Law

Just When You Started to Relax—More Ohio Voting Problems

(Flickr/kristin wolff)
It's no secret that the presidential race could come down to Ohio. The Buckeye State has loomed large for months, and word is, both Romney and Obama will be in Columbus on Election Night. According to Nate Silver, there’s a nearly 50-percent chance that the state will determine the election outcome. All eyes seem to be there—when WaPo ’s The Fix shifted it from “leans Democratic” to “toss up” yesterday on the electoral map, half the internet seemed to respond with either cheers or jeers. But while everyone's been watching the polls and political rallies, the chances that the election will be mired in confusion and controversy increased this week. Thousands of requests for mail-in ballots across the state may have been unfairly rejected, thanks to a technical glitch in the data-sharing software between the state Bureau of Motor Vehicles and the Secretary of State's office. The idea is that when a voter updates her address at the BMV, it also gets updated at the Secretary of State's...

A Privacy Catch-22

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When the Bush administration decided to wiretap some suspects without a warrant, it was acting contrary to the procedures that had been established by Congress Foreign Intelligence Surveillance Act (FISA). Unfortunately, Congress reacted to this lawlessness by passing the Protect America Act , making warrantless wiretaps of communications involving at least one party not in the United States easier while providing immunity for past instances of illegal wiretapping. However, the new statute does not settle all of the legal questions. Congress, like the executive branch, is bound by the Fourth Amendment's prohibition of "unreasonable search and seizures." Since warrantless searches are presumptively unreasonable, there is at a minimum serious question about whether Congress can legally authorize the warrantless wiretapping of communications if at least one party is located overseas. It is not clear if these serious constitutional challenges will receive a fair hearing. Yesterday, the...

"Sustaining a Seemingly Permanent War"

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Greg Miller has an essential report in The Washington Post about the institutionalization of the "war on terror," revealing that the Obama administration is institutionalizing many of the worst aspects of the arbitrary death apparatus established by the Bush administration. The "war on terror" has always been a somewhat difficult problem because it combines some aspects of ordinary police actions and some elements of war. Because the latter allows for killing without due process while the latter does not, however, it was perhaps inevitable that an executive branch whose war powers are increasingly unconstrained would gravitate to the latter. It is clear from Miller's article that this is in fact happening, as the administration is institutionalizing policies that classify people affilliated with Al-Qaeda as military targets who can be killed at the whim of the executive branch with no oversight. Particularly because these killings are certain to generate resistance and opposition,...

In Minnesota, Voting Blind on Voter ID

(AP Photo/The The Hutchinson News, Travis Morisse, File)
The fifth in a Prospect series on the 174 ballot measures up for a vote this November. Across the country, most voter-ID wars have unfolded in legislative chambers and courtrooms. But in Minnesota, a whole new battleground has opened as voters decide whether to put a photo ID-requirement into the state constitution. The constitutional amendment passed through the Republican-controlled legislature, but was foiled by a veto from Democratic Governor Mark Dayton. Now, it's up to voters to decide whether they want to put new burdens on themselves and fellow voters. The catch? Voters won't get any say about what those burdens will look like—flexible, with several forms of photo ID allowed, or super-strict, with only one or two kinds acceptable? Whichever party wins the state legislature in November will likely get to set the rules. If the Democrats win, the law could be relaxed, whereas conservatives would likely push to make the law as restrictive as they possibly can without incurring...

Making Prisoners Count

For legislative districts, inmates are considered part of communities where they’ll likely never live as free citizens.

(Flickr/AJstream)
(Flickr/AJstream) With a prison population in the millions, the current method of counting inmates skews how representative democracy operates. A dd these two facts together: (1) To the United States Census Bureau, where prisoners have their “usual residence” is the prison in which they’re incarcerated and (2) The findings of the decennial census are used to draw political boundaries. The sum of those parts does strange things to the notion of how Americans elect people to represent us in state and local governments. “Our system for making political decisions in this country,” says Peter Wagner of the Prison Policy Initiative, “is being distorted by the miscounting of two million people.” In an era obsessed with political data— Microtargeting! Swing-state polling! Data.gov! —and in a country where we incarcerate people at a higher rate than anywhere else in the world, thinking through the political counting of prisoners calls for the same enthusiasm, because the way we do it now...

The Stronger Argument against DOMA

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Today, the Second Circuit Court of Appeals struck down a major part of the Defense of Marriage Act (DOMA). Since DOMA had already been held unconstitutional by the First Circuit , on one level this doesn't change anything, since the case was almost certainly headed to the Supreme Court anyway. But today's opinion is important because the theory underlying the court's holding goes much further than the First Circuit did. The Supreme Court has developed a three-pronged approach to applying the equal protection clause of the Fourteenth Amendment. Under this framework, racial classifications have been held to require "strict scrutiny," under which the classification is constitutional only if necessary to achieve a compelling state objective. Most classifications require merely "rational basis" scrutiny—that is, the state only has to show that a classification bears any plausible rational relationship to a legitimate state interest. In practice, laws rarely survive strict scrutiny and...

Arlen Specter: A Poor Man's Richard Nixon

From Democrat to Republican to Democrat again, from his fierce opposition of Robert Bork to his cutthroat cross examination of Anita Hill, Specter was always, above all, a politician.

(Flickr/ProgressOhio)
Flickr/musicFIRSTcoalition W hen Arlen Specter, the former Pennsylvania Senator who died Sunday at the age of 82, was negotiating to become a Democrat in 2009, he believed that he would retain his GOP-acquired seniority on the Senate committees in which he served. Specter thought he’d gotten a commitment from Majority Leader Harry Reid—Specter’s switch would not only help him avoid a primary challenge from the right, but would give the Democrats 60 votes in the Senate. However, the Democratic caucus resented the idea that Specter could jump ahead of lifelong Dems on the seniority list. Reid was thus unable to keep the agreement with Specter. Losing the committee seniority, Specter said, according to Politico , “was the worst moment of my life.” The worst moment of a then-79-year-old man’s life? Think about that. Specter had, by then, lost his parents. He had gone through several bouts of cancer, a benign brain tumor, and cardiac bypass surgery in the previous decade. He had two...

Color-Blinded

(AP/Pablo Martinez Monsivais)
(AP/Pablo Martinez Monsivais) Imagine a college whose orchestra was missing a bassoon player, or whose football team was down a running back. It would go without saying that this school could admit an applicant who plays the bassoon over a candidate who plays the French horn, even if that French horn player had slightly higher grades, or that its admissions officers could give preference to a high school’s star running back over its equally talented defensive lineman. The entire university community benefits from a full orchestra or a football team with a complete offensive lineup, and college admissions officers routinely take similar considerations into account when they think about how to build an incoming freshman class. Nine years ago, in its landmark Grutter v. Bollinger decision, the Supreme Court recognized that race is just like an orchestra. Contrary to the common view that affirmative action is a zero-sum game—in which each seat given to a minority must be taken from a...

Courting Chaos in Ohio Elections

Ohio's elections haven't exactly been known for being smooth affairs—ask anyone who was around in 2004, when a shortage of voting machines in heavily Democratic precincts caused extremely long waits and cries of foul play . But this year, things could be even more chaotic. Early voting is already underway in the battleground state. With only four weeks to go, elections officials should be making sure poll workers are aware of every procedural detail for Election Day. The trouble is, two key details are still up in the air: whether early voting will extend to the weekend before November 6, and whether certain provisional ballots will be counted. These aren't new issues—both have been hotly contested for months now. But the legal battles are still unresolved. On Friday, a panel of judges from the 6th U.S. Circuit Court of Appeals ruled that the state would have to allow early voting on the weekend and Monday before Election Day, as it did in 2008. That was a huge win for the Obama...

Make Your Own Gun!

The scariest piece in the news this week isn’t about the election or the economy or the threat of terrorism—though it touches on all three. It’s about the latest development in humanity’s ceaseless urge to invent things—subcategory, the ceaseless urge to invent things that let people do things more cheaply than before. Specifically, it’s Nick Bilton’s “Disruptions” column in the business section of Monday’s New York Times . Bilton writes about 3-D printing—nothing new about that—and how it will soon enable people to build their own plastic, but very functional, handguns in the comfort of their homes. That’s news—and the more you think about it, the scarier it becomes. According to Bilton, it will soon be possible to download a printing schematic from the internet (for free), hit “print” on your 3-D printer, “walk away, and a few hours later, you have a firearm.” Three-D printers, for the uninitiated, are printers that use plastic, ceramics or metal to make 3-D objects through a...

The Sound of Crickets: Conservative Sites Silent about GOP Voter-Registration Fraud

(Flickr/ Schristia)
What began last week as a trickle— a report from the Palm Beach Post that the Florida Republican Party was cutting ties with a firm that turned in "questionable" voter-registration forms in one county—has now grown into a pretty ugly flood. Turns out the Florida GOP paid the firm, Strategic Allied Consulting, to do voter registration, while the Republican National Committee paid the same firm millions to register voters in four other battleground states: Virginia, North Carolina, Nevada, and Colorado. The group allegedly submitted forms with dead voters' information and fake information—and in some cases, may have changed voters' party affiliations to Republican without alerting the voters. More disturbing, the firm the Republicans were paying, Strategic Allied Consulting, is one of several that GOP consultant Nathan Sproul has run over the last decade. Along the way, Sproul's companies have been accused of everything from refusing to register Democratic voters to shredding the voter-...

Another Big Year for the Supreme Court

(AP Photo/Carolyn Kaster)
(AP Photo/Carolyn Kaster) Women pray on the front steps of the Supreme Court in Washington, D.C. on Monday, October 1, 2012. The Supreme Court is embarking on a new term that could be as consequential as the last one with the prospect for major rulings about affirmative action, gay marriage, and voting rights. T he Supreme Court’s 2011 term, which concluded with a narrow escape for the Obama administration’s defining policy achievement, the Affordable Care Act, was a compelling reminder of the importance of the highest Court in the land to our country’s politics. The 2012 term, which started this week, may have an even further-reaching impact. Here’s a roundup of the cases and issues that could be considerably helped or hindered by the Court’s deliberation. Corporations and Human Rights The first case of the term, which started oral arguments earlier this week, considers the application of a 1789 statute allowing aliens to file civil tort claims that involve violations "of the law of...

Pennsyvlania Voter ID: Now Requested But Not Required

(AP/ John C. Whitehead)
Thanks to a decision today by Commonwealth Court Judge Robert Simpson, Pennsylvania's controversial voter-ID law will not be in effect in November. Though voters will be asked for one of the several allowable government-issued photo IDs at the polls, those who do not have such identification will still be able to cast the usual ballot. But the future of the law is still murky, and the legal battles will likely extend far beyond election day. The controversy over the state's voter-ID law over the last few months has been contentious. While those promoting the law initially argued it was needed to prevent voter fraud, there's been no evidence of voter fraud in the state, and the state did not cite any examples of voter fraud in legal proceedings. But there was partisan advantage. According to several studies, voter-ID requirements disproportionately impact poor and nonwhite voters, who are more likely to lack the required identification. These are, coincidentally, the voters most likely...

Going to the Courthouse, and We’re Gonna Get Married

This morning, the Supreme Court did not decide to take Perry v. Hollingsworth, the California Prop. 8 case. According to the conference schedule, the Justices were supposed to discuss it yesterday. They didn’t actively decline to take it; they could still make a decision to hear it in the months to come. But at least for today, no news is good news. Let me explain. This year, almost every expert I’ve spoken to or seen believes that the Supreme Court will hear argument on some aspect of the marriage-equality question. What many LGBT advocates most profoundly hope is that SCOTUS will take up one of five current challenges to DOMA, the 1996 Defense of Marriage Act—and will decline to review the Ninth Circuit’s decision in Perry. Although both the DOMA cases and the Prop 8 case touch on marriage for same-sex couples, the issues are quite different. In the DOMA cases, couples who are lawfully married in their home states—Massachusetts, Connecticut, New York, Vermont, and California (for a...

Free at Last?

(U.S. Archives)
150 years ago yesterday, President Abraham Lincoln released his draft Emancipation Proclamation , declaring that on January 1, 1863, “all persons held as slaves within any State, or designated part of a State, the people whereof shall then be in rebellion against the United States shall be then, thenceforward, and forever free." NPR has a brief exploration of some little-known history here , including this: … Lincoln didn't create this moment all by himself. Throughout the war, he was hearing from generals in the field about slaves who ran away by the thousands, hoping to join the Union army. They were telling the generals, "We are here to demand our freedom. And we know you are here for other reasons, but you can't ignore us. We won't be ignored." Lincoln's handwritten manuscript didn't stay in his possession for long. It was auctioned off in 1864, before the Civil War was even over, to raise money for relief efforts. The first draft of the Emancipation Proclamation was sold? Who...

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