Law

How Should Voter Purges Work?

(Flickr / dailyfortnight)
The mess that is Florida's voter-purge effort keeps growing by the day. Both the ACLU and the Department of Justice are suing the state, which in turn is suing the federal government. After the state's Division of Elections declared it had found around 182,000 noncitizens on voter rolls, the state sent letters to 2,600 people of them asking if they were citizens. Those who failed to respond risk being removed from the lists. The trouble, of course, is that 500 of them proved to be citizens . Less than 100 have so far been proved ineligible to vote. Because the list examines citizenship, Hatians and Latinos are disproportionately targeted. In the meantime, the 182,000-list looms in the background, though it has not been publicly released. As legal tensions boil over, the effort has been put on hold in just about every county . But with less than 90 days until the state's primaries, many worry there will be complications when people go to vote. The debacle, however, brings to mind a...

Will You Marry Me?

How same-sex marriage will be won in the states

(Flickr/Fritz Liess)
I’m married in Massachusetts. I’m not married in the United States. That paradox is untenable, the First Circuit Court of Appeals declared in May as it unanimously struck down Section 3 of the Defense of Marriage Act—the portion of the 1996 law stating that, for federal purposes, marriage is between a man and a woman. Most legal observers believe the Supreme Court will agree, and the feds will have to recognize my marriage. That would leave me almost fully married, but not quite: Thirty-eight states still ban recognition of same-sex marriages. So what’s the path to marriage equality nationwide? President Barack Obama hinted at an answer, two weeks before the First Circuit decision, when he announced his support for same-sex marriage, adding that it shouldn’t be a federal issue. The states were working it out for themselves, he said approvingly. Some impatient liberals carped at the suggestion. “I don’t think civil rights ought to be left up to a state-by-state approach,” Congressman...

Ending the Practical Argument About the Death Penalty

The Halifax Gibbet (scarletharlot69)
When he was running for president in 2000, George W. Bush was often asked about the fact that as governor of Texas, he executed 152 people, more than any other governor in modern history at the time (though his successor Rick Perry has since surpassed him ). Bush always responded that he believed the death penalty saves lives. In other words, his primary justification was a practical argument, not a moral argument. But the empirical evidence on the question of whether the death penalty was always fuzzy at best. Like most death penalty opponents, I was always very skeptical of claims like Bush's (isn't that odd, how our beliefs about what is always seem to line up so neatly with our beliefs about what ought to be ). Despite what you might believe from watching Law & Order , most murders aren't carefully planned so that the perpetrator can get his hands on his grandmother's fortune, giving him plenty of time to contemplate the potential consequences if he gets caught. People who...

The Press Is Unfair to Everybody

Flickr/Dorry Samuels
A few weeks back, President Obama expressed his belief that the Supreme Court would be wrong if it overturned his signature domestic policy achievement, the Affordable Care Act. Republicans immediately had a hissy-fit, accusing Obama and his allies of trying to "intimidate" the Court in yet another frightening example of thuggish Chicago-style politics. As Dahlia Lithwick points out , the only ones who have leveled any actual threats at the courts lately are conservatives—Newt Gingrich proposed that if judges made decisions that some people (i.e. Republicans) didn't like, they ought to be hauled before Congress to explain themselves, and arrested by federal marshals if necessary; Rick Santorum (and others) have suggested eliminating the 9th Circuit appeals court, since it has issued some decisions he disagrees with. But as Lithwick explains, the Supreme Court is really of two minds when it comes to being criticized publicly: RoNell Andersen Jones, a professor at Brigham Young...

Racist Searches and Drug Arrests Fine With New York GOP

Last month, the New York Civil Liberties Union released some extremely disturbing data about "stop and frisk" searches in New York City. Since 1968, the Supreme Court has held that warrantless patdown searches by police require only "reasonable suspicion" rather than the "probable cause" required to obtain a search warrant under the Fourth Amendment. This watered-down standard has always been subject to abuse, and there can be little doubt that this has been the case in New York. A remarkable 685,724 New Yorkers were subject to such warrantless searches in 2011—compared to fewer than 100,000 in 1993. Nearly 90 percent of those subject to these searches were innocent. And, worse, most of those found "guilty" were guilty of minor drug possession charges—less than 2 percent of those subject to stop-and-frisk searches were carrying a firearm. And, worst of all, what constitutes a "reasonable suspicion" is clearly defined in substantial measure by racial profiling. 87 percent of those...

Ho-Hum, Another Day, Another DOMA Defeat

How boring are marriage equality wins now? So boring that yesterday's DOMA defeat isn't even on The New York Times home page this morning, as I write this. And yet it's a big deal. Edie Windsor and Thea Spyer were together for 44 years. (Do go see the adorable movie about their life together; they're a very cute couple.) They married in Canada in 2007, a marriage that was recognized by their home state of New York. But when Thea died, the federal government taxed Edie on her estate as if they were strangers. The ACLU brought the suit, there were some private grumbles that there were already plenty of DOMA lawsuits and that a plaintiff as well-off as Windsor wouldn't be sympathetic—but I don't think anyone wants a widow stripped of property that she's treated as her own for decades. And in any case, there are so many lawsuits at this point, who even notices the plaintiffs? Yesterday, a federal district court judge in New York ruled that, at least in this case, DOMA's Section 3 "does...

The End of 5-4

The Supreme Court in 2010.
Of all the things we talk about during a presidential campaign, the Supreme Court probably has the lowest discussion-to-importance ratio. Appointing justices to the Court is one of the most consequential privileges of the presidency, one that has become more important in the last couple of decades since the Court has become more politicized. But there isn't a great deal to say about it during the campaign, beyond, "If we lose the election, we'll lose the Court." The candidates aren't going to say much of anything about whom they'd appoint other than a bunch of disingenuous bromides ("I'll appoint justices who will interpret the law, not make law!"), and we don't actually know who's going to retire in the next few years, so in the campaign context there isn't much to be said . But if there's anything that ought to make you afraid of a Mitt Romney presidency, it's this. First of all, if Romney wins he will be under enormous pressure to make sure that anyone he appoints will be not just...

Wedding Bells in Illinois?

(Flickr/Benson Kua)
You all have got to be tired by now of me celebrating good news for LGBT rights, bouncing around in my Tigger-y fashion, showing yet another way that we're winning. But I can't help it. As we've discussed, I grew up in the Pleistocene era, when you still had to look over your shoulder leaving a gay bar. Now I'm married to another woman, at least in the eyes of Massachusetts. It's crazy to live through so much social change in just a few decades. (A friend of mine says: "E.J., you sound like one of those older black folks who talk about how miraculous it is to no longer live under Jim Crow." Well, it's true! Being me is no longer a felony!) All of which is to say: here are two more little bright spots that show how fast the tide is changing, coming back in to wash away all the nasty old antigay state DOMA laws that piled up when the shockingly new idea of marrying same-sex pairs was first discussed in 1996, 2000, and 2004. Bright spot #1: Recently the ACLU and Lambda brought two...

Filibuster Reform Lies in the Voters

(Flickr / Cle0patra)
In 1906, journalist David Graham Phillips scored a best-seller with his book The Treason of the Senate . “The Senate is the eager, resourceful, indefatigable agent of interests as hostile to the American people as any invading army could be,” Phillips wrote. There’s a good case that the “millionaire’s club” of 1906 was Audie Murphy compared to today’s Senate. The case against the Senate—and in particular against the misuse of the filibuster to paralyze the federal government—is brilliantly laid out in the Complaint filed last month by Common Cause in the federal District Court for the District of Columbia (It’s good: download it and read it now ). The complaint is a great service to public education. But the remedy Common Cause is seeking—judicial invalidation of part of Senate Rule XXII—is not only beyond the authority of the courts, but would, if granted, create a precedent worse than the disease it attacks. The Constitution gives each House the power to set its own rules, with no...

A Gun to the Debt-Ceiling Fight

(Flickr/zieak)
If Barack Obama turns out to be a one-term president, historians may mark the summer of 2011 as the moment his failure became inevitable. At that point, the new right-wing Republican House majority declared the national debt hostage and demanded Obama’s surrender to them on all points of domestic policy. When the debt-ceiling statute required authorization of a new federal borrowing limit, they refused to vote on the measure without massive cuts in federal spending and no increase in federal revenue. The crisis was averted by the appointment of an idiotic congressional “supercommittee” that was supposed to identify future cuts, matched with a set of “automatic” cuts that were to take effect if the “supercommittee” failed to come up with a compromise aimed at reducing federal debt. Not surprisingly, the “supercommittee”—perhaps better known as the “Clark Kent committee”—was unable to produce a compromise. The debt showdown, which paralyzed Washington for much of spring and early summer...

1st Circuit Rules DOMA Unconstitutional

Nancy Gill & Marcelle Letourneau, by GLAD
One of the most striking examples of the progress made by supporters of gay and lesbian rights can be seen with respect to the odious Defense of Marriage Act. The bill, which denied federal marriage benefits to same-sex couples and allowed states not to recognize same-sex marriages valid in other states, had been signed by the second-most recent Democratic president after passing both the House and Senate by veto-proof margins. A little more than a decade later, President Obama—even before his recent announcement declaring support for marriage equality—had refused to defend the constitutionality of DOMA in court . In an even more important sign of progress today, the worst provisions of the Defense of Marriage Act were ruled unconstitutional by a unanimous three-judge panel of the 1st Circuit Court of Appeal. And particularly since this case is nearly certain to end up in the Supreme Court, the fact that this panel included two Republican appointees is also important. Judge Michael...

I'm Married in Massachusetts—But Am I Married in the United States?

Oh, gosh, it's so confusing. I'm married when I visit my stepson's school. I'm not married when I file federal taxes. I'm married when I fill out forms at the doctor's office. I'm not married when I'm visiting my brother in Texas. Or am I? Yes, I do have a sense of humor about it, especially this morning. Conservative federal judge Michael Boudin—who served in Ronald Reagan's Justice Department, and was appointed to the First Circuit by George H.W. Bush—has written an extremely cautious opinion (for a unanimous court) striking down the Defense of Marriage Act's Section 3, which says that for federal purposes, marriage is between one man and one woman. Boudin writes repeatedly that the precedents are tricky and the final decision will have to come from SCOTUS--but in his mind, signs point to yes for my marriage. All the judges think DOMA is indefensible, or at least, that section 3 is. There was Judge Tauro's rhetorically soaring decision in this particular set of cases, Gill v. OPM...

How to Save the Internet—Again

Online organizing helped stop SOPA and PIPA, but how much staying power does the internet freedom movement have?

(Flickr/witness.org)
On January 18, the Internet went on strike. Tens of thousands of Web sites—including Google, Wikipedia, and Wordpress—went offline or blacked out their interfaces to protest the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA). Many feared the breadth of the proposed anti-piracy laws—which could force entire domains to shut down because of the actions of a small number of users—would be used to censor online content and chill innovation. Protestors sent millions of e-mails and placed calls. Organizers of the strike estimate that nearly one billion people were exposed to their message. PIPA and SOPA were tabled. It was, by all measures, an overwhelming success. But the larger legislative battles over Internet privacy and freedom are by no means over. Next week, the Senate is expected to take up a version of the Cyber Intelligence Sharing and Protection Act (CISPA), which passed the House in April. Unlike SOPA and PIPA, which dealt with intellectual property, CISPA and its...

27th Amendment or Bust

How the newest amendment to the Constitution was ratified, and why it's so hard to change the law of the land. 

(Flickr/The COM Library)
One afternoon in March 1982, an undergraduate student at the University of Texas named Gregory Watson was poking through the stacks of the Austin Central Library, researching a term paper he was going to write on the Equal Rights Amendment. He happened upon a book published by the Government Printing Office that included a copy of the Constitution, as well as several amendments that had been passed by Congress but not yet ratified by the requisite three-fourths of the states. One such amendment limiting Congress' ability to give itself a raise caught his attention. Over the following ten years, it would become Watson's obsession, his life, and ultimately—20 years ago this month—the 27th and most recent Amendment to the United States Constitution. While the story of its enactment is an encouraging testament to the individual citizen’s power to enact change, the amendment's legality remains a gray area for legal scholars and it sets a troubling precedent for other amendments to be...

Why Democrats Support the Drug War Status Quo

Medical marijuana for sale in California. (Flickr/Dank Depot)
Later today, I'll have a post up at MSNBC's Lean Forward blog explaining why the "Choom Gang" revelations from David Maraniss' new biography of Barack Obama didn't seem to make anybody mad (with the exception of libertarians who took the opportunity to make the entirely accurate point that Obama's Justice Department is vigorously prosecuting people for doing pretty much the same thing Obama did as a teenager, and if he had been caught he might have gone to jail and certainly wouldn't have grown up to be president). Briefly, it comes down to a couple of things: Obama had already admitted he smoked pot "frequently," so it wasn't much of a revelation; and around half of American adults have too, meaning they weren't going to be outraged. Furthermore, most of the reporters who would write about the story are probably in the pot-smoking half, making them less likely to treat it as something scandalous. But this raises a question, one posed by Jonathan Bernstein: Why do Democratic...

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