• 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
    The White House Vice Presidency
    The Path to Significance, Mondale to Biden
    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.

  • April 12, 2016

    by Jim Thompson

    Republican senators are now actively defending the misguided notion that the Supreme Court can operate properly and effectively with only eight justices, writes Amber Phillips in The Washington Post.

    On “Equal Pay Day,” Laura Bates at Time criticizes the stark pay gap between men and women, citing a 2015 study from the Institute for Women’s Policy Research that predicts women will not receive equal pay until 2059 under current conditions.

    Tennessee lawmakers on Monday passed a bill that would allow therapists and counselors to reject LGBT patients “they feel would violate ‘sincerely held principles,’” reports Marina Fang at Huffington Post.

  • April 11, 2016
    Guest Post

    by Emmet J. Bondurant and Kathay Feng

    Emmet J. Bondurant authored the Common Cause amicus brief with Jeremy D. Farris in Evenwel v. Abbott and argued the landmark redistricting case Wesberry v. Sanders before the U.S. Supreme Court in 1963. In Wesberry, the Supreme Court definitively established that the Constitution requires congressional districts be drawn counting all people.

    Kathay Feng is Common Cause’s National Redistricting Director and heads up their California operations, where she successfully championed the state’s adoption of a Citizens Redistricting Commission to draw state and congressional districts through a transparent and inclusive process.

    Last Monday morning, the entire community of voting rights advocates breathed a sigh of relief. The U.S. Supreme Court issued an 8-0 decision in Evenwel v. Abbott, written by Justice Ruth Bader Ginsberg, upholding the standard state practice of counting all people for purposes of conducting state redistricting.

    A little primer first: At the start of each decade, the Census Bureau conducts a count of every American – where they live, how many people are in a household, and basic demographic information about them. This Census data is crucial for a number of things that happen right after: We allocate the number of representatives to the Congress from each state using these numbers, we redraw the congressional districts based on this total count, AND states use these numbers to redraw the lines for the state legislative districts. The goal has always been to make sure the districts have equal numbers of people in them so the people elected to represent the districts are serving the same number of people.

    In Evenwel, two plaintiffs from Texas asked the Supreme Court to reinterpret fundamental principles of our democracy by drawing lines based on voters only, and making invisible millions of our family, friends, and neighbors who are not voters. The Court rejected this approach, unanimously holding that states may use census data counting total population to draw districts. Common Cause’s amicus brief laid out why the Supreme Court had to reject Evenwel’s argument:

    “It would [] create an indefensible situation in which states would be required by Article I, Section 2 to use total population as the basis for the redistricting of congressional districts, but be prohibited by the Equal Protection Clause from using the same standard when redistricting state legislative districts. Finally, it would break the structural link between the right of every person to equal protection under the laws enacted by the state legislature and the right of every person subject to those laws to equal representation in the houses of that legislature.”

  • April 11, 2016
    Guest Post

    by Brian Simmonds Marshall, Policy Counsel, Americans for Financial Reform

    The Dodd-Frank Act created the Consumer Financial Protection Bureau (CFPB) to invigorate consumer financial protection by consolidating responsibility for those laws’ interpretation and enforcement in a single agency. Even before the CFPB opened its doors, industry forces set out to weaken it through bills that would change its single-director structure, among other means.

    They lost that fight in Congress – repeatedly. But now the CFPB’s opponents have been given a glimmer of hope by the three-judge panel deciding a mortgage firm’s appeal of a CFPB enforcement order. If those judges follow Supreme Court precedent, however, that hope will be short-lived and the challenge to the CFPB’s structure will fail, just as it has in two prior federal district court cases.

    The latest case involves a company, PHH, which has been ordered to pay $109 million in restitution for illegal kickbacks to mortgage insurers that caused PHH’s customers to pay extra. After a full hearing before an Administrative Law Judge and then the CFPB’s Director, PHH appealed the CFPB’s decision to the U.S. Court of Appeals for the D.C. Circuit. Among a slew of arguments raised by the company, the court expressed particular interest in one. The three-judge panel, which will hear oral arguments on April 12, has asked the parties to focus on the constitutionality of statutory limits on the president’s authority to remove the sole head of an agency like the CFPB.

    By statute, the president may remove the CFPB Director only for “inefficiency, neglect of duty, or malfeasance in office.” 12 U.S.C. § 549(c)(3). PHH argues that the Constitution requires an agency headed by a single officer to be removable by the president without cause. Fortunately, Supreme Court precedents defining the scope of the removal power foreclose that argument.

    The central flaw of PHH’s argument is that the Constitution is silent about whether an agency should be headed by a committee or a single officer. In fact, prior litigants have argued that multi-member heads of agencies are constitutionally suspect. The Supreme Court rejected that argument in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), embracing the view that agencies with a single head or a multi-member commission are constitutionally equivalent.