Monthly Archives: April 2008

They Really Really Don’t Care About New Orleans — US Accepts Repairs to Floodwalls Made of Used Newspaper

The tragedy of New Orleans continues.

4 Investigates: Floodwalls stuffed with newspaper?

the witness says two years ago, he saw the contractor filling the expansion joint or opening between the floodwalls with newspaper.

“The whole length of the wall was stuffed with newspaper.”

And when he confronted the contractor, the contractor blamed Washington for the substandard work.

“He basically told me when Congress sent down the money, it would be repaired the proper way.”

But during a recent trip to the area, two years later, it was apparent that didn't happen. Much of the newspaper had deteriorated or been eaten by bugs, but some still remained.

And, by the way, Congress had sent the money, and the contract called for a proper rubber joint. The Army Corps of Engineers, which is supposed to supervise the construction, says everything is just fine, nothing to see, move along now.

Does anyone in DC care about this stuff? Or have they just written New Orleans off?

How does an administration get away with presiding over the destruction of a major American city, botching the emergency rescue and then not fixing it afterwards? Sorry — silly question: they do it the same way they get away with a war of choice based on lies, torture, stealing an election, refusals to appear before Congress, signing statements that announce their plans to ignore the laws, and siphoning of several fortunes to their friends.

“Well, Doctor, what have we got—a Republic or a Monarchy?”

“A Republic, if you can keep it.”

ATTRIBUTION: The response is attributed to BENJAMIN FRANKLIN—at the close of the Constitutional Convention of 1787, when queried as he left Independence Hall on the final day of deliberation—in the notes of Dr. James McHenry, one of Maryland’s delegates to the Convention.

Still a Republic, or devolved to a revolving monarchy? The next few years may decide it.

Posted in Unspeakably Awful (Katrina) | 8 Comments

Ave Maria Updates

It seems that Ave Maria law school is having some money woes, so it won't build a building it its company town, but will locate in Naples, at least for now. More at – Ave Maria to Relocate Law School Once Again and at Law Blog – : Ave Maria! Unable to Raise Cash, Law School Scraps New Building Plan.

Meanwhile, some kindly soul has posted the transcript of what must be one of the Truly Weird Depositions of All Time, the testimony of Ave Maria Board Chairman (and general supremo) Tom Monaghan in a lawsuit brought by three former Ave Maria professors. The professors allege that they were fired in retaliation for reporting illegal conduct by Monaghan, and for refusing to acquiesce to what they say were Monaghan's attempts to make the Board move the school from Michigan to Florida — to property he himself owns.

Summaries of the key weirdnesses at Avewatch, Monaghan Deposition #1: “I don’t know” and Fumare, Observations on Monaghan Deposition #1.

Watch those blogs for sequels.

Posted in Law School | 1 Comment

Civil Liberties Blog: ‘Don’t Tase Me, Bro!’

I may be the last to know of it, but Don't Tase Me, Bro! is a nifty web site with lots of depressing anecdotes about regular folks having their civil liberties trampled.

Today's is 7 Year Old Boy Removed from Father and Placed in State Custody Over mistaken Order of Hard Lemondade.

If you watch much television, you've probably heard of a product called Mike's Hard Lemonade.

And if you ask Christopher Ratte and his wife how they lost custody of their 7-year-old son, the short version is that nobody in the Ratte family watches much television.

The way police and child protection workers figure it, Ratte should have known that what a Comerica Park vendor handed over when Ratte ordered a lemonade for his boy three Saturdays ago contained alcohol, and Ratte's ignorance justified placing young Leo in foster care …
The 47-year-old academic says he wasn't even aware alcoholic lemonade existed when he and Leo stopped at a concession stand on the way to their seats in Section 114.

“I'd never drunk it, never purchased it, never heard of it,” Ratte of Ann Arbor told me sheepishly last week. “And it's certainly not what I expected when I ordered a lemonade for my 7-year-old.”

But it wasn't until the top of the ninth inning that a Comerica Park security guard noticed the bottle in young Leo's hand.

“You know this is an alcoholic beverage?” the guard asked the professor.

“You've got to be kidding,” Ratte replied. He asked for the bottle, but the security guard snatched it before Ratte could examine the label. …

But it would be two days before the state of Michigan allowed Ratte's wife, U-M architecture professor Claire Zimmerman, to take their son home, and nearly a week before Ratte was permitted to move back into his own house.

As an academic (at a different UM), a parent, and non-TV person, I sympathize. That said, I was not only aware of hard lemonade, I've even tried it once. It's not very nice.

If I'm going to have hard fruit juice, I very much prefer dry cider. But the kids are sticking to Izzes for now.

Posted in Civil Liberties | 1 Comment

Crawford, Continued

It is relatively rare that I find myself agreeing with anything coming out of the Washington Legal Foundation, but it does happen.

And WLF Chief Counsel Richard Samp's analysis in More on Crawford: The Court Steps Back From Electoral Refereeing, which is published at SCOTUSblog, has a lot I agree with, especially this part, some of which is a more elegant version of what I said yesterday,

I disagree with those who suggest that the Crawford shuts the courthouse door entirely, even to discrete groups of voters who can demonstrate that a nondiscriminatory election regulation imposes a disproportion impact on their groups. While Justice Scalia’s opinion provides little comfort to such groups, Justice Stevens seems quite receptive – suggesting that there are as many as six justices who would allow such suits. Indeed, Justice Stevens virtually invites a follow-on lawsuit by one group of voters: those who have a religious objection to being photographed. He makes clear that while it may be an acceptable burden to require provisional voters to make a single trip to the county courthouse to validate their ballots, the burden becomes unreasonable if a voter is required to make the trip election after election, as Indiana law apparently would require of those with a religious objection to being photographed. Perhaps Justice Stevens calculated that such suits would be relatively uncommon and thus minimally intrusive. Political parties might well be less interested in financing a challenge to a voter ID law if the end result would be to ease ID requirements for a very small group of voters.

Justice Stevens also indicated that a voter ID law is likely unconstitutional if a State charges a fee to provide the mandated ID. Indiana avoided that problem by eliminating its fee for non-driver IDs at the same time that it adopted the voter ID law. Justice Stevens apparently took a stand against ID fees in order to remain consistent with Harper v. Virginia Board of Elections, the 1966 decision that struck down a $1.50 nondiscriminatory poll tax. But the distinction he makes between prohibited ID fees and the other financial burdens imposed by voting regulations is never made clear. It is not at all self-evident why a fee to obtain an ID is any more burdensome than is the cost of transporting oneself to the county courthouse to validate a provisional ballot.

Posted in ID Cards and Identification | 3 Comments

RNC Whining About DNC McCain Ad

There is a country in which the ruling party has made a concerted effort to keep a factually accurate advertisement by the largest opposition party off TV by appealing to the owners of TV stations to prevent the ad from airing.

No, not Zimbabwe. The USA.

Today the RNC sought to prevent the DNC from airing its anti-McCain ad by calling on TV stations not to air it. The DNC responded immediately.

Gov. Howard Dean and Joe Sandler, the DNC's General Counsel, held a telephone press conference a few minutes ago. (As it was a last-minute deal, even I got to listen in.) They started by categorically denying the RNC's charge that the DNC's ad was in any way coordinated with either the Clinton or Obama campaigns. Dean said “I know of no conversations of any kind that have taken place with the campaigns” about the ad. (Had the ad been coordinated, it would count as an in-kind contribution which would have legal consequences; if it's fully arms-length, it's a legal independent expenditure.)

Sandler said that so far none of the networks running it (MS-NBC and CNN) have said they will pull the ad. So far, the ad is slated for cable only. From which I deduce this isn't a hugely expensive ad buy. Ordinarily you would not expect the RNC to add oxygen to such a small flame; tying McCain to his own remarks about Iraq must really hurt.

The RNC also claimed in its publicity blitz that the ad is false, and thus could expose stations that run it to some sort of liability. That's a weak argument, since the ad uses McCain's own words, and DNC Chairman Dean made hay with it. “I understand the RNC thinks it is illegal to criticize Sen. McCain,” Dean said, and he basically invited them to sue.

Here's one bet that they won't: this is just scare tactics. And if they do sue, they'll lose. (Outside Zimbabwe.)

Posted in Politics: McCain | 2 Comments

Crawford v. Marion County Election Board: An Electoral, But Not Doctrinal, Nightmare

My first reaction to today's decision in Crawford v. Marion County Election Board is that it is not as bad as it could be. But then, my expectations for this Supreme Court are pretty low.

Today's Supreme Court opinion striking down the first set of challenges to Indian's voter-ID law will probably create an electoral nightmare, and will probably disenfranchise many voters — although how many is disputed. It's highly likely that those voters — maybe even tens or even conceivably hundreds of thousands of them — would mostly vote Democratic, at least if they voted their pocketbooks, since they are overwhelmingly likely to be poor. Voters without ID will only be allowed to cast provisional ballots, and will have to appear within 10 days with an ID or with an affidavit explaining why they don't have one. In practice, few if any of these provisional ballots will ever be counted.

But while the opinion may be an electoral nightmare, three things keep it from being the doctrinal nightmare that it could have been: the procedural posture, some of the facts, and the fractured nature of the opinions. Unfortunately, this case is going be spun as holding that “Voter ID laws are constitutional” when in fact it holds only that they are not per se unconstitutional.

Procedurally, this was a facial challenge to the statute. A facial challenge is one where the plaintiffs argue the statute is invalid by its nature and should not be applied to anyone. Rejection of a facial challenge means that it is still open to individual plaintiffs or groups of plaintiffs to explain how the law discriminates unfairly against them given their particular circumstances and should not be applied to them. That's why the three most conservative Justices wrote separately: they wanted to prevent future fact-based challenges. And on this, they failed.

Factually, the state of Indiana had a few good things going for it. The District Court made a number of factual findings that strengthened its case (although, for the reasons set out in Justice Souter's opinion, still not to the point I would have swallowed it). For example, the District Court “found that petitioners had “not introduced evidence of a single, individual Indiana resident who will be unable to vote as a result of [the Indiana Law] or who will have his or her right to vote unduly burdened by its requirements.” Furthermore, the District Court found that 99% of voting-age public had a driver's license. So the number of potentially harmed people was low. (While opinions differ as to whether this fact should matter in a facial challenge — 1% of voters is still high — it won't be an issue in an as-applied challenge.)

And, one key fact of future significance is that the state offers all citizens a free photo ID. That allowed the three Justices in the lead opinion to distinguish this case from a poll tax. Many other states charge for non-driver photo ID — such as Florida for example. I read this decision to suggest pretty strongly that there are six votes for the proposition that any state which charges for photo ID cannot constitutionally require that voters show a photo ID in order to vote, as this would in effect be a poll tax. (I hope this result doesn't get lost in the lower court shuffle that is sure to follow.)

Third, this is a very fractured opinion: 3-3 to 2-1. There are some grave and important differences between the two sets of three Justices who joined to form the six-Justice majority. Give the three Justices in the lead opinion different facts, and they might well vote the other way.

Here's a hurried summary of some key parts of the opinions:

The lead opinion is by Justice Stevens (for himself, Kennedy and the Chief Justice). The key point is at the start, the decision that, “the District Court and the Court of Appeals correctly concluded that the evidence in the record is not sufficient to support a facial attack on the validity of the entire statute”.

This despite the observation that even though preventing vote fraud is obviously a legitimate goal for a state legislature to pursue, “The only kind of voter fraud that SEA 483 addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history.”

Even more troublingly, Stevens notes that, “It is, however, difficult to understand why the State should require voters with a faith-based objection to being photographed to cast provisional ballots subject to later verification in every election when the BMV is able to issue these citizens special licenses that enable them to drive without any photo identification.”

Yet, even this repeat discrimination against religious objectors doesn't make Stevens find that the statute imposes an undue burden on them. The reason is pretty legalistic, but not totally unreasonable:

Petitioners ask this Court, in effect, to perform a unique balancing analysis that looks specifically at a small number of voters who may experience a special burden under the statute and weighs their burdens against the State’s broad interests in protecting election integrity. Petitioners urge us to ask whether the State’s interests justify the burden imposed on voters who cannot afford or obtain a birth certificate and who must make a second trip to the circuit court clerk’s office after voting. But on the basis of the evidence in the record it is not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified.

As to charges that the law is the partisan hack job everyone knows it to be, Stevens writes that even if the law is partisan, there are neutral reasons for it, and that suffices to survive a facial challenge:

…if a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators. The state interests identified as justifications for SEA 483 are both neutral and sufficiently strong to require us to reject petitioners’ facial attack on the statute. The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting “the integrity and reliability of the electoral process.

That, like it or not, is pretty standard doctrine.

Scalia (writing for Thomas and Alito), isn't happy that the door is left open to as-applied challenges. He'd close it now, even before the facts are in:

The lead opinion assumes petitioners’ premise that the voter-identification law “may have imposed a special burden on” some voters, ante, at 16, but holds that petitioners have not assembled evidence to show that the special burden is severe enough to warrant strict scrutiny, ante, at 18–19. That is true enough, but for the sake of clarity and finality (as well as adherence to precedent), I prefer to decide these cases on the grounds that petitioners’ premise is irrelevant and that the burden at issue is minimal and justified.

The good news is that this view gets only three votes. Not even Roberts would buy it.

Souter (for Ginsberg) shows us what a contrary opinion — one more attuned to equal protection and voter rights — looks like, with the key move being very reasonable hypotheses about the nature and extent of the burden on indigent voters (e.g. the cost of travel to get one of those free IDs for people who don't drive). It's a good opinion, and there's a decent chance that some form of it may reappear in a narrower and more fact-rich challenge to voter ID laws.

Breyer (writing alone), suggests there were less restrictive alternatives to achieve the state's legitimate ends.

Posted in ID Cards and Identification | Comments Off on Crawford v. Marion County Election Board: An Electoral, But Not Doctrinal, Nightmare