Nel's New Day

September 3, 2019

Courts Still Help ‘We the People’

August may be a time for Congress and Dictator Donald Trump (DDT) to take a hiatus, but the courts keep chugging along. Here are a few highlights:

Voting:

Today, North Carolina’s state court ruled the GOP legislative gerrymandering unconstitutional and gave specific guidelines to the GOP state legislature in redrawing the lines within two weeks by September 18. Other gerrymandered states such as Wisconsin, Maryland, and Texas could follow the same directions.

Mississippi shows how bad gerrymandering can be. The 5th Circuit Court of Appeals upheld a district court ruling forcing the legislature to redraw the 102-mile-long state Senate District 22 spanning parts of six countries. The districting, done in 2012, diluted black voter strength to re-elect a Republican. Multiple voting machines in nine counties during last week’s Mississippi election switched votes and kept voters from their choices during a gubernatorial runoff race. The machines preferred Lt. Gov. Tate Reeves who won the runoff with 54 percent of the vote. At a Las Vegas convention, attendees as young as 11 were able to hack into voting machines, and at least ten states have made remote hacking easier by connecting computers to the internet. 

Paperless voting machines are another GOP way of controlling the vote, and a federal district court judge ordered Georgia to stop using paperless voting machines after 2019. For 2020, Georgia must either use paper ballots filled out with a pen and then fed into an optical scanner or voting machines that print a paper ballot record. Election officials must also fix errors in the state’s voter registration database and provide paper backups for the electronic poll books at each polling place, used to track whether a registered voter has cast a ballot or not when a voter shows up on Election Day. Employees of the firm that manufactured Georgia’s current paperless voting machines left them open to hacking by designing electronic ballots from their home offices rather than in a secure location. The ruling is the first to block use of paperless voting machines, also used in a dozen other states. Earlier this year, the state gave a $107 million contract for “ballot-marking devices,” machines that print a bar code and a text summary of individual votes. The bar code, which voters cannot read, is used for tallying votes, not the text summary. The lawsuit began when Brian Kemp, the Republican in charge of voting, was “elected” governor last year after evidence of security failings was destroyed. Like Kemp, his successor opposes paper ballots. 

The 7th Circuit Court supported a lower court in rejecting a 2017 Indiana law allowing election officials to cancel a voter’s registration without the voter’s confirmation. By using Interstate Crosscheck, faulty computer software checking a database of 24 states, the state got rid of Democratic registrations. The National Voter Registration Act requires that states cannot remove voters from rolls without a “reasonable effort.” The judge said that “the only way to know whether voters want to cancel their registration is to ask them.”

Ohio’s aggressive voter removal process has also been temporarily settled when the state agreed that all eligible voters removed through 2019 may cast provisional ballots in any local, state, special, or federal election through 2022 which are counted. Doing this will restore voters to the rolls. Ohio failed to provide proper notice to voters whose registration was in jeopardy and now must notify non-registered eligible voters of the settlement with the deadline for registering and tell boards of elections to use motor vehicle records to determine if voters still live where they registered. After the settlement, the Ohio Democratic Party sued to keep over 200,000 voters from being removed on September 6.

With Texas facing the possibility of turning purple, emails show that Gov. Greg Abbott (R) led the effort to purge thousands of voters from state election rolls although former Secretary of State David Whitley got the blame and resigned. A federal court stopped the purge of almost 100,000 people wrongfully identified as non-citizens. Texas tries to keep Texas voters white and GOP through restrictive voter ID laws, barriers to earlier voting, and difficulties in casting ballots, efforts overturned a half-dozen times in the past few years. Texas conservatives also hire people to sit outside driver license offices and register people after screening them with the question of whether they want “less government and less taxes” or “more government and more taxes.” Last year, Democrats flipped two congressional seats, and gained 12 in the Texas House and two in the Texas Senate.

Other:

In Maryland, a district court ruled that transgender military service members have legal standing to sue for their rights. DDT cannot block judicial review of his trans military ban.  

A U.S. district court judge in Michigan permitted a challenge to DDT’s Muslim Ban that bars immigration and travel from identified predominantly Muslim countries. The judge supported the claim of unconstitutional religious discrimination, writing that “the Plaintiffs present sufficient evidence that the Proclamation is unable to be explained by anything but animus towards Muslims.”

An Oklahoma judge ruled that drugmaker Johnson & Johnson helped fuel the opioid epidemic through its marketing of powerful painkillers and ordered the company to pay $572.1 million in damages. The decision is the first in approximately 2,000 state and local lawsuits against health care companies pushing opioids. Oklahoma stated that J&J was “at the root of the crisis” and created a “public nuisance.” Earlier this year, the state settled claims against Purdue for $270 million and Teva for $85 million. The wealthy Sacklers family, who made their fortune from Purdue Pharma’s oxycontin, may keep most of their money by selling the company to avoid a federal $10 billion to $12 billion settlement.

A federal judge temporarily blocked a Missouri law banning abortions after eight weeks with no exceptions for rape and incest. Courts blocked similar laws in Mississippi and Kentucky earlier this year. A federal judge also blocked Ohio’s so-called “heartbeat law” that would ban abortions as early as six weeks before women know that they are pregnant.   

Taylor Dumpson, the first black woman to serve as student government president at American University in Washington, D.C., was awarded $725,000 from a massive “troll storm” against her by Andrew Anglin, founder of neo-Nazi site the Daily Stormer, Andrew Anglin, and follower Brian Ade, who failed to appear in court. Anglin, who fled the U.S., has also been ordered to pay $14 million to Tanya Gersh, a Jewish Montana real estate agent who he harassed, and $4.1 million to Muslim comedian Dean Obeidallah after falsely accusing him of involvement in the May 2017 terrorist attack at an Ariana Grande concert in Manchester, England. Eight months ago, another defendant, Eugene (OR) actor and musician Evan McCarty, settled after an apology to Dumpson and publicly renouncing white supremacy, completing 200 hours of community service at a racial justice organization, and finishing “anti-hate” training.

A judge invalidated the Treasury Department’s permission to IRS to conceal the identity of donors who contributed over $5,000 to nonprofits during one year. The IRS violated the law by not having the required notice and comment period.

In Arizona, a state court of appeals ruled that people in the state have a constitutional right to online privacy from police who don’t have a warrant based on appearance of criminal activity because Internet users have a “reasonable expectation of privacy” for information about themselves furnished to internet providers based on the state constitution. The decision conflicts with federal court rulings that people give up privacy when they give information to third parties and are no longer protected against unreasonable search and seizure in the Fourth Amendment.

Despite federal attempts to open all public land to mining, drilling, and housing developments, a federal judge blocked construction of a huge open-pit copper mine in Arizona’s Coronado National Forest considered ancestral sacred burial sites for the Hopi, Tohono O’odham, and Pascua Yaqui tribes. Interior Secretary David Bernhardt, former lobbyist for the copper company, wanted to give his friends this land as well as another place near the border for a 70,000-person housing development destroying the San Pedro, one of the Southwest’s last free-flowing rivers. The current project, near Benson, is back on after the federal government issued permits. People are waiting to see if the government will close a uranium mine near the South Rim of the Grand Canyon contaminating groundwater with radioactive waste.

The 11th Circuit Court ruled that feeding the homeless is “expressive conduct protected by the First Amendment” and sent a lawsuit back to a lower court to see if a city ordinance violates those rights. In 2014, after Fort Lauderdale (FL) required a permit to share food in public parks, police arrested a 90-year-old man (left) and two ministers who gave food to homeless people. 

A federal judge dismissed a $250-million libel lawsuit against the Washington Post filed by Covington Catholic High School student Nicholas Sandmann after he received negative media attention from his behavior in Washington, DC while attending a pro-life march. The filing called the reporting false and defamatory; the judge called it constitutionally protected. Sandmann’s dad, Ted, plans to appeal.

After New York City police officer Daniel Pantaleo, whose chokehold killed the unarmed Eric Garner in 2014 while other police officers watched, was exonerated last summer, outrage built, and a police administrative judge found Pantaleo guilty of violating a department ban on chokeholds. The tragedy was resolved with Pantaleo was fired and stripped of his pension benefits. Garner had cried out “I can’t breathe” eleven times until he stopped breathing. Garner had been accused of selling untaxed cigarettes.

One recent decision is questionable and could throw the nation into chaos. The 10th Circuit Court has ruled that representatives for the Electoral College are not required to vote in accord with the popular vote of their states. The lawsuit came after seven of the electors went “rogue” in the 2016 election. If that decision were left to stand, 538 individual people would be the only ones to vote for the president of the United States. The ruling covers six Western states unless it is overturned by an en banc decision or the Supreme Court. 

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