April 2017

  • April 21, 2017
    Guest Post

    by Anna Bodi, Partner Legal Fellow, The Campaign Legal Center

    This week, members of the New Hampshire House Election Law Committee heard public testimony on a new bill that would impose new proof of residency requirements on voters attempting to register within 30 days of an election. New Hampshire is just one of the 29 states this year that have introduced a total of more than 85 bills restricting access to registration and voting.

    Recent actions by the current presidential administration have laid the groundwork for this flurry of voter restrictions. Since before he assumed office, President Trump has claimed, without evidence, that millions of illegal votes were cast in the 2016 election. After assuming office, Trump said he would call for a task force - led by Vice President Mike Pence - to investigate the issue of voter fraud.

    In reality, studies have proven that there is no evidence of widespread voter fraud, and both Republicans and Democrats have outwardly stated that it is not a problem in our democracy. Meanwhile, the Department of Justice’s (DOJ) recent withdrawal of its discriminatory intent claim in the Texas voter ID case is a signal to states that this DOJ will not vigorously enforce the Voting Rights Act.

    Though Trump’s voter fraud investigation has not materialized, more states have seized this moment to pass restrictive voting laws that supposedly target (nearly nonexistent) in-person voter fraud. Indeed, lawmakers are seizing on the mere “perception” of voter fraud—created by supporters of voter ID laws and amplified by the President’s recent statements—to justify voting restrictions. Thus, state legislators continue to introduce and push voting restrictions despite numerous rulings last year—in Texas, North Carolina, Wisconsin and North Dakota—striking down many such laws as discriminatory and unduly burdensome. Rather than refocusing their energies of electoral modernization measures—which could expand and improve our electoral system—legislators in many states have doubled down on voter restrictions, tweaking them slightly in hopes of judicial approval.

  • April 21, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. 

    by Ethan Frenchman, Appellate Attorney, Maryland Office of the Public Defender and Arpit Gupta, Professor of Finance, NYU Stern School of Business

    The evidence is in, and America’s money bail system is not worth the cost.

    America and the Philippines are the only two nations that employ a wealth-based pretrial detention system. In this system, criminal defendants are arrested and then assessed an amount of money. If the money is not paid or guaranteed by some other person, the accused remains in jail. The end result of this system is easily understood: rich defendants buy their freedom, and the poor sit behind bars.

    Richard Stanford, for example, is a poor defendant. A Vietnam veteran, Mr. Stanford had exactly 31 cents to his name when he was arrested for trespassing in Baltimore County, Maryland. But the judge set his bail at $2,600 and Mr. Stanford was consequently jailed for weeks because he could not buy his freedom for even 10 percent: $260.

    This wealth-based system has been called the “front door” of mass incarceration, and for good reason. With more than 400,000 people detained in America awaiting trial, the jails are overflowing with non-violent, presumptively innocent people like Mr. Stanford. This is no surprise in light of the fact that freedom costs money, and the majority of Americans, as the Federal Reserve announced, do not have $400 available for an emergency.

  • April 19, 2017
    Guest Post

    by Robert M. A. Johnson,  Former President of the National District Attorneys Association; Member, American Bar Association and Former Chair of the Criminal Justice Section.

    Under our adversarial system of justice, it is only fair that poor people accused of crimes have access to their own independent experts, just like people charged with crimes who can afford experts.

    But lawyers for James McWilliams had no access to an independent expert at the Alabama trial in which he was sentenced to death. An expert was indispensable because the lawyers received a complex psychological report and volumes of records within the two days before his sentencing hearing – some even arriving on the day of the hearing. Without consulting with a mental health expert, the lawyers could not possibly review and understand the report and records and present evidence regarding Mr. McWilliams’s mental impairments.

    This should not have happened because the Supreme Court decided – more than 30 years ago in Ake v. Oklahoma – that a poor capital defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of his defense.”

    On April 24, the Supreme Court will hold oral argument in Mr. McWilliams’s case, McWilliams v. Dunn, to determine whether an indigent capital defendant’s right to a mental health expert, upon a reasonable showing of need, encompasses the right to an independent expert who assists the defense, as opposed to an expert who is shared with the prosecution.

  • April 19, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post.

    by Fred Wertheimer, President, Democracy 21

    A battle over efforts to call a constitutional convention is currently taking place throughout the country. Occurring below the national radar screen, the fight has enormous consequences.

    Proponents are attempting to pass resolutions in 34 state legislatures that call for a constitutional convention to adopt a federal balanced budget constitutional amendment.

    Most experts agree, however, that once a constitutional convention is called, the actions of the convention could not be limited in advance to any particular issue and the delegates would be able to consider any other constitutional amendments they wish to adopt. (Amendments adopted by the convention would then go to the states for ratification.)

    As the late Supreme Court Chief Justice Warren Burger explained, “[T]here is no way to effectively limit or muzzle the actions of a constitutional convention. The convention could make its own rules and set its own agenda.”

    This means that calling a constitutional convention would open the door to a runaway convention in which all of the constitutional rights provided to the American people would be up for grabs. This includes constitutional protections for civil rights and liberties, freedom of speech and religion and voting and privacy rights, among others.

  • April 18, 2017
    Guest Post

    *This piece originally appeared on the Take Care blog.

    by Joshua Matz, Associate,  Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP

    There has just been a major development in the emolument clause litigation: CREW, which famously filed the first emoluments case on Trump’s first full day in office, has amended its complaint. In addition to bringing two new plaintiffs into the litigation—each with distinct and compelling theories of injury—CREW has produced a formidable and detailed list of Trump’s constitutional violations. 

    There is a lot to say about this development. For now, I will focus on a recent article with leaked information about how Trump’s lawyers might seek to defend him.

    Last week, the New York Times reported the DOJ will argue that “the court has no authority under the separation of powers doctrine to intervene; that power lies with Congress.” This suggests that Trump’s lawyers will rely on the so-called “political question doctrine,” which, in very limited circumstances, deprives federal courts of the power to decide constitutional questions.

    Such reliance would be grossly misplaced. Applying the political question doctrine here would require the court to rewrite and invert the plain text of the Foreign Emoluments Clause. It would be nothing short of absurd to deem the Foreign Emoluments Clause a “political question.” Indeed, as I will show in this post, that conclusion would require some heavy editing of the Clause:

    [N]o Any Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, may accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State, unless Congress is informed and thereafter denies consent.

    (I will not address the Domestic Emoluments Clause, for reasons that will soon become apparent.)