• November 10, 2016

    by Katie O'Connor

    Putting politics aside (which I acknowledge is not the easiest thing to do right now), most people felt some sense of relief on the morning of Nov. 9, 2016. We did not wake up to a nail-bitingly close election, to a plane full of lawyers flying to Florida or Ohio or Pennsylvania, to lawsuits being filed over rigging and fraud and voter suppression. We did not wake up to a nightmare scenario like that of Nov. 8, 2000. Broadly speaking, our election system functioned the way it is supposed to function and the results reflected the votes cast by the people.

    But that is only the top line of the story. Beneath the surface, myriad issues deserve our attention.

    This was the first election in over 50 years where voters were without the protections of Section 5 of the Voting Rights Act and that almost certainly took its toll. Section 5 required federal approval for proposed voting changes in states and local jurisdictions with a history of discriminatory voting practices. This put the onus on the states to justify restrictions on the right to vote and put time on the side of voters whose rights would be protected until the state had proven that new rules would not have a discriminatory effect. The Supreme Court’s 2013 Shelby County v. Holder decision, striking down Section 5, opened the door to onerous voting restrictions and many states wasted no time passing them. As a result, voters in North Carolina, Arizona, Texas, and many other states had to navigate new burdens during this election and many citizens were undoubtedly disenfranchised as a result. In the coming months, we must determine how these laws ultimately affected the right to vote and whether the Voting Rights Act needs to be strengthened to prevent it from happening again.

    This was the second election in sixteen years that resulted in a split between the winner of the national popular vote and the winner of the Electoral College vote. As previous candidates in this scenario have done, the candidates this year knew the rules of the game and accepted that the Electoral College ultimately decides the election. Nevertheless, this result should induce us to revisit the fairness and utility of the Electoral College. There are valid arguments on both sides of the debate, but they all deserve a fair hearing.

  • November 10, 2016
    Guest Post

    by Karla Gilbride, Cartwright-Baron Staff Attorney at Public Justice

    In the aftermath of Tuesday’s surprising election results, several key themes seem to be emerging: a large segment of the population is frustrated with the status quo and is demanding change and people from across the political spectrum are concerned about the divisiveness of the campaign and are looking for ways to come together. In the spirit of moving forward on a bipartisan basis, I suggest that the time is right for Congress to take action to curtail forced arbitration provisions.

    Forced arbitration provisions are those “agreements” that we all make when we purchase products or download software or apps, usually found in the small print on product packaging or in the Terms of Service we accept during the download process. These provisions deprive consumers of the right to sue a corporation in court if a dispute later arises about the product or service and they usually also ban consumers from joining together with similarly affected people to bring class actions.

    The vast majority of consumers across the political spectrum find these provisions unfair. In a 2015 study, the Pew Charitable Trust found that 95 percent of consumers surveyed wanted to be able to pursue a dispute against their bank in court and nearly 90 percent of consumers (including 93 percent of Republicans) wanted the right to participate in a class action.

    And based on what they have had to say in their recent opinions, some federal judges find forced arbitration unfair too. But just like the consumers who accept these ripoff clauses as a condition of obtaining basic goods and services, the judges do not feel they have any choice but to enforce them—that is, until Congress steps in and changes the law.

  • November 8, 2016
    Guest Post

    by Nicholas Muellerleile

    It has been a year of distraction and scandal, to the point where the abstract strangeness of it all no longer registers. The extended vacancy on the Supreme Court would be the biggest political embarrassment of the year, if this were even close to being a normal year. Now, months later, we sit with a Scalia-shaped hole both on the bench of the nation's highest court and in our hearts, with seemingly no end in sight. How did things end up like this? What, if anything, can be done about it? Minnesota Sen. Amy Klobuchar and former Vice President Walter Mondale addressed these issues in a recent forum held at the University of Minnesota Law School, organized jointly the American Constitution Society’s Minneapolis-St. Paul Lawyer Chapter and Student Chapter at the University of Minnesota Law School, along with the University of Minnesota Law Democrats.

    One theme running throughout the forum was the notion that recently, in Congress, something has changed. Rote tasks, ministerial appointments and other basic functions of government have become political acts. Sen. Klobuchar told the audience of the struggles to pass the budget in late 2012. The end result was that she spent New Year's Eve between Sens. Reid and McConnell. “No Girl wants to do that”, she told the audience. Former Vice President Mondale called much of the current partisanship “childish” and spoke of his experience in the Senate. Qualified nominees for the court were passed with near unanimity. Even the appointment of William Rhenquist was, by comparison with today, an example of democracy in action, clearing the 66-vote threshold required.

    The voting threshold was one area where the speakers had different views. The supermajority requirement has been relaxed to 60 votes to confirm a Supreme Court Justice and there seemed to be some flexibility as to whether even that threshold should be lowered. Both Sen. Klobuchar and Former Vice President Mondale agreed that there was something special about the Supreme Court, something that required more than just the simple majority required for other appointments. Both speakers also seemed willing to admit that in light of the present deadlock, even 60 votes might be too high. But then what? 55? 53? Sen. Klobuchar stated that she would not be opposed to having the Supreme Court appointment be made a simple majority vote, “in the event it becomes a Constitutional crisis.” When pressed about this during the Q & A session, Sen. Klobuchar made clear that the issue was about political gridlock, not about trying to enforce different rules depending who would win the election. “You have got to live by the rules you set up,” Vice President Mondale added.

    Even in a forum discussing the Supreme Court vacancy, the presidential election loomed large. Both the speakers and the audience recognized that the stakes were high and there were murmurs of tense acknowledgement when Sen. Klobuchar commented that “this really is about our democracy.” In spite of all the rhetoric from some lawmakers, Sen. Klobuchar felt that there might be a chance of Garland getting appointed during the Obama lame duck session. Then again, maybe he will not be. After all, stranger things have happened this year.

  • November 4, 2016

    by Rob Smith and Bidish Sarma of the Fair Punishment Project 

    There is no denying that the tide of public opinion is turning against the death penalty, but let’s not learn the wrong lessons from this shift in societal support.

    In 1992, Bill Clinton left the presidential campaign trail to return to Arkansas so that he could oversee the execution of an intellectually disabled Black man. A quarter century later, ending the death penalty is part of the Democratic Party Platform. The National Hispanic Caucus of State Legislators also called for the end of the death penalty this year. The Pope recently stood in front of Congress and called for death penalty abolition. The National Evangelical Association, a group that called for re-instatement of the death penalty in 1972 as a matter of “Christian ethics,” changed its position this year to acknowledge the legitimacy of a “a growing number of evangelicals [who] now call for government entities to shift their resources away from pursuing the death penalty” due to “the fallibility of human systems, documented wrongful convictions, and our desire that God’s grace, Christian hope, and life in Christ be advanced[.]” And, in 2009, the American Law Institute, the prominent group of judges, lawyers, and law professors that crafted the model capital punishment statute in the 1970s, removed the capital punishment statute from its model penal code.

    These anecdotes provide insight into a broader trend: It is no longer political suicide to oppose capital punishment. In fact, many politicians are making competitive runs and being elected on clear anti-death penalty platforms. Seven states have formally abandoned the death penalty over the past eight years (and, in Delaware, the state supreme court invalidated the death penalty statute and the legislature has not passed--and is not expected to pass--a new statute). The governors of four additional states—Colorado, Oregon, Pennsylvania and Washington—have declared moratoriums on executions in their respective states. In Colorado, Governor John Hickenlooper’s opponent released a Willie Horton style advertisement that featured a murder victim’s father calling Hickenlooper a coward. Not only was Hickenlooper re-elected, a statewide poll found that only three percent of voters said that the death penalty mattered most in deciding how to vote for governor. It is likely the governors of Washington and Oregon will also retain their seats next week.

    Perhaps most strikingly, incumbent prosecutors from Caddo Parish, Louisiana, to Duval County, Florida, have lost electoral races in part because they used capital punishment too much. Even the County Attorney race in Maricopa County, Arizona—a location that has produced more death sentences than almost any other county in the country in the past 10 years—has the incumbent and his main opponent arguing over who would more aggressively reduce the number of capital prosecutions. In Riverside County, California, a place that sentenced four times as many people to death last year as the entire state of Texas, the incumbent has responded to negative coverage by ensuring that he is working to reduce the number of capital cases that his office pursues.

  • November 4, 2016

    by David Lyle

    Money doesn’t grow on trees, but Georgia state court judge William Bass found the next best thing. Over a period of seven years, the judge imposed fines that had no basis in law on misdemeanor defendants in his court in rural Grady County. These illegal fines, the bulk of which were taken from indigent defendants, amounted to nearly $300,000 in a single 12-month period. The scheme continued until the independent watchdog agency that oversees Georgia’s judges, the Judicial Qualifications Commission (“JQC”), uprooted Grady County’s money tree by exposing the judge’s conduct. Georgia’s JQC has ended abuses by dozens of rogue judges in recent years, which makes it all the more surprising that politicians in the Legislature have proposed an amendment to the state’s constitution that would abolish the JQC. The measure, Amendment 3, will be on the ballot when voters go to the polls on Tuesday.

    For over 40 years, the JQC has served as a watchdog protecting the public from judges who abuse the tremendous power given to them in our system of justice. Although the overwhelming majority of Georgia’s judges do their best to follow the law and serve the public by providing impartial justice, as in any large institution, there are some who fail to do so. Over the years, the JQC has built a lengthy record of holding accountable judges who engaged in outrageous conduct, including racism, sexism, sexual assault and other criminal activity. In most cases, these judges were removed from office or chose to resign, leaving the state with a fairer and more effective judiciary.

    Some of the abuses uncovered by the JQC are shocking. Two different judges had drugs planted on defendants who refused their sexual advances. Another jailed defendants indefinitely without access to lawyers and otherwise behaved so outrageously that her actions became the subject of an episode of This American Life. Another recommended to defendants that they use the services of a bail bond company owned by her father, and was subsequently indicted for perjury after denying she did so before a federal grand jury.