When Republican-controlled legislatures around the country have passed laws curtailing early voting, they have invariably insisted that these laws have nothing to do with politics.
Eagle Forum founder Phyllis Schlafly, however, has no problem with admitting the reason she wants to do away with early voting: giving people more time to cast their ballots might help Democrats.
Writing today in WorldNetDaily, Schlafly insists — without any evidence — that early voting is rife with fraud and enables Democratic campaign workers to “harass and nag low-information voters until they turned in their ballots.”
She blames early voting in states like Ohio for President Obama’s reelection victory, and worries that early voting may help Democrats in the upcoming midterm elections as people who have already voted “may wish to change their vote” because of “the Ebola scandal.”
Last year, Schlafly offered a similar defense of a voter suppression law in North Carolina.Because of the Ebola scandal, some may wish to change their vote, but that is impossible for those who have already voted. Some early voters may die before Election Day, and early voting allows the votes of those dead people to be included. If there is any dispute over whether their votes were valid or fraudulent, they are no longer with us to defend themselves.
Typically, there are no poll watchers during early voting, so the integrity of the casting of the ballots cannot be monitored. Many of the early votes are cast in a coercive environment, such as a union boss driving employees to the polls and watching over the process so there is no guarantee that their votes will be private.
Democrats promote early voting for the same reason they oppose voter ID: because they view early voting as helping their side. In the absurdly long 35-day period of early voting in Ohio in 2012, Democrats racked up perhaps a million-vote advantage over Republicans before Election Day was ever reached.
Republicans have been slow to realize how early voting helps the Democrats. Most top Republican political operatives firmly believed, right up to the morning of the 2012 election, that Mitt Romney was going to win.
In his expert analysis of why Republicans lost the 2012 election, scholar and WND writer Jerome Corsi quoted Mitt Romney’s chief campaign strategist, Stuart Stevens, on the last plane flight of the 2012 campaign, confidently assuring all that Romney would win the presidency because “a positive campaign message trumps a good ground game every time.”
Romney lacked a message, too, but he was mainly defeated by the Democrats’ superb ground game, which exploited early voting in key states such as Florida and Ohio. By continuously updating their computer-based information about who had not yet voted, Democrats could harass and nag low-information voters until they turned in their ballots.
h/t: Brian Tashman at RWW
When Illinois voters cast ballots for the November election, they will have a rare opportunity to weigh in on nearly half a dozen hot-button issues.
In a practice more common in California and some other states, Illinoisans will wade through five ballot questions — ranging from constitutional amendments on voter and victim rights to advisory referendums on birth control, the minimum wage and a so-called “millionaires’ tax.” The most Illinois voters have seen before is three, at least since 1970, according to available state records.
Lawmakers say the non-binding questions are aimed at taking the public’s temperature so they know how to proceed in Springfield. But at least some of the measures also have a political purpose, as part of a coordinated campaign by Democrats to boost turnout for the midterm election.
The list of questions could’ve been longer, but attempts fell short to include questions about term limits — an effort backed by Republicans — and altering Illinois’ political redistricting process.
The initiatives haven’t had as visible a promotion as the contested races, and some political experts believe voters may just skip them.
"These are not part of Illinois political culture," said David Yepsen, director of Southern Illinois University’s Paul Simon Public Policy Institute. "Voters aren’t used to it."
Here’s a look at the measures:
Democratic lawmakers pushed an advisory ballot measure in the final days of the spring legislative session that asks if insurance companies should cover birth control.
While Illinois has had such a law since 2003, supporters say widespread voter approval will ensure future protections. As evidence, they cite the U.S. Supreme Court’s June decision saying employers with religious objections could opt out of a federal rule requiring that insurers cover contraceptives.
Republicans say the last-minute ballot measure is an obvious ploy to boost Democratic votes, especially since it’s already law.
Two Chicago-based political action committees have taken to social media to garner support, including Planned Parenthood Illinois Action. A second committee, Save Birth Control in Illinois, says it’s trying to lay groundwork for legislation requiring employers to provide notice to employees about exclusions in health insurance plans’ contraceptive coverage.
This measure, sponsored by Democratic House Speaker Michael Madigan, proposes charging Illinoisans who make over $1 million a 3 percent income tax surcharge to raise funds for education.
An attempt to pass the tax as legislation stalled. Democratic leaders then posed the idea as a nonbinding ballot question to gauge public support.
The Internal Revenue Service says Illinois had over 14,500 tax returns in 2011 from households where adjusted gross income was at least $1 million. Madigan has said the tax would raise $1 billion annually.
Republicans say the measure is purely political. Republican Bruce Rauner, a venture capitalist challenging Gov. Pat Quinn, earned $61 million in 2013.
This non-binding ballot question asks voters if Illinois should increase its minimum wage to $10 from $8.25 by 2015, parallel to a Democratic effort to push the issue in campaigns nationwide.
Sponsors say they’re hoping to use the results to renew a legislative push for approval.
It’s been a major issue in the governor’s race. Quinn has vowed to raise it, despite previous attempts falling short. Rauner at one point said he wanted to cut the state’s minimum wage, but has changed his stance, now saying he’d favor raising it with other reforms.
Business groups oppose an increase, saying it’ll kill jobs.
Voters will be asked to change the state constitution to prevent people from being denied the right to register or vote based on race, ethnicity or sexual orientation, among other things.
The measure had bipartisan support, including among top Democrats and Republicans.
It’s aimed at ensuring Illinois doesn’t adopt voter identification laws like those passed in several states since the beginning of 2013. Republicans said they pushed those laws to prevent voter fraud. Democrats say fears of fraud are overblown and the laws are attempts to suppress votes favorable to them.
CRIME VICTIMS’ RIGHTS
This question asks if crime victims should have more rights protected by the constitution during court proceedings and criminal trials. The Crime Victims’ Bill of Rights would ensure they have information about hearings and plea negotiations, access to restitution and protections against alleged perpetrators.
The proposal is patterned after “Marsy’s Law,” which California voters approved in 2008 after the murder of a college student.
Lawmakers overwhelmingly approved putting the measure on the ballot. But among opponents was House Majority Leader Barbara Flynn Currie, who argued that such standards could slow trials and should be dealt with through laws, not the constitution.
Democratic Attorney General Lisa Madigan backs it, saying crime victims are “owed a voice.”
Vote YES to all five, especially the millionaires’ tax, birth control, and minimum wage, because it pisses the hell out of the Illinois Family Institute!
h/t: Chicago Sun-Times
In July, a three-judge panel of the United States Court of Appeals for the D.C. Circuit issued a ruling that threatened the future of President Obama’s Affordable Care Act. By a vote of two to one, the court held, in Halbig v. Burwell, that the insurance subsidies that allow millions of Americans to buy health insurance were contrary to the text of the law and thus were illegal. If such a decision had been made earlier in Obama’s tenure, lawyers for his Administration would have been left with a single, risky option: an appeal to the politically polarized, and usually conservative, Supreme Court.
This year, the lawyers had another choice. When President Obama took office, the full D.C. Circuit had six judges appointed by Republican Presidents, three named by Democrats, and two vacancies. By the time of the Halbig decision, Obama had placed four judges on the D.C. court, which shifted its composition to seven Democratic appointees and four Republicans. In light of this realignment, the Obama Administration asked the full D.C. Circuit to vacate the panel’s decision and rehear the Halbig case en banc—that is, with all the court’s active judges participating. The full court promptly agreed with the request, and the decision that would have crippled Obamacare is no longer on the books. Oral argument before the full court is now set for December.
The transformation of the D.C. Circuit has been replicated in federal courts around the country. Obama has had two hundred and eighty judges confirmed, which represents about a third of the federal judiciary. Two of his choices, Sonia Sotomayor and Elena Kagan, were nominated to the Supreme Court; fifty-three were named to the circuit courts of appeals, two hundred and twenty-three to the district courts, and two to the Court of International Trade. When Obama took office, Republican appointees controlled ten of the thirteen circuit courts of appeals; Democratic appointees now constitute a majority in nine circuits. Because federal judges have life tenure, nearly all of Obama’s judges will continue serving well after he leaves office.
Obama’s judicial nominees look different from their predecessors. In an interview in the Oval Office, the President told me, “I think there are some particular groups that historically have been underrepresented—like Latinos and Asian-Americans—that represent a larger and larger portion of the population. And so for them to be able to see folks in robes that look like them is going to be important. When I came into office, I think there was one openly gay judge who had been appointed. We’ve appointed ten.”
The statistics affirm Obama’s boast. Sheldon Goldman, a professor at the University of Massachusetts at Amherst and a scholar of judicial appointments, said, “The majority of Obama’s appointments are women and nonwhite males.” Forty-two per cent of his judgeships have gone to women. Twenty-two per cent of George W. Bush’s judges and twenty-nine per cent of Bill Clinton’s were women. Thirty-six per cent of President Obama’s judges have been minorities, compared with eighteen per cent for Bush and twenty-four per cent for Clinton. Obama said that the new makeup of the federal bench “speaks to the larger shifts in our society, where what’s always been this great American strength—this stew that we are—is part and parcel of every institution, both in the public sector as well as in the private sector.”
Beyond diversity, the story of Obama’s influence on the courts is more complex. Indeed, it could serve as a metaphor for his Presidency: symbolically rich but substantively hazy. Obama took office after years of intense conservative focus on the courts. President George W. Bush spoke often of the need for judges who “will strictly apply the Constitution and laws, not legislate from the bench.” The conservative agenda included limiting abortion rights, ending racial preferences, and lowering barriers between church and state. Obama has shrunk from an ideological battle with conservatives on these constitutional issues. Claims for his judges are grounded in their personal integrity and professional competence. Notwithstanding their qualifications, many of his appointees have drawn fierce opposition from Senate Republicans. In those battles, too, where his judicial legacy has been at stake, the President has chosen to remain largely above the fray.
To the extent that there is an Obama legal legacy, it centers on gay rights and voting rights, subjects that the President addresses more with caution than with passion. Obama served as president of the Harvard Law Review (Class of 1991), and taught at the University of Chicago law school for more than a decade. He was never exactly a legal academic; he didn’t write law-review articles or seek a tenure-track job. He taught classes once a week while practicing law and, later, while serving in the Illinois state senate, in Springfield. When it comes to the law, Obama may never have been a full professor, but he remains fully professorial.
I asked him to name the best Supreme Court decision of his tenure. When the Court upheld the constitutionality of the Affordable Care Act, in 2012? When it struck down the Defense of Marriage Act, a year later? Neither, it turned out.
“In some ways, the decision that was just handed down to not do anything about what states are doing on same-sex marriage may end up being as consequential—from my perspective, a positive sense—as anything that’s been done,” the President said. “Because I think it really signals that although the Court was not quite ready—it didn’t have sufficient votes to follow Loving v. Virginia and go ahead and indicate an equal-protection right across the board—it was a consequential and powerful signal of the changes that have taken place in society and that the law is having to catch up.” In the Loving decision, from 1967, the Court held that states could no longer ban racial intermarriage.
In other words, Obama’s favorite decision was one in which the Court allowed the political process to go forward, one state at a time. Not long ago, the President described his foreign-policy doctrine as one that “avoids errors. You hit singles, you hit doubles.” On same-sex marriage, the Supreme Court had hit a single, or maybe a double, and that was fine with him.
Obama opposed marriage equality until May of 2012. He told me that he now believes the Constitution requires all states to allow same-sex marriage, an argument that his Administration has not yet made before the Supreme Court. “Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states,” he said. “But, as you know, courts have always been strategic. There have been times where the stars were aligned and the Court, like a thunderbolt, issues a ruling like Brown v. Board of Education, but that’s pretty rare. And, given the direction of society, for the Court to have allowed the process to play out the way it has may make the shift less controversial and more lasting.
“The bulk of my nominees, twenty years ago or even ten years ago, would have been considered very much centrists, well within the mainstream of American jurisprudence, not particularly fire-breathing or ideologically driven,” Obama went on. “So the fact that now Democratic appointees and Republican appointees tend to vote differently on issues really has more to do with the shift in the Republican Party and in the nature of Republican-appointed jurists. . . . Democrats haven’t moved from where they were.”
This is how Obama has attempted to define his Presidency—as an exemplar of common sense set against the extremism of the contemporary Republican Party. He has had the same mixed success in making this argument for his judges as he has had on most other issues during the past six years.
Ruth Bader Ginsburg, in a recent interview published in Elle, said that she would not yet step down from the Court. “If I resign anytime this year,” she argued, Obama “could not successfully appoint anyone I would like to see in the Court.”
I asked Obama if Ginsburg was right about his political weakness. “Well, we’ve got a pretty good track record,” he said. “We’ve got a couple of Supreme Court Justices confirmed who I think are doing outstanding work. My sense is that the Senate necessarily has to treat the Supreme Court nomination process differently than the circuit- or district-court nomination process—higher profile, people are paying attention.” He found that most people pay little attention to lower-court appointments, but when it comes to the Supreme Court “they have the sense ‘All right, this is big,’ ” and the media cover the story intensely, “which means that some of the shenanigans that were taking place in terms of blocking appointments, stalling appointments, I think are more difficult to pull off during a Supreme Court nomination process.
“Having said that, Justice Ginsburg is doing a wonderful job. She is one of my favorite people. Life tenure means she gets to decide, not anybody else, when she chooses to go.” Asked whether he had any advice about her retirement, Obama replied, with a big smile, “None whatsoever.”
Still, what the President calls “shenanigans” have defined his effort to move his circuit-court and district-court nominations through the Senate. For a politician who is still fairly new on the political scene, Obama has had considerable experience with judicial nominations and confirmations—a subject of great controversy in the past decade. As a senator and as President, Obama has recoiled from the particulars of these fights, leaving others to do the dirty work.
Charles Grassley, the veteran Republican senator from Iowa, dates the conflict between Democrats and Republicans in the Senate over judges to 1987. “It all starts with Bork,” Grassley told me. After contentious Senate Judiciary Committee hearings chaired by Joseph Biden, Ronald Reagan’s nomination of Robert Bork to the Supreme Court was voted down, fifty-eight to forty-two. Four years later, Clarence Thomas’s nomination produced an even more rancorous struggle. Ginsburg was confirmed easily, in 1993, as was Stephen Breyer, in 1994.
The tumultuous end to the 2000 election led to a renewed period of partisan struggle in the Senate over the confirmation of judges, which has never really ended. “Right after Bush was elected, all the Senate Democrats went on a retreat, with these liberal law professors, and they came back and changed the ground rules on judicial nominations,” Jeff Sessions, the Republican senator from Alabama, told me. “There is no question that the Democrats were always the aggressors on judicial nominations.” In particular, Senate Democrats rallied against the nomination of Miguel Estrada, a widely admired Republican lawyer, to the D.C. Circuit. Repeated filibusters forced him to withdraw, in 2003. More than a decade later, his defeat still irks Senate Republicans. “Estrada is the poster child for how the Democrats destroyed the process,” Sessions told me.
Most of George W. Bush’s judicial nominations were easily confirmed, but, in 2005, many Democratic senators decided to make a stand. They objected to several of his circuit-court nominees, and refused to allow votes to take place. The D.C. Circuit—often described as the second most important court in the nation—was the focus of the dispute. Democrats fought the nominations of Janice Rogers Brown, a justice of the California Supreme Court, who had once called Social Security and other New Deal programs “the triumph of our own socialist revolution,” and Brett Kavanaugh, a Bush White House aide who had made his name as a principal author of the Starr report.
There were only forty-five Democrats in the Senate, but that was enough to prevent the nominations from coming to the floor for a vote. Under the Senate rules, it took sixty votes to end a filibuster. In response to the Democratic tactics, Bill Frist, the Majority Leader at the time, threatened to invoke what became known as “the nuclear option,” which would have changed the Senate rules to allow nominations to proceed with a simple majority.
Obama had just been elected to the Senate, and, as he later suggested in his book “The Audacity of Hope,” he viewed the battle with disdain. “I remember muffling a laugh the first time I heard the term ‘nuclear option,’ ” he wrote. “It seemed to perfectly capture the loss of perspective that had come to characterize judicial confirmations.” In Obama’s account, he supported the efforts of Democratic colleagues, but with reservations. “I doubted that our use of the filibuster would dispel the image of Democrats always being on the defensive—a perception that we used the courts and lawyers and procedural tricks to avoid having to win over popular opinion,” he wrote. “I wondered if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy.”
In 2005, a bipartisan group of senators who became known as the Gang of 14 achieved a compromise of sorts. The Republicans agreed to maintain the rules, and the Democrats agreed not to filibuster judicial nominees unless there were “extraordinary circumstances.” The agreement led to the confirmation of almost all of Bush’s nominees, including Brown and Kavanaugh.
That, more or less, was how things stood when Obama became President. Sixty votes were still required to end debate on judicial nominees, but the minority party in the Senate—now the Republicans—was supposed to acquiesce to votes unless the judicial candidate presented “extraordinary circumstances.”
Harry Reid and Barack Obama belong to the same political party but to different worlds. At seventy-four, the Senate Majority Leader is a generation older than the President, and his rough-hewn upbringing, in Searchlight, Nevada, makes him more comfortable with close political combat than with polished phrasemaking. When Reid was a law student, at George Washington University, in the nineteen-sixties, he didn’t spend his spare time on scholarly publications; he moonlighted as a Capitol police officer.
When I visited Reid in his small, elegant office, just off the Senate floor, he spoke wistfully about the first two years of Obama’s Presidency, when Democrats controlled the House of Representatives and enjoyed a filibuster-proof majority in the Senate. “This first Congress, we were very successful. We were successful during the regular Congress, we were really successful in the lame duck,” he told me. But in 2010 the Democrats lost the House and several seats in the Senate, and, as a result, Reid told me, “the last two Congresses have been awful.”
With the House in Republican hands, the chances of passing meaningful legislation diminished to nearly zero, and that, in a peculiar way, put more focus on the issue of judicial nominations. Reid could confirm judges without the assent of the House, so he tried to push through as many nominations as he could. In his view, Republicans have violated the pledge made in the Gang of 14 pact of 2005. Instead of filibustering only in “extraordinary circumstances,” Republicans routinely insisted on sixty-vote majorities to end debate on lower-court judicial nominees. “I regret having been one of the premier movers of that deal we made, stopping the nuclear option,” Reid said. “I wanted to make peace here, I wanted the place to work better. Once they got those people on there—Janice Rogers Brown, a guy named Kavanaugh—they were virtually bringing everything to a standstill.”
Who filibustered more—the Democrats under Bush, or the Republicans under Obama—is disputable. Republicans have used filibusters to stop outright only two of Obama’s judicial nominations: Caitlin Halligan, a former aide to Andrew Cuomo, nominated to the D.C. Circuit; and Goodwin Liu, a Berkeley law professor, nominated to the Ninth Circuit. (Governor Jerry Brown later appointed Liu to the California Supreme Court.) But delays by Republican senators have slowed the confirmation process. “In the scheme of things, the long-term trend here, at least since the mid-eighties, is declining confirmation rates and rising length of time it takes to get nominees on the bench,” Sarah Binder, a congressional scholar at the Brookings Institution, told me.
The Senate’s inability to accomplish anything, including the confirmation of judges, began generating disquiet within Reid’s Democratic caucus. Jeff Merkley, of Oregon, and Tom Udall, of New Mexico, began pressing him to invoke his own nuclear option: to change the Senate rules so that only fifty-one votes, not sixty, were necessary to bring judges up for a vote. This precipitated a generational struggle among Democrats. An older group of senators, including Reid, initially opposed such a major change in the Senate’s rules.
The turning point came last November, when Reid brought to the Senate floor three Obama nominees to the D.C. Circuit: Patricia Millett, Nina Pillard, and Robert Wilkins. (A fourth Obama nominee, Sri Srinivasan, had been confirmed earlier in the year.) As the debate began, it became clear that few Republicans had any substantive objections to any of the nominees. Rather, they argued that the D.C. Circuit heard so few cases that there was no need to fill the vacant judgeships. “The D.C. Circuit is a thorn in my saddle,” John Cornyn, of Texas, told me. He said that Democrats simply wanted to gain a majority for cases when the judges sat en banc.
Reid confronted a dilemma, much as Frist had done in 2005. Like all his Democratic colleagues, Reid scoffed at the Republicans’ rationale for denying the votes. The Republicans had tried to fill those same seats on the D.C. Circuit when Bush was President. It hardly counts as court-packing to fill existing judicial vacancies. But Reid had only fifty-three votes. “I’m a traditionalist here,” Reid told me. “I didn’t want to stir up a lot of trouble.” Then, last November, Reid said, his deputy leader, Richard Durbin, of Illinois, remarked that their Republican colleagues were mocking them. “And I knew that was true,” Reid went on. “He said, ‘They’re just saying to each other, “Hey, he wants to change the rules, let him do it.” ’ Because they didn’t think we had the votes.”
Republican intransigence about the D.C. Circuit nominees finally brought around even the most senior Democrats to the idea of filibuster reform. “I was probably the last person to agree to it,” Patrick Leahy, of Vermont, the president pro tempore of the Senate, and its longest-serving member, told me. “I believe the Senate should be independent, not a rubber stamp of any Administration. But this was a wholesale filibuster, completely unprecedented in two hundred years.” On November 21, 2013, the Senate voted, along party lines, to change its rules so that only fifty-one votes were necessary to bring up for a vote a circuit-court or district-court nomination.
Since then, the Senate votes have cemented Obama’s judicial legacy. With simple majorities, the Senate approved the three D.C. Circuit nominees, who joined a court that has frequently served as a stepping stone to the Supreme Court. (John Roberts, Antonin Scalia, Thomas, and Ginsburg all served on the D.C. Circuit.) The confirmed appeals-court nominees include several judges who conform to the Obama paradigm, in that they are all relatively youthful and impeccably credentialled, with indistinct ideological profiles: David Barron, a forty-seven-year-old Harvard Law School professor, and a former law clerk to John Paul Stevens, to the First Circuit; Pamela Harris, a fifty-two-year-old Georgetown law professor and another former Stevens clerk, to the Fourth Circuit; and Michelle Friedland, a San Francisco attorney active in the legal fight for gay rights (and a former clerk to Sandra Day O’Connor), who is forty-two, to the Ninth Circuit. According to statistics compiled by Sheldon Goldman, of the University of Massachusetts, the average age of Obama’s first-term appeals-court nominees was 53.5 years, and 49.4 for his second-term nominees. This predilection for younger nominees was a strategy of Robert Bauer, Obama’s White House counsel, and his successor, Kathryn Ruemmler. The judges are likely to serve for decades, and they constitute a farm team for prospective Supreme Court appointments.
The subject of voting rights has largely been thrust upon Obama by a conservative judiciary. “You look at something like the Voting Rights Act, which was uncontroversial from a legal point of view among both Republicans and Democrats ten, fifteen, twenty years ago,” Obama told me. “The ruling that struck down key provisions of the Voting Rights Act would have been considered a fairly radical step, but it’s a step that the Supreme Court took.” He was referring to the Shelby County decision, of 2013, which invalidated the portion of the law that required Justice Department review of electoral changes, mostly in Southern states.
In response, Obama offered a modulated criticism. As he put it, “The fact that the Supreme Court didn’t seem to internalize evidence where state election officials or politicians are pretty unabashed in saying we want to keep certain folks from voting, where you have voter-I.D. laws that clearly make it harder for certain folks to vote, despite the fact that there is no actual evidence of fraud—not just a little evidence of fraud but no evidence—as every mathematical assessment, statistical assessment that’s been done shows, it’s a pretext for wanting to shape the franchise for partisan advantage. The fact that that doesn’t seem to have gone into the Court’s reasoning I think makes it an ultimately flawed decision.”
For a long time, the Court has moved toward outlawing all forms of racial preference, including affirmative action, and Obama seems accepting, even supportive, of the change. In 1978, in Regents of University of California v. Bakke, the Court rejected the use of racial quotas in graduate-school admissions. Chief Justice Roberts has made the fight against the traditional civil-rights agenda a cornerstone of his tenure. He wrote nearly a decade ago, “It is a sordid business, this divvying us up by race.”
Specifically, Obama told me that he believes the Constitution permits the use of racial preferences, though only within carefully defined limits. “It’s legitimate to say that when the government takes race into account it should be subject to some oversight by the courts,” he said. Judicial “oversight” of affirmative action has a controversial history. For many decades, starting in the nineteen-thirties, the Court applied “strict scrutiny” to laws that discriminate against racial minorities, and struck down most of them.
Starting in 1995, though, with Adarand Constructors v. Pena, the Court, in an opinion by Sandra Day O’Connor, began applying “strict scrutiny” to laws that favor racial minorities—viewing affirmative action, in effect, as a form of racial discrimination. O’Connor’s opinion drew a stinging dissent from John Paul Stevens. “There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination,” he wrote. “Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority. Remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society.” In its embrace of judicial oversight of affirmative action, Obama’s view appears closer to O’Connor’s than to Stevens’s.
By 2003, O’Connor had softened her stance somewhat, writing the majority opinion in Grutter v. Bollinger, which upheld the use of affirmative action as a means to achieve diversity at the University of Michigan Law School. However, she made clear that she regarded affirmative action as a stopgap. In twenty-five years, she wrote, racial preferences would be neither required nor permissible. Again, Obama seemed to agree with O’Connor, in his grudging support for racial preferences in admissions. He said, “If the University of Michigan or California decides that there is a value in making sure that folks with different experiences in a classroom will enhance the educational experience of the students, and they do it in a careful way,” the practice should be allowed. Still, he added, “most of the time the law’s principal job should be as a shield against discrimination, as opposed to a sword to advance a social agenda, because the law is a blunt instrument in these situations.”
Obama reiterated his belief that the biggest issues concerning race are “rooted in economics and the legacy of slavery,” which have created “vastly different opportunities for African-Americans and whites.” He went on, “I understand, certainly sitting in this office, that probably the single most important thing I could do for poor black kids is to make sure that they’re getting a good K-through-12 education. And, if they’re coming out of high school well prepared, then they’ll be able to compete for university slots and jobs. And that has more to do with budgets and early-childhood education and stuff that needs to be legislated.”
I asked the President whether O’Connor’s time line in the Grutter case, now about halfway expired, was accurate. He replied that Justice O’Connor would “be the first one to acknowledge that twenty-five years was sort of a ballpark figure in her mind.” In any event, he said, progress in racial justice and equality would not come principally from the courts. “And that’s where politics comes in,” he said.
Good news! Two states had their “Voter ID” laws, aka Voter Suppression laws struck down.
The overturn of the Texas voter ID law is great news for democracy. I call on @GregAbbott_TX to drop his defense of this “poll tax.”— Wendy Davis (@WendyDavisTexas) October 10, 2014
On Wednesday evening, the Supreme Court overruled a Fourth Circuit Court of Appeals decision reinstating same-day registration and out-of-precinct voting in North Carolina for the midterms. Justices Ginsburg and Sotomayor dissented.
It’s the second time the Supreme Court has ruled against voting rights in the past ten days, after the court also overruled an appeals court decision reinstating a week of early voting and same-day registration in Ohio.
The roots of the North Carolina case go back to June 25, 2013, when the Court struck down Section 4 of the Voting Rights Act in Shelby County v. Holder, which meant that states with the worst history of voting discrimination – like North Carolina – no longer had to approve their voting changes with the federal government.
A month after that ruling, North Carolina passed the country’s toughest voting restrictions, repealing or curtailing every voting reform in the state that encouraged people to vote. The bill became far more extreme because of the Shelby decision and the federal government no longer had the power to prevent it from becoming law. As Justice Ginsburg wrote in her dissent, “These measures likely would not have survived federal preclearance.”
Key parts of the voting law were challenged in court this summer. A district court denied a preliminary injunction for the Justice Department and civil rights groups like the North Carolina NAACP and the ACLU, but the Fourth Circuit reinstated same-day registration and out-of-precinct voting on October 1.
The Supreme Court’s decision could have a very negative impact on the election. Nearly 100,000 voters used same-day registration during the early voting period in 2012, including twice as many blacks as whites. Roughly 7,500 voters cast their ballots in the right county but wrong precinct in 2012.
States with same-day registration, like North Carolina, have the highest voter turnout in the country. “Average voter turnout was over 10 percentage points higher in SDR states than in other states,” Demos reported for 2012. North Carolinians now have only two more days to register to vote before the October 10 deadline.
Hundreds of voters were prevented from casting ballots in the May primary when the state eliminated these reforms – a disturbing preview of what’s to come. North Carolina has one of the closest Senate races in the country between Kay Hagan and Thom Tillis and is expected to have a large turnout this November. The Supreme Court’s decision could very well decide who controls the Senate.
There’s a cruel irony behind this ruling. The most popular conservative talking point during the Shelby County debate was that Section 2 of the VRA could replace Section 5.
"It seems to me that the Government can very easily bring a Section 2 suit," Justice Kennedy said during oral arguments.
But challenging voting discrimination under Section 2 has been far from easy of late. In three states where new voting restrictions have been struck down under Section 2 in the past year – North Carolina, Ohio and Wisconsin – the decisions have been reversed by the appeals courts or Supreme Court.
North Carolina’s new voting restrictions are now in effect until a full trial in July 2015. The Tarheel State is the case study for how devastating the Supreme Court’s gutting of the VRA has been.
In other Fox attacks on voters, one minute they point out that “young people are not voting,” then ask, “do we want them to vote if they don’t know the issues?”
If Fox is so concerned about having informed American voters, then perhaps they should stop misleading their viewers on a regular basis.
You see, when Fox says they don’t want young people to vote, they really mean they don’t want non-Fox viewers to vote, considering the average age of their audience is 68, and that age group generally votes Republican.
It also comes as no surprise that a study of public opinion found that Fox News viewers “are particularly likely to support voter ID laws,” which primarily affect women, black Americans, and Democrats. An estimated 11% of Americans do not possess government-issued photo identification.
Other voting groups conservatives have targeted or brushed off:
- Black Americans, including Ferguson residents.
- Single women. And women in general.
- Minorities. Minorities. Minorities.
- Democrats. Obama voters.
- Obamacare applicants
- Elderly voters
- Early voters
- Union members
- Welfare recipients
- Low income voters
- "Dumb" people
- College students
- Absentee voters
- Public employees
- Voters paying under $1k yearly in taxes
- 47% of Americans
Meanwhile, Fox can’t think of one Republican “who wants to take away the right to vote.”
Map of State Criminal Disfranchisement Laws
USA Today reported on Wednesday that the town of Ferguson has seen a huge surge in voter registration since the August 9th death of 18-year-old Michael Brown. Less than two months after Ferguson police officer shot the unarmed black teenager six times, the community of roughly 21,000 has seen over 3,000 people register to vote. Overall, St. Louis County is reporting that 4,839 have registered to vote since August 9th — 3,287 of those people live in Ferguson.
In the aftermath of the tragic killing of Brown, both established and new organizations have taken the opportunity to help affect positive change in the community. There have been concentrated efforts on a daily basis to reach out to members of the community and not only register them to vote, but to also educate, mobilize and energize residents when it comes to the political process within their city, county and state. This is seen as especially important due to the fact that while two-thirds of the city’s population is black, the mayor, over 90% of the police force and five of the city council’s six members are white. The town’s seven-person school board has no black members.
Brown’s death and the subsequent reaction by police to protests, have helped energize the black residents of Ferguson to get more involved in the political machinations of the city. It has helped them realize that some of the change they are desperately seeking can occur at the voting booth. If they want to stop the apartheid-like atmosphere in their city and county, they need to utilize the tools available to them and mobilize against the old guard.
Ferguson has become sort of a ground zero for activism and community organization in the past few weeks. A number of offices and organizations have been set up since the protests began in August. Antonio French, a St. Louis city alderman, opened an office on W. Florissant Road that houses his new organization, HealSTL. The organization uses volunteers to set up voter registration tables throughout Ferguson on a daily basis. It also has a website that provides a portal to the state to register to vote online. HealSTL also sells t-shirts and uses the proceeds to help the community.
However, it isn’t just HealSTL doing work in the community. Other grassroots organizations, mostly comprising of young activists from the greater St. Louis area, have popped up and are working with the young residents to motivate and educate them regarding the political process and the power of civil disobedience. Groups like Justice Core STL, Hands Up United, Operation Help or Hush, Lost Voices and Millennial Activists are on the ground daily in Ferguson and doing their best to get the word out. (I have spoken with Kayla Reed of Justice Core STL on multiple occasions. You can check out video interviews here and here.) Older organizations like Missourians Organizing for Reform and Empowerment and Organization for Black Struggle have found new energy and are using their established connections to help organize activities in the community and abroad.
The protests continue on in Ferguson. While the mainstream media has largely moved its attention elsewhere, activists and demonstrators make their voices heard every day and night. Next weekend, a large event is planned in and around Ferguson known as Ferguson October (AKA A Weekend of Resistance). Local organizations are calling on people from around the nation to gather in Ferguson from October 10th through 13th to march and let their voices be heard regarding the epidemic of police violence against unarmed blacks. The weekend will consist not just of marches, but also planned gatherings and panels where there will be discussions regarding a number of issues.
A day before early voting was to begin in Ohio, a 5-4 split court stops lower court rulings from going into effect that allowed for more extensive early voting in the Buckeye state.
WASHINGTON — A day before early voting was due to begin in Ohio, the Supreme Court, on a 5-4 vote, stopped it before it began.
Although early voting will still happen in Ohio, the state’s NAACP had sued to stop a new state law and an associated order from Ohio Secretary of State Jon Husted that restrict early voting in the state from going into effect.
The group won at the trial court and the 6th Circuit Court of Appeals, but, on Monday afternoon, the U.S. Supreme Court issued a stay of this past week’s order from the 6th Circuit — putting the new rules back into effect.
The court’s more liberal members — Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan — would have denied the state’s request for a stay.
Source: Chris Geidner for Buzzfeed News
The 6th Circuit Court of Appeals on Wednesday upheld a trial court judge’s order blocking Ohio’s restrictions on early voting. A unanimous three-judge panel affirmed the preliminary injunction granted earlier this month by Judge Peter C. Economus, meaning that the cutbacks cannot go into effect until the case is resolved on the merits by the courts. The circuit judges agreed that the restrictions run afoul of the Constitution’s guarantee of equal protection and Section 2 of the Voting Rights Act.
The law, enacted earlier this year, scaled back early voting in the Buckeye State from 35 days to 28 days and scrapped “Golden Week,” when residents could both register and vote in the same week.
From here the state of Ohio can either seek a full court — en banc — ruling at the 6th Circuit or appeal to the Supreme Court.
"With the press of time, it is not clear that Ohio is going to bother to try to change this for this election," wrote election law professor Rick Hasen of UC-Irvine. “But if and when this case gets to the Supreme Court, I expect 5 Justices could well adopt a much narrower definition of equal protection and the Voting Rights Act than offered here.”
National Voter Registration Day is just around the corner!
We all know someone who isn’t registered to vote. A handful of votes on November 4 will determine what direction our country takes.
Send them this link http://bit.ly/XMnmfu or tell them to text MYVOTE to 30644. https://www.facebook.com/WorkingAmerica/photos/a.10150179024053118.326871.92021268117/10152704457898118/?type=1
— Meg Gorski (@MegGorski)September 18, 2014
The Facebook page for the militia has since been scrubbed.
The group plans to follow people from polling locations to their homes, according to a Facebook post viewed by The Capital Times.
"Please private message us names of people you know are active voters and wanted on warrants. We can get our agents to watch their polling location, identify the individual, and then follow them to their residence. A call the police and they will be picked up for processing," the Facebook message read.
The group is using the website Put Wisconsin First to identify petition signers who have outstanding arrest warrants and those with tax defaults.
According to Politicus USA, the Facebook page for the group featured pictures of African-Americans, but the group denied that they are targeting blacks.
"We can assure you that we will be targeting all democrats, not just black ones," a Facebook message read, according to the Capital Times. "If you think we meant blacks only it is because you are a racist who thinks the only people with warrants are black. We know better because we have a nice list of people who are wanted democrat activist types. Most are actually white. We will target everyone."
Next week marks the Supreme Court’s first conference after the Court adjourned last June. The next week marks the formal beginning of its 2014-2015 term. Much of the drama that will unfold in this coming term, however, is likely to come from cases the justices have yet to agree to hear. Marriage equality, abortion and birth control are all fairly likely to wind up on the Court’s docket before the justices go back on vacation next June. In the meantime, however, the justices will consider the rights of pregnant women who face discrimination in the workplace, they will weigh the Voting Right Act for the first time since they gutted much of this law in 2013, they will thrust themselves into the delicate foreign policy problems raised by the tensions in Israel and Palestine, and they will examine when the First Amendment protects people who make violent threats online.
Here are six major cases the justices will consider this term, as well as a short list of issues they stand a good chance of taking up before the term is over:
Peggy Young was tasked with lifting boxes as heavy as 70 pounds in her job as a United Postal Service worker. When she got pregnant, her midwife recommended that she not lift more than 20 pounds, and wrote a note asking her employer to put her on light duty. Had Young been written a similar note because Young broke her arm carrying boxes, or suffered from a disability, UPS would have put her on what is known as “light duty.” But UPS wouldn’t do it for Young on account of her pregnancy.
[C]omplaints to the Equal Employment Opportunity Commission alleging pregnancy discrimination have only increased, prompting the Commission to remind employers recently that they still can’t discriminate against pregnant women.
A federal appeals court sided with UPS, finding that granting “light duty” to Young would give pregnant employees an advantage over other other employees and that Young didn’t suffer pregnancy discrimination. But other than those lone judges, UPS doesn’t have many allies in Young v. UPS. Briefs filed on behalf of state and local lawmakers, national medical associations, the U.S. Women’s Chamber of Commerce, the U.S. Solicitor General, and even 23 pro-life organizations defend Young’s right to a work accommodation. They say the Fourth Circuit’s ruling was counter to the intent of anti-discrimination laws, that it was bad for the health of mothers and children, that it was bad for the economy, bad for business, and even could encourage women to get abortions. In all, 11 amicus briefs were filed supporting Young and none supporting UPS. Even the members of Congress who passed the Pregnancy Discrimination Act explained that they intended for the act the court was interpreting to protect people just like Young, and that the court ruling against her “ignored the unambiguous mandate of the PDA requiring employees to consider only the ability or inability to work in determining a pregnant worker’s entitlement to benefits.”
The Pregnancy Discrimination Act prohibits employers from treating pregnant women differently from other employees who are “similar in their ability, or inability, to work.” The act was passed in response to rampant mistreatment and misperceptions of women workers. But these misperceptions persist, even as women now make up about half of the workforce and a large proportion of them will either leave the workforce at some point to have a child, or may be viewed as a woman with the potential to one day leave the workforce for that reason.
In fact, complaints to the Equal Employment Opportunity Commission alleging pregnancy discrimination have only increased, prompting the Commission to remind employers recently that they still can’t discriminate against pregnant women.
As a group of women’s advocacy groups and law professors point out in their brief, the ruling against Young is likely to harm the women most in need of pregnancy discrimination protection — those in “low-wage jobs and traditionally male-dominated occupations who are most likely to experience temporary conflicts between the physical effects of pregnancy and job requirements,” and already experience disproportionate discrimination, according to recent statistics.
Despite all of the support and very little public opposition for enforcing pregnancy discrimination laws, the five justices on the Roberts Court most likely to vote against Young are known for having what Justice Ruth Bader Ginsburg referred to as a “blind spot” when it comes to women. In 2007, these five men rejected Lilly Ledbetter’s fair pay lawsuit, in a decision later overturned by an act of Congress. In 2011, they turned backthe largest-ever class of women alleging gender discrimination by Wal-Mart. And in 2013, that same voting bloc held that many corporations get to decide when their female employees should have access to contraception. Commenting on this blind spot, Ginsburg said in an interview recently, “[T]he justices continue to think and change so I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.”
When the state of Alabama redrew its legislative districts in 2012, it applied a method one judge described as “naked ‘racial quotas.’” In each district where African Americans were in the majority under the previous maps, according to testimony from one of the legislative leaders involved in the redistricting process, the legislature tried to “at least maintain” or “increase” the percentage of black voters under the new maps. The result was that black voters were packed into relatively few districts, many of which had black supermajorities, rather than having some of those voters be spread into other districts where they could potentially swing the outcome of an election away from the candidate preferred by most whites. In a state where voters are largely polarized on the basis of race — in 2008, 98 percent of African Americans voted for Obama and 88 percent of whites voted for McCain — a racial redistricting scheme that reduces minority voting power also benefits Republicans over Democrats.
When the state of Alabama redrew its legislative districts in 2012, it applied a method one judge described as “naked ‘racial quotas.’”
Alabama justifies its redistricting scheme primarily by arguing that Section 5 of the Voting Rights Actrequired each majority black district to maintain its black population levels after a redistricting. This interpretation of Section 5 is very much in doubt, however. And even if it is the correct reading, the Supreme Court largely neutered Section 5 in its 2013 decision in Shelby County v. Holder, so it’s not at all clear that an appeal to Section 5 can still justify racially motivated district lines. The thrust of the Court’s recent affirmative action cases has been that “racial categories or classifications” are subject to the most skeptical level of constitutional scrutiny. If the Court treats Alabama’s racially conscious redistricting process with similar skepticism, it is difficult to see how it survives.
When What You Say On Facebook Lands You In Jail
It’s always been difficult to assess when one person is truly threatening another. But it’s especially difficult on the Internet and social media. If someone tells us they’ll kill us, we may take them at their word out of fear. But what if a similar threat is broadcast to a much broader audience, on social media? Is the threat directed at that person, or is it a form of expression or therapy, directed at a much broader, now-readily available audience? That question has big implications, and it is at the center of the case that is likely the most prominent to assess how we view constitutional principles like free speech in light of evolving cultural and technological norms. In Elonis v. United States, plaintiff Anthony Elonis made some seriously violent comments on Facebook about his wife, who left him and took their children. He said in one status post, “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut. Guess it’s not your fault you liked your daddy raped you. So hurry up and die, bitch, so I can forgive you.”
Unsurprisingly, his wife perceived the comments as threatening, particularly after she filed a protective order against him. But the comments also read like rap lyrics. And Elonis says they were not meant to be literal. In fact, he posted on his Facebook page several comments that could be perceived as disclaimers, including one that says, “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?” In another comment, he mimics a sketch from the satirical troupe The Whitest Kids U’ Know, saying, “Did you know that it’s illegal for me to say I want to kill my wife?” Elonis has spent three years in prison for the posts.
The question before the court gets to the heart of how we decide what is known as a “true threat.” The lower court that convicted him decided based on whether an objectively reasonable person would perceive his comment as a threat. But the criminal law often assesses the intent of the person committing the crime. So Elonis argues that the standard should instead whether he intended the statements as threatening.
[W]hen the Wu Tang Clan says “I’ll hang your ass with this microphone,” they are asserting their metaphorical, lyrical dominance.
That’s the debate over the legal standard. But there’s also a cultural and racial one. As Slate’s Dahlia Lithwick writes, this case has also become “something of a referendum on the question of whether rap lyrics are an art form.” This isn’t the only case in which communication that is or resembles rap has been used against a defendant in court. There are many other criminal cases in which defendants’ rap lyrics have been used against them, without what rap music scholars sayis a proper appreciation for the standard use of “exaggeration, metaphor, and, above all, wordplay” that are common in rap.
“Without an understanding of the history and traditions of hip hop culture, its artistic elements are vulnerable to misinterpretation,” scholars Erik Nielson and Charis E. Kubrin assert in their amicus brief. The term “body bagged” in rap, for example, means a victory over a rapper’s opponent in a rap battle. Likewise, when the Wu Tang Clan says “I’ll hang your ass with this microphone,” they are asserting their metaphorical, lyrical dominance.
Interestingly, this case, too, has united unlikely allies. In another amicus brief filed in the case, several pro-life groups and anti-abortion protesters joined with People for the Ethical Treatment of Animals (PETA) to also endorse a subjective interpretation of true threats, reasoning that an objective standard infringes on the First Amendment right to protest. And several free press organizations also warned that the inherently provocative content of some journalism could be chilled by an objective standard of what constitutes a true threat. No domestic violence or other groups have weighed in to defend the objective standard.
Religious Liberty in Prison
There’s no question that Abdul Maalik Muhammad, an Arkansas inmate and the plaintiff in a lawsuit calledHolt v. Hobbs, is a very dangerous man (the briefs in this case identify him as “Gregory Houston Holt, also known as Abdul Maalik Muhammad”). He once pled guilty to charges that he threatened to “kidnap and harm the two daughters of President George W. Bush.” A few years later, he “broke into the home of his ex-girlfriend, slit her throat, and stabbed her chest.” Muhammad is undoubtedly a security concerns for the guards in the prison where he is currently incarcerated.
But the fact that Muhammad has a history of violent behavior does not strip him of his right to practice his religious faith. To the contrary, a federal law known as the Religious Land Use and Institutionalized Persons Act (RLUIPA) gives inmates broad religious liberty protections, and permits the government to impose a “substantial burden” on their exercise of religions only when they have an exceptionally good reason to do so. In Mr. Muhammad’s case, he wishes to grow a beard that he believes to be required by his religious faith. In an acknowledgement of the prison’s legitimate security concerns — a too-long beard can be used to conceal contraband or weapons — Muhammad has agreed to limit the length of his beard to only a half-inch.
[T]he fact that Muhammad has a history of violent behavior does not strip him of his right to practice his religious faith.
In their brief, Arkansas officials argue that even the short beard Muhammad wishes to grow presents a security problem. A bearded inmate might hide a piece of a razor blade in their facial hair, or they could hide contraband in their mouth and the resulting “subtle bulge in the cheek” would be disguised by the beard. They might also shave the beard to quickly change their appearance and prevent guards from recognizing them. Yet Muhammad’s attorneys have a fairly convincing response to these objections — “at least forty-four American prison systems would permit [Muhammad’s] half-inch beard, either for all prisoners or for prisoners with religious reasons to grow a beard.” If so many prison systems are indeed capable of managing the security concerns raised by a short beard, it is unclear why Arkansas’ prison system cannot.
Israel and Palestine
Every president since Harry Truman, the president who was in office when the State of Israel was formed, has maintained a policy of neutrality over the question of whether the city of Jerusalem is part of Israel — or, indeed, whether it is part of any other nation. During the Truman Administration, the State Department explained that “the United States cannot support any arrangement which would purport to authorize the establishment of Israeli … sovereignty over parts of the Jerusalem area.” More recently, during the George W. Bush Administration, the State Department explained that “[a]ny unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process.”
Nevertheless, in an apparent effort to undermine this policy of neutrality regarding which nation may lay claim to Jerusalem, Congress enacted a law in 2002 laying out what purports to be the “UNITED STATES POLICY WITH RESPECT TO JERUSALEM AS THE CAPITAL OF ISRAEL.” A provision of this law provides that U.S. citizens born in Jerusalem may have their birthplace listed as “Israel” on their passport, and the plaintiff inZivotofsky v. Kerry now wants to invoke this law. Both the Bush Administration and the Obama Administration countered that the law is unconstitutional because it interferes with the president’s exclusive authority over American foreign policy.
The Constitution’s text provides little clear guidance on whether Congress or the president should prevail in this dispute. Nevertheless, in resolving this case in the president’s favor, the United States Court of Appeals for the District of Columbia Circuit pointed to a history stretching back to the Washington Administration suggesting that the president has “exclusive power to recognize foreign nations.” It also quoted several prior Supreme Court decisions establishing that the President is the “sole organ of the nation in its external relations, and its sole representative with foreign nations,” or that if “the executive branch … assume[s] a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department.” The question presented by Zivotofsky is whether Congress can, in effect, trump the president’ s judgment on a matter of foreign policy such as this one, or whether the executive branch’s authority in this area is truly exclusive.
When Cops Stop You By Mistake
Every first year law student learns the fundamental criminal law concept that “ignorance of the law is no excuse.” What this means is that, when someone violates the law, it doesn’t matter whether or not they knew what the law said. If it’s a crime, and they are found to have committed the elements of that crime, they are guilty.
Every first year law student learns the fundamental criminal law concept that “ignorance of the law is no excuse.” … The same rule may not apply to cops enforcing the law, however.
The same rule may not apply to cops enforcing the law, however. Nicholas Heien was pulled over on a North Carolina interstate for having a broken tail light. But it turns out that one broken tail light is not a violation of North Carolina law so long as one of the two lights are working. Nonetheless, the cops used that purported violation as a reason for pulling Heien over, and then found cocaine once they searched his car.
Heien argued that because the officers made what is known as a mistake of law, the police had no basis to stop him in the first place, and the later search was invalid. The North Carolina Supreme Court nonetheless upheld the stop 4-3, reasoning that officers in this case made a “reasonable” mistake because the text of the law was not explicit. The case gives the Supreme Court the chance, for the first time, to consider when stops, searches, and seizures are ok even if police misunderstand the law.
As Heien’s lawyers argue, “if motorists were subject to seizures based on mistaken interpretations of arguably imprecise laws, it also would be much more difficult –indeed, sometimes downright impossible – for people to avoid being exposed to traffic stops.” It’s unclear whether drivers can avoid stops anyway. As legal scholar Orin Kerry puts it, “if an officer can’t find a traffic violation to stop a car, he isn’t trying very hard.”
As far as test cases go, Kerr points out that this one case has very good facts for the state of North Carolina, because the traffic law was ambiguous and it is far easier for the officers to say they were acting reasonably when they made a mistake. But the ruling gives the justices an opportunity to re-examine the leeway of officers to make traffic stops, at a time when stops continue to fall disproportionately on African Americans and other minorities. Underlying this case is a larger question: Will justices draw the line?
What Is Yet To Come
In addition to these cases, which the Court has already agreed to hear this term, there are three other high-profile issues that could come before the justices in the coming months, including whether the justices will agree with nearly every single federal judge who has considered the issue that the Constitution forbids marriage discrimination against same-sex couples. It is also fairly likely that the Court will need to clarify justhow far its recent Hobby Lobby decision cuts into the ability of workers to obtain birth control coverage. Although the Hobby Lobby decision itself suggested that the government has some leeway to ensure that workers whose employers object to birth control on religious grounds may still obtain contraceptive coverage through a somewhat complicated process, an order the court handed down shortly after Hobby Lobby suggests that the justices may apply much broader limits on the rights of workers.
There is also an unusually high chance that the justices could take a major abortion case this term. Several cases examining so-called TRAP laws — sham health regulations enacted by lawmakers seeking to restrict access to abortion — are winding there way through the federal court system. Additionally, last term the Court agreed to hear a case concerning whether a state may enact a law that restricted access to medication abortion which was justified by a questionable appeal to women’s health. The Court eventually dismissed the medication abortion case without reaching the merits. It is fairly likely, however, that the Court will want to hear another abortion case as soon as this term which presents the question of when states can use doubtful appeals to women’s health in order to restrict abortion.
There is also an unusually high chance that the justices could take a major abortion case this term.
Finally, there is a small-but-not-zero chance that the justices could take a lawsuit seeking to gut the Affordable Care Act by cutting off subsidies to millions of Americans who currently enjoy subsidized health insurance under the law. It would be highly unusual for the justices to take this case, as there is not currently a disagreement among the lower federal courts regarding whether the subsidies may be paid to all Americans who qualify (although two federal appellate judges did rule against the subsidies earlier this year, their decision was later withdrawn by the full appeals court). Given the extraordinarily partisan environment surrounding all things Obamacare, it is possible that four of the Court’s Republican members — and it only takes four votes for the Court to take up a case — could allow their desire to undermine this law to cloud their legal judgment. Nevertheless, such a decision would open the justices to legitimate concerns that they are placing politics before the law and potentially diminish the prestige of an institution which depends upon its reputation as a neutral arbiter of the law to maintain its legitimacy. That should deter the Court even further from taking this case.
True the Vote is one of the most influential groups working to make it harder to vote by pushing for restrictive voter ID laws and launching challenges against people it thinks might be ineligible to vote, tactics which are supposedly directed at preventing voter impersonation fraud and double voting — crimes that in reality are exceedingly rare.
In order to cover up the fact that voter ID laws keep many times more people from the polls than the miniscule number of voter impersonation cases that they might prevent, groups like TTV try to conflate in-person voter fraud — the only thing actually targeted by voter ID laws — with faulty voter registration and with rare but persistent kinds of small-scale voter fraud by elected officials that they have no intention of actually combating.
A great example of this happened yesterday, when TTV reprinted a short blog post by former Bush Justice Department official and conservative activist J. Christian Adams linking to a story about “Three PA Elected Officials Charged With Voter Fraud.”
Adams offers his commentary, implying that this story proves that the numerous studies discrediting the voter ID push are just wrong:
I am curious to see if this barely reported case of voter fraud ever makes it onto one of the ‘academic’ studies purporting to demonstrate very little voter fraud. Those studies are characterized by false negatives.
A quick look at the story in question, however, shows that what happened in Pennsylvania has nothing to do with voter ID or any so-called “voter integrity” laws that Adams and TTV are promoting.
Pennsylvania requires that people requesting an absentee ballot provide a reason, which can be “illness or physical disability” that makes the voter “unable to attend his/her polling place or to operate a voting machine.” Those voters must also provide a copy of their photo ID.
The case that Adams and TTV are touting is that of three township supervisors who were charged with violating election laws in 2011, two for helping 13 elderly voters to apply for and fill out absentee ballots , despite the fact that all were physically able to go to the polls on Election Day and were thus ineligible to obtain absentee ballots in Pennsylvania. One of the supervisors is charged with helping an eligible absentee voter fill out a ballot but failing to report that he had assisted the voter.
None of this would have been prevented by a voter ID requirement. Instead, this is an instance of, at best, a misunderstanding and at worst, public officials using their insider influence to tinker with ballots.
If it’s the latter, all sorts of laws are currently on the books to prevent such instances of election fraud. But it is not something that so-called “voter integrity” activists have shown any interest in addressing, perhaps because it’s already against the law and policed. As the Brennan Center wrote in a 2007 report, such conduct “has been an issue since Senators wore togas” and is a completely separate issue from the kind of supposed fraud that groups like True The Vote claim to be fixing with suppressive voting restrictions.
It is extremely rare for individuals to vote multiple times, vote as someone else, or vote despite knowing that they are ineligible. These rare occurrences, however, are often conflated with other forms of election irregularities or misconduct, under the misleading and overbroad label of “voter fraud.” Some of these other irregularities result from honest mistakes by election officials or voters, such as confusion as to whether a particular person is actually eligible to vote. Some irregularities result from technological glitches, whether sinister or benign: for example, voting machines may record inaccurate tallies. And some involve fraud or intentional misconduct perpetrated by actors other than individual voters: for example, flyers may spread misinformation about the proper locations or procedures for voting; thugs may be dispatched to intimidate voters at the polls; missing ballot boxes may mysteriously reappear. These more common forms of misconduct are simply not addressed by the supposed “anti-fraud” measures generally proposed.
h/t: Miranda Blue at RWW
Asshole of the Day: Georgia Secretary Of State Laments That Democrats Are Registering Minority Voters [TW: Racism, Ethnocentrism, White Privilege, Voter Intimidation]
The audio was released a day after the Senior Deputy Whip for the Georgia Senate Republicans vowed to block early voting dates and locations he felt would attract African American voters.
A day after the Senior Deputy Whip for the Georgia Senate Republicans vowed to block early voting dates and locations that he felt would attract African American voters, a progressive group released audio on Wednesday of Georgia’s Secretary of State warning fellow Republicans that Democrats might win because they are registering minority voters.
The audio, posted on YouTube by Better Georgia, features a man identified as Georgia Secretary of State Brian Kemp telling fellow Republicans at a July 12, 2014 event in Gwinnett County:
In closing I just wanted to tell you real quick, after we get through this runoff, you know the Democrats are working hard, and all these stories about them, you know, registering all these minority voters that are out there and others that are sitting on the sidelines, if they can do that, they can win these elections in November. But we’ve got to do the exact same thing. I would encourage all of you, if you have an Android or an Apple device, to download that app, and maybe your goal is to register one new Republican voter.
Listen to the audio:
The admissions by both Kemp and Senator Fran Millar that minority voters are almost certainly going to vote against the GOP in November contradicts the recent spin by the national party. Republican National Chairman Reince Priebus announced last year that his party would spend millions to reach out to minority groups. The RNC’s own autopsy report on the party’s 2012 election defeats found that many minorities “think that Republicans do not like them or want them in the country,” (wrongly, the report argued). Latinos and African Americans voted overwhelmingly for Democrats in 2012, citing concerns about salary, wages, affordablehealthcare, and immigration.
On Tuesday, Kemp launched a “voter fraud” investigation into a voter registration effort he suspects may have “forged voter registration applications, forged signatures on releases, and applications with false or inaccurate information.” Accusations of voter fraud have been a frequent tool of Republican secretaries of state.
A year ago, Kemp warned that allowing citizens to register to vote on Election Day would undermine their “individual freedoms.” In 2012, he spearheaded an error-riddled effort to purge voters from the rolls just months before the November elections.
Better Georgia executive director Bryan Long said in a statement that Kemp’s and Millar’s comments suggest the investigation is aimed at voter suppression. “The right to vote is sacred, and we should all want to encourage people to vote instead of making it more difficult,” he wrote, adding that, “GOP candidates in Georgia know they cannot win if the electorate reflects the increasing diversity of our state, so Sec. Kemp is using the power of his office to restrict minority voting access. The Justice Department should investigate.
A spokesman for Kemp did not immediately respond to a ThinkProgress inquiry about the remarks.
Source: Josh Israel for ThinkProgress