DailyWrit

I’ve been thinking a lot lately about the role clerks play and how they influence the way cases are accepted and decided. Obviously they play a huge role in Cert. Pool (which Justices Stevens and Alito forgo) as well as writing the opinions once they are ready to be distributed.

In today’s order’s list (here), Justice Stevens dissents from a number of denials of cert. It seems likely that his rogue behavior has to do with the fact that he has his own clerks write briefs specifically targeted to him. Its relatively rare to see a Justice singled out as dissenting from a denial of cert. and it it should be noted that in today’s list he dissented from four separate denials.

With Justice Alito’s decision to remove himself from the cert. pool, the pool will grow less efficient and it will be interesting to see if his decision will influence future Justices.

Audio files from the October Term 2007 are now online over at Oyez. You can find them here.

Recommended listens: Announcement of Boumediene v. Bush and Oral Arguments in Danforth v. Minnesota.

There is a fascinating fight going on behind the scenes of a case about to reach the Supreme Court. The argument more or less boils down to whether a local attorney who has been with a case for a decade or an experience Supreme Court advocate fresh to the case should argue in front of the Court. They motioned for divided time but the Court said no so they have to duke it out sometime before arguments on November 3rd. The BLT has more on the case here.

Tom Goldstein (of SCOTUSblog) will most likely be arguing against whoever is chosen to represent the state.

The Supreme Court yesterday heard arguments in Winter v. Natural Resources Defense Council, a case revolving around Navy sonar exercises off the coast of California and their potential impact on the environment.

Justices on both sides of the normal ideological division seemed unpersuaded by the NRDC. Justice Breyer at one time asked,

I will express a little frustration. Not your fault. But why couldn’t you work this thing out? I mean, they are willing to give you quite a lot of conditions, and you say, well, we have got to have more conditions. And you are asking us who know nothing about whales and less about the military to start reading all these documents to try to figure out who’s right in the case where the other side says the other side is totally unreasonable. And the issue at law seems to be something that is going to last for two months. So — so, why? What is so — what is the important thing here?

The argument eventually came down to deciding whether or not the Navy was required to file an Environmental Impact Statement before it could proceed with the sonar training. An Environmental Assessment had been conducted which concluded that the training was most likely harmless to marine mammals in the area. The Navy failed to file a more comprehensive EIS and Justice Souter noted that the Navy was acting “in a state of some degree of ignorance greater than would e the case if it .. had done the EIS” Justice Scalia was adamant that the only harm caused here was procedural - that no EIS had been filed - and that was insufficient to confer standing to the NRDC to file against the Navy.

The NRDC argued quite simply that the original finding by the district court was justified by evidence in the case and unless it was ‘clearly erroneous,’ it should not be overturned by this court. Justice Alito found it odd to justify a single judge’s opinion of a military exercise overturning the determination of the Military.

In the end, it looks like Justice Breyer will almost certainly side with the Chief Justice and Justices Scalia and Alito. As usual, Justice Thomas didn’t say anything but if you assume that he will side with his fellow conservatives, then the case is closed. Justice Kennedy is harder to read although he expressed some skepticism at the NRDC’s claims and to be honest- the standing argument is pretty persuasive. The NRDC also pushed the idea that beaked whales were being beached en mass by the Navy’s use of sonar and the Navy refuted that claim, but the science of the matter may be lost on both sides. The conservatives will likely claim that the experts and evidence point in their direction, the liberals will claim that it weighs in their favor.

The Court heard oral arguments on Tuesday in Herring v. US, a case that revolves around whether or not the exclusionary rule applies in scenarios where there is an error made by the police. Plaintiff was arrested after police where mistakenly notified that a warrant was out for his arrest. The warrant had been withdrawn five months earlier but the Court’s clerk mistakenly did not update computer records to reflect the withdrawal.

The Court has long held that a mistake by the police in arresting someone can be considered probable cause if the officer in question believes he is correctly applying the law. As Justice Scalia points out, if an officer mistakenly searches someone whom he believes to have just stolen, the contents of that search can be submitted in court. The question Chief Justice Roberts and Justice Scalia have, is what substantive difference is there between that scenario and this one? Pamela Herring, counsel for Bennie Herring, argues that the difference is that a warrant is not enough to spark probable cause for a crime. The argument goes that a warrant itself does not create probable cause and that a warrant is only a reaction to probable cause that lead to its creation.

Justice Scalia has long been known to be in favor of severely curtailing the exclusionary. During arguments he took issue with Mrs. Herring’s assertion that police departments would ‘willy-nilly not keep track of warrants’ if the exclusionary rule were not in place.

Michael Dreeben spoke next, in favor of the US. He argued primarily that imposing the exclusionary rule in an isolated instance like this one would not deter future police action and is therefore not a valid application of the exclusionary rule.Justice Stevens and Ginsburg were particularly concerned with the effects that the removal of the exclusionary rule would have on police behavior.

Its hard to tell exactly how this case will be decided, but the four horsemen as well as Justice Kennedy appeared to be firmly in favor of siding with the Government. Justice Scalia has long been in favor of peeling back the Exclusionary Rule in favor of a more flexible guideline in place in most countries around the world. The exclusionary rule in the United States is considerably more restrictive of police behavior than its counterparts elsewhere in the world. Justice Kennedy seemed sufficiently convinced that there were enough safeguards in place to prevent police from abusing power in most circumstances. He specifically mentioned §1983 in a number of instances and seemed to believe it may be powerful enough to prevent police negligence.

Apparently I’m late on this, but Adam Liptak at the New York Times reports that Justice Alito has opted out of the Cert. Pool. The Cert. Pool is a system in which Justices pool together their clerks to review cert petitions more efficiently. One clerk will review petitions and draft a memo that is circulated to all of the participating Justices. For years, eight of the nine Justices had participated with only Justice Stevens reviewing all petitions within his chamber.

Justice Alito’s decision to remove himself from the pool is surprising. As the Junior Justice, it shows that he is coming into his own on the Court and possibly that he may be hoping to get a more customized view of the cases before him. His clerks are more likely to know what he wants to see and he can choose his votes accordingly.

The Court convened Monday to begin the new term and first heard oral arguments in Altria Group v. Good. The case revolves around whether or not federal labeling regulations on the use of ‘light’ or ‘low-tar’ cigarettes preempts state deceptive advertising claims.

Theodore Olsen opened arguments on the day on behalf of the tobacco companies and had a relatively comfortable exchange with the justices. Justices Ginsburg and Breyer first expressed concern that a ruling against the states might silence an overly broad swath of deceptive advertising claims against cigarette companies and Mr. Olsen conceded that its “probably true in most cases [that] … regulations at the State level having to do with cigarettes and advertising by and large [are] going to have to do with smoking and health.

Olsen also completely drops the implied preemption argument. The briefs filed earlier on the matter argue at length that a federal regulation like that of the FTC places an implied preemption over the states. He argued before the court that in most deceptive advertising cases, the FTC works in conjunction with state regulators and it is specifically because Congress mentioned cigarette advertising like it did that this realm is preempted.

David Frederick began arguments for the state of Maine with a lengthy exchange with the Chief Justice and Justice Alito, both of whom were hard pressed to find a distinction between this case and Riegal v. Medtronic, a case decided last year that applied preemption over the states for a seemingly similar statute.

The argument then shifts over to a discussion over the damages that the plaintiff is seeking. Justice Souter leads a line of questioning over exactly what damages the plaintiff is hoping to recover and Frederick explains they they are seeking the “difference in value between a product we thought we were buying and a product we actually bought.” He continues that certain economist have argued that people are more likely to quit smoking if they know the full effects of smoking and the deceptive labels ‘light’ and ‘low-tar’ merely prolonged their use of tobacco because they thought they were buying a safe product. The problem, as Justice Souter points out, is that in order for this story to play out, the cigarettes sold must be proven to be unsafe or at the least, there must be a discussion of the relationship between smoking and health. At that point, Justice Souter argues, the case is clearly preempted by federal law. Mr. Frederick adamantly argues that the link between smoking and health is irrelevant, the question here revolves around a general truth-in-advertising regulation.

Mr. Frederick brings up an interesting argument during a dialogue with Justices Kennedy and Ginsburg. Under Riegal and past preemption cases, an attorney general or any private party may bring suit against a cigarette company for lying about the tar or nicotine content of a light cigarette, but an attorney general may not regulate cigarette makers to place labels on their cigarettes saying that they are not less harmful. The reason being, a broad regulation like that would not leave open the possibility of cigarette companies to prove that their cigarette actually contains less tar.

During argument on behalf of the federal government, Justice Alito made his opinion on the whole matter very clear:

JUSTICE ALITO: The FTC’s position seems to me incomprehensible. If these figures are meaningless, then you should have prohibited them — are misleading, you should have prohibited them a long time ago. And you’ve created this whole problem by, I think, passively approving the placement of these figures on the — on — in the advertisements. And if they are misleading, then you have misled everybody who’s bought those cigarette for a long time.

The arguments in this case seem clearly lopsided. Justices across the board were confused at exactly how this case is any different from recently decided cases and long-held precedents concerning federal preemption over deception advertising statutes. The only question I have about his case now is whether it will be decided 7-2 (Ginsburg, Breyer on the bottom,) or 9-0.

The Court last week decided to end months of speculation in Louisiana v. Kennedy when it struck down a motion for rehearing and simply issued a revised opinion. The move is not unprecedented but it is extremely unusual and done only in very specific circumstances. The modified opinion can be found here.

Justice Kennedy wrote an order discussion his alterations to the opinion (here) and Justice Scalia wrote a statement in response (here.) Justice Kennedy was joined by each of the four members who had joined his original majority opinion and Justice Scalia was joined by the Chief Justice.

It is important to note that in his statement accompanying the dismissal of the motion for rehearing Justice Scalia notes that he had voted against rehearing because “the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case.” Only Justices Alito and Thomas had voted in favor of rehearing.

Tomorrow, the Cathedral of Saint Matthew the Apostle will host the 55th Red Mass.

Tradition holds that, on the Sunday before the opening of the Court’s October term, the Catholic Church hosts a mass to bring wisdom and guidance to the Justices of the high court. Although the current Court is a 5-4 majority of Catholics, many of the non-Catholic Justices often join other public officials at the event (Justice Breyer, who is Jewish, has attended in the past). You can find pictures and a bit of history about this fascinating tradition here.

Certainly, we all join the Church in wishing health to the Justices this term. Well, all of us except those buying up contracts in the Intrade market for which Justice will die next.

The state of Louisiana and attorneys for Patrick Kennedy have filed petitions arguing whether or not the Court should rehear the landmark death penalty case as a result of research oversight. The original petition for rehearing can be found here. You can find the Petitioner’s brief in opposition of rehearing here, the Respondent’s brief in favor here, and the US Solicitor General’s amicus brief here.The Court held in its original opinion that issuing the death penalty for the rape of a child constituted excessive punishment partially and based at least a sliver of its argument on the fact that there had been a national concensus establishing the principle already.

Earlier this summer is was revealed that part of a broad appropriations bill contained language making the death penalty an appropriate punishment for the rape of a child in military proceedings. The error was first spotted by Dwight Sullivan in a post on his blog, CAAFlog. Eugene Fidell, a lawer and husband of Linda Greenhouse, the famed New York Times Supreme Court reporter, discovered the blog post and told his wife about it. She wrote an article about it that would later appear above-the-fold on the New York Times and the rest, as they say, is history.

Supporters of the death penalty argue that this action by Congress shows that there is, in fact, a clearly established concensus on the national level favoring the use of the death penalty for these crimes. The argue that the Court has always acknowledged that they play a role in interpretting the Constitution and that Congress interpretted the Constitution to allow the death penalty in this case should influence the Court’s decision.

Opponents of rehearing have argued that this revelation attacks only half of the court’s overall argument and is a weak attack at that. As Kennedy’s brief argues, if the Court had been notified of the legislation, “it might have warranted a footnote in this Court’s opinion.” The Supreme Court also has the option of rejecting the recent revelation on the principle that it is now too late in the appellate process to bring up a new argument.

The biggest obstacle facing Louisiana is the fact that they have to convince at least one member of the Kennedy majority to vote in favor of rehearing. A petition for rehearing must be approved by five justices meaning one of the justices who originally voted with the majority opinion would have to vote in favor of rehearing the case and would presumably be interested in changing their vote on the case.

The Court will sit for its first conference of OT08 on Monday, September 29th and they will likely release a long list of accepted cases on the 30th. Kennedy may be among those or it may later be dismissed unceremoniously in an order’s list later in the coming weeks.

The Supreme Court is scheduled to hear its first case of the new term on Monday, October 6. The first case of the day will be Altria Group and Phillip Morris v. Good, a case that centers around whether a suit filed by the state of Maine against Phillip Morris and others for deceptive advertising by using ‘light’ and ‘lowered tar and nicotine’ cigarette labels. You can find the petitioner’s brief here, respondent’s brief here, and the reply brief here.

Federal Cigarette Labeling and Advertising Act of 1965 requires cigarette companies to report their cigarettes nicotine and tar contents based on procedures now known as the ‘FTC Test.’ Cigarette makers are then allowed to advertise their cigarettes with descriptors like ‘light,’ ‘low tar,’ and ‘reduced tar and nicotine’ based on the results of these tests. The Labeling Act also expressly denied the states the power impose additional restrictions upon cigarette companies based on health risks based on the idea that any additional regulations could seriously impead the flow of interstate commerce and the national economy.

15 USC 1334

(a) Additional statements
No statement relating to smoking and health, other than the statement required by section 1333 of this title, shall be required on any cigarette package.
(b) State regulations
No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.

A suit was filed in the state of Maine alleging that the use of these descriptors violates state deceptive advertising law based on the fact that descriptors be misleading not because the cigarettes may in fact have lowered contents of tar and nicotine, but because smokers are more likely to smoke more of these cigarettes or take deeper breaths, ultimately intaking the same amount of tar and nicotine that they would recieve from normal cigarettes.

The district court sided with PMUSA and offered summary judgement based on the idea that arguments proposed by the respondent were necessarily intertwined with the debate over the health of cigarettes and were therefore preempted by the Labeling Act.

The First Circuit reversed and held that the state’s suit was not preempted by the Labeling Act despite the fact that they acknowledged that the argument was centered around the relationship between ’smoking and health.’ The court of appeals reasoned that the Labeling Act’s protection against state action on things related to ’smoking and health’ did not preempt a broader state-law duty.

According to many Court-watchers, the Court is likely to clarify its preemption jurisdiction in a way that furthers the Riegel v. Medtronic(2008) line of precedent in which general state-law obligations to be preempted by more specific federal preemption clauses. A similar case was decided in the Fifth Circuit with a different outcome and the Court will not be asked to clarify the real meaning of the Labeling Act’s preemption protection. One of the biggest questions during oral arguments will be the question of how this case is any different from Riegel, decided less than a year ago. The answer, it seems, is not very much.

The State of Louisiana filed for reharing in Louisiana v. Kennedy, the landmark death penalty case in which the Court held, 5-4, that capital crimes cannot Consitutionally include non-life ending crimes such as child rape. The state filed a petition for rehearing earlier this summer and since then the Federal Government has asked to join them in requesting a rehearing of the case in light of the oversight of a possibly significant federal military law that the Court had never been notified of and likely did not know was on the books.

The court issued is final orders list of the summer last week (here) and, once again, did not take action on the case. The next time the court is expected to hand down orders is on September 29 after its first conference of the new term.

Barack Obama has chosen a running mate that shares his views on fiscal policy, healthcare, education, the war on terror, and…Clarence Thomas? It seems that the presumptive Democratic nominee, fresh off his remarks at Saddleback, has selected Senator Joe Biden (D-DE) as his VP. Biden is widely-respected as the Chair of the Senate Committee on Foreign Relations, but before he assumed this position he was Chair of the Senate Committee on the Judiciary (1987-1995; ranking member: 1981-1987, 1995-1997). Biden thus has an interesting track record on Supreme Court nominations ⎯ one that already has the McCain camp swooning as they scramble to label him a judicial extremist. But is this a fair assessment?

Biden’s first major test as Chairperson came in June 1987, when President Reagan nominated Robert Bork, then sitting on the United States Court of Appeals for the District of Columbia, to replace the retiring Justice Lewis Powell. Within the hour, Senator Edward Kennedy had taken the floor of the Senate to share his infamous vision of “Robert Bork’s America.” Biden’s Judiciary Committee kept the pace, asking tough questions about privacy and the separation of powers. Bork’s candid testimony before the Committee earned him a reputation as an extremist, and the ACLU bolstered this idea by recommending for only the third time in its 67-year history that a Supreme Court nominee by rejected. The Judiciary Committee concurred, and recommended by a vote of 9-5 (Biden in the majority) that Bork be rejected. Shortly thereafter, Bork’s nomination failed by a floor vote of 42-58, with Biden voting nay.

Bork, who felt slighted by the media and by the Senate, resigned the Fifth Seat on the DC Circuit in 1988; Ronald Reagan soon nominated a veteran of his administration, Clarence Thomas, to fill this vacancy. In the summer of 1991, Biden would face his second test as Judiciary Chair when Thomas was nominated to the Supreme Court. The hearings [Biden-laden transcripts here] were notably divisive, colored by Anita Hill’s allegations of sexual misconduct. Like the American Bar Association, the Judiciary Committee was divided on Thomas’ qualifications; and, like the ABA, the Committee ultimately chose not to make a recommendation and silently sent the nomination to the full floor. Thomas was then confirmed by a vote of 52-48, with Biden again voting nay.

Beyond his Constitutional role in providing advice and consent , Biden used his position on the committee to push through quite a bit of legislation. Some of these bills have been legally dubious. (The Violence Against Women Act of 1994, for example, was ruled in part unconstitutional in United States v. Morrison 529 U.S. 598 (2000).) However, most of his legislation in this committee an elsewhere has been marked by an earnest desire to improve the lives of everyday Americans.

I would suggest that Joe Biden is one of the finer legal minds in this country, and certainly was the finest on Obama’s shortlist (although Tim Kaine did teach law at the University of Richmond for some six years). And so I guess my point is that, if elected, Biden would be an interesting asset to President Obama if he’s tasked with filling vacancies on the high court. Considering the likelihood that Obama could have as many as six nominations, maybe even liberals should be reading a little more closely into Biden’s record.

Earlier tonight, Senators John McCain and Barack Obama joined Pastor Rick Warren at his California megachurch for an event pegged as “The Saddleback Civil Forum on the Presidency.” The interviews, each an hour in length, were separated by thirty-six tense seconds in which the presumptive nominees shared the stage (and an awkward hug [video here!]). Warren asked both men the same questions, about faith and freedom, sacrifice and glory, about abortion, and stem cells, and taxes. And then he threw something of a curveball, first to Senator Obama:

WARREN: Which existing Supreme Court Justice would you not have nominated?

OBAMA: That’s a good one. That’s a good one. I would not have nominated Clarence Thomas. I don’t think that he…I don’t think that he was a strong enough jurist or legal thinker at the time for that elevation, setting aside the fact that I profoundly disagree with his interpretation of a lot of the Constitution.

And then to Senator McCain:

WARREN: Which existing Supreme Court Justices would you not have nominated?

McCAIN: [Pause] With all due respect…Justice Ginsburg, Justice Breyer, Justice Souter and Justice Stevens.

The discussions generated by this question provided a rare and candid window into how these men regard the nomination process. Obama argued throughout his discussion of the Judiciary that jurists ought be nominated on the basis of merit and experience. McCain, on the other hand, argued that nominations

should be based on the criteria of proven record of strictly adhering to the Constitution of the United States of America and not legislating from the bench….some of the worst damage has been done by legislating from the bench.

A discussion of Chief Justice Roberts then presented the opportunity for both men to contrast their ideal Justice with one who was currently serving. McCain mentioned that Chief Justice Roberts and Justice Alito were among his “most recent favorites.” He lauded both men as “very fine” and said that he was “proud of President Bush for nominating them.” Senator Obama voiced a slightly different opinion of Chief Justice Roberts:

WARREN: How about John Roberts?

OBAMA: John Roberts….I have to say was a tougher question only because I find him to be a very compelling person, you know, in services individually. He’s clearly smart, very thoughtful. I will tell you that how I’ve seen him operate since he went to the Bench confirms the suspicions that I had, and the reason that I voted against him and I’ll give you one very specific instance, and this is not a stump speech.

WARREN: All right. When I pick this up it means –

OBAMA: Exactly. I’m getting the cues. I’m getting the cues. One of the most important jobs of…I believe the Supreme Court is to guard against the encroachment of the Executive Branch on the power of the other branches, and I think that he has been a little bit too willing and too eager to give an administration - whether it’s mine or George Bush’s - more power than I think the Constitution originally intended.

Also receiving a shot out from Obama was Justice Scalia:

OBAMA: I would not nominate Justice Scalia although I don’t think there’s any doubt about his intellectual brilliance because he and I just disagree, you know. He taught at University of Chicago, as did I in the Law School.

I was pleased to see Obama acknowledge that Justice Scalia is “intellectually [brilliant]” and that Chief Justice Roberts is “clearly smart, very thoughtful,” even though these Justices’ interpretations of the Constitution are hardly in lock-step with his own. McCain, on the other hand, listed every single member of the Court’s liberal contingent (with special disgust for Justice Souter) when asked who he wouldn’t nominate.

But Senator McCain really caught my attention by speculating that, during the next four years, “there will be two, maybe three vacancies” on the Supreme Court. In a recent post I argued via a regression model that the next president would have exactly this many vacancies to fill in the next four years, so it’s good to know someone’s listening. But I think McCain was trying to scare the audience by using a number instead of a phrase like “several” or “a few”; by underscoring just how important the next president is going to be in deciding the future direction of the Court, he is endearing himself as a “best of the worst “option to right-wingers who might not be so hot on some other elements of his agenda. Nevertheless, by so prominently promising to nominate originalist jurists, McCain is backing himself into a corner. And I hope that doesn’t mean that he’ll overlook qualified jurists as a matter of process.

For those intrested, the full transcripts from the event are available here.

UPDATE: A lengthier discussion of these exchanges is available in tomorrow’s edition of The Wall Street Journal, courtesy of their shockingly conservative Editorial Board.

All of this John Edwards business has got me thinking about early voting. I am registered to vote in Texas, where Election Codes 81.001 and 82.005 specify that I can ”vote early” – up to seventeen days before any federal election. Say, hypothetically, that John Edwards had rallied for a victory in South Carolina and was a viable candidate on the Texas Democratic Primary. Say that one day before the election – on March 3 – the Rielle Hunter story had broken. Say, for the sake of argument, that I had voted early, for John Edwards, on March 1.

I would wish that I could take my vote back. But is there a constitutional claim imbedded in my (hypothetical) buyer’s remorse?

On cursory inspection, the Constitution appears to answer this question by reserving the dating of elections as a power of the states. Article 1, Section 4 provides:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

But in 1999, the Voting Integrity Project brought suit against the Secretary of State of Texas in the United States District Court for the Southern District of Texas, alleging that portions of Texas Election Code pursuant to early voting violated 2 USC 7, which states:

“Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States…of the United States, of Representatives and Delegates to the Congress…”

In Voting Integrity Project v. Bomer (99-20757), the District Court denied VIP’s motion for summary judgment and, on appeal in 199 F.3d 773 (5th Cir. 2000 00:00:00), the Fifth Circuit Court of Appeals affirmed. The Supreme Court declined to review the decision.

The Fifth Circuit’s decision is a fascinating read that draws heavily on Foster v. Love 522 U.S. 67 and U.S. v. Classic 313 U.S. 299. The decision provides three basic reasons why early voting is not de facto unconstitutional.

First,

Because the election of federal representatives in Texas is not decided or “consummated” before federal election day, the Texas scheme is not inconsistent with the federal election statutes as interpreted by the court in Foster.

Second, the Court could not

“logically hold that Texas’ system of unrestricted advanced voting violates federal law without also finding that absentee balloting–which occurs in every state– violates federal law.

And, finally, the Court could not

conceive that Congress intended the federal election day statutes to have the effect of impeding citizens in exercising their right to vote.

There is certainly a lot of room for debate here, and I would be very curious to see what the Supreme Court would have to say. Clearly the bulk of the decision is in the Court’s first point. The second reason occurs to me as something of a cop out, not really speaking to the issue at hand. The third reason seems backwards: is it not true that the right to vote is best exercised when the most information is available? If not, why not just vote in all states on a rolling basis? After all, having an “election day” or even an “election period” (ie: an election day preceded by two weeks of early voting) inherently impedes the right to vote by making it impossible to vote outside of these temporal boundaries.

The Court’s first justification rests entirely on Foster’s definition of “election”; specifically it calls into question whether the act of voting is completed upon the casting of a vote or upon its counting. If the Court had interpreted the act of voting to be complete upon its casting, then I firmly believe they would’ve overturned the District Court. This surely would’ve generated a lot of media attention, and might have given the case a better chance of being heard by the SCOTUS. The stare decisis inherent in the Circuit Court’s deferral to Foster is palpable, and, at times, the decision itself seems to beg for higher review. For example, the entire crux of the decision depends on an interpretation of “the final act of voting,” yet the majority opinion itself notes that

there is room for argument about just what may constitute the final act of selection within the meaning of the law [emphasis mine]

For now, most of the debate surrounding early voting is happening in the states. In 2006, a Maryland Circuit Court Judge for Anne Arundel County ruled that early voting violated a provision of the state constitution that called for all elections to be held on the same, “election day.” Connecticut has had similar debates, and a few people on the internet have recently been calling for a cases similar to VIP to be filed in other states. I, for one, think something like the hypothetical I described earlier would bring some much needed attention to the issue. But unless Obama’s been unfaithful to Michelle, this is just an interesting what if.