ACSBlog: The Blog of the American Constitution Society

Justice at Stake released a new report on “The New Politics of Judicial Elections in the Great Lake States, 2000-2008.” From the introduction:

Attorneys, business interests, ideological groups and political partisans have locked themselves into an escalating arms race. Judges and justices routinely raise millions of dollars from contributors whose cases they decide. Campaign ads are designed to destroy confidence in the integrity of the candidates. Above all, special interests are working to convert judicial elections into a tool of political intimidation rather than public accountability.

This report details how these recent trends are turning the “Great Lakes” states into leading battlefields in the growing national struggle for the courts.

(H/T GavelGrab)

"About 12 Indiana nuns were turned away Tuesday from a polling place by a fellow bride of Christ because they didn't have state or federal identification bearing a photograph," the Associated Press reported. It added:

They weren't given provisional ballots because it would be impossible to get them to a motor vehicle branch and back in the 10-day time frame allotted by the law, Sister McGuire said. "You have to remember that some of these ladies don't walk well. They're in wheelchairs or on walkers or electric carts."

by Justin Levitt, Counsel, Brennan Center for Justice at NYU School of Law

Crawford v. Marion County Election Board 07-21
Indiana Democratic Party v. Rokita 07-25

On April 28, the Supreme Court handed down a decision in the Crawford cases, rejecting a challenge to Indiana’s law requiring voters at the polls to provide certain types of government-issued photo identification. I had predicted that the opinion would likely have impact far beyond Indiana, refining the standard for justifying a burden on voters, and potentially changing the ground rules for 2008 and beyond. But by and large, it looks like I was wrong: though the rhetoric around the case grows ever louder, in terms of the legal holding, this was far more a whimper than a bang. 

The U.S. Supreme Court issued a 6-3 decision in the voter ID case Crawford v. Marion County Election Board, rejecting a challenge to an Indiana law that requires voters to show a government-issued photo ID before being allowed to vote.

Justin Levitt, Counsel at the Brennan Center for Justice, described the case for ACSBlog as turning on two issues. “The Court will determine whether a law that makes it substantially more difficult for many eligible citizens to cast a valid ballot is toward the ‘severe’ end of the spectrum of First Amendment infringements. And it will determine whether such a law is sufficiently justified by a state’s asserted interest in confronting a hypothetical concern.” He predicted the decision “will set the ground rules governing which eligible American citizens will be able to exercise their right to vote, and which eligible citizens will not, in 2008 and beyond.”

According to SCOTUSBlog, “three Justices said the evidence offered against the requirement in Indiana did not support a challenge to the law as written — that is, a ‘facial’ challenge – and three others said the law only imposed a minimal and justified burden on voters. Three Justices dissented.”  Thus, “a majority of the Court has not barred all future challenges to voter ID laws, provided future cases seek to test such laws as they were actually applied in a specific election.  Still, the plurality opinion that announced the Court’s judgment – written by Justice John Paul Stevens — probably means that any such ‘as-applied’ challenges would not be easy to make.”

ACS hosted a press briefing on the case before arguments in January. Video and a transcript from that discussion are available, which featured Deborah Goldberg, Bradley A. Smith, Jon M. Greenbaum, and moderator Tova Wang. Audio of the argument before the High Court is available here.

by Ciara Torres-Spelliscy, Counsel, Brennan Center for Justice at NYU School of Law

On Tuesday, April 22, the Supreme Court will hear oral arguments in a case testing the constitutionality of the so-called “Millionaires’ Amendment” of the Bipartisan Campaign Reform Act (“BCRA,” also known as “McCain-Feingold”). The Millionaires’ Amendment passed in 2002 as part of a reform package to update and improve the nation’s campaign finance laws.

The Millionaires’ Amendment somewhat levels the playing field for opponents of self-financed candidates who plan to spend $350,000 or more of their own money on their campaign for federal office. Once a candidate for federal office spends more than $350,000 of personal funds on a campaign, their opponent will be allowed to raise private funds in amounts that are triple the normal limits – up to $6,900/person/election – and can coordinate additional expenditures with his or her political party, up to a cap. The Amendment also requires certain financial disclosures from both candidates so that the FEC can monitor when the cap has been reached. In all cases, the self-financed candidate can spend as much money as he or she desires.

In an article just published in the Columbia Law Review, Yale Law School Heyman Fellow David Pozen writes about what he calls "the irony of judicial elections." The central irony, according to Pozen, is that as judicial elections achieve greater legitimacy as elections, they will increasingly undermine the judiciary's distinctive role and our broader democratic processes.

He reaches this conclusion after first synthesizing arguments for and against elective judiciaries and exploring how recent developments have increased both their costs and their benefits. Ultimately, Pozen concludes:

I am not suggesting that there are universal answers when it comes to state judicial selection—just that the debate is being conducted on the wrong terms. Those who would support elective state judiciaries ought to be openly celebrating the new era. Those who would have the judiciary be more than just another majoritarian branch might do well to abandon the accommodationist posture, at least for a moment, and to remind the public and each other that there is no adequate remedy for this threat save to dismantle judicial elections.

In an commentary on Findlaw, Rick Hasen examines the U.S. Supreme Court's recent (and overlooked – but not by us) ruling in Washington State Grange v. Washington State Republican Party regarding the system states adopt to conduct primary elections. He argues that the decision "could lay the groundwork for upholding a host of draconian laws making it harder for some people to vote . . . especially poor and minority voters."

Hasen argues that the outcome of the Court's decision is a double standard that disadvantages voters. He writes:

If a state tries to justify its election law, it can do so by merely positing -- not proving -- the existence of voter confusion [o]r another interest. However, if voters (or groups) want to challenge a law, then they need to come forward with actual evidence of confusion or another burden. For them to posit the risk of confusion is not enough. This kind of rule is going to make it much harder for those who seek to protect voting rights to succeed in court.

Today, the U.S. Supreme Court upheld Washington State's primary election system against a facial challenge that argued that the system violated political parties' associational rights by forcing them to associate with candidates not of their choosing. If implemented, the primary election system, passed by voter initiative in 2004, would allow candidates to choose a party label to accompany their name on the ballot, in addition to permitting voters to vote for any candidate regardless of party affiliation and advancing the top two vote-getters for each office to the general election.

The 7-2 decision in Washington State Grange v. Washington State Republican Party, with the majority opinion written by Justice Thomas, left the door open to an as-applied challenge to the law and hinted at ways the law could survive such a challenge. Justice Thomas identified the key issue as "whether a primary system that indicates each candidate's party preference on the ballot, in effect, chooses the parties' nominees," or at a minimum whether voters will assume "that the parties associate with, and approve of [the nominees]." After footnoting that the First Amendment does not give political parties a right to have their nominees designated as such on a ballot, the majority opinion asserts that there is no basis to assume that voters will conclude that a political party approves of a particular candidate.

Mississippi purged ten-thousand voters one week before the March primary, even though some voters were at the polls a few months ago, WLBT3 reported. Mississippi Secretary of State Delbert Hosemann said the purge may violate a federal law that prevents purges within 90 days of a federal election.

Circuit clerk Lee Westbrook explained the election commission used jury summons and voter ID cards not delivered by the post office to determine which voters to place on inactive status.

ACS recently hosted a conversation among state legislators on promoting political participation in the electoral process.

Chief Justice Roberts and his wife, Jane, are two of just 33 people in their county's half a million voters to use a little-known “confidential voter” exception to Maryland's public records law, which allows them to avoid having to list their address, birth date, party affiliation and history of electoral participation.

In Brief

• Voter ID fraud isn't a big problem, but printing enough ballots may be
• Congress examined the state secrets privilege and is considering amendments to FISA while the White House allowed the Privacy and Civil Liberty Oversight Board to go dark
• President Bush has filled nearly all vacant spots in the Justice Department's Office of Legal Policy while current and former DOJ officials face protests by law students

Mississippi State Supreme Court Chief Justice Jim Smith called for the appointment of state appellate judges rather than their election, citing increasingly expensive judicial campaigns and an ongoing federal judicial bribery investigation. Law and policy experts across the country have expressed similar concerns.

A recent study found that campaign donations to Louisiana Supreme Court justices by litigants — and not the judge's underlying philosophical orientation — often sway the outcome of cases, reported the New York Times. The Brennan Center for Justice and the Justice at Stake Campaign have compiled extensive information on judicial elections.

The Michigan Law Review’s companion journal First Impressions published an online symposium on recent proposals for electoral college reform.

Follow this link for background materials on voting and democracy from ACS, including video of panel discussions and issue briefs discussing a wide range of issues.

A study by Tulane law professor Vernon Valentine Palmer finds that campaign donations to Louisiana Supreme Court justices by litigants -- and not the judge's underlying philosophical orientation -- often sway the outcome of cases, with larger donations having greater effects, according to an article by Adam Liptak in the New York Times.

Novelist John Grisham discusses the judicial election process in this interview with Bill Moyers on his new book, The Appeal.

The Brennan Center for Justice offers extensive information on judicial elections here.

"Texas Attorney General Greg Abbott has prosecuted 22 cases of voting or other election fraud in nearly six years, and none would have been prevented with a law requiring photo IDs at polling stations, officials from his office told state lawmakers on Friday," according to an article in the Denton Record Chronicle.

For more information on the intersection between voter-ID laws and the right to vote, follow this link to a January 2008 discussion of the topic.

In a letter, Montana governor Brian Schweitzer declared his opposition to the federal REAL ID Act, calling on governors of 17 other states to join him in confronting the federal government. The Department of Homeland Security says that it will not accept driver’s licenses from non-complying states starting on May 11th.

If no resolution is reached, residents of those states would not be able to use their driver’s license to enter a federal courthouse or board a plane without a pat-down search. Over 20 states have already passed resolutions opposing the Act.

by Justin Levitt, Counsel, Brennan Center for Justice at NYU School of Law

On January 9, the Supreme Court will hear argument in two consolidated cases testing the constitutional limits on a state’s ability to set procedural rules that restrict the franchise. The cases, collectively known as Crawford, challenge an Indiana law requiring voters at the polls to provide certain documentation: identification cards with an expiration date and photograph, issued by the state of Indiana or the federal government.

The Court’s opinion is likely to have an impact far beyond Indiana. It will refine the standard determining what states must show in order to justify a direct burden on the ability to cast a valid vote. And in so doing, it will set the ground rules governing which eligible American citizens will be able to exercise their right to vote, and which eligible citizens will not, in 2008 and beyond.

The broad contours of the legal framework for regulating the right to vote are clear: burdens on the franchise must be justified. The greater the burden, the more compelling the required justification, and the more closely the regulation at issue must be tailored to the asserted need. Lesser burdens are evaluated with a broader brush, but because they too impact the fundamental right to vote, they must still be justified by the interest asserted.

"Indiana's voter-ID law is harmful and worthless," argues Sri Srinivasan and ACS Board of Advisors Member Walter E. Dellinger in a commentary in Slate.

Because a photo-ID requirement exists to prevent a type of fraud that appears to be imaginary, the requirement would be hard to justify even if it imposed only a minimal impact on legitimate voters. But a photo-ID law in fact imposes substantial burdens on the right to vote. Studies generally show that somewhere in the range of 10 percent of voting-age citizens—or more than 20 million people—lack a government-issued photo ID. Many of these people do not drive and do not have a license, the most common form of government-issued ID. Lower-income, minority, and young and old voters are far more likely to be in this group. In that light, it is unsurprising that the Indiana photo-ID requirement was enacted on a strict party-line vote, with no Republican voting against the measure and no Democrat voting in its favor. . . .

Defenders of the voter-ID law say that the Supreme Court shouldn't second guess Indiana's legislators. In many areas of the law, that is a reasonable stance. But laws burdening the right to vote are different. As the late legal scholar John Hart Ely pointed out years ago in his classic work Democracy and Distrust, independent courts should not leave to legislators the final word on the rules by which legislators themselves are elected or ousted. At a time when partisan suspicion about the electoral process is potentially corrosive, the court needs to exercise its independent judgment about laws such as Indiana's—and guard against unfair burdening of the right to vote.

ACS recently hosted a press briefing on the Supreme Court cases Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita. The cases concern the constitutionality of an Indiana statute mandating that in-person voters produce government-issued photo identification.

Experts from a variety of perspectives discussed the justification for the Indiana law, the burden that it may place on potential voters, the standard for reviewing the law, and the possible impact of a Court decision on future voting rights challenges. The Supreme Court is scheduled to hear oral argument on these cases on Wednesday, January 9.

Moderated by Tova Wang, Democracy Fellow, The Century Foundation, the panel included Deborah Goldberg, Democracy Program Director, Brennan Center for Justice at New York University School of Law; Bradley A. Smith, Professor of Law, Capital University Law School; FEC Commissioner 2000-2004, Chairman 2004-2005; and Jon M. Greenbaum, Director of the Voting Rights Project, The Lawyers' Committee for Civil Rights Under Law. Streaming video is available here.

This weekend's New York Times Magazine provides extensive coverage regarding the reliability of electronic voting machines. From the article:

The upshot is a regulatory environment in which, effectively, no one assumes final responsibility for whether the machines function reliably. The vendors point to the federal and state governments, the federal agency points to the states, the states rely on the federal testing lab and the local officials are frequently hapless.

This has created an environment, critics maintain, in which the people who make and sell machines are now central to running elections. Elections officials simply do not know enough about how the machines work to maintain or fix them. When a machine crashes or behaves erratically on Election Day, many county elections officials must rely on the vendors — accepting their assurances that the problem is fixed and, crucially, that no votes were altered.

Full video and video excerpts from a briefing hosted by ACS on the Supreme Court cases Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita are now available in ACS' Multimedia Library.

ACS' panel on the Indiana Voter ID Law and the Supreme Court will be broadcast live on C-SPAN this morning from 9:30-11 a.m.

The press briefing will focus on the Supreme Court cases Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita, both of which concern the constitutionality of an Indiana statute mandating that in-person voters produce government-issued photo identification.

Experts from a variety of perspectives will discuss the justification for the Indiana law, the burden that it may place on potential voters, the standard for reviewing the law, and the possible impact of a Court decision on future voting rights challenges.

The Supreme Court is scheduled to hear oral argument on these cases on January 9, 2008.

The panel features:

• Deborah Goldberg, Democracy Program Director, Brennan Center for Justice at New York University School of Law
  
• Bradley A. Smith, Professor of Law, Capital University Law School; FEC Commissioner 2000-2004, Chairman 2004-2005
  
• Jon M. Greenbaum, Director of the Voting Rights Project, The Lawyers' Committee for Civil Rights Under Law
  
• Moderator, Tova Wang, Democracy Fellow, The Century Foundation

About 14,000 people have not been able to register because of Florida's ''no match'' law that requires a citizen's name on a voter registration form be matched with a Social Security number or driver's license number. The law has been challenged by the NAACP and other groups that say the law unfairly blocks blacks and Hispanics from being able to register to vote. . . .

''The disenfranchisement, however unintentional, causes damage to the election system that cannot be repaired after the election has passed,'' Mickle wrote in the order. . . .

Justin Levitt, an attorney for the Brennan Center for Justice at the New York University School of Law helping with the lawsuit, hailed the ruling and said it should lead to the state clearing the way to place those 14,000 people on the voter rolls.

Jennifer Maranzano, a staff attorney with the Advancement Project, wrote a guest blog post on the consequences of Florida's election law, with an explanation of the "no match" regulation. ACS hosted a panel discussion on the impact of voter-identification laws on democracy.  ACSblog also summarized the Brennan Center's report on "the Truth about Voter Fraud." ACS also released an issue brief by Professor Jocelyn Benson that examines federally mandated language accommodations in the Voting Rights Act.

(H/T Election Law)

A magnet and a PDA are sufficient to change votes on a voting machine, Wired reports.

They found that a voter or poll worker with a Palm Pilot and no more than a minute's access to a voting machine could surreptitiously re-calibrate the touch-screen so that it would prevent voters from voting for specific candidates or cause the machine to secretly record a voter's vote for a different candidate than the one the voter chose. Access to the screen calibration function requires no password, and the attacker's actions, the researchers say, would be indistinguishable from the normal behavior of a voter in front of a machine or of a pollworker starting up a machine in the morning.

More than 3 million ballots cast in the 2006 election were not counted, according to a survey of the 2006 election conducted by the federal Election Assistance Commission as reported in Wired. Of that number, nearly 350,000 absentee ballots were not counted and 65,000 provision ballots were not counted.

Rick Hasen reports that the Department of Justice has filed a "disappointing" amicus brief in the voter ID case Crawford v. Marion County Election Board.

According to a statement (quoted by Hasen) by Wendy Weiser of the Brennan Center for Justice:

The Department of Justice is taking an extreme legal position, which, if accepted, would mean that there could be virtually no challenges to laws suppressing the vote before an election.  Their position is that you can almost never bring a constitutional challenge to a voting law before it causes harm.  This means that any law meant to suppress the vote would have already accomplished its goal of disenfranchising voters before it could be challenged in Court.  Their position, taken to its logical extent, would allow jurisdictions to suppress the votes of tens of thousands of voters before a single aggrieved voter could get their day in Court.

The state of Indiana has the most stringent voter ID law in the country.  The facts make clear that Indiana's law -- rather than preventing fraud -- is actually disenfranchising substantial numbers of voters, especially minority and low-income voters, students and seniors.  The Bush administration’s brief stretches both the law and the facts to create an inaccurate and skewed picture of the effects of Indiana’s voter identification law.

ACS recently held this panel discussion on whether voter ID laws prevent fraud or suppress the vote. The Brennan Center released a report entitled "The Truth About Voter Fraud," which explains that most claims about voter fraud "simply do not pan out."

On October 23, 2007, ACS hosted a panel at the National Press Club, where leading experts discussed how voter photo-ID laws impact our democracy. The U.S. Supreme Court will hear argument on Wednesday, January 9, 2008, in Crawford v. Marion County Election Board, which will examine the constitutionality of requiring voters to show photo ID. More coverage of the 2007-2008 Supreme Court Term is available here.

The Federal Election Commission adopted rules on Tuesday that permit issue advertisements placed by corporations and unions in the run up to an election to mention a political candidate so long as the ad does not mention an "election, political party or an opposing candidate, or take a stand on a candidate's character, qualifications or fitness for office," the Associated Press reported. The Commission also voted to require public disclosure when an advertisement has been paid for by a corporation or union.

The FEC's ruling allowing issue advertisements in the days preceding an election was prompted by the U.S. Supreme Court's decision in Wisconsin Right to Life, which overturned a provision of the Bipartisan Campaign Reform Act of 2002 that had prohibited corporations and unions from running any ad mentioning a candidate's name within 30 days of a primary or 60 days of a general election (case summary, ACS briefing) as violating the First Amendment.

Rick Hasen, professor at Loyola Law School, explores the effects of the rule change in a blog post entitled "Corporate Funded Sham Issue Advocacy Will Soon Hit Election 2008."

For general information on voting and democracy, follow the link to ACS' Issue Group.

The Brennan Center for Justice recently released a fifty-page report entitled "The Truth About Voter Fraud," which explains that many claims of voter fraud "simply do not pan out."

Crying “wolf” when the allegations are unsubstantiated distracts attention from real problems that need real solutions. If we can move beyond the fixation on voter fraud, we will be able to focus on the real changes our elections need, from universal registration all the way down to sufficient parking at the poll site. Claims of voter fraud are frequently used to justify policies that do not solve the alleged wrongs, but that could well disenfranchise legitimate voters.

ACS recently hosted a panel discussion entitled, "Voter ID Laws: Preventing Fraud or Suppressing the Vote?" Video from that discussion is available here.

ACS hosted a panel discussion yesterday entitled, "Voter ID Laws: Preventing Fraud or Suppressing the Vote?" Video from that discussion is available here.

The panel featured:

• Julie Fernandes, Senior Policy Analyst and Special Counsel, Leadership Conference on Civil Rights (Real Video / Windows Media)
• Deborah Goldberg, Democracy Program Director, Brennan Center for Justice at NYU School of Law (Real Video / Windows Media)
• Robert Kelner, Partner and Chair of Election and Political Law Practice, Covington & Burling LLP (Real Video / Windows Media)
• Spencer Overton, Professor of Law, George Washington University Law School (Real Video / Windows Media)
• Moderator, Tova Wang, Democracy Fellow, The Century Foundation (Real Video / Windows Media)

Professor David Schultz of Hamline University just released his forthcoming law review article "Less than Fundamental:  The Myth of Voter Fraud and the Coming of the Second Great Disenfranchisement." Professor Schultz argues:

A second great disenfranchisement is afoot across the United States as yet again voter fraud is raised as a way to intimidate immigrants, people of color, the poor, and the powerless from voting. This time the tools are not literacy tests, poll taxes, or lynch mobs, but instead it is the use of photo IDs when voting.

The full article, to be published in the William Mitchell Law Review, is available here.

by Jennifer Maranzano, staff attorney with Advancement Project

On September 17, 2007, the Florida branch of the NAACP, the Haitian-American Grassroots Coalition, and the Southwest Voter Registration Education Project filed a lawsuit challenging a Florida statute that could disenfranchise tens of thousands of eligible citizens. The law bars any Florida citizen from registering to vote if the state cannot match or otherwise validate the driver’s license or Social Security number on a registration form. 

Plaintiffs argue that this “matching” process unduly delayed or denied registrations for thousands of Florida voters in 2006, and will jeopardize many more voters in 2008. A federal judge in Washington State struck down a similar law in 2006. Several other states, including California, Maryland, North Carolina, Pennsylvania, and Texas, have scrapped their "no match, no vote" policies. Florida is one of the outlier states that continue to require this error-laden “matching” process prior to registration.

Plaintiffs and advocates are especially concerned about this law’s impact on communities of color. For example, Florida’s law would affect Latino voters who use maternal and paternal surnames and Haitian Americans whose first two names are hyphenated, both of which may be entered differently in different databases. Additionally, the law could particularly impact the African-American community in which it is more common to have unique names and spellings.

On October 10, 2007, ACS hosted a panel of distinguished former Department of Justice officials to discusses principles and best practices to guide the Department of Justice under the next Attorney General. Video of that discussion is available in the ACS Multimedia Library.

The panel included:

• Dawn Johnsen - Professor of Law and Ira C. Batman Faculty Fellow, Indiana University School of Law-Bloomington; former Acting Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice
• Joseph D. Rich - Director of Fair Housing and Community Development, Lawyers' Committee for Civil Rights Under Law; former Chief of the Voting Section, Civil Rights Division, U.S. Department of Justice
• James K Robinson - Partner, Cadwalader, Wickersham & Taft LLP; former Assistant Attorney General, Criminal Division, U.S. Department of Justice; former U.S. attorney for the Eastern District of Michigan
• Moderator Ronald Klain - Former Chief of Staff to the Attorney General; former Associate Counsel to the President
• Note: Bruce Fein, former Department of Justice official in the Reagan administration, was unable to attend because of a last-minute court appearance.

In a recent Slate article published yesterday, Dahlia Lithwick argues that the Senate Rules Committee should not approve Hans A. von Spakovsky to a full term on the Federal Elections Commission. Why?

Von Spakovsky was one of the people who helped melt down and then reshape the Justice Department into an instrument aimed at diminishing voter participation for partisan ends. . . . [E]ven a brief poke at his résumé shows a man who has dedicated his professional career to a single objective: turning a partisan myth about voters who cast multiple ballots under fake names . . . into a national snipe hunt for vote fraud.

 

The hearing is today.

The Senate will hold a vote tomorrow on the District of Columbia House Voting Rights Act of 2007  (specifically, order Number 257 to invoke cloture) to determine whether the bill will advance to the Senate Floor (bill available here).

ACS held a briefing and released an issue brief on Congressional Authority to Extend Voting
Representation to Citizens of the District of Columbia

Doug Kendall, executive director of the Community Rights Council, has an article in Slate that argues the proposed California referendum to proportionately allocate the state's electoral votes is unconstitutional.

The U.S. Constitution prohibits a ballot measure that would trump a state legislature's chosen method of appointing electors. In Article II, Section 1, the Constitution declares that electors shall be appointed by states "in such manner as the Legislature thereof may direct." That's legislature. California's could scrap its current winner-take-all approach and adopt a district-by-district system for allocating electors (as only Maine and Nebraska currently do). But the voters—whom the initiative supporters have turned to because they don't have the support of the Democratic-controlled legislature—cannot do this on their own.

The argument is further fleshed out on the CRC's web site.

The American Constitution Society's Constitution in the 21st Century project invites you to read Towards Full Participation: Solutions for Improvements to the Federal Language Assistance Laws, an issue brief by Jocelyn Friedrichs Benson, Assistant Professor of Law at Wayne State University Law School.

Professor Benson examines the federally mandated language accommodations in sections 203 and 4(f)4 of the Voting Rights Act, arguing that these accommodations, while important and beneficial, are incomplete. She highlights deficiencies in existing voting protections for citizens with limited English proficiency levels, demonstrating how the protections fail to respond to the changing needs of an increasingly diverse electorate. Benson then suggests a number of remedies to these existing inadequacies.

               The Courts

Judges live in fear after making controversial decisions, reports Law.com.

Greer, who said he's on the federal bench, was one of four current or former judges who appeared in a 90-minute seminar in San Francisco's Moscone Center West to describe how their lives were affected by their rulings in high-profile cases involving hot-button issues. . . .

Many judges believe the current presidential administration has exacerbated the problem by blaming unpopular rulings on "activist judges."

At the annual ABA convention, Justice Breyer says the last term was "a difficult one," reports the AP.

Jamin Rashkin at Slate examines how, in his opinion,  lower courts are protecting constitutional rights as the Supreme Court strips them away.

But even as the Supreme Court conducts broad U-turns on fundamental questions like free speech and racial equality in public schools, many lower courts—including some dominated by Republican appointees—have been acting with vigor to protect the rights of the people.

Findlaw's Michael Dorf argues "the Supreme Court wreaks havoc in the Lower Federal Courts -- Again." He argues a Court decision, Twombly, concerning "the standard to be used by federal district judges in deciding whether to dismiss a lawsuit before allowing the plaintiff to conduct civil discovery . . . has perplexed the hundreds of federal judges who have already had to confront dismissal motions citing Twombly."

Louis Fisher and David Gray Adler discuss whether "we can still count on the Court to protect the rights of citizens." They argue "such trust in the powers of one branch is and has always been misguided."

               The War on Terrorism

"Federal appeals court will hear arguments next Wednesday on whether to stop a class-action privacy suit based on allegations that the government and AT&T Inc. have been working together in an illegal wiretapping program," reports the Washington Post.  The Center for Constitutional Rights "argues that the new legislation violates the First Amendment and the Fourth Amendment," says SCOTUSblog.

The First Amendment claim is based on CCR's belief that its attorneys have been overheard by illegal wiretaps during private telephone calls or e-mails to clients or witnesses and perhaps other attorneys outside the U.S., intruding on attorney-client confidentiality. The Fourth Amendment claim is based on the argument that this overhearing was done without a warrant and with no suspicion of any criminal activity.

The Washington Post examines "How the Fight for Vast New Spying Powers Was Won."

"Mugabe cites U.S. program to justify wiretapping law," says Think Progress.

The Christian Science Monitor has a lengthy report on whether Jose Padilla -- an American citizen held for three years and seven months at the U.S/ Naval Consolidated Brig in Charleston, S.C on terrorism charges --  was tortured.

Padilla's mental health itself is a form of evidence, mental-health experts say, and it strongly suggests that – at least in Padilla's case – the government's harsh interrogation and confinement tactics went too far. . . . "

Padilla's treatment in the brig raises another issue, [legal] scholars say: whether the Constitution ever permits the government to force a man to confess to involvement in terrorist plots and, in doing so, risk destruction of a portion of his mind. . . .

"He is not the same man who was taken into custody in 2002," says Angela Hegarty, a forensic psychiatrist in New York who spent 22 hours examining Padilla. "Whatever happened to him in there has radically changed him. . . ."

Jose Padilla had no history of mental illness when President Bush ordered him detained in 2002 as a suspected Al Qaeda operative. But he does now.

TalkLeft reports on a Newsweek article on whether Guantanamo Bay detainees may be force-fed.

               Law and Politics

No executive appointments during August break, RollCall reports.

Karl Rove has resigned effective the end of August, reports the New York Times. Firedoglake speculates as to why.

 Attorney General Alberto Gonzales admits "top aids got political briefings," reports the Washington Post.

Justice Department officials attended at least a dozen political briefings at the White House since 2001, including some meetings led by Karl Rove, President Bush's chief political adviser, and others that were focused on election trends prior to the 2006 midterm contest, according to documents released yesterday.

               Other News

Malfunctioning voting machines at the GOP Iowa Straw Poll forces a manual recount, according to Daily Kos.

A hearing on predatory lending and sub-prime loans has caught Melissa Ryan's attention.

This Thursday, the Senate Judiciary Committee will hold a hearing on the Deceptive Practices and Voter Intimidation Prevention Act of 2007, a bill which would prohibit lying to voters in order to discourage them from showing up at the polls.  According to the bill's findings, it was introduced in response to a history of such practices:

(6) Shortly before the 1990 midterm Federal elections, 125,000 voters in North Carolina received postcards providing false information about voter eligibility and a warning about criminal penalties for voter fraud. Ninety-seven percent of the voters who received postcards were African American.

(7) In 2004, Native American voters in South Dakota were prevented from voting after they did not provide photographic identification upon request, despite the fact that they were not required to present such identification in order to vote under State or Federal law.

(8) In the 2006 midterm election, 14,000 Latino voters in Orange County, California received mailings from the California Coalition for Immigration Reform, warning them in Spanish that `if you are an immigrant, voting in a federal election is a crime that can result in incarceration...'. In fact, an immigrant who is a naturalized citizen of the United States has the same right to vote as any other citizen.

(9) In the same 2006 election, some Virginia voters received automated phone messages falsely warning them that the `Virginia Elections Commission' had determined they were ineligible to vote and that they would face severe criminal penalties if they tried to cast a ballot.

(10) In 2006 in Maryland, certain candidates for Governor and United States Senator distributed fliers in predominantly African-American neighborhoods falsely claiming that the candidates had been endorsed by their opponents' party and by prominent figures who had actually endorsed the opponents of the candidates.

The bill provides for both civil and criminal penalties against persons who make statements they know to be false to voters with the "intent to prevent another person from exercising the right to vote . . . ."  It also allows for injunctive relief against people distributing disinformation to voters.

The Supreme Court held today that the Bipartisan Campaign Reform Act violates the Constitution by preventing an issue advocacy group by running ads during the election season.  ACSBlog previously featured this case in its midterm review:

Campaign Finance

In McConnell v. FEC (2003), a 5-4 Supreme Court upheld the virtually all provisions of the Bipartisan Campaign Reform Act (BCRA) against claims that the law violates the First Amendment.  Justice O’Connor cast the deciding vote in that case, and her departure leaves the staying power of McConnell uncertain less than four years after it was decided.  This term, the Roberts Court’s decisions in FEC v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life could strip Congress of much of its power to regulate campaign finance. 

The narrow issue in WRtL relates to a provision of BCRA directed towards “sham issue ads,” which purport to advocate a position on a particular issue (“call Senator X, and tell her to . . .”) but which has the alleged effect of enticing voters to vote for or against a candidate for federal office.  In order to prevent such ads, BCRA includes a prophylactic measure which prohibits corporations and unions from running any ad mentioning a candidate’s name within 30 days of a primary or 60 days of a general election.

A potential broader issue is whether longstanding limits on corporations influencing elections will continue to stand.  In Austin v. Michigan Chamber of Commerce, the Court held that because of “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas,” corporations may be categorically barred from contributing to political campaigns.  Justice Kennedy dissented in Austin, and he reiterated this view in McConnell, in which his dissent characterized Austin as “an indefensible departure from our tradition of free and robust debate.”  If the Court’s newest Justices share Justice Kennedy’s view, corporations could soon find themselves with new power to influence federal elections.

Reversing a trial court decision holding a Voter ID law unconstitutional, the George Supreme Court held today that the plaintiff challenging the law lacked standing to sue.  The court expressed no view on the merits of the case, instead holding that, because the plaintiff in this case was qualified to vote at the time her suit was filed, she could not challenge the law for unconstitutionally depriving her of her right to vote.

The Annenberg Public Policy Center and FactCheck.org is sponsoring a conference on judicial campaigns in the states tomorrow, Wednesday, May 23, 2007 from 1:00 – 4:00 p.m. at The National Press Club

In 2006, an estimated $16 million was spent on advertising in Supreme Court races in 10 states, more per race than ever before, with an escalation in fierce and often misleading attack ads. Veterans of the ad wars -- consultants, judges and close observers -- will discuss these trends and what 2008 will bring.

For more on the conference, see this flyer.

Ed’s Note: This is the fourth part of ACSBlog’s series on the Supreme Court cases awaiting decision this Term.  Previous installments of this series are available here, here and here. 

Campaign Finance

In McConnell v. FEC (2003), a 5-4 Supreme Court upheld the virtually all provisions of the Bipartisan Campaign Reform Act (BCRA) against claims that the law violates the First Amendment.  Justice O’Connor cast the deciding vote in that case, and her departure leaves the staying power of McConnell uncertain less than four years after it was decided.  This term, the Roberts Court’s decisions in FEC v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life could strip Congress of much of its power to regulate campaign finance. 

The narrow issue in WRtL relates to a provision of BCRA directed towards “sham issue ads,” which purport to advocate a position on a particular issue (“call Senator X, and tell her to . . .”) but which has the alleged effect of enticing voters to vote for or against a candidate for federal office.  In order to prevent such ads, BCRA includes a prophylactic measure which prohibits corporations and unions from running any ad mentioning a candidate’s name within 30 days of a primary or 60 days of a general election.

A potential broader issue is whether longstanding limits on corporations influencing elections will continue to stand.  In Austin v. Michigan Chamber of Commerce, the Court held that because of “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas,” corporations may be categorically barred from contributing to political campaigns.  Justice Kennedy dissented in Austin, and he reiterated this view in McConnell, in which his dissent characterized Austin as “an indefensible departure from our tradition of free and robust debate.”  If the Court’s newest Justices share Justice Kennedy’s view, corporations could soon find themselves with new power to influence federal elections. 

Bong Hits 4 Democracy

Via TPM:

The section, which is charged with protecting the voting rights of minorities, has seen a dramatic drain in African-American staff over the past few years. And a number of those who have remained have alleged discrimination -- according to a knowledgable source, at least two African-American employees have filed Equal Employment Opportunity complaints against their supervisors, claiming they've routinely been passed over for promotions given to white staff.

 

Carl Goldman, executive director of AFSCME's Council 26, the union that represents non-attorney staff in the Justice Department's Civil Rights Division, told me that he frequently hears similar complaints:

“When I ask our members in the Civil Rights Division what’s their biggest problem, their answer is discrimination.... They tell me stories about minority employees being continually passed over for jobs that are given to white employees. They talk about disrespect from managers. They talk about explicitly racist comments that are made by attorneys, the same attorneys that have been brought in by the Republican political appointees that run [the Justice Department].

"While there are serious problems throughout the Civil Rights Division," Goldman said, "the worst offender is the voting section.”

UPDATE: Deputy Attorney General Paul McNulty to resign.

By Randy Enochs, Editor at Large

By now most of us have probably heard about the controversial “remake” of the 1984 Ridley Scott-directed Super Bowl commercial depicting Senator Hillary Clinton (D-NY) as Orwellian IBM and Senator Barack Obama (D-IL) as liberating Apple.  Right about now many pundits who author blogs are beginning to place big, bright banners, links and e-mail addresses on their websites to support their current choice for our next President.  The internet is an innovation parallel to television, radio and newspaper, and, in many instances, more influential and reaching.  However, the Bipartisan Reform Act of 2002 (BCRA), an important piece of legislation passed into law with a purpose of addressing issue ads, does not currently apply to the internet.  With the role the internet plays in politics via blogs and video clip websites like YouTube, many argue that BCRA should be extended. 

            The issue of applying the BCRA to the internet was at the fore back in March and September of 2005 when Senator Harry Reid (D-Nevada) introduced a bill that called for the inclusion of the internet in the BCRA and the Committee on House Administration held a hearing on the subject of regulation of political speech and activity on the Internet.  In the hearing, the Committee heard from several legislators, election law experts and bloggers on whether or not the internet should be included under the Act.  Professor Bradley Smith, a former FEC chair, wrote on this controversy:

In its conference today, the Supreme Court will consider whether to hear Kidwell v. City of Union, a case which considers whether or not elected officials may use public funds to influence an election.  ACSBlog provided coverage of the Sixth Circuit's decision in this case last September:

A decision by Judges Julia Smith Gibbons and Richard Allen Griffin, both George W. Bush appointees, held that "the electoral process - not First Amendment litigation - is the appropriate recourse" against elected officials using public funds to influence an election.

Judge Boyce Martin, a Carter appointee, dissented:

I believe that the Constitution properly prohibits the government from having a horse in the race when it comes to elections. When government advocates on one side of an issue, the ultimate source of governing power is shifted away from the people and the threat of official doctrine exists. Of course, the threat is not as omnipresent today in the United States as it is in some other countries. . . . ordinary democratic controls are insufficient as a remedy in situations where governmental influence threatens to undermine the independent political process. Governmental advocacy and campaign expenditures could arguably threaten to undermine free and fair elections, could be coercive, and could reasonably undermine the reliability and outcome of elections where the government acts as a participant. . . .

In the ordinary case of governmental action outside of an election, political controls can remedy citizen disagreement with governmental actions. Citizens can make their voices known at the ballot box in the next election by voting current officeholders out. Governmental electioneering, however, diminishes the effectiveness of the political response and threatens underlying constitutional values and democratic principles. The outcome of elections ideally should reflect the pure will of the people unpolluted by government electioneering.

Interestingly, the cert petition being considered in this case raises the possibility of the Court prohibiting state funds from being used to influence elections under the Guarantee Clause of the Constitution.  The Guarantee Clause says that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government," but it has been read as a nullity by the Supreme Court.

Regardless of whether the Court should choose to revive the Guarantee Clause as a textual hook for a decision, or instead look to principles implicit in the notion of elected government, the cert petition argues that the consequences of allowing the Sixth Circuit decision to stand would be disastrous:

A sharply divided panel of the Sixth Circuit in this case extended the government speech doctrine beyond all bounds of principle and precedent. According to the panel majority, that doctrine not only entitles the government to speak, but to spend public funds directly to influence the outcome of an election. That holding is not only wrong, but dangerous. In our constitutional democracy, elections are different. Elections are the fundamental check on the government. To hold that the government is free to spend public funds directly to influence the outcome of an election, as the panel majority did here, is essentially to hold that the government is free to ensure its own perpetuation in power. As the dissent below explained, “when the government uses tax dollars to enter an electoral contest and advocate in favor of a position or candidate, it distorts the very check on governmental power so central to our constitutional design—the next election.”

ACS is pleased to distribute an Issue Brief by Richard P. Bress and Lori Alvino McGill, both of Latham & Watkins LLP, entitled "Congressional Authority to Extend Voting Representation to the Citizens of the District of Columbia: The Constitutionality of H.R. 1905."  According to Bress & McGill, a bill to extend voting representation to D.C. residents is constitutional, despite some reports to the contrary:

The United States is the only democratic nation that deprives the residents of its capital city of voting representation in the national legislature. American citizens resident in the District of Columbia are represented in Congress only by a non-voting delegate to the House of Representatives. These residents pay federal income taxes, are subject to any military draft, and are required to obey Congress’s laws, but they have no say in the enactment of those laws. Because Congress also has authority over local District legislation, District residents have no voting representation in the body that controls the local budget to which they must adhere and the local laws that they are required to obey. District residents thus lack what has been recognized by the Supreme Court as perhaps the single most important of constitutional rights.

Congress is presently considering legislation that would eliminate this longstanding anomaly. The House recently approved H.R. 1905, The District of Columbia House Voting Rights Act of 2007 (“D.C. Voting Rights bill”), which would give District residents a voting representative in the House. The voting-rights bill, sponsored in various forms by Delegate Eleanor Holmes Norton (D-District of Columbia) and Representative Thomas M. Davis III (R-Virginia), would permanently increase the size of the House by two members: one for the District and one for Utah, the state next in line for an additional seat.

Although the D.C. Voting Rights bill has garnered considerable bipartisan support, it raises legitimate constitutional questions and has been the subject of a lively academic and political debate. This issue brief considers the questions raised in that debate, including those raised in a recent Congressional Research Service (“CRS”) report, and concludes that the proposed legislation is within Congress’s authority.

Those who argue that Congress lacks the power to enact the proposed legislation (and must therefore proceed via retrocession or constitutional amendment) rely principally on the fact that the plain text of the Constitution provides voting representation to citizens of “States”. That is not, however, the end of the constitutional story. Congress and the federal courts have on a number of occasions treated the District as if it were a state within the meaning of particular constitutional provisions.4

The history of and policies behind the Framers’ creation of the District, the purpose of the Framers’ enumeration of “States” in the Constitution’s provisions for congressional representation, and the fundamental importance of the franchise support the view that those who drafted the Constitution did not, by guaranteeing the vote to state residents, intend to withhold the vote from District residents. The Framers gave Congress plenary power over the District, including the power, for most purposes, to treat the District as though it were a state and District residents as though they were state residents. The relevant legal precedents suggest that this authority is sufficiently broad to give the District a voting representative in the House via simple legislation.

To read the entire Issue Brief, follow this link.

Yesterday, France voted to send two candidates, right-wing leader Nicolas Sarkozy and Socialist Party candidate Segolene Royal, to a run-off to decide the next President of that country.  As Adrien Wing, notes, however one interesting part of this election is just how much French election law differs from that in the U.S.:

The election is held on a Sunday – a nonwork day for most people to maximize participation. Also today, the day before the election is a day of reflection where the media and the candidates desist. No opinion polls can be published and campaigning is barred. People are supposed to discuss the issues among themselves and their friends and families.

Another unusual aspect of French law, reporters are banned from broadcasting the election results until 8pm on election day.

On Thursday, April 12, 2007, ACS hosted a panel discussion on the upcoming consolidated Supreme Court cases, FEC v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life, which deal with whether the "electioneering communications" restrictions imposed by the Bipartisan Campaign Reform Act of 2002 (BCRA) impermissibly limit the free speech rights of nonprofit corporations. Advocates from a variety of perspectives presented their views on the cases and previewed some of the points likely to be raised when the Supreme Court hears oral arguments on Wednesday, April 25, 2007.

The panel featured:

• Michael B. Trister, Partner, Lichtman, Trister & Ross, PLLC (Windows Media | Real)
• Benjamin L. Ginsberg, Partner, Patton Boggs LLP (Windows Media | Real)
• Paul S. Ryan, FEC Program Director & Associate Legal Counsel, Campaign Legal Center (Windows Media | Real)
• Adam C. Bonin, Member of the Firm, Cozen O'Connor (Windows Media | Real)
• Moderator, Amanda Frost, Assistant Professor of Law, American University Washington College of Law

On April 6-7, 2007, ACS co-hosted a Conference on Elections and Democracy at Stanford Law School at which panelists shared perspectives of a wide variety of issues relating to voter participation, voter representation and comparative voting. Other organizations co-sponsoring the conference included the Stanford Constitutional Law Center, the Stanford ACS Student Chapter, the Stanford Law and Policy Review, and the Stanford Chapter of the Federalist Society.

Click here for a review of the substantive discussions in each panel. Streaming video of each panel will also soon be available in the ACS Multimedia Library.

According to a recent op-ed by Brennan Center attorneys Michael Waldman and Justin Levitt, they are about as common:

Before and after every close election, politicians and pundits proclaim: The dead are voting, foreigners are voting, people are voting twice. On closer examination, though, most such allegations don't pan out. Consider a list of supposedly dead voters in Upstate New York that was much touted last October. Where reporters looked into names on the list, it turned out that the voters were, to quote Monty Python, "not dead yet."

Or consider Washington state, where McKay closely watched the photo-finish gubernatorial election of 2004. A challenge to ostensibly noncitizen voters was lodged in April 2005 on the questionable basis of "foreign-sounding names." After an election there last year in which more than 2 million votes were cast, following much controversy, only one ballot ended up under suspicion for double-voting. That makes sense. A person casting two votes risks jail time and a fine for minimal gain. Proven voter fraud, statistically, happens about as often as death by lightning strike.

As a twist, however, they argue that, while individuals rarely engage in voter fraud, a different kind of fraud may be occuring:

Experts have concluded that the most significant threat of fraud comes from electronic voting systems, now used by 80 percent of voters. Legislation introduced by Reps. Rush D. Holt (D-N.J.) and Thomas M. Davis III (R-Va.) would require a voter-verified record along with random audits to double-check against tampering. It would also bar wireless components from machines that could allow a hacker using a PDA to stage an attack. Lawmakers should also immediately stop pushing ID measures that would turn away legitimate voters.

Recent testimony by FBI Director Robert Mueller bolsters Waldman and Levitt's claims:

Schumer: Since 2001, have there been any FBI investigations related to election fraud which you believe should have resulted in an indictment but did not?

Mueller: Not to my knowledge . . . and nothing has come to my level.

Schumer: Has any special agent in charge ever brought such a case to your attention?

Mueller: No, sir.

The White House released a statement today saying that if Congress passes a bill to allow D.C. residents to be represented in Congress, the President's top advisors "would recommend that he veto the bill."  The House is currently considering a bill to allow D.C. residents to elect a Member of Congress, while also granting an additional seat to the conservative state of Utah.  The White House statement joins the opinion of several conservatives who argue that the bill is unconstitutional because it treats residents of the District of Columbia as if they were citizens of states.

At a recent ACS panel, entitled Voting Representation for the District of Columbia, D.C. Appleseed Executive Director Walter Smith argued that these constitutional concerns are unfounded, citing Supreme Court precedent showing that Congress may extend to D.C. residents the same constitutional rights granted to residents of a state:

The closest case that we have to the current situation is a case in which the Supreme Court of the United States upheld the power of the Congress under the District Clause to confer on District residents a right that the Constitution gives only to states. This is a case called Tidewater

Tidewater grew out of the fact that early in our history, Chief Justice Marshall held for the Supreme Court that under diversity jurisdiction, created under Article III of the Constitution, which gives rights only to citizens of states to invoke diversity jurisdiction to go into federal court. The Supreme Court held that, under that clause of Article III, citizens of the District of Columbia cannot be treated as if they are citizens of states, and he invited Congress then to address that issue.

Congress did address that issue, and in the early 1940s Congress passed a law, under the District Clause, treating District residents as if they were citizens of states for purposes of Article III.

ACS is pleased to distribute an Issue Brief by Nicholas Stephanopoulos entitled "Reforming Redistricting: Why Popular Initiatives To Establish Redistricting Commissions Succeed or Fail." In this piece, Stephanopoulos argues that election district lines have often been drawn “in such a way that fundamental democratic values are subverted.” He then closely examines one avenue for redistricting reform: popular initiatives to establish redistricting commissions.

Stephanopoulos reviews each of the 12 redistricting initiatives launched over the course of American history and identifies several factors that appear to predict their success or failure. He finds that the most important reason for the frequent failure of these initiatives is the concerted opposition of the majority party in the state legislature. In fact, redistricting initiatives succeed only when some factor (e.g., favorable national developments, the enthusiastic support of the state’s media establishment, or division between the majority party’s executive branch officials and its legislators) defuses majority party opposition. Stephanopoulos concludes by drawing lessons for the future, specifically offering to proponents of redistricting initiatives a playbook for increasing their chances of success:

Correction: The report cited in this post was released by Project Vote, not the Advancement Project.  We apologize for the error.

In the lead up to the 2006 elections, several state legislatures introduced "Voter ID" acts, which restricted the franchise to persons able to produce a photo ID on election day.  Although these laws reduced access to the ballot box, they were justified on the grounds that they reduce voter fraud, and thus prevent legitimate votes from being diluted.

Several state courts struck these laws down as unconstitutional, noting that few--if any--examples of actual voter fraud have been documented.  The federal courts, however, have been less quick to invalidate voter ID laws.

A new report by the Advancement Project adds additional fodder to the discussion over the constitutionality of these laws.  According to the report, "very little fraud is being committed."  The report also notes that there is a "200-year history in America of elites using voter fraud allegations to restrict and shape the electorate."

The Advancement Project's summary of their findings is available below the fold:

ACS is pleased to release Neutrality Agreements and Card Check Recognition: Prospects for Changing Labor Relations Paradigms, an ACS Issue Brief by Ohio State law professor James J. Brudney.  Under existing law, employers who oppose allowing their workers to unionize may demand a prolonged NLRB election process to decide whether or not the workers shall organize.  Although this election process is often understood to vindicate employee choice by ensuring that a decision to unionize reflects the informed will of the workers, Professor Brudney argues that NLRB elections, which give employers disproportionate power to influence and intimidate workers against supporting unionization, should not be viewed as the best basis for protecting employee choice:

Preliminarily, there is the uncertainty and delay associated with scheduling the election and resolving disputes about its conduct. Unlike political elections, which occur on dates established well before and independent of the campaign itself, NLRB elections may occur anywhere from several weeks to months after a petition is filed. The election date typically is not set until some time after both sides have begun campaigning and may be postponed for months by employer challenges to the composition of the unit. In addition, post-election objections by the employer may delay the results for years. Employers who oppose unionization understand that delay diminishes the ultimate chance of union success. Employees facing these uncertainties and obstacles are discouraged from maintaining interest in unionization.

More important, however, is the impact of employer speech and conduct that is approved under the NLRB election paradigm. The law, as interpreted, permits employers to restrict employees’ speech with co-workers, while forcing them to attend meetings at which well-scripted managers "predict" dire consequences if employees unionize. Employers make use of intense pressure tactics in the overwhelming majority of campaigns. Union organizers who might counter employers' dire predictions are excluded from the worksite altogether in almost all circumstances.

The stark inequality between employer "incumbents" and union "challengers" regarding rights of access to, or speech aimed at, the voters would be unthinkable in a political election setting. Individual employees attending sophisticated captive audience speeches, or participating in one-on-one encounters with their immediate supervisors, understandably may feel intimidated if not coerced by repeated oral, written, and electronic communications linking "union presence" to layoffs, plant closings, and permanent replacement during a lawful economic strike. Even if an employer does not immediately follow through on such predictions, their repeated expression is likely to affect employees as they contemplate the range of subtler deprivations that union supporters may face in the future.

Unlawful employer campaign activity—most notably termination or other retaliation against union supporters—further damages possibilities for a genuinely free choice. Academic observers analyzing annual Board reports have demonstrated that discriminatory conduct against employees increased at an astounding rate between the late 1950s and 1980; this pattern of employer misconduct persists in robust form today. By 1990, there were incidents of unlawful termination in fully 25% of organizing campaigns: one of every fifty union supporters in an NLRB election campaign could expect to be victimized. A more recent study estimated that by the late 1990s, one out of every eighteen workers who participated in a union organizing campaign was the object of unlawful discrimination.

Last September, former D.C. Circuit Judges Patricia Wald and Ken Starr argued that the Constitution grants Congress the power to extent voting rights to D.C. residents:

Congress's specific power over the District of Columbia is one of the broadest of all its powers. In the words of the Constitution, "Congress shall have power . . . to exercise exclusive legislation in all cases whatsoever" over the District. In a 1984 case decided by the U.S. Court of Appeals for the D.C. Circuit, on which we both sat, Judge Abner Mikva noted that through this constitutional provision, the Framers gave Congress "a unique and sovereign power" over the District. In that same case, Judge (now Justice) Antonin Scalia wrote that the broad language of the power gave Congress "extraordinary and plenary" power over our nation's capital. And in another case, that same court held that this broad power gave Congress authority to "provide for the general welfare of citizens within the District of Columbia by any and every act of legislation which it may deem conducive to that end." It is hard to imagine a broader, more comprehensive congressional power than this; and it is also hard to imagine that the power could not be used to advance a fundamental principle of our Constitution -- that the right to vote should be extended to all citizens.

A recent report by the Congressional Research Service, however, takes the opposite viewpoint:

It is true that the power of the Congress over the District of Columbia has been described as “plenary.” To a large extent, this is because the power of the Congress over the District blends the limited powers of a national legislature with the broader powers associated with a local legislature. Thus, for instance, some constitutional restrictions that might bind Congress in the exercise of its national power would not apply to legislation which is limited to the District of Columbia. For example, when Congress created local courts for the District of Columbia, it acted pursuant to its power under the District Clause and thus was not bound by to comply with Article III requirements which generally apply to federal courts. Or, while there are limits to Congress ability to delegate its legislative authorities, such limitations do not apply when Congress del