Category Archives: Laws/Legislation

Two More Ways Not to Think About Privacy and the Fourth Amendment

Source: David Alan Sklansky, Stanford Public Law Working Paper, August 1, 2014

From the abstract:
This brief essay challenges two increasingly common ideas about privacy and the Fourth Amendment. The first is that any protections needed against government infringements of privacy in the Information Age are best developed outside of the courts and outside of constitutional law. The second is that the various puzzles encountered when thinking about privacy and the Fourth Amendment can be solved or circumvented through some kind of invocation of the past: either a focus on the text of the Fourth Amendment, or the study of its history, or an effort to preserve the amount privacy that used to exist, either when the Fourth Amendment was adopted or at some later point.

Embracing Loving: Trait-Specific Marriage Laws and Heightened Scrutiny

Source: Christopher R. Leslie, Cornell Law Review, Vol. 99 No. 5, 2014

From the abstract:
In the wake of the Supreme Court’s recent Windsor opinion, the focus of marriage equality litigation has returned to challenging state gender-specific marriage laws that make a couple’s right to marry a function of their genders. The outcomes of these future legal challenges will be affected by the level of scrutiny that courts apply. To date, all courts that have applied heightened scrutiny have held same-sex marriage prohibitions to be unconstitutional, while courts applying rational basis review have often upheld such laws.

Laws that classify or discriminate based on gender are generally subject to heightened scrutiny. Yet the vast majority of courts have held that gender-specific marriage laws neither classify nor discriminate based on gender because the laws apply to both men and women, and thus are not subject to heightened scrutiny. In Loving v. Virginia, however, the Supreme Court explicitly rejected the parallel argument that if a race-specific marriage law applies equally to all affected races then heightened scrutiny is unnecessary.

Courts wishing to avoid heightened scrutiny have attempted to distinguish Loving. For example, courts have concluded that Loving is irrelevant to the level of scrutiny applied in equal protection challenges to gender-specific marriage laws because, while miscegenation laws were implemented to further the theory of white supremacy, gender-specific marriage laws do not have a similar improper discriminatory purpose. In particular, they assert that gender-specific marriage laws are not motivated by a desire to put one gender in a superior position to another gender.

This Article explains why these attempts to distinguish Loving are flawed. First, courts misapply the basic equal protection framework when they demand a discriminatory motivation for gender-specific marriage laws as part of determining the appropriate level of scrutiny. Furthermore, even if intent were relevant to that determination, supporters of same-sex marriage bans seek to implement and reinforce a gendered model of marriage in which a woman is presumed to be subordinate to a man. To social conservatives, who are the driving force behind gender-specific marriage laws, same-sex marriage is dangerous precisely because it threatens the gendered model of marriage in which a husband dominates his wife. The Article concludes by noting that following the logic of Loving, same-sex marriage bans necessarily classify based on gender and, thus, gender-specific marriage laws should receive heightened scrutiny.

Voters to Decide on 137 Statewide Ballot Measures

Source: Wendy Underhill, NCSL Blog, September 16, 2014

Voters in 40 states and the District of Columbia will face 137 statewide ballot measures—those policy questions on which voters get to be the final deciders…. To see details on all 137 measures, visit NCSL’s Ballot Measures Database. That’s a good place to bookmark for Nov. 4, too. We’ll be adding results as they come rolling in…

HOT TOPIC: Elections

Source: Capitol Ideas, Vol. 57 No. 5, September/October 2014

Articles include:
States Make Changes to Get Out the Vote
By Mary Branham
Ten states this year passed laws that would expand voter access, according to the Brennan Center for Justice. The most common improvements have been in online voter registration and other measures to modernize the voter registration system, as well as increasing early voting.

Voting System Technology a ‘Ticking Time Bomb’
By Kamanzi Kalisa
Voters want technology that matches what they are doing in their everyday lives. Current voting technology has become obsolete and, according to former Kentucky Secretary of State Trey Grayson, it’s “a ticking time bomb.”

Faceoff on Voter IDs
By Jennifer Horne
Since 2010, 13 states have passed more restrictive voter ID laws. With a 2013 Supreme Court ruling invalidating Section 5 of the 1965 Voting Rights Acts, challenges to these types of voter ID laws have moved to a new section of the act. Experts believe states should prepare for more lawsuits.

Going the Extra Mile for Military Voters
By Kim Wyman
Washington state currently has almost 4 million active registered voters. Nearly 65,000 of them are military or overseas voters. As secretary of state, it is my highest priority to make sure all of our registered voters have a chance to take part in our elections, no matter if they live in my state or serve in the most remote corners of the world. I have made advocacy of our military families a signature issue.

State Campaign Finance Laws: Show Me the Money
By Jennifer Ginn
Court challenges to national campaign finance laws, in the past, made few changes as to how and what politicians had to disclose. Supreme Court cases decided in the past seven years, however, are having a dramatic effect on campaign finance law. Many states are taking action on their own to ensure their voters know who is funding political races in their state.

Restoring the Right to Vote for Felons
By Liam Julian
The idea of disenfranchising felons has a long history in the United States, going all the way back to the colonies in the 1600s. Although a few states passed legislation in the past two years that make it harder for convicted felons to regain the right to vote, people in general and legislators specifically appear to be leaning toward making felony disenfranchisement laws more permissive.

Elections 101
By John G. Matsusaka
Ballot propositions are among the most visible features of American democracy. Since 2000, voters have decided 1,692 state-level ballot propositions covering a wide array of issues, including same-sex marriage, education, primary elections and marijuana legalization.

U.S. Elections: High Public Confidence, Low Voter Turnout
By David Carroll
Over the last 25 years, the Carter Center has observed nearly 100 elections in 38 countries around the world. These experiences have generated a wealth of information about electoral practices across the globe. In addition, they provide an interesting basis to compare how elections are conducted in the U.S.

Justice Should be Accessible by All
By Cheri Beasley
North Carolina is one of 22 states that elect trial judges by judicial district and appellate judges and justices in statewide elections. Judicial elections in the state were partisan until 2002; now, all judicial elections are nonpartisan by popular vote. North Carolina is at a crossroads. In nonpartisan judicial elections, advancement of a partisan or ideological agenda has no place in the fair application of the rule of law. Special interest money spent to determine the outcome of cases before the court is abominable and the people of North Carolina deserve better.

Global Measures of Electoral Credibility: Voter Turnout, Finance
By Ayesha Chugh and Hani Zainulbhai
Global measures of electoral credibility include voter participation and political finance. While these variables are useful, electoral credibility is ultimately a nuanced concept that requires consideration of the full context of an election.

10 Questions–Oregon Works to Make Every Voice Heard
By Mary Branham
Kate Brown believes “your vote is your voice,” and she’s taken steps as secretary of state to ensure every voice in Oregon is heard. The state has a relatively high voter turnout, but Brown thinks it should be higher.

By the Book–State Elections Performance
Nearly 60 percent of eligible voters cast ballots in the 2012 presidential elections, below the high mark in 2008 but still above most presidential elections. Five of the 10 states with the highest turnout have election day registration.

Ballot Titles and Voter Decision Making on Ballot Questions

Source: Jeff Hastings and Damon Cann, State and Local Government Review, Vol. 46 no. 2, June 2014
(subscription required)

From the abstract:
From gay marriage to taxation to environmental issues, many of our nation’s most important policy issues are decided by voters through ballot questions. Conventional wisdom holds that information provided on the ballot about the ballot questions heavily influences voters’ choices in those elections, but there is little empirical evidence of this. We apply theories of framing to voters’ choices on ballot questions and design an experiment to test the hypothesis that ballot title wording influences voters’ decisions. Even on a matter that is hotly contested and where the policy is relatively noncomplex and relatively well understood by voters, we find strong framing effects for changes in ballot title wording, though the effects are driven primarily by influencing whether individuals who previously supported the measure abstained from participation.

The US Keeps 34,000 Immigrants in Detention Each Day Simply to Meet a Quota

Source: Robert M. Morgenthau, The Nation, Vol. 299 nos. 9 & 10, September 1-8, 2014

On any given day, Immigration and Customs Enforcement keeps at least 34,000 immigrants locked up while they wait for their cases to be heard in immigration court. Many of these detainees are incarcerated not because they are dangerous or likely to skip their court dates, but because ICE must meet an arbitrary quota set by Congress. This quota, which is often referred to as the “detention-bed mandate,” is a disgrace and should be eliminated. The quota is written into the federal law that appropriates funding for ICE. Congress requires the agency to “maintain a level of not less than 34,000 detention beds” at any given time. The quota was first enacted in 2007, and it appears yet again in the 2015 appropriations bill currently pending in the House of Representatives….