Civil Rights Law & Policy Blog

Ohio's restrictions on minority party ballot access halted

Ohio's most recent attempt at a ballot access law has gone the way of its predecessors. Today, a federal judge issued a preliminary injunction against the "patently unfair" law that restricts the ability of minor parties to gain access to the ballot in 2014. Secretary of State Jon Husted has not yet said whether the state will appeal the decision.

The Cleveland Plain Dealer reports:

District Court Judge Michael Watson granted a preliminary injunction preventing the state from enforcing the Republican-backed law, which prevents Ohio’s four minor parties from holding a 2014 primary election and strips them of state recognition.

 

Under the law, minor parties would have to scramble to collect 28,000 voter signatures by next July to regain official recognition. Parties that meet that requirement would then have to submit to the state a list of candidates to appear on the November ballot instead of holding a primary.

 

In a 28-page opinion, Watson said the law retroactively penalizes minor-party candidates who filed for office before Gov. John Kasich signed the measure into law last November. It also stops minor parties from reaping the political benefits of holding a primary, he said.

CRL&P related posts:

• Green, Constitution parties join LPO's suit challenging constitutionality of Ohio's new ballot-access law
• Effect of Ohio's new ballot access law on 2014 election uncertain
• Federal judge suspends Ohio's restriction on petition circulators
• 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 restrictions on third party ballot access

Brennan Center details best practices for reforming voting system

Last week, the Brennan Center for Justice released its new report: How to Fix the Voting System. The report is adapted from testimony the Center presented to the Presidential Commission on Election Administration--established to address the inefficiencies in voting during the 2012 elections--concerning best practices for reforming the voting system. According the Introduction: 

What follows are practical, evidence- and research-based best practices regarding four areas of reform — each of which will improve election administration and the voting experience: 1) Modernizing voter registration; 2) Expanding early voting; 3) Improving management of polling place resources; and 4) Improving the simplicity and usability of ballots and voting machines, and publishing data on machine performance. 

The full report is available here.

Attorneys seek three clarifications to North Carolina's new voting laws

Here's the story:

Election law attorneys at Bailey & Dixon in Raleigh have petitioned the State Board of Elections seeking the adoption of three rules clarifying new voting laws approved by the Republican-controlled General Assembly, including the photo identification requirement, The Insider reports.

Under one proposed rule, a voter's name on his or her photo ID wouldn't have to match exactly the name on the voter's registration record. The rule gives examples of when the two names might not match, yet the voter should be able to cast a ballot anyway. They include abbreviations of a name, such as "John R. Doe" instead of "John Robert Doe;" alternate spellings of names, such as "Thomas Jimenez" instead of "Tomas Jimenez;" use of a common nickname, such as "Becky" or "Becca" instead of "Rebecca;" use of an uncommon nickname, such as "Tim Belk" instead of "Thomas M. Belk Jr." and use of a maiden name or hyphenated maiden-married name, such as "Jane Smith" instead of "Jane Doe" or "Jane Smith-Doe" instead of "Jane Doe."

A second rule would allow a voter to cast a ballot if addresses on the photo ID and voter's registration don't match. "The purpose of the photo identification requirement is proof of identity and not proof of address," the proposed rule states. The first two rules were proposed to establish guidelines and prevent election officials, "through overzealousness or misunderstanding," from ruling an ID invalid if there is an explainable difference between names or addresses, according to the comments filed with the proposed rules by attorney William Gilkeson Jr. The ID requirement takes effect Jan. 1, 2016.

A third rule would prohibit party observers at the polls from being close enough to a voter to read the voter's ID or listen to the voter's conversation with a precinct official, challenge the voter's right to vote or "otherwise impede or interfere with the voting process or violate the privacy of the voter." The new election law allows political parties in each county to name up to 10 observers who may enter any polling place in that county. The law also allows any voter to challenge another voter in any precinct on Election Day. Those changes take effect Jan. 1. In his comments, Gilkeson wrote that current law specifies that an observer's role is to observe, not to impede the voting process.

Bailey & Dixon attorney Michael Weisel said the attorneys wanted to ensure consistent treatment and interpretation of the new laws across the 100 counties, in part to prevent confusion or chaos at polling places. "All the election law attorneys feel that these are good, common-sense explanations and procedures that reflect what the statute intends and will help facilitate the Election Day process," Weisel said.

It was unclear Thursday if the Board of Elections will consider the proposed rules. Elections Director Kim Strach didn't return a phone call. State Rep. David Lewis, R-Harnett, a main drafter of the new voting laws, also didn't return a call Thursday.

Responses to civil rights problems: universalistic, particularistic, or both?

In his upcoming Universalism and Civil Rights (with Notes on Voting Rights after Shelby), Professor Samuel R. Bagenstos claims that universalistic responses to civil rights problems--those not protecting specific groups against discrimination--are insufficient by themselves to address those problems. The better approach is to employ "a highly context-specific analysis," which, he argues, supports accounting for race discrimination in voting rights protections. Here's the abstract:

After the Supreme Court invalidated the core of the Voting Rights Act’s preclearance regime in Shelby County v. Holder, civil rights activists proposed a variety of legislative responses. One set of responses, which gained quick favor in influential precincts in the legal academy, sought to move beyond measures like the Voting Rights Act that targeted voting discrimination based on race or ethnicity. These responses instead sought to eliminate certain problematic practices that place too great a burden on any individual’s vote. Responses like these are universalist, because rather than seeking to protect any particular group against discrimination, at least as a formal matter they provide uniform protections to everyone. As Bruce Ackerman shows in his latest We the People volume, voting rights activists confronted a similar set of questions — and at least some of them opted for a universalist approach — during the campaign to eliminate the poll tax.

The voting rights context is hardly unique. Across an array of different contexts, scholars and activists have proposed universalist responses to address problems that group-oriented civil rights approaches have not fully resolved. Universalist responses have many possible strengths: tactically, in securing political support for and broader judicial implementation of laws that promote civil rights interests; substantively, in aggressively attacking the structures that lead to inequality; and expressively, in avoiding essentializing identity and emphasizing human commonality across groups. But they have possible drawbacks along all three of these dimensions as well. Although scholars have addressed some of these strengths and drawbacks in the context of specific proposals for universal responses to civil rights problems, no work has attempted to examine these issues comprehensively.

This essay attempts such a comprehensive examination. It argues that neither universalistic nor particularistic approaches can fully address our civil rights problems. Even in any specific context — whether voting, higher education, employment, disability, or the interpretation of the Fourteenth Amendment — neither universalistic nor particularistic approaches can provide the complete answer. Rather, the proper mix of universalistic and particularistic policies requires a highly context-specific analysis. Nonetheless, there are some common dynamics of universalistic and targeted civil rights policies, and these dynamics offer lessons for policymakers approaching any given civil rights context. This essay aims to draw out some of these general lessons and then sketch how they might apply to the civil rights context in which questions of universalism are most acute at the moment — the context of voting discrimination. The essay argues that the proper response to Shelby County will fail unless it goes well beyond universal protections of voting rights. Rather, the voting rights regime must also provide robust protection against race discrimination specifically.

CRL&P Daily Reads: Dec. 17, 2013

Federal judge says NSA's surveillance program violates the Fourth Amendment, but that will not be the end of it; several Senators feeling vindicated after the ruling; Politico explains the political impact of the NSA ruling on the White House's surveillance program review plans; NYTimes profiles the plaintiff; Obama will discuss NSA surveillance with Tech giants at today's meeting; and, Snowden tests the waters on 'permanent political asylum' in Brazil (full letter here).

Civil rights activists accuse Texas of neglecting election laws aimed at boosting voter turnout.

State's lawyers in challenge to Pennsylvania's same-sex marriage ban allegedly stalling and making intrusive requests of plaintiffs; and, same-sex couples in Illinois can get married before law's enactment with a doctor's certification that a life-threatening illness would makes doubtful their ability to wait.

Seattle PD facing civil rights suit after officer allegedly throws a bystander of protest to the ground.

 

CRL&P Daily Reads: Dec. 16, 2013

Former NSA director says NSA programs have not been abused; NSA's current director misled us; White House says no amnesty for Snowden; NSA officials think maybe they should consider it; NSA's worried Snowden still can do damage; and, 60-Minutes criticized for NSA segment.

Milwaukee police face a civil rights suit alleging officer held gun to a man's head and threatened to kill.

Iowans largely support their voter ID law; and, thousands of senior Texans get voter ID cards with wrong names.

Kansas and Arizona to find out within a month whether they will be able to change federal voter registration forms.

 

Election laws protecting political parties in Ohio?

The Columbus Dispatch's Jim Siegel brings this interesting story covering the growing dispute over Ohio's voting laws. Here's how the story begins:

Outside the Statehouse, Ohio’s election system is designed to run as a bipartisan machine in which the two parties watch over the process, and each other, to ensure that no one gains an unfair advantage.

 

Inside the Statehouse is very different.

 

“Elections are the only game in town where the players get to make their own rules,” said Aaron Ockerman, executive director of the Ohio Association of Elections Officials.

 

Few issues have led to more-heated partisan rhetoric than election-law changes. Nearly every significant proposal is greeted with cries of voter suppression, disenfranchisement and racism from Democrats whose only real chance of stopping the bills are ballot referendums or lawsuits.

 

“Unfortunately, the GOP agenda on changing election laws is not to solve the problems … and to create burdens on voters,” said Rep. Kathleen Clyde, D-Kent. “We’re all for common-sense solutions, but that’s not what we’re seeing.”

 

This year, bills altering early voting, provisional balloting, absentee applications and minor-party recognition have ignited fights.

 

Some of it is posturing by Democrats, said Sen. Bill Seitz, R-Cincinnati. There is, he said, also an ideological divide, as Republicans think voters have a responsibility “to provide minimally accurate information to the board of elections and take responsibility to getting themselves to the right place at the right time.”

 

Democrats, he said, want “Kroger voting,” open 24/7, where voters get, at taxpayers’ expense, complete convenience “so they can saunter down there whenever they damn well please.”

Sen. Seitz's chuckle-worthy "saunter[ing]" voter aside, I find it interesting that Siegel led by describing election law-making as a two-party tug-of-war. Under such circumstance, the subject of American democracy is no longer the citizen but rather the parties. In the election law context, this marginalizes the citizen's role in the democratic process at precisely the point her duty is of the greatest import--when exercising the individual right to vote. What's worrisome, it seems to me, is that Siegel's tug-of-war now is accepted as just the-way-things-are.   

CRL&P related posts:

• Green, Constitution parties join LPO's suit challenging constitutionality of Ohio's new ballot-access law
• Effect of Ohio's new ballot access law on 2014 election uncertain
• Federal judge suspends Ohio's restriction on petition circulators
• 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 restrictions on third party ballot access

Voting Rights Disclosure

The title of this post comes from this recent article arguing that required disclosure of changes to voting rules for only federal elections provides insufficient protection against voting discrimination in state and local elections--in the jurisdictions in which the majority of election changes are made. Here's the abstract:

In "Beyond the Discrimination Model On Voting," 127 Harvard Law Review 95 (2013), Professor Samuel Issacharoff proposes that Congress turn away from what he considers the outdated and “limited race-driven use” of the Fifteenth Amendment and instead protect all types of voters from partisan manipulation using a “non-civil rights” Elections Clause approach. Specifically, Issacharoff proposes that jurisdictions disclose changes to voting rules for federal elections. This Essay argues that Issacharoff’s approach is incomplete. Contemporary discrimination exists and warrants attention — particularly where fast-growing minority populations threaten the status quo. This discrimination differs from simple partisan manipulation, as the discrimination reduces incentives for cross-racial coalitions and fuels racial division. Further, Issacharoff’s choice to move “beyond” race and abandon the Fifteenth Amendment limits his proposal to federal elections. As a result, his proposal would overlook significant problems — at least 86.4% of all election changes that resulted in VRA section 5 objections since 2000 would not have been disclosed under Issacharoff’s proposal. Unlike the high-profile restrictions he targets (e.g., photo ID triggered by “Republican control of the state legislature”), local voting changes missed by Issacharoff’s proposal are often decisive factors in non-partisan elections, attract little national media attention, and go unchallenged by local voters who lack resources to bring lawsuits. Congress should deter voting discrimination by using the Fifteenth Amendment and the Elections Clause to require disclosure of election changes for federal, state, and local offices, as well as to require more detailed reporting than Issacharoff’s proposal. Finally, disclosure alone is not enough. Congress should also strengthen the VRA Section 3(c) bail-in procedure and streamline voting rights litigation. Selecting between the Fifteenth Amendment and the Elections Clause is a false choice, as we can work both to prevent voting discrimination and to improve access to voting for all Americans.

CRL&P related posts:

• Does § 2 of the 14th Amendment impact analysis of VRA's preclearance requirement?
• Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere
• Facebook "like" and First Amendment protection for the right to vote

CRL&P Daily Reads: Dec. 13, 2013

Advisory committee says NSA's mass surveillance should continue under new privacy constraints.

Investigation finds that guns website posts ads from sellers without licenses; Guardian's Michael Cohen claims America's gun carnage continues with no end in sight; and, gun club hopes to curb violence by teaching young people different ideas about guns.

Trial in North Carolina voter ID case is scheduled for July 2015.

Michigan restricts abortion insurance offered through new exchanges.

Civil rights suit alleges deputies pepper sprayed a couple and beat the husband after he held train doors open for his wife; civil rights suit filed after sheriff's deputy makes a man sit and kneel on hot asphalt for nearly half an hour, causing second-degree burns; and, civil rights groups say Dallas PD has a pattern of using excessive force.

Same-sex couples now will receive equal treatment when applying for federal student loans.

 

CRL&P Daily Reads: Dec. 12, 2013

How gun control is losing, badly; gun control groups focus on states; report says reducing gun violence requires early intervention for troubled youth; Ana Marie Cox claims Congress is scared of the gun lobby; but, gun control activists are staying positive.

Operator of revenge porn site says it's 'ruining my life', and his court date is scheduled.

Former contractor files a civil rights suit alleging the federal goverment harassed him because of an auto-complete error in Google search; and, Miami Gardens police chief resigns following allegations of racial profiling.

North Dakota Supreme Court weighs arguments in abortion case challenging ban on drugs to terminate pregnancies; and, legislators share personal stories about abortion.

No agreement on court date for North Carolina's voter ID case.

NSA chairman says mass surveillance is the best way to protect U.S.; Judge Napolitano warns about NSA mass surveillance; and, 'The Raven' Revisited.

 

CRL&P Daily Reads: Dec. 8, 2013

Milwaukee to file civil rights complaint against company that lost a flashdrive containing employees' personal information; and, DOE will not file civil rights complaint after a report finds rampant cheating in El Paso schools. 

Virginia officials making preparations for new voter ID law.

Colorado baker must serve same-sex couples, Judge says.

Reason.com highlights three important on-going Second Amendment cases.

RAND Corp. has this cool infograph explaining why prison-based education programs are cost effective.

Virginia Restaurant owner says he can take video of customers using the bathroom.

 

Does § 2 of the 14th Amendment impact analysis of VRA's preclearance requirement?

In The Constitutional Structure of Voting Rights Enforcement, Professor Franita Tolson argues that by viewing Congress's authority under section 5 of the Fourteenth Amendment in the context of section 2 of the amendment, Congress's authority to regulate voting and elections is broader than the preclearance requirement of the Voting Rights Act (VRA). Such reconsideration suggests that the preclearance requirement is within Congress's section 5 enforcement authority. Here's the abstract:

Scholars and courts have hotly debated whether the preclearance regime of the Voting Rights Act is constitutional under the Reconstruction Amendments, but in answering this question, this Article is the first to consider the effect of section 2 of the Fourteenth Amendment on the scope of Congress’s enforcement authority. Section 2 allows Congress to reduce the size of a state’s delegation in the House of Representatives for abridging the right to vote in state and federal elections for “any reason except for participation in rebellion, or other crime.” This Article contends that section 2 influences the scope of congressional authority under section 5 of the Fourteenth Amendment, which gives Congress the “power to enforce, by appropriate legislation, the provisions of this article.” Section 2, with its low threshold for violations (i.e., abridgment on almost any grounds) that trigger a relatively extreme penalty (reduced representation), illustrates the proper means/ends fit for congressional legislation passed pursuant to section 5 to address voting rights violations. Renewed focus on section 2 also sheds light on the textual and historical links between the Fourteenth and Fifteenth Amendments, links that provide a broad basis for Congress to regulate state and federal elections. Contrary to the Supreme Court’s recent decision in Shelby County v. Holder, this Article concludes that requiring preclearance of all electoral changes instituted by select jurisdictions under the Voting Rights Act is actually a lesser penalty than reduced representation under section 2, and thus is consistent with Congress’s broad authority to regulate voting and elections under the Fourteenth and Fifteenth Amendments.

CRL&P related posts:

• Democracy and renewed distrust: Equal protection and the evolving judicial conception of politics
• Remembering Tinker: The right to vote as expressive conduct
• Felon disenfranchisement, political power, and the First Amendment right to vote
• A surprising story about unsurprising circumstances: political partisanship burdening the right to vote
• Facebook "like" and First Amendment protection for the right to vote
• Atlantic correspondent Ornstein calls for a constitutional right to vote

CRL&P Daily Reads: Dec. 6, 2013

Democratic lawmaker urging Florida to allow online voter registration, same-day registration, and to create more early voting sites; and, Obama expects to see bipartisan improvents to voting access in 2014.

Florida State's Attorney won't press charges against officers facing civil rights lawsuit over harassment allegations.

Gun-rights advocates target the NFL over its policy against ads with guns; gun-control advocates release advertisement as citizens remember Newtown; and, Giffords launches gun-control PAC.

NYC's Fire Commissioner discusses with NPR attempts to close force's racial gap.

The Week claims anti-abortion activists are 'hijacking' the legislative process in Michigan.

 

Democracy and renewed distrust: Equal protection and the evolving judicial conception of politics

The title of this post come from this article arguing that the Court has become less deferential towards legislative efforts to protect the equal protection rights of minorities. According to the author, this change is the result of both shifting views about the political power of minorities and an acceptance of public choice theory. Here's the abstract:

Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway.

What explains these shifts? An easy explanation is that the Supreme Court has simply become more conservative. But what underlies this conservatism? In this Article, I argue that the Court’s own evolving conception of politics underlies the changes in the meaning of equal protection. In the past, the Court saw politics through the lens of pluralist theory, the crucial defect of which was the risk that minorities would be politically marginalized. That understanding has given way to a public choice conception in which the Court presumes these same minorities to be too politically powerful. In essence, one form of judicial distrust of democratic politics has replaced another.

I argue that two primary sources produced this renewed distrust: changing conservative views of the position of minorities in politics and a conservative legal movement that rejected pluralism in favor of public choice theory as the most accurate description of the operation of politics. I conclude by identifying important normative questions that this theory raises for constitutional law scholars and by offering a prescription for civil rights advocates seeking to influence judicial interpretations of the Equal Protection Clause.

If this argument is correct, this shift towards a less deferemtial standard conflicts with its decision in Crawford v. Marion Co. Election Bd., in which the Court demonstrated incredible deference towards a state legislature's authority to enact election laws. 553 U.S. 181 (2008). In Crawford, even though it acknowledged that the state had not shown the existence of voter fraud, the Court accepted the state's explanation that the voter ID law was needed in order to prevent such fraud (even though opponents had argued that the law would negatively impact minorities). ("The only kind of voter fraud that [the law] addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indian at any time in its history."). Indeed, writing for the Court, Justice Stevens claimed that the justifications offered in support of the law were "valid" and "sufficiently strong" to uphold its constitutionality. 

CRL&P related posts:

• Remembering Tinker: The right to vote as expressive conduct
• Facebook "like" and First Amendment protection for the right to vote
• Felon disenfranchisement, political power, and the First Amendment right to vote
• A surprising story about unsurprising circumstances: political partisanship burdening the right to vote
• Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty
• Should elderly judges be forced to retire?

CRL&P Daily Reads: Dec. 5, 2013

Massachussetts legislative committee on election laws considers voter ID bill; Mississippi's Secretary of State claims that 90 percent of the state's citizens already have ID required by new voting law; and, voting rights group to advocate for laws that expand voting and access to the polls in all 50 states.

Civil rights lawsuit filed against a police officer who allegedly broke an elderly man's arm in a roadside incident while off-duty; taxpayers in a Rhode Island town will cover $7 million settlement agreed to after a confrontation in which the police shot a teen 9 times leaving him paralyzed; and, wrongful death claim against California police for the shooting of a suicidal man is allowed to proceed.

Support for stricter-gun laws is dropping.

Federal judge hears oral arguments on Utah's same-sex marriage ban.

Tennessee asks state Supreme Court to provide dates of execution for 10 inmates.

NSA tracks cell locations worldwide.

 

CRL&P Daily Reads: Dec. 2, 2013

SCOTUS rejects challenge to the ACA's employer mandate as it prepares to hear challenges to ACA's contraceptive coverage mandate.

Think Progress says Texas's voter ID law could produce six-hour delays to vote.

Guardian explores how the pact between the U.S and U.K. led to modern surveillance; and, Glenn Greenwald responds to continued attacks over his release of Snowden's NSA leaks.

Constitutional Law Prof Blog previews oral argument in an upcoming First Amendment case: U.S. v. Apel.

NPR examines 'forgotten' issue of fair housing.

Albaquerque looks to reform its allegedly costly intiative process.

Next LA fire chief will have to deal with legacy of race and sex discrimination.

SCOTUS doesn't have enough to do.

 

Green, Constitution parties join LPO's suit challenging constitutionality of Ohio's new ballot-access law

Unsurprisingly, the Libertarian Party of Ohio's (LPO) disdain for Ohio's new ballot-access law is shared by the Ohio Green Party and the Ohio Constitution Party, both of which are attempting to join the LPO's suit challenging the constitutionality of the new law. As CRL&P has noted, the lawsuit alleges the law prevents minor parties from holding party primaries, and that it requires minor party candidates to obtain 28,000 signatures--and a minimum of 500 signatures from 8 of Ohio's 16 congressional districts--in order to appear on next year's ballot. Further, beginning in 2015, the law will increase that requirement to 56,000 signatures.

Republicans claim that the law simply responds to the void left after the U.S. Third Circuit Court of Appeals' 2006 decision in Libertarian Party of Ohio v. Blackwell in which the court invalidated the states prior ballot-access law. However, critics contend that the new restrictions are aimed at aiding  Gov. John Kasich's reelection campaign.

In a recent poll, Gov. Kasich leads Democratic challenger Ed Fizgerald 44 to 37 percent.

CRL&P related posts:

• Effect of Ohio's new ballot access law on 2014 election uncertain
• Federal judge suspends Ohio's restriction on petition circulators
• 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 restrictions on third party ballot access

 

CRL&P Daily Reads: Dec. 1. 2013

Kansas City Star editorial says electoral reforms should focus on making voting easier for eligible voters; and, The New Republic explains how this might be accomplished.

Guardian columnist explores some of the consequences of the continuing controversy over the NSA's surveillance program.

SCOTUS to decide whether government can prevent some from protesting based on security interests.

Woman wants Mississippi to recognize same-sex marriage so that she can get a divorce; and, lawmaker challenges Hawaii's new law legalizing same-sex marriage in court.

Women still make less than men for the same work.

Americans still don't agree on gun policy; and, man makes a gun made from things available at airports.

NPR explores pilot program that provides public defenders to immigrant detainees.

 

CRL&P Daily Reads: Nov. 30, 2013

Three-judge panel reverses dismissal favoring City of Chicago in case alleging it responds more slowly to 911 calls made by Blacks and Hispanics.

WaPo explains how recent abortion decisions affected the Senate's debate over the filibuster.

Columbus Dispatch explores Ohio Bureau of Motor Vehicles panel criteria for reviewing vanity plates.

Voting rights activists claim Los Angeles County redistricting discriminates against Latinos; and, Cleveland Plain Dealer editorial board says pending voting bills restricting early voting and mandating ballot uniformity are voter suppression measures.

French parliament wants to impose new fines on solicitors of prostitution services.

 

CRL&P Daily Reads: Nov. 29, 2013

Latinos want DOJ to sue over redistricting in Los Angeles County that allegedly unfairly reduces their influence; and, Pennsylvania legislature considers a bill to curb voter intimidation.

Some experts question whether new encryption services actually will protect users from spying.

Texas GOP talk gun rights to appeal to voters.

Same-sex couple files lawsuit challenging Texas's ban on same-sex marriage.

Missouri sheriff faces a second lawsuit over allegations he sexually harassed female employees.

 

CRL&P Thanksgiving Reads: Nov. 28, 2013

NSA has been monitoring the porn-watching habits of suspected radicals, which The Atlantic's Friedersdorf claims is bad for democracy; NSA soon will be split up; The Progressive discusses 'The NSA's New McCarthyism'; Ambinder has a cool NSA org chart; and, Nice, Canada. Real nice.

Cleveland Plain Dealer calls on Senate to oppose pending stand-your-ground bill; Iowa gun club will remain next to school; and, woman sentenced to 20-years in prison after firing a warning shot to deter her allegedly abusive husband released the night before Thanksgiving.

Congresswoman Fudge asks Holder to investigate Ohio's new voting laws; African-American youths pay higher 'time-tax' at the polls; and, Kentucky could be the next state to enact a voter ID law.

Federal judge decides NYPD must proceed with case of Occupy protester claiming an officer grabbed her breast.

 

CRL&P Daily Reads: Nov. 27, 2013

Revelations about the extent of the NSA's surveillance program could put international data-sharing agreements at risk; federal judge hears arguments regarding the release of DOJ documents on the legality of NSA's surveillance program; The Atlantic explores the inception of the NSA; and, Microsoft will change encryption to prevent NSA surveillance.

Texas National Guard will allow same-sex couples to apply for benefits immediately; gay teen banned from mall at which he allegedly was attacked; Kentucky couple fined one cent for remaining in county clerks office after closing time to protest same-sex marriage ban; and, judge okays terminally ill woman's request to marry her female partner before Illinois same-sex marriage law becomes effective.

Colorado Democrat resigns after gun-rights advocates successfully petition for her recall; and, Plain Dealer guest columnist argues that Ohio legislature should pass gun-safety laws to prevent children from accessing guns.

Voters claim Lousiana segregated African Americans into one racially-gerrymandering congressional district.

SCOTUS to hear arguments as to constitutionality of ACA's contraceptive rule; and, it will consider the First Amendment rights of Bush protesters alleging official's attempts to disperse them were not supported by valid security interests.

 

CRL&P Daily Reads: Nov. 26, 2013

African American judge alleges that UCLA police used excessive force when they stopped him ostensibly for not wearing his seat belt.

NSA likely accessed Google and Yahoo user data through fiber-optic cables used to connect data centers; Guardian columnist says NSA's surveillance program demonstrates hypocrisy of 'Five Eyes' countries; U.S. officials worry that Snowden might still have a large cache of intelligence data; and, Jeff Jarvis wades through more hero/villain-talk regarding Snowden.

The Week examines the recent difficulties of anti-abortion groups at the polls.

Mississippi Democrats say new voter ID law will hurt both parties, but the state is ready to start issuing voter ID cards.

Civil rights group updates its app for reporting TSA complaints.

 

CRL&P Daily Reads: Nov. 25, 2013

Texas officials worry that new voter ID law could cause significant problems in higher-turnout elections; and, county officials in Alabama ask for more workers to deal with new voter ID law.

Ohio officials worry that new gun laws could waste taxpayer dollars; and, threatened boycott by hunters opposing Colorado's new gun laws appears to have been only bluster.

NSA director offered to resign over Snowden leak; and, NSA infected thousands of networks with malware.

Excessive force lawsuit costs Los Angeles County $1.6 milliion.

 

CRL&P Daily Reads: Nov. 23, 2013

NSA actually sought to expand surveillance program.

Montgomery Advertiser calls for more ballot access for minor party candidates; PolitiFact calls North Carolina governor's claim that Democrats 'agree' with voter ID law 'mostly false'; and, Plain Dealer column argues that Ohio election reforms should not include photo ID.

Wisconsin Court of Appeals will not block probe into campaign spending and fundraising during this month's elections.

Inmate charged with double murder files a hand written civil rights lawsuit alleging unduly harsh prison conditions and First Amendment violations.

Seattle PD settle a civil rights suit for an illegal search resulting in arrest of ex-felon for illegally possessing a firearm.

Wilmington PD 'stop-and-frisk' policy challenged.

Philadelphia bans 3-D printed guns.

 

CRL&P Daily Reads: Nov. 22, 2013

ACLU sues Kansas Attorney General over state's new election law requiring proof of citizenship to vote; Independent candidate denied ballot access in Alabama's special congressional election; 134 voters in Virginia election couldn't provide proper ID; and, Arkansas's voter ID program is nearly ready.

Some fear Ohio gun bill could limit police stops; Washington voters to choose betweent competing gun policies; Michiganders can now carry guns in state capital's libraries; and Dershowitz and Levinson debate Second Amendment's contemporary usefulness.

Woman files suit against Pittsburgh PD after a repeated sex offender was permitted to remain on the job; store owner files civil rights lawsuit after store's surveillance videos allegedly show racial profiling by police officers; and, civil rights lawsuit against officers in Utah could end up costing the state's taxpayers millions.

Government lawyers return to federal court to defend NSA's mass surveillance of telephone data.

Pennsylvania judge holds status hearing on the challenge to the state's same-sex marriage ban.

Spanish government introduces anti-protest laws.

 

CRL&P Daily Reads: Nov. 21, 2013

Many believe NSA intrusions go too far, and most Americans believe Snowden leaks harmed national security; President Reagan played a role in NSA's development; NSA spies on Britons despite no-spying pact; and, Toomey & Kaufmann argue that the problems with NSA surveillance are the result of too much secrecy.

Wisconsin Supreme Court to hear challenge to voter ID law; proponent of Wisconsin voter ID law claims that people who can't vote just don't care; and, Massachusetts House approves early voting and online registration.

Online impersonators are not protected by the First Amendment, according to the Pennsylvania Supreme Court.

Disgruntled businessman uses newspaper editor's name to direct people to hardcore porn website.

Police use of license plate readers draws criticisms from privacy groups.

Rep. John Lewis speaks about President Kennedy's complicated relationship with civil rights.

 

Early Voting: What Works

The title of this post comes from this report released last month by the Brennan Center for Justice calling for an extension of early voting. Here is the abstract:

The lifeblood of a democracy is a voting system that is free, fair, and accessible to all eligible citizens. But much of today’s election system was developed more than a century ago. As Americans’ lives become more complex, confining voting to a single 8- or 12-hour period is simply not reflective of how most voters live. Expanding early voting programs is a crucial way to modernize the system. It adds important flexibility and convenience, reduces the administrative burdens of the Election Day rush, keeps elections safe and secure, and helps bring our antiquated system into the 21st century.

Based on extensive interviews with election officials and an analysis of state early voting laws, this report details the benefits of early voting programs and proposes seven recommendations to substantially improve our outdated election process.

 

CRL&P Daily Reads: Nov. 20, 2013

NSA ignored courts on conduct of domestic surveillance; Supreme Court won't hear challenge to NSA domestic surveillance; and, Rep. Sensenbrenner claims NSA's surveillance program threatens America's economy.

Albuquerque voters reject ban on abortions after 20 weeks; and, Supreme Court won't block Texas abortion law that has caused some clinics to close.

Divided Ohio Supreme Court upholds school district's firing of teacher who refused to remove religious materials from his classroom.

Ohio House committee approves new 'stand your ground' law; gun owners in San Fancisco claim city's large-capacity magazine ban violates the Second Amendment; and, Ohio city looks to repeal several gun laws after legal challenge by gun-rights advocates.

Christian Science Monitor explains how voter ID laws affected 2013 elections; PolitiFact Texas labels claims that no problems resulted from state's new voter ID law 'mostly false'; and women are more likely to be disenfranchised under North Carolina's new voter ID law.

Iowa city required to release records from closed meetings.

Juveniles file a federal lawsuit against Florida county and private prison contractor alleging extremely harsh conditions and overuse of pepper spray.

Governor expected to sign Illinois's law legalizing same-sex marriage later today.

Iowa woman wrongfully terminated for alleging workplace discrimination wants her job back.

 

Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere

The title of this post come from Professor Richard Hasen's upcoming article arguing that federal courts ought to use a more exacting analysis of voting laws disproportionately affecting one party's voters. Here's the abstract:

North Carolina, Texas, and other states with Republican legislatures have passed a series of laws making it harder for voters to register and to vote. In response, the United States Department of Justice has sued these states, claiming that the laws violate portions of the Voting Rights Act protecting minority voters. When party and race coincide as they did in 1900 and they do today, it is hard to separate racial and partisan intent and effect. Today, white voters in the South are overwhelmingly Republican and, in some of the Southern states, are less likely to be willing to vote for a Black candidate than are white voters in the rest of the country. The Democratic Party supports a left leaning platform that includes more social assistance to the poor and higher taxes. Some Republicans view such plans as aiding racial minorities.

Given the overlap of considerations of race and considerations of party, when a Republican legislature like North Carolina’s passes a law making it harder for some voters to vote, is that a law about party politics or a law about race? As I explain, if courts call this a law about party politics and view it through the lens of partisan competition, then the law is more likely to stand, and the fight over it will be waged at the ballot box. If the courts call this a law about race and view it through the lens of the struggle over race and voting rights, then the law is more likely to fall and the fight will be settled primarily in the courts. 

The race versus party bifurcation is unhelpful, and the solution to these new battles over election rules — what I call "The Voting Wars" — is going to have to come from the federal courts. Courts should apply a more rigorous standard to review arguably discriminatory voting laws. When a legislature passes an election administration law (outside the redistricting context) discriminating against a party’s voters or otherwise burdening voters, that fact should not be a defense. Instead, courts should read the Fourteenth Amendment’s Equal Protection Clause to require the legislature to produce substantial evidence that it has a good reason for burdening voters and that its means are closely connected to achieving those ends. The achievement of partisan ends would not be considered a good reason (as it appears to be in the redistricting context). These rules will both discourage party power grabs and protect voting rights of minority voters. In short, this new rule will inhibit discrimination on the basis of both race and party, and protect all voters from unnecessary burdens on the right to vote.

CRL&P related posts:

• Facebook "like" and First Amendment protection for the right to vote
• Felon disenfranchisement, political power, and the First Amendment right to vote
• The Atlantic calls for a constitutional right to vote
• A surprising story about unsurprising circumstances: political partisanship burdening the right to vote

Effect of Ohio's new ballot access law on 2014 election uncertain

On Nov 6, 2013, Gov. John Kasich signed into law new ballot access restrictions (S.B. 186) making it more difficult for minor parties to gain access to the ballot. The Libertarian Party of Ohio (LPO) has filed a lawsuit challenging the law on the grounds that it violates protected First Amendment rights.

The LPO also has argued that the new restrictions are aimed at bolstering Gov. John Kasich's (R) reelection campaign, and one Ohio scholar supports this view:

University of Akron political scientist David Cohen said Republicans pushed the bill through to help Kasich’s re-election chances by hamstringing Earl's campaign. Their fear, Cohen said, is that conservatives upset about Kasich's support of Medicade [sic] expansion would vote Libertarian instead, thus helping Democrat Ed FitzGerald’s chances.

“I think Governor Kasich and the Republicans know it’s a huge deal,” Cohen said. “They know that if it’s a two-person race, he wins.”

Reasons exist for suspecting the veracity of Professor Cohen's claim, particularly because the race appears to be tightening. The liberal-leaning Public Policy Polling (PPP) found in August that the race between incumbent Gov. Kasich and Democratic challenger Ed Fitzgerald had narrowed--with Fitzgerald narrowly leading 38 percent to 35 percent. Similarly, with the inclusion of Libertarian Party candidate Charlie Earl, PPP recently found that the race between Gov. Kasich and Fitzgerald is a virtual dead heat. Regardless, PPP has found Gov. Kasich's position to be less than comfortable.

Libertarians appear to believe that Republican support for recent ballot access restrictions could cost Republican candidates in 2014. On November 17, 2013, LPO state committee chairman Aaron Keith Harris wrote in a Plain-Dealer op-ed:

Because Libertarian party gubernatorial candidate Charlie Earl seems to be attracting many fiscal conservatives disgusted by Kasich's record on taxes, spending, and Obamacare/Medicare expansion, the Republican Party in the House and Senate decided to act to restrict voter choice.

The LPO now is actively recruiting candidates to challenge Republicans who supported the restrictions.

However, Gov. Kasich generally has enjoyed strong favorability ratings this year, and questions remain as to whether Democrats can generate the turnout necessary to defeat him.

The Ohio State Univeristy professor Paul Beck also doubts whether the new restrictions will dramatically affect Gov. Kasich's re-election chances. According to The Plain Dealer, he believes that "conservative voters would lump their displeasure with SB 193 in with their anger over Kasich’s push to expand Medicaid."

Further, Professor Beck is skeptical about the LPO's chances in court:

Ohio State University political science professor Paul Beck said he believes the Libertarians will lose their lawsuit, as courts tend to defer to legislative prerogative to set state ballot-access rules. But he said the party will likely submit enough petition signatures to regain official recognition.

Courts generally are deferential to legislative bodies when it comes to election law, but I question whether such deferrence makes good sense. While legislative bodies do have expertise in elections, they also are in a position to craft laws that will affect outcomes. As a result, majorities will almost always craft election laws that benefit their party--usually at the expense of voters. Perhaps less deferrence from courts could limit the attendant negative pressures of power.

CRL&P related posts:

• Federal judge suspends Ohio's restriction on petition circulators
• 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 restrictions on third party ballot access

CRL&P Daily Reads: Nov. 19, 2013

FISA court order permitting NSA's surveillance of Americans' email and internet data released; The Week reports on NSA's efforts to minimize data collected on Americans; NSA releases documents showing it vowed to correct surveillance mistakes; and Yahoo seeks to protect users from surveillance.

Stop-and-frisk by NYPD down over last few months.

Pennsylvania woman files a civil rights lawsuit after a police officer offered her legal breaks for sexual favors.

Illegal immigrants don't vote in Arizona; Tennessee Supreme Court upholds new voter ID law; and, The Christian Science Monitor asks whether voter ID laws represent a war on the Greatest Generation.

Former lawmaker files civil rights lawsuit alleging that officers ignored his legislative immunity when they charged him with domestic violence.

United Methodist jury convicts a pastor for performing son's marriage to male partner; same-sex couples married outside Missouri now can file joint tax returns there; and, Cardinal denounces Illinois's new law legalizing same-sex marriage.

Albuquerque voters decide today whether to ban abortions after 20 weeks; vote could represent new front in fight over abortion rights.

Dallas reviews ban on protests within 75 feet of highways.

 

CRL&P Daily Reads: Nov. 18, 2013

SCOTUS will not hear privacy group's challenge to NSA's collection of telephone information from Verizon customers; however, two lower courts will hear challenges to NSA's program; and, The New Republic explains how German support for granting asylum to Snowden could have an impact in NYC.

Federal judge schedules case over Texas's voter ID law for September 2014; another federal judge hears closing arguments in the case over Wisconsin's voter ID law; Alabama's voter ID law will be enforced; and the Atlanta Daily World says black voting rights are at a crossroads.

Muslim woman files a civil rights lawsuit alleging that co-workers at The New School in NYC harassed and discriminated against her.

Iowa Supreme Court decides to allow a man wrongfully convicted of sexual abuse to proceed with his wrongful imprisonment claim.

Texas school district will allow a picture in the school's yearbook of a transgender teen dressed in a tuxedo.

Cheney sisters spar over same-sex marriage on Facebook.

 

CRL&P Daily Reads: Nov. 17, 2013

Support stalled for Sen. Gillibrand's bill providing sexual assault victims in the military reporting alternatives outside the chain of command; she will seek a floor vote on the bill.

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.

Obama issues memo haulting deportation of undocumented military families.

NYC Mayor-elect de Blasio meets with NYPD commissioner Kelly, who recently criticized Democrats for opposition NYPD's stop-and-frisk policy.

Protester files civil rights lawsuit against City of Newark, California for false arrest and alleges First Amendment violations.

In Spain, topless women interrupt anti-abortion rally with chants of 'Abortion is sacred.'

 

Federal judge suspends Ohio's restriction on petition circulators

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:

A federal judge late yesterday blocked enforcement of an Ohio law that said only Ohioans can collect signatures to qualify issues or candidates for the ballot.

In granting a preliminary injunction, Judge Michael Watson of the Columbus division of the Southern District said the law is a First Amendment violation.

“It is well established that even a temporary violation of First Amendment rights constitutes irreparable harm,” Watson said.

The court respects the state’s prerogative to regulate petition circulation, Watson wrote, but that does not permit legislation that violates the Constitution.

“Plaintiffs have shown a substantial likelihood of success on the merits,” Watson wrote.

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

 

CRL&P Daily Reads: Nov. 12, 2013

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.

Guardian asks whether schools named after Confederate soldiers should change their names.

Angolan officials arrest five women on suspicion of being lesbians.

 

Election officials testify in voter ID case

The title of this post comes from this article detailing the difficulty of training election officials when implementing new voting laws. Specifically, the article notes one official's testimony in a federal hearing on Wisconsin's new voter ID law discussing the difficulty of administering election laws in a state that delegates election administration to local officials. The article begins:

One of the biggest challenges in rolling out Wisconsin’s 2011 photo voter ID law was training the state’s unusually large number of election clerks, a top elections official testified Thursday during a federal hearing over the stalled law.

Kevin Kennedy, the head of the state’s Government Accountability Board, said there were about 1,850 clerks in Wisconsin at the time the law was passed. That’s one-sixth the number of clerks in the entire nation, he noted.

An attorney asked Kennedy whether it was difficult to train so many workers on the details of the new law.

“It’s never an easy process,” he said, shaking his head.

Wisconsin is one of a handful of states that administers its elections at the local level, Reid Magney, a Government Accountability Board spokesman, told The Associated Press. Many states run elections at the county level, but Wisconsin defers control to the state’s 1,852 cities, towns and villages.

That means the state elections board has to train all 1,852 clerks, who then instruct 30,000 poll workers, Magney said.

 

CRL&P Daily Reads: Nov. 8, 2013

Texas's voter ID law challenged in a new lawsuit in federal court, and spending on ballot initiatives is going through the roof.

Guns & Ammo editor resigns after publishing editorial supporting firearm regulations; Florida legislators decline proposal repealing state's stand-your-ground law; and Gifford's gun-control group establishes a sister organization for veterans.

Illinois Gov. Pat Quinn will sign bill legalizing same-sex marriage on November 20, 2013, and four Idaho couples sue state over same-sex marriage ban. The Week explains why House Republicans have an interest in supporting ENDA.

Sen. Graham has introduced a new anti-abortion bill that would ban abortions after 20 weeks.

Thousands of NYC voters may not have known that the city's ballot had to be flipped over.

 

Ohio governor signs controversial ballot access bill, opponents to file lawsuit

On November 6, 2013, Ohio Gov. John Kasich (R) signed the controversial ballot access bill that places new restrictions on the ability of minor parties to get their candidates onto the ballot. With the governor's signature, Sen. Bill Seitz's (R) more restrictive compromise language that he introduced in conference committee is now law, and the effect on minor parties could be dramatic.

Republican supporters of the bill pushed yesterday to get the bill through the general assembly and signed by the governor so that the law would take effect before the February 5, 2014 filing deadline for candidates. Their efforts were successful. Minor parties now must fulfill the laws more restrictive access requirements for the 2014 election.

As a result, minor party candidates wishing to appear on next year's ballot who have already begun the process of collecting signature will have to start anew. Ohio House Speaker William G. Batchelder (R) was surprised by this:

Batchelder said he disagreed that the bill should be delayed, but when told that some minor-party candidates had already collected signatures, he said that may need more conversation.

“Obviously if somebody has petitions that are completed, perhaps we ought to look at that,” he said.

While reasonable debate over ballot access should continue, Speaker Batchelder's ostinsible ignorance as to the bill's effect on potential minor party candidates in next years election is particularly troubling. Given the extensive debate in the House, one would expect the Speaker to know what the bill's immediate impact might be. 

The Libertarian Party of Ohio remains resolute in its fight against the new law. According to The Columbus Dispatch, "[T]he party likely would file a lawsuit by the end of the week against what they and other critics have dubbed the 'Kasich Re-election Protection Act.'"

CRL&P related posts:

• Ohio legislature to vote on controversial ballot access bill this week
• Ohio Senate passes bill imposing restrictions on third party ballot access

 

CRL&P Morning Reads: Nov. 7, 2013

Sen. Portman supports ENDA after the addition of an amendment strengthening the religious exemption.

Judge removed from stop-and-frisk case claims the Second Circuit's actions violated the Fifth Amendment.

Senate prepares to fight over bill banning abortions after five months.

WaPo's Eilperin says passing gay marriage legislation is going to get more difficult.

Asians and Latinos lagging in voter registration numbers.

 

Ohio legislature to vote on controversial ballot access bill this week

Today, the Ohio General Assembly could pass a controversial ballot access bill that limits the ability of third parties to get their candidates names on the ballot.

The Senate passed a version of the bill last month by a wide margin. But, the bill faced difficulties in the House where the bill's restrictions were eased in order to secure its narrow passage--52 to 46 votes. Senate Republicans were ready to pass the substitute bill, but it was stymied at the last minute:

Senate Minority Leader Eric Kearney, a Cincinnati Democrat, noticed that the House version of the bill didn't include a clause requiring minor parties to collect at least 500 signatures each from at least half of Ohio's 16 congressional districts.

State Sen. Bill Seitz, the Cincinnati Republican sponsoring the legislation, said the House of Representatives did not intend to take that language out.

As  a result, the Senate voted not to accept the House version of the bill, leaving the issue in limbo until the legislature reconvenes next week.

However ready Senate Republicans may have been, their willingness to support the House's less restrictive version of the bill apparently has evaporated. After sending it to conference committee to correct the ostensible oversight, Senate Republicans now want to strengthen the bill's restrictions on third party ballot access. This week, Sen. Seitz (R), submitted compromise language to the committee:

Seitz's new language would require parties such as the Libertarians and the Greens to collect about 28,000 signatures, including at least 500 signatures each from at least half of Ohio’s 16 congressional districts, to continue to remain recognized by the state for next year’s elections.

Starting in 2015, those thresholds would rise: activists would have to collect signatures equal to 1 percent of the last presidential or gubernatorial vote -- about 56,000 votes in the 2012 general election -- to win party recognition. To stay on the ballot, parties would have to garner 3 percent of the vote in a presidential or gubernatorial election.

This language dramatically changes the House version of the bill. The new language nearly triples the signature requirement for minority party recognition on the 2014 ballot (from 10,000 to 28,000 signatures); and, it would double that requirement starting in 2015. Sen. Seitz's compromise also changed the percentage of the vote required for minority parties to retain state recognition from two to three percent in a presidential or gubernatorial election.

Given the bill's struggles in the House, its chances of success now appear to be fading. And, time is running out. As The Columbus Dispatch reports, "The bill needs to be signed by Wednesday [Nov. 6] for it to take effect on Feb. 5, the filing deadline for primary elections." Senate Republicans will have to tread lightly to secure support from skeptical House Republicans, whose support they will need.

Democrats and other minor parties believe that the bill is unconstitutional. Libertarians, in particular, believe that the bill is specifically targeted at their 2014 gubernatorial candidate who some believe could disrupt the reelection efforts of incumbent Gov. John Kasich (R). They have said that they will challenge the bill in court if it passes.

As CRL&P has observed, the U.S. Sixth Circuit Court of Appeals struck down the previous Ohio law governing minority party ballot access in 2006. In Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, the court invalidated an Ohio law requiring political parties to nominate candidates through primary elections. The law also established a deadline for filing petitions of nomination with the Secretary of State at 120 days prior to primary elections. According to the court, "[T]he restrictions at issue in this case serve to prevent a minor political party from engaging in the most fundamental of political activities--recruiting supporters, selecting a candidate, and placing that candidate on the general election ballot in hopes of winning votes and, ultimately, the right to govern." According to the court, Ohio's ballot access law violated the First Amendment right of association.

 

CRL&P Daily Reads: Nov. 5, 2013

Illinois House takes up gay marriage bill, and the U.S. Senate prepares to pass ENDA.

California children apparently see nothing wrong with gay marriage.

U.S. Senate takes up bill to provide more protection for sexual assualt victims in the military; The Atlantic says "[silent] epidemic" of domestic abuse in same-sex relationships requires more research; and The Week considers the utility and advisability of wearing anti-rape underwear.

TX Attorney General sues EEOC because the agency's hiring guidelines allegedly prohibit the state from denying certain jobs to former felons.

Excited dispute over TX voter ID law erupts at local county court.

Reuter's columnist laments GOP's continued efforts to block federal judicial appointments.

 

CRL&P Daily Reads: Nov. 5, 2013

Happy Election Day!

Turnout might be low, but there are some exciting ballot measures to watch around the country.

PA voters might think they need photo ID in order to vote today, but a state judge has stayed the PA voter ID law until the court has a chance to resolve a recent challenge to its constitutionality by the ACLU. The ACLU also has challenged the constitutionality of the WI voter ID law. In TX, a former U.S House Speaker was denied a voter ID card.

DOJ announced yesterday that it will monitor some Nov. 5 elections in MI, NY, and OH to ensure compliance with Voting Rights Act.

Parents of the 13-year-old boy killed by a sheriff's deputy while carrying a plastic gun have filed a civil rights lawsuit against the county.

New study finds that the cost of hospital treatment for firearm-related injuries exceeds $2 billion.

Sharpton demands assurances from Macy's CEO that racial profiling will not be a problem during the holiday season.

 

Shelby County and the vindication of Martin Luther King's dream

The title of this post comes from this recent article arguing that the Supreme Court's decision in Shelby County v. Holder invalidating sections 4(b) and 5 of the Voting Rights Act furthered Dr. Martin Luther King's yet unfulfilled vision of racial equality. Here is the abstract:

In a year when we mark the 50th anniversary of Martin Luther King’s “I Have a Dream” speech, civil rights leaders and elected officials bemoan what they consider to be a huge setback in the fight for racial equality: the Supreme Court’s recent decision in Shelby County v. Holder. You could thus be forgiven for thinking that Shelby County means that racial minorities are now disenfranchised. But all the court did was ease out an emergency provision enacted in 1965 to provide temporary federal oversight of state elections based on that era’s racial disparities. While politicians and pundits irresponsibly liken the ruling to sanctioning Bull Connor’s dogs, it actually shows the strength of our protections for voting rights.

What the Supreme Court struck down was Section 4(b) of the Voting Rights Act, which is the “coverage formula” used to apply Section 5, a provision requiring certain jurisdictions to “preclear” with the federal government any changes in election regulations. The Court found that this formula was unconstitutional because it was based on 40-year-old data, such that the states and localities subject to preclearance no longer corresponded to incidence of racial discrimination in voting. Indeed, black voter registration and turnout is consistently higher in the formerly covered jurisdictions than in the rest of the country.

Just as the Court was correct in 1966 to approve the constitutional deviation that preclearance represents as an “uncommon” remedy to the “exceptional conditions” in the Jim Crow South, it was correct now in restoring the constitutional order. As Justice Thomas wrote in another voting rights case four years ago, disabling Section 5 “represents a fulfillment of the Fifteenth Amendment’s promise of full enfranchisement and honors the success achieved by the VRA.”

While Justice Ginsburg compared getting rid of Section 5 to “throwing away your umbrella in a rainstorm because you are not getting wet,” it’s actually more like stopping chemotherapy when the cancer is eradicated. There’s more to be done to achieve racial harmony in America, to be sure, but the best way to honor the heroes of 1963 is to build on their triumphs rather than pretend that we still live in their time.

 

CRL&P Daily Reads: Nov. 1, 2013

Pro Publica breaks down the effects of the Supreme Court's decision in Shelby County v. Holder.

ABC breaks down the legal case surrounding Texas's abortion law, while a third of the state's clinics close down.

At University of North Texas, students sign petitions to get rape-kit access.

Gay rights groups protesting the movie adaptation of a book written by author who opposes same-sex marriage, and a Hawaii lawmaker receives a death threat for supporting same-sex marriage.

Iowa governor rejects clemency for eight female prisoners.

NPR asks whether race affects stand your ground laws.

 

Atlantic correspondent Ornstein calls for a constitutional right to vote

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.

Continue reading

CRL&P Daily Reads: Oct. 30, 2013

Arizona Sheriff Joe Arpaio wants to employ 'one or two' drones in surveillance of Pheonix area.

NPR says Texas voter-ID law is unexpectedly making voting difficult for some women.

Support growing in the Senate for Employment Anti-Discrimination Act (ENDA) banning workplace discrimination on the basis of sexual orientation or gender identity, and an Ohio funeral home wants gay marriages recognized on death certificates.

Planned Parenthood says Iowa ban on telemedicine system used for dispensing abortion pills prevents rural access to needed medical services and asks judge to suspend the ban.

Egyptian military tribunal sentences a journalist to one year in prison for allegedly impersonating a military officer.

CRL&P Daily Read: Oct. 28, 2013

Sen. Paul believes abortion and scientific research might lead to eugenics, and a Texas judge finds certain limitations on abortion unconstitutional.

Sen. Reid says Senate will vote on bill to ban workplace discrimination on the basis of sexual orientation or gender identity by Thanksgiving.

DOJ will not prosecute guards from private prison for alleged criminal civil rights violations.

J. Posner: "The point I was making in my book in mentioning the Crawford case was not that the decision was right or wrong[.]"

All new FBI agents ordered to visit the Martin Luther King, Jr. Memorial to remind them of past abuses by the FBI and of their commitment to better practices in the present and future.

 

Citizens United comes to New York

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.

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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."

CRL&P Daily Reads: Oct. 25, 2013

Gun-rights advocates are planning to start collecting signatures in an attempt to recall California lawmakers who supported proposed gun regulations.

Greensborough police captain's civil rights lawsuit alleging discrimination by PD moved to federal court.

American Prospect argues that the Surpreme Court's reliance on two post-Reconstruction decisions have limited available remedies to victims of sexual assualt.

ACLU files amicus brief on behalf of secure email service provider facing contempt charges for failure to cooperate with U.S. government.

N.C. Attorney General and potential gubernatorial candidate speaks out on new voter ID law.

Homelessness among American K-12 students is growing.