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.

Related posts

• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)
• Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices (December 9, 2008)

Wisconsin presents an interesting case: it’s a state with a large middle and lower-income electorate, a large rural population, and a state without a substantial African-American vote (unlike South Carolina, Louisiana, Maryland, D.C., and Virginia). On paper, one would expect Hillary Clinton to handily win this state. Many polls even had her up by 10 points the week before the Wisconsin primary. And yet the Clinton campaign (and even many major news sources) played up Obama’s supposedly huge advantage in the state: it neighbors Illinois, Obama has a huge fundraising advantage, and, most importantly, Obama has momentum on his side. There was even talk that Clinton would regain the momentum if she could pull off an “upset” by winning Wisconsin. The expectations game, as shown by Wisconsin and other states that voted this month, is always played using the most immediate data and never in the context of the broader election process. If expectations are established within the 72 hours before any vote, people begin to lose focus on the big picture. Obama’s win in Wisconsin (by 17 points, no less) should hardly be expected, nor should it be credited solely to his momentum. Expectations in Wisconsin should have been based on the previous months’ worth of data from polling as well as a look at the demographics. Viewed through this lens, Obama’s February victories should hardly be expected. March 4th will be the most important day in Hillary Clinton’s political career. There’s a general consensus in the media that Clinton needs to not only win both Texas and Ohio, but win them by convincing 20 point margins simply to stay in the race. But polling data is showing that the race in both states is narrowing quickly. RealClearPolitics has compiled and averaged the results of polls from both Ohio and Texas, and they show 9 and 1 point leads for Clinton, respectively. Obama is closing in quickly with still a week to go. After a month of 11 straight losses and continuous excuses for those losses, the Clinton campaign needs to actually dig in to have a shot at the nomination. But will they? If their past strategy is any indication, they’ll downplay the importance of winning by big margins in the days before March 4th. They’ll cite the most recent polls and argue that even a slim 5 point win by Clinton is reason enough to stay in the race. Some might even dare say that a narrow victory in both states somehow gives Clinton the momentum. Let me make it as clear as possible: Hillary Clinton must win both Ohio and Texas, and must win both by 20 point margins to remain a credible candidate in the Democratic nomination race. Do not be tricked into the crazy expectations games that will inevitably be played in the coming days. With the odd rules and disproportionate allocation of delegates in Texas, anything short won’t be enough to reverse Obama’s momentum.

Related posts

• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• The Obama Rama Party (August 2, 2007)
• The In Vogue Word Of The Day: Stare Decisis (June 28, 2007)

There are things that we can do. For years now, there has been a movement slowly brewing against Judge Keller. Lawyers around the state are mobilizing to prevent this type of travesty from ever happening again. The petition to allow electronic filings in capital cases is certainly an important step in the right direction but the problem is larger than that.

Judge Keller’s behavior is a nauseating example of what happens when judges push their own personal beliefs at the expense of the entire justice system. I for one have had my faith in the Texas judicial shaken by the fact that a rogue judge can deny justice to an individual for some undisclosed reason. To say that she “didn’t care” about Richards would be to suggest that Judge Keller was indifferent or apathetic towards his cause. No, Judge Keller DID care- she cared enough to go out of her way to block review for Mr. Richards’ case. Other judges working that afternoon had already vocalized their willingness to stay 30 minutes late on a friday afternoon in an effort to give a man every possible shot at due process.

I can understand the responsibility that judges have to adhere to rules that have been previously established in order to ensure fairness, but this is nothing short of a complete perversion of the concept of justice. Judges are first and foremost entrusted to produce the most fair outcome possible, especially when it comes to a discretionary decision like the one here. Judge Keller wasn’t adhering to any democratically established guidelines for review. She had the discretion (responsibility?) to use her judgement to extend the time for Mr. Richards’ appeal and she chose not to exercise his delegated responsibilities.

Something about this case gives me the chills. Every time I read about it or even see the headline to my post again, I feel helpless on a level that I don’t often experience. Cases like this are an alarming reminder to myself about why I want to go to law school and practice law. Sure, I’ll probably never experience a case as outrageous as this one or work for the public defender on capital cases like this one but hopefully I’ll be able to do a little bit of good.

Question: How common is it to do any form of pro bono work? I’m curious to see how popular it is for lawyers to give back to their communities. Heaven knows they can afford it.

Related posts

• The Supreme Cost of Un-re-desegregation (July 4, 2007)
• Supreme Court Hands Down Key Opinions (June 25, 2008)
• Supreme Court Clarifies Capital Case Cert. Denials (April 21, 2008)

According to TheRegister (via Engadget), Michael Richards was unable to receive a stay on his execution because his attorney was 20 minutes late to file paperwork no account of a computer problem. It sounds like a number of employees had stayed in their offices late in order to wait for the paperwork to come in for Mr.Richards’ appeal. Unfortunately, Judge Sharon Keller refused to accept any late filings, despite the obvious gravity of a pending execution.

Presiding Judge Sharon Keller refused to allow the appeal to be filed after 5pm, and did not consult with her colleagues on her decision. She said: “I think the question ought to be why didn’t they file something on time? They had all day.” The court does not accept emailed appeals.

Judge Keller has a long history of squashing the rights of the convicted. In 1990, Roy Criner was convicted of raping and killing a young lady, but in 1997 when DNA evidence arose that could have freed him, Judge Keller rejected his right to a new trial, saying “When you look at new evidence, you look at it to see whether it would have made a difference in their verdict. If it would, he gets a new trial. If it wouldn’t, then he doesn’t.” Well, it turns out that he was innocent. Its not surprising then that Judge Keller has built up a considerable amount of resistance from her brash and careless attitude towards the convicted. You can find Judge Keller (Killer?)’s myspace page here.

Just yesterday, I had asked my Constitutional Law Professor if he had any idea why a Texas inmate was allowed to die on Tuesday but not on Thursday. His reply, without knowing the facts of the case, was that there was probably a disparity in the quality of the lawyers involved. I’m not sure how to react to news of a man being put to death using a concoction that may be considered cruel and unusual in 6 months- all because his attorney (presumably a public defender) couldn’t operate his computer properly.

According to the article, Civil Rights advocates are considering an official complaint. I think the Court’s need to show some leniency in cases such as this one and it looks like a number of individuals in the Judge’s office were willing to do just that. The judicial system has long held that individuals on death row deserve to be given a special degree of protection from the Courts. This belief extends back to Powell v. Alabama (1932) where the Court held that states must give defendants in capital cases access to council.

In the light of the facts outlined in the forepart of this opinion — the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility, the imprisonment and the close surveillance of the defendants by the military forces, the fact that their friends and families were all in other states and communication with them necessarily difficult, and, above all, that they stood in deadly peril of their lives — we think the failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear denial of due process.

Regardless of the legality of Judge Keller’s decision, it makes my stomach churn to think that a man was denied a stay on his execution because his lawyer couldn’t turn in his petition on time and that a Judge couldn’t stay at work for an extra 20 minutes in order to accept his plea.

Related posts

• No related posts detected.

According to the law, a person can commit a hazing offense not only by engaging in a hazing activity, but also by soliciting, directing, encouraging, aiding or attempting to aid another in hazing; by intentionally, knowingly or recklessly allowing hazing to occur; or by failing to report, in writing to the Dean of Students, first hand knowledge that a hazing incident is planned or has occurred. The fact that a person consented to or acquiesced in a hazing activity is not a defense to prosecution for hazing under this law.

HAZING DEFINED
…
D. any activity that intimidates or threatens the student with ostracism, that subjects the student to extreme mental stress, shame, or humiliation, or that adversely affects the mental health or dignity of the student or discourages the student from entering or remaining registered in an educational institution, or that may reasonably be expected to cause a student to leave the organization or the institution rather than submit to acts described in this subsection;

DANGEROUS OR DEGRADING ACTIVITIES
…
- – Any form of individual interrogation;
- – Lineups for the purpose of interrogating, demeaning, or intimidating;
- – Any type of servitude that is of personal benefit to the individual members;
- – Wearing of embarrassing or uncomfortable clothing;
- – Intentionally messing up the house or a room for clean up;
- – Demeaning names;

I’ve only quoted 10% of the memorandum because I genuinely believe that 90% of it is rational and that 100% of it was created in good faith. Many of the ‘DANGEROUS OR DEGRADING ACTIVITIES’ that were listed in the original document are genuinely harmful acts such as excessive alcohol consumption and blatant physical harm. However, it seems to me like the University of Texas may have broadened the scope of § 37.151(6)(D) which extends the definition of hazing to acts that “threatens the student with ostracism.” The University and the Legislature are concerned (for legitimate reasons) that fraternities and sororities will mentally push students into leaving the University and dropping off the face of the earth because a brother or sister was being mean to them.

Despite this, the penal code seems to be unreasonably broad and the University takes full advantage of that fact with the crimes that it considers hazing. I’m not sure how the University has been enforcing the hazing statute, but it certainly is threatening to punish individuals for crimes that could could very questionably be considered contrary to the impermissibly vague statute.

Related posts

• No related posts detected.

This post (by correctly explaining how Karl Rove’s recent GOP strategy PowerPoint (.pdf) violated the Hatch Act by being presented on federal property) intrigued me. Then I got sucked in by the observation that, in 2008, every southern state save Florida will hold a Senatorial election. Although Rove believes Texas will remain “uncompetitive,” this morning’s edition of The Dallas Morning News and Markos Moulitsas Zúniga of DailyKos think that this “could get interesting.”

Democratic challenger Mikal Watts, an ultra-wealthy former trial attorney from San Antonio AND a former Longhorn great (Kedar will be excited), says he “doesn’t enter races that [he can’t] win.” That’s interesting to me, because he also doesn’t enter races he can win. He has zero political experience, and will have to count on an optimistic DNC to get serious. That shouldn’t be a problem, though, because he banked $1.2 million for Dean at an April fundraiser. The DMN further notes that Watts’ $4 million dollar donation to his own exploratory committee (good job closing that finance loophole, Mr. McCain) has matched the entire warchest of Cornyn. I am amused (as is Sarah White in her recent letter to Mikal Watts) by the enormity of this number.

The real question becomes how much money one needs to get elected in Texas, where state-wide Democrats sport a promising 0% victory rate since 1994. Those of us acquainted with Texas politics have grown frustrated with a state that blindly re-elects incumbents over better-qualified challengers. Hutchinson took down 69% of the vote against Radnofsky last cycle, and that isn’t the kind of number that’s likely to earn a second look from DNC strategists. Gary is really more of a congressional expert than I am, but maybe (just maybe) we should be more optimistic about Watts.

First of all, I can’t figure out why he thinks he’s a Democrat (and this is good). He uses the RNC line “decided by the states” on gay marriage, and calls himself “pro-life with three exceptions [rape, incest, and the life of the mother].” I don’t think his brilliant idea about “[needing] to get out of the war” is really that much of a partisan issue anymore, and I can’t find any more policy positions. BurntOrangeReport took Texas’s temperature on Watts this morning, and incited copious comments about the legitimacy of his candidacy. My opinion? He doesn’t have a Wikipedia page – so don’t get your hopes up. Unfortunately, Sean McConeghy at Republican Senate seems to share my sentiments.

Watts seems to be banking on anti-Cornyn sentiment as the major cornerstone of his alleged electability, but this is the kind of dangerous mentality that won’t excite national consultants. Still, a slight window of opportunity might exist. SurveyUSA finds 42% of Texans (and 50% of Hispanics) disapprove of Cornyn, which is far more than the 35% who disapproved of Hutchinson last November.

Ultimately, the tone of the 2008 congressional elections will largely depend on how excited voters are to vote for President (take their pulse at our Election Tracker). After all, people love to pull a straight ticket. Oh, also? He’ll have to beat Rick Noriega for the Democratic nomination – and a lot of people (notably including myself and TexasLiberal in this post) think that could be quite a task.

Related posts

• You Can’t Filibuster the Glory OR Liveblogging the Filibuster (July 18, 2007)
• The GOP’s Political Suicide (July 2, 2007)
• Justice Stevens and Roe v. Wade’s Initial Reception (July 30, 2007)

Turns out Dallas didn’t quite agree with me on the Oakley issue. You can read an article analyzing how Leppert won here. Basically, he’s not gay.

In equally unnewsworthy news, today is the last day of Laura Miller’s tenure as Dallas mayor. She fixed a lot of potholes, built a big homeless shelter (man, that was expensive!), pissed off smokers, presided over some agreement about a ineffectual airport that I really don’t understand, didn’t really do anything about crime, and was generally mediocre at best. You can read an article about her legacy here.

Tom Leppert today announced his intention to make Dallas, one of most business-friendly cities in America, business-friendly. He also wants to make us safer. I for one am enthused by his innovative, unconventional thinking.

Related posts

• No related posts detected.

The best candidate is City Hall veteran Ed Oakley. Oakley, 54, is an experienced city councilman who currently serves as chair of the Trinity River Project. Oakley’s strong showing in the May election can be attributed in part to his support from the gay and Hispanic communities, specifically in Oak Lawn and Oak Cliff. Leppert, 52, is a former Reagan staffer who rose to prominence in Dallas while serving as CEO of the Turner Construction Company. Mr. Leppert’s campaign brilliantly exploited the Park Cities and corporate Dallas to become a formidable fundraiser. Oakley – a Democrat – has struggled to win support from conservative areas, and has faded over the last week as Leppert continues to secure more local endorsements. Only this morning, the Dallas Mayor Pro-Tem Don Hill – himself a peripheral candidate last month – urged his supporters to vote Leppert.

All four of the other Dallas citizens who watched Friday’s mayoral debate (full video) will also be voting Oakley. Repeatedly, Oakley’s use of details made Leppert’s tangential and rehearsed answers appear foolish. Leppert, who has never held public office, could not avoid looking inexperienced when directly juxtaposed with a candidate who was clearly better prepared, more knowledgeable, and more articulate. At times, some of Leppert’s ideas seemed like they hadn’t been fully thought through.

The best example is Leppert’s policy position on public education. He spoke frequently of how education changed his life, invoking his Harvard scholarship no fewer than three times. Although Leppert’s optimism about education is refreshing, he fails to explain how he can legitimately impact the system from the largely detached post of Mayor. I giggled when Leppert deconstructed the DISD acronym for his perplexed St. Mark’s-graduate supporters, and wondered how a man with a Harvard education could have such an amusingly bizarre interpretation of an “independent” school district. Fortunately, DMN political correspondent Gromer Jeffers used the word “specific” in his follow-up question. Leppert then conceded that he could not actually guarantee any logistical changes – but he promised that several unnamed members of the DISD board had already given him assurances that they would “appreciate his support.” Desperately looking to save face on his lead campaign issue, Leppert then confusingly explained how the mayor has certain (conspicuously unnamed) tools – presumably a reference to a Johnson-esque bully pulpit – with which he can influence education.

When it comes to the Trinity River, Oakley is clearly the better candidate. During the course of the entire debate, Leppert mentioned the Trinity only once, and even then only in passing. As Chair of the committee that translated Laura Miller’s generalized promises into detailed, financially responsible blueprints, Oakley has proven that he can exhibit forceful leadership on environmentalism. Leppert’s company, on the other hand, was fined over $6 million for illegal dumping (a fact that could not be simply refuted or explained during the debate, even when Leppert was given direct opportunity).

Perhaps the largest single individual issue in the race, however, is Oakley’s sexuality. Oakley, who has publicly acknowledged his homosexuality since the beginning of his work in local politics during the early 90s, says that the issue “never comes up” and that, even after the election, his orientation will still be “a part of who [he is].” If elected, Oakley would be the first openly gay mayor of a major city in US history – a fact indicative of the progress Dallas has recently made on issues of tolerance and racial harmony.

The DMN published a thought-provoking story earlier this week documenting the decline of “the gay factor” in influencing politics. City Hall responded yesterday by holding closed-door hearings discussing the possibility of “censuring” Oakley for being gay.

Seriously?

The “gay factor” has some Oakley extremists up in arms, though. They argue that Leppert excessively flaunts his nuclear family at joint appearances, and that this essentially amounts to homophobic campaigning. But Leppert, whose ridiculous “I Love Dallas! (and Dallasans (?))” radio spot should’ve cost him a spot in the runoff, used the debate as a forum to express his indifference to Oakley’s personal life. Equally excessive are some Leppert supporters who note that Oakley’s Wednesday TV spot stresses Leppert’s facial tick, an accusation that Oakley articulately shut down during the debate.

And then there’s the issue of negative campaigning. Many Oakley supporters (including myself) were disappointed to see the malicious ad he dropped last week. Nonetheless, the ad beautifully accomplished its goal of instilling doubt in the leadership style and “construction credentials” of Leppert. For those of you thinking of voting Leppert in protest, take a look at the direct mailing released by the Leppert camp the previous week, which was equally nasty.

On the whole, Leppert is clearly running on his admirable experience at Turner, while Oakley is leaning on an even more admirable reputation earned by dedicated service to Dallas for more than a decade. I am entirely convinced that Oakley is substantially more qualified for the post than is Leppert. Oakley is admittedly detail-oriented, but I believe this can be shaped into an asset that Dallas desperately needs after too many years of Laura Miller’s glittering generalities. Oakley might not have gone to Harvard, but he is considerably more informed when it comes to Dallas.

Early voting begins today. Election day is June 16.

Related posts

• No related posts detected.

The Court held this week in Abdul-Kabir v. Quarterman and Brewer v. Quarterman that the instructions given to the jury in Abdul-Kabir’s trial “prevented jurors from giving meaningful consideration to constitutionally relevant mitigating evidence.” Interestingly, the Court held that if evidence could “diminish his blameworthiness … even as it indicated a probability that he would be dangerous” the evidence is not required to be considered by a jury. The Court ruled that the Fifth Circuit misinterpreted the Supreme Court’s ruling on these issues.

Related posts

• The Supreme Cost of Un-re-desegregation (July 4, 2007)
• Supreme Court Hands Down Key Opinions (June 25, 2008)
• Supreme Court Clarifies Capital Case Cert. Denials (April 21, 2008)

More on the Death Penalty Cases coming soon.

Related posts

• Supreme Court Hands Down Key Opinions (June 25, 2008)
• Per Curiam decisions are better than unanimous decisions (May 21, 2007)
• Kennedy v. Louisiana Closed (October 6, 2008)

The Court established what is now known as the Lemon Test in the 1971 case Lemon v. Kurtzman. It reads:

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion…finally, the statute must not foster an excessive government entanglement with religion(internal quotations omitted)

The state legislature very carefully phrased their legislation to indicate only a secular legislative purpose. The Court has long held that intent grossly outweighs the technical wording, but the legislature has taken the necessary precautions to reasonably argue this prong of the test. The state can also argue that offering these classes merely offer information on a class and neither ‘advance nor inhibit’ religion. There are very few interpretations of this legislation that can pass the final prong of this test, the ‘excessive entanglement’ portion. There is no way for a school to offer a course on the Bible without necessarily having to teach one view of it over another. Even on minute details, schools would be forced to teach one view over another, forcing the government to become a proponent of one religious view over another.

The 1992 case Lee v. Weisman offers a similar conclusion. In Lee, the principal of a school invited a Rabbi to offer prayer at a school’s graduation ceremony. The Court ruled this ‘subtle coercive pressure’ to be in violation of the 1st Amendment’s free practice clause. Here is an excerpt from the opinion:

The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. Of course, in our culture standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real. There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the Rabbi’s prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it.

A prayer during a commencement ceremony and an optional class have important differences- the former is significantly more of an imposition on an unwilling student. Whatever the differences may be, both place social pressure on students to conform to a standard that the school is promoting.

You can track this legislation here.

Related posts

• Thoughts on Pleseant Grove v. Summum (April 11, 2008)
• The People v. God, et al. (May 16, 2007)
• Supreme Court Grants Review in Animal Cruelty/First Amendment Case (April 20, 2009)