Tag Archives: U.S. Supreme Court

Automatic Voter Registration: Is Oregon’s New Law a Game Changer?

A Path for Voters?

A Path for Voters? [click on photo to check out Irv Lefberg Photograph]

The short answer is: Oregon’a automatic registration law isn’t about to spread like wildfire to other states, where most legislatures and governors are trying to make it harder, not easier, for citizens to vote. Ballot measures in the states may be a way for other states to adopt the Oregon approach. But if the U.S. Supreme Court, in a case dealing with legislative re-districting, limits what voters can do to change electoral laws, the Oregon measure is even less likely to spread. Still, if you favor gains in voter turnout, Oregon’s effort is an inspiration.

(Maybe ALEC, the aggressive and wildly successful, conservative organization that provides model legislation for its ideological comrades in state legislatures, will make automatic voting spring up all over the U.S.    Just kidding, of course).

By almost any gauge, the state of Oregon took a radical step toward making it possible for every citizen over the age of eighteen to vote. The State passed a law which automatically registers everyone who has official contact with its motor vehicle department (DMV). The Oregon law allows an automatically registered voter to opt out. Of course, non-citizens won’t be registered.

You may recall the 1993 federal measure, dubbed “Motor-Voter,” requiring state DMVs to provide opportunities for voter registration.  Motor-Voter is an ancestor of the Oregon law. In retrospect, that law, maybe radical for it’s time, was toothless and passive by comparison. Oregon’s measure can rightly be called “Motor -Voter” on steroids.

A few say Oregon wimped out by not making voting compulsory, like in Australia.  Deep skepticism about the value of every citizen voting is in America’s DNA, starting with our Constitution. If every state adopted the Oregon method, another 50 million people would be (automatically) eligible to vote. That would elate some, and horrify others.

As mentioned earlier, Oregon didn’t go as far as Australia, and about ten other democracies in the world that legally require citizens to vote.  Does compulsory voting sound excessive? Perhaps. But In Australia you wouldn’t have a situation, like in the 2014 U.S. mid term elections, where about 18 to 25 percent of the adult citizenry (depending how you calculate it), gave Republicans control of the U.S. Senate and two additional governorships.

Rarely have any of our President’s, D’s or R’s, been elected by more than 30 to 35 percent of voting eligible citizens.  Even if a candidate garners 60% of the vote, with barely 60% turnout, just 35% of the electorate has made the decision — and that’s in a “landslide” and in a high turnout year.

Don’t look for legislatures and governors in any fiery red states, or for that matter, Wisconsin or Ohio, to jump on the Oregon band wagon. But, in theory, people in some states can push for something like the new Oregon automatic registration law through ballot measures.

Can that work?  Perhaps, in a few places, and with a lot of effort and money. But reformists will encounter opposition lawyers who say the U.S. Constitution empowers only state “legislative bodies” to change electoral laws; that “the people” acting through initiatives or referenda are not legislative bodies, and thus can’t change electoral systems on their own.

That’s precisely the argument in a case out of Arizona, recently heard by the U.S. Supreme Court. It involves a voter approved ballot measure which empowered an “independent commission,” rather than sitting legislators, to draw state legislative and congressional district boundary lines. It’s a highly worthy effort to prevent politicians from perpetuating their power.  (I expect the Supreme Court to over turn it).

The outcome of that case may have enormous implications for representative government in the U.S., not only for re-districting.  It can also determine whether automatic voter registration has any chance at all to spread beyond the Pacific Northwest in the foreseeable future.

U.S. voter participation has always been tepid.  For most of the nation’s history,  the Constitution and state laws denied the vote to women, blacks, and citizens under 21. Even white males who didn’t own property couldn’t legally vote in all U.S. states till 1856.  Even as legal barriers to voting were stripped away by amendments to the U.S and state Constitutions, and by Acts of Congress, voter participation rates in the U.S. have lagged behind, and still trail, those in nearly all other advanced (genuinely) democratic polities.

In the halcyon, “Leave it to Beaver,” days of the 1950s and early 60s, most political scientists thought low voter turnout in the U.S. was a good thing — that it signified Americans’ satisfaction with their economic conditions, government, and direction of the country. All was well; there were no rascals to throw out. There may have been some (minimal and perfunctory) truth to that in the 1950s.


Obamacare Could Easily Unravel After Tuesday’s Election: More Supreme Court Drama Ahead

GOP Judges Eyeing Obama Care

GOP Judges Eyeing Obama Care

The U.S. Supreme Court has given itself the opportunity to gut the Affordable Care Act (ACA), wipe out President Obama’s signature policy achievement, thumb its nose at the I.R.S.,  and align itself with last Tuesday’s electoral outcomes……all at the same time, in just one legal case.   And, oh yes, they also get to diss Harry Reid and the new judges appointed by the President to the D.C. Court of Appeals, after Reid exempted judicial appointments from the Senate 60 vote requirement; again, in the same legal case.  What an opportunity!

In a story drowned out by wall to wall coverage of Tuesday’s election, the U.S. Supreme Court announced its intention to hear an appeal to a 4th Circuit Court of  Appeals decision in King vs. Burwell,  concerning subsidies under the Affordable Health Care Act (ACA).  The 4th Circuit’s decision in Burwell rejected claims which would have gutted the ACA. The High Court’s sudden announcement last Friday to hear the case this term should be viewed as an existential threat to Obamacare.  I would not have characterized it that way before Tuesday’s election.

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D.C. Court Decision on Obamacare: Absurd Outcome Means Absurd Decision

Heading toward the Supreme Court?

Heading toward the Supreme Court?

A prescient article by Henry Aaron of the Brookings Institution in April, provides the sensible and legally correct answer to the question whether people receiving health insurance from federally run health care “exchanges” under Obamacare (also known as ACA) can receive the same subsidies as enrollees in the fourteen states which run their own exchanges. (This is course not the same Henry Aaron who broke Babe Ruth’s career home run record. But I bet he doesn’t mind being called Hammerin Hank).

Hammerin Hank’s article was buried at the time, but now has great relevance, after the D.C. Circuit Court of Appeals ruled (2-1) that, admittedly flawed, language in an isolated section of the ACA, alas, means that the plain purpose of the Act, to make health insurance affordable to all, is entirely negated. On the same day, another U.S. Circuit Court, by a 3-0 vote, issued an opposite ruling, setting up the possibility that the U.S. Supreme Court will ultimately hear the case.

Aaron’s article reminds us that centuries of western jurisprudence have upheld the notion that judges have an obligation to interpret law in a manner that doesn’t produce absurd outcomes; or render an Act worthless, ineffective, or inoperable. (See “Absurdity and the Limits of Literalism”)

As a 2008 Congressional Research Service (non partisan and authoritative) report on the Supreme Court’s interpretation of statutory law observes, “the one generally recognized exception to the [“plain meaning of the language”] rule is that a plain meaning is rejected if it would produce an “absurd result.”*

Is that plain enough?  I think so,  But nothing the High Court does would surprise me these days.

*See, for example, United States v. Granderson, 511 U.S. 39, 47 n.5 (1994) (dismissing an interpretation said to lead to an absurd result); Dewsnup v. Timm, 502 U.S. 410, 427 (1992) Justice Scalia, dissenting) (“[i]f possible, we should avoid construing the statute in a way that produces such absurd results”); Public Citizen v. Department of Justice, 491 U.S. 440, 454 (1989) (“[w]here the literal reading of a statutory term would compel ‘an odd result,’. . . we must search for other evidence of congressional intent to lend the term its proper Scope.”

Is Hyper Partisanship Unconstitutional?

flags04Partisanship, especially the hyper variety, which has resulted in severe gridlock in Washington D.C., goes hand in hand with the accretion of Presidential power. One feeds the other. Hyper partisan gridlock has moved the President to take actions he believes are beneficial for the nation as a whole.  When Congress, as a strategy in a grand power struggle,  refuses to act,  even on measures that are bi-partisan in origin and have widespread public support, any President will push the envelope to get around it. Critics on the right, of course, as well as some (presumably) non partisan constitutional lawyers (like Jonathan Turley of Georgetown University) have argued the President’s solo actions are unconstitutional.

While Obama’s defenders often say hyper-partisanship in D.C. is the reason the President acts unilaterally, their legal justifications have rested on traditional constitutional arguments around executive powers; and precedents going back to the beginnings of the “imperial presidency,” often traced to FDR.  (Clear signs of it were apparent in the presidencies of the first Roosevelt and Woodrow Wilson).

Supporters of the President have used hyper partisanship as a political defense, but not as a legal justification for unilateral action.  Recess appointments by the President, “creative” enforcement of immigration law, and executive orders, such as raising the minimum wage for workers under federal contracts, are examples of going solo when hyper partisan gridlock precludes actions that arguably benefit the nation as a whole; and which the polls say have very strong public support.  The recess appointment issue has already been heard by the U.S. Supreme Court, and a decision is due shortly.

Is there any basis for lawyers and jurists to consider hyper partisanship, not just as a political argument, but as a legal one, when they defend the continuance of the “imperial presidency?”  (I say “continuance” here, because even Turley, a strong critic of Obama, points to a series of presidencies, especially Bush II,  which, in his view, have mangled the constitution).

Put another way, is there a basis for saying Hyper Partisanship is Unconsitutional?  That question isn’t quite as facetious as it sounds.

James Madison, among other founders of the Republic and framers of the Constitution, not only omitted any reference to political parties in the original document and bill of rights,
but notably warned about factionalism and the dangers of partisanship. Madison’s most famous essay about this was in Federalist Papers #10.  This is a must read, even if you already perused or heard about it in Government 101.

The Federalist Papers are a bible for jurists who look to the framers’ beliefs and intent as the basis for interpreting the Constitution today. At least four of the sitting Justices on the current Supreme Court can be fairly described as “Originalists.”  They try to channel the framers when faced with difficult issues.  “What would you have to say about police drones with cameras peering into windows, Mr. Madison?”  These sacred ceremonies are not conducted in candlelight by justices in a haunted house in Georgetown; and they surely wouldn’t be caught holding hands.  But they do consult in some manner with the framers and founders.

Madison argues in Federalist #10, that majority parties, and partisans generally, are prone to run roughshod over minorities, taking actions which are contrary to the rights and interests of the community as a whole.  Acting in the “best interests of the people, or the nation as a whole,” are elusive concepts, but philosophers of democratic and representative government, from John Locke and John Stuart Mill to James Madison, advanced them passionately.

Madison’s philosophy resulted in the many checks, balances, and complex governmental structures that make it generally hard for the federal government to act. But I doubt even Madison would have been pleased with today’s hyper- partisan gridlock.

The main danger of majority hyper partisans today is not their proclivity to run roughshod over helpless minorities through selfish actions; but rather in preventing government from taking actions that oppose the interests of the whole community.  (Why would they do this? Again, its a strategy with a view toward re-gaining power in the future,). Examples include failure to promote clean energy, stem the bleeding of middle class jobs, or support infrastructure, road, and transit spending that benefits commercial activity. (See, for example, the stunning refusal of House Republicans to replenish the Highway Trust fund).  Gridlock on the roads, mirrors gridlock in Congress.

Hyper partisanship has prevented federal agencies (created by Congress) from operating because every nominee to head them is rejected. It has prevented courts from functioning because judges can’t be appointed. It has stopped regulatory agencies (also creatures of Congress) from settling disputes because board member nominations can’t be approved for the required quorum.

Is all that merely the Congress exercising its joint role in executive appointments?  Or is it the political tactics of a hyper partisan majority (in the House),  the kind the framers feared would run roughshod over minorities or the “public good?”

What would James Madison say about that?  And will the four ardent Originalists on the High Court ask the question?  (Playing on the words of legendary Mariner baseball announcer, Dave Niehaus, “Get out the incense and the rye bread, grandma, its grand salami time”).

Would channeling Madison influence opinions about “recess appointments?”  Might law suits in the lower courts, arguing that partisan gerrymandering  (drawing state legislative and congressional district lines to deliberately empower one political party and weaken others) is unconstitutional,  be affected by reading what the framers said about hyper partisanship?

I am realistic enough to know the current Court probably won’t go there.  They can be Originalists,  Literalists, or believers in a Living Constitution, whichever one is needed to reach a desired outcome.   But it wouldn’t hurt if lawyers reminded the four Originalists that recent examples of the “imperial presidency” have their roots in hyper-partisanship, and that the founders are now saying “I told you so.”

Can’t We All Just Get Along? Public Prayer in Greece, N.Y.

SONY DSC  The “buried” story here is about Democrats in South Carolina sponsoring a bill which calls for mandatory prayer in the public schools.   Here is one version of this story: http://www.rawstory.com/rs/2014/01/02/south-carolina-democrats-back-bill-calling-for-mandatory-daily-prayers-in-public-schools/

 It triggers reactions about the public prayer case in Greece N.Y. currently under consideration by the U.S. Supreme Court, Galloway vs. Town of Greece.  This is really an old story, going back at least to the days of William F. Buckley Jr., Madelyn Murray O’Hair, hula hoops, Davy Crockett, and the 1962 U.S. Supreme Court case, Engel vs. Vitale, which involved a mandatory public school prayer composed by school officials.  In the 1962 case, the Warren Court’s ruling,  that the practice violated the first amendment prohibition against “establishment of religion,”  ushered-in a fifty year period of legal and political conflict over religion in public life.  

When I heard about the recent, November 2013, argument before the U.S. Supreme Court involving public prayers at Board meetings in the township of Greece, N.Y.,  posing questions eerily similar to the 1962 case, it elicited a sigh, and some feelings of sadness and frustration. 

Here is one version of that story:  http://www.nytimes.com/2013/11/06/nyregion/town-divided-as-prayer-case-heads-to-supreme-court.html?pagewanted=all&_r=0

One of the benefits of growing old is the perspective you gain on issues that have been around one’s entire life.   That’s not a pure benefit.  When the world (or your family) goes round and round on an issue, neither resolving nor agreeing to let it go (in some constructive manner), sometimes for decades (or centuries, as we see in the Middle East), it’s tiresome, disappointing, and sad. 

For me, the disputes around prayer in public schools or legislative bodies – more broadly, the role of religion in public life – is one of those.  It is one of the most contentious issues in today’s culture wars. 

When I first became aware of it as a civics student in the early 1960s through Engel vs. Vitale, I was genuinely puzzled that the adversaries couldn’t just somehow “work it out” without a soul and energy draining legal battle.

My religious and cultural heritage is Jewish,  I had a lot of religious training in my youth.  I had a Bar Mitzvah in 1961, shortly before Engel vs. Vitale.    I attended public school in a Brooklyn community that was about as diverse as you could get, ethnically, racially, and religiously.  That was before all the groups dispersed to live in their enclaves.

I truly can’t recall whether we had anything resembling prayers in school or not.  We did “pledge allegiance” to the flag and to “one nation under god” every morning.   I also recall,  for sure,  that Christmas was openly acknowledged and celebrated in school, along with Chanukah.  True, no mention was made of Islam, or Buddha, Mormons, or Atheism.  But to me in those years celebrating Christmas and Chanukah in class, was real diversity.

My parents thought this (limited) diversity was fine.  They calmly explained  to me that Jews and Christians differed about Jesus (not around whether he was a good man or not) and the basis of Christmas,  and we moved on.  christmas05My grandmother, on the other hand, warned me about Christmas, and about the great harm that would come to me if I attended my best friend’s communion in the neighborhood Catholic church.  My mother told me grandma was generally wise, but not about everything.   I went to that communion, and recently found my friend Robert on Facebook.

I have always thought the Supreme Court went a little too far in regarding activities like prayers in public schools as a governmental “establishment of religion.”   Recall, there is also the “freedom of expression” clause pertaining to religion in the first amendment.   I could see why the Court majority was upset about the prayers being mandatory, non sectarian, and composed by public officials.   Hmmm.  But I thought there should have been some way to mediate all of that, rather than have it settled in a win-lose fashion.  Or perhaps to meditate,  if not mediate. (Is meditation a religious activity?  That too is in dispute in a few public school districts around the country which offer their students meditation and yoga as a health exercise).

On the other hand, I have never understood why so many religious people are not just satisfied to practice religion privately and on their own time.  Public schools in New York City in the 1950s allowed kids to be released a half an hour early each day so they could attend private “religious instruction” (somewhere off campus) at a place of their parents choosing. Not all kids took part in this.

The public school coordinated with a Catholic Church and a Yeshiva in the neighborhood to make this happen. The kids were picked up by the Church and Yeshiva, so the public schools didn’t pay for transportation.  (Whew!).

Yes, we did lose a small amount of educational instruction by letting a few kids leave early.  My parents thought this was a fair solution.  I have no doubt that today there would be litigation around this. BTW, I was not one of the kids who left early.SONY DSC  I completed the school day…and THEN went immediately for two hours of  more study with a Rabbi across the street from my apartment building.  It was too cold to play stick ball anyway or sit on the fire escape counting the number of Henry J’s passing by.

Though I am relatively lenient legally about public displays of religion,  I don’t buy the argument that taking religion out of public life was a major factor, if a factor at all,  in the “disintegration of  family values” or general social decline in America.   Blaming this on the U.S. Supreme Court and atheists (or non Christians) does not make sense to me.  Parents have always had ample freedom and opportunity to raise kids according to their values and beliefs.  The fact that parents have had less time to do that for the last forty years, because full time parenting is not economically practical (possible) for most people, has a lot more to do with social disintegration than the absence of a morning school prayer or overt celebrations of Christmas (or Chanukah) in classrooms.

Sooo, lets get back to the Greece, N.Y. case, which concerns prayers given at the opening of public Board meetings in that town.   Some people argue that any publicly sponsored prayer violates the first amendment to the U.S. constitution. Others argue that its alright, provided the prayer is rotated among various religious orders.  Still others object even to taking public time for a silent prayer or meditation.  How do you make everyone happy?   

Since the good people of Greece, N.Y. have not been able to sit down and work this out, here is my solution.  I propose a technological fix. What else?  Technology and Drugs seem to solve all of America’s problems these days.  

My solution is roughly as follows:  Attach an electronic pad to the arm rest of every chair in the Greece, N.Y., Board room.  Along with the pad comes a tiny ear bug (sanitized after every usage).  No wires; this is a blue tooth.   The pad, which comes with a little hood to ensure privacy, allows anyone to punch in a prayer choice, with options from numerous religions or non sectarian messages.  It also allows you to choose silence, elevator music, soothing water falls, or a recording of Madelyn Murray O’Hair.  (Perhaps one of her legendary interviews with William F. Buckley, Jr. on Firing Line).

At the beginning of each Board meeting, everyone stands for a minute or two (you can choose to remain seated), slips in the ear bug, and punches one of the buttons on the pad.  No one hears anything but their prayer of choice, or no prayer at all.   

Granted, something is lost when prayer is experienced individually rather than in a group;  but, hey, this is America, where individualism reigns; and technology (or drugs) solves everything.   And yes, you do have to give up a minute or two of public time to make this happen, but consider it an opportunity to gather your thoughts or steel yourself for the nonsense to come (at the ensuing Board meeting). And yes, sitting while others are standing is conspicuous, but get over it.  The Affordable Car Act provides health insurance options for therapy.

This technology could be a little costly to install; but to remain revenue neutral,  Greece N.Y.  could cut back on library services, or something like that.   Or maybe impose a user fee – just punch in your credit card number before you choose the prayer.   Can this system be hacked so “they” will know your religious preference AND your credit card number?  Privacy?  Oh that!