Brennan Center

  • September 22, 2014

    by Caroline Cox

    Walter Shapiro argues for the Brennan Center blog that the U.S. Court for the Seventh Circuit’s decision on the Wisconsin voter ID law is judicially ordered chaos.

    In the Los Angeles Times, David G. Savage discusses Justice Ruth Bader Ginsburg’s difficult retirement choice.

    The Economist’s Democracy in America blog explains the unlikely alliance of pro-choicers and pro-lifers in the Young v. United Parcel Service case.

    Lisa W. Foderaro reports in The New York Times on the People’s Climate March protest in New York City.

    ACS Board Member, Judge Nancy Gertner (Ret.) writes in the National Law Journal on U.S. District Judge John Bates’ letter to the Senate Judiciary and Intelligence Committee.

    Zephyr Teachout argues in Salon that through decisions such as Citizens United, the Supreme Court has legalized corruption. 

  • April 30, 2013

    by Jeremy Leaming

    The Senate Judiciary Committee’s Ranking Member Chuck Grassley (R-Iowa) likes to pin blame for the high vacancy rate on the federal bench on President Obama, saying he has not put forth enough nominees. Some befuddled reporters have bought and pushed Grassley’s line, or at least part of it to report that both parties are to blame in this matter.

    Grassley and others, however, should take a look at the work of Jennifer Bendery at The Huffington Post, who notes, like other honest observers of the fight over judicial nominations, that the obstruction is and always has been the product of Republican senators. A careful look at the judicial nominations process reveals, she writes, “the bigger problem is Republican senators quietly refusing to recommend potential judges in the first place.”

    Obama came into office promising to work with the other party and on judicial nominations that is what he’s attempted to do. In their 2012 book, Thomas E. Mann and Norman J. Ornstein blast Republicans as being largely to blame for the heightened obstruction of nominations and legislation.

    Citing a study by the Alliance for Justice, “Judicial Vacancies Without Nominees,” Bendery reveals it is rather lazy to report that both parties are to blame for the ongoing strife over judicial nominations and the large number of vacancies on the federal bench. Most of the nominees to the federal bench are to the district courts and senators, Bendery notes, jumpstart that process. Senators are supposed to make “recommendations from their home states, and the president works with them to get at least some of the nominees confirmed – the idea being that senators, regardless of party, are motivated to advocate for nominees from their states.”

    The research from AFJ shows that it is largely Republicans who are stalling the process. Michelle Schwartz, director of AFJ”s Justice Programs, told Bendery, “It’s disingenuous at best for Republicans to complain about the number of judicial vacancies without nominees when Republicans themselves are responsible for the majority of those vacancies. Nearly two-thirds of the vacancies without nominees are in states with at least one Republican senator, most of whom have consistently refused to work with the White House in good faith to identify qualified candidates.”

  • April 29, 2013

    by Jeremy Leaming

    North Carolina, which last year voted to amend its constitution to ban same-sex marriages even though it already had a law doing that, is now on the verge on enacting one of the nation’s more onerous voter ID laws. 

    Late last week the N.C. House easily approved the so-called Voter Information Verification Act that would require people to present government-issued voter photo IDs before casting ballots. It is expected to pass the Senate and the State’s Republican Governor Pat McCrory has signaled he’ll sign it into law. Brentin Mock reporting for ColorLines noted that last week’s vote in the lower chamber drew throngs of N.C. university students to protest the new law.  The measure would make it arduous for the state’s colleges and university students to engage in democracy. And other measures being considered, as Mock reports, are also aimed at making voting burdensome, such as limiting early voting and prohibiting all early voting on Sundays.

    The Brennan Center’s Lucy Zhou in an April 25 post about the ongoing state efforts to place more burdens on voting described N.C. as a “hotbed of restrictive voting bills” and listed the array of measures the state is moving to implement. Zhou notes that North Carolina lawmakers are striving to undercut the state constitutional rights of students to vote at their college addresses, by penalizing parents. If students register to vote under a different address, like their university address, parents will be barred from “listing their children as dependents on state tax forms ….”

    State Rep. Thom Tillis (R-Mecklenburg) in a column for The Charlotte Observer called the photo ID bill “common-sense” and likened it to showing a photo ID to board an airplane. The problem with this type of argument is that it misses a fairly significant point. Voting is integral to democracy and indeed is protected in numerous places in the U.S. Constitution. But what about air travel and purchasing cocktails or even certain kinds of decongestants, which also require identification. Those actions may be vital to the pursuit of happiness, but not all are constitutionally protected rights, and certainly not as integral to democracy as voting.

    Tillis claims “fringe elements have relied on heated rhetoric to frame this issue ….”

    There is, however, nothing radical, over-the-top, or wild-eyed about noting the fact that North Carolina lawmakers are not able to point to any in-person voter fraud that has occurred in their state. Instead it is Tillis and his cohorts who are misinforming the public by claiming the integrity of the vote needs to be protected, while offering not a shred of evidence as to when that integrity was compromised.

  • April 26, 2013

    by Jeremy Leaming

    Despite the rhetoric to move beyond a perpetual “war on drugs” the Obama administration remains mired in the tough-on-drugs mindset and its Justice Department seems befuddled by the states that have legalized small amounts of marijuana for recreational use.

    The Government Accountability Office (GAO) issued a report revealing that the administration’s goals set out in 2010 have largely not been met. The report noted that the Office of National Drug Control Policy and other federal agencies established “seven Strategy goals related to reducing illicit drug use and its consequences by 2015.” GAO continued, “As of March 2013,” its “analysis showed that of the five goals for which primary data on results were available, one shows progress and four show no progress.”

    But, as The Huffington Post’s Matt Sledge reports drug czar Gil Kerlikowske, head of the Office of National Drug Control Policy has just released another drug control plan that builds on the policies the GAO has said are not working. More troubling, Sledge notes that the drug office’s budget “still devotes less than half of it funds to treatment and prevention. The GAO found that prevention and treatment programs are ‘fragmented’ across 15 federal agencies.”

    In an April 24 post on its web site, the Office of National Drug Control Policy bemoans “illicit drug use,” claiming “drug-induced overdose deaths now surpass homicides and car crashes as the leading cause of injury or death in America.” It also declares “we cannot arrest or incarcerate our way out of the drug problem.”

    The language from the administration’s drug control office is softer than rhetoric about the “war on drugs,” which the Nixon administration launched with the enactment of the Controlled Substances Act (CSA) several decades ago. But the administration’s drug control office is not embracing drug legalization or even any changes to the CSA, such as removing marijuana from the list of drugs deemed as dangerous as say heroin.

    The muddled message from the Obama administration -- not helped by its Justice Department’s silence on how it will respond to Colorado and Washington, where officials are crafting measures to implement and regulate the recreational use of marijuana -- is preserving tough-on-drugs policies.

  • March 21, 2013
    Guest Post

    by Gabriel J. Chin, Professor of Law, University of California Davis School of Law

    This week, the Supreme Court heard argument in Arizona v. The Inter Tribal Council of Arizona, a case at the intersection of two lines of cases which have been prominent on the Court’s docket in recent years. The case is an example of a challenge to Arizona’s apparently endless cornucopia of anti-immigrant legislation. It also tests measures which, according to some conservatives, are designed to preserve the integrity of the ballot box, but according to others are calculated to suppress the minority vote.

    The case involves Arizona’s Proposition 200, passed in 2004, which requires prospective Arizona voters to provide proof of United States citizenship before registration. But the federal National Voter Registration Act of 1993 directed the federal Election Assistance Commission to create a federal form for voter registration (current version here). That form requires applicants to provide a date of birth and other identifying information, and an oath that the applicant is a citizen, but does not require independent documentary proof of citizenship.  Federal law requires states to “accept and use” the federal form. The critical question is whether “accept and use” means that a properly completed form is sufficient for voter registration unless the state independently proves that it is fraudulent, or, rather, that the form is the beginning of an application process during which the state may freely add supplemental requirements and inquiries.

    A panel of the U.S. Court of Appeals for the Ninth Circuit, which included retired Justice O’Connor, invalidated Prop. 200’s proof-of-citizenship requirement, over a dissent by Chief Judge Kozinski. En banc, the Ninth Circuit held 9-2 that the requirement was invalid, this time with Chief Judge Kozinski in the majority. Both the panel and the court en banc Circuit upheld a separate provision of Prop. 200, requiring registered voters to show identification at the polls.

    It is common ground that the federal government has broad power over federal elections.  As the Brennan Center and the Constitutional Accountability Center wrote in a brief for me and other constitutional law scholars, under the Elections Clause (Article I, Section 4), Congress may regulate federal elections and supersede state electoral laws. The Framers recognized the national implications of state electoral improprieties, and granted the national government the power to protect itself.  Neither Arizona nor any of the justices questioned the century of precedents to this effect. Instead, the case seemed to turn on the intent of Congress.