Category Archives: Courts

Voter Identification

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North Carolina’s Voter ID law is before the Federal Middle District of North Carolina with closing arguments just completed. The beef centers on the NAACP’s complaint (joined by the Obama administration) that voter identification is racist. Of course. What disagrees with the Left must be racist.

North Carolina’s law requires a prospective voter to have one of six forms of photographic identification, reduces the number of days of early voting, eliminates same day registration, and allows voters to cast provisional ballots if they say (not show) that they cannot meet the requirements (if a voter meets the requirements within a generous time frame after the voting, his provisional ballot becomes official).

The NAACP and the Obama DoJ think this is too onerous, and it disproportionately affects minorities.

This, though, is simply the racism of low expectations; it says the minorities are inherently less capable than other groups who do routinely meet these requirements.

Six forms of photo ID: driver license, driver license or non-operator identification, passport, tribal enrollment card, VA ID card, US military ID card. If a voter can’t get a photo ID, he has alternatives:

Provide their date of birth and last four digits of their Social Security number, or present their current voter registration card or a copy of an acceptable document bearing their name and address. (Acceptable documents include a current utility bill, bank statement, government check, paycheck, or other government-issued document.)

Anyone who says minorities are unable to satisfy those alternatives is simply insulting that minority—and doing it on the basis of race. Of course, there will be an occasional exception who truly cannot, but these isolated occurrences do not invalidate the requirement, they simply fall into a special handling category.

Reduced early voting days: there’s no requirement to have any early voting days at all; this is nothing more than a courtesy to reduce the need for absentee ballot handling. There’s an advantage to the voter, too, to reducing the number of days for early voting: it allows the voter more time to collect information about the candidates—a late-breaking announcement of Democratic Party Presidential candidate Hillary Clinton’s criminal indictment, for instance, or of a fifth filing for bankruptcy by a company owned by Republican Party Presidential candidate Donald Trump.

No same day registration: this is no impediment at all; it works to the voter’s advantage, especially for the voter who has not been able to get a photo ID. Aside from reducing the lines at a polling place by not having to process same day registrations, it gives both the voter and the state more time to process the information the voter provides in order to cast a provisional ballot.

The NAACP and the DoJ are making a bogus beef. There are few things more central to our freedom than the sanctity of an American’s vote, and keeping that vote from being diluted or effectively canceled by an ineligible voter is central to protecting that vote. Photo IDs—proving that the prospective voter is who he says he is—is central to that centrality.

The courts have had a good track record in those cases selected by me for commentary at reaching proper decisions. Maybe this court also will reach a proper decision. An American’s vote certainly demands it.

More Disingenuousness in Government

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Mens rea is a criminal law concept that says in order to commit a crime, a man must have intended to commit the crime; he must have had a “guilty mind.” Lack of this guilty mind doesn’t mean the man didn’t do anything wrong; he may well have, and a trial and a jury can make that determination—it would be civil wrong, for which he still would be held accountable on that jury deliberation. He just didn’t commit a crime.

In addition to the current move in the Senate to reform sentencing and jail terms, some Senators want to clarify the specifics of mens rea in criminal law.

The House Judiciary Committee last year passed a bill on mens rea…reform that would create a default standard for criminal intent in instances when no standard exists. Republican Senator Orrin Hatch and House Judiciary Chairman Bob Goodlatte would like to see it pass along with sentencing reform.

However.

Both Senator Chuck Grassley (R, IA) and President Barack Obama (D) disagree with mens rea reform and for largely the same reasons, and they’re moving to block this reform.

Grassley is blocking it because

…strengthening the requirements for criminal intent would make it harder to convict corporations than under the current amorphous state of the law.

Obama wants to block it because

…a default standard of criminal intent would make it harder to prosecute companies for regulatory violations.

This is a cynical reading of Government’s role in trials. The purpose of bringing charges and having trials isn’t so prosecutors can get convictions and look good in the shower or otherwise have something to show for their taxpayer-funded paychecks. The purpose of standards of guilt or innocence in criminal law—or civil law, to stretch for a time the definitions of guilt and innocence—is not to stack the deck against the defendant.

The purpose of these things is to provide justice for the people wronged and for the people accused.

Full stop.

The Supreme Court and Utilities

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The Supreme Court on Monday upheld the federal government’s ability to spur incentives for industrial businesses, schools and other large energy consumers to reduce power usage at times of peak demand.

The court, in a 6-2 ruling by Justice Elena Kagan, said the Federal Energy Regulatory Commission acted within its powers when it issued an order in 2011 requiring higher levels of compensation for some power customers that agreed to reduce their electricity use.

The Court likely is right on this, in that FERC’s rule is within the confines of the underlying law. However, this still is the government picking winners and losers, and this still is the government dictating to private enterprise what it must do.

The corrective answers that are required, then, are two: one is to withdraw FERC’s authority to issue such rules, to rescind Congress’ delegation of such rule-making to FERC (such a rescission is required across the board, but that’s for another writing).

The other required answer is to alter the underlying law that the FERC rule was…fleshing out. It’s a law that is no longer necessary and that, as the FERC rule demonstrates, has become vulnerable to Executive Branch abuse.

That law is Section 201 of the Federal Power Act, which

empowers FERC to regulate “the sale of electric energy at wholesale in interstate commerce.”

Congress’ authority (not an Executive Branch agency’s) to regulate interstate commerce is constitutionally limited to regularizing commerce among the States, not to dictate the terms of that commerce. Of course, for Congress to recover this authority and its limits, a third required answer consists of correcting a number of Supreme Court mistakes regarding how far Big Government may reach inside any State to regulate commerce there.

Delays, Delays

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Stalls, stalls. That’s what State is doing over the Clinton email national security disaster with its latest request to be “late” delivering the court-ordered documents.

“The Clinton email team must perform its work on site. … This storm will disrupt the Clinton email team’s current plans to work a significant number of hours throughout the upcoming weekend and could affect the number of documents that can be produced on January 29, 2016,” agency lawyers wrote in their request.

No. State has been stalling and outright obstructing this release for years—that’s why the matter is before a Federal court and under that court’s order and nominal supervision to deliver on a set schedule in the first place. All through that ordered schedule, too, State has continued to delay, stall, obstruct, release at less than the court-ordered rate. The latest such stall was when State whined that the Christmas holiday schedule for their precious email sorters was more important than complying with the Court’s order and the people’s right to know what Democratic Party Presidential candidate was doing with her private, unprotected email server while she was Secretary of State. This storm would be irrelevant if State had complied with the original requests in the first place, or had complied with the court’s order in the second place.

No. State plainly is now in contempt of court. The Federal judge needs to hold, promptly, a hearing wherein State supervisory personnel should show cause why they shouldn’t be jailed for their contempt until the emails have been delivered and the contempt condition resolved.

A State Appellate Court Error

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The Maryland Court of Special Appeals has postponed the trial of a police officer charged with second-degree murder in the death of Freddie Gray last April.

That officer was Caesar Goodson, the second officer to go on trial. The putative reason for the delay is the hung jury on the first trial, of William Porter. The Baltimore prosecutor has said that Porter’s testimony at Goodson’s trial (and at the trials of a number of the other officers charged in Freddie Gray’s death) is central to their case. With Porter still under trial, and with a Federal case against Porter still possible, his testimony could be incriminating, and the appellate court wants to fully adjudicate the legitimacy of the prosecution’s forcing Porter to testify.

So, for the sake of government convenience, another defendant’s trial is delayed, that defendant’s 6th Amendment right to a “speedy…trial” is annulled.

Of course, the prosecutor is prepared to proceed with the trial, pretty much by definition, else she would not have charged the defendant. That she finds it difficult to proceed without Porter is irrelevant. There’s nothing in that 6th Amendment that says “speedy…trial, except when the government demurs.”

This delay is wrong.