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Archive for April, 2008

In a Word


(And also – light posting from me for the next week or so as I try to get my exams and papers done so I can graduate from law school.)


He’ll kick you apart — oooh!

[ 12 ] April 30, 2008 |

Shorter Karl Rove:

I heard the motherfucker had, like, thirty goddamn dicks.

We also learn from Rove that McCain is also, apparently, the inspiration for MacGyver:

Risking severe punishment, Messrs. McCain and Day collected pieces of bamboo in the prison courtyard to use as a splint. Mr. McCain put Mr. Day on the floor of their cell and, using his foot, jerked the broken bone into place. Then, using strips from the bandage on his own wounded leg and the bamboo, he put Mr. Day’s splint in place.

All of which means we know for whom these lovely ladies will be casting their votes:

Powering Down

[ 19 ] April 30, 2008 |

It’s rare that anything happening in Juneau carries national significance, but the avalanche that took out our hydroelectric power two weeks ago has forced the entire community to reduce its electricity consumption by significant degrees.

Stores, though open, went partially dark. Neon signs were switched off and vending machines unplugged. At home, residents of this former Gold Rush town began living a little bit like pioneers, dusting the snow off the grill, stringing clotheslines in the backyard and flicking off their TV sets. Within a week, electrical usage across town was down as much as 30 percent.

Energy conservation is a hard sell in much of the U.S., but Juneau has proved that people will change their ways if the financial incentives are big enough.

“Turn off, turn down, unplug,” said Sarah Lewis, chairwoman of the Juneau Commission on Sustainability. “That’s what everyone is doing and being vigilant about and commenting when others are not.”

The chief incentive for all this, of course, is financial; with the Snettisham facility off-line, our power is being supplied by diesel generators, which will drive up electricity costs by 400-500 percent in the coming months. For low-income residents — many of whom live in homes and apartments heated with electric baseboards — this is of course going to be catastrophic, and it appears unlikely that the state will be supplying disaster relief to any significant degree (the best anyone can hope for will be small business loans and lines of credit). The legislature changed the rules a few years back to disqualify “economic disasters” from consideration. Based on the cost of diesel, which powers much of rural Alaska already, a good case could be made that most of the state would qualify as an economic disaster.

No one is quite sure when the transmission lines will be repaired, but for now it’s been interesting to watch the changes in everyone’s daily routine. The AP article overstates the transition by invoking images of the “pioneer way of life,” but it’s certainly the case that everyone is suddenly thinking about energy consumption in terms of scarcity. AEL&P’s diesel generators are capable of handling Juneau’s usual levels of consumption, but it goes without saying that our incomes are not. What’s more remarkable, though, is what little effort it’s taken to knock back the community’s electricity consumption by nearly a third. Yes, businesses and workplaces and homes have gotten significantly darker, and folks are paying attention to energy consumption in all sorts of minor ways — I’ve suddenly become more conscientious, for example, about preserving the battery power on my laptop — but so far there have been no significant howls of despair over our reduced levels of consumption.

I’m not enough of an energy policy wonk to make any grand suggestions about the implications of all this, but what’s happening right now in Juneau really ought to be getting more national attention.

Democracy-Enhancing Judicial Review

[ 0 ] April 30, 2008 |

Jack Balkin makes an excellent point here. Defenses of the Supreme Court upholding the Indiana voter ID law claim that the requirement will somehow be part of a political bargain to improve access to voting, which run into the obvious problem that there’s no evidence whatsoever of such a bargain in Indiana, or that erroneous voter perception of voter fraud stands in the way of increasing voter access if the legislature wants to do it. (Indiana made no effort to respond to actual abuses of absentee balloting, because that increased access benefits Republicans.)

Crawford is a case where modest judicial review would actually facilitate democracy: broadening access of powerless groups to the political process is where judicial review is at its most defensible. Souter and Breyer’s dissents — properly — did not rule out Voter ID laws regardless of the context. If the restrictions were actually tied to efforts to increase voter access, or there were actual evidence that in-person vote fraud was a problem, this would be a different case. But absent such balancing state interests, permitting Indiana to burden the ability of the most powerless people in the state to vote for reasons of political self-dealing rather than to address serious state interests is bad for democracy.

The other thing to add is that the fact that claiming that only a relatively small, particular (and especially politically powerless) class of people lacks access to photo IDs justifies facially upholding the law is rather strange. As I’ve said with respect to similar arguments made to justify arbitrary limitations on a woman’s right to choose, this logic makes “inequitable effects an argument in favor of the constitutionality of such regulations.” This argument seems to stand Carolone Products on its head: burdens on fundamental rights are more acceptable as long as only discrete and insular minorities are affected. This is, to put it mildly, an unattractive conception of the role of judicial review.

Hackitude on the Gas Tax

[ 0 ] April 30, 2008 |

It was bad when Clinton came out and defended John McCain’s gas tax holiday proposal. It was worse when she started attacking Obama for calling the proposal nonsense. What I hadn’t expected, though, was that Jerome Armstrong would actually defend her position on the merits. Here’s the problem, Jerome; the proposal has no merits. And you’re doing no one any favors by pretending that it does. Christ, not even TalkLeft is defending Clinton on this one. Let’s review: Just because you support a candidate DOES NOT mean that you have to defend that candidate’s most boneheaded and nonsensical proposals.


First, by making the claim that this only saves individuals $20 bucks a month, Obama doesn’t realize how out-of-touch and elitist that sounds to the average low-wage earner who would view it as their ‘best day in weeks’ to find a Jackson laying on the sidewalk.

“out-of-touch and elitist”; I don’t think those words mean what you think they mean, Jerome. And that’s setting aside the assumption that Democratic primary voters are too stupid to see a pander for what it is. At my lowest wage point I would have been delighted to find a $20, but simply because people earn low wages doesn’t mean that they’re morons.

Tilly Moves On

[ 21 ] April 30, 2008 |

Charles Tilly has passed away. Kieran and Dan have posts on his work as writer and teacher; from Dan’s new book:

What can I possibly say about Chuck Tilly that an endless number of his students and peers have not already written in their prefaces? I hope the others I thank will take no offense if I describe him as the most powerful intellect I have ever encountered in the social sciences. I expect that people will still be reading and debating his enormous and varied corpus of work for decades to come. Yet Chuck treats all of his students as members of an intellectual community of equals. He seeks out their opinions; he discusses his own views with humility and an open mind.

I never met Tilly, but I still remember reading his War Making and State Making as Organized Crime as an undergraduate. I found it enormously threatening; it challenged my conception of how and why states exist, and consequently of my own position as citizen of a state. Four years later I’d be assigning his work in my own courses.

"The Dead Sea was pale blue. The very look of it made me thirsty."

[ 0 ] April 29, 2008 |

I’ve always hated John Hughes films, but I’ll concede that The Breakfast Club suddenly got a lot more interesting.

Flights of Fancy

Talk about ripped from the headlines.

No, no one would *ever* address our Supreme Court this way, nor would the Court let her or him. But, hey, a law student can dream.

Stopped Clock

[ 4 ] April 29, 2008 |

Wow, you know the Missouri state legislature’s latest round of “if you choose to get an abortion, you must be an irrational, hysterical woman” regulations are bad when even Will Saletan can see through them. This may be too optimistic, but the only potential good thing to come out of Kennedy’s openly sexist opinion in Carhart II is that it may have given away the show to at least some mushy abortion centrists.

Shameless Nino’s Def Comedy Jam

[ 0 ] April 28, 2008 |

In light of Scalia once again dismissing those who consider Bush v. Gore less than a noble application of constitutional principle, this passage from his concurrence in Crawford can only be read as black comedy:

That sort of detailed judicial supervision of the election process would flout the Constitution’s express commitment of the task to the States. It is for state legislatures to weigh the costs and benefits of possible changes to their election codes, and their judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class. Judicial review of their handiwork must apply an objective, uniform standard that will enable them to determine, ex ante, whether the burden they impose is too severe.

Yes, how outrageous and inconsistent with federalism it would be for the Supreme Court to use the equal protection clause to engage in the ad hoc supervision of state election procedures, without anything resembling an “objective, unifrom standard”! Note: this principle void if it can put a Republican president in the White House.

The Supreme Court and the Vote Fraud Fraud

[ 3 ] April 28, 2008 |

The Supreme Court’s decision upholding Indiana’s vote ID law was unable to secure 5 votes for a single rationale. Stevens, in an opinion joined by Kennedy and Roberts, rejected the facial challenge to the law but left open the possibility of future litigation if it was proven to be an undue burden. Scalia, in a concurrence joined by Thomas and reasonable, moderate Samuel Alito wanted to foreclose future litigation. (I assume Stevens may have joined the majority partly to keep Kennedy and Roberts on board with a more minimalist opinion.)

The key problem with the decision to uphold the statute is summed up in Souter’s dissent: “a State may not burden the right to vote merely by invoking abstract interests, be they legitimate, see ante, at 7–13, or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed. The State has made no such justification here, and as to some aspects of its law, it has hardly even tried.” Consider this remarkable passage from the Stevens opinion:

The only kind of voter fraud that SEA 483 addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history. Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection against the risk that such conduct will occur in the future. It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this Nation’s history by respected historians and journalists, that occasional examples have surfaced in recent years, and that Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor—though perpetrated using absentee ballots and not in-person fraud—demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.

So the only type of fraud shown to have occurred in Indiana history is a type the statute specifically doesn’t address, and as it happens this apparently irrational choice happens to coincide with the partisan interests of the legislators who enacted the statute. This really isn’t good enough if you want to burden the fundamental right to vote.

The other thing to mention is that the “as-applied” challenge is problematic in the context of elections, because there generally isn’t a good remedy. It’s unlikely in the extreme that if the burdens imposed by the statute were decisive that the election would be run again. The better option would have been to strike the legislation and invite the legislature to craft legislation more closely tailored to its asserted interests.

…More from Rick Hasen and Publius.

Here We Go Again

South Dakota voters will consider a ballot initiative to ban abortion in the state this fall. The only change from the last round is that there is now an exception for rape, incest, or to protect the life or health of the mother. What makes this particularly scary is that last time (two years ago) the lack of exceptions is what mobilized voters to vote against it. Oh, and last time was pre-Carhart II. Times have changed. But my guess is that the sales tactic (“abortion hurts women”) will be the same.

So, here we go again. Let the paternalism begin.


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