January 2010

---

By Estelle Rogers, Director of Advocacy, Project Vote

---

Some good news came out of Washington Tuesday.

Sound unlikely? That's because the news comes from the STATE of Washington, where the Ninth Circuit Court of Appeals essentially struck down the state's felon disenfranchisement law because it's racially discriminatory and violates the federal Voting Rights Act.

The case, Farrakhan v. Gregoire, has been in the federal courts since 1996, when the plaintiffs -- all minority citizens who had been convicted of felonies -- sued the state, claiming that the disenfranchisement law discriminated on the basis of race because Washington disproportionately prosecutes and sentences minorities. They produced some compelling social science research to show that disparities in Washington's rates of criminal investigation, vehicle searches, arrest, bail recommendations, and confinement could not be explained by "legitimate" factors, such as the higher rate of minority involvement in criminal activity. Rather, the court concluded, the state's criminal justice system is riddled with racial discrimination at every stage.

Amazingly, the state didn't dispute the social science evidence, but merely claimed that, even assuming its validity, it is legally insufficient to sustain the plaintiffs' claim under the Voting Rights Act that the felon disenfranchisement law results in the denial of the right to vote on account of race. The court disagreed.

So now what?

Conservative pundit George Will argues in a Washington Post column that wobbly conservatives deplore so-called judicial activism, but true conservatives would support a court decision striking down a health care law requiring individuals to purchase coverage.

In his column for The Post, Will maintains that the supporters of the heath care mandate are inadequately defending the proposed legislation on constitutional grounds. He asserts that if Congress and the executive branch can require people to buy health care coverage, they could also require people to get in shape. Will writes, "Why not the Anti-Couch Potato Act to Make Calisthenics Mandatory and to Impose a $50 Excise tax on Cheeseburgers Because Unhealthy Lifestyles Affect Interstate Commerce?"

Although Will cites one pundit, the National Journal's Stuart Taylor, as arguing that the Supreme Court would likely uphold the constitutionality of such a mandate, he could have pointed to numerous others, such as constitutional law experts, Erwin Chemerinsky or Robert A. Schapiro. 

Or he could have cited a recent Issue Brief released by ACS, in which Simon Lazarus, public policy counsel for the National Senior Citizens Law Center (NSCLC), refutes the arguments that Congress has given short-shrift to the Constitution in fashioning its legislation.

As Lazarus writes:

Many independent experts, studies, and analyses concur in Congress' judgment that health reform with universal coverage must include a responsibility requirement; without it, not enough individuals will participate in a voluntary system, adverse selection will continue, the government will continue to overpay for care for the uninsured, and overall health reform will be unsustainable.

He concludes that the individual mandate "is lawful and clearly so - pursuant either to Congress' authority to ‘regulate commerce among the several states,' or to its authority to ‘lay and collect taxes to provide for the General Welfare.'"

Lazarus' Issue Brief, "Mandatory Health Insurance: Is it Constitutional?" is available here.