ACSBlog

  • August 1, 2014
    Guest Post

    by Estelle H. Rogers, Legislative Director, Project Vote

    Not long ago in these virtual “pages,” I opined that judges were beginning to “get it” -- to understand that the enticing but superficial reasonableness of requiring photo ID to vote is far from the whole story. Yesterday, we encountered several judges who don’t get it at all, and Wisconsin’s voters are the worse for it.

    League of Women Voters v. Walker and Milwaukee Branch of the NAACP v. Walker were split decisions in which majorities of the Wisconsin Supreme Court held the state’s strict photo ID law (”Act 23”) constitutional under the Wisconsin constitution, the same state constitution whose explicit right to vote provision led to contrary rulings by the trial courts in both cases.

    It is tempting at this point simply to quote extensively from the dissenters, among whom Shirley Abrahamson, the octogenarian Chief Justice of the court, stands out in her steadfast refusal to follow the majority’s tortured logic -- or rather, tortured conclusion.  It cannot really be called logic.

    In NAACP, for example, the court construed a state regulation – not even properly before it – that explicitly required certain documentary proof in order to receive the free ID.  Recognizing that obtaining those underlying documents may involve a fee, the court “saved” the regulation, and thus Act 23, by declaring that the need for underlying documents may be excused (though granting such an excuse rests in the discretion of state bureaucrats).  Therefore requiring photo ID does not constitute an undue burden.  Therefore it must be analyzed under a rational basis test.  Therefore as long as it is rationally related to a legitimate government interest, it is constitutional. 

    What is the legitimate government interest?  Prevention of fraud, of course.  Never mind that the one example of fraud advanced by the state in both cases was allegedly committed by a supporter of Governor Walker in his recall election, who has now been indicted on 13 felony counts of voter fraud for, inter alia, registering more than once, voting multiple times, voting where he didn’t live, and lying to election officials.  None of these offenses would have been prevented by the strict photo voter ID law at issue in the case, and indeed, all of them were discovered without such a law in effect.

  • August 1, 2014

    by Rebekah DeHaven

    August 1, 2014

    On Monday, the Senate voted 50-43 to confirm Pamela Harris to the U.S. Court of Appeals for the Fourth Circuit. Judge Harris was a founding member of ACS’s Board of Directors.

    The Senate Judiciary Committee held a hearing on four nominees the following day:

    Madeline Cox Arleo to the U.S. District Court for the District of New Jersey;

    Victor Allen Bolden to the U.S. District Court for the District of Connecticut;

    David J. Hale to the U.S. District Court for the Western District of Kentucky; and

    Gregory N. Stivers to the U.S. District Court for the Western District of Kentucky.

    On Wednesday, Senate Majority Leader Harry Reid (D-Nev.) filed cloture on the nomination of Jill Pryor to the U.S. Court of Appeals for the Eleventh Circuit; cloture was invoked the following day by a vote of 58-33. Pryor is the 100th Obama judicial nominee to require a cloture petition, which is a testament to the continued obstructionism in the Senate. Her confirmation vote will take place in September when the Senate returns from the August recess.

    Also on Thursday, President Obama announced two new judicial nominations: Allison Dale Burroughs to the U.S. District Court for the District of Massachusetts, and Amit Priyavadan Mehta to the U.S. District Court for the District of the District of Columbia.

    Of note, the vacancy crisis and its impact on the workload of judges was mentioned in an op-talk in The New York Times about wellbeing and long work hours.

    Our “Recently on JudicialNominations.org” posts will resume in September when the Senate returns to session following the August recess.

    There are now a total of 57 current vacancies and 24 future vacancies. There are 25 pending nominees. There are 19 judicial emergencies. Eight nominees remain pending on the Senate floor.

    For more information on judicial nominations, see the latest from “In the News” and “Recommended Readings” on JudicialNominations.org, a project of ACS.

     

  • August 1, 2014

    by Ellery Weil

    The New York Times Editorial Board discusses a recent decision by the National Labor Relations Board general counsel which found McDonald’s jointly responsible for the treatment of its workers at all of its franchises and argues that this should spur an increase in wages for fast food workers.

    Writing for SCOTUSblog, Lyle Denniston reports that challengers of the provision of the Affordable Care Act which provides subsides to those who obtain health insurance via the federal exchange are rushing their case to the Supreme Court, after two federal appellate courts delivered opposite rulings on the issue last month..

    At Politico, Laura W. Murphy compares attempts to reform the National Security Agency in the wake of revelations about the scope of its spying to successful efforts to limit the disparities in drug sentencing born from the War on Drugs.

    Benjamin Wittes writes at Lawfare about the CIA inspector general’s report regarding alleged hacking of Senate Select Committee on Intelligence (SSCI) staff files and records by the CIA.

  • 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.