Tag Archives: courts

In Which a Judge Gets It Right

Posted on by
Reply

The Wisconsin Election Commission had issued guidance that voters who cast primary election ballots and who had voted for candidates subsequently dropped from the election campaign, but too late for them to be removed from the ballots, could “spoil” their ballots, get a replacement ballot, and vote again.

This guidance is illegal: under Wisconsin law, a voter can do that only before he’s cast his ballot—casting it is final and irrevocable. A Wisconsin judge recognized that, and said, “No.”

It may be useful for a voter, having cast his ballot, to be able to “spoil” that ballot and vote again—after all, corporations, with their mailed-out shareholder ballots know how to handle that as a matter of routine. However, Wisconsin law does not allow for that.

Further, Article I, Section 4, of our Constitution makes crystalline who is allowed to change a State’s election law. It’s a short list, consisting of one entity, and that list does not include election commissions.

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof….

Nor does that short list include judges. The judge absolutely was correct to overrule the WEC, which was violating the law. The judge applied Wisconsin’s law as it exists rather than rewriting it and applying the rewrite.

Redrawing Districts

Posted on by
Reply

The Supreme Court is hearing a case, Merrill v Milligan, that concerns whether Congressional districts will be drawn in accordance with census outcomes concerning the distribution of American citizens in a State, or whether they will (continue to) be drawn to favor race in a State.

Alabama, the State in question in Merrill, redrew its Congressional districts as a result of the 2020 census outcome and kept substantially the same districts with substantially the same population distributions as the prior district map, making tweaks at district boundaries to account for minor population moves. The plaintiffs in the case, though,

argue the map should be redrawn so that Alabama has two majority-Black districts instead of just one….

Alabama, on the other hand, is arguing

that should the lawsuit prevail, the state will be forced into an unconstitutional practice of prioritizing race in creating election rules….

Alabama also would be forced to violate Section 2 of the Voting Rights Act, which explicitly bars (re)districting on the basis of race. There is only one legitimately correct outcome to this case, and it favors Alabama. Supreme Court Justice Clarence Thomas has the right of it, having written in other venues that Section 2 of the VRA, the center of the present case, has

involved the federal courts, and indeed the Nation, in the enterprise of systematically dividing the country into electoral districts along racial lines—an enterprise of segregating the races into political homelands that amounts, in truth, to nothing short of a system of political apartheid.

Absolutely. Under law, all American citizens are equal. All American voters are the same: we’re Americans. There are no white Americans and black Americans and Hispanic Americans and Asian Americans—under law there are only American Americans.

Requiring us to be set apart by race in our interactions with our government is nothing but racism written into our laws. And that’s contrary to our Constitution, which is supreme over Congressional statutes like the VRA and its Section 2. Here’s the relevant clause of our 1st Amendment:

Congress shall make no law respecting…the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Voting is at the core of assembly, and it’s at the center of redressing our grievances with Government: it’s where we come together to fire those Government persons with whom we are most dissatisfied and to hire replacements for them.

It’s time for the Court to rule, decisively, in favor of drawing Congressional district boundaries according to the distribution of American voters, and to stop drawing them to favor one group of Americans while disfavoring other groups of Americans.

Well-Established Constitutional Rights

Posted on by
Reply

In a Wednesday Letter, University of Maryland School of Law Professor Robert Percival wrote in defense of Supreme Court Justice Elena Kagan’s move to politicize the Supreme Court—a move which he denies.

But what drew my attention was this statement regarding Roe v Wade and his concept of constitutional rights:

Justice White opposed creating new constitutional rights, but he didn’t think the court should take back rights once they were well-established.

What Percival has chosen to ignore here is the distinction between “well-established” and “long extant.”

The decision of Roe lasted a long time, but the equally long fight against abortion at various stages of pregnancy, in parallel with the equally long fight to reverse Roe, demonstrates that the “constitutional right” was not at all well established.

A Tacit Admission?

Posted on by
Reply

Attorney General Merrick Garland (D) has filed his appeal (to the 11th Circuit) of the Federal district judge’s order blocking the DoJ from using certain documents seized in the DoJ’s Mar-a-Lago raid in its criminal investigation. That order parallels the judge’s appointment of a Special Master to oversee and sort through all of the seized documents. Garland’s appeal reads, in pertinent part,

Although the government believes the district court fundamentally erred in appointing a special master and granting injunctive relief, the government seeks to stay only the portions of the order causing the most serious and immediate harm to the government and the public by (1) restricting the government’s review and use of records bearing classification markings and (2) requiring the government to disclose those records for a special-master review process[.]

[R]estricting the government’s review and use of records bearing classification markings.

Garland no longer is willy-nilly calling the documents classified. Might this be his tacit admission that the documents aren’t actually classified?

Why does Garland not want them “disclosed” to the Special Master? The judge’s order here was for more than mere disclosure, too; she ordered the documents delivered to the Special Master for the explicit purpose of the Master’s assessment of whether they are classified. Why is Garland so terrified of an independent review, instead of his “trust me” position?

A tacit switch: the judge ordered the documents turned over to the Master, but Garland’s appeal refers only to disclosing the docs to the Master. Is Garland planning on continuing to refuse to turn them over if the Circuit court rejects his appeal of disclosure?

Special Master

Posted on by
Reply

The Federal judge, Aileen Cannon—an actual Article III judge, not the magistrate judge who issued the suspect search warrant—overseeing the outcome of the FBI’s raid on Mar-a-Lago has granted the Trump team’s request that Special Master be appointed to sort through the seized documents and determine which should be returned to former President Donald Trump’s possession, and which can be retained by the DoJ.

I have questions.

What deadline was set for DoJ to deliver all of the documents (subject to DoJ’s inevitable appeals, which will only further the slowdown in DoJ’s “investigation,” a slowdown that DoJ claimed would result just from the Special Master’s appointment) following the appointment?

What sanction will be applied when DoJ misses that deadline?

What proof is being required of DoJ that all of the documents its FBI confiscated have been turned over to the Special Master?

What proof is being required of DoJ that it has retained no copies at all of the documents it confiscated?

Cannon also ordered DoJ to stop reviewing and using the seized documents as part of its criminal investigation until the special master can complete a review. What proof is being required of DoJ that it has stopped reviewing and using? Will the documents have to be (provably) held by a third party pending completion of the Special Master’s review?

It also would be illuminating to force DoJ to release its own “filter team” sorting outcome so the rest of us could compare that outcome with the actually unbiased Special Master’s outcome.