Brennan Center for Justice

A Way Out of the Senate Logjam NOW

ReformNY — 2009-07-01T19:18:00-05:00

The mess in the State Senate is starting to have serious consequences. After a three-week deadlock over control of that body, the Senate today watched a number of deadlines pass. Several jurisdictions had hoped to extend or increase certain taxes to fill budget holes, and there is confusion over who controls New York City schools. Meanwhile, a bill to increase jobless benefits cannot be passed, power rates for many local businesses are likely to spike because subsidies have expired, and several local jurisdictions are warning that they may have to raise property taxes and fire local employees, including police.

Various members have noted that they are "embarrassed" and "frustrated" by what's happened. There is a simple solution to getting us out of this morass, and Senator Frank Padavan may have inadvertently provided it when he walked into the Senate chamber yesterday looking for a cup of coffee. Democrats claimed they had a momentary quorum, and that all subsequent matters voted on should count.

While nobody seems to be buying this claim, it raises an obvious question: why doesn't one member, working with the Governor, break this logjam -- at least for non-controversial items that will allow local jurisdictions to balance their budgets.

After all, every session for the remainder of the month will be an extraordinary session. The Governor sets the agenda, and article IV of the state constitution dictates that Senate can only vote on those items he gives them permission to address. A member of either party, Democrat or Republican, can simply wander over to the other side and LET them have a quorum for the day. Important legislation that everyone agrees needs to be passed can be passed.

In this scenario, the Senate can keep fighting over who gets to call himself Majority Leader until next year -- but important legislation, thousands of jobs and the economy of the State would no longer be held hostage by the bickering factions.

Of course, this would mean earning the wrath of one party leader or another -- but all for the good of the people of New York, something that frustrated voters would certainly understand. Can we have a volunteer?

Caperton Sparks Debate About Money in Judicial Elections

Brennan Center for Justice — 2009-07-01T17:15:00-05:00

Originally posted on Rick Hasen's Election Law Blog:

Rick Hasen: For what it's worth, I agree with James. I think Linda understates the potential of the opinion to change the role of money in judicial elections. It is true Justice Kennedy talks a lot about this being an extreme case, but the standard is vague enough (as C.J. Roberts' 40 questions proves) that this could take on a life of its own in the lower courts. And in the meantime, those who would throw big money around elections might decide it is risky to do so. In any event, she expressed a certainty I don's have.

Linda Greenhouse: I sense a bit of "Linda, how could you" from my friends in the progressive community from my failure to salute the outcome in Caperton. I didn't mean to put words in former Chief Justice Phillips' mouth. Yes, he told Tony Mauro that the decision established "a principle that is really important." But here' -- what he also said in that interview that led me to characterize his views as I did -- his views on the decision itself, let me emphasize, not on the principle:

He said that as he read the holding, it was limited to the following: Due process is violated ONLY (my emphasis) when: "(1) a person (2) with a personal stake in a particular case (3) had a significant (4) and disproportionate influence (5) in placing the judge on the case ... (6) when the case was pending or imminent." He went on to conclude: "Given how narrow that holding is, I'm not sure Caperton will ever be direct precedent for another recusal."

That's what the man (much more expert that I on this issue) actually said, and that's what my post reflected. My personal opinion is that if that's all there is, or all that a majority can manage to extract from the extraordinary facts, I'm not sure this case was worth the effort.

Linda Greenhouse on Caperton

James Sample — 2009-07-01T16:56:00-05:00

Linda Greenhouse's analysis, posted by Rick yesterday, is effectively limited so as to exclude real-world implications apart from a decision being used as direct, dispositive precedent. Particularly on the score of judicial disqualification, where the vast, vast majority of the lifting is done by the rules, which are now plainly reinforced by a floor of constitutional magnitude, such a scope of analysis is unduly confined. The narrow view that for a decision to be effective or meaningful it must be capable of being immediately operationalized as dispositive precedent it itself and in a wide class of cases is myopic.

That said, Greenhouse makes a surprising error in both accuracy and judgment when she attributes her own views to Texas Chief Justice Tom Phillips. The last sentence of Greenhouse's post states that Phillips "suggests that very little will come of Caperton in the end." She is simply wrong to attribute that view to Phillips, who categorically does not hold it.

Phillips served, along with Roy Schotland and George Patton, as counsel on the Conference of Chief Justices amicus brief. The very fact that the Conference filed a brief in the case is telling. It was the first time in the Conference's history as an organized entity that it filed in review of a state rather than federal court judgment, i.e., in review of one of its own. The CCJ is on the front lines, a fact not lost on the Court which discussed the brief, which while formally in support of neither side, was clearly and indisputably supportive of Petitioners' position, a theme repeatedly referenced during oral argument.

The CCJ's brief said, in essence two things: (1) that they believed due process could be jeopardized by the very type of outlier level of spending and circumstances in Caperton, AND (2) that if the Court ruled - as it ultimately did - without drawing a bright line, then they were well prepared to deal with that challenge.

So far the facts are already bearing that second prong out. Consider just briefly, the following facts rather than characterizations. Since Caperton, Nevada, Wisconsin, Michigan, West Virginia, Ohio, and Washington have already formed commissions and/or have opened up comment periods and/or taken up or accelerated reviews of their existing recusal practices. That's meaningless? Hardly. And it is exactly what the "well-meaning folks" that her post so casually dismisses ---including people like myself and Phillips and Schotland were seeking. I can tell you that the narrow, fact-based decision is exactly what I, like Petitioners, believed was the best case scenario all along, and we framed our briefs accordingly. If anyone thought the case "promised more" than that, their belief was founded in their own projection, rather than in something promised by those close to the case.

Likewise, it would have been inappropriate for the Court to draw the bright lines that the dissenters excoriate the majority for failing to draw. Chief Justice Roberts's questions are well-taken but they are directed at the majority rather than the states, who should and will address them in the first instance if at all. Prospectively, it is also worth noting the backstop aspect of this case. If the Court had done nothing here, then the questions in dissent could just as easily be flipped. E.g,, What about $10 million? $100 million? Is that enough? Etc... So the slippery slope arguments and the floodgates arguments provide for nice sassy copy, but ultimately they do little substantive lifting.

Phillips, like the 27 former state supreme court justices from around the country who supported the Petitioners, is widely on record as celebrating the decision AND as recognizing its import, including in the Tony Mauro interview referenced, but apparently only lightly read, by Greenhouse. Phillips is hardly new to these issues, having worked tirelessly on them in Texas; and having written about them widely, including authoring the foreword to a Brennan Center monograph on recusal last year. For just a brief sampling of Phillips actual views, as opposed to those wrongly attributed to him, consider the following:

On the day of the decision, Nina Totenberg noted here: "Phillips said his organization is pleased that the Supreme Court has drawn a line in the sand but left the states with flexibility. 'The Court has certainly invited the states to explore whether their more concrete rules on the state level that would exceed the Due Process floor are needed.'"

Likewise, in the Tony Mauro's insightful interview, in which Phillips rightly points out the narrowness of the constitutionally-dispositive aspect of Caperton, here is a short sampling of what Phillips actually says as to what may come of the case:

Phillips: "Caperton established a principle that is really important: There are constitutional concerns with a judge sitting in judgment of a case where a party is a significant donor. At some point, the support becomes so substantial and so overwhelming that due process requires the judge to step aside, even if neither the donor not the judge did anything illegal or even unethical. Until now, that was an unanswered issue. That's the most important thing in the case."

Mauro: "What does the decision say about the difference between judicial elections and other elections?"

Phillips: "That's another important principle in the case. No one would say that a Senator couldn't vote on armed services appropriations merely because the defense industry had spent large sums in connection with the senator's campaign. And yet that is precisely what the Court held with respect to a state judge. The opinion affirmed that, even if judges are selected in precisely the same as political officials, they have a fundamentally different role in government that raises concerns that are of constitutional magnitude."

And as for the floodgates arguments, Phillips makes the very correct point that Caperton may lead to an increase in rules-based recusal motions, but that given the current state of affairs in judicial elections, that would be a very good thing:

Phillips: "The majority opinion recognized, even urges, states to pass recusal rules that are more rigorous than the due process floor in order to ensure the appearance and reality of impartial judges. The Caperton case may cause more of those rules-based motions to be filed, and state courts may have to grapple with the types of problems that the Chief Justice raised. And, on the whole, it will be good for these rather murky questions to be fleshed out. And, moreover, it will be good to have a heightened interest in what is required to have fair and impartial justices on the bench."

Some hope states will abandon elections in light of the decision. Others, like Chief Justice Roberts, fear that the floodgates of Caperton claims will open. But as Eliza Carney's excellent recent column states: "In fact, both scenarios miss the mark. The ruling's more likely outcome is that state supreme courts will establish and enforce clearer recusal rules for judges who may face conflicts of interest, guidelines that are long overdue."

As noted above, and as previously noted on this list by Roy, significant progress is already being made in that direction. Whether one thinks such consequences are or are not positive and meaningful is a matter of divergent opinion on this list and elsewhere. To that end, it's worth noting that just 15 months ago, in this debate sponsored by the Federalist Society, Jim Bopp, in high dudgeon, characterized the very notion of ANY campaign expenditure-based due process floor as "liberal New York City extremism." But we now know that it's the law. And suffice it to say that when, among others, Justice Kennedy, the CCJ, 27 former state supreme court justices, Intel, Wal-Mart, Pepsi, Lockheed Martin, etc...look "extreme" from where one sits, it might be time for some re-calibration. (Or at least it might be time to tone down the dudgeon). It might also be time for some serious consideration of the unique countervailing interests in judicial elections.

On that score, i.e., on the far more consequential level of rules-based disqualification, indeed, even Chief Justice Roberts's and Justice Scalia's dissents reflect the need for greater vigilance than displayed by Justice Benjamin (see CJ Roberts: "States are, of course free to adopt broader recusal rules than the Constitution requires..."; See Justice Scalia: [S]hould judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly.")

But whatever one's views as to the import of Caperton, this much should be clear: Tom Phillips's view is that it is quite important. Indeed, in his own actual words, he states that Caperton might even "spur states to consider whether our 19th century method of selecting judges works well in the 21st century. The old friends and neighbors method of selcting a judge has been replaced by the need for expensive media campaigns...and these huge independent attack ads that so damage the credibility of our justice system."

Agree or disagree as you wish. But the actual quotes from Phillips, as opposed to the characterizations, reflect his actual views. Count me in the camp of agreeing with him, with Ted Olson, with Roy, and with those other "well-meaning folks."

A New Texas Two-Step: One Forward, Two Back

Justin Levitt — 2009-07-01T13:47:02-05:00

Consensus among Texan legislators on election issues is becoming - stated generously - vanishingly rare. In 2007, a firestorm over voter ID proposals grew so acrimonious that a State Senator rallied to block proposed legislation, despite the fact that he was recovering from a liver transplant and needed a hospital bed to be kept about 100 feet from the Senate floor. Two years later, sparring over a new proposal drove marathon hearings running for 23 hours straight.

This general climate makes H.B. 1457 nothing short of a wonder. It passed the State House 144-1. It passed the State Senate 31-0. Bipartisan, near-unanimous support - until it was shot down last week by Governor "Rick" Perry's veto. Its demise is a shame, for Texans of all stripes.

The bill was a common-sense attempt to address administrative flaws that cost Texan election officials time, Texan taxpayers money, and Texan citizens the right to vote. The federal Help America Vote Act asks each state to try to match the information on new voter registration forms to data in the motor vehicles or Social Security systems. Under the federal law, when the system can't find a match, voters who mailed in their forms are flagged, and have to show ID before they vote. Texas went a bit farther, requiring every new voter with a failed match (whether registering by mail or not) to show ID, after required correspondence back and forth.

The biggest problem with the system is that the matching system isn't very sophisticated, and simple mistakes or inconsistencies cause the match to fail. A lot. When a data entry temp hits the wrong key, the match can fail. When a voter has a compound name, like "Mary Ann Smith" or "Linus van Pelt," the match can fail. When a voter uses a nickname, like "Bill," or a middle name, like "F. Scott," the match can fail. The motor vehicles match does better than the Social Security version, and some clerks catch mistakes more often than others. Still, the matching problems add up. In 2008, the match failed, nationwide, about 30% of the time.

Most of these common matching errors have nothing whatsoever to do with the eligibility of the person trying to register. But the errors do take time to resolve, and cause hassles for both county clerks and voters. So Rep. Scott Hochberg, an engineer who understands both the capacity and the limits of technology, tried to reduce the impact of the mistakes. His bill asked the Secretary of State to come up with reasonable standards for deciding when the name submitted by a local registrar was actually the same person on motor vehicle records, and for sending mismatched information back to registrars to help them resolve discrepancies. It also asked the registrar to give rejected applicants as much information as possible, to help them resolve problems. Simple, common-sense stuff - which explains why 99.4% of legislators agreed.

Gov. Perry, unfortunately, thought differently. His primary excuse for the veto was that a slight mismatch "is a strong indication that the application was filled out by someone other than the rightful voter."

"Rick," of all people, should know better.

Never mind logic, which points in exactly the other direction. Attempted fraudsters - many of whom copy phone book records in order to get paid for registration canvassing they don't actually do - have no idea what a particular voter's driver's license number is, and don't come close when they scribble something random down. Slight and readily identifiable mistakes in a name or birthday, on the other hand, are a "strong indication" that someone hit the wrong key when typing. Like when Gov. Perry discussed "indentifying" information in his veto message. The logical assumption is that Gov. Perry's clerical assistant screwed up - not that some fraudster faked the veto.

And never mind facts, which point in exactly the other direction. In two federal cases now, the overwhelming evidence has been that, as one election official recognized, "Most times the [voter's registration] record is unable to be verified because of a data entry error at the time of input (i.e., misspelled names and number transpositions)."

No, Gov. Perry should have recognized that mismatches don't usually indicate fraud, because his own registration application would likely have been mismatched. See, "Rick" Perry is actually "James Richard" Perry. And though I don't know what name Gov. Perry uses on his driver's license, his Social Security Administration records almost certainly reflect the name he was first given.

175 of 176 Texas legislators thought that their Secretary of State should be able to issue common-sense rules to decide when it's sufficiently clear that Rick Perry is actually James Richard Perry. It is a real shame for Texans that James Richard disagreed.

Timing is Everything

Eric Lane — 2009-06-30T14:08:00-05:00

Democratic Conference Leader John Sampson is right that his view and the views of other Senate Democrats ought to be heard in the debate over mayoral control of schools. And of course, the Senate is not required to adhere to the Assembly's version of the bill (which they passed in the dead of night with no bill hearings or public discussion). But Sampson is wrong in his timing.

The Democrats have done nothing about Mayoral Control since January, when they actually did have control of the Senate. They were relying on the same last minute, midnight politics employed by the Speaker of the Assembly. And here they failed because they lost control of the chamber. Now Sampson wants to hold New York City's education system hostage for his party's failure to reform their own House when they had a chance. To quote a famous philosopher, "that's Chutzpah."

Voting Rights Act: The Legacy of the 15th Amendment

Myrna Pérez — 2009-06-29T22:00:00-05:00

"The historic accomplishments of the Voting Rights Act are undeniable. "

--Chief Justice Roberts, NAMUDNO v. Holder

Last week, the Supreme Court avoided a constitutional challenge to a critical component of the Voting Rights Act by a small utility district in Austin, Texas in the case NAMUDNO v. Holder. This ruling is an important one because it rightly left the Voting Rights Act, probably the nation's most successful piece of civil rights legislation, fully intact and capable of performing the important duties with which it was tasked, namely that of fighting racial discrimination in voting.

As the Court recognized, the Voting Rights Act is responsible for much of the progress we have achieved towards equality in voting. Literacy tests, grandfather clauses, "good character tests"-all were made illegal by the Voting Rights Act. Other provisions, like the one at issue in the NAMUDNO case, required that certain jurisdictions, those which have had demonstrable histories of discrimination in voting, seek "pre-clearance" or certification in advance from the Department of Justice or a court that certain proposed changes to their election systems would not have a negative effect on the voting rights of racial and ethnic minorities.

The Voting Rights Act, while important for our country's future, also plays an important role in our past because the Voting Rights Act is our greatest legacy to the 15^th Amendment. At the beginning of 1867, a few years before the 15^th Amendment was passed and ratified, there were no federal laws guaranteeing the voting rights of any African-American males. But before 1868 ended, all that had changed. In 1867, the Reconstruction Congress passed legislation enfranchising African-American males in the District of Columbia, overriding a presidential veto in opposition. Within the same month, Congress overrode a second presidential veto and passed legislation giving African-American men the right to vote in other geographic areas subject to federal control. A few weeks later, Congress conditioned the Territory of Nebraska's admission into the Union upon abolish all racial qualifications on voting. Most significantly, in the First Reconstruction Act, Congress refused to re-admit the former Confederate states into the Union unless the states amended their constitutions to allow voting by male citizens "of whatever race, color, or previous condition" and required that these states not amend their constitutions in the future to deprive any citizen or class of citizens the right to vote.

So before the 15^th Amendment was passed, Congress had already formally enfranchised African Americans in the former confederacy and the federally-controlled territories. But the Reconstruction Congress knew that those acts were not sufficient for a right as fundamental as the right to vote. A constitutional amendment was needed to make sure the gains that had been achieved were not rolled back by circumvention (such as private or state-sanctioned violence or intimidation) or future electoral majorities with discriminatory inclinations. And so, the Reconstruction Congress passed, and the states ratified a 15^th Amendment designed to prevent backsliding and to ensure a continuing role for Congress in the eradication or racism in voting. It was broad in its scope in that it gave Congress wide latitude, but narrow in its focus in that it covered only where racial discrimination intersected with voting. The 15^th Amendment's opponents balked about the shift the Amendment created in the relationship between federal and state governments by transferring to the federal government primary responsibility for electoral qualifications related to race, an area that had been once left exclusively to the states, but the Amendment's proponents stood firm that the Amendment had to bestow upon Congress the power to combat racism in voting in the future. After the Amendment passed, Congress utilized this power to pass Enforcement Acts after the 15^th Amendment that were broad and expansive, and an anti-Klu Klux Klan Act -- all reflecting Congress' intention that its powers be at their zenith when it was protecting racial minorities from discrimination in voting.

Congress' broad and bold actions were squashed by the Supreme Court, which issued rulings emasculating the strength of the Enforcement Acts. For almost 75 years, the nation slipped into Jim Crow. We might still be there if Congress had not acted again under its broad 15^th Amendment powers to enact the Voting Rights Act of 1965. The Voting Rights Act seeks to protect, as did the 15^th Amendment, current exercises of the right to vote, but also like the 15^th Amendment, it seeks to ensure that voting rights are not curtailed by future state behavior. This is done in large part by the "pre-clearance" provisions at issue in the NAMUDNO case, which does not allow proposed state changes to their election practices to be implemented until it can be certified that the change will not have a negative effect on the voting strength of a racial group.

The Voting Rights Act effectively revived Congress' role in combating racism in voting from the dormancy it was cowed into by the Supreme Court. And Congress amended and reauthorized the Act. Most recently, in 2006, after reviewing voluminous evidence of present-day discrimination and holding extensive hearings, Congress made the near-unanimous policy determination that there still remained work for the Voting Rights Act and its pre-clearance provisions to do and that the Act should be reauthorized.

The Act is a modern-day rejection by our country of racism in voting, and I for one am proud that our elected representatives made such a statement.

In the case, the utility district, named the Northwest Austin Municipal Utility District (and from where the acronym "NAMUDNO" comes from in the case name), argued that it should be allowed to seek a statutory exemption from the Act's pre-clearance provisions that affected the entirety of the state of Texas. NAMUDNO further argued that if it were not entitled to the statutory exemption, then the Voting Rights Act must be struck down as an unconstitutional intrusion of Congressional power into state sovereignty.

Eight Justices concluded that NAMUDNO should be allowed to "bail-out"-the term used for a jurisdiction which seeks exemption from the pre-clearance provisions - leaving Justice Thomas standing alone in his argument that the Court should have struck down the relevant sections of the Voting Rights Act today.

There is no doubt that the decision is a victory for voting rights, especially because the activists who recruited NAMUDNO for the challenge sought wholesale destruction of the Act's pre-clearance provisions. But the decision was what lawyers would call a "narrow" ruling. Because a majority of Justice concluded that NAMUDNO was entitled to the exemption, the Court did not need to decide whether the pre-clearance provisions were a constitutional exercise of Congressional power. While the decision does not foreclose future challenges to the constitutionality of the Act, if and when they come, the Court should remember that the 15^th Amendment amply and clearly supports giving Congress much deference in its determinations as to how to best combat race discrimination in voting and the power to take the steps to effectuate that determination.

Some Thoughts on the Legal Claims Being Thrown around the Capitol

ReformNY — 2009-06-26T20:02:00-05:00

Salaries:

The governor is without power to halt payment of legislative salaries. The state constitution grants him little authority over the legislative branch, and none in this area. (And rightly so - if a governor who disagreed with the legislature's political positions or leadership had the power to cut legislators' salaries to keep them in line, it would be a gross violation of the separation of powers.) The courts might disagree, but it won't be because of the law. If the courts side with the governor, their reasoning will be rooted in short-sighted political payback for the legislature's continued denial of judicial pay raises, not legal reasoning. If the governor keeps beating on the wage drum, the senate could introduce legislation cutting his salary for errant behavior, something they most likely have the power to do.

Extraordinary Sessions:

While I am not sure a court would hear the case, the Senate is probably correct to say the Governor cannot call only the Senate back into session. While the Constitution seems to provide for that, its aim is to allow the governor to call the Senate back into session for things only the Senate can do, such as confirming appointments. The problem is that the Assembly has no interest in being called back to Albany and the Governor knows this, so he is trying to apply the provision for calling the Senate alone more broadly.

The bills enacted in the Senate last week will probably have to be enacted again to make sure they are identical to the ones past by the Assembly and to make sure the processes comply with the N.Y. Constitution's requirements. Even the Governor's Counsel has raised questions about the legality of these bills, and opponents of legislation passed during extraordinary session are sure to bring the issue to court.

The Politics:

My prediction based on my six years as counsel to the minority and many years thereafter studying legislatures is that the Senate will figure some way to pause their very real and important struggle over political power (which directly effects policies) to address the "must-pass" bills before them. Maybe they will even enact some rules reform along the way.

What About the Assembly?

ReformNY — 2009-06-24T19:09:00-05:00

Over the past two weeks, the Assembly has been lauded as a model of a functioning legislative body, churning through a dizzying number of bills in its final days before recess.

Compared to the Senate, of course, the praise is justified. The Assembly has both met and passed legislation in the past two weeks while the Senate has been mired in quorum-less faux sessions, court battles, and media posturing. But what we mean when we talk about a functioning chamber merits further examination.

Last Monday, the Assembly met for 4 and a half hours and passed 78 bills on topics ranging from animal control programs to voting machine allocation. That works out to about one bill every 3 and a half minutes - which means that it is unlikely that a single one of these bills received any debate. There's no question that the chamber is highly productive, but the legislation it produces is not carefully considered, especially given the fact that it is extremely unlikely that any of these bills were publicly reviewed, debated or amended in committee either.

Things didn't improve as the session came to a close. In the final 13 hours of session, the Assembly acted on 202 bills, or 16 percent of all legislation passed this year. Add that to the 317 bills passed last week, and you get 41% of all legislation passed this year - all brought to the floor in the final week of the session. The end-of-session logjam, typical of both legislative chambers in Albany, precludes full review of legislation and makes it difficult for the public to follow and weigh in on legislative action.

Finally, we mustn't overlook Assembly Speaker Sheldon Silver's role in this year's secretive budget process that provoked Tom Golisano's ire and that may well have set the coup in motion. As the Times reported in March, it was Silver's proclivity toward closed-door meetings and leadership control of the legislative process that pushed the budget process into the dark, circumventing open meeting laws intended to promote government transparency.

So yes, the Assembly is technically a functional chamber in that it was able to continue on with business as usual as the Senate devolved into chaos. But it's a measure of how far we've sunk in New York that this is now considered praiseworthy in some circles.

Drawing the Lines in Ohio: A Big Step Forward

Justin Levitt — 2009-06-24T15:30:00-05:00

Last week, Ohio voters got a glimmer of hope for fixing a badly broken redistricting process.

In most states, legislators get together every ten years, and carve state territory up into districts of voters, more or less as they please. It's no surprise that "self-regarding interest is predominant over social interest": most of the time, the legislators draw the lines to benefit themselves and their colleagues, often at the expense of voters in real communities. Neighborhoods are split, competing politicians are drawn out of contention, groups of citizens are cracked or packed or tacked to break up or overconsolidate voting power. We like to think that voters choose their politicians-but in the redistricting process, politicians choose their voters.

The existing system for drawing Ohio's state legislative districts is a bit different than the norm, but suffers from many of the same problems. (For Ohio congressional districts, the process is the same as the national norm, and just as broken.) Instead of letting individual legislators tweak their own districts, the state assigns the redistricting process to a five-person commission: the Governor, the State Auditor, the Secretary of State, one person chosen by the Republican legislative leadership, and one person chosen by the Democratic legislative leadership.

This structure gives substantial power to party leadership and statewide elected officials. And because of the commission's setup, one party is always in complete control of drawing the lines. That makes it even easier in Ohio for one party to bend the process to its own designs. In the 1970s and 1980s, Democrats won; in the 1990s and 2000s, Republicans won. And for four decades, real Buckeyes of all stripes lost.

Last week, an impressive partnership led by Ohio's Secretary of State, three respected nonpartisan nonprofit organizations, political scientists, and current and former legislators showed that there is a better way. The group set up an open process, inviting members of the public to draw district maps according to a set of carefully negotiated rules, and then equipped participants with the data and the tools to put pen to paper. The results were announced on Thursday - and on most every metric, the plans that were submitted served Ohio voters far better than the real districts that have partitioned the state for the last ten years.

The Secretary's process was a demonstration, not a legal change to the real-life districts, but that does not mean that it was just an intellectual exercise. As Heather Gerken has discussed (and discussed and discussed and discussed), with plenty of persuasive seconds, these sorts of model institutional initiatives have real-world merit. They provide a solid baseline: a means for the public, legislators, and even courts to gauge what equitable redistricting might look like, rather than arguing about abstract principles with no concrete foothold. They offer constituents and media a tool to shame legislators into better performance, or at least into justifying their decision to depart from the coalition's vision. And they demonstrate that procedural reform is not merely hypothetically possible, but pragmatically achievable, with tangible results. In the context of a ballot initiative or a reform bill from within the legislature, prospects of success get a lot better with the ability to point to a model that has actually worked.

The particular process that wrapped up last week in Ohio wasn't perfect; I've got a few quibbles with the details, which I've laid out in these other posts. But those concerns shouldn't obscure the substantial significance of the process overall.

The Secretary's model showed that it's possible to open up the redistricting process by giving members of the public the data and computer technology to draw and submit their own proposed plans.

The Secretary's model showed that it's possible to balance multiple, occasionally competing, objectives in drawing districts.

The Secretary's model showed that it's possible to improve the status quo with a few carefully tailored constraints that still retain a "human touch in choosing among the best plans."

And the Secretary's model showed that it's possible to build a process for selecting public servants that actually serves the public.

Which is likely the most important lesson of all.

NAACP LDFs Payton Weaves together Racial History and Judging at Brennan Center Panel

Ciara Torres-Spelliscy — 2009-06-24T01:51:00-05:00

Arguing for judges with exposure to America’s diverse mores, NAACP LDF’s John Payton reminded an audience of lawyers, professors and students at NYU School of Law of the historical and racial context of the current Supreme Court pick.

John Payton, President and Director-Counsel of the NAACP Legal Defense Fund appeared at a panel discussion hosted by the Brennan Center entitled, "Umpire? Empathy? What Do We Want in a Supreme Court Justice?” on Monday, June 15, 2009 along with Burt Neuborne, Stanley Fish, and Dahlia Lithwick.

Eschewing an endorsement of “empathy” per se as criteria for good judging, Payton urged that what a good judge does is try to imagine what it would be like to be in someone else’s shoes in order to come to a just decision. As an example of the dangers of thinking of the law as neutral, Payton quoted from Professor Herbert Wechsler’s famous Holmes Lecture at Harvard Law School. Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959):

In the days when I was joined with [African American Attorney] Charles H. Houston in a litigation in the Supreme Court, before the present building was constructed [in 1935], he did not suffer more than I in knowing that we had to go to Union Station to lunch together during the recess [since blacks were not allowed in the Capitol dining room].

The Importance of Diversity on the Bench: It’s Not What You Think You Know

Laura MacCleery — 2009-06-23T13:41:00-05:00

One issue that may be lost in the coming weeks as the hearings to confirm Judge Sonia Sotomayor is the significance of this progress in fulfilling a promise to the American people that the courts will indeed look like America.

As we found in a recent investigation, that is far from the case in courts across the country. A report we released in December 2008 highlighted the importance of judicial diversity among state Supreme Courts by examining practices regarding minority recruitment on the part of selection commissions in 10 states. We found the composition of both courts and selection pools for jurists dramatically lagged both the general population and the population of law school graduates in terms of diversity of both race and gender.

We also took a close look at the importance of diversity on the bench, and the problem of "implicit bias" in hiring. Recent studies on the issue of implicit bias are revealing: it turns out that many of the natural psychological categories that we have learned and that help us sort the world into meaningful information can bring with them negative biases from childhood that are hard to shake, even years after we believe we have removed them from our conscious viewpoint on the world.

For people of color, and particularly those that live in a white-dominated professional world, the existence of these unconscious facets of bias, and of being seen through less-than-sympathetic eyes, is a fact of life. Although it has often been a struggle for others to recognize this more subtle form of prejudice, even some Supreme Court Justices have described it convincingly. Justice Brennan wrote in a 1989 case that "unwitting or ingrained bias is no less injurious or worthy of eradication that blatant or calculated discrimination."

During Samuel Alito's confirmation hearings to be a Supreme Court Justice, he acknowledged these kinds of experiences of discrimination in an intimate and candid discussion:

[W]hen a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position...When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

For judicial selection commissions to combat this implicit bias, we found that they must be pro-active in their approach to identifying and recruiting minorities. We also found that the case for diversity on the bench was strong, and would benefit not only the particular judgments, which would arise from a more complex tapestry of experiences in society, but also the public perception and legitimacy of decisions from the judicial branch. When the range of people who sit in judgment do not reflect the communities they serve, the clear impression that may be left is that judges will not be impartial or reflect community-level understandings and values.

This is not, of course, to suggest, that mere diversity should allow unqualified jurists to be advanced for diversity's sake alone. But the results of our research show clearly that when highly qualified candidates such as Judge Sotomayor are moved into positions historically monopolized by non-diverse candidates, the benefits go beyond the particular decisions made by any jurist. And certainly, the prospect of a Supreme Court that partakes in the rich traditions that characterize the breadth of American culture is a welcome one, after centuries in which communities of color have felt less than well-represented in the halls of power.

Drawing the Lines in Ohio: The Structure of the Competition

Justin Levitt — 2009-06-22T14:37:00-05:00

In an earlier post, I praised a recent Ohio project giving citizens the tools to draw their own congressional district maps according to a set of carefully negotiated rules. The exercise was particularly valuable in demonstrating that reform is possible - and in demonstrating the degree of improvement that reform might achieve.

The rules for the exercise were straightforward. Moreover, they reflect a set of very sophisticated choices, even when simplified to be accessible to the general public.

They began with a solid threshold: a proposed plan would be tossed if it didn't live up to the two basic redistricting requirements of federal law. The first is the U.S. Constitution, which requires that each district have about the same population. The second is the Voting Rights Act, which keeps district lines from fragmenting substantial minority populations to dilute their voting power. So far, so good.

In addition to these two basic rules, there are many other objectives that people try to satisfy when they draw district lines, some of which are at odds with each other. One reform strategy is to lock in rigid priorities: first, do X; then, if it doesn't conflict with X, do Y. Another strategy is to punt: choose trusted decisionmakers, throw in a bunch of different goals, and let the decisionmakers work out which is more important. The Ohio project chose still a different path, and it's an intriguing way to acknowledge and resolve the tension of multiple objectives.

The organizers chose four second-tier goals: community preservation, compactness, competitiveness, and partisan fairness (more about these, individually, here. They developed quantitative scales to evaluate plans based on each goal, and weighted the goals by relative importance. They then encouraged members of the public to find their own optimal balance among the goals, scoring each plan as it came in. Some plans, say, aimed more for compactness than competitiveness, or vice versa. But each effort to balance the competing goals was aiming for a high overall score. And notably, each offered an improvement on the status quo, which didn't satisfy any identified goal particularly well.

As I explain here, I have some quibbles with some of the goals that were chosen, and with some of the particular means to measure progress toward those goals. But the structure of the enterprise - an open competition - is noteworthy. This isn't the first time that a competition has been proposed: Sam Hirsch, among others, has suggested such a thing. But the Ohio exercise was a competition with an unusual - and very thoughtful - ending.

I find it most impressive, given the temptation in any contest to crown an ultimate champion, that the organizers in Ohio refused to automate victory. Rather than simply selecting the highest-scoring plan, any plan scoring in the top 25% was designated as a "winner." In the real world, a trusted decisionmaking body would then have discretion to choose, from among those winners, the map most beneficial for Ohio voters overall.

If you're going to have a competition, this is an extremely thoughtful approach, for two reasons. First, it recognizes that even with clear scores, there may not be one clear "winner" (I owe a hat tip to Dan Goroff for this point). If two redistricting goals are equally important, but in conflict, it's possible to have multiple winning plans with the same score - one sacrifices a bit of goal 1 to improve goal 2, and another does the opposite. In the math and economics worlds, this is known as the "Pareto frontier" - a whole set of outcomes that all represent the best score in a competition like the one that Ohio set up. By choosing the top 25%, the competition acknowledges that there might be a tie.

Second, and probably more important, we know that the scoring system won't be perfect. Even if it were possible to get perfect consensus on all of the goals of the redistricting process and their relative importance, translating that consensus to a mathematical score will involve a bit of noise. Both the measurements and the weights are approximate at best. Several of the traits being scored are just easily quantifiable proxies for elements of meaningful representation that are harder to measure. And there may be other intangible goals that don't really have good proxies at all.

In this respect, the quest for the "best" redistricting plan is like the quest for the "best" supermarket produce. We'd want to take into account size, shelf life, cost, color, taste, and probably a bunch of other factors. Size and shelf life and cost can be easily measured and scored. There's a scale for color, but we might have different opinions about what "best" looks like, and it's going to be tough to score color blends. And our measurements for taste are approximate at best. If you're going to set up a competition for the "best" produce, you'd want the results to be flexible enough to account for imperfection in the measurements, to get at the produce that's near the quantifiable "Pareto frontier," but perhaps not precisely on it.

So too with redistricting. Some goals are easily measured, but for others, any measure we might devise is at best a near miss. Since the score isn't a perfect translation of the intended outcome, the highest score shouldn't automatically win. In Ohio, the rules promote the top quartile of high scoring plans - any of which improves on the status quo. Then a decisionmaking body would take a look, to see if the number 4 plan actually serves Ohio voters better than the three plans with a higher numerical score. The decision to forego simply appointing a single winner works out to be a big win for everyone.

Drawing the Lines in Ohio: The Devilish Details

Justin Levitt — 2009-06-21T14:41:00-05:00

In two earlier posts, I discussed the existence of a recent redistricting competition in Ohio, and its basic structure, and found much to praise. The competition gave citizens the tools to draw their own congressional district maps according to a set of carefully negotiated rules. After accounting for required federal law, the remaining rules represent policy choices. Here, in the weeds, there may still be room for improvement before translating the model directly to real-world reform.

Let's take a closer look at each of the four subsidiary goals that the Ohio competition built in to the process, and the means for measuring plans up against those goals. (Each of these goals is examined in much more detail in A Citizen's Guide to Redistricting.)

The first goal was preserving communities: giving voters with similar interests meaningful representation, by keeping them in the same district, rather than dividing them into groups too small for candidates to care about. In my mind, after the "one-person, one-vote" and minority rights concerns of federal law, this is the single most important idea behind redistricting. It's also one of the hardest to measure objectively.

The Ohio competition used a common proxy: assume that a county represents a community, and then split counties as little as possible. They also built in an important exception for cities like Columbus that cross county lines: because Columbus spills out of Franklin County into bits of Delaware and Fairfield Counties, it's OK to keep the bits of Columbus outside Franklin together with the bits inside Franklin, even if it means dividing some Delaware or Fairfield residents from others.

The organizers described this rule as "opening a dialogue" about the means to measure communities, and I think that's exactly the right approach. After the competition, the dialogue continued: the organizers looked at the results, and thought that it made sense to add an additional condition. In some cases, getting equal population within each district makes splitting a county inevitable; when that happens, the lines should split municipal boundaries as little as possible. That is, both counties and towns would be used as proxies for communities.

That's a welcome step, but it should not be the end of the conversation. There's a real opportunity to test how close the proxy comes to reality. In the near future, we may be able to lay out community borders that are just as tangible as county lines, by aggregating lots of people's perceived community boundaries - but we're not quite there yet. Short of that, some states offer public hearings on proposed redistricting plans, to let people articulate how a map would affect the communities to which they belong - but Ohio hasn't yet joined that club either. So I'd urge the organizers of the Ohio exercise to fill in those blanks, soliciting public feedback on particular communities that cross county or city lines. If there are few, the proxy works pretty well in Ohio. If there are plenty, well, maybe the proxy needs adjusting.

The second goal was compactness: keeping districts close to regular geometric shapes so that they don't look "bizarre." In my mind, this is one of the most accessible, but least useful, goals commonly cited in reform. We have a common intuition that some districts look bizarre. So what? A district that's a perfect circle is compact, by most any measure. So what? Aesthetic appeal has little to do with the quality of representation. Maryland and Michigan have "bizarre" boundaries, but voters in those states are not more poorly served because of the shape of their borders than are voters in the rectangles of Colorado or Wyoming. And Illinois' fourth Congressional district is routinely cited as one of the most "contorted" in the country, but it gave Illinois its first majority-Hispanic district. Whether a district is pretty doesn't tell me anything about what it's doing for the citizens within, or whether it fits the patterns of where people actually live.

Most often, reformers seem to turn to compactness to limit legislators' self-interest. Because we don't trust the people drawing the lines, we suspect that bizarre lines involve self-dealing, and we therefore look to geometric rules to try to smooth the lines out. On its own, this is a legitimate concern and an understandable, if blunt, response. Yet the Ohio competition's push to preserve counties and cities already limits the most unjustified spidery twists and turns. In the absence of decisionmakers we trust, it may be worth contemplating a limited role for compactness within a county - if a county is to be split, there's a small reward for splitting it "nicely." But as a hedge against self-dealing, broader compactness formulas don't accomplish much that the community preservation goal above doesn't already handle better.

Other reformers turn to compactness to help keep districts regional: voters in the south of the state are grouped with other southern voters, rather than with voters farther away. This is a rough approximation of common interest, at best. (For example, a district stretching along the Pacific may better represent voters with a common interest in that coastline than a regional district joining them with voters farther inland.) Moreover, the compactness measure that the Ohio organizers chose (there are more than 30 options) doesn't fit this goal very well. The Ohio competition's measure penalizes squiggly boundaries, which does little to stop spread, and punishes plans for following borders of less regular "communities" like Noble County or Columbus. A better way to keep districts regional would focus on the extent to which a district stretches out from a central core, known in the trade as "dispersion."

The third goal was competitiveness: creating districts where the voters are roughly half Democrats and half Republicans. In part, this helps ensure that incumbents aren't insulated from losing if they're not responsive to their constituents ... though even in a district that's wildly skewed to one party or another, an unresponsive incumbent can be challenged in a primary. More important, competitive districts set up an even playing field for the political parties as a whole, allowing legislative delegations to reflect changes in the partisan mood. If a fair number of districts are roughly half Democrat and half Republican, a shift in the overall partisan preference can theoretically translate to a shift in the control of the legislature.

It's worth noting, however, that because of candidates' name recognition, fundraising prowess, campaign skill, and a host of other issues, competitive districts often don't deliver competitive elections. That is, you can still get a lopsided election from a 50-50 district. When Ohio's current congressional districts were drawn in 2001, 7 were "generally" or "heavily" competitive, with a partisan spread of less than 55-45. Yet in those districts' first elections, not one race was within 10 points, and the seven districts in question were won by an average of 65-35.

The fourth goal was representational fairness, which measures the map as a whole rather than any individual district: a plan does better if the number of expected winners from each party is roughly in line with the total vote statewide. So if the states' voters as a whole are 50-50, there should be the same number of districts leaning Republican as those that lean Democratic; if the state as a whole splits 70-30, so (more or less) should the state's legislative delegation. Intuitively, this goal makes sense: a fair system should try to make sure that the representatives of the state, as a whole, reflect the state as a whole.

The particular rule used in the competition has a curious twist, though: it cares whether a district is leaning Republican or leaning Democratic, but not by how much. That is, districts leaning Republican by .04% get the same credit as districts leaning Republican by 40%, even though the former are much more likely to end up with Democratic representatives. At the end of the day, by looking only at whether a district is theoretically on one side of the partisan divide or the other, plans that score quite well on "representational fairness" could end up predictably giving most of the legislative seats to the party that loses the statewide vote. And that hardly seems representationally fair.

As the discussion above shows, there's a fair amount of tension between drawing districts that are individually competitive (nobody knows who wins which seats) and drawing districts to ensure representative fairness (Dems win X seats, Reps win Y seats). And to the extent that voters with common interests tend to favor the same party, there's a lot of tension between drawing districts that preserve communities (mostly one party) and districts that are competitive (50-50). Rob Richie has proposed a system of "accountability seats" to try to relieve these tensions, removing the need to move voters around in order to get the partisan mix just right. The idea would allocate a few reserved legislative seats based on the statewide vote, to balance the legislative delegation so that it looks like the state as a whole.

The "accountability seat" system could solve an awful lot of the current redistricting struggle, but it also represents a fairly big structural change. Ohio's recent competition process represents a different innovative way to address goals that may be in conflict, by compromising a bit on each objective. The critiques above - suggestions to give a goal more or less weight, or to change the nature of the measurement slightly - are quibbles on the margins, things to address now that the dialogue has been opened. The partnership behind Ohio's latest endeavor deserves a strong vote of thanks for starting the conversation.

ReformNY Blog

Lawrence Norden — 2009-06-18T21:52:00-05:00

Larry Norden is quoted in a New York Daily News article about the defection of senators Pedro Espada and Hiram Montserrate and the recent chaos in Albany. Read about the Brennan Center's role in reforming New York politics on our blog, ReformNY.

A Legal Practice Well Worth Doing

Laura MacCleery — 2009-06-16T15:47:01-05:00

Cross-post from CityLimits.org

Negotiating Justice: Progressive Lawyering, Low-Income Clients, and the Quest for Social Change, by Corey S. Shdaimah, NYU Press, $45.

Amid the surfeit of bad news that has surfaced of late is the less than obvious connection between the economic downturn generally and the budget crisis now being faced by legal service providers. Due to a quirk in the manner in which many organizations receive funding, hard times for Wall Street now means it's even harder than usual to fund lawyers who serve the poor.

The decline in interest rates undercuts the interest earned on a key kind of account maintained by lawyers, called the Interest on Lawyers Trust Accounts (IOLTA), a major source of funding for legal aid organizations. Cash-strapped legal aid groups may be fielding more demands than ever, yet find themselves less able to provide services than they were even just last year.

And it is no secret that, even in flush times, the best efforts of these groups barely scratch the surface of the legal needs of poor communities and families. While the victims of Bernie Madoff will almost certainly have their day in court, it's clear that for many victims of mortgage fraud and predatory lending schemes, workplace harassment, landlord-tenant disputes, credit problems, or those grappling with mental illness, securing a lawyer with the time and inclination to properly address their needs remains a pipedream.

A new book by Corey S. Shdaimah, "Negotiating Justice: Progressive Lawyering, Low-Income Clients, and the Quest for Social Change," makes a measured, observation-based analysis of the operation of a single legal service clinic, named with the pseudonym "Northeast Legal Services" or NELS, that serves poor clients in a medium-sized American city.

Through interviews, the author applies social science methods in evaluating day-to-day interactions of lawyers and clients. The book is particularly meticulous in examining whether the work in the clinic maps onto the contours of what has been a vigorous conversation in academic and legal services circles concerning the goals and nature of community-based legal practice.

Starting several decades ago, some legal scholars and practitioners on the left began to question whether the potential for empowering clients in legal work was being realized in practice. Law professors and pioneering theorists Gerald Lopez of UCLA, Lucie White at Harvard, and Amherst College's Austin Sarat, among others, asked whether legal services lawyers were able to, or did, assist clients in achieving social justice through litigation and advocacy, or whether power dynamics within the lawyer-client relationship were actually reinforcing poor clients' difficulty in effecting change.

After losing many of the struggles to enshrine social entitlements that were part of the so-called "War on Poverty," immediate goals for legal practitioners did - and had to - rise to the forefront as part of a far more piecemeal approach to legal practice.

Particularly against the current legal backdrop of largely conservative courts, as well as federal funding restrictions that prohibit many legal aid lawyers from bringing class actions and other important types of cases, it became more crucial for legal services and community-based lawyers to ensure that their work did not re-victimize poor clients as those clients sought justice.

Scores of law review articles were published as part of what Shdaimah calls the "progressive lawyering" approach, which encouraged legal services lawyers to use opportunities to listen more closely to clients, to maximize client autonomy and lawyer-client collaboration, and to gain self-awareness about the limitations of lawyerly expertise in telling client stories. The obvious class divisions among lawyers and poor clients were also highlighted.

As a conversation, it revealed a clear need for community-based and more holistic, inclusive approaches to the practice of law that included access to non-legal help as well as self-help, and justified organizations' attempts to transcend a narrowly legal approach by grappling with at least some other negative pressures in clients' lives.

Most of these insights are now accepted widely by legal services lawyers. They are an important aspect of both aspirations and achievements of legal services organizations, including such local, multi-dimensional organizations such as Make the Road by Walking or The Neighborhood Defender Service of Harlem.

Shdaimah's book is an important recent addition to this tradition of closely examining public interest legal practice. Isolating certain themes concerning progressive lawyering, Shdaimah - a lawyer and assistant professor in the University of Maryland School of Social Work - probes them carefully. Her innovation is to ask directly about, for example, lawyer-client collaboration and client autonomy. The book contains substantial excerpts from interviews, in which we hear both the lawyers' and clients' voices and perspectives.

Shdaimah argues with some force that much of the earlier scholarship lacked a substantial empirical component, and this was to its detriment. From her perspective, the literature has saddled practitioners with a set of abstract and difficult-to-achieve goals, thereby burdening lawyers with the unattainable.

Her most pointed example concerns the value of collaboration: Shdaimah asks whether wealthy clients get their legal needs met without being asked to shoulder a laboring oar, and therefore whether it is fair for clients with far fewer resources to be expected to perform tasks (such as getting affidavits signed) as a precondition of receiving services. She rightly points out that, for many clients, securing access to competent legal counsel is no small victory in itself.

Yet the book makes it clear that, in practice, lawyers need client assistance on many aspects of a case due to both the pressure of caseloads and the greater efficiency of client action on a matter. In interviews, the lawyers also directly linked their hopes for collaboration in a particular case to their assessments of client capacity. One lawyer indicated that he would do far more than usual in the case of one specific client, a woman who was particularly vulnerable and easily overwhelmed. In short, a mixture of transactional and resource realities (and compassion) informed lawyers' judgments in applying the abstract notion of collaboration to particular clients and circumstances.

The book, as a whole, will be a terrific resource for students who would like to leaven their academic scholarship with insights gained from observations, surveys and interviews at a real legal clinic. It would also be a deeply helpful companion text in seminars accompanying clinical legal studies programs, wherein law students work alongside lawyers to serve clients.

However, with the collaboration question, as with many of the others that Shdaimah highlights, I found myself far more drawn to the direct sources and stories she assembled than to her critique of the scholarship. Much of what Shdaimah found confirms that lawyers are able to work with clients to secure measurable improvements in their lives, and are valued in this role by the clients, despite the fact that no transformational change in the overall conditions of poverty is on the horizon.

Her descriptions underlined the significance of the core lawyer-client collaboration - "naming, claiming and blaming" - which both confirms the clients' feelings of righteousness in their cause, and makes the most of lawyers' skills in framing challenges and possible solutions.

Moreover, through the interviews, it was clear that the lawyers at NELS were very familiar with at least the broad contours of the literature, and aware of its conceptual significance for community-based legal centers. Shdaimah did not have the liberty of studying this kind of legal practice before and after the notion of progressive lawyering took shape, and these notions appear to already pervade legal practice at NELS.

My own view is that the lawyers' attempt to apply such values, however constrained in practice or by compassion, is a rarely celebrated, but crucially important, advance in how we have come to imagine legal practice in these and other settings. When I was a law student, I admit to being captivated by this literature, and credit it with providing me and countless others tools for self-examination and self-awareness that have proven an invaluable part of whatever I have done.

While scholars such as Lucie White do exhort practitioners to a set of engagement-oriented norms, equally important for her and others is a call to situated practice, informed by real-life contingencies and a clear-eyed assessment of what is possible. So while Shdaimah appears somewhat dismayed by the distance between the literature and reality, I am instead reassured by how far we have come in understanding the challenges and pitfalls of lawyering in poor communities. Shdaimah's findings at NELS of attentive, hardworking lawyers, who sensitively work with clients to secure incremental change, are actually a happy, and somewhat overdue, confirmation that real-world application of these values creates a legal practice well worth doing.

Uighur Release is Welcome, but Leaves Fate of Remaining Detainees Uncertain

Lorraine Leete and Liza Goitein — 2009-06-14T19:26:01-05:00

This week, four of the Uighurs previously detained at Guantánamo Bay were resettled in the British territory of Bermuda, and the President of Palau announced that he will allow the temporary resettlement in his country of at least some of the Uighurs remaining at Guantánamo. This is undoubtedly good news, at least in the short term, for the Uighurs who will be released-but the news is more mixed when it comes to the ultimate fate of the remaining 200-plus Guantánamo detainees.

The release of the Uighurs, who are members of a Chinese ethnic minority, is long overdue. It has been nearly six years since the U.S. military first determined that the Uighurs are not "enemy combatants." Nonetheless, important questions remain with respect to the future of this particular group of detainees. For one, we do not yet know whether Palau will accept all of the remaining Uighurs. Nor do we know what restrictions will be placed on the Uighurs' freedom in their new home countries, or what will become of the Uighurs in Palau once their temporary status expires.

Additionally, while the decision by Bermuda and Palau to accept the Uighurs is certainly generous, it would have been better-for both the Uighurs and for the U.S. plans to close Guantánamo-if the U.S. itself had accepted these detainees. Until the U.S. begins accepting Guantánamo detainees who are not considered "enemy combatants," we cannot fairly expect other countries to follow Bermuda and Palau's example and volunteer. The Uighurs were ideal candidates for resettlement in the U.S. They were never "at war" with the United States and they pose no security threat to the country. There are Uighur communities in the suburbs of Washington D.C. that can assume responsibility for the detainees and ensure their successful integration. (From the Uighurs' perspective, it would be much easier resettle in communities that share their language and customs-communities that exist in the U.S. but not Bermuda or Palau.) The failure of the U.S. to accept the Uighurs and thus trigger other countries to step forward is a major opportunity lost-one that may not present itself again for a long time, if Congress is successful in its efforts to prevent the transfer of any detainees to the U.S.

Furthermore, it is unclear how the resttlement of the Uighurs will affect ongoing litigation on behalf of the Uighur detainees (the case of Kiyemba v. Obama). Currently, there is a petition pending before the Supreme Court to review a D.C. Circuit opinion blocking a district court from ordering the release of the Uighurs into the U.S. The Brennan Center filed an amicus brief arguing that the D.C. Circuit ruling should be overturned. The D.C. Circuit's decision sets a dangerous precedent for those who are unlawfully detained outside the United States: at Guantánamo Bay, Bagram Detention Center in Afghanistan, or elsewhere. The district court had granted the habeas petition of the Uighur detainees on the ground that there is no lawful basis for their detention and ordered their release into the U.S. (the only remedy available). The D.C. Circuit did not dispute that the detainees were being unlawfully held, but nonetheless concluded that no court has the authority to order their release. As the Brennan Center argued in its amicus brief, the right for detainees held outside the United States to challenge their detention through habeas corpus petitions, as provided for in Boumediene v. Bush, is a hollow right if no remedy is available. It is critical that this decision not be allowed to stand.

The problem of Guantánamo has become symbolized, in recent months, by the case of the Uighurs. But the problem is much bigger than these 17 detainees. While we welcome their imminent return to freedom, we should not forget that there is still much that our government and our courts need to do to bring the saga of Guantánamo to a successful and just conclusion.

The Phantom Menace: A Campaign Finance Prequel

Laura MacCleery — 2009-06-12T20:30:00-05:00

Appeared on the American Constitution Society Blog

Even as Supreme Court nominee Sonia Sotomayor's campaign finance credentials are brought to light, reform-minded court-watchers are on pins and needles as to what the next big Roberts' Court decision in that area will be. The Supreme Court is poised to decide this week a critical case for the future of campaign finance reform efforts.

The case, called Citizens United v. Federal Election Commission, is a challenge to part of the 2002 Bipartisan Campaign Reform Act (popularly known as "McCain-Feingold") - the ban on corporate spending on broadcast campaign ads - asking whether it also prohibits the spending of corporate dollars on a 90-minute on-demand broadcast of "Hillary: The Movie." As its name implies, the documentary film was originally intended to torpedo "Hillary: The Presidential Candidate" at a time when she was the top contender in the Democratic primary.

At least one member of the three-judge lower court reportedly snickered aloud at oral argument when asked to consider that the movie, which features the likes of Ann Coulter and portrays Clinton as "steeped in sleaze," was not an assault on her qualifications for office. In the most recent case considered by the Supreme Court on campaign finance, Wisconsin Right to Life II, the court concluded that an ad that questions the qualifications or character of a candidate for federal office was rightly subject to the ban.

Yet March's oral argument in the Supreme Court was humorless. Many reformers grew deeply worried about where the court was headed after the Deputy Solicitor General Malcolm Stewart took up its invitation to speculate about whether a similar ban could reach books downloaded on Kindle or other, non-broadcast media.

The "what-ifs" posed by the Supreme Court utterly disregarded the specific terms of the reform, the 2002 so-called "McCain-Feingold" law, which extended only to "broadcast advertisements." Although its 2003 opinion did not rule out other regulations, the decision to uphold the law focused on the problem at hand: corporate spending on television ads that overwhelmed the airwaves during election season.

In that decision not too long ago, the Rehnquist-led Court acknowledged congressional concern over the "corrosive and distorting effects of immense aggregations of wealth ... [on expenditures that] have little or no correlation to the public's support for the corporation's political ideas." The court also noted that the provisions were justified to stop the circumvention of other limits on corporate spending on elections, which has been generally prohibited in federal races since 1907.

Fast-forward six years and it is now another day, another dollar in the Supreme Court. The Citizens United oral argument was full of flights of fancy about entire categories of speech no one had actually imagined were at issue, including books.

But the court's parade of horribles did not instruct so much as obscure the questions before it. While the Justices could simply have asked whether the term "advertisement" applies to a full-length movie, or whether "on-demand" communications are distinct in nature from general broadcasts (they might be), the court instead showed a dangerous, and not very "umpire-like," tendency to look past the terms of the statute to the great unknown.

If the First Amendment or any other constitutional provision is considered in the abstract, untethered from its concrete and specific goals, then any mere law - including McCain Feingold - has little chance of measuring up. Indeed, the version of First Amendment absolutism that this court appears to practice, and may apply here, is in stark contrast to the sober assessment of practicalities, and balancing of competing goals, that every prior court since Buckley used to evaluate campaign finance rules. But freelancing - even when it comes to questions regarding the reach of the First Amendment - is hardly what we expect of our courts.

The question of how to adapt statutes written for a previous age to fit new technologies - i.e., whether there is any conceivable corruption interest in books purchased and downloaded to a Kindle - is not a question best first addressed in a courtroom at oral argument, but by a legislature or regulatory body charged with solving a specific harm, and proposing a particular plan to address it.

It is obviously the case that major adaptations in campaign finance law - as in many other areas - will follow in the wake of tectonic shifts in how we share and process information. And it is likely that new rules will need to be evolved to grapple with corruption concerns, where they do persist.

Persist they will, because where there is power, there will be those who try to corrupt it. Recent scandals, such as those in the rotten mortgage bond market or the attempts to sell a U.S. Senate seat in Illinois, show that addressing both actual and possible political corruption remains a pressing concern for the health of our democracy.

Web-based tools mean that it will be easier and simpler than ever before to report and track information about contributions and other campaign spending, which may actually shift the balance in favor of regulation. The real issue is not whether one may draw lines around protected and prohibited categories of communication, but who is best suited to develop and draw those lines. Should it be Congress and the Federal Election Commission? Or should it be the court?

The mere existence of novel media does not somehow render obsolete the concern, dating back to the Constitutional Convention, of how to balance the access of special interests to public institutions and officials to make them less prone to corruption, capture and other delegitimizing influences. Thoughtful campaign finance rules demand a reconciliation of First Amendment protections with the equally serious need to check political corruption and the appearance of such corruption.

This court, as well as any future composition of it, would do well to decide cases in the campaign finance area carefully, based on the statute before it and the weight of precedent. We hope that this week, and in the future, it will allow the other branches of government to adapt this part of the law to changing circumstances, rather than allowing the shadow-boxing possible in oral argument to gain substance in constitutional precedent.

Judge Sotomayor in Good Company on Restoring Voting Rights

Erika Wood — 2009-06-02T14:23:00-05:00

Much has been made this past week about a brief dissenting opinion by Judge Sonia Sotomayor in the 2006 Second Circuit decision in Hayden v. Pataki, a case that challenged New York's felony disenfranchisement law. Although most of the rhetoric has sought to make the issue of restoring voting rights to people who have been in prison seem like an extreme notion, that is simply not the case. In fact, there is a growing national consensus that criminal disenfranchisement laws are a relic of the past that only weaken our democracy and serve no legitimate law enforcement purpose.

Among other things, plaintiffs in Hayden argued that New York's policy of denying the right to vote to people who have been to prison disproportionately deprived African- American and Latino citizens of the right to vote in violation of Section 2 of the Voting Rights Act (VRA). Section 2 provides:

The Facts About Incumbency: A Response to Professor Hayward

Ciara Torres-Spelliscy — 2009-05-21T17:37:00-05:00

In a post on The Hill Blog, The Incumbency Problem Has Everything to do with Money, I wrote that the availability of low contribution limits and public financing help challengers in elections against incumbents. Professor Hayward replied here, and was somewhat dismissive of the Brennan Center research inspired by Randall v. Sorrell that proves these points.

After paraphrasing Prof. Hayward's statements at our recent conference for the blog, I checked the transcript. Here's what Prof. Hayward said, "So ask yourselves, and this is my closing thought: as passionate reformers, how much of what you dislike about political funding is a problem of incumbency rather than a problem of money?" Given this, I do not think it was misleading to write: "panelist Professor Allison Hayward, a skeptic of campaign finance reform, asked whether reformers should really focus more on incumbency than they do on limits on money in politics."

The Incumbency Problem Has Everything to do with Money

Ciara Torres-Spelliscy — 2009-05-20T13:52:00-05:00

Cross-post from The Hill's Congress Blog.

As Court watchers eagerly await the latest decision on campaign finance in a case called Citizens United, new research from the Brennan Center indicates that the Roberts’ Court’s first campaign finance decision three years ago, Randall v. Sorrell, suffered from a key empirical flaw. In that case, the Court wrongly assumed that low contribution limits hurt challengers and entrenched incumbents.

This misperception is still widely shared. At the Brennan Center’s recent conference, “New Horizons for Reform,” panelist Professor Allison Hayward, a skeptic of campaign finance reform, asked whether reformers should really focus more on incumbency than they do on limits on money in politics. This is a false dichotomy. The Brennan Center has long worked to address both money in politics and the strength of incumbency. Our work on campaign finance reform, redistricting and voting rights is intended to assure that the basic structures of democracy are geared to truly capture the voters’ collective will, so that those incumbents who no longer serve the public will face a realistic prospect of electoral defeat.

“It’s The Way We Finance Our Campaigns

Angela Migally — 2009-05-14T16:28:00-05:00

The banking industry, recently described by Senator Dick Durbin (D-IL) as the “most powerful lobby on Capitol Hill,” has maintained its hold over Congress even after causing the current financial meltdown. While discussing the mortgage crisis on Bill Moyers’ Journal on May 8, Senator Durbin, co-sponsor of the Fair Elections Now Act (FENA), stated that the “way we finance our campaigns” lies at the heart of the current crisis. His solution is FENA, a bill that will provide public financing to congressional candidates.

By giving congressional candidates the option to run their campaigns with money free of any strings attached, FENA ensures that politicians will not make legislative decisions out of a sense of indebtedness to large contributors but will vote their conscience. Senator Durbin declared that now is the “time for us to move to public financing, for the good of the country,” and it certainly seems that the potent combination of economic collapse and political challenges means that there is no time like the present to fully consider how to change business as usual in Washington.

At a press event on Monday May 11, Representative Larson (D-CT), co-sponsor of the House version of FENA, stated that due to the bill’s importance, he hopes to push the bill through the House before the end of the summer. The House version of FENA, co-sponsored by Rep. Larson (D-CT) and Rep. Walter Jones (R-NC), now has 31 co-sponsors.

We Are Not AIG

Ciara Torres-Spelliscy — 2009-05-14T13:33:00-05:00

Cross-post from Huffington Post.

Last week's TARP stress test results reminded us to ask ourselves: now that the federal taxpayer owns nearly 80% of AIG, are AIG's interests ours? We own a quarter of Citibank; does that mean the bank's desires are now in sync with ours? Is Bank of America—currently afloat with $45 billion in taxpayer dollars—now truly America's bank? In a word: No. The political interests of bailout recipients aren't necessarily consistent with public interest which is one reason recipients should be held accountable for all political or partisan spending they do with our money.

Government ownership of big portions of the economy could threaten democracy; for one thing, it creates massive conflicts of interest for those who manage bailed out companies. Do they have a fiduciary duty to the taxpayer or the companies they manage? What happens when those duties aren't perfectly aligned? Alarmingly, if not surprisingly, the AIG bonus debacle suggests managers' inclination to act in the corporate, not the public's, interest.

On New Horizons

Andrew Boyle — 2009-05-13T14:39:00-05:00

A widely attended conference convened by the Brennan Center for Justice brought together academics, activists, politicians, Obama Administration officials and even an actor in a packed hall at the National Press Club in Washington, D.C., on May 8th (click here to learn more about the conference).

The event, "Money in Politics 2009: New Horizons for Reform," was kicked-off by a presentation by Congresswoman Chellie Pingree (D-ME) and closed with a ringing call of public funding of federal elections by the actor Sam Waterston. During the day were presentations by a variety of experts and commentators including Peter Overby of National Public Radio's Power, Money and Influence, Fred Wertheimer, President of Democracy 21 and Professor Allison Hayward of George Mason University School of Law.

Contribution Limits Dont Hamper Electoral Competition

Ciara Torres-Spelliscy — 2009-05-11T14:34:01-05:00

Cross-post from ACS Blog.

It might not surprise you to hear that the Supreme Court occasionally gets it wrong on the facts. Sometimes, it just takes a while to prove it.

The Roberts Court's first foray into campaign finance law was three years ago, in a case called Randall v. Sorrell. The court's decision overturned Vermont's very low contribution limits, which ranged from $200 to $400. The court assumed that low contributions limits ($500 or less) would prevent challengers from mounting an effective campaign against an incumbent.

Spring Awakening

Andrew Boyle & Laura MacCleery — 2009-05-08T18:44:01-05:00

Cross-post from The Hill's Congress Blog.

In business, spring’s arrival coincides with another season, proxy season, in which shareholders receive proposals on which they, or their proxy, will vote at a shareholders’ meeting. A key issue for consideration this year, given the intermingled financial and political scandal that caused the current recession, should be enhanced disclosure of corporations’ political activities.

As an article in Politico recently noted, already 40 of the 100 largest American corporations allow shareholders some access to information on political contributions (in addition to that required by law), either by agreement or shareholder resolution. In some instances, corporations are going beyond what is revealed in public disclosure documents to include contributions to trade groups.

Trade groups and professional associations, or “business leagues,” as the IRS calls them, fall under tax code section 501(c)(6), alongside chambers of commerce and real estate boards (as well as, somewhat oddly, professional football leagues). Trade groups are defined as organizations “united by a common business interest” and “devoted to improving business conditions.”

“New Horizons” Event Reveals Campaign Financing Path for Federal Lawmakers

Andrew Boyle — 2009-05-08T13:37:00-05:00

A day-long conference, "Money in Politics 2009: Horizons for Reform," convened by the Brennan Center [click here to see agenda, and follow on twitter: #bccfr], will take place today, May 8th, at the National Press Club in Washington, DC. The focus is on innovations that address the nexus between money and politics. One such proposal is the Fair Elections Now Act ("FENA"). The Act would build on successes in the states with systems of voluntary public funding of elections.

Embracing their role as "laboratories for democracy," three states, Arizona, Connecticut and Maine, enacted voluntary public funding programs for legislative and statewide elections following well-publicized scandals to reduce the power of well-heeled special interests and to enhance the participation of ordinary citizens as both candidates and voters in the political process.

Obama’s 100 Days: The Roosevelt Comparison Is Fair

Michael Waldman — 2009-05-07T17:06:00-05:00

A Cross-post from US News & World Report.

Last spring, at a wistful panel discussion, Democrats in exile mulled how a new president could make a splash in the first 100 days. "He could close the banks," I joked. "It worked for FDR." Well, it seemed funny at the time.

Barack Obama won the election in a cinematically stirring campaign—then took office amid the greatest economic collapse since the Great Depression. For most new presidents, the "first 100 days" comparison is unfair. As historian William Leuchtenberg noted, they resented governing "in Roosevelt's shadow." In Obama's case, the comparisons are fair. They make plain that—because of dire times, presidential ambition, and political skill—Obama may be a deeply consequential president.

First impressions matter. Obama has glided into the presidency with remarkable panache. He blithely sheds taboos, from holding a White House Seder to moving to normalize relations with Cuba. He speaks inconvenient truths without getting scalded, as when he admitted America's appetite for illegal drugs was the root of much of Mexico's trouble. He seems born to inhabit the office. Think of the distance he has traveled: just five years ago, he was a part-time state senator and part-time law professor, someone perhaps wondering if his career hadn't turned out quite as he hoped. It all feels less like a passing of the baton than the breaking of the sound barrier.

Unraveling the Crazy Quilt of Laws

Erika Wood — 2009-05-06T18:16:00-05:00

Cross-posted from the Hill's Congress Blog.

On Monday, Washington Governor Chris Gregoire signed into law the Voting Rights Restoration Act, a new law that eliminates the requirement that people coming out of the criminal justice system pay all fees, fines and restitution, including hefty surcharges and accrued interest, before being allowed to vote. The right to vote in Washington will no longer hinge on one’s ability to pay. With this new law, Washington becomes the twentieth state in the last decade to ease voting restrictions on people with criminal histories who are out of prison and living in the community.

But there remain more than five million American citizens who are disenfranchised because of a criminal conviction in their past. Nearly four million of these citizens are out of prison—living in the community, working, raising families, and paying taxes alongside the rest of us but still denied the right to vote, often for decades and sometimes for life.

In Honor of Jack Kemp

Brennan Center for Justice — 2009-05-06T15:35:01-05:00

Monday marked the passing of a great partner in our work to restore voting rights to people who have come out of the criminal justice system. Jack Kemp, star football player, prominent Congressman, Cabinet Secretary and leader in the Republican Party, passed away Saturday night at the age of 73.

A self-described “bleeding-heart conservative,” Secretary Kemp dedicated much of his political career to fighting racial discrimination. His concern for racial justice and his deep religious beliefs made him an outspoken proponent for reforming felony disenfranchisement laws.

Durbin: The Banks Own Capitol Hill

Ciara Torres-Spelliscy — 2009-04-30T18:19:00-05:00

The Washington Post reported recently that top TARP recipients paid a collective $22 million dollars to lobby Congress over the previous six months. In a recent interview, Assistant Majority Leader, Senator Dick Durbin observed wryly that, "the banks—hard to believe in a time when we're facing a banking crisis that many of the banks created—are still the most powerful lobby on Capitol Hill. And they frankly own the place."

Getting out of the financial crisis will take disciplined regulation of the financial industry. If Senator Durbin, who is number two in the Senate and who has worked on the bailout as well as consumer credit and related issues, is not able to gain traction to resolve the crisis, improving transparency of political spending by TARP recipients, as we called for in a letter to TARP overseer Elizabeth Warren several weeks ago, is a crucial next step.