From the Dispatch

Georgia's Draconian Voter Verification System Passes Federal Muster

Cristina Francisco-McGuire — Thu, 26 Aug 2010 12:09:25 -0400

Two years of courtroom battles ended on Monday as Georgia received a green light from the US Department of Justice (DOJ) to go ahead with its controversial voter verification system, a major step backward for the state. "It came as something of a shock," said Laughlin McDonald, the voting rights project director for the American Civil Liberties Union, which joined a lawsuit against the voter ID system.

DOJ itself has blocked the program in the past, calling it “a flawed system” that subjects a disproportionate number of minority voters to “additional and, more importantly, erroneous burdens on the right to register to vote.” However, DOJ backpedaled once Georgia revised the system last week to only include first-time voter registration applicants; initially, first time voters as well as voters making technical changes to their driver’s licenses were affected by the program.

A Burdensome ID System: Georgia’s voter verification system checks voter registration information against drivers' license and Social Security databases – databases that are, according to voting rights groups, error-ridden. Voter registration procedures further require birth certificates and other documents as proof of citizenship, which many people, especially students, minorities, and the elderly, cannot readily access.

The flawed procedures were brought to light before the 2008 presidential election, when thousands of US citizens were erroneously flagged as non-citizens. After a coalition of voting rights groups sued the state on behalf of Jose Morales, a naturalized Latino citizen incorrectly purged from the voter rolls, the voter verification system was blocked until a Section 5 review could be completed. Under Section 5 of the Voting Rights Act of 1965, Georgia and other states with a history of discrimination are required to submit any changes in voting procedures to the DOJ or the US District Court in Washington DC for pre-clearance prior to implementation.

Fear of a Rightwing Supreme Court: The scope of Georgia’s now approved system is actually much broader than a proposed version that was rejected by DOJ in 2009, which would have only applied voter verification to first-time applicants who registered by mail and did not provide proper identification. Though DOJ has not issued a formal statement explaining its actions, Laughlin McDonald of the ACLU speculated that DOJ pre-cleared the program because Georgia's lawsuit specified that if the court found its system constitutional under the Voting Rights Act, then it should also rule all of Section 5 unconstitutional – people “were concerned what this [Supreme Court] would do if it was given an opportunity to rehear a case like this."

Resources

Atlanta Journal-Constitution - Justice Department approves Georgia voter verification system
ACLU - ACLU Intervenes in Georgia Voting Rights Act Challenge
Morales v. Handel - Letter from Civil Rights Division Acting Assistant Attorney General to Georgia Attorney General
Georgia v. Holder
NAACP Legal Defense Fund - Case: Georgia v. Holder
US Department of Justice - About Section 5 of the Voting Rights Act
Progressive States Network - Indiana Supreme Court Upholds Restrictive Voter ID Law
Progressive States Network - The New Voter Suppression and the Progressive Response

Connecticut Defends Clean Elections Financing Program

Cristina Francisco-McGuire — Thu, 19 Aug 2010 13:48:23 -0400

Overriding a veto by their Governor, the Connecticut Legislature has strengthened its Citizens' Election system of public financing of elections that was first instituted in 2005. The Senate voted on August 5th to override Governor Rell's veto of the bill, SB 551, and the House followed suit last Friday by a 106-30 vote.

The vote comes in response to a Second Circuit decision issued in July. In Green Party of Connecticut v. Garfield, the court upheld the major provisions of Connecticut's Citizens' Election Program with one exception: the "trigger provisions," which allow additional public funds to be disbursed when nonparticipating candidates spend in excess of a certain threshold (also known as "fight back" funds), were ruled unconstitutional on the dubious argument that matching the spending of wealthy candidates somehow violates their rights to spend excessively.

The new Connecticut law gets around the court decision by doubling the amount of the initial grant for participating candidates to $6 million. Under the old law, participating candidates only received $3 million initially, but could have qualified for an additional $3 million in "fight back" funds if they were widely outspent by an opponent. A final $3 million, for a total of $9 million, would have been available if they were the subject of attack ads by special interests.

Connecticut's Citizens' Election program is funded through unclaimed property assets, such as real estate and life insurance policies.

All-Mail Voting Is One Winner of Colorado's Primary

Cristina Francisco-McGuire — Thu, 12 Aug 2010 15:29:31 -0400

As pundits attempt to digest what Colorado's primary on Tuesday night means for incumbents and insurgents alike, there is one thing everyone can agree on: voting by mail saved counties much-needed money while boosting turnout.

Of Colorado's 64 counties, 46 conducted their primaries entirely by mail. Not only did the number of votes cast this year surpass 2008's turnout by more than 100,000, counties have also been able to cut costs dramatically under the new system. According to Jack Arrowsmith, Douglas County Clerk and Recorder, the county anticipated saving taxpayers roughly $200,000, about half the cost of their usual elections. It's no wonder – the cost-per-voter in Douglas County for a mail ballot-only election is about $6 per voter, while the cost-per-voter at a polling place election is about $43 per voter using 2008 election costs. El Paso County experienced similar savings, managing to keep nearly $180,000 in their coffers. Generally, counties can save up to two-thirds of their traditional election-related costs by converting to all-mail elections.

Like Colorado, Hawaii also experienced increased voter turnout and lower costs during their recent all-mail special election in May.

Oregon has been conducting all of their elections entirely by mail since 1999, while 38 of 39 counties in Washington have already implemented all-mail voting.

New York: One Signature Away from Ending Prison-Based Gerrymandering

Cristina Francisco-McGuire — Thu, 12 Aug 2010 15:24:33 -0400

Legislation to end the practice of prison-based gerrymandering in New York, included within the 2011 state budget, passed both the Senate and Assembly last week. Once Gov. Patterson approves the budget package, the bill will go into effect in time for next year's redistricting efforts.

Seven of the current State Senate districts only meet minimum population requirements because of the prisoners they claim as residents, and 40% of an Oneida County legislative district is incarcerated – residents of those districts enjoy an unfair shift in representation as a result of their padded legislative districts. However, the bill will correct this distortion by accessing the home addresses of prisoners from the Department of Corrections' database and adding them to the population counts for the appropriate areas. Thirteen rural New York counties already have a similar adjustment policy in place.

As the Prison Policy Initiative details, two million prisoners nationwide are being counted in the wrong place, significantly distorting both political representation and planning decisions made based on demographic data. Ironically, this means that "communities that bear the most direct costs of crime are therefore the communities that are the biggest victims of prison-based gerrymandering."

New York is now the third state, after Maryland and Delaware, to take action to address this problem and pass legislation that counts incarcerated persons in their home districts.

Anti-immigrant Proposals Continue to Fail in Wake of Arizona’s Law

Suman Raghunathan — Mon, 26 Jul 2010 12:05:36 -0400

In the wake of the April 2010 passage of Arizona’s draconian and misguided anti-immigrant state law, SB 1070, which would give local governments responsibility to enforce federal immigration law, media coverage has focused on the many states, elected officials, and candidates who have voiced their support for similar anti-immigrant legislation. Despite the disturbing situation in Arizona, however, what is increasingly becoming clear is that anti-immigrant policies and initiatives are failing across the country in the wake of SB 1070’s passage, underlining Arizona’s anti-immigrant approach as an outlier.

As this Dispatch will detail, after considerable media hype about Arizona-style bills sweeping across the nation, the reality is that from from Nevada to Arkansas to Massachusetts to Kansas and Rhode Island, anti-immigrant bills and ballot initiatives largely didn't move or failed to make this fall's ballot. A key reason: most state leaders and police chiefs recognize that requiring local governments to assume immigration enforcement responsibilities from the federal government will distract them from fighting violent crime and undermine trust with local residents that are essential to successful community policing.

Table of Contents:

- A Trend of Failed Anti-Immigrant Proposals

- Anti-Immigrant Laws Increase Crime and Hamper Community Policing Efforts

- Lawsuits Against AZ SB 1070 Seek to Maintain Clear Federal Responsibility for Immigration Law

A Trend of Failed Anti-Immigrant Proposals

In the wake of AZ SB 1070’s passage in late April, a far right network of groups and legislators announced plans to move bills in state around the country. But the list of states rejecting those bills continues to grow and efforts to get anti-immigrant proposals on the ballot continue to fail.

Ballot Initiatives Fail in Nevada and Arkansas: The latest state to join this list is Nevada, where Assemblyman Chad Christensen’s effort to gather signatures for an anti-immigrant ballot initiative similar to Arizona’s recently faltered in the face of a lawsuit. Christensen’s effort was challenged by the Nevada Open For Business Coalition, a group that includes State Assemblymen Mo Denis and Ruben Kihuen as well as the Nevada Resort Association, the Las Vegas Convention and Visitors Authority, the Las Vegas Latin Chamber of Commerce, and the NAACP. The coalition is also working with the Las Vegas Chapter of the American Civil Liberties Union. The delay caused by the Coalition's multiple legal challenges caused Christensen, who recently lost a June 8 US Senate Primary, to drop his petition rather than attempt to get his broad anti-immigrant proposal on the ballot.

In Arkansas, the anti-immigrant group Secure Arkansas also failed to get its anti-immigrant proposal (which simply re-iterated existing federal law by seeking to bar undocumented immigrants over the age of 14 from receiving public assistance) on the November 2010 ballot. Secretary of State Charlie Daniels rejected the group’s petition after finding they were nearly 10,000 signatures below the minimum required to appear on the ballot.

Anti-Immigrant Legislation Defeated or Blocked in Multiple States: In both Massachusetts and Rhode Island, state leadership refused to allow anti-immigrant legislation to gain traction. In Massachusetts, twenty-seven pages of anti-immigrant budget amendments that resembled Arizona's SB1070 was shot down and ultimately approved as a final bill which simply restated existing federal bars on undocumented immigrants accessing public benefits, and included no new anti-immigrant provisions.

Rhode Island’s anti-immigrant bill, introduced by conservative Democrat State Representative Peter Palumbo, did not even receive a public hearing earlier this summer: the bill was ‘killed’ by House Speaker Gordon Fox, who voiced his opposition to the bill and reiterated that enforcing immigration laws remains the responsibility of the federal government.

And in Kansas, when a conservative legislator sought to attach an Arizona-style anti-immigrant amendment to the state budget, Kansas Representative Delia Garcia challenged its late introduction on procedural grounds and the Republican chair of the chamber's Rules Committee ruled the amendment out of order.

Most High-Immigration States Have Taken a Positive Approach to Integrate New Immigrants: As PSN detailed in a 2008 report, only 11% of undocumented immigrants live in states that have enacted comprehensive punitive anti-immigrant policies. Far more states promote positive integration policies and believe leaving immigration enforcement policy to the federal government is the best approach.

Resources
Colorlines - The Far-Right Movement Behind Arizona Copycat Bill
Progressive States Network - The Anti-Immigrant Movement that Failed: Positive Integration Policies by States Still Far Outweigh Punitive Policies
Progressive States Network - State Immigration Policy to Promote National Change

Anti-Immigrant Laws Increase Crime and Hamper Community Policing Efforts

One reason many leaders are rejecting Arizona-style anti-immigrant policies is the clear evidence that they undermine public safety. Police chiefs nationwide, including the chiefs of Los Angeles, Houston, Philadelphia, New York, Phoenix, and Tucson, have consistently underlined their opposition to local enforcement of federal immigration law, citing the dramatic and negative impact these approaches have on community members’ willingness to cooperate with the police -- and predicted they will increase crime. Law enforcement leaders such as Salt Lake City Chief of Police Chris Burbank have voiced concerns that burdening them with enforcing federal immigration law will actually make communities less safe: witnesses will be less likely to assist police investigations for fear of disclosing their immigration status; women will fear reporting instances of domestic violence, and crimes will go unreported, affecting all residents' safety.

Recent evidence highlights this problem with anti-immigrant legislation.

More Immigrants Means Less Crime, Not More: Overall, states with high immigration levels have actually seen their crime levels decrease; updated FBI and law enforcement data debunk any connection between higher levels of immigration resulting in more crime. The Federal Bureau of Justice Statistics reports that violent crime declined by 35% from 1994 to 2001 -- a period when the nation saw its undocumented population double. This precipitous drop in crime is part of a national trend, one echoed along the U.S.-Mexico border and in immigrant-heavy cities such as San Diego, El Paso, New York, Los Angeles, Chicago, and Miami. In fact, even conservative groups found states with the steepest growth among their immigrant residents also report the lowest crime rates. In these 19 states, the total crime rate declined nearly 14% from 1999 to 2006.

Arizona Itself Shows Failure of Anti-Immigrant Approach: Evidence from Arizona highlights why local immigration enforcement is counterproductive to fighting crime. The FBI reports that violent crime has been falling in Arizona for years -- even as the state’s number of undocumented residents rose.

The glaring exception to this trend in Arizona is Maricopa County, which falls under the jurisdiction of its notorious Sheriff Joe Arpaio. Arpaio has devoted considerable (and often-scarce) law enforcement resources to apprehending undocumented residents county-wide. Arpaio’s insistence on apprehending otherwise law-abiding undocumented residents in high-profile (often televised) raids and routine stops of Latino drivers for immigration checks means the Sheriff’s Department has less time to focus on violent criminals and pursue felony warrants. The East Valley Tribune, an Arizona newspaper, won a 2008 Pulitzer Prize for their multi-part series on the evolution and impact of Arpaio’s anti-immigrant pursuits.

Despite his ‘law and order’ rhetoric, Arpaio’s approach is a failed law enforcement strategy, and one that has apparently served to increase crime in his jurisdiction-contrary to state crime trends. Recent data from the Arizona Department of Public Safety and compiled by America’s Voice found the Maricopa County crime rate increased by 58% from 2002 to 2009, while the state as a whole saw an average 12% decrease in crime rates. Other Arizona localities that did not engage in broad raids and traffic stops saw their crime rates plunge during the same period: Phoenix enjoyed a 14% decrease in crime; Tempe saw a 26% decrease; and Mesa (Senator Pearce’s district) experienced a 31% decrease.

Misinformation from the Anti-Immigrant Right: Many anti-immigrant legislators and candidates have issued a steady drumbeat of misinformation that attempts to draw a connection between immigrants and crime. AZ Governor Jan Brewer, State Sen Russell Pearce, Maricopa County Sheriff Joe Arpaio and national anti-immigrant groups such as the Federation for American Immigration Reform (FAIR) have attempted to justify and explain their efforts toward draconian state immigration legislation by claiming their proposals will make communities safer.

Yet even as Pearce and Brewer have, in fact, predicted that their state’s anti-immigrant measures will result in lower levels of crime throughout Arizona, evidence from Maricopa County shows that exporting Sheriff Joe Arpaio's brand of anti-immigrant policing will likely reverse the progress made in other parts of the state, imposing Maricopa's failed model on the the whole state.

Resources:
Immigration Policy Center - Arizona's Punishment Doesn't Fit the Crime: Studies Show Decrease in Arizona Crime Rates Over Time
Immigration Policy Center - New FBI data Confirms Falling Crime Rates in Arizona: Violent Crimes Are Down in the State's Three Largest Cities
America's Voice - Arizona Immigration Law Could Lead to Surge in Violent Crime
America's Voice - Fact Sheet: Sheriff Joe Arpaio's Notorious Record
East Valley Tribune - Reasonable Doubt Series
Washington Post - US Police Chiefs Say Arizona Immigration Law Will Increase Crime
Americas Majority Foundation - Immigration and Wealth of States

Lawsuits Against AZ SB 1070 Seek to Maintain Clear Federal Responsibility for Immigration Law

As the evidence increasingly points to how local police and sheriffs enforcing immigration law undermines community policing and increases crime rates, it becomes even clearer why the nation has traditionally kept responsibility for enforcing immigration law in the hands of federal officials. But as PSN has detailed before, Arizona’s law, unprecedented in its scope if it is implemented, would land immigration enforcement (a federal responsibility) squarely in the hands of state government.

This blurring of immigration enforcement roles between federal and state officials has already been legally challenged by the U.S. Department of Justice and at least seven prominent national civil rights organizations, including the American Civil Liberties Union, the National Immigration Law Center, and the Mexican American Legal Defense and Education Fund. Both the U.S. Department of Justice and these civil rights groups have filed lawsuits against Arizona’s law which is scheduled to take effect on July 29 if a federal court does not impose an injunction.

Arizona's Law Undermines Federalism and Threatens Racial Profiling: SB 1070’s scope is unprecedented, misguided, and likely unconstitutional: the law not only makes it a crime to lack immigration status, but also allows state and local law enforcement to demand proof of citizenship or immigration status from anyone they believe has ‘reasonable suspicion’ of being undocumented. Apart from greenlighting racial profiling, Arizona’s approach is widely perceived by legal experts as unconstitutional because it requires the state to take on enforcing federal immigration law.

A federal judge heard arguments outlining seven civil rights groups’ opposition to Arizona’s anti-immigrant law on July 22. These groups are asking for a preliminary injunction to freeze implementation of the law, which is scheduled to go into effect on July 29^th.

The lawsuit’s central legal argument (one echoed by the US Department of Justice’s own lawsuit challenging SB 1070) is the law seeks to pre-empt the federal government’s jurisdiction over enforcing federal immigration law, and that it allows the state too much power to enforce immigration law. Finally, the groups’ lawsuit states that implementing the law would cause considerable harm to Arizona residents as a whole. State legislators, immigrant rights advocates, and responsible law enforcement professionals will be hoping the federal courts agree.

Resources:
Progressive States Network - Arizona and the Nation: A Failed State Versus Positive Approaches to Immigrant Integration
Progressive States Network - Arizona Jeopardizes its Economic Future As it Contemplates Passing Anti-Immigrant Law
National Immigration Law Center - NILC and Civil Rights Groups Ask Court to Block Implementation of Arizona Law
American Civil Liberties Union Immigrant Rights Project - Friendly House et.al vs. Halliday et. al: Arizona's Racial Profiling Law
Immigration Policy Center - The Impact of SB 1070: Usurping the Federal Government's Ability to Set Clear Enforcement Priorities
Immigration Policy Center - The Legal Challenges and Economic Realities of Arizona's SB 1070
Progressive States Network - Polling, The Arizona Law, and Majority Support for Comprehensive Immigration Reform
Progressive States Network - Press Call: State Legislators for Progressive Immigration Policy

National Popular Vote Victory in Massachusetts

Cristina Francisco-McGuire — Thu, 22 Jul 2010 11:25:12 -0400

National Popular Vote Victory in Massachusetts Adds Momentum to Changing Presidential Vote System

Last week, the Massachusetts Senate passed National Popular Vote (NPV) legislation by a 28-10 vote, a little more than a month after the state’s House of Representatives approved NPV by an overwhelmingly bipartisan majority.

With final approval by the legislature likely soon, this will add Massachusetts' 12 electoral votes to approval of NPV by Hawaii, Illinois, Maryland, New Jersey and Washington, bringing the electoral votes of states approving the NPV interstate compact to 73. When enough states approve NPV to bring the tally of electoral votes to 270 (the number needed to win an election), the NPV interstate laws will award those state’s electoral votes to the candidate who receives the most votes nationally, replacing the current system where votes are awarded on a winner-take-all system state-by-state.

The momentum nationally for National Popular Vote remains strong: both chambers in four other states (Rhode Island, Vermont, Colorado and California) have approved NPV in the past few years, while at least one chamber in ten other states (Arkansas, Connecticut, Delaware, Maine, Michigan, Nevada, New Mexico, New York, North Carolina, and Oregon) have approved it.

Support in Massachusetts reflected broad public support, including a survey of voters conducted in May, which showed that 72% of Bay Staters want a system that will make every vote count, regardless of whether it is from a battleground state or not. Before the bill can go to Governor Deval Patrick for his signature, state law requires that it be formally affirmed, or enacted, one last time by both chambers. The enactment vote passed the House on Tuesday, while the Senate is still working to schedule its final vote.

Resources:
National Popular Vote
Boston Globe- Mass. Legislature Poised to Enact Electoral College Bypass Bill
Progressive States Network- National Popular Vote Approved in Chambers in New York and Massachusetts
Progressive States Network - National Popular Vote - A Voter Turnout and Civil Rights Issue

Delaware Becomes 2nd State to End Prison-Based Gerrymandering

Cristina Francisco-McGuire — Thu, 08 Jul 2010 13:08:35 -0400

Last week, Delaware became the second state in the country to pass legislation that would adjust US Census data to count incarcerated people as residents of their home addresses for redistricting purposes. It is awaiting Gov. Jack Markell’s signature.

The Census currently counts incarcerated people as residents of their prison location, artificially inflating the local population. As states use census tallies to redraw legislative districts, districts with a prison benefit from the resulting increased representation, while the home districts of incarcerated persons are short-changed. Twelve percent of one state house district in Texas is comprised of prisoners, while fiftteen percent of one Montana state house district consists of prisoners.

Prison-based gerrymandering is increasingly becoming a problem – the 2010 Census is expected to find five times as many people in prison as it did just three decades ago. Fortunately, states are moving to correct the problem. Maryland enacted the first law (SB 400/HB 496) to count incarcerated persons at their home address in April, and similar legislation is pending in New York.

Resources:
Prison Policy Initiative - Delaware Passes Law to Count Incarcerated Persons at their Home Addresses for Redistricting
Demos - Maryland Enacts Law to Count Incarcerated People at Their Home Addresses
Delaware - HB 384
Maryland - The “No Representation Without Population Act,” SB 400/HB 496

Indiana Supreme Court Upholds Restrictive Voter ID Law

Cristina Francisco-McGuire — Thu, 01 Jul 2010 11:37:48 -0400

In a disappointing turn of events, Indiana’s Supreme Court ruled 4-1 in favor of the state’s voter ID law, overturning last year’s decision by the Indiana Court of Appeals that deemed voter ID requirements unconstitutional partly because it treated those casting absentee ballots differently from those at voting booths. But in the end, the Indiana Supreme Court majority opinion stated, “It is within the power of the legislature to require voters to identify themselves at the polls using a photo ID.”

Disenfranchising Voters: While most states allow non-photo identification to establish identity, such as utility bills, payroll checks, or other government documents, Indiana only accepts photo ID’s issued by the state or federal government. Though the state allows those without ID’s to vote on provisional ballots, their votes are only counted if they are able to present proper ID within ten days.

The problem is that, while most Americans have government-issued ID’s, studies show that 6-10% of eligible voters don’t have a state-issued driver’s license or ID card, which amounts to potentially disenfranchising as many as 20 million people nationwide who are disproportionately poor, urban, non-white, and elderly.

The American Association of People with Disabilities further estimates that more than three million people with disabilities similarly do not possess state-issued photo ID.
Some US citizens – such as Native Americans born on reservations, and elderly African Americans born in the South under the care of midwives – were never issued birth certificates in the first place, a major roadblock to obtaining a state-issued photo ID.
Victims of natural disasters, such as Katrina, may also have had their original birth certificates destroyed.

A De Facto Poll Tax: In all cases, replacing these documents can be expensive and time-consuming – a new birth certificate can cost more than $40, while a new passport costs $97. Replacement citizenship documents for naturalized Americans costs $220. De facto poll tax aside, processing these requests can take as long as a year – during which time an otherwise eligible voter cannot vote.

And photo IDs don’t always reflect current information. Surveys show that only 48% of voting-age women with ready access to their birth certificates have a certificate with their current legal name, while only 66% of voting-age women with access to any proof of citizenship have a document with their current legal name. 10% of all voting-age citizens have a photo ID that does not reflect their current address and current legal name. Among those aged 18-24, the percentage increases to 18%.

The burden of voter ID laws is real, and suppresses the vote of a demographic that is overwhelmingly poor, urban, non-white, and elderly. The decision of Indiana’s Supreme Court will only serve to further disenfranchise an already-disenfranchised population.

Resources:
Progressive States Network - Voter ID Law Struck Down by Indiana Appellate Court
Demos Briefing Paper Series: Challenges to Fair Elections - Issue: Voter ID/proof of citizenship requirements for voting and registration
Center on Budget and Policy Priorities - Survey Indicates House Bill Could Deny Voting Rights to Millions of U.S. Citizens
NAACP Legal Defense Fund - Restrictive Voter Identification Laws: A Barrier to the Ballot Box for Eligible Voters
The Brennan Center for Justice - Citizens Without Proof: A Survey of Americans’ Possession of Documentary Proof of Citizenship and Photo Identification
League of Women Voters v. Rokita

Supreme Court 2009-2010: Pro-Corporate, But Continued Trend Towards Deferral to State Authority

Nathan Newman — Tue, 29 Jun 2010 11:26:57 -0400

Yesterday, the Supreme Court ended its term with a bang with a ruling in McDonald v. City of Chicago that state gun control regulations can be struck down by federal courts based on the Second Amendment. While the number and scale of blockbuster decisions was not so high this session, the singular impact of the Citizens United case earlier in the term unleashing unregulated corporate money on elections, combined with the dangerous implications of the Rent-A-Center, West v. Jackson arbitration decision, emphasizes the pro-corporate bias the Supreme Court has increasingly exercised in recent years.

As detailed below, other decisions on public university governance of student groups, property rights challenges to beach restoration programs and regulation of ballot initiative processes, did continue the trend in recent terms of the Supreme Court deferring to state authority in major cases. And criminal justice cases continued to be a mixed bag of protecting individual rights versus upholding state discretion.

Table of Contents:
- Citizens United and the Supreme Court’s Pro-Corporate Bias
- Supreme Court’s Deferral to State Authority
- Criminal Justice
- Conclusion

Citizens United and the Supreme Court’s Pro-Corporate Bias

There is little question that Citizens United will be one of the major cases that defines this year’s term—and in many ways will frame the legacy of the rise of Chief Justice John Roberts and Justice Samuel Alito whose presence on the court has led to the dismemberment of campaign finance regulation.

"A Massive New Threat of Corruption and Corporate Control": With Citizens United, the Supreme court has given corporations the same free speech rights as individuals and allowed unlimited election spending by corporations when not coordinated with candidates.

U.S. Senator Sheldon Whitehouse of Rhode Island said recently,

The Citizens United decision -- yet another 5-4 decision [opens] our democratic system to a massive new threat of corruption and corporate control. There is an unmistakable pattern. For all the talk of umpires and balls and strikes at the Supreme Court, the strike zone for corporations gets better every day.

To emphasize its hostility to restrictions on the power of the wealthy over our elections, the Supreme Court ordered a freeze of Arizona's public financing matching funds system which gives candidates participating in public financing additional funds when opponents spend above benchmarked levels of spending. This means that publicly-financed candidates will be eligible to receive only one-third of the money to which they'd otherwise be entitled.

Letting Corporate Arbitrators Decide if Their Own Decisions are Unfair: In Rent-A-Center, West v. Jackson, the Supreme Court - by the same pro-corporate 5-4 vote lineup of Justices - further closed the courthouse door for individuals abused by their employers. The Court held that employees cannot only be forced to have complaints about racial discrimination or other employer abuses decided by private arbitrators (a reality decided in previous terms), but also that where an employee feels the terms of the arbitration agreement are unfair and unconscionable, it is up to the corporate-chosen arbitrator to decide if the arbitration agreement is unfair. In this case, for example, the arbitration agreement limited claims an employee might bring against the employer, while exempting those claims that Rent-a-Center might raise, and restricted an employee’s ability to gather evidence.

Instead of allowing a judge to decide whether the agreement to arbitrate could be enforced, the Supreme Court majority leaves it to the arbitrator chosen by the agreement alleged to be unfair to decide the issue, cutting off access to the courts even for the most basic threshold issue of whether these arbitrators and the rules imposed are a fair substitute for a day in court.

Privatizing Democracy: So just as corporations now have unlimited rein to use their money without regulation to dominate elections, those same corporations now have de facto have authority to run private courts to decide the legal rights of their own employees without little or no judicial restraint.

Supreme Court’s Deferral to State Authority

However, beyond these pro-corporate decisions, the Supreme Court, often with surprising configurations of majorities, continued its trend in recent years of deferral to state authority in more cases where core corporate interests are not at stake.

States and the Second Amendment: The exception to the trend this year was McDonald v. City of Chicago, which extended the Second Amendment to restrict state gun regulations. But even in that case, the majority went out of its way to affirm that many traditional gun control regulations will still be upheld even where an individual right to keep firearms for self-defense in the home is protected. Since most states have their own constitutional and statutory reasonableness test for gun regulations, the practical effects of McDonald may end up being relatively limited.

Rejecting “Takings” Doctrine: While right-wing constitutional lawyers for years hoped to create a majority to limit most local government land regulations as illegal “takings” under the Constitution, the Court in Stop the Beach Renourishment v. Florida Department of Environmental Protection not only rejected a property rights challenge to a state beach-erosion statute, but Justice Anthony Kennedy refused to even give a fifth vote to the proposition that a court ruling could ever constitute a “taking” of private property, a sign that most reasonable land use regulations will be protected from federal judicial second-guessing in the future.

Universities and Groups Excluding Gay Students: In Christian Legal Society v. Martinez, state universities retained their authority to deny funding to student groups that exclude certain students, such as gay and lesbian students, from membership. The Court upheld the University of California-Hastings' policy of requiring student groups to take on "all comers" as a prerequisite to official school recognition as a reasonable and viewpoint neutral restriction.

Public Disclosure of Ballot Initiative Signers: Given increasing use of fraud by those promoting right-wing ballot initiatives, progressives won an important victory in Doe v. Reed, in which the Court held that disclosure of signers of political ballot initiatives did not generally violate the First Amendment (although they might be able to in the future argue that specific harms could lead to some restriction on disclosure in a future case). In a strong argument for respecting state regulation of ballot initiatives, Justices Sotomayor, Stevens and Ginsburg wrote:

These mechanisms of direct democracy are not compelled by the Federal Constitution. It is instead up to the people of each State, acting in their sovereign capacity, to decide whether and how to permit legislation by popular action. States enjoy “considerable leeway” to choose the subjects that are eligible for placement on the ballot and to specify the requirements for obtaining ballot access (e.g., the number of signatures required, the time for submission, and the method of verification).

Reviewing Public Employee Text Messages: In a slightly idiosyncratic case, the Court in City of Ontario v. Quon unanimously held that a police department’s decision to review the text messages of employees who exceeded the monthly limit on their office pagers in order to determine whether the monthly limit should be raised was reasonable under the Fourth Amendment.

Criminal Justice

Criminal justice decisions by the Supreme Court invariably combine a combination of invocation of individual rights, discussions of state authority and obscure procedural explorations. While cases this term had few singular disruptions of previous principles, they had a number of clear incremental changes effecting state criminal proceedings. (See this ACLU writeup for an extended list of additional cases).

State Convictions and Immigration: Of import for current debates on the role of states in immigration policy, the court ruled in two cases that courts had to carefully weigh how state criminal statutes interact with federal deportation rules:

In Padilla v. Kentucky, the Court held that attorneys have an obligation to carefully advise their clients of the immigration consequences of pleading guilty. In this case, the defendant– a lawful permanent resident for 40 years who pled guilty to drug trafficking – was incorrectly advised by his lawyer that he was unlikely to face deportation because of his long stay in the United States.
In Carchuri-Rosendo v. Holder, a unanimous Court ruled that defendant’s conviction for possession of a single Xanax tablet without prescription, following an earlier state court conviction for possession of less than two ounces of marijuana, could not qualify as an aggravated felony under federal immigration law, and thus did not render the petitioner ineligible for potential discretionary relief from deportation.

Restricting Miranda: The Court significantly limited restrictions the Miranda “right to remain silent” in a series of cases limiting the Miranda ruling:

In the most critical case, in Berghuis, Warden v . Thompkins, a 5-4 decision of the Supreme Court affirmed that a suspect did not properly invoke his right to remain silent, so statements were properly admitted in court. Justice Sotomayor, writing for four dissenters said, “the Court today creates an unworkable and conflicting set of presumptions that will undermine Miranda’s goal.”
In Florida v. Powell, the Court held that police warnings that a suspect had a right “to talk to a lawyer before answering any questions” adequately complied with Miranda, since the right does not require a particular set of words for police compliance.
In a 6-3 Graham v. Florida decision authored by Justice Kennedy, the Supreme Court found a Florida law unconstitutional under the Cruel and Unusual Punishments Clause where juvenile offenders could be sentenced to life in prison without parole for a non-murder.
In Maryland v. Shatzer, the Court held that police did not violate the law by collecting incriminating statements from a person who had invoked his Miranda rights two and a half years earlier, and that the right against interrogation lasts only 14 days after invocation.

In other key decisions effecting state proceedings:

In Bobby v. Van Hook, Wong v. Belmontes and Porter v. McCollum, the court created a series of new standards for when counsel is so ineffective as to warrant a new trial.
In Presley v. Georgia, the Court concluded that a defendant’s Sixth Amendment right to a public trial had been violated when the public was excluded from the jury voir dire proceedings.
In Holland v. Florida, a 7-2 decision authored by Justice Breyer, the Court agreed that an attorney could harm his client so badly that the defendant’s time to seek habeas must be extended.

Conclusion

Elana Kagan’s likely replacement of Justice Stevens on the Court is unlikely to change the broader trends on the Court and states will continue to face the challenge of reining in the corporate election spending unleashed by Citizens United and protecting access to justice in the courts eroded by the Rent-a-Center case. As People for the American Way wrote in a recent report, Rise of the Corporate Court: How the Supreme Court is Putting Businesses First, “the conservative-tilting Court has reached out to enshrine and elevate the power of business corporations.”

While deferral to state authority has emerged as an increasing consensus among the Justices on a number of issues, lurking in the dissents of the most conservative Justices are even more extreme pro-corporate and right-wing views that with one more ally could push legal doctrine in ways that would completely erode democratic decision-making over economic and social policy. So even the more positive trends on the Court warrant only partial relief, since small changes in personnel in the future could readily enable the more activist impulses of the block of the four most right-wing members of the Court.

Resources:
Progressive States Network - The Supreme Court and the States 2008-2009: Trend Defending State Authority Emerges this Term
Scotusblog - Everything you read about the Supreme Court is wrong
ACLU - ACLU Summary of the 2009 Supreme Court Term
People for the American Way - Rise of the Corporate Court: How the Supreme Court is Putting Businesses First
Alliance for Justice - The Corporate Court

National Popular Vote Approved in Chambers in New York and Massachusetts

Cristina Francisco-McGuire — Thu, 10 Jun 2010 16:56:34 -0400

On June 7, the New York Senate passed S2286A, the National Popular Vote (NPV) bill, with over two-thirds of both political parties supporting the bill in a 52-7 roll call. Although it has had bipartisan approval ever since it was first introduced in 2006, the overwhelmingly support it received from both parties during Monday's vote was unprecedented. Twenty-two of the Chamber's 30 Republicans voted for the bill, not far off from the 79% overall support in New York for a national popular vote for President.

The NPV bill now moves to the 150-member Assembly for debate, where it has 80 sponsors. If passed, New York will become the sixth state - after Hawaii, New Jersey, Illinois, Maryland, and Washington - to enter into the National Popular Vote inter-state compact, which awards all of a state's electoral votes to the presidential candidate who receives the most popular votes in the 50 states and D.C. Adding the New York's 31 electoral votes to the compact's current tally of 61 would be a significant step toward the 270 needed in order for the bill to take effect.

A NPV bill also passed the Massachusetts House last week by a 113-35 vote and now will be considered in the state Senate. Both chambers actually passed NPV last year, but the session ended before the bill could be sent to the governor.

Presidential campaigns spent two-thirds of their funds and campaign visits on just five states during the 2004 elections, and the numbers only worsen from there. Eighty percent of resources were spent in nine states, and over 99% of all funds went to just 16 states. The situation did not improve in 2008 either, when presidential candidates spent $10,225 more on advertising in Florida than in New York. Unless the current state-centric system is change, there is no incentive for political participation in electorally "safe" states like New York or Massachusetts.