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A Way Out of the Senate Logjam NOW

By ReformNY – 07/01/09

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

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

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

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

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

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

Tags: NY Reform

Caperton Sparks Debate About Money in Judicial Elections

By Brennan Center for Justice – 07/01/09

Originally posted on Rick Hasen's Election Law Blog:

 

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

 

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

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

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

Tags: Democracy, Campaign Finance Reform

Linda Greenhouse on Caperton

By James Sample – 07/01/09

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tags: Democracy, Campaign Finance Reform

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

By Justin Levitt – 07/01/09

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

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

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

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

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

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

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

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

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

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

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

Tags: Voting Rights & Elections, Voter Lists and Databases, Voter Registration

Timing is Everything

By Eric Lane – 06/30/09

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

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

Tags: NY Reform

Voting Rights Act: The Legacy of the 15th Amendment

By Myrna Pérez – 06/29/09

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

--Chief Justice Roberts, NAMUDNO v. Holder

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

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

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

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

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

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

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

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

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

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

 

Tags: Democracy, Voting Rights & Elections

Some Thoughts on the Legal Claims Being Thrown around the Capitol

By ReformNY – 06/26/09

Salaries:

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

Extraordinary Sessions:

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

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

The Politics:

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

Tags: NY Reform

What About the Assembly?

By ReformNY – 06/24/09

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

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

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

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

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

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

Tags: