Nel's New Day

June 30, 2015

Last Week at SCOTUS: More Forward Than Backward

Two landmark cases came down from the Supreme Court last week—keeping health care for low-income people and granting marriage equality. Other lesser noticed cases, however, have influences on people across the United States. In seven other decisions last week, SCOTUS took at least five steps forward with two steps back, a better result than most progressive people expect from the current court.

The two steps backward were pollution and the death penalty:

pollution from power plantsPower plants can continue releasing unlimited mercury, arsenic, and other pollutants, in a step toward invalidating the first U.S. regulations to limit toxic heavy metal pollution from coal and oil-fired plants. The 5-4 conservative ruling, written by Justice Antonin Scalia, accused the EPA of not  considering costs to the power industry before creating its regulation. The EPA actually estimated costs, but Scalia didn’t believe the agency’s calculations. Fortunately, the case was remanded to the D.C. Circuit for further consideration. If the lower court eliminates the regulations, pro-coal states have no arguments against EPA’s proposed regulations on carbon emissions, perhaps leaving the EPA free to regulate carbon dioxide. The EPA estimated that the new regulations would prevent 11,000 premature deaths each year as well as increasing the IQ for children who survived.

Executions are still permitted to use cruel and unusual punishment because the conservative court didn’t stop the use of a drug that fails to sufficiently sedate the subject. Glossip v. Gross goes farther, however, because it makes the death penalty impervious to many constitutional challenges. In oral arguments for the court, the opinion’s author, Justice Samuel Alito, sneered at death penalty opponents and accused the drug companies refusal to sell products to kill people, a “guerrilla war against the death penalty.”

A key declaration in the opinion is that the United States is required to have methods to execute inmates despite the fact that there is “some risk of pain is inherent in any method of execution.” Another part of the opinion is that lawyers must help decide the method of execution for their clients: a lawyer challenging one method of execution must name another, alternative method to be used instead.

Alito’s opinion brought fiery dissents, two of them read from the bench. Supported by Justice Ruth Bader Ginsburg, Justice Stephen Breyer protested the argument that the death penalty is constitution, writing, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.” Scalia went back to the bench to call Breyer’s opinion “gobbledygook.”

Justice Sonia Sotomayor was far more scorching when she wrote:

“Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment—the chemical equivalent of being burned alive. But under the Court’s new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake: because petitioners failed to prove the availability of sodium thiopental or pentobarbital, the State could execute them using whatever means it designated.”

By refusing to hear a case preventing mandatory documentation for citizenship in federal elections, the Supreme Court blocked this requirement. Kansas and Arizona wanted a change in registration requirements to include proof of citizenship for these elections, but the 10th Circuit Court ruled that states cannot require this documentation.

 

Another step forward came from the Supreme Court decision to leave women’s clinics in Texas open until the court has heard the appeal about the state law to prevent abortions outside hospitals and “mini-hospitals,” ambulatory surgical centers. Justice Anthony Kennedy joined the progressive justices in the 5-4 vote. Texas restrictions had already closed about half the state’s 41 clinics within the past four years, and the newest law shut down all but nine, concentrated in four urban, higher-income areas of the state.

Progressive voters in Arizona may also be rejoicing after a 5-4 Supreme Court vote ruled that a voter-approved independent redistricting commission in Arizona is constitutional. Complaints of legislative partisan gerrymandering of congressional districts led to the law that a legislative-chosen independent commission of two Republicans and two Democrats with a chair who is not a member of either party make this decision. Although the ballot measure for a constitutional amendment to approve the commission went into effect 15 years ago, Arizona Republicans had no problem with the redistricting process until Democrats started winning more seats in 2012.

The U.S. Constitution states that the “times, places, and manner” of federal elections “shall be prescribed in each state by the legislature thereof.” The minority argued that a ballot measure is not part of “the legislature” because it is determined by the people of the state although the court had earlier decided that “legislature” can refer to the process exercised by people through direct democracy. The losing lawyer, Paul Clement, failed to persuade the majority with his argument that those election laws didn’t take power away from the legislature but the creation of the Arizona Independent Redistricting Commission did.

In arguing for the majority, Justice Elena Kagan asked if all the voter ID laws created by ballot measures would then also be unconstitutional. Kennedy argued that a constitutional amendment had given power to the people by allowing them to select U.S. senators.

In his dissent, Chief Justice John Roberts wrote, “What chumps!” in reference to the Congressional members who passed the 17th Amendment in 2012 that was then ratified by 41 states. The ruling was only for Arizona, but it may have far-reaching effects outside that state. Twelve other states also have commissions to assist in the redistrict process. The ruling also empowers voters in other states to reduce partisan control of the U.S. House. Studies show nonpartisan or bipartisan commissions leads to “districts both more competitive and more likely to survive legal challenge.” According to Ginsburg, 21 states have created initiative or direct lawmaking power, and 18 states can adopt amendments to the state constitution.

Arizona redistricting will return to the Supreme Court in the coming year when justices will hear another case accusing the independent commission of using race and partisanship for the congressional boundaries.

The Supreme Court struck a blow against the prison industrial complex in Johnson v. United States with the ruling that part of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Passed in 1984, the law requires judges to sentence people to 15 years life if they have three prior convictions for “serious drug offense” or “violent felonies.” The law, however, had no concrete definition for a “violent felony.” A clause in the ACCA sends felons to prison for any crime that “presents a serious potential risk of physical injury to another.” It could be drunk driving, fleeing police, failing to report to a parole officer, or even attempted burglary. Johnson’s prison sentence was extended because of a prior conviction of possession of a sawed off shotgun. Writing the opinion for the 8-1 decision, Scalia wrote that the clause in the law lacking a definition violates due process. Alito likes the law, and the ACCA was very popular with lawmakers because many states are required to fill up beds in private prisons.

prisoners

This room in the California Institution for Men four years shows how overcrowded that prisons have become. Photo by Ann Johansson for The New York Times.

A huge victory for civil rights came from the 5-4 decision in Texas Dept. of Housing v. Inclusive Communities. Kennedy again joined the four progressive judges to rule that a lawsuit under fair housing law doesn’t need to prove that a developer or the government knowingly discriminated—only that the policy had a disparate impact which can frequently be shown with statistics.

The case came from Texas’ distribution of tax credits for low-income housing almost exclusively in racially segregated low-income areas, denying minorities few opportunities to move to integrated or wealthier areas. The opinion in this case also requires that decision-makers consider race to comply with the Fair Housing Act and design remedial orders to eliminate racial disparities through race-neutral means.

The typical 5-4 vote had one almost-silent justice writing the dissent. Clarence Thomas used an unfortunate example for his belief that “disparate-impact doctrine defies not only the statutory text, but reality itself.”

“Racial imbalances do not always disfavor minorities.… And in our own country, for roughly a quarter-century now, over 70 percent of National Basketball Association players have been black.”

Taxpayer funds for religious schools may be on the docket next year after Colorado’s supreme court ruled that conservative families in affluent neighborhoods can not use public funds to send their children to religious charter schools.  A big player in this area is the Koch Brothers, whose Americans for Prosperity PAC works to expand voucher programs and buy school board elections throughout the country. In just one Colorado county, AFP spent $350,000 to dismantle teachers’ unions and public schools. GOP presidential candidate Jeb Bush is also a big player in the school privatization program. Conservatives desperately need students in private religious schools to indoctrinate them.

January 9, 2012

Texas Goes to the Supreme Court

Filed under: Uncategorized — trp2011 @ 7:55 PM
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Texas is going to the Supreme Court next week. (Yes, that the same state with a governor who has finally learned the names of all three agencies he wants to erase if he becomes President of the United States.) The issue is redistricting following the 2010 U.S. census.

The Republicans in Texas want to redraw Congressional districts to eliminate minorities and Democrats; the rest of the state thinks that Hispanics and blacks should have voting rights, per the almost 40-year-old federal voting rights law that protects racial and ethnic minorities from voting discrimination. Because of their history of this discrimination, all or parts of 16 states, primarily in the South, must get approval from the Justice Department or a Washington court’s approval before changing the way they conduct their elections.

After the increase in the state’s population grew by more than 20 percent, 4.2 million people, with over half the increase being Hispanics, the state received 4 more Congressional seats, making the total 36. Only one new district developed by the Republican legislature was heavily Hispanic.

Because of the vitriolic debate, the case went to a federal court that came up with its own plan Voting rights expert Sidney Rosdeitcher at the Brennan Center for Justice at the New York University School of Law, said that the result “will affect the voting rights of millions of Latino and other minority voters.”

Discussion in the Supreme Court this afternoon failed to reach consensus: the “liberal” judges appeared more sympathetic to minority groups; conservatives moved toward the state ofTexasargument. No surprise there!

To confuse the matter, interim maps drawn by the Texas court would not be changed until another court in Washington, D.C. makes a decision. That case begins on January 17, roughly the same time that the Supreme Court hears the case. That means that two different courts on different judicial levels will hear the same case at the same time.

Fortunately, the U.S. Supreme Court will not address the constitutionality of the landmark federal voting rights law aimed at protecting minorities in states with a history of racial discrimination. (Unless, of course, it changes its mind and goes far beyond the Constitution and what it was asked to do as it did in Citizens United.)

With the uncertainty of district boundaries,Texas moved its primary from March 6 to April 3. The state needs a decision by the middle of February to keep the current date for the primary. Justice Ruth Bader Ginsburg said, however, that the court might not move that rapidly.

Texas caused the delay themselves by seeking pre-clearance from the federal court in Washington, D.C. instead of letting the Justice Department make the decision. They gambled that the court would be more sympathetic to their redistricting and lost. Then they decided to win without a trial by rejecting an early trial date.

Two months ago, the three-judge court of both Republican and Democrat appointees ruled unanimously that the state had not proved that its plan was not discriminatory and ordered a trial. The same court also accepted the interim electoral map from a different three-judge federal court in Texas which had rejected the state plan.

In its most recent step Texas moved on to the U.S. Supreme Court that blocked the plan from the federal court in Texas and agreed to review that same plan at the same time as the pre-clearance court in Washington considers the plan.

The Supreme Court faces a serious dilemma. They can’t default to the existing map because of the population growth, but the Republicans’ new map hasn’t been pre-cleared under the Voting Rights Act and probably illegally minimizes minority voting rights. Texas claims that another court’s interim plan is invalid because the court in Texas “substituted its judgment” for the Legislature’s without any finding of legal violations. Pam Karlan, Stanford law professor, has pointed out that the Supreme Court threw out one of the redrawn districts on the basis that it illegally minimized Latino voting power.

Karlan’s description of the case is classic: “Texas’ claim that this process has bogged down and, therefore, it should somehow be excused [from complying with the Voting Rights Act] is a little bit reminiscent of the claim of somebody who kills his parents and then throws himself on the mercy of the court because he’s an orphan.”

Just two years, after the U.S. Supreme Court turned elections over to corporations, it has another case that could drastically change elections in the United States, moving the power farther away from the people and handing it to the top 1 percent. This court doesn’t bother with constitutional issues: it just forges ahead to move the country further into the morass of the fundamentalist right. It’s possible that they’ll declare Texas an orphan after it has killed its parents.

December 20, 2011

Conservatives Fraudulently Disenfranchise Voters

The minute that the Republicans took over a majority of the states in this country, they laid the groundwork to keep a Democrat president from being elected through constrictive laws demanding photo IDS and gerrymandering the House districts. Other laws shorten early voting period, ban in-person early voting on Sundays, and prohibit boards of election from mailing absentee ballot requests to voters. Two other states have disenfranchised criminals who have paid their time and are now contributing members of society. All this is in the name of voter fraud. In 38 states.

These new restrictions fall most heavily on young, minority, and low-income voters as well as on voters with disabilities, sharply tilting the election results in the coming year. The states that have already cut back on voting rights will provide 171 electoral votes in 2011—63 percent of the 270 needed to win the presidency.

Not having photo IDs has already been a problem for voters. After Indiana passed its law in 2008, a group of retired nuns who had always voted were turned away from the primary election because they lacked proper photo identification.

Getting a photo ID will be either expensive and/or impossible for up to 5 million U.S. citizens who have voted in past elections. An example is the Wisconsin law that requires photo ID from anyone who goes to the polls to vote. Although the state ostensibly offers a “free” photo ID to its residents, a birth certificate is necessary in order to obtain it. Copies of birth certificates cost at least $20—if it’s available.

Ruthelle Frank, an 84-year-old Wisconsin woman who, because of a difficult home birth, doesn’t have an official birth certificate now must pay as much as $200 to get one simply to satisfy the “free” photo ID requirements. To get a birth certificate, she has to have a photo ID. In Tennessee, 96-year-old Dorothy Cooper was refused a voter ID because she didn’t have her marriage certificate.

Republicans virtuously claim voter fraud as the reason for demanding photo IDs. A friend pointed out that Indiana recently discovered this problem, but the case she referenced was someone possibly falsifying names in a petition to put Barack Obama on the ballot for the presidential candidate in 2008. It wasn’t voter fraud.

To support the suspicion of fraud, the Republican National Lawyers Association (RNLA) searched for all the cases of voter fraud that have been prosecuted over the last decade. They found 311 cases. That’s an average of 31 cases annually out of a vast number of people who voted—131 million in 2008, for example.

Examining the RNLA’s report showed a bit of “fraud” in the results. RNLA citations actually went back to 1997. It claimed fraud in 46 states but cited only 44 states. For two of those 44 states there were no examples since 2000. That lists only 42 states in the past decade, indicating no fraud in the other eight states. After the claim that Florida had at least 17 cases involving prosecutions for non-citizen voting in 2005, RNLA failed to follow up with the information that at least four of those cases were dismissed. And these are Republicans looking for fraud!

The Justice Department shows 86 proven cases over the past decade. That’s 8.6 a years, resulting in punitive laws from almost half the states in the country. In Wisconsin, seven of the approximately 3 million votes cast in 2004 were deemed invalid–all from felons who were unaware of their ineligibility. Comedian Stephen Colbert recently mocked the need for photo ID laws, noting that fraud occurs in “a jaw dropping 44 one-millionths of one percent” of votes.

Paul Schurick, an aide to former Maryland Republican Gov. Robert L. Ehrlich Jr., has been convicted of attempted voter suppression—which may come under the auspices of voter fraud. During the 2006 gubernatorial election, Schurick tried to use robocalls to suppress the black vote. Calls to 112,000 voters in Baltimore and Prince George’s County on Election Day before polls had closed in Baltimore and Prince George’s County told African American residents to “relax” because Gov. Martin O’Malley (D) had already won the race. Schurick became Ehrlich Jr.’s campaign manager in the 2010 race and had been his communications director for the four years that he was governor.

Wisconsin also has a record of one particular county clerk magically “discovering” ballots in her computer a few days after a less-than-conservative candidate loses. She is the only person with access to that computer.

The Constitution has only two requirements in the redistricting every ten years after the census to allocate House representatives: roughly equal populations and no discrimination against minority voters. Ohio is an example of how Republicans in the majority party are making sure that the state will send mostly Republicans to the House—and incidentally vote for a Republican president. State legislators drew up new maps that favor Republicans in 12 of Ohio’s congressional districts, strengthening the majority of likely Republican supporters in at least 17 house districts. The president of the state senate, Republican Thomas Niehaus, wrote in an e-mail, “I am still committed to ending up with a map that Speaker Boehner fully supports,” even though, as a spokesman said in November, Boehnner “has no official role in the redistricting process.”

Redistricting is expensive because it requires voter data and mapping consultants. It also requires lobbyists to influence state legislators, who are in charge of redistricting in most states, for people like the Koch brothers who want to own theUnited States. Mysterious groups influencing redistricting are cropping up in a number of states such as Minnesota. These groups don’t have to divulge their financing from far-right funders.

Ironically, voting is not a constitutional right; states can keep people from voting if they wish. The restrictions just cannot be by race, color, or previous condition of servitude (thanks to the Fourteenth Amendment); gender (thanks to the Twentieth Amendment); or by reason of failure to pay any poll tax or other tax (thanks to the Twenty-Fourth Amendment). These restrictions were removed in 1868 (Amendment 15); 1920 (Amendment 20); and 1964 (Amendment 24). For over 50 years, the Constitution was even able to require that voters be male, as specified in the Fourteenth Amendment.

So what the states are doing to remove voting rights from their citizens?

Michigan Gov. Rick Snyder got his state legislature to give him the right to appoint “emergency managers” for any municipality and void the right of the people there to elect their officials. Ostensibly to cure the fiscal problems of whatever place he takes over. The four “emergency managers” who he has already appointed to Michigan cities may be joined by Detroit. If he succeeds in doing this, half the African-American residents of Michigan will no longer be able to elect their city officials. They will have no say in what happens to the places where they live.

Everyday Republicans who aren’t elected officials are working hard to remove the rights of voters. In Wisconsin, where opponents of Gov. Scott Walker are trying to gather enough signatures to impeach him, supporters have been caught on video jumping out of trucks to threaten circulators, even defacing or ripping up petitions. One Milwaukee man admitted he had signed recall petitions approximately 80 times. Walker supporters also posted a website saying that people could quit signing the petitions because there are enough signatures. There aren’t.

Another way that states cut down on voter involvement is to send out postcards. People who don’t return them are then questioned at the polls about whether they are qualified to vote. Ohio and Michigan were taken to court over this practice during the past decade. Other lists to possibly disqualify voters were created from people whose homes were foreclosed.

Colorado Secretary of State Scott Gessler ordered Pueblo County Clerk Gilbert “Bo” Ortiz to not send ballots to soldiers out of state who are legally registered Pueblo County voters but who failed to cast ballots in 2010. No notification—just no ballot.

Other tactics are reflected by Mike Huckabee, former Republican presidential candidate, in his joke about making sure that Ohio’s anti-union law passes in the state’s most recently election. Encouraging supporters to call friends and ask if they’re voting for Issue 2, he joked, “If they say no, well, you just make sure that they don’t go vote. Let the air out of their tires on election day. Tell them the election has been moved to a different date,” he said. “That’s up to you how you creatively get the job done.”

Debating the laws in state legislatures demonstrates the rationale for the laws and the attitude that some legislators have toward some of their constituents. New Hampshire’s new Republican state House speaker, William O’Brien, described college students as “foolish.”  “Voting as a liberal. That’s what kids do,” he added. They lack “life experience,” and “they just vote their feelings.

Tennessee Rep. Debra Maggart, R-Hendersonville, wondered how “all these people” are able to buy beer and cigarettes without driver’s licenses. “Tell me how people are buying beer and cigarettes? They have to have an ID to do that, a photo ID to do that. I have a hard time believing that all these people don’t have an ID. … You have to have a photo ID to get public housing. You have to have a birth certificate to get public housing. … I think there’s more people with a photo ID than they want to admit.”

Some people are fighting back. Retired Tennessee teacher Lee Campbell and his wife spoke to Congress about their fight for a promised free photo ID under a Republican law demanding ID in order to vote. The DMV tried to charge Campbell $8 for his ID. They are only two, however, of a possible 5 million disenfranchised voters.

In a speech to student activists, Bill Clinton said, “One of the most pervasive political movements going on outside Washington today is the disciplined, passionate, determined effort of Republican governors and legislators to keep most of you from voting next time. Why is all of this going on? This is not rocket science. They are trying to make the 2012 electorate look more like the 2010 electorate than the 2008 electorate.”

Sens. Chuck Schumer (D-NY) and Ben Cardin (D-MD) have introduced a bill that would impose tough criminal and civil penalties on individuals who make and distribute campaign literature with false information intended to deceive voters and suppress turnout. Let’s see what the Republicans, so concerned about voter fraud, will have to say about this.

There was a time in American history when only white male property owners could vote. Let’s hope that we’re not returning to that era.

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