections to the Supreme Constitutional Court following endorsement by the People's Assembly and before promulgation, to determine compliance with the Constitution. The Court shall return its ruling in this connection within fifteen days from date of submission thereto. Should the court decide that one or more provisions of the draft law are unconstitutional; the President shall return it to the People's Assembly to put this ruling into effect. In all cases, the court's ruling shall be binding to all parties and all state authorities. The law shall be published in the official gazette within three days from date of issuance.
An excellent primer on Article 76 is Professor Kristen Stilt's Constitutional Authority and Subversion: Egypt's New Presidential Election System, 16 Indiana International & Comparative Law Review 335 (2006), available on ssrn.
[image: Hosni Mubarak via]
January 28, 2011
Onwuachi-Willig Among 9 Finalists for Iowa Supreme Court
The Judicial Nominating Commission in Iowa, the subject of a recent unsuccessful lawsuit regarding its composition, has sifted through the 60 applicants and sent 9 candidates for the 3 vacancies to the Governor.
There is one woman, one racial minority, and one law professor - - - and then there are 8 other candidates.
Angela Onwuachi-Willig, Professor of Law at the University of Iowa College of Law (pictured left) is also the youngest candidate, at age 37, according to The Des Moines Register.
Onwuachi-Willig is a prolific scholar on race, class, and feminism, including their constitutional aspects. One of Onwuachi-Willig's most influential articles is Just Another Brother on the Supreme Court?: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity in which she argues that Thomas' ideology is deeply grounded in black conservative thought, which has a "raced" history and foundation that are distinct from white conservatism. She seeks to explain Justice Thomas's jurisprudence from a black, conservative perspective in cases concerning education and desegregation, affirmative action, and crime.
The current vacancies on the Iowa Supreme Court occurred when three Iowa Supreme Court justices stood for retention last November and were not retained by the voters of Iowa. This result is widely assumed to be attributable to the campaign against the judges based upon the Iowa Supreme Court's unanimous opinion in Varum v. Brien holding that a denial of same-sex marriage is unconstitutional under the state constitution.
France's Constitutional Court Upholds Ban of Same-Sex Marriage
In a relatively brief (by US standards) and long anticipated opinion (English translation), the court reasoned that the issue of equality - - - or not - - - between same-sex couples and opposite sex couples is one for the legislature and the court should not "substitute" its own judgment. The French opinion provides:
estimé que la différence de situation entre les couples de même sexe et les couples composés d'un homme et d'une femme peut justifier une différence de traitement quant aux règles du droit de la famille ; qu'il n'appartient pas au Conseil constitutionnel de substituer son appréciation à celle du législateur sur la prise en compte, en cette matière, de cette différence de situation....
This reasoning is familiar to those who have read other cases, in the US and elsewhere, that have rejected challenges to excluding same-sex couples from marriage.
France has had same-sex civil unions since 1999, but the status lacks the parental and inheritance rights accorded to married couples.
Vote Counting in County Judicial Election
A three-judge panel of the Sixth Circuit ruled yesterday in Hunter v. Hamilton County Board of Elections that Tracie Hunter, a candidate for Hamilton County (Ohio) Juvenile Court Judge, had a strong likelihood of success on the merits of her equal protection claim that the County Board of Elections treated some provisional ballots more favorably than others.
The case arose at the intersection of Ohio's provisional ballot law, Hamilton County's practice of combining different precincts in the same location, and the Board's examination of ballots at different locations. Under Ohio law, a voter's provisional ballot will be counted if the "individual named on an accompanying affirmation is . . . eligible to cast a ballot in the precinct or for the election in which the individual cast the provisional ballot." Some voters in Hamilton County submitted provisional ballots at the right location, but the wrong precinct. The Secretary of State mandated that the Board "may not reject a provisional ballot cast by a voter, who uses only the last four digits of his or her social security number as identification" if, because of poll-worker error, the ballot was submitted in the right polling location but the wrong precinct.
Hunter claimed that the Board applied different standards to two groups of provisional ballots that were submitted at the right location but the wrong precinct. The Board flatly rejected 849 ballots from one location, including 269 submitted at the right location but the wrong precinct, not considering evidence of poll-worker error. But the Board accepted 27 provisional ballots from a different location, ruling that poll-worker error must have caused the voter to submit the ballot to the wrong precinct, because there was only one poll-worker on site at this location. The court:
In particular, the Board explicitly refused to separate from the 849 wrong-precinct ballots those ballots cast at the right polling location but wrong precinct. The evidence of poll-worker error with respect to those 269 ballots--that the ballots were cast at the correct multiple-precinct polling location--is substantially similar to the location evidence considered by the Board with respect to the ballots cast at [the other location].
Op. at 25. According to the court, this disparate treatment "raises serious equal protection concerns." Op. at 27.
But more. The new Secretary of State argued that the district court created more equal protection problems when it ordered a review of the 849 ballots, but not the 27 other ballots. The court rejected this argument, distinguishing Bush v. Gore:
We conclude that the Board's review has met the requirements of Bush v. Gore. Secretary Husted urges that the district court failed to satisfy the requirements of Bush v. Gore when it ordered a "standardless investigation" which was not applied to the first group of 27 ballots, and then was inconsistently implemented with respect to the remaining ballots. But . . . the Board's review of the wrong-precinct provisional ballots was guided by objective criteria provided by [then-]Secretary Brunner to effectuate the district court's order. Moreover, the guidance rejected by the Supreme Court in Bush is different from that used here. The "intent of the voter" standard invalidated in Bush was being implemented differently by different counties with respect to the same presidential election. Because of a lack of "specific standards to ensure its equal application," "each of the counties used varying standards to determine what was a legal vote." Here, however, the district court's order applied to only one jurisdictional entity--Hamilton County--and one race--Hamilton County Juvenile Court Judge. This is not a situation in which a court is announcing a standard to be interpreted differently by multiple jurisdictions, resulting in the unequal counting of votes across counties. Instead, the district court is requiring the Hamilton County Board of Elections to review all deficient provisional ballots within the county under the same standard, and not just those cast at a particular location. Therefore, the district court's order, unlike the statewide order in Bush, does not give rise to inter-jurisdictional differences in how the order is implemented.
Op. at 30-31. The panel upheld that part of the district court's order that the Board investigate the 269 ballots and "[left] to the district court in the first instance, applying the uniformity requirements of Bush v. Gore, to direct the Board how to proceed" regarding these and other contested ballots. Op. at 41.
Facebook as a Fundamental Right?
It is not only law students who believe facebook and twitter are "fundamental rights." State Department Spokesperson P.J. Crowley, speaking to AlJezeera about the situation in Eqypt, described "social media" as a "fundamental right, as clear as walking into a town square."
The statement starts at 50 seconds.
The AlJazeera interviewer suggests that the rubber bullets and detentions might be worth more emphasis than "facebook and twitter."
January 27, 2011
Senate Agrees to Filibuster Changes
Senators Harry Reid (D-Nev.) and Mitch McConnell (R-Ky.) today agreed to changes in the Senate's filibuster practices. But the basic cloture rule appears to remain intact. We most recently posted on the issue here (where we predicted that the Senate would not achieve filibuster reform this Congress).
According to the Washington Post, the Senate leaders agreed to end secret holds, the practice in which a single anonymous senator can hold-up action until the majority can muster 60 votes. But leaders also agreed to retain the basic 60-vote requirement for cloture under Senate Rule XXII, the cloture rule. The agreement ends one of the most controversial aspects of the filibuster--the anonymous hold--but falls short of reform that some sought.
The Senate leaders also announced agreements to allow the waiving of the reading of an amendment under certain circumstances and to drop the Senate confirmation process for about 400 federal agency nominees. Both measures will help speed up Senate business; the latter measure will help ensure that federal agencies are fully staffed.
January 26, 2011
Judicial Emergency in Arizona
Chief Judge Roslyn O. Silver (D. Az.) last Friday issued General Order No. 11-01, Declaration of Judicial Emergency Under the Speedy Trial Act, for the United States District Court for the District of Arizona.
The judicial emergency is authorized by 18 U.S.C. Sec. 3174(e):
If the chief judge of the district court concludes that the need for suspension of time limits in such district under this section is of great urgency, he may order the limits suspended for a period not to exceed thirty days. Within ten days of entry of such order, the chief judge shall apply to the judicial council of the circuit for a suspension pursuant to subsection (a).
The Order suspends time limits in 18 U.S.C. Sec. 3161(b) of the Speedy Trial Act:
Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges. If an individual has been charged with a felony in a district in which no grand jury has been in session during such thirty-day period, the period of time for filing of the indictment shall be extended an additional thirty days.
According to the Order, "[t]he need to suspend the time limits is of great urgency due to a heavy criminal caseload, a lack of adequate resources, and the tragic death of Chief Judge John Roll on January 8, 2011."
The District of Arizona ranks third in the nation for criminal cases and defendant filings. The U.S. Attorney's Office has doubled in size since 2008, bringing yet more criminal cases. But there are only three active federal district court judges in Tucson. Each has 1,200 criminal cases. There are two judicial vacancies in Tucson and one in Phoenix.
January 25, 2011
No Formal Filibuster Reform This Session
Senate Democrats today concluded that they couldn't muster the 51 votes necessary to change Senate Rule XXII, the cloture rule, and thus formally reform the filibuster.
Why just 51 votes, a bare majority? Under the "constitutional option," the Senate can change its own rules, including the cloture rule, on the first day of the legislative session, because before it votes to (re)adopt its rules it operates under default parliamentary rules, which require a bare majority. After the first day, a rules change requires a two-thirds vote. We most recently posted on filibuster reform efforts here.
Senate Majority Leader Harry Reid (D-Nev) extended the first legislative day (which started three weeks ago) through today in order to round up 51 votes for a rules change. But according to The Hill, there aren't 51 votes for the change, and the Senate was set to adjourn the first day tonight.
Instead of a formal rule change, it sounds like Democrats and Republicans are closing in on an informal agreement: The Dems will allow Republicans more room to offer amendments, and the Republicans will agree to reduce their use of the filibuster.
January 24, 2011
Fifth Circuit Upholds UT Affirmative Action Plan
A three-judge panel of the Fifth Circuit last week upheld the affirmative action plan used by the University of Texas for its undergraduate admissions. The panel ruled in Fisher v. University of Texas that the plan was modeled on the plan that the Supreme Court upheld in Grutter v. Bollinger--that it used race as only one factor and that it looked at applications as a whole in order to achieve the educational benefits of diversity at the school. The plan thus satisfied strict scrutiny.
UT has a two-part admission policy. First, the school automatically admits Texas seniors in the top 10% of their high school graduating class. Next, for all others UT uses an index based upon two required essays and a "personal achievement score," which represents an evaluation of the applicant's entire file (including, among many other factors, race).
Only the second part was at issue in the case. But the panel ruled that the second part met the standard under Grutter. The panel first rejected the appellants' argument that it should apply a "strong basis in evidence" standard. That standard, the panel ruled, was appropriate for backward-looking employment decisions to remedy past wrongs, but not for forward-looking, holistic educational decisions to enhance diversity:
The high standard for justifying the use of race in public employment decisions responds to the reality that race used in a backward-looking attempt to remedy past wrongs, without focus on individual victims, does not treat race as part of a holistic consideration. In doing so, it touches the third rail of racial quotas. Wygant and Croson both involved explicit quotas; in Ricci, the Court was concerned that the city's use of race threatened to devolve into a de facto quota.
By contrast, Grutter recognized that universities are engaged in a different enterprise. Their holistic approach is part of a forward-looking effort to obtain the educational benefits of diversity. The look to race as but one element of this further goal, coupled with individualized consideration, steers university admissions away from a quota system. Grutter teaches that so long as a university considers race in a holistic and individualized manner, and not as part of a quota or fixed-point system, courts must afford a measure of deference to the university's good faith determination that certain race-conscious measures are necessary to achieve the educational benefits of diversity, including attaining critical mass in minority enrollment.
Parents Involved in Community Schools v. Seattle School District No. 1 further supports this understanding. When scrutinizing two school districts' race-conscious busin plans, the Court invoked Grutter's "serious, good faith consideration" standard, rather than the strong-basis-in-evidence standard that Appellants would have us apply.
Op. at 31.
The panel, looking closely at the numbers, also rejected the appellants' arguments that the plan amounted to racial balancing and that UT did more than necessary to achieve a critical mass for diversity. (The panel noted that the first part of the policy, the 10% rule, was "at best a blunt tool for securing the educational benefits that diversity is intended to achieve"--that it alone wasn't doing the job and therefore wasn't an adequate, alternative, race-neutral way of obtaining critical mass, as appellants argued.)
Judge Emilio Garza issued a sharp and lengthy special concurrence, agreeing with the result under Grutter, but strongly disagreeing with Grutter. Here's a taste:
My disagreement with Grutter is more fundamental, however. Grutter's failing, in my view, is not only that it approved an affirmative action plan incapable of strict scrutiny, but more importantly, that it approved the use of race in university admissions as a compelling state interest at all.
The idea of dividing people along racial lines is artificial and antiquated. Human beings are not divisible biologically into any set number of races. A world war was fought over such principles. Each individual is unique. And yet, in 2010, governmental decisionmakers are still fixated on dividing people into white, black, Hispanic, and other arbitrary subdivisions. . . .
When government divides citizens by race, matters are different. Government-sponsored discrimination is repugnant to the notion of human equality and is more than the Constitution can bear.
Op. at 83-84.
Actualizing a Civil Right to Counsel
The Maryland Access to Justice Commission recently released its report Implementing a Civil Right to Counsel in Maryland, a strategy paper for implementing a state-paid civil right to counsel, or Civil Gideon, in that state.
The report advocates for a civil right to counsel in cases involving basic human needs--shelter, sustenance, safety, health, child custody, and others. (This approach is consistent with a 2010 recommendation of the ABA.) It also advocates for a right to counsel on appeal in these cases.
The report comes seven years after a sharply divided Maryland Court of Appeals, the state's high court, declined to rule on a claimed right to counsel in Frase v. Barnhart, a child custody case. (The court agreed on the result in the case, but the dissent would have reached the right-to-counsel issue.) The petitioner in Frase argued that the Declaration of Rights in the Maryland Constitution required court-appointed counsel (under the "law of the land" clause, the "open courts" provision, and the due process clause), thus sidestepping the Fourteenth Amendment Due Process Clause and Lassiter v. Dep't of Social Services (holding that the Due Process Clause does not require appointed counsel in all civil cases, and that there's a presumption that there is no right to appointed counsel where physical liberty is not at stake).
The report also looks to the need for legal services in basic human needs cases and estimates that 344,470 poor Marylanders have unmet legal needs. According to the report, it would cost $106.6 million to provide them with an attorney.
For more on the civil right to counsel, check out the National Coalition for a Civil Right to Counsel.
January 23, 2011
Use of Foreign Law: Humor
The jurisprudential and political controversy regarding the use of "foreign" law by the United States Supreme Court has prompted some humor from The Onion:
WASHINGTON—The U.S. Supreme Court announced Monday that it would have to review two weeks' worth of procedure after determining it had mistakenly based its last three rulings on a copy of the Belgian constitution left in the justices' chambers. "When I presented my case on legal citizenship status under proposed changes to immigration law, I wondered why they said my argument was in direct opposition to the parliamentary rights of the Walloons," . . . . more here.
(H/T Laura Nixon)