ACSBlog

  • August 1, 2014
    Guest Post

    by Joshua A. DouglasRobert G. Lawson & William H. Fortune Associate Professor of Law, University of Kentucky College of Law

    *This post was originally published in the Milwaukee Journal Sentinel

    The Wisconsin Supreme Court on Thursday issued two decisions that had the effect of upholding the state's strict voter ID requirement. Crucial to the court's decisions was its finding that, once it modified a different rule, the voter ID law did not impose too substantial of a burden on qualified voters who do not otherwise have the necessary identification.

    The split decisions entail both breathtaking judicial activism and ignorance regarding the difference between the federal and state constitutions.

    First, the conservative-leaning majority found that the voter ID law imposed a severe burden on voters because it would cost money for voters to gather the underlying documentation they might need — such as a birth certificate — to obtain the "free" voter ID. But the majority then forges ahead to adopt a "saving construction" of a state administrative rule to conclude that the law does not, really, require voters to pay money to obtain the documentation. It rewrites the administrative rule so that the voter ID law does not become an unconstitutional poll tax.

    To justify this maneuver, the court cites a U.S. Supreme Court decision that states "where a saving construction is 'fairly possible,' the court will adopt it." But that U.S. Supreme Court case said no such thing; it instead noted that if a saving construction of the very statute at issue is possible, then the court should avoid the constitutional question and decide the case under that statutory ground.

    Here, by contrast, there was no "fairly possible" construction of the voter ID law. Instead, the court requires state administrators to invoke their "discretion" under a separate administrative regulation — one that was not at issue in the case — to give voter IDs to voters who must pay money to obtain the underlying documentation.

    Second, the court conflated the U.S. and Wisconsin constitutions to uphold the law. The plaintiffs challenged the law under the Wisconsin constitution provision that provides, "Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district." The plaintiff's argument, in essence, was that the burdens associated with obtaining the required voter ID took away the constitutionally granted right to vote for some citizens.

  • July 31, 2014

    by Ellery Weil

    Andrew Prokop at Vox reports on the House of Representatives’ plan to sue President Obama, and what that means in a larger historical context.

    Politico’s Josh Gerstein reports on Supreme Court Justice Ruth Bader Ginsburg’s interview with Katie Couric, where the 81-year-old justice revealed she does not intend to step down in the near future.

    At The Volokh Conspiracy, Dale Carpenter looks at the possible role that animus could play in potential same-sex marriage litigation before the Supreme Court.

    In a piece for Salon, Katie McDonough writes about strong new pushback on recent efforts to curtail reproductive rights, including a new measure introduced by Massachusetts Gov. Deval Patrick to work around the recent ban on abortion clinic buffer zones.

    Writing for The Atlantic, Connor Friedersdorf discusses the legality and ethics of the NSA suppressing former head Keith Alexander’s financial disclosures as he transitions into the private sector.

  • July 30, 2014
    Guest Post

    by Cameron F. Kerry. Kerry is the Sara R. & Andrew H. Tisch Distinguished Visiting Fellow at the Brookings Institution and a Visiting Scholar at the MIT Media Lab. He is the former General Counsel and Acting Secretary of the U.S. Department of Commerce.

    Yesterday, I moderated a panel on Microsoft’s federal court challenge to a warrant seeking email records that Microsoft stores at a data center in Ireland.  Microsoft is contending that the governing statute, the stored communications provisions of the Electronic Communications Privacy Act (ECPA), does not apply outside the territory of the United States.

    My take-away from the panel is that discussion of reforms to bring ECPA up-to-date with the way we use devices and cloud services in the 21st Century needs to take up the difficult questions presented by services and networks that flow freely across national borders.  As I put it during the discussion, “what does extraterritoriality mean in a virtual world?”

    The panel featured James Garland of Covington & Burling, who is arguing the case on behalf of Microsoft in the Federal District Court for the Southern District of New York this Thursday, along with other lawyers involved in the case.  The case has been the deserving subject of wide attention, including a stern letter from the European Commission’s Justice Commissioner and a July 27 New York Times editorial.  It involves a warrant issued last December for email records “owned, maintained, controlled or operated by Microsoft” for a particular email address.  Microsoft produced records located in the United States that did not involve the content of the emails, but objected to producing the emails themselves because they are stored in a data center in Dublin, Ireland.  They are there because the Dublin servers are closest to the country that the email customer identified in establishing the account, reducing latency in email transmission.  Microsoft only recently established overseas data centers and, so far as anyone knows, this is the first time any Internet service provider has challenged the extraterritorial application of authorities for law enforcement access to Internet communications.

    The issues center on the interpretation of Section 2703 (c)(A) of the Stored Communications Act in the decision by a federal magistrate in New York issued April 25.  In some respects, the issues are narrow:  for example, does the SCA contain language that overcomes the Supreme Court’s “presumption against extraterritorial application” of U.S. statutes; does the “warrant” required by the SCA to obtain most content of electronic communications incorporate requirements for a warrant under the Fourth Amendment?

  • July 30, 2014

    by Ellery Weil

    Brad Smith, General Counsel and Executive Vice President for Legal and Corporate Affairs at Microsoft, writes in a Wall Street Journal op-ed that Microsoft will argue in federal court that the federal government’s classification of emails which are stored on remote servers (i.e., the cloud) are not “business records,” but rather should be afforded the same privacy protections as letters in the U.S. Mail. At the 2013 ACS National Convention, Mr. Smith was presented with a Progressive Champion Award.

    In a piece for Bloomberg News, Laurel Calkins and Andrew Harris report on a 2-1 decision by the U.S. Court of Appeals for the Fifth Circuit affirming a trial court’s entry of a preliminary injunction against a Mississippi law that requires all doctors who work at an abortion provider to obtain hospital admitting privleges. If enforced, the law would shutter  Mississippi’s lone abortion clinic.

    Sarah Solon, writing for the ACLU, discusses the drop in crime since 1990 in relation to mass incarceration, concluding that mass incarceration does not actually make communities any safer.

    MSNBC’s Ned Resnikoff reports on a major decision by the general counsel for National Labor Relations Board, ruling that the McDonald’s corporation must share joint legal responsibility for the working conditions in its franchise locations.

    Emma Green, reporting for The Atlantic, explores the Satanic Temple’s attempt to use the Hobby Lobby decision to grant their members religious exemption from “informed consent” state abortion laws, which require doctors to distribute anti-abortion information before performing an abortion. The Satanists claim that their religion calls for medical decisions to be made without clouding the mind with “unscientific” claims. 

  • July 29, 2014

    by Ellery Weil

    The Burlington Free Press reports on the death of Cheryl Hanna, who was the Vice President for External Relations and Professor of Law at Vermont Law School professor. A noted legal analyst, Professor Hanna was also the faculty adviser to the ACS Student Chapter at Vermont Law School. ACS extends its condolences to her family and friends.

    The New York Times Editorial Board continues its series calling for an end to the government’s failed war on marijuana. In “The Injustice of Marijuana Arrests,” the board states what many legal scholars and others have noted for a long time – arrests for marijuana possession target black men and ruin too many of their lives. The newspaper’s editorial board states:

    The sheer volume of law enforcement resources devoted to marijuana is bad enough. What makes the situation far worse is racial disparity. Whites and blacks use marijuana at roughly the same rates; on average, however, blacks are 3.7 times more likely than whites to be arrested for possession, according to a comprehensive 2013 report by the ACLU.

    Emma Green of The Atlantic discusses the new same-sex marriage ruling in Virginia, and how it differs from other pro-marriage equality rulings in the past.

    Writing for The Constitutional Accountability Center, Doug Kendall praises the Senate’s “nuclear option” to prevent filibusters in federal judicial confirmation hearings, particularly in light of the recent Senate confirmation of Pamela Harris.

    In a piece for the ACLU, Alex Sinha discusses what Edward Snowden’s reports on government surveillance mean for the law, and the new measures lawyers must take to ensure attorney-client privilege remains unbroken.