Law

The Stronger Argument against DOMA

WikiMedia Commons
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...

What? There's a Nonpartisan Way to Run Elections!?

(AP/Eric Schultz)
Ask any kid who's played Monopoly—if the banker isn't a fair one, the whole outcome of the game can change. That can lead to two different conclusions: either the kids come up with a fair set of rules or everyone fights to be banker the next game. When it comes to elections, partisans have long struggled with a similar problem: Who should set the rules governing elections? Rather than investing in a nonpartisan solution, for the most part, the parties have fought to be the banker—or in this case, the secretary of state. In 33 states, an elected, partisan secretary of state is responsible for running elections. In eight others, the chief election official is appointed by a partisan elected official. This election cycle has furnished plenty of evidence why that can be a problem: Ohio's secretary of state has come under intense fire for limiting early-voting hours, while in Florida and Colorado, attempted purges of the voting rolls raised concerns that legitimate voters could be...

How Conservatives Captured the Courts

Random House
(AP Photo/Charles Dharapak) President Bush, right, stands alongside his nominee for the Supreme Court, John G. Roberts Jr., after having breakfast at the White House Wednesday, July 20, 2005 in Washington. T he Supreme Court has not been a major campaign issue in this year's presidential election, which shouldn’t come as a big surprise for election junkies. But, the Supreme Court could become a gigantic issue after this January’s inauguration—four judges who will be 75 or older by the middle of next year could potentially give the next president a historic opportunity to change the direction of the Court. The relative lack of attention seems particularly hard to explain given that the centerpiece of President Obama's domestic agenda was one vote away from being entirely invalidated by the nation's most powerful lawyers. Whether or not it gets the public attention it should, the federal courts matter. And as Jeffrey Toobin's fine new book The Oath makes clear, at least one of our major...

In Pennsylvania, Voting Rights on Trial—Again

(Flickr/loop_oh)
Hey—remember Pennsylvania's voter-ID law? The really strict one that could disenfranchise hundreds of thousands of voters? The controversy over the law died down in mid-August, when a commonwealth court ruled the law would stand . Since then, however, the voting rights advocates who'd filed suit appealed to the state's Supreme Court. There, on Thursday, justices heard the case. But it garnered little in the way of headlines. That's probably because Pennsylvania no longer looks up for grabs in the presidential race. The state's strict voter-ID law, which require voters to show a government-issued photo ID, disadvantages Democratic candidates, since the law disproportionately affects poor and nonwhite voters—those more likely to vote Democratic. When the presidential race was tight, the outcome in Pennsylvania seemed like it might be up for grabs, and many worried the voter-ID law would determine which candidate would receive Pennsylvania's electoral votes—or win the whole election,...

Arbitrary Detention Suffers First of Perhaps Many Blows

On New Year's Eve last year, Barack Obama signed the National Defense Authorization Act (NDAA) for Fiscal Year 2012. Among many other provisions, the Act authorized indefinite arbitrary military detention on American soil for people suspected of ties with al-Qaeda or affiliated groups. According to Section 1021 of the NDAA, among those potentially subject to indefinite detention without trial are persons who w[ere] a part of or substantially support al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." In a courageous opinion delivered Wednesday, U.S. District Court Judge Katherine Forrest issued a permanent injunction against enforcing Section 1021. The decision faces an uphill climb in the higher courts, but it is a powerful reminder of how much the federal government has...

Swing-State Scare Tactics

(AP Photo/Marc Levy)
We’ve heard a lot about debates over strict voter-ID legislation this cycle, but there’s an even more pressing problem in some parts of the country: intimidation at the ballot box. In addition to pushing for these voter-ID laws—which require citizens to show a government-issued ID before casting their ballot—conservative groups like True the Vote have alleged widespread voter fraud, recruiting volunteers to act as poll watchers and look for any signs of illegality from voters. True the Vote has also pushed volunteers to comb through the voter rolls for signs of fraud. It's left many worried about the likelihood of scaring voters away from the polls. It all begs the question: What laws are on the books to protect the right to vote? A new report from Common Cause and Demos (disclosure: Demos is the Prospect 's publishing partner) takes a thorough look at voter-protection measures in ten states—measures meant to facilitate voting instead of erecting more hurdles in the name of "security...

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