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Flights of Fancy

[ 13 ] April 29, 2008 |

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.

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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.

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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.

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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.

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Here We Go Again

[ 0 ] April 28, 2008 |

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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Crawford v. Marion County

[ 1 ] April 28, 2008 |

Dismayingly but not surprisingly, the Supreme Court upheld Indiana’s Imaginary Vote Fraud and Democratic Vote Suppression Act today. Vote was 6-3, Stevens joining the majority and writing for the plurality, leaving open the possibility of an as-applied challenge. More later this afternoon.

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No Hope for Multiculturalism

[ 54 ] April 28, 2008 |

Any of you follow the story of Debbie Almontaser and the Khalil Gibran school when it was all happening last year? If not, you missed a shitstorm of hatemongering and aspersion casting. All over a school named after a Lebanese Christian pacifist.

The NY Times has a big story on the woman who would have been principal if not for a bunch of racist jerks and the reporters from the NY Post. It’s worth reading in full…if you can stomach it.

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"You try so hard, but you don’t understand…"

[ 9 ] April 28, 2008 |

For those wondering how painfully lame an anti-Obama Dylan parody would have to be to get an endorsement from Lisa Schiffren and Ann Althouse, the suspense is regrettably over.

Come back McCain Girls, all is forgiven!

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What I Wish He Would Say

[ 7 ] April 28, 2008 |

M. LeBlanc finds Obama using some wishy-washy rhetoric about parental involvement laws. I do think her headline is a little unfair; the closest to an outright endorsement is “possibly for extremely young teens, i.e., 12- or 13-year-olds.” This is pretty silly — on the question of whether public policy should be designed to use state coercion to produce more 12-year old mothers, I vote “no” — but the statement is both equivocal and doesn’t reflect any legislation actually likely to be passed. Discussing the need for bypass provisions reminds me of the bit in Ball Four where the general manager tells a player with pride that the team will generously agree to raise his salary to the league minimum; the Supreme Court has effectively required bypass provisions already. But bringing it up is a dodge, not an actual endorsement of legislation. Like Clinton, his rhetoric is evasive but unlikely to result in support for any actual legislation; this isn’t my optimal position but I can live with it.

I know there are political realities here; these laws, while awful public policy, are also very popular. But I wish Obama, Clinton and other pro-choice Democrats when possible would answer the question this way:

“Of course, the best situation is for a pregnant young woman to discuss the situation with loved ones she can trust and who will give her sound advice. But the problem is that young women in that position are very likely to do so without needing to get the state involved. And by using state coercion you also pull into the net young women in dysfunctional family relationships who have very good reasons not to share their thoughts and decision with. In other words, when they would do the most good the regulations are superfluous, and when they’re most necessary they’re likely to lead to an increase in physical and emotional abuse rather than lead to a better decision-making process. I can understand the goal here, but legislation just isn’t a good way of achieving it.

I know that one way around this dilemma the Supreme Court has embraced is to allow a bypass for young women in difficult family situations. That might sound good on paper, but in practice it just doesn’t work. The young women must likely to need to apply for a bypass are usually the least well-positioned to obtain one, and determinations about who should be granted one are inevitably made according to arbitrary standards applied by judges who may be very hostile to reproductive rights. We should keep the state out of family affairs in this instance. And we should also focus on policies, like rational sex ed. and access to contraceptives, that might reduce teenage pregnancies rather than using state coercion to create more 13-year old mothers. We should increase support services for young women who choose to give birth too. But parental involvement requirements just aren’t a good means of pursuing any worthwhile objective.”

Someday, maybe we can get something like that in a questionnaire from a national politician…

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Old Bailey, 1674-1913

[ 9 ] April 28, 2008 |

Though I’m not a British historian, this is supremely cool. As Sharon Howard explains, the new Old Bailey site not only allows folks to search the records from more than 200,000 trials held at London’s main criminal court, but it also includes digitized versions of the Ordinary’s Accounts from Newgate Prison, where condemned criminals were held until they were sent off to the gallows. These “accounts” were the famous non-fictional morality tales published by the prison chaplain, who described the attitude and conduct of the doomed during their final days; the narratives usually ended well enough from the vantage point of the Ordinary, who almost always brought forth good news regarding the final disposition of the felon’s soul. Like so:

At the Place of Execution, to which they were carry’d from Newgate in Two Carts this Day, I attended them for the last time; and after proper Exhortations to, Prayers for, Singing of Penitential Psalms, and rehearsing the Apostles Creed with, Them, I left them to GOD’s Mercy, which they all implor’d; desiring also the Spectators to pray for them, and wishing, That all that saw them, or heard of them, might take Warning by their untimely Death, and by avoiding their Sins, prevent their own coming to the like shameful End.

Then, of course, we find those who failed to play their assigned roles and died without repenting for their crimes or — what’s worse — went to the great beyond without renouncing their Catholic faith. In these cases, the Ordinary’s accounts read like an early modern version of Little Green Footballs. Here’s an especially vicious one (which happens as well to be the first Ordinary’s pamphlet, published in May 1690):

Let every True Hearted and Unprejudiced Protestant, of what Rank and Quality soever, see now what kind of Instruments, and Dubbed Utensils, the late King James has to work withal, no better than House-breakers, and Common Thieves, who have been fairly Convicted by our English Laws: Yea such Laws that King James himself must needs have made use of, for the Conviction of such Cruel Miscreants as these were; if he had been Seated in the Royal Throne, (which God forbid.) These, and such like, are the Men that even when the Ropes are about their Necks, and just ready to be turned off, they will spit their Venom against the Face of the Government, and if it were possible Stone to Death all the Spectators. Yea the very Civil Officers who are ordered by Law to attend their Execution were affronted, the Prisoners Dying (as it were) like Mad men, putting a bold Face upon’t, as if there were no Heaven to Condemn, nor no Hell to Torment, trusting only to the deluding Vanities of a vain hop’d for Purgatory. Which the laborious and never wearied Jesuits, and untir’d Popish Priests do always Buz in their Ignorant Ears, till they have them so fast, that they can never be unlinked, from the Cunning Devices, and Devilish Stratagems, of that Whore of Babylon, who has always been striving to make the Nations Drunk with the Blood of her Fornications, by joining their Gog and Magogs together to undo, yea, (and if it were possible,) to deceive, the very Elect, which such silly Earth-Worms as those will not be sensible of till they come to feel the dreadful effects of it, (in another World,) to their final and everlasting Destruction and Misery, from which dismal Sentence they can never be Redeemed.

Good times, good times.

(For those who are wondering, no one from LGM surrendered their earthly shells on the scaffold. It does appear, however, that Robert Farley is a bit of a snitch, and DJW steals clothes from widows. Lemieux and Bean appear to be unblemished in the eyes of the law, though one never knows. As for me, I just want my fucking silk handkerchiefs back.)

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Headline of the Day (& Week?)

[ 9 ] April 28, 2008 |

McCain calls Obama Insensitive to Poor People, says the AP.

And of course McCain, being a champion of the poor, is in a perfect position to throw this stone.

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[ 27 ] April 27, 2008 |

This, for lack of a better phrase, is some disturbingly fucked up shit.

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