As part of our efforts to protect the right to vote across the country, LDF’s Political Participation Group wrote a letter to the Alabama Secretary of State, Jim Bennett, urging him to allow thousands of people to continue to vote under Alabama’s new voter photo identification (photo ID) law.
In the letter, Ryan Haygood and Deuel Ross ask the state to permit voters without photo ID — including as many as an estimated 31,000 African Americans under the age of thirty — to cast a regular ballot in-person on Election Day. Under the new Alabama law, a person without photo ID is still allowed to vote if two poll workers can “positively” identify, i.e. vouch for, him or her.
Marilou Johanek column in the Toledo Blade.
Cincinnati Enquirer: “But even with the Democratic involvement, Smith decided the people who gathered signatures for the candidates could be viewed as Libertarians, as required by law. He instead focused on two petition circulators’ failure to indicate who was paying them. That’s required by law, even though they were contractors, Smith said.”
This now goes to federal district court, and Ballot Access News links to the motion for preliminary injunction.
The author of a report cited repeatedly to justify cracking down on potential voter fraud says the Harper government is misrepresenting his report and ignoring his recommendations.
Indeed, Harry Neufeld says there’s not a shred of evidence that there have been more than “a handful” of cases of deliberate voter fraud in either federal or provincial elections.
“I never said there was voter fraud,” Neufeld said in an interview with The Canadian Press.
“Nor did the Supreme Court, who looked at this extremely carefully.”
Looks like the voting wars are contagious, even crossing borders.
Henry Noyes has written a new casebook for Carolina Academic Press.
I’ve seen the table of contents and it looks like great coverage.
Arizona’s Politics reports.
During a Thursday sitdown with reporters, Reid said that Adegbile, a respected civil rights lawyer who previously led the NAACP Legal Defense and Educational Fund, met privately with Reid and Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) for nearly an hour before the vote. The three of them went through the pros and cons of proceeding with what would likely be a loss. In the end, Adegbile said he wouldn’t withdraw his name, even though Republicans and even some Democrats were ready to block him over the fact that he once helped get convicted murderer Mumia Abu-Jabal off death row.
“He said, ‘I’m 47 years old. … I’ve spent all my life trying to do the right thing,’” Reid said. “‘I didn’t step into a courtroom for this man. I didn’t write a word for the briefs for this man. … I’ve done nothing wrong. I think if I’m going to be voted down, it’s a good time to start a discussion on civil rights in America.’”
That’s the lead story in this week’s Electionline Weekly.
By all indications Sen.Ted Cruz is a brilliant lawyer. So I take his mischaracterizing of the Supreme Court’s Shelby County case as being disingenuous and not simply misguided. Sen. Cruz writes:
It is disturbing that new efforts are being made in the House and Senate to resurrect voting rules that were recently deemed unconstitutional by the Supreme Court. We should protect the civil rights of every American, and other sections of the Voting Rights Act already provide strong protections against racially discriminatory voting practices. The Supreme Court held that circumstances have changed dramatically in the last 50 years, and the old justifications for preclearance are no longer constitutionally applicable. We should respect the Supreme Court’s judgment.
But the Supreme Court’s judgment in Shelby County was not that preclearance is “no longer constitutionally applicable.” It was that the old preclearance regime was based on an outdated formula when it needs to be tied to “current conditions.” Indeed, Chief Justice Roberts writing for the Court majority invited Congress to come up with a new coverage formula:
We issue no holding on § 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” Presley, 502 U.S., at 500-501, 112 S.Ct. 820. Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.
Now there are reasons to believe that the majority’s suggestion of a new coverage formula was disingenuous. But let’s not pretend, as Sen. Cruz does, that the Court has foreclosed a new coverage formula.
Josh Douglas has posted this draft on SSRN (forthcoming Wash. U. Law Review). Here is the abstract:
Current Supreme Court doctrine defers too readily to states’ voting systems. In the process, the Court has removed Congress from the elections business. The Court has done so not explicitly but through two judicial maneuvers, one substantive and the other procedural, that place tremendous trust in states: lowering the bar for the state interest prong of the constitutional analysis, and forbidding facial challenges to state rules on election administration. The Court has credited any state assertion of “election integrity,” even if that is not the actual impetus for the law under review. It also will reject a facial challenge to a state voting rule, thereby leaving the law in place until a plaintiff has gathered actual evidence of the law’s impact on particular voters. The Court has not treated Congress the same, demonstrating its willingness to invalidate a federal voting rule on its face even when Congress has asserted a more detailed rationale for the law. This Article uncovers this approach to constitutional challenges to voting regulations. It also explains why this current jurisprudence is both wrong and dangerous. It is wrong because the U.S. Constitution gives the federal government significant scope to promulgate election regulations, and states are subordinate to Congress under our constitutional structure. It is dangerous because the current deferential approach emboldens states to pass partisan-based laws with an eye toward affecting elections, and all a state needs to say to justify a new law is that it is seeking to ensure “election integrity.” The Court should reverse this current jurisprudence by requiring states to provide a more detailed justification for an election law and by allowing broader use of facial challenges to invalidate state voting laws, when necessary, before they are implemented. Voting, as a fundamental right, deserves robust protection from the courts. Scrutinizing state election laws more closely will help to achieve this worthy goal.
Number of Pages in PDF File: 50
But it was the votes of seven Democratic senators to reject Mr. Adegbile that doomed the nomination despite what White House officials described as a sustained closed-door effort by Mr. Obama and his top aides to save it. The president personally appealed to Senate Democrats at a recent caucus meeting and made several calls to Democratic senators in the last week, officials said. Vice President Joseph R. Biden Jr. and Denis R. McDonough, the White House chief of staff, continued making calls Tuesday night and Wednesday morning.
White House officials said they believed until Wednesday morning that the nomination would succeed, a vote count that proved disastrously wrong. Top aides to Mr. Obama were “furious” at the Democratic senators who voted against Mr. Adegbile, one senior official said.
Senior congressional Democrats were incredulous about the White House’s surprise. Senator Harry Reid of Nevada, the majority leader, called Mr. McDonough at 10 p.m. Tuesday to inform him the votes were not there. He made the same call Wednesday morning, also informing the attorney general. The White House pressed forward anyway.
HuffPo reports. I have no doubt about that.
Report on Stetson conference.
Peter Overby reports for NPR.
The Adegbile defeat to be DOJ civil rights head shows you how scared Ds are of losing the Senate. And how powerful the Abu-Jamal cop-killer narrative might be against them.
See J. Christian Adams in the National Review.
I’ve turned in a completed first draft of this book, with the hopes that it will be out in time for fall classes. This book, part of Aspen’s great Examples & Explanations series, is a student-friendly treatise with questions and answers throughout the chapters testing the material. This book is designed to be a supplement in classes on Legislation, Statutory Interpretation, Election Law, Voting Rights, or Campaign Finance. It is compatible with all the casebooks in these fields (and the book will have a chart showing how the book corresponds to each casebook’s coverage).
The tentative table of contents is below the fold.
Wisdom from David Firestone ( NYT ed) on the OFA scandal.
Once considered the world’s best-known death row inmate, Abu-Jamal has written books from his prison cell, had his cause championed by prominent civil rights advocates including Cornel West and Desmond Tutu, and had a street in Paris named in his honor.
And now his case is threatening Debo P. Adegbile’s nomination to head the Justice Department’s Civil Rights Division.
Adegbile, a voting rights expert and former director of the NAACP’s Legal Defense Fund, was involved in a handful of the dozens of appeals and court briefs filed on behalf of Abu-Jamal. The nomination has been opposed by national law enforcement groups.
Under new Senate rules approved in November, Adegbile will need to secure a simple majority of senators — 51 votes — to clear a procedural hurdle before he is confirmed. But he is at risk of falling short of the votes needed because he cannot count on Democrats, especially those locked in vulnerable reelection bids, to support their president’s choice.
Ellen Katz has posted this draft on SSRN (forthcoming, A Nation of Widening Opportunities? The Civil Rights Act at Fifty, Samuel Bagenstos and Ellen Katz, eds., University of Michigan Press, 2014). Here is the abstract:
This Essay relies on an analogy pressed in the dissenting opinion in Shelby County v. Holder to describe an increasingly prominent conception of federal anti-discrimination law. It is a conception that sees the existing regime to be a source of unjust enrichment to its beneficiaries, one that does not simply make victims of undeniable discrimination whole, but instead places a host of interested parties, victims included, in a decidedly better position than they would have been had the discrimination never occurred. Notably, this conception of federal anti-discrimination law does not deny the persistence of discrimination, including discrimination that is unconstitutional or otherwise invidious. The more pressing worry, however, is that the regime today does more harm than the discrimination it presently addresses.
Regular blog readers know Smith as a former Republican FEC commissioner and campaign finance expert. But he’s also the author of Bradley A. Smith, Note, Judicial Protection of Ballot-Access Rights: Third Parties Need Not Apply, 28 Harvard Journal on Legislation 167 (1991).
Press release: “Yesterday, the Campaign Legal Center filed a brief in the U.S. Court of Appeals for the Fifth Circuit in defense of the State of Mississippi’s campaign finance disclosure laws. The brief urges the Court of Appeals to overturn a decision by the U.S. District Court for the Northern District of Mississippi, which ruled that the individuals who brought the case would not have to reveal their spending or their funders as they promote the passage or defeat of state constitutional amendment ballot measures.”
Chuck Todd for NBC News: “To sum up, OFA acknowledges that the executive director John Carson actually set up two meetings for a potential donor to discuss his own legal problems, one with an official from the White House and the other with an official with US AID. OFA says it is now revamping its fundraising policies, reaffirming and extending a ban on providing access to administration officials and prohibiting the diversion of questionable donations to other groups. And finally, in response to NBC’s Michael Isikoff’s reporting, OFA now acknowledges twice before it diverted money to so-called ‘dark money’ non-profits that don’t disclose donor names.”
More from NBC here.
This is why a sitting President should not have an organization like OFA.