Fulfilling recent prophecies, both the House and Senate are pressing forward on bills to give the District of Columbia a voting member in the U.S. House of Representatives. With opponents’ options limited by a 62-34 vote advancing the bill in the Senate, debate is turning to whether such legislation would be constitutional.

The Wall Street Journal sides with the bulk of congressional Republicans, editorializing today that “the legislation runs afoul of the plain language of the Constitution, which provides that House members shall be chosen ‘by the People of the several States’ and stipulates that the District of Columbia is not a state.”

However, WSJ’s Law Blog points out that others see the issue as more complicated. Among them is Ken Starr, who said in 2006, “We have carefully considered this question and believe for three reasons the bill is within Congress’s authority: It is consistent with fundamental constitutional principles; it is consistent with the language of Congress’s constitutional power; and it is consistent with the governing legal precedents.”

The Washington Post offers a historic timeline of D.C.’s long struggle for representation in Congress here.

Although Congress is back in session, it is President Obama who will likely garner much of the media light this week. As Politico notes, with a fiscal summit meeting at the White House today, an address to Congress tommorrow and the release of his budget, "Obama will overshadow anything Congress does this week."

Nonetheless, the Senate will likely consider a bill to bolster congressional representation of the District of Columbia. On Tuesday, the Senate is scheduled to vote on whether to move forward on S.160, the District of Columbia House Voting Rights. The Washington Post reports that the bill, which is supported by President Obama, would create a full House seat for the District. Sen. Orrin Hatch (R-Utah) told The Post that he believes the measure is "going to pass the Senate." The measure, according to the newspaper, is likely to move through the House soon.

The Senate may also consider the nomination of Hilda Solis to be Secretary of Labor. The Senate's calander for February is available here.

The House's schedule, from Majority Leader Rep. Steny Hoyer (D-Md.), is available here. According to the schedule, on Wednesday, the House may consider the Helping Families Save Their Homes Act, which is sponsored by Reps. John Conyers (D-Mich.) and Barney Frank (D-Mass.). In an interview with the Atlanta Georgia Bankruptcy Blog, Conyers discusses the bill, which is intended to curb the number of home foreclosures.

The House and Judiciary Senate Committees have scheduled hearings this week to study the merger of Ticketmaster/Live Nation and copyright issues involving cable and satellite companies.

Congressional aides, as well as White House officials, are praising the efforts of Obama's chief legislative liaison for playing a significant role in sheparding the stimulus package through Congress to the president's desk. Phil Schiliro, who has served as a congressional aide to Rep. Henry Waxman (D-Calif.) and a top aide to former Senate Majority Leader Tom Daschle (D-S.D.), "played a pivotal role in getting Congress to pass the stimulus bill at warp speed," Politico reports. The article notes that Schiliro has worked to stay in the background during his career in public service, but will likely have difficulty shielding his involvement from media coverage of the Obama administration. Regarding his work on the stimulus package, Rep. Jim Cooper (D-Tenn.) lauded Schiliro for mastering the personalities, interests and agendas of lawmakers. "I bet he could tell you the name of every spouse, every child and every dog and cat of nearly each member," Cooper told Politico.

 One Republican vote away from passing a well overdue state budget, Democrats in the California Senate are considering a deal to put an open primary on the ballot.

State Sen. Abel Maldonado (R-Santa Maria) may provide the decisive vote in return for the creation of an open primary system in California elections. Open primaries would result in the top two vote-getters in the primary facing off in the general election irrespective of party affiliation. Currently, California’s closed primary system produces a general election contest between the top candidates from each party.

Election Law Blog warns that, “If Democrats are really cynical, they will agree to Maldonado’s request and draft an open primary measure that courts will rule unconstitutional. A solid open primary measure that will sustain [a] court challenge must be drafted carefully.” An initial draft of the proposed legislation is available here.

UPDATE: The Los Angeles Times has this report on the vote passing the California budge and creating open primaries in the state

The last leg of Norm Coleman’s re-election campaign for the Senate is a “rather liberal reading of Bush v. Gore,” according to Election Law Blog.

Across Minnesota, counties have varying standards for validating votes. Republican Norm Coleman has made these differences the focal point of his legal challenge to certified election results which still list Democratic challenger Al Franken as having a 225-vote lead. Coleman hopes to overcome this deficit by persuading a three-judge panel that rejected absentee ballots ought to be counted.

“Carver County rejected 181 of its absentee ballots because the witnesses were unregistered,” Coleman legal spokesman Ben Ginsberg told reporters. “Scott County said they don’t even check for that. That presents a classic case of the voters of one county having a greater chance of being disenfranchised than the other county.”

The Star Tribune of Minneapolis reports that “Coleman’s camp has often raised the possibility that the conduct of absentee voting in Minnesota violated the equal protection clause of the U.S. Constitution.”

Franken attorney Marc Elias counters that the thrust of Coleman’s argument would “do away with county involvement altogether and we’re going to move to a national elections board.”

Despite being in recess this week, the Hill continues buzzing with news. Congress will return to normal business on Monday, Feb. 23.

Senators Demand More on Ethics Probe

Reported here yesterday, the Justice Department’s Office of Professional Responsibility is looking into whether attorneys justifying Bush administration policies did so unethically. Berkeley Law Prof. John Yoo and 9th U.S. Circuit Judge Jay Bybee, then serving in the Justice Department, sparked widespread controversy for drafting the “torture memo”: the Bush administration’s legal defense of waterboarding and other harsh interrogation techniques. Sens. Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) are now calling for updates on the investigation, which has been ongoing for over a year.

H/T: How Appealing.

White House Entering House, Rove Dispute

An ongoing battle between Karl Rove and Rep. John Conyers (D-Mich.), chair of the House Judiciary Committee who has twice subpoenaed Rove, may now be in the hands of President Obama. After Rove’s attorney requested the president to referee his dispute with the House, the Obama administration has requested two more weeks to consider the issue. The most recent subpoena demanded Rove’s testimony before the Judiciary Committee on Monday, Feb. 23. Rove’s refusal to testify as to the firings of nine U.S. attorneys is premised in President Bush’s executive privilege.

Senate Majority Leader Harry Reid (D-Nv.) is "cautiously optimistic" that his chamber will pass legislation giving the District of Columbia a vote in the House of Representatives, according to staff.  

Currently, D.C.'s only representation in Congress is one seat in the House of Representatives with voting rights on amendments to bills, but not as to their eventual passage or defeat. Today, that seat is held by Del. Eleanor Holmes Norton (D-D.C.) who share Reid's optimism. "I do believe we have the votes," Norton recently told reporters. However, she warned of "mischief" from opponents, including amendments intended to derail the bill.

D.C. residents have long made a rallying cry of "taxation without representation." In lieu of offering representation, another proposal emerged in the House to do away with federal taxation in the District. Rep. Louie Gohmert (R-Tx.) recently introduced legislation that would exempt D.C. residents from federal taxes until they receive full representation in the House. Though seemingly well intentioned, the Washington Post attacked Gohmert's efforts as "misreading D.C. residents' desire for their rights as American citizens as a way to shirk duty to country." The Post editorialized that, in addition to insulting the citizens of D.C. who seek a voice in our country's government, the proposal would have the practical effect of making the District a tax haven for the wealthy. Accordingly, the Post editorial board sees no substitute for legislation like that currently before the Senate.

While similar legislation failed to achieve the 60 votes necessary for passage in 2007, Norton counts 63 or 64 senators on the side of giving D.C. a full voice in the House. Last week, the proposal passed 11 to 1 in committee with bipartisan support, including the votes of Sens. Susan Collins (R-Me.) and George Voinovich (R-Oh.) With Minnesota still settling the dispute over one of its seats, the Democratic caucus currently holds a 58 to 41 majority in the Senate.

After debate on Feb. 23, the bill is scheduled for a preliminary vote on the Senate floor Feb. 24.

Alabama's current constitution was ratified in 1901 by a vote of 108,613 to 81,734, according to state records. However, those records also include anomalies that some say indicate rampant fraud.

A group of voters is filing suit, alleging voter fraud in an effort to invalidate the state's constitution. Plaintiffs in the case are seeking either a new vote on whether to ratify the document or a new constitutional convention.

The current constitution is "riddled with racist language," says the Birmingham News, pointing to an affidavit filed with the complaint. Plaintiffs claim that the vote to ratify the document was no less tinged with racism. They refer to results showing that most black voters supported ratification despite widespread, public arguments for ratification on the basis of maintaining "white supremacy." Editorials from local papers of the time included this from the Choctaw Advocate: "This is the time when all white men should stand together. The new Constitution was made by white men, for white men." Another editorial from the Selma Times offered this express endorsement of racist voter fraud: "The Times is one of those papers that does not believe it is a harm to rob or appropriate the votes of an illiterate Negro. We do not believe they ought ever to have had the privilege of voting."

Plaintiffs have moved for class certification in the case, claiming that the class includes all registered Alabama voters. Named defendants include top state officials such as Gov. Bob Riley. Riley's chief legal adviser Ken Wallis doubts the legal basis for the suit, calling it "far, far out." Wallis urged those displeased with the 1901 constitution to seek redress through legislative, rather than legal means.

H/T: How Appealing.

Senate Tradition Questioned for Judicial Nominees

Since at least 1917, federal judicial nominees have faced the obstacles of "blue slips," an informal way for senators to effectively veto judges from their home state. Traditionally, the Senate Judiciary Committee chair would defer to senators from a nominees home state, who could withhold the "blue slip," or approval of a nominee, for any reason whatsoever.

With four vacancies on the 15-judge 4th Circuit Court of Appeals, Judiciary Chair Patrick Leahy (D-Vt.) confirmed rumors that he is discussing what deference is due to the "blue slip" tradition with the committee's ranking Republican Sen. Arlen Specter (R-Pa.) The five States composing the historically conservative 4th Circuit are represented by only three Republican Senators currently: Sen. Richard Burr (R-N.C.), Sen. Jim DeMint (R-S.C.) and Sen. Lindsey Graham (R-S.C.)

"Libel Tourism" No Walk in the Park

Members of the House Judiciary Subcommittee on Commercial and Administrative Law have met to address "libel tourism," a form of venue-shopping where plaintiffs sue authors and journalists in countries with lesser protections for freedom of speech.

One author who testified before the subcommittee, Rachel Ehrenfeld, was sued in the United Kingdom after writing a book on financing terrorism. 23 copies of her book were purchased in the U.K., where there is no standard approaching the American "actual malice" requirement. The plaintiff, a Saudi billionaire named in the book, won $225,000 against Ehrenfeld.

Here Karl, Karl, Karl, Karl

In the latest chapter in a long relationship, Rep. and House Judiciary Chair John Conyers, Jr. (D-Mi.) has issued another subpoena for Karl Rove. Rove is being subpoenaed to appear before Conyers's committee for a Feb. 23 deposition regarding alleged politicization of the Justice Department under President Bush.

Conyers wrote to Rove's lawyer, "Like every citizen subject to compulsory process, I believe it is Mr. Rover's obligation to appear in response to the subpoena and answer the questions he is asked or assert a valid legal privilege in resopnse to individual questions." Particularly interested in any role Rove played in the 2006 firing of U.S. attorneys among other subjects, Conyers postponed a previous deposition at Rove's request. Conyers has refused to grant a similar request this time.

Rove has refused to answer questions about the firings of U.S. attorneys during the Bush administration in light of President Bush's related assertion of executive privilege.

The Obama administration is expected to play a central role in planning and conducting the 2010 census. Critics believe Obama’s interest in the census is partisan motivated. Obama is being accused of “circumventing the secretary of commerce” in an “outrageous and unprecedented” move.

In a recent editorial, leaders of the House minority caucuses explained that it is especially difficult and expensive to conduct an accurate census in urban areas.

Ensuring an accurate count is particularly challenging in minority communities. Racial and ethnic minorities, including those in highly dense urban populations and those who are linguistically and culturally isolated, have historically presented unique challenges to the Census Bureau; many are distrustful of government and reluctant to participate in a government count.

Additionally, the editorial notes that census data is used to “plan public service projects including resources for hospitals, employment assistance, schools, highways, and police and fire departments,” essential for minority and other communities.

Because the census serves as the basis for congressional redistricting, observers say that an accurate census is crucial to ensure an adequate minority voice in Congress. Opponents of the move, however, suggest that the Obama administration could affect results to insulate Democratic congressional power.

Sen. Judd Gregg (R-N.H.) withdrew his name from consideration for Secretary of Commerce amid debate over the executive’s role in the census. Sen. Gregg had previously voted to abolish the Commerce Department, which left many wondering whether he would be an adequate advocate for the funds needed to complete an accurate census.

by Alexis Karteron, Assistant Counsel, NAACP Legal Defense & Educational Fund, Inc. (LDF). LDF represents intervenor-appellees in Northwest Austin Municipal Utility District No. 1 v. Mukasey.

This spring, the Supreme Court will hear Northwest Austin Municipal Utility District No. 1 v. Mukasey (“NAMUDNO”), a landmark voting rights case concerning the constitutionality of Section 5 of the Voting Rights Act. Section 5 requires federal pre-approval, known as “preclearance,” of any changes that concern voting – from polling place changes to statewide redistricting plans – undertaken by certain jurisdictions, primarily in the South, with a history of race discrimination in voting. 

In NAMUDNO, the Court will decide whether the plaintiff-appellant, a small municipal utility district in Texas (the “MUD”) is eligible to “bail out” of Section 5 coverage, thereby terminating its responsibility to submit voting changes for preclearance. Assuming that it decides that the MUD is not the kind of jurisdiction eligible to seek bailout, the Court will then turn to a far thornier question: whether Congress had the authority pursuant to its powers under the Fourteenth and Fifteenth Amendments to reauthorize Section 5 in 2006. The answer will tell us not only whether a critical civil rights statute survives, but also provide insight into the Roberts Court’s views on the extent of Congressional power under the Reconstruction Amendments, the respective roles of co-equal branches in assessing the need for civil rights legislation, and the significance of the persisting voting discrimination identified by Congress in the wake of the election of the first black president.

In 1965, after years of overwhelming resistance by some states to black voting rights, epitomized by the violent repression of civil rights demonstrators on the Edmund Pettus Bridge in Selma, Alabama on Bloody Sunday, Congress enacted Section 5. It determined that a federal role in local decision-making processes concerning voting was necessary both to remedy and to prevent the widespread deprivation of constitutional rights that was bound to occur without such intervention. Section 5 bars the implementation of voting changes without federal preclearance, which is granted only if the jurisdiction demonstrates that the proposed change will not have a discriminatory effect on the ability of minorities to elect candidates of choice, and if the change was not adopted with discriminatory purpose. Although Section 5 was born in 1965, its story certainly does not end there. Congress has carefully studied the continuing need for Section 5 and passed legislation reauthorizing the statute four times since 1965. Most recently, the 2006 reauthorization passed by overwhelming margins in both the House and Senate with bi-partisan support.

The Court in NAMUNDO will likely decide not just the constitutionality of the 2006 reauthorization, but also provide the clearest signal of the Roberts Court’s stance in the ongoing conversation between the Court and Congress on the extent of Congress’s power to enact civil rights legislation. It will be the latest in a line of cases beginning with City of Boerne v. Flores, 521 U.S. 507 (1997), in which the Court has frequently passed harsh judgment on congressional attempts to remedy and deter constitutional violations. While the subject matters of such disputes cover a range of topics, the Court has settled on a single standard by which to evaluate Congress’s enactment of civil rights legislation under the Fourteenth Amendment: the legislation must form a “congruent and proportional” response to the harm it is designed to combat or deter. Though the Court has at times wielded this new federalism doctrine to strike down statutes, it has repeatedly cited Section 5 as a valid exercise of congressional power to enact civil rights legislation, and allowed some laws to stand, such as portions of the Family and Medical Leave Act of 1993, and Americans with Disabilities Act of 1990, in Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), and Tennessee v. Lane, 541 U.S. 509 (2001), respectively. In addition, the Court has consistently subjected legislation enacted under Congress’s Fifteenth Amendment enforcement power to much less stringent review, requiring that legislation constitute a “rational” response to the harm to be redressed.

In 2006, Congress proceeded to consider reauthorizing Section 5 with these precedents in mind. It compiled a record of more than 15,000 pages, and heard testimony from more than 60 witnesses at more than a dozen hearings. Witnesses presented testimony both in support of and against reauthorization. Ultimately, Congress concluded that the weight of the record before it included extensive evidence of both intentional racial discrimination in voting, and vestiges of such discrimination. It also, however, reached critical conclusions about Section 5’s utility: that the statute was responsible in large part for the reduction of racial discrimination in voting in covered jurisdictions, due to both objections to proposed voting change by the Department of Justice, and the preclearance process’s deterrent effect on discriminatory actions. The Department of Justice issued 792 objections to preclearance requests between 1982 and 2006, with more objections in areas with higher percentages of minority residents, and numerous objections based on indicia of intentional discrimination. This number is greater than the number of objectionable voting changes between 1965 and 1982. In addition, with a record of 855 “More Information Requests” from the Department of Justice to covered jurisdictions in response to preclearance requests, Congress concluded that jurisdictions frequently decided to forgo discriminatory changes because they expected to draw objections.

In NAMUNDO, the plaintiff-appellant will likely continue to maintain that the congressional record concerning contemporary voting discrimination is insufficient to justify Section 5’s intrusion on state authority, and that the statute is, therefore, a response to racial discrimination in voting that is far from “congruent and proportional.” Further, it will likely rely heavily on the notion that Section 5 is an outdated and heavy-handed mechanism in an era when the United States has elected an African American president. 

In defense of the statute, the Department of Justice and intervenors in the case successfully demonstrated in the lower court, and will likely argue again, that Congress acted well within its authority when it decided to reauthorize Section 5, both because the massive congressional record included ample evidence of contemporary discrimination in voting, and because Section 5 had a proven record of success in deterring such discrimination. In short, Congress was entitled make the judgment that Section 5 – with a limit on its geographic reach, an expiration date, and restricted scope – remains necessary to combat race discrimination in voting. 

To hold otherwise would represent not only a break from precedent – the Supreme Court has upheld Section 5 from constitutional attack several times – but mark a significant shift in the Court’s federalism doctrine under City of Boerne and threaten settled separation of powers principles. While the record before Congress was extraordinary in its size and scope as compared to that in other post-Boerne cases, what is even more remarkable is that Section 5 will be the first statute the Court has considered in this realm with such a lengthy track record of success. Striking it down would, therefore, punish Section 5 for its effectiveness, and substitute the Court’s judgment for Congress’s about the continued need for Section 5.  Further, it would establish a clash between co-equal branches of government about the best way to effectuate the overriding goals of the Reconstruction Amendments, to prohibit unconstitutional conduct and to deter it. In sum, at stake in NAMUDNO is not only the future of one of America’s most successful civil rights statutes, but Congress’s ability to make judgments about the prevalence of constitutional violations and to craft appropriate responses.

The election of President Obama provides a powerful backdrop to the Court’s consideration of this case. It is a development that the MUD is likely to cite extensively in its merits briefs. However, for all of the optimism about the state of American race relations that the 2008 election provides, it is important to recognize that some key facts do not match the narrative. For example, the level of racially polarized voting in core states covered by Section 5 was extraordinarily high in the 2008 election. According to exit polls, just ten percent of white voters in Alabama cast a ballot for Barack Obama, and in Mississippi and Louisiana, Senator Kerry received more support from white voters in 2004 than President Obama did in 2008. These vivid examples highlight the relationship between race and voting and underscore the continuing need for Section 5’s protections in ways that support rather than undermine Congress’s findings made just a few years ago. Section 5 should survive to see another day so Congress, and not just the Court, can have an opportunity to consider Section 5’s utility in this new era.