Brennan Center for Justice

A Perfect Opportunity to Take New Senate Rules for a Spin

Laura Seago — 2009-11-04T12:59:34+00:00

With yesterday's votes in Washington and Maine concerning the rights of same-sex couples, New Yorkers may be wondering about the status of our own state's proposal to extend marriage rights to gay couples.

On Tuesday, New York Magazine blog Daily Intel ran a story stating that Senate leadership appears unlikely to bring the marriage bill that has been languishing in the chamber for months to the floor for a vote.

This may be no surprise to those who were following this story in the spring. Then, as now, bill sponsor Tom Duane and senate leadership have a fairly good idea who is in favor of and who is against the bill, but voters do not. The Daily Intel post reports that there are 25 or 26 Democratic votes and three or four Republican votes in favor of the bill, but nobody's naming names. That means that voters who want their elected representatives to vote a certain way on the bill have no way of knowing if they need to get in touch with their senators.

One of the rules reforms passed after the end of the Senate coup in July would solve both the problem of leadership's reluctance to move the bill to the floor and anonymity with respect to senators' positions on the issue. It's called a petition for chamber consideration, and it allows the bill sponsor to request that a bill receive a timely floor vote. If three fifths of the chamber - or 37 senators - sign the petition, the bill is considered on the first legislative day after four days have passed. By signing the petition - a public document under New York's open records law - senators can go on the record with their support of the bill and force the legislation to the floor without the blessing of chamber leadership.

The new Senate rules - perhaps the only redeeming thing about the coup that deadlocked the chamber for a month this summer - included a lot of good changes, but the real test is yet to come: members of the Senate actually have to take advantage of their new rights.

After decades of secrecy and leadership stranglehold over the legislative process, rank and file members finally have an opportunity to speak for themselves. But will they take it?

originally posted on ReformNY.

Bruno case highlights pay-to-play culture in Albany

Lawrence Norden — 2009-11-02T23:34:04+00:00

"This way you do business . . . is against the law."

That is the essence of the federal charges against former Senator Majority Leader Joe Bruno, and, in a way, all of Albany. Or so says an unnamed political operative in a New York Times article by Nicholas Confessore entitled "Bruno's trial seen as a hearing on Albany."

I made much the same point in an AP article authored by Michael Virtanen. Regardless of what the eventual outcome of the Bruno trial, the trial itself is bound to give us weeks of headlines that highlight the pay-to-play culture that so many in Albany take for granted. We can only hope that this will shame the legislature enough to force more reforms, and continue to chip away at the stranglehold party leadership and certain vested interests have over the state.

originally posted on ReformNY.

Voter-registration reforms could diminish Ohio’s election disputes

Lawrence Norden — 2009-11-02T17:49:51+00:00

Originally published in the Columbus Dispatch, 10/29/09

Elections in Ohio can produce controversy that is sometimes corrosive to the public's perception of the integrity of our electoral system. As long as Ohio remains a politically important and closely divided state, there will continue to be hotly contested election-related disputes. But changes to election law in Ohio can minimize the frequency and impact of some of these controversies by creating clearer and fairer laws that improve election administration, decrease burdens and costs on county election offices and put the voters first. The Ohio House Committee on Elections and Ethics is considering legislation that should make progress on all of these fronts.

In December and March, I chaired two summits on Ohio Election reform. Each involved a convening of ideologically diverse election officials, academics and voting-rights groups to reflect on ways to make Ohio elections run better. Those assembled agreed that, because of the hard work of election administrators, voting-rights groups and Ohio voters, the 2008 elections were largely a success. There was, however, consensus that more could be done.

The elections-enhancement bill sponsored by Reps. Dan Stewart and Tracy Heard, both Democrats from Columbus, takes many suggestions from the summits. It would improve laws related to early voting, provisional ballots, voter ID and ballot design -- all sources of problems in Ohio in the past.

But the current bill doesn't fully address flaws in the state's voter-registration system, which participants at both summits decried as inefficient and prone to error. Secretary of State Jennifer Brunner and the bipartisan workgroup she pulled together after the summit have proposed a way to fill that gap: an automatic and online voter-registration system.

This system would make it possible to automatically forward registration information from all Ohio residents who interact with a designated government agency to election officials, who could then include such information on the state's voter rolls of eligible residents. This would vastly increase administrative efficiency and reduce the stress on election officials from the typical last-minute deluge of voter-registration forms, smoothing out the flow of registration activity across the year and freeing up resources for other critical election-administration tasks. And, it would improve both the quality and security of voter-registration information and preserve registrars' traditional function of determining eligibility.

Research by the Brennan Center for Justice at the New York University School of Law shows that automatic voter registration could easily be developed from statewide voter-registration databases already in place. Delaware recently implemented automatic registration from its motor-vehicles agency; the state's elections and motor-vehicles officials have expressed great satisfaction with the results. Ohio's Bureau Of Motor Vehicles already participates in automatic registration for the Selective Service, and the same technology can easily be adapted for voter registration. Many other major democracies, including Canada, automatically register eligible citizens to vote, achieving far more complete and accurate voter rolls at lower cost.

The elements needed for an online registration system are firmly in place in Ohio. The state has a secure online interface that residents can use to check their existing registration status; currently, however, the state doesn't provide a way residents can correct or amend information. And, Ohio's Motor Vehicles Bureau already has digitized the information needed to register drivers to vote; they simply need legal authority to transfer this information to election officials.

Successful models are cropping up across the country. Arizona, for example, has an online system that's generated substantial savings. Officials there say that each online registration costs just three cents to process; paper forms costs 83 cents each to process. The system has also saved Arizona election officials tens of thousands of hours in time that would have been spent manually entering data.

And citizens report substantial satisfaction with the added convenience that online registration offers. It is no surprise that eight other states -- California, Colorado, Indiana, Kansas, Louisiana, Oregon, Utah and Washington -- recently authorized online registration, or that similar bills are pending in at least four other states.

In Ohio, the resources and political will are in place. Passing a version of the election-enhancement bill that incorporates voter-registration modernization reforms could make the Buckeye State a model of electoral reform.

Justice Thomas Wants More Diversity

Ciara Torres-Spelliscy — 2009-10-28T14:41:00+00:00

American legal talent comes in all shapes and sizes, which is why we should worry about a homogeneous federal bench. After the nomination process of Sonia Sotomayor, the press focused largely on the gender and racial diversity that she brought to the bench. This focus was understandable given that Justice Sotomayor is just the third woman, and the third person of color on the Supreme Court since its inception in 1789.

Recently, Justice Thomas said: "the Court is too dominated by Ivy League lawyers and lacks regional diversity. People constantly worry about racial, gender and ethnic diversity," he furthered, "home states matter, too."

Justice Thomas has a point about judicial diversity. The metrics of diversity can include more than just race or gender. Diversity of geography, legal training and legal practice can all contribute to a more complete bench. As Russ Wheeler at Brookings has noted, over time the federal judiciary has become more homogenous in terms of professional backgrounds. Wheeler's research shows roughly half of federal judges appointed by President George W. Bush were former judges as compared to one fifth under President Eisenhower. And as Professor Sylvia Lazos has shown, most of the racial diversity on the federal bench is due to our last two presidents (Bush and Clinton).

With 96 federal judgeships vacant, President Obama has a golden opportunity to continue to diversify the bench in many dimensions. As Professor David Fontana has suggested, President Obama could grow the ranks of future legal leaders by appointing younger judges to the federal bench. As Justice Thomas suggests, good judges can come from all over the country. But race and gender do still matter. So Obama should draw from more than the pool of sitting judges since the feeder courts at the state level often lack diversity. As the Brennan Center has pointed out, judicial diversity is in need of improvement, since 24 state supreme courts are all white and two are all male.

So far, the Senate has confirmed just three of Obama's lower court nominees. Filling the vacancies on the federal bench will require more than action from the President. Cooperation is also needed from Senators, who are continuing in a long history of obstructionist delay tactics where the judiciary is treated as a political football instead of a co-equal branch of government. A diverse, representative, and fully staffed judiciary should be a shared goal of all Americans, no matter where they fall on the political spectrum.

Panel Discussion, October 27, 2009, on Needed Reforms in Albany

Brennan Center for Justice — 2009-10-28T12:52:00+00:00

We had a great panel on how to reform the State Legislature at NYU Law School last night. With approximately 150 people in attendance, E.J. McMahon (Empire Center), Susan Lerner (Common Cause NY), Senator Squadron and Assemblyman Jeffries each identified the one reform they would most like to see enacted to make significant change in the legislature (there was no dispute that significant change was needed).

E.J. McMahon had what was perhaps the most provocative suggestion: turning the legislature into a "Citizen's Legislature," where the number of legislators was increased, the legislative calendar shortened to 30 days, and the position of Senator and Assemblyman turned into a part-time job. The three other panelists objected to this idea, citing the complexity of issues facing the legislature and arguing it would make the legislature even less effective than it is now.

Susan Lerner argued for reform to the committee process: less committees, more hearings, mark-ups and debate on bills. These are things we see in every other state legislature, and all four panelists agreed this reform was needed in New York.

Senator Squadron argued that we needed real campaign finance reform in New York, with lower contribution limits and public financing. Susan Lerner agreed, stating that campaign finance reform was the reform necessary for all other reforms, and noting that too often legislators feel they must respond to lobbyists first. E.J. McMahon was the only contrarian on campaign finance reform, arguing that if anything, we should further deregulate New York's system (it's hard for me to imagine how it could be much more deregulated).

Assemblyman Hakeem Jeffries argued for an end to the current process for Special Elections, whereby party bosses essentially choose the replacement for legislators who must leave office in the middle of their terms for reasons like criminal indictment. He noted that approximately 1/3 of the legislature has been chosen through this special election process. He and Senator Squadron have introduced a bill to tackle this issue.

We had an extremely engaged audience, with questions about redistricting reform, constitutional convention, elimination of member items and whether it made sense to turn the legislature into a unicameral body.

While there was general agreement that things were pretty bad in Albany right now, the panelists also seemed to agree that the public disgust with Albany presented an opportunity for some significant changes.

See original post on the ReformNY blog.

Democrats Failing to End Bush-Era Abuses of Power

Emily Berman — 2009-10-22T22:38:00+00:00

(this post is published in full at Roll Call, and is excerpted below.)

Earlier this month, the Washington Post touted the Obama administration's "increasing confiden[ce] that it has struck a balance between protecting civil liberties, honoring international law and safeguarding the country." The USA PATRIOT Act reauthorization bill approved by the Senate Judiciary Committee last week provides ample evidence that the civil liberties side of the scale is getting short shrift.

It is troubling enough that the bill fails to add meaningful safeguards to a set of powers granted - often over strenuous Democratic opposition - during the Bush administration. These powers enable the government to obtain vast amounts of private information about Americans who have no ties to terrorism or espionage whatsoever.

But even more disheartening is last week's revelation that the Obama administration, while publicly claiming to be open to increased civil liberties protections in the bill, had been lobbying Congress in secret to remove them. Some of these proposed (and now rejected) protections were identical to measures supported by then-Sen. Barack Obama (D-Ill.) in 2005.

As if Obama's stealthy about-face didn't provide enough cause for concern, Senate Democrats proved all too eager to follow his lead, jettisoning without a second thought their erstwhile objections to these overbroad authorities. Just three years ago, committee members unanimously endorsed a provision to help prevent abuses of National Security Letters - a tool that enables the FBI to collect private records about Americans without a warrant. The very same provision was able to garner only four votes this year.

Few observers had anticipated this result. To the contrary, many had hoped that the need to consider reauthorizing three expiring provisions of the PATRIOT Act would lead to a thorough public debate over the full range of existing surveillance powers. In the years since 9/11, these powers have been adopted or modified piecemeal, usually hurriedly, often in response to a crisis and frequently in secret. Congress could have taken this opportunity to consider the big picture, to map out a responsible, comprehensive policy that comports with our shared interests in liberty and national security....

read the rest here--registration required.

The Senate Fails to Make Meaningful Reforms to the Patriot Act

Jessica Rubenstein — 2009-10-20T17:48:00+00:00

Undermining the protection of civil liberties. Cutting back on congressional oversight. Allowing the FBI to spy on Americans at its discretion based on broad claims about national security needs. Sound like a Bush-era congressional session? In fact, this was the tone that underlaid the debate in a recent Senate Judiciary Committee meeting as they considered a bill to reauthorize several expiring provisions of the USA PATRIOT Act ("Patriot Act"). Senators who had unanimously supported a reauthorization bill in 2005 (that added restrictions to the powers granted in the original Act), now unquestioningly caved to the Obama Administration's demands to limit any additional safeguards, approving legislation that they would have deemed unjustly deferential just a few years ago. In doing so, they prioritized partisanship and politicking over the civil liberties of Americans.

The first blow came when Chairman Leahy introduced his and Senator Feinstein's bill for the reauthorization of the expiring provisions. It was a compromise measure substituted for the bill that Sen. Leahy had originally proposed, which significantly cut back on the privacy and civil liberties protections of that original Leahy bill. A week later, the Committee continued the trend by rejecting a number of important amendments proposed by Senator Feingold and others, which would have reformed several aspects of the original Patriot Act to provide much needed privacy protections as well as increased congressional oversight. With senators from both sides of the aisle praising each other for their efforts at compromise and collegiality, the Committee approved the USA PATRIOT Act Extension Act of 2009.

Failed Privacy Measures

One amendment rejected by the Committee concerned Section 215 orders, which allow the FBI to obtain "any tangible thing"--often business records, which could include sensitive information such as bookstore and other commercial purchase records, medical records, genetic records, insurance records, travel records, etc.--related to a terrorism investigation. Sen. Feingold challenged the persuasiveness of arguments secretly offered by the Obama Administration to lobby for a more permissive standard for obtaining these records, and called for critical information to be unclassified so that Congress and the American people could make informed decisions about how to protect both their own privacy and security in this area. Unfortunately, this call was ignored, and the Committee steamrolled the bill through on the Administration's terms: Under Section 215, the government need not even show that the records being obtained relate to a suspected terrorist or spy, someone known to a suspected terrorist or spy, or the activities of a suspected terrorist or spy. The government now need only make a statement supporting its belief that the records have some "relevance" to a terrorism investigation, a standard that is so loose as to be meaningless. The bill similarly failed to include meaningful reform of the other two expiring provisions.

Senators Feingold and Durbin had attempted to provoke a wider discussion of counterterrorism powers, challenging Congress to seriously debate the results of the often hasty expansion of surveillance authorities following 9/11. They introduced the JUSTICE Act, which proposed a variety of safeguards designed to protect Americans' records, homes, and communications against the expansive capacities granted governmental authorities under the Patriot Act, the FISA Amendments Act and other surveillance provisions. Such reforms would not only protect Americans' privacy and civil liberties, but would also likely enhance the government's ability to target terrorists. Ensuring that investigative efforts are actually focused on suspicious activities and individuals will be more effective than casting an overly broad net that collects private information on innocent citizens with no ties to criminal pursuits. But the Committee declined to use this opportunity to reassess the necessity and appropriateness of these broad powers, and instead limited its discussion to the expiring provisions, which it renewed largely unchanged.

Positive Changes

The bill approved by the Committee did include some positive developments. Cognizant of the FBI Inspector General's reports documenting extensive abuse of National Security Letters (NSLs - a type of administrative subpoena used to obtain information without a warrant), the Committee opted to impose an end to this power, ensuring some congressional review of NSL use in the near future. It also approved an amendment requiring the Attorney General to adopt minimization procedures, which limit the use and dissemination of incidentally-acquired, irrelevant personal information, for the information obtained through NSLs. These small steps toward curbing possible abuse of NSLs are all the more necessary -- as the Committee rejected inserting into the bill a more restrictive standard for their use.

Another constructive amendment reduces from 30 days to 7 days the time limit for notifying a person that he or she has been subject to "sneak and peak" search, a covert search in which the subject has no advance or contemporaneous notice of the search's occurrence. These provisions will ensure greater privacy protections without inhibiting the government's ability to effectively carry out terrorism investigations.

The past misuse of NSLs by the FBI is attributable at least in part to the overly expansive powers granted in the Patriot Act. It is the responsibility of Congress to provide appropriate checks on the executive branch. Stricter standards are needed to ensure that the government does not abuse its authority and that invasive practices are used only in cases when there is already a link with suspected terrorist activity.

In rejecting essential reforms like those proposed by the JUSTICE Act to curtail abuses of constitutional rights since 9/11, the Senate Judiciary Committee missed a crucial opportunity to protect civil liberties, and once again extended broad powers to the Administration in return for limited transparency and inadequate constraints on executive power.

Obama Administration Won’t Release Bush-Era OLC Opinion

Laura Klein Abel — 2009-10-20T14:36:00+00:00

(This article also appeared on The Hill's Congress Blog on Oct. 20.)

The Obama Administration has pledged to restore transparency in government. But last week the Brennan Center had to sue for the release of a Bush-era opinion by the Department of Justice’s Office of Legal Counsel (OLC). The opinion calls into question the government’s continued attempts to enforce an unconstitutional speech restriction – the “anti-prostitution policy requirement” – undermining the global fight against HIV/AIDS.

The requirement forces non-profits that receive federal funds to fight HIV/AIDS overseas to adopt organizational policies explicitly opposing prostitution. While the non-profits do not support prostitution, many use HIV/AIDS prevention methods developed by public health experts, which include working closely with prostitutes in a non-judgmental manner. The policy requirement undermines that work.

In February 2004, OLC wrote a memo stating that enforcing the policy requirement against U.S. organizations would be unconstitutional. The opinion was a remarkable moment of honesty. Because the February 2004 opinion has never been publicly disclosed, we do not know the particulars of its legal reasoning. It must have been pretty forceful, though: at least two government agencies – the U.S. Department of Health and Human Services (HHS) and the U.S. Agency for International Development (USAID) – heeded the OLC policy requirement memo, refraining from enforcing the policy requirement for about 18 months.

OLC’s honesty was short-lived, however. In September 2004, OLC reversed course, stating in a letter that there existed “reasonable arguments to support the constitutionality” of the policy requirement. This letter will look eerily familiar to readers of OLC’s infamous torture memos. Like them, it ignores settled legal precedent – in this case several decades of Supreme Court “unconstitutional conditions” jurisprudence – and relies on old decisions of questionable validity.

For more than four years, HHS and USAID have relied on the September 2004 letter as a basis for enforcing the policy requirement against U.S. organizations. Fortunately for the fight against HIV/AIDS, for much of that time a federal court order has barred them from enforcing the policy requirement against most U.S. organizations.

Now, HHS is embarking on a rulemaking process, with the goal of revising regulations that implement the policy requirement by early January 2010. This is a crucial moment for the public to play a role in shaping those regulations. Understanding why OLC initially condemned the policy requirement as unconstitutional could not be more important. So far, though, OLC, HHS and USAID have refused our FOIA requests for the February 2004 OLC opinion.

On Inauguration Day, President Obama instructed the executive agencies to honor FOIA requests whenever possible, stating: “A democracy requires accountability, and accountability requires transparency.” Our hope in filing the lawsuit is that we will obtain the opinion in time to influence the rulemaking process. Only then will transparency be able to play the role in the democratic process that President Obama intended.

A Blueprint for Fixing Albany

ReformNY — 2009-10-19T13:56:00+00:00

Today, the New York Times ran an editorial assessing the problems in New York and what needs to be done to fix them. Calling the state a "national embarrassment" and "a $131 billion monster controlled by a crowd of smug officials whose main concern is keeping their soft jobs," the Times outlines a must-do list for state lawmakers. The editorial says what recent polls have already suggested - with the 2010 election a little over a year away, lawmakers fail to reform state government at their peril.

The editorial lays out a laundry list of areas for improvement that it will profile in detail in the coming weeks:

Ethics Reform. The Times calls for "independent monitors with powers to oversee the ethics of those in the state government and Legislature."
Campaign Finance. Advocating a public financing model, the Times calls for "strict rules for reporting and using that money."
Budget Reform. The Times demands a more transparent budget process.
Pension Reform. Of the fact that the comptroller is the sole trustee of the state's pension fund, the Times says, "This should not be happening anywhere, but especially not in Albany." The editorial supports Cuomo's proposal for a 13-member commission to manage pensions, but cautions that the commissioners must be carefully chosen.
Modernize Voter Registration. Echoing the paper's support of a national proposal to reform the voter registration system, the Times says it's time to make it easier to register to vote in New York.
Redistricting Reform. One of the causes of stagnation in Albany is the process by which legislators draw their own districts - and choose their own voters. The Times advocates putting redistricting in the hands of an independent commission.

Some members of the New York state legislature are probably beyond redemption, but for those who still wish to accomplish something for New York State, the blueprint outlined by the Times is a great place to start.

In Memory of Judge Justice

Myrna Pérez — 2009-10-16T22:01:00+00:00

I never met Judge William Wayne Justice, but he had a big impact on my life. Most directly, he was a long-time friend of, and inspiration to, Albert Kauffman, former head of the Mexican American Legal Defense and Educational Fund in Texas. And Kauffman, in turn, inspired me to be a civil rights lawyer.

The name alone—WILLIAM WAYNE JUSTICE—conjured images of a bad-ass Texas cowboy who busied himself righting wrongs and punishing baddies. I've never seen a picture of William Wayne Justice in a hat, but he always wears one in my mind; and yes, sometimes, he is on a horse, galloping towards a prison in which wards are mistreated or schools that refuse to educate undocumented kids, with a briefcase tucked under one arm, a gavel affixed to his saddle. Kauffman's invocations of Judge Justice as an example of a visionary, pioneering justice helped lock these images in my mind.

Justice also affected me because he changed Texas, the great state where I was born and raised. Former Lieutenant Governor Bill Hobby credited Justice for "drag[ging] Texas into the 20th century." At his death, others have also represented him as a pioneer—trudging along, often alone, towards a world that is safer for poor persons. Four years before I was born, he issued what has been called "one of the most extensive desegregation orders in legal history."

Later rulings provided bilingual education and public education to undocumented children. Justice took control of the Texas prison system—notoriously overcrowded, with legally questionable conditions. Not all of Justice's rulings survived appeal. But even those rulings went a long way towards illuminating the public and the legislature, and so helped pave the way for substantive change in Texas—and beyond.

An oft-repeated story about Justice involves the Judge instructing law clerks to review letters from inmates. The clerks' mandate? To find inmates whose complaints might form the basis of viable lawsuits against the state prison system, and then to appoint a respected civil rights lawyer to prosecute the cases. Next, Justice would ask the Department of Justice to participate as amicus. Critics could claim this was inappropriate behavior for a judge, but his approach was a powerful lesson for civil rights advocates. He understood the importance of having compelling plaintiffs, good counsel, and a solid amicus plan to get good results in the court system. In fact, I hear law schools across the country teach about him and these cases.

The contributions Justice made to Texas, to lawyering, and most importantly, to people who are poor, disadvantaged, and/or of color, will survive his death. But it's hard to shake the sadness that attends the loss of someone who—hatless or not—did so much to advance social justice.

What to do about Monserrate?

ReformNY — 2009-10-16T16:40:00+00:00

As most of our readers now know, Hiram Monserrate, the Senate coup instigator accused of slashing his girlfriend in the face with a broken glass last December, was charged yesterday with a misdemeanor - not for the slashing itself, but for Monserrate's rough treatment of his girlfriend caught on security video as the couple left for the hospital later that evening.

Had Monserrate been convicted of a felony, he would be forced to surrender his seat in the Senate. But because his crime is a misdemeanor, there is no requirement that he step down, even if he is sentenced to jail as his conviction allows.

Yesterday, Democratic Conference Leader John Sampson issued a statement saying that the "leaders of our conference are discussing the potential for further action in the Senate" and that they will "follow the letter of the law" should they choose to take action. Three Democratic senators issued even stronger statements today calling on Monserrate to resign and saying that they will work to remove him from the Senate if he does not step down voluntarily. Two more of their colleagues joined their call this afternoon.

It turns out that the letter of the law to which Sampson refers is quite clear. Section 3 of the New York State Legislative Law states in full: "[e]ach house has the power to expel any of its members, after the report of a committee to inquire into the charges against him shall have been made." The law does not specify the structure of the committee or what the report must find.

Malcolm Smith, still the nominal Temporary President of the Senate, has the authority to convene a temporary committee to investigate the claims against Monserrate or to delegate the inquiry to a standing committee - say, the Ethics committee, chaired by Sampson himself. The evidence against Monserrate has already been aired in court and is publicly available. Once this committee submits a report on their findings, the question of Monserrate's expulsion can be put to the chamber for a vote. If the sentiments of the growing number of Senators who have already spoken our against Monserrate are reflective of the rest of the chamber, it should be a pretty easy one.

Brewing Storm over Nancy Foster and Defender Programs

Melanca Clark — 2009-10-01T19:44:00+00:00

A storm has been brewing in Maryland regarding the recent firing of state Public Defender Nancy Forster, and the related attack on several defender programs that she championed, including the Northwest Defenders - A highly regarded public defender unit in Baltimore that in addition to providing zealous representation, is helping clients address the challenges of mental illness, addiction, and joblessness that can lead to continuing contact with the criminal justice system. The award wining staff at Northwest Defenders leverages the resources of the community by connecting clients with housing, treatment and employment programs, and with the help of area law students, helps clients expunge minor criminal records that have proven to be a persistent barrier to employment opportunities.

Back in July, Maryland's 3 member Board of Trustees demanded that Public Defender Forster disband its capital crimes unit, juvenile defense unit, and the Northwest Defenders. In addition, the Board demanded that Forster justify which, "if any, social workers are necessary," and demanded further action that would purportedly "refocus the defender's mission away from a "holistic approach" and toward "effective representation."

When Forster refused to take the dictated actions, the Board fired her on August 21st. She is now pursuing legal claims against the Board. The fate of the defender units at issue remains unclear.

Forster's firing has rankled many who see undue political interference with the management of a public defender's office. The board's stance that, ""[t]he effort to rehabilitate and life-assist individuals charged and convicted with crimes is not a duty or responsibility of the [office of the Public Defender]," has also sparked a debate as to the appropriate role of a public defender's office. An article published in the September 6th edition of the Baltimore Sun, "Public Defender's Identity Crisis," queries whether it makes sense for a public defender's office to adopt a community-based approach.

Police count on community-based institutions to help reduce crime. The Department of Justice has supported studies of strategies that engage state prosecutors and probation officials in the community. The judiciary, too, has long been active in developing drug and youth courts that can provide drug-treatment and other services as an alternative to incarceration.

On the defender side, the community oriented defender movement can have equivalent positive impact. The trustees hostility seems remarkably short sighted, particularly in these current times of budget crisis.

First, community oriented defenders provide zealous legal representation for their clients. But, by relying on social workers (and other professionals) to identify community based alternatives to confinement, and by developing relationships with community organizations to expand supports for clients, they can dramatically impact case outcomes.

Second, our nation's economic crisis should compel greater support, not less, for defender problem-solving approaches that lead to cost savings to the state fisc as a result of the better life outcomes for clients and the attendant reductions in recidivism. A focus on up-front defense expenditures for social workers and expungement programs which fails to acknowledge the longer-term benefits of helping clients get on their feet and stay off the streets is woefully short-sighted.

Finally, any evaluation of community oriented defender services must be assessed against the backdrop of a criminal justice system that is broken. Maryland devoted nearly 8% of its general budget dollars on corrections spending in 2007, the 11^th highest rate of corrections spending in the country. The state spent nearly as much on corrections as it did on higher education. Further, racial and ethnic disparities present at arrest, prosecution, and incarceration continue to plague the justice system.

Community oriented defenders that think beyond individual cases to give fuller consideration of the institutional forces affecting multiple clients are also particularly well positioned to hold the government accountable for failed policies, and to help devise solutions to systemic problems. Such defenders are proving themselves a valuable resource in communities across the country.

The interim chief of the Maryland defenders office, Elizabeth Julian, accepted her current appointment on the condition she not be required to implement the demands the Board made of her predecessor. Julian and any future chiefs must be relieved of the burden to take unreasonable actions that undercut the agency and its important work for the state. It is welcome news that Judicial Proceedings Committee of the Maryland State Senate will be holding hearings to get to the bottom of the controversy.

-----------------------------

Melanca Clark

Director, Community Oriented Defender Network

Since 2003 The Brennan Center has coordinated the Community Oriented Defender network, a coalition of public defenders around the country united by the view that the representation of individuals charged with crimes can be made more effective by a deep engagement of defenders with the communities in which their clients live.

Justice for Half

Emily Savner — 2009-10-01T19:33:00+00:00

One in two low-income Americans seeking legal help does not receive it, a new report shows. The report paints a grim picture of a two-tiered justice system, in which wealthy people are able to hire lawyers to help them get their "day in court," while low-income families must face life-changing legal issues without the same assistance. The report, Documenting the Justice Gap In America, was released this week by the Legal Services Corporation (LSC), the federal body that funds legal assistance for low-income Americans in civil cases.

The study found that budget shortfalls prevent the 137 local, LSC-funded legal aid providers from helping half of the eligible potential clients who contact them seeking help. Parents trying to protect their custody rights; individuals unable to collect the government support they need to pay their mortgage and feed their families; and workers fighting to obtain hard-earned wages illegally denied to them -- are all being turned away due to lack of funding for legal aid. The report estimates that in a year, almost 22,000 people seeking help to save their homes from foreclosure alone will be turned away by LSC grantees.

These figures likely understate the current crisis in legal representation. The U.S. Census Bureau reports that the number of people eligible for LSC-funded services (people living at or below 125 percent of the federal poverty level) grew to 53.8 million in 2008, up from 50.8 million just one year before, and even these figures capture just the recession's start. Only a fraction of low-income people with legal needs contact legal aid offices at all, and while LSC reports that half of those seeking help are "served," some receive just advice, not full representation in court.

In a case dealing with issues as important as child custody, the loss of one's home, or wage theft, standing alone in a courtroom, without the help of a lawyer, would be unthinkable to people of means. Low-income families are left without other options. There are ten times more private attorneys providing personal legal services to people who can afford it than there are legal aid lawyers serving the poor. And the poor suffer because of it; the report cites a growing body of research demonstrating that those without legal representation fare worse in court.

It is not just the poor who suffer. The court process is slowed and court costs multiply when litigants enter the courthouse without knowledgeable representation. Communities are drained of wealth when neighbors' homes are foreclosed. Consumers lose out when lenders are allowed to continue deceitful practices. And children suffer when family problems go unaddressed.

As the number of Americans with legal needs and eligible for federally financed legal aid swells, national and state-level responses fall woefully short. To date, federal stimulus bills have included no funding for legal representation, and though Congress is considering upping LSC's funding for Fiscal Year 2010, the proposed $10 - 50 million increase will not come close to the doubling of LSC funding needed to provide merely "necessary access to civil legal assistance," according to the report.

Further exacerbating the effects of funding shortages are Newt Gingrich-era federal restrictions on LSC grantees that not only limit the tools legal aid lawyers can use, but also create inefficiencies throughout the legal aid system. Unconscionable at this time of expanding need, a restriction prohibiting clients of LSC-funded programs from participating in class actions forces legal aid organizations to waste resources by unnecessarily litigating similar cases one-by-one. Unable to seek attorneys' fees, even when otherwise allowed under statute, the restrictions cause LSC-funded organizations to lose out on a potential funding source. And if an LSC grantee wishes to "un-restrict" its non-LSC funds, it must set up a wholly separate organization, creating major losses in duplicated overhead and administrative costs.

Only when all low-income people can obtain a measure of legal assistance in cases related to basic human needs, from lawyers with all the requisite tools, will the promise of "equal justice under law," inscribed on the Supreme Court, ring true.

Protect young voters—save campaign finance reform

Nate Frentz — 2009-09-28T19:47:00+00:00

Originally posted at Salon.com

Younger voters -- those in the under-30 crowd like me -- invested an incredible amount of energy and enthusiasm in the 2008 elections. More of us came out to vote than ever before. We gave not just our votes but also our shoe leather and time as campaign volunteers. We showed up at campaign events by the thousands. And nearly one in 10 of us donated money to a presidential candidate. As young people, we are discovering a civic voice all our own, with unique perspectives on many of the challenges facing the country, and have become a powerful part of the electorate.

The Supreme Court, which begins a new term on Oct. 5, is working on a final decision in a case that could radically threaten our ability to make much difference in politics. In Citizens United v. FEC, the most important issue is whether the court will overturn rules that govern corporate electioneering -- that is, ads that support or oppose a candidate. For decades, legislatures and the courts have sought to limit corporations' and unions' spending in elections. This is because these groups' disproportionate ability to spend massive sums can distort the electoral process.

For decades, Congress has secured the integrity of our democracy by requiring that corporations and labor unions wishing to fund advertisements supporting or opposing candidates do so through political action committees. Instead of allowing corporations to funnel monies directly from company coffers into campaign war chests, PACs are funded through individual contributions. Campaign finance law makes it harder for corporate cash to crowd out the voices of groups -- youth voters, grassroots activists, minorities -- who are without ready access to reservoirs of money.

The Supreme Court has so far upheld this balance. The precedents in two cases, McConnell and Austin, that the court is currently considering overturning in the Citizens United case are only the latest in a long line of decisions regulating corporate expenditures in elections. But the most recent of those cases, McConnell, was decided in 2003, and the court's composition has changed. With a new majority -- specifically, with Samuel Alito and John Roberts replacing Sandra Day O'Connor and William Rehnquist -- the Supreme Court now appears to be considering an about-face on the constitutionality of much of campaign finance reform. (A lower court just struck down some campaign finance reform in Emily's List v. FEC.) If the court overturns precedent as radically as many fear, corporations and labor unions could be able to support or oppose candidates with funds right out of their treasuries.

Why does this concern younger voters like me? While our political idealism and passion run deep, our pockets generally do not. We do give what and when we can, but we certainly cannot afford to match the kind of massive expenditures corporations and unions can make. Even as it is, the financial contributions of younger voters to successful candidates often represent just a tiny part of what those candidates end up raising. According to the Campaign Finance Institute, all small donors of any age account for only 6 to 22 percent of the funds collected by Democratic and Republican senatorial candidates.

The much discussed "small-donor revolution" of the 2008 election, however, signaled a hopeful change toward a broader base of support for campaigns. An increased emphasis on smaller contributions was a natural outcome of the campaign finance laws now under threat. Limits on the size and source of contributions pushed political parties and candidates to the grass roots, and to youth, for a broader base of support. Young people played an important role in this shift. Tens of thousands of young first-time donors gave contributions as small as $10 and encouraged others to do the same. In the aggregate, this made a big difference, not only because candidates had to cultivate young people and pay attention to their views, but also because it gave young people the feeling of being stakeholders in politics and in civic life.

But a bad outcome in the Supreme Court case would dramatically reverse all this. Giant vested interests in industries like telecommunications, education, finance, energy and healthcare could make unlimited expenditures to elect or defeat candidates, all depending on how those candidates vote. The scale of the difference is almost unimaginable, on the order of hundreds of billions of dollars, more than enough to overwhelm the impact of small donors and drown out any future political opposition to corporate interests in the country.

We as young voters stand out for our opinions on war, climate change, civil rights and the role of government. And as a group, we face our own unique set of problems. To take an example from the current focus on healthcare, over 13 million of us do not have health insurance, making young adults the nation's largest group of uninsured Americans. On top of this, we have on average more debt, mostly from student loans. On a more basic level, we have the most direct stake in the future health of our planet.

The question is, Will younger voters, or any other economically disadvantaged group, be able to influence government to address these issues if the ability of corporations and labor unions to influence politics is made even stronger? Will the candidates with our interests in mind be able to compete with opponents backed by wealthier interests?

If the Supreme Court decides to overturn a century of precedent, the answers are bleak. But the young people who found their civic voice in the last election are unlikely to remain silent now. We may not be able to influence the way the Supreme Court votes, but we can stand prepared for the worst. Voluntary public funding for campaigns is one response we can call on Congress to make to the court's decision. While opening the floodgates on modern corporations' ability to fund electioneering would have unprecedented consequences, well-designed public funding systems could at least give serious candidates a better chance to compete, even if their stances aren't popular with wealthier interests. Public funding would also help allow the grass-roots activities we young Americans proved ourselves so capable of in 2008 continue to make a significant difference. In short, it would help ensure that we still matter to our democracy, no matter how the court rules.

Honoring Justice Brennan’s Legacy

Adam Skaggs — 2009-09-23T17:24:00+00:00

Yesterday, at a ceremony presided over by Chief Justice John Roberts, the U.S. Postal Service issued a series of new stamps honoring the most influential Supreme Court Justices, among them Justice William J. Brennan, Jr. The stamp commemorating Justice Brennan is a welcome and well-deserved tribute; it's impossible to name any judges who cared about our democracy more than Justice Brennan did.

The new Justice Brennan stamp is a tremendous honor. There's another move the postal service could make, though, which would have a significant effect on the American democracy so dear to Justice Brennan's heart - and all it would take is a simple, clerical change to one of the postal service's most frequently used forms. By making a small tweak to its national change of address form, the postal service could make American elections function more efficiently and eliminate problems for millions of Americans on Election Day. This easy step would be a meaningful tribute to Justice Brennan, whose judicial decisions uniformly sought to protect the fundamental right to vote, including his opinion in the landmark case Baker v. Carr, which opened the door for courts to protect the "one-person, one-vote" principle.

One of the biggest challenges facing election administrators is the need to ensure that voters' registration records contain up-to-date, accurate information, including address information. Doing so isn't easy because tens of millions of Americans - as many as one in six - move every year. In any five-year period, approximately 45 percent of the U.S. population moves. All this moving poses big challenges for election administrators - and voters.

Under the current system of voter registration, voters who move must re-register every time their address changes by sending election officials an old fashioned, paper form. Every time there's an election, a flood of these forms are submitted just before the registration deadline. This consumes a big percentage of election administrators' resources: address updates account for about a third of all voter registration transactions and, unsurprisingly, election officials report that dealing with address changes is the most challenging aspect of voter list maintenance. Processing so many forms results in errors with voters' registrations, as temporary clerks enter data hand-written on paper forms into states' registration lists.

These problems could be reduced significantly if election officials had a tool to update voters' addresses in their registration records on a rolling basis, not right before Election Day when the paper forms flood in. The postal service's change of address form could be this tool - if postal officials just added a single question. All they need to do is ask people if the address changes they submit to the post office are just temporary changes for mail forwarding, or should be used to update their permanent voting addresses. The postal service already collects information on address changes. It wouldn't be difficult to ask one more question about voting residence and share the information voters submit with election officials.

A simple checkbox would do the job: "Check this box if you do not want to change the address where you are registered to vote. Unless you check this box, your address change will be reported to your state's election agency."

Because the change of address form doesn't currently ask about voting address, election officials are often reluctant to rely on postal data to update voters' records. This makes sense, since there are plenty of reasons voters might want to have their mail forwarded without changing their permanent voting address - like when a member of the armed forces is assigned to a new location but intends to eventually return to his or her permanent voting address. Letting voters specify changes to their voting address would let election administrators know when voters had - and hadn't - moved their voting residence. This way, the voters' records could be updated ahead of Election Day, eliminating the eleventh hour scramble to correct old registration information at the last minute.

Some states already use postal data to update the addresses of voters who move. Minnesota, for example, revised its election code in 2008, and now uses postal data to update the addresses of voters who move either within or outside the state. Similarly, Oregon conducts regular, bi-annual cross-checks of postal change of address data to update address information for voters who have moved - a particularly important task in Oregon, which votes entirely by mail. But given the current change of address form, states like Minnesota and Oregon must do follow-up investigations to determine which mailing address changes should also serve as voting address updates, a task that adds expense and delays, and introduces opportunities for errors. Adding the check-box would address these concerns.

The postal service should also provide election officials with change of address data free of charge - or at least at cost. Laws in more than half the states currently authorize election officials to update address information based on postal data. But some officials don't do so because of the cost of obtaining the data. Requiring that the postal service furnish election officials with address data at little or no cost will reduce the costs of updating voter data and produce more accurate voter rolls.

Since the historic 2008 election, a chorus of voices has been calling for reforms of the voter registration system that will bring that system into the twenty-first century. A simple change by the postal service could significantly aid in this process, improving our voter registration system and ensuring accurate voter rolls. It would be a welcome contribution to a modern voter registration system in which accurate data from various government sources is provided to election officials, improving administrative efficiency and eliminating Election Day problems that stem from registration errors.

Making this change would go a long way to ensuring that citizens' votes' don't go uncounted because of out of date registrations or clerical errors in their registration records. That would be a fitting tribute to Justice Brennan, and all those who share his vision of a fully enfranchised society.

Lt. Gov. Ruling a Victory for Paterson

ReformNY — 2009-09-22T19:14:01+00:00

Today, the New York State Court of Appeals ended the final chapter of the Senate coup saga that began nearly four months ago. In an unexpected victory for Governor Paterson, the court ruled that the Governor had the authority to appoint Richard Ravitch as Lieutenant Governor on July 8^th. In arguing that the constitutional provision for the Temporary President to perform the duties of Lieutenant Governor is a "short term" solution that "can at best provide only stop gap coverage," the decision might also be viewed as a victory for those who found distasteful Pedro Espada's assertions during the coup that as Temporary President, he was entitled to two votes in the Senate.

In the decision, the court relies on the precedent created by Ward v. Curran, the 1943 case in which the court allowed then-governor Dewey to hold a special election to fill a vacancy in the office of lieutenant governor. Motivated by fears that such special elections might allow for a governor and lieutenant governor of opposite parties, threatening the cohesiveness and efficacy of the executive branch, the legislature later changed the law to require that vacancies in the office of lieutenant governor be filled by gubernatorial appointment rather than special election.

The decision necessarily includes discussion of the legislature's intent in changing the law, something that the courts usually determine by examining committee reports along with debate and hearing transcripts. Hobbled by New York's weak legislative process, the court must rely on a gubernatorial address rather than legislative records to provide evidence of intent in this case. The dissent contests the majority's interpretation of legislative intent, stating - again without the benefit of legislative records - that the legislature did not mean for the offices of lieutenant governor and governor to fall under the rubric of the section of the public officer's law from which Governor Paterson derived appointment authority. Neither side can point to conclusive evidence.

As the majority writes in today's opinion, "the legislature is always free to revisit" the question of how vacancies in the office of Lieutenant Governor are filled. Just another reason to adopt a robust legislative process designed to explore and document the intent behind the laws that will affect New Yorkers for decades to come.

Victory for Merit Selection in Alaska

Jonathan Blitzer — 2009-09-17T21:47:01+00:00

Advocates, jurists, and court watchers across the country have been warning us that judicial independence is in peril, what with unprecedented spending on statewide elections and continued concerns about recusal. Under the circumstances, every victory for judicial independence merits celebration - whether that victory is a new reform or, as is the recent case in Alaska, an affirmation that a good system works well and should remain in place.

On Friday, a federal judge threw out a lawsuit mounted by Indiana attorney James Bopp Jr. that challenged how Alaska chooses its judges. The basis for Bopp's lawsuit was dubious at best. He claimed that the state's judicial selection system "gave too much power" to "elites and insiders" on the Alaska Judicial Council and that, as a result, it violated the Equal Protection clause of the 14^th Amendment and the principle of "one person, one vote."

Alaska has a merit-based system for the selection of judges. As such, it empowers the Alaska Judicial Council to screen applicants and come up with a list of possible nominees for judicial openings; the list is forwarded to the governor, who then appoints the nominee of his or her choice. Bopp took issue with the composition of the Council, which is comprised of both lawyers and non-lawyers, because in Bopp's estimation the system gives "too much say" to the state's lawyers. Bopp is at least correct that three of the seven members of the Council are appointed by the governing body of the Alaska Bar Association, and that non-lawyers don't have a say in choosing the Bar's leadership. But allotting some seats on the Council is only natural given the value of having lawyers' expertise on the Council. Lawyers work in the courts every day; they work closely with judges and know what makes an effective jurist, and lawyers serving on the Council often have insight into the character and reputations of other lawyers being considered for spots on the bench. Having lawyers help identify who should be considered for a judgeship is as natural as having engineers, say, weigh in on who should chair the Alaska Oil and Gas Conservation Commission.

Bopp sought an injunction to prevent Council members appointed by the Bar from participating in the selection of potential nominees. Though the nomination and appointment system has been in place since the Alaska constitution was adopted in 1956, Bopp chose to seek an injunction only on the eve of Alaska Supreme Court Justice Robert Eastaugh's imminent retirement. (The Council accepted applications for the seat through May 28.)

In its judicial selection system, Alaska keeps good company. It is one of 25 states that use some form of commission-based appointment of judges. Though the precise composition of these commissions varies from state to state, according to the American Bar Association, "most include lawyers selected by their peers, and non-lawyers selected by the Governor or other election officials." In some states, there are requirements to balance representatives of each political party.

What's clear, regardless of the particularities of how each state handles and organizes its nominating commission, is that merit-based selection works. It has earned wide praise from lawyers and jurists alike (including Sandra Day O'Connor, an outspoken advocate) as an effective, non-partisan mechanism for selecting judges. It also, crucially, may help cultivate much needed diversity on state benches.

This latest affirmation of merit-based selection in Alaska will no doubt be a boon to other judicial reform efforts across the country - like the one in Pennsylvania, where a bill pending in the state legislature aims to create a form of merit-based selection. In the meantime, Bopp says he'll appeal. (Undeterred by the recent order, he told the judge that if his side loses "the bar association could ‘flat out select all the judges,' amassing power like Iranian mullahs.") But, like courts in Indiana and Missouri, which have rejected lawsuits similar to the one in Alaska, the court of appeals should affirm the dismissal of this baseless lawsuit. As an Anchorage Daily News editorial declared yesterday, "This lawsuit met its just fate in federal court."

Update 9/17/2009: Judge John W. Sedwick releases order and opinion.

Voters Get It and the Times Confirms It: New York Has a Long Way to Go

ReformNY — 2009-08-20T13:52:00+00:00

In response to a Qunnipiac poll showing that nearly 80 percent of New Yorkers think that the state government is broken, Assembly Speaker Sheldon Silver expressed sympathy for voters' sentiments toward the Senate and dodged any blame for his own chamber.

It would be an audacious move for a man with a 28% approval rating on any day, but it's particularly interesting that Silver would choose to slam the Senate today, when the New York Times reports that several members of the state legislature - mostly in the Assembly - collect pensions on top of their salaries by retiring for a single day at the end of their terms before a new term, and a new salary, begins.

Loopholes in the law exempt lawmakers elected before 1995 and those who switch chambers from restrictions on collecting pensions while working, and elected officials are not required to get waivers required of other state employees to draw on pensions while earning more than $30,000 a year. A bill introduced last year to close the loophole languished in committee.

Even pension reforms that seem like easy political sells aren't doing so well. A bill by Assemblyman Bob Reilly and Senator Liz Krueger denying pensions to public officials convicted of crimes (an issue near and dear to many recent members of the legislature) can't get past committees in either chamber.

The Senate sideshow showed how spectacularly bad things can get, but it's important to remember that it was a symptom of a much more widespread disease. The good news, as demonstrated by the Quinnipiac poll, is that voters recognize that we have a problem - even if Silver doesn't.

Accounting for the Census Clause

Myrna Pérez — 2009-08-11T19:48:01+00:00

In the inaccurately titled opinion piece ("Our Unconstitutional Census") published on August 9 in the Wall Street Journal, Messrs. Baker and Stonecipher, a constitutional law professor and pollster respectively, falsely claim that the current practice of counting undocumented persons in the census for the purpose of apportionment is unconstitutional.

The "Census clause" or sometimes called the "Enumeration clause" is found in Article I, 1, § 2, cl. 3 of Constitution. After taking into account the removal and additions that have occurred with later amendments, that clause reads as follows: "Representatives . . . shall be apportioned among the several States . . . according to their respective Numbers . . . . The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct." Further, Section 2 of the Fourteenth Amendment states that "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."

The Constitution uses the word "numbers" or "persons" -- not "citizens," or "legal residents," or "those lawfully present" as the authors suggest. Moreover, the Constitution wholly and explicitly empowers Congress to sort out the details. The express delegation of the responsibility to Congress makes it odd that part of their opinion piece casts Congress fulfilling its constitutional obligations to make the policy determinations guiding the census as a bad thing.

In a move that is sure to irk "strict constructionists" the authors ignore the plain text of the Constitution and cite enabling legislation for support, arguing that the name of first census act used the word "inhabitant" and that the contemporaneous definition of that word were persons entitled to the privileges conferred by the state, which would exclude unlawful residents. The word "inhabitant," is not used in the Constitution's Census clause, but is instead used when describing qualifications of Representatives and Senators. In the Qualification clauses, the word "inhabitant" probably fairly means what the authors say it means. But, it is improper for the authors to import a word from other sections of the Constitution into a clause where the framers deliberate and purposely omitted that word and claim that the word is controlling.

Even if Congressional understanding of the Constitution trumps its plain text, the first census act actually suggests reaching a contrary conclusion because that act counted slaves and non-white free persons. It required the district marshals to swear or affirm an oath that they would undertake a "just and perfect enumeration and description of all persons resident within my district." Those facts mean that Congress at least had a more expansive view of "inhabitants" than the authors would allow, and as the Constitution indicates, Congress gets to make the call as to the details.

The authors invoke the Wesberry v. Sanders principle that there should be rough equivalents of voting citizens in state legislative districts. Justice Rehnquist, however, in an opinion in the mid-90s rejected the application of the Wesberry principle to Congress when conducting the census. He also noted that the Court had reached the same conclusion on two prior occasions because of the latitude given to Congress under the Constitution and because the districts at issue in Wesberry were intra-state, but federal apportionment required interstate review which could not be done with the same precision. Even the Supreme Court disagrees with the authors.

There are good policy reasons for including all residents in a state when conducting apportionment. A district's representation affects everyone in the district; moreover a district's representation is impacted by everyone in the district.

The authors may disagree that apportionments should be influenced by enumerations of undocumented persons, but it is false that the current practice of doing so is unconstitutional.

44 Years After Landmark Act, Voting Rights Still Needed

Erika Wood — 2009-08-06T14:00:00+00:00

Cross-posted on TheGrio

Today marks the 44th anniversary of the landmark Voting Rights Act, passed to reverse the Jim Crow laws, which effectively denied African Americans the right to vote for decades.

The Act has accomplished great things. It eliminated poll taxes, literacy tests and other ballot box barriers. Within a few years of its passage, voter registration rates among African Americans doubled, tripled and in some states quadrupled.

Fast forward to the 2008 presidential election and its surge of African-American voter participation. Although the protections of the Act remain vital, according to one recent report, African-American women voters turned out at higher rates in November than any other racial, ethnic or gender group.

But one Jim Crow relic continues to elude the strong arms of the Voting Rights Act. Nationwide, 5.3 million American citizens are denied the right to vote because of a criminal conviction in their past. Four million are people who are out of prison, living in the community. Criminal disenfranchisement laws differ state-to-state. All told, 35 states continue to disenfranchise people released from prison.

Let's be clear, these laws were put in place right alongside poll taxes and literacy tests. In the late 1800s, as part of larger backlash against the adoption of the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution, criminal disenfranchisement laws spread throughout the country. At the same time, states expanded their criminal codes to punish offenses that they believed freed slaves were most likely to commit, including vagrancy, petty larceny and bigamy. This targeted criminalization and criminal disenfranchisement combined to produce the legal loss of voting rights, which effectively suppressed the power of African Americans for decades.

The laws' intended effects continue to this day. Nationwide, 13 percent of African-American men have lost the right to vote because of a criminal conviction. In eight states, more than 15 percent of African Americans cannot vote, and three of those states disenfranchise more than 20 percent of the African-American voting-age population. Given current rates of incarceration, 3 in 10 of the next generation of African-American men will lose the right to vote at some point in their lifetime.

Despite the clear evidence of discriminatory intent and impact, courts continue to uphold these laws, finding that Congress did not intend to prohibit criminal disenfranchisement when it passed the Voting Rights Act. Last week, the First Circuit Court of Appeals was the latest to issue such a ruling.

Luckily, we have three branches of government, and Congress now has the opportunity to declare loud and clear that it is time to consign these laws to the Jim Crow past. Senator Russ Feingold (D-WI) and Representative John Conyers (D-MI) have introduced the Democracy Restoration Act, a bill that seeks to restore voting rights in federal elections to all Americans who are out of prison, living in the community. The Democracy Restoration Act is the Voting Rights Act of the 21st Century. Congress should move quickly to end voting discrimination once and for all.

Reconciling Differences on Mayoral Control

ReformNY — 2009-08-04T14:27:00+00:00

This Thursday, The Senate will reconvene to vote on its version of the New York City school governance (‘mayoral control') bill. By all accounts, the Senate bill, which was the subject of intensive negotiations within the Democratic conference and between the Senate and Mayor Bloomberg, looks significantly different from the version passed by the Assembly in June.

The Senate version is slated to pass with a chapter amendment that would require the establishment of a parent training center, an arts advisory committee, public meetings on school safety, and quality of curriculum and instruction as a component of the principal review process, none of which are included in the Assembly version.

In most state legislatures, the two chambers would convene an open meeting of a conference committee comprised of members from both chambers to reconcile the differences between the two bills. In New York, differences are usually worked out in closed-door meetings that often cut legislators out of the process. If rank-and-file members want to open the discussion, they're usually out of luck - the current rules of the New York legislature vest the Assembly Speaker and Senate Majority Leader with sole authority to convene a conference committee.

Assembly Speaker Sheldon Silver has expressed reluctance to use this option, instead stating that he will bring the issue up with his conference when the Assembly reconvenes in September. Last week, Silver said the Senate can probably rely on Mayor Bloomberg's promises to implement the reforms contained in the amendment regardless of whether they become law, stating that the changes in the chapter amendment "can be done by the City of New York Board of Education without any legislation, anyway."

If the Mayor's verbal commitment is not sufficient for some in the Senate - and I suspect it won't be, given how contentious the issue has been - there is little that rank-and-file members can do. But there's a better way. Both chambers should amend their joint rules to allow bill sponsors or the chairs of the committees of a bill's original jurisdiction to call a conference committee. Open and robust debate with the aim of crafting the best possible legislation should not end until a bill is signed into law.

Recusal Reform in Michigan

Jonathan Blitzer — 2009-07-31T21:34:00+00:00

With Justice Elizabeth Weaver leading the charge, the Michigan Supreme Court is poised to codify new standards for how and when judges must recuse themselves. As it stands now in Michigan, when a party to a case files a motion requesting that a judge disqualify himself due to aconflict of interest, that very judge can deny the motion (refusing to recuse himself) without having to explain why. Current state practice thus takes an already subjective process, and makes it worse by stripping it of transparency.

But that may soon change. The Court is currently considering 3 proposals- open to public comment through August 1 - that would define what constitutesa conflict of interest. Naturally, the proposals vary, and one, so-called Proposal C, is better than the rest. In a letter filed today with the Michigan Supreme Court, the Brennan Centerand Justice at Stake explained why. Unlike the other proposals, Proposal C would, among other things:

Amend the current court rule for disqualifications, which would be easier and clearer than creating a new rule with uncertain reach;

Make the list of grounds for disqualification non-exclusive, meaning that rules guiding disqualification remain flexible and responsive to instances not specifically listed in the rule itself;

Insert important language calling for disqualification when a judge's "impartiality might objectively and reasonably be questioned";

Require a judge to publish reasons for his or her ruling on a party's motion for disqualification; and

Allow for a court-wide review of a judge's denial of motion for his or her disqualification.

While Proposal C is, without question, the most desirable of all the options, there are additional reforms that could strengthen the proposal - like paying special attention to cases involving campaign contributors, enhancing disclosure by litigants and judges, empowering recusal advisory bodies, facilitating judicial education, and increasing andconsolidating uniform data collection on disqualification motions and their dispositions. The Brennan Center discussed these at greater length in the letter.

For more information on setting thorough-going recusal standards, click here - or here,for more information about the viability of these standards in the wake of Caperton.

That the issue of disqualification is even being considered at all is a start. A call to take up the matter, made by Justice Weaver in 2003, went largely ignored under the successive chief justiceships of Maura Corrigan and Cliff Taylor. The Court's apparent change of heart is inpart the happy result of the new composition of the Court following the 2008 election of Diane Hathaway.

Michigan currently has the dubious distinction of being one of only three states whose code lacks the American Bar Association's general disqualification clause. That clause, available here,states that "a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." The ABA standard has been incorporated into federal law and adopted by 47 states intheir codes. Michigan Supreme Court Justices have pushed for its adoption from the bench before, though never to any avail.

It is, of course, entirely possible that the Michigan Supreme Court will decline to do anything at all. The fact that the present proposals are onthe table does not mean that the Court will ultimately have to adopt any one policy. But after the U.S. Supreme Court's ruling in Caperton v. Massey inaction is hardly an option. Writing for the majority, Justice Anthony Kennedy reiterated in Caperton anargument he had made some seven years earlier in Republican Party of Minnesota v. White - namely, that states could adopt recusal standards more rigorous than due process requires. And in the aftermath of Caperton, states have heeded the call. According to the National Center for State Courts, 17 states have taken on recusal reform in some venue or another - whether through legislation, state Supreme Court appointed commissions, or individual petitions submitted by advocates. We detail these initiatives here.

As the public learns more about the issue, acting to shore-up recusal standards, particularly given Caperton, is becoming harder to resist as a matter of policy. In February 2009, a national poll conducted by Harris Interactive found that more than 80% of the public believes judges should avoid cases involving major campaign contributors. 81% believe a disinterested judge should have the last word on recusal motions, not the judge whose objectivity is inquestion.

States looked to the U.S. Supreme Court for direction in Caperton. Now the nation's eyes are trained on individual states. As we await the results of the three proposals in Michigan, justice hangs in the balance.

An Outpouring of Support for Voter Registration Modernization

Laura Seago — 2009-07-31T17:38:01+00:00

Over the past few weeks, prominent editorial boards, public officials, and others have expressed support for modernizing our voter registration system, calling it "the way to go," "a priority" for the national agenda, and "a far better model" than our current system.

Acquitted “Terrorists” and the Court of Public Opinion

Liza Goitein — 2009-07-30T20:30:00+00:00

Cross-posted on Balkinization

What will happen to Guantánamo detainees who are tried and acquitted?

This question has now arisen in two consecutive Senate committee hearings on the fate of the detainees. Three weeks ago, when Senator Martinez (R-Fla) posed this question to Defense Department General Counsel Jeh Johnson, Johnson responded that the U.S. could invoke the 2001 Authorization for Use of Military Force to continue to hold detainees after they were acquitted. I wrote about this Alice-in-Wonderland concept of justice here.

A somewhat different solution was posited in Tuesday’s hearing of the Judiciary Committee’s Terrorism and Homeland Security Subcommittee. When the minority witness, Michael Edney, raised the specter of acquitted detainees being released on U.S. soil, other witnesses (who were not from the administration) responded that the Attorney General could invoke immigration law to detain these individuals, indefinitely if need be, pending deportation. The Supreme Court hasn’t signed off on that approach, but the witnesses’ testimony gave Subcommittee Chairman Senator Cardin (D-MD) enough assurance to declare that “terrorists are not going to be released into the United States.” His statement echoed the sentiments of most of his fellow members of Congress, who evidently believe this is the view of their constituents.

Unfortunately, no one addressed this question: what makes an acquitted detainee a “terrorist”?

We don’t generally refer to people who have been acquitted of criminal charges as “criminals.” To be sure, people who commit crimes sometimes escape conviction. But our default presumption is that an acquitted person is exactly what the jurors pronounced him or her to be: “not guilty.” That presumption should be even stronger here. Most Americans are exceedingly unlikely to give the benefit of the doubt to people accused of ties to Al Qaeda. If twelve people unanimously conclude that there is insufficient evidence to convict an accused Al Qaeda supporter of even the most tangential and vaguely worded terrorism offense (such as “material support” for terrorism), what basis is there to consider the person a terrorist?

Read the rest at Balkinization.

Hearing on Congressional Fair Elections Now Act in House Committee on Administration Today

Laura MacCleery — 2009-07-30T15:05:00+00:00

There will be a hearing today in the House of Representatives' Committee on House Administration beginning at 11 a.m. The hearing will be live Web cast by streaming video.

The House Administration Committee will hear testimony from four members of Congress, including Democratic Caucus Chair John Larson (D-Conn.), two election experts, and the Speaker of Maine House of Representatives, in support of sweeping campaign finance reform legislation, the Fair Elections Now Act (HR 1826).

Introduced by Rep. Larson and Rep. Walter Jones (R-N.C.), the Fair Elections Now Act (FENA) would allow congressional candidates to run for office with a mixture of small donations and public financing. In addition to Larson and Jones, the committee also will hear testimony from Rep. Chellie Pingree (D-Maine), Maine Speaker Hannah Pingree (D), Connecticut elections administrator Jeff Garfield, and Arn Pearson, vice president of programs at Common Cause.

In a press release issued this morning by the coalition of reform groups supporting passage of FENA, Susan Liss, Director of the Brennan Center's Democracy Program noted that "The Supreme Court is fully behind voluntary public financing systems. This is the best way to advance a robust system for more public participation in elections."

Also today, an advertisement from prominent business leaders ran in print in Roll Call and on-line in Politico calling on politicians to enact a system of fair elections. The ad, which includes signatories from Crate & Barrel, Sunnyvale Farms and other large companies, and calls upon Congress to "terminate" the "mutually wasteful, degrading process" of fundraising, saying that, as business leaders, they are:

on the receiving end of Senators' and Representatives' endless fund-raising calls. And trust us: we hate getting those calls every bit as much as they hate making them. Each hour in 2008, campaigners for federal office got on the horn and raised $600,000. That's $14 million each day, $100 million each week, $5 billion for the year! Elected officials spend so much time dialing for dollars it's as if they're moonlighting a second job. With the economy, health care, energy and so many other issues at stake, who has time for that?

The ad has already garnered some press attention and notice. Law & Order star's Sam Waterston also paid a visit to several key Capitol Hill leaders yesterday to drum up support for the measure. (Waterston's very moving speech to our own campaign finance conference in May is on-line here.)

Members of Congress Join National Effort to Restore Voting Rights to Millions of Americans

Erika Wood — 2009-07-30T13:57:00+00:00

Cross-posted at The Huffington Post

It turns out democracy breeds strange bedfellows. On Friday, Senator Russ Feingold (D-WI) and Representative John Conyers (D-MI) introduced the Democracy Restoration Act of 2009, a bill that seeks to restore voting rights in federal elections to nearly 4 million American citizens with past criminal convictions who are out of prison and living in the community. Who would have thought that police chiefs and former prison inmates would ever unite behind the same cause? But that's exactly what is happening. A large and growing coalition of diverse interests including law enforcement officers, religious leaders, civil rights organizations and millions of formerly incarcerated people across the country has come together to restore the right to vote. Now members of Congress have joined the crowd.

Nationwide, 5.3. million Americans are disenfranchised because of a criminal conviction in their past. Four million are people who are out of prison and living in the community -- working, paying taxes and raising families. All told, 35 states continue to disenfranchise people who are not in prison, often for decades and sometimes for life.

Make no mistake, criminal disenfranchisement laws are firmly rooted in Jim Crow. They were put in place right alongside poll taxes and literacy tests and were intended to keep African Americans from the polls. Many states passed criminal disenfranchisement laws at the end of Reconstruction and targeted crimes most likely to be committed by freed slaves like larceny, bigamy and vagrancy. Today the laws continue to have their intended effect: nationwide 13% of African-American men are disenfranchised. If current incarceration rates continue, 1 in 3 African-American men will lose the right to vote at some point in their lives.

Criminal disenfranchisement laws form a patchwork across the country. Consider for example, people in Kentucky lose the right to vote for life, while just across the border in Ohio and Indiana people can vote the day they step out of prison. Someone in Utah can vote as long as he is not in prison, while in Colorado he could vote while on probation but not on parole; in New Mexico he would have to complete both probation and parole, and in Arizona he could be disenfranchised for life. It is no wonder both election officials and the public are confused, resulting in widespread and persistent misinformation and the de facto disenfranchisement of hundreds of thousands of eligible voters across the country.

The shameful roots of these laws and the conflicting standards among the states are just two factors that highlight the need for federal reform. The Democracy Restoration Act provides just that: It would restore voting rights in federal elections to every American citizen who is out of prison, living in the community.

The foundation for the bill has been steadily building in the states. In the last decade, 20 states have restored voting rights or eased the restoration process. This groundswell has created a national chorus calling for change which now includes law enforcement and criminal justice professionals and a broad spectrum of religious leaders. These groups have come together based on a shared understanding that restoring voting rights to people in the community not only strengthens our democracy, it helps prevent recidivism, protects public safety and is true to the fundamental principles of redemption and forgiveness.

The importance of having a voice in the community is most aptly described by those who have found theirs. The recent Brennan Center publication My First Vote is a compilation of stories from Americans who voted for the first time in November 2008 after having lost, and then regained, their voting rights after a conviction. According to a mother in California who is featured in the collection, "voting isn't entirely about the candidate who wins; it's about the inspiration and hope people feel when they have a voice they can use to bring real change."

The Democracy Restoration Act has just been introduced, and it is still full of inspiration and hope. Congress should move quickly to make it the law of the land. Strange bedfellows agree.

Keeping New York from Becoming the Next New Jersey

ReformNY — 2009-07-28T14:05:00+00:00

In light of last week's corruption sweep in New Jersey, it's worth taking a look at the state of ethics in New York. While it's tough to top the allegations of kidney trafficking and cash-stuffed cereal boxes involved in the New Jersey case, we certainly have our share of corruption. As we wrote in our 2008 report, four members of the Assembly alone faced corruption charges last year. One the Senate side, former Majority Leader Joe Bruno was indicted in January for accepting over $3 million from entities seeking state contracts, and coup leader Pedro Espada's attempts to funnel state money to nonprofits that he has a history of illegally using as an extension of his political campaign are now well known.

The state's ethics infrastructure was overhauled by the less-than-successful Public Employees Ethics Reform Act of 2007 (PEERA). Perhaps most strikingly, the law allowed the legislature to retain oversight authority over itself. The Legislative Ethics Commission, the body that oversees the Senate and the Assembly, is chaired by members of the very bodies that the Commission is intended to regulate. Of the nine members of the Commission, four are legislators and the other five are appointed by legislative leaders (this means that the ethically-challenged Espada now has appointment authority).

Just days before the Senate coup, Governor Paterson and legislative leaders from both chambers met to discuss reforms to the state's ethics oversight infrastructure, which PEERA failed to improve. The Governor, Senate Democrats, and Assembly Speaker Sheldon Silver each presented different proposals and were unable to come to an agreement before chaos erupted in the capitol on June 8^th.

The proposals range from rolling back very modest steps toward independence made by PEERA to separating legislators from the Legislative Ethics Commission altogether. Silver's proposal would create two bodies with oversight over the legislature. The first, a Joint Legislative Commission on Ethics Standards, would look very much like the current Legislative Ethics Commission, consisting of four legislators and four non-legislators appointed by legislative leadership. The second, a Legislative Office of Ethics Investigations, would be governed by a board appointed by legislative leaders, none of whom could have been affiliated with the legislature in the two years preceding their appointment. The Senate proposal, sponsored by Senator Daniel Squadron, would merge the Legislative Ethics Commission with the Commission on Public Integrity to create a new body with oversight over both the legislative and executive branches; four of the nine members of the new commission would be appointed by legislative leaders, but no commissioner could be a current or former legislator. The Governor's proposal is structurally similar to the Senate proposal, but commissioners would be appointed by an independent advisory board (independent appointment of commissioners is something that Paterson has described as a ‘deal breaker').

While negotiations concerning the reforms were derailed by the coup, ethics reform will likely receive consideration again before the end of the legislative term. It's worth paying attention to the structures that lawmakers put in place to police themselves and their peers before the cash-stuffed cereal boxes turn up in Albany, too.

The Struggles of Obamas Detention Policy Task Force

Liza Goitein — 2009-07-23T18:15:00+00:00

Cross-posted at Balkinization

President Obama's detention policy task force has said it needs more time to complete its work. Small wonder: when you start with the premise that certain detainees are "too dangerous to release" and then try to come up with legal procedures that will support that pre-determined outcome, you run into some sticky legal, practical, and political problems. (I've written about the administration's "sentence first, verdict afterwards" approach here.)

The good news is that the Obama administration appears to be genuinely wrestling with the problems that follow from reverse-engineering systems of justice to guarantee continued detention. The prior administration didn't bother with legal window dressing, let alone worry about the constitutional shortcomings of such an approach. The bad news is that the Obama administration still thinks it can overcome those problems if it gives detainees a carefully circumscribed menu of rights that falls somewhere between no rights at all (the Bush approach) and the rights they would get in any existing American system of justice.

The preliminary report of the task force, which focuses on the use of military commissions, doesn't reveal any of this internal struggle. This is a public document, intended for public consumption. It doesn't contain any real analysis or recommendations; those presumably appear in other, non-public documents. Instead, it sets forth the decisions already made by the President (and already made public) and justifies them. It's an advocacy piece, pure and simple.

Read the rest here.

This Time, Let the Court Decide

ReformNY — 2009-07-23T14:33:01+00:00

The end of the Senate Coup two weeks ago doesn't mean that New Yorkers have to go without their daily dose of interesting legal wrangling. Last night, a state Supreme Court Justice granted a preliminary injunction preventing Ravich from acting as Lieutenant Governor.

But that's not the interesting part. Apparently, Governor Paterson's argument against the motion for an injunction brought by Senate republicans is that it would upset the balance of powers for the judicial branch to rule in this case.

While we strongly opposed judicial intervention in the coup, we have to disagree with Paterson on this one. As the justice puts it in his ruling:

"A controversy is not justiciable if its resolution would require the court to ‘intrude upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches' [...] a court may determine whether the state constitution or the legislature has empowered the governor to act."

In this case, the court is being asked to interpret the provisions in the constitution and the Public Officers Law that Paterson argues grant him the authority to appoint Ravich, not to intervene in the legislature's internal politics. Paterson's argument is particularly baffling given that a central part of his defense of the appointment is a 1943 court case in which the judicial branch was asked to rule on the constitutional authority of the executive branch to fill the office of lieutenant governor. The case provides an interesting precedent and a victory for Paterson will likely require the courts to rule that it still applies today.

While the law has changed slightly since that case, the definition of justiciability has not. And although the coup is over and the impact of a Lieutenant Governor may now be inconsequential, we could stand to have some clarity on the Governor's ability to appoint the Senate's presiding officer - after all, a return to deadlock, as Liz Benjamin so aptly put it yesterday, is "just a hissy fit away."

Voting Rights Restoration Finds New Allies in Wisconsin

Garima Malhotra — 2009-07-22T20:41:00+00:00

CLARIFICATION: While the Rhode Island Restoration of Voting Rights Act (H.B. 7938) did become law while Governor Carcieri was in office,the law went into effect on July 7, 2006 without the Governor’s signature.

Last week, Wisconsin State Representative Tamara Grigsby and Senator Lena Taylor introduced the Wisconsin Democracy Restoration Act, a bill that seeks to restore voting rights to over 41,000 Wisconsin citizens who are out of prison, living in the community. The bill already has attracted attention, and support from one of Wisconsin's well-known conservative columnists, James Wigderson.

In his column on July 9, Wigderson, a columnist for the Waukesha Freeman, discussed the importance of restoring the right to vote to people on probation and parole. "We should encourage those that have been released to take a responsible role in society, and granting them the vote is an important part of that," wrote Wigderson. Wigderson, whose articles have been cited as recommended reading on numerous conservative sites, including Musings of a Thoughtful Conservative and Foxpoltics.net, has the ear of Wisconsin's most conservative county: Waukesha County. Waukesha County is a Republican stronghold and Wigderson's support for the Wisconsin bill brings an important voice into the conversation.

Support for voting rights restoration from conservative allies is not new. There is a growing recognition that felony disenfranchisement laws are contrary to our democratic ideals and stymie successful reentry. Several recent reforms that have restored voting rights or eased the restoration process were approved by Republican governors, including George W. Bush in Texas, Bobby Jindal in Louisiana, Donald Carcieri in Rhode Island and Charlie Crist in Florida. The late Jack Kemp, a Republican politician and self described "bleeding-heart conservative," was an outspoken proponent of restoring voting rights.

Members of the law enforcement and faith communities are also increasingly speaking out against felony disenfranchisement based on their belief in our democracy, the recognition that denying the right to vote to those out of prison runs counter to the purpose of our criminal justice system and the fundamental principles of redemption and forgiveness. Tough-on-crime advocates like Miami Police Chief John F. Timoney and former Seattle Police Chief R. Gil Kerlikowske (now President Obama's drug czar) have advocated for restoring voting rights to people with felony convictions.

The coalition of groups and individuals working to restore voting rights in Wisconsin continues to broaden and diversify. We hope that James Wigderson's public stance on this issue will bear fruit, not only helping to pass the Wisconsin Democracy Restoration Act, but in continuing to build support among conservatives around the country who believe in the right to vote.