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  • April 15, 2016
    Guest Post

    by Harry Baumgarten, Partner Legal Fellow, Voting Rights Institute

    In early March, the Daphne, Ala., City Council voted to reduce the number of polling places in the city from five to two, including eliminating existing polling locations in areas of the city with black population concentrations. Fewer polling places often lead to longer wait and travel times, burden the ability of voters to cast ballots, and discourage people from voting. The plan was opposed by African American civic leaders, but narrowly passed in a 4-3 vote.

    That very same day, the Daphne City Council also approved a mid-decade re-redistricting plan whose impact on the black community is at best unclear, since the city does not appear to have undertaken the appropriate review of the plan’s effects on the black voting age population in each district and its impact on black voting strength. Redistricting plans can sometimes dilute minority voting strength and, when they do, violate Section 2 of the Voting Rights Act.

    The Voting Rights Institute sent a letter this week to the Department of Justice calling on it to investigate the Daphne City Council’s latest measures and to take appropriate action.

    This election, we continually hear reports of voters being harmed thanks to new measures, like this one in Alabama, which make it more difficult to vote.

    In North Carolina, for example, the state’s new Voter ID law went into effect for the first time during its March 15 primary, reportedly disenfranchising 218,000 registered voters in the state who do not have an acceptable form of government-issued ID. This included U.S. Senator Richard Burr (R-NC), who had to cast a provisional ballot because he didn’t have an acceptable form of identification.

  • April 15, 2016

    by Jim Thompson

    Microsoft filed suit against the U.S. Department of Justice Thursday, challenging the legal process used by DOJ to obtain secrecy orders which bar the company from notifying users when the government obtains a warrant to read their emails, says Steve Lohr in The New York Times.

    The U.S. Court of Appeals for the Sixth Circuit ruled Wednesday that the government may gain warrantless access to cell-site location information—time-stamped location data logged with cell phone towers—without violating the Fourth Amendment prohibition against warrantless search and seizure, reports Robinson Meyer in The Atlantic.

    The parties in Zubik v. Burwell this week filed supplemental briefs in response to the Supreme Court’s earlier request, potentially reaching a compromise, but concern that a resolution will encourage further activist litigation by conservative groups persists, writes Jay Michaelson in The Daily Beast.

    In The Atlantic, frequent ACS speaker Garrett Epps opines that voters can resolve the Supreme Court stalemate. 

  • April 14, 2016
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law at Georgetown University Law Center

    *This post originally appeared on the Center for Progressive Reform Blog

    Justice Antonin Scalia was, as much as anything else, known for insisting that the text of a statute alone – not its purposes, not its legislative history – should serve as the basis for the courts' interpretation of the statute. Justice Scalia promoted canons of statutory construction – or at least what he deemed the valid ones – as a way of limiting the power of judges by setting rules for their interpretation of statutes. Yet he also warned, in a 1997 book, against "presumptions and rules of construction that load the dice for or against a particular result." He worried that such "dice-loading" rules might effect "a sheer judicial power-grab." 

    It is striking, therefore, that in one of his last majority opinions for the Supreme Court, Justice Scalia went out of his way to create such an interpretive rule. Writing for a 5-4 majority in Michigan v. Environmental Protection Agency(EPA), he found that EPA had erred in declining to consider costs in determining that regulation of hazardous air pollutants – such as mercury – from power plants was "appropriate and necessary" under section 112 of the Clean Air Act. 

    Justice Scalia's reasoning went beyond the statutory provision and agency regulation at hand and suggested that agencies' purportedly general practice of considering costs in deciding whether to regulate had made the interpretive default one in which agencies must consider cost in order to engage in "reasonable regulation." In Michigan v. EPA, in other words, Justice Scalia created a brand-new, dice-loading, anti-regulatory canon of statutory construction. 

    The lower courts have begun to apply this canon with gusto, and in cases far removed from section 112 of the Clean Air Act. In the biggest of these cases so far, MetLife v. Financial Stability Oversight Council (FSOC), Judge Rosemary Collyer of the federal district court in Washington, D.C. relied heavily on Michigan v. EPA in finding that the FSOC had erred in determining that the insurance giant MetLife was a systemically important financial institution – or "too big to fail" – because it had not considered the costs of this designation to MetLife. 

  • April 14, 2016

    by Jim Thompson

    A black man with three forms of identification who “spent $200, visited two states, and made seven trips to different public institutions” all to obtain a valid voter ID still was unable to vote in Wisconsin’s presidential primary, writes Ari Berman in The Nation.

    The U.S. Court of Appeals for the Seventh Circuit ruled Tuesday that District Judge Lynn Adelman should reexamine Wisconsin’s voter ID law, report Patrick Marley and Jason Stein at the Journal Sentinel.  Adelman previously dismissed a challenge to the disenfranchising law last October.

    In stark contrast to his counterparts in neighboring states, Louisiana Gov. Jon Bel Edwards on Wednesday signed an executive order that establishes anti-bias protections for LGBT people and rescinds an earlier “religious freedom” order seen to enable anti-LGBT discrimination, says Chris Johnson in The Washington Blade

  • April 13, 2016
    BookTalk
    The White House Vice Presidency
    The Path to Significance, Mondale to Biden
    By: 
    Joel K. Goldstein

    by Joel K. Goldstein, Vincent C. Immel Professor of Law, Saint Louis University School of Law

    Discussions of constitutional theory tend to focus on the Constitution’s justiciable clauses. Yet much constitutional interpretation and change occurs in clauses the courts never consider. No American constitutional institution has experienced the positive trajectory of the vice presidency during the last 40 years. Building on developments especially during the prior quarter century, the vice presidency has gone from a disparaged legislative position and then a peripheral executive office to an integral part of the president’s inner circle. The White House Vice Presidency: The Path to Significance, Mondale to Biden describes this remarkable development, seeks to account for it, and explores what can be learned from it about the vice presidency, constitutional change and political leadership.

    The vice presidency had grown during the quarter century beginning with the vice presidency of Richard M. Nixon (1953-1961). Propelled by changes in American government that the New Deal, World War II and the Cold War initiated, the office moved into the executive branch during the six vice presidencies of Nixon through Nelson A. Rockefeller (1974-1977) and assumed a standard set of roles. The vice presidency became a coveted presidential springboard and a better source of presidential successors. Despite this progress, the office remained limited. Much of what vice presidents did was, in historian Arthur M. Schlesinger Jr.’s phrase, “make-work;” vice presidents were not part of the president’s inner circle and the office was pretty limited and vice presidents were pretty frustrated.

    The presidency of Jimmy Carter brought the creation of the White House Vice Presidency. By clinching the nomination early, Carter had time to systematically consider his vice-presidential options. Carter was predisposed to elevate the second office but was not immediately sure how to do so. Carter’s running mate, Walter F. Mondale, was extremely able and politically and personally compatible with Carter. In addition to contributing to Carter’s narrow election win, Mondale ultimately provided a new vision of the vice president as a general, senior presidential adviser and troubleshooter. Carter gave Mondale the resources he needed to succeed in that position and worked with Mondale to implement the new office.