How Washington Gridlock Hurts Americans Seeking Justice

The Leadership Conference on Civil and Human Rights organized a call yesterday with Sen. Chris Coons of Delaware and attorneys from Ohio, South Carolina and Arizona to discuss how judicial nominations gridlock in Washington hurts Americans seeking justice around the country.

On Wednesday, Senate Majority Leader Harry Reid reached a deal with Republicans to allow votes on 14 of 22 stalled judicial nominees. The first two of those were confirmed yesterday with overwhelming bipartisan votes.

The deal, while it represents more progress than Senate Republicans were previously willing to allow, still leaves eight nominees without even a vote from the Senate until May at least. Three of these nominees are from Ohio, Arizona and South Carolina.

This procedural gridlock is often portrayed as an inside-the-beltway issue. However, it has a real impact on American seeking justice from our federal courts.

Greg Kuykendall, a Tucson attorney who joined the call, told of a client who had to wait 14 months in jail before a District Court judge with an unmanageable caseload was finally able to review his claim that he was being detained in violation of his constitutional rights. “It effectively made the prisoner spend an additional 14 months in unconstitutional confinement, as a result of the judicial emergency,” Kuykendall said.

Cleveland attorney Michael Meuti told of a Ohio business that had to wait 14 months for a federal judge to review charges that had been brought against it. In the meantime, the business had to endure the uncertainty and cost of having a lawsuit hanging over it.

“Understaffed courts struggle to provide efficient and effective justice,” Meuti said. “When judicial vacancies increase, so do the workloads of each sitting judge. In turn, both individuals and businesses must wait longer for their cases to be resolved and must endure the uncertainties and costs of litigation for a greater period of time. President Obama’s nominees have waited four times longer than his predecessor’s. It is time for the Senate to abandon its obstructionist agenda, which can serve only to make justice harder to obtain for everyday Americans and American companies.”

Armand Derfner, a Charleston, South Carolina attorney, added, “"These nominees are being obstructed for no good reason. They’re suitable, qualified, and many have bipartisan support. The Senate should stop delaying votes to fill these vacancies.”

Full audio of the call is available here.


UPDATE: PA Passes ID Under Objections of 45 Groups and 13,000 Pennsylvanians

UPDATE: Last weekHB 934 passed the Pennsylvania Senate. It got through concurrence yesterday by a House vote of 104-88. Governor Corbett signed it as soon as it got to his desk. Now photo ID is law in Pennsylvania.

On Wednesday, in a 26-23 vote on HB 934, the Pennsylvania Senate passed photo ID. Having passed the House last June, it now goes to concurrence (final negotiations) and will soon reach Governor Corbett’s desk, where it’s expected to be signed into law. It’s important to note that the lead sponsor, Representative Daryl Metcalfe, is an ALEC member.

Protect Our Vote has taken a strong stand against photo ID in their state. Made up of 45 groups, the voting rights coalition recently held a rally at the state Capitol Rotunda, at which they unveiled a petition containing the signatures of 13,000 Pennsylvanians. Have you ever wondered what 13,000 signatures looks like?

It took 1,000 feet to display the strong opposition to photo ID. And voting rights supporters won’t stop there. There is already talk of lawsuits to challenge the (expected) new law.

For more information, check out The Right to Vote under Attack: The Campaign to Keep Millions of Americans from the Ballot Box, a Right Wing Watch: In Focus report by PFAW Foundation.

PFAW Foundation

GOP Boycotts Judiciary Committee

This morning, a mere day after an agreement was negotiated to vote on 14 long-delayed judicial nominations over the next several weeks, Americans were reminded that there are still many ways that Republicans can continue to obstruct nominations.

The Senate Judiciary Committee was scheduled to vote on two nominations this morning. No one actually expected the vote to be held, because Republicans now routinely gum up the works by needlessly demanding at least one week's delay when a nominee is first up for a committee vote. The routine use of this privilege – for all but five of President Obama's judicial nominees – is unprecedented but now typical. So this morning, the committee was going to meet primarily to formally hold the vote up by a week.

However, as Chairman Pat Leahy announced on the Senate floor this afternoon, Republicans boycotted the meeting. Without a quorum, the committee could not act. So even the decision to needlessly delay the committee vote has itself been delayed.

Leahy also revealed further sabotage. He referred to the "blue slip" system, whereby the committee will not even process a nomination unless the nominee's home state senators consent via a blue slip of paper.

And there are seven nominations on which the Senate Judiciary Committee cannot proceed because Republican senators haven't returned blue slips indicating their support. We had somebody else who was about to have a hearing: Two Republican senators had returned blue slips, they withdrew them, and we had to take that name off.

So even nominees approved by their Republican home state senators are at risk.

The GOP has two ways to avoid being exposed – again – as irresponsibly keeping our courtrooms empty. One is to allow timely votes on all nominees as they are approved by the Judiciary Committee. Another is to sabotage the committee so it can no longer do its job, preventing nominations from even reaching the floor to be needlessly blocked.

Are Republicans choosing the second course?


Think you can help people register to vote? Tell that to Florida and South Carolina.

Last year Florida passed HB 1355, or what’s commonly referred to by voting rights advocates as the “Voter Suppression Act” for its disenfranchising impacts, including its reduction of early voting hours and its harsh new restrictions on community groups seeking to help register voters – restrictions that caused the Florida League of Women Voters to drop its registration efforts. DOJ concerns have been filed as part of ongoing litigation. (Click here for more from the Brennan Center.)

Stephen Colbert shed light on the part of the Florida law that mandates community groups turn in voter registration forms within 48 hours of completion, instead of the previous 10 days, and attaches a fine for non-compliance.

The Colbert piece features Representative Rich Glorioso, who attended last year’s ALEC meeting. Representative Dennis Baxley, the bill’s lead sponsor, also has ties to ALEC.

Also with ties to ALEC, a similar battle is now being fought in South Carolina. Representative Alan Clemmons, an ALEC member, is the lead sponsor of HB 4549. Think Progress reporting:

Last year, the Florida legislature passed a bill enacting requirements for groups conducting voter registration drives so onerous that even the League of Women Voters were forced to pull out of the state. Sensible individuals would see this episode as a cautionary tale. South Carolina legislators view it instead as a how-to guide.

This week, the South Carolina House will consider HB 4549, a bill that mimics Florida’s changes to its voter registration laws. Among the changes contained in the bill is a new requirement that voter registration groups must submit registration applications within 48 hours of completion or face a fine of up to $1,000 per application. It has already been approved by the House Judiciary Committee and faces good prospects in the overall House, which Republicans control 76-48.

It’s not off the table yet, but good news: HB 4549 was recently sent back to its original committee (Judiciary) for another review, the same day one of its sponsors (Representative Rick Quinn) requested that his name be removed from the bill.

The bad news: South Carolina has also introduced an onerous proof of citizenship requirement through SB 304, sponsored by ALEC member George Campsen. AlterNet reporting:

South Carolina is again considering a bill from the conservative American Legislative Exchange Council (ALEC) to limit access to the ballot box. A nearly identical version of an ALEC voting bill is moving through the state Senate and comes on the heels of the U.S. Department of Justice (DOJ) blocking South Carolina's ALEC-inspired voter ID law as discriminatory against people of color.

State Senator Chip Campsen (R), an ALEC member, introduced SB 304, which is almost a mirror-image of the ALEC Taxpayer and Citizen Protection Act. The bill requires proof of citizenship to register to vote and has opened up a new round of debate over voting rights.

And as AlterNet and the ACLU note, the state is still embroiled in its battle over voter ID. At least they’re working on dispelling the dead voter myth.

For more information, check out The Right to Vote under Attack: The Campaign to Keep Millions of Americans from the Ballot Box, a Right Wing Watch: In Focus report by PFAW Foundation.

PFAW Foundation

Diversifying the Federal Bench

While Republicans have been setting bad precedents for obstruction of judicial nominations, it's worth a moment to look at the good precedents set by President Obama and his nominees.

The White House has an infographic with a great deal of useful information about the state of the federal court system and the efforts to fill our empty courthouses. Part of the graphic is an inspiring list of firsts that have created a more richly diverse federal bench:

  • The first openly gay man confirmed to a federal court
  • The first women judges of Chinese, Korean, and Vietnamese descent
  • The first women judges in five different districts

And if Republicans end their filibusters of 17 qualified district court nominees (either by choice or by cloture vote), some more firsts are on the way:

  • Miranda Du would be the first Asian Pacific American federal judge in Nevada
  • Michael Fitzgerald would be first openly gay federal judge confirmed anywhere outside of the Southern District of New York
  • Stephanie Rose would be the first woman federal trial court judge in Iowa's Southern District

President Obama has made great efforts to diversify the bench. Almost half of his confirmed judges are women, more than twice George W. Bush's rate. More than a third have been people of color, while less than a fifth of Bush's nominees were.

Among the 17 district courts nominees who Republicans are currently filibustering, 11 are women or people of color. GOP obstruction means having a federal judiciary that looks less like America.


Whatever It Is, They're Against It: Health Care, the Courts and the Anti-Obama Agenda

This post originally appeared in the Huffington Post.

Later this month, the Supreme Court will hear arguments in one of the most closely-watched cases in its history: the challenge to the 2010 Affordable Care Act. But in the weeks leading up to those arguments, another fight will be taking place in the U.S. Senate on an issue that in many ways parallels the health care debate, and offers an even clearer view of what have become the policy priorities of the Republican Party.

Since Obama became president, Republicans in Congress have made a clear and conscious choice to kill any attempts to cooperate with him to create solutions for the American people. They have chosen instead to devote themselves to be the party of opposing President Obama - on every issue, big and small. In doing so, they have thrown out not only the trust of the people who elected them, but many of their own formerly held principles.

Even ideas that originally came from Republicans, once adopted by the president become grounds for all-out partisan attacks. One such Republican idea was the individual mandate, which is now at the center of the legal and political challenges to the Affordable Care Act.

Ironically, the judicial branch - to which Republicans are turning with hopes that the policy they came up with is declared unconstitutional - is also at the heart of another stunning turnaround. Republicans used to talk about the importance of bipartisan cooperation in ensuring a fair and functioning judiciary. But that changed abruptly in January 2009, when the political party of the president changed.

When it comes to health care reform, Republicans have chosen to ignore their previous positions in an effort to stick it to the president.

When it comes to the functioning of the federal courts, they have so far chosen to do the same.

This week, Republicans in the Senate, after three years of obstructing nominees to the U.S. courts -- contributing to a historic vacancy crisis that affects over 160 million Americans -- will have to make the same choice. Senate Majority Leader Harry Reid has announced he will file petitions to end the filibusters of 17 nominees to district courts around the country, most long-stalled and unopposed. These, plus the two Obama nominees who have already been filibustered, represent nearly ten times the number of district court nominees who were filibustered under the last two presidents combined. The cumbersome process to end these filibusters will, if Republicans don't relent, tie up the Senate through early April.

During George W. Bush's presidency, Senate Republicans were near-universal in their condemnation of the filibusters of some of Bush's most extreme judicial nominees. Many went so far as to claim that filibustering judicial nominees was unconstitutional.

Once President Obama moved into the White House, it was remarkable how fast they changed their tune. They went overnight from decrying judicial filibusters, to using them wantonly -- not just to stall nominees to whom they found objections, but to stall all nominees , even those whom they favor. At this point in Bush's presidency, the average district court nominee waited 22 days between approval from the Senate Judiciary Committee and a vote from the full Senate. Under President Obama, the average wait has been more than four times longer - over three months.

This is gridlock for gridlock's sake: once Republicans allow them to come to a vote, the vast majority of the president's nominees have been confirmed with overwhelming bipartisan support, demonstrating that the opposition to these nominees was never about their qualifications.

This is more than an inside the beltway partisan game -- it has helped to create a historic vacancy crisis in the federal courts. Approximately one in ten federal courtrooms today sits empty because of Senate inaction. These vacancies create unmanageable workloads for sitting judges, which in turn cause unacceptable delays for Americans seeking their day in court. The Republican Party has been so intent on obstructing President Obama's agenda that they've been willing to sacrifice the smooth functioning of America's courts

. The health care debate highlights the importance of appointing judges who place their duty to the Constitution over a partisan agenda. But it also crystallizes the agenda of opposition that has caused the Republican Party to go off the deep end. When a party's only principle is to be opposed to the other party's agenda, it's the American people who end up paying the price.


State legislation shines national spotlight on voter ID

March 7, 2012 marked the 47th anniversary of the “Bloody Sunday” when voting rights marchers were beaten in their attempt to cross the Edmund Pettus Bridge in Selma, Alabama.

NAACP President Ben Jealous joined activists from then and now in marking the occasion with another march, saying protest is just as necessary now as it was then.

"We need people to understand that not only is history not very distant, but we stand on the precipice of repeating it," Jealous said.

The NAACP leader said strict voter ID laws that won't allow people to vote without a driver's license or passport are unnecessary and will make it difficult -- and in some cases impossible -- for 5 million people to vote.

"We need to make sure that the principle of one person, one vote, is respected," he said.

Last fall’s The Right to Vote under Attack: The Campaign to Keep Millions of Americans from the Ballot Box, a Right Wing Watch: In Focus report by PFAW Foundation, details how the fights of 50 years ago are being resurrected today. Indeed we’ve seen the strict laws that Jealous mentions pushed in states including Virginia, Michigan, Minnesota, Wisconsin, New Hampshire, Pennsylvania, and Texas, among others, along with the rise of the American Legislative Exchange Council.

Following what happened in Virginia, Washington Post editorialized against strict ID.

Even if Republican lawmakers aren’t personally acquainted with people who don’t carry ID, they exist. And provided they are legally registered to vote, they should be allowed to cast their ballots — without encumbrances manufactured by the state.

Ari Berman wrote in Rolling Stone about what he believes are the political motivations and consequences.

March 2012:

Since the 2010 election, Republicans have waged an unprecedented war on voting, with the unspoken but unmistakable goal of preventing millions of mostly Democratic voters, including students, minorities, immigrants, ex-convicts and the elderly, from casting ballots in 2012. More than a dozen states, from Texas to Wisconsin and Florida, have passed laws designed to impede voters at every step of the electoral process, whether by requiring birth certificates to register to vote, restricting voter registration drives, curtailing early voting, requiring government-issued IDs to cast a ballot, or disenfranchising ex-felons.

Within days, the crucial battlegrounds of Pennsylvania and Virginia will become the latest GOP states to pass legislation erecting new barriers to voting. If, as expected, the new laws lead to fewer Democrats casting ballots in November, both states could favor Republicans, possibly shifting the balance of power in Congress and denying Barack Obama a second term.

August 2011:

Republicans have long tried to drive Democratic voters away from the polls. "I don't want everybody to vote," the influential conservative activist Paul Weyrich told a gathering of evangelical leaders in 1980. "As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down." But since the 2010 election, thanks to a conservative advocacy group founded by Weyrich, the GOP's effort to disrupt voting rights has been more widespread and effective than ever. In a systematic campaign orchestrated by the American Legislative Exchange Council – and funded in part by David and Charles Koch, the billionaire brothers who bankrolled the Tea Party – 38 states introduced legislation this year designed to impede voters at every step of the electoral process.

Then there’s Roll Call.

Rock the Vote is one of several dozen organizations, from civil rights groups to Latino, labor and women’s groups, that have launched a multipart campaign to push back against new registration rules for voters that have been enacted in many states. The fight over voter access has triggered state-level lobbying, ballot initiatives and lawsuits, and the issue will likely land before the Supreme Court.

Voting rights activists are responding to a wave of state laws enacted after the 2010 elections, which ushered in GOP majorities in more than two dozen state legislatures. Voting rights advocates have struggled to gain traction amid public indifference and more visible collective bargaining fights, but they are starting to win attention at the Justice Department and on Capitol Hill.

However voter ID is resolved, it’s clear that it’s an issue of national concern, not one isolated to a few states.

Or even international. Jealous and the NAACP have put the issue before the United Nations Human Rights Council. Click here to read their report, Defending Democracy: Confronting Modern Barriers to Voting Rights in America.

PFAW Foundation

Not Just a "Little Disagreement" Over Scheduling

Sen. Lamar Alexander went to the Senate floor this morning and, unfortunately, gravely mischaracterized his party's three-year massive resistance to processing judicial nominations, which has culminated in Sen. Reid's being forced to file cloture petitions to end the unprecedented filibusters of 17 district court nominations.

So this is a little disagreement that we have here between the Majority and the Republican Leader on the scheduling of votes on district judges.

Like the efforts to portray three years of obstruction as being motivated by recess appointments that would not be made until 2012, this assertion is easily disproven. Since President Obama took office, Republicans have forced "little disagreements" on just about every nomination in the Senate. That is why it takes more than four times longer on average to schedule a floor vote on an Obama district court nominee than it did for George W. Bush's nominees at this point in his presidency.

But more importantly, Sen. Alexander's dismissal of the problem does injustice to the millions of Americans whose access to justice is cut off because there are not enough judges to fill our courtrooms – while, in contrast, a glut of stalled nominees sits on the Senate floor.

Our country's district courts are where the legal battle between individuals and those who would violate their rights is occurring. Every day, Americans turn to our judicial system for justice in cases involving civil rights violations, employment discrimination, dangerously defective consumer goods, predatory lending practices, immigrant rights, consumer fraud, environmental destruction, and a variety of other areas. These courts are vitally important.

Yet because of Republican obstructionism, our nation is experiencing a judicial vacancy crisis worse and more sustained than anything we have seen in over 35 years. Empty courtrooms are not a minor inconvenience cause by a little disagreement on scheduling – they threaten more than 160 million Americans' access to justice.

The empty courtrooms reflect the great damage being done to our constitutional system of justice. They reflect the inability of innocent Americans to have their day in court. And they reflect the sacrifices that the Senate GOP is willing to impose on other people in order to score some political points.


Exponential Escalation of Judicial Obstruction

Filing 17 cloture petitions to end the filibusters against so many district court nominations is a necessary response to an unprecedented level of obstruction. It's worth looking at how Senate Republicans have driven America to this extraordinary point.

Until the election of President Obama and the GOP's decision to become the "Party of No," district court nominations were generally low-profile nonpartisan affairs. Throughout the entire eight years of George W. Bush's presidency, every district court nominee was confirmed without objection, with a mere five exceptions. In contrast, during the much shorter time that Obama has been in office, Republicans have opposed 19 of his district court nominees. That's an increase of almost 1,000%.

It has also been much harder to even get nominations voted on. Before the breakdown, once a district court nominee was approved by the Senate Judiciary Committee, the full Senate moved swiftly to vote: 22 days for Bush, but pushed back without explanation to an astonishing 93 days for Obama.

In fact, during Bush's first term, 57 of his district court nominees were confirmed within a week of committee approval. Only five of Obama's have been treated that well. But even that understates the level of GOP obstruction: Of those five Obama nominees, three of them had actually been approved by committee earlier, were denied a floor vote, then had to undergo a second committee vote before being allowed a vote by the full Senate. So only two of Obama's district court nominees have so far been confirmed within a week of first getting committee approval, far less than Bush's first-term number of 57.

Republicans have ramped up the use of the filibuster exponentially. Over the past 60 years, before Obama's presidency, only three district court nominees had been filibustered. In the past year, Republicans filibustered two of Obama's district court nominees, and then yesterday Sen. Reid had to file cloture to end the filibuster of an additional 17, an enormous escalation on the part of the Senate GOP.

This is a national problem that Congress can resolve in the space of a few minutes. In fact, the Senate confirmed 17 district court nominations in one day by voice vote back in November of 2002, when Bush was president. Nothing stops the Senate from doing the same thing this week, except for stubborn, destructive partisanship.

So 17 courthouses that could be filled in a snap will remain empty. Eight of those are in areas where the caseload is so extreme that is has been formally declared a judicial emergency. Eleven of the 17 nominees are women or people of color, whose confirmation would help diversify the federal bench.

Our entire system of justice relies on a functioning court system, so every American can get their day in court. That should not be cast aside just to score points against President Obama.


UPDATE: Voter ID challenges moving forward in Wisconsin

UPDATE: Yesterday, Judge Niess issued a new ruling in the League of Women Voters case, a permanent injunction against Act 23 (aka AB 7). WBAY reporting. This follows his ruling last week on standing in the case, and Judge Flanagan’s ruling in another brought by the Milwaukee NAACP and Voces de la Frontera. FairVote’s Wisconsin legal memo is available here.

Last May, Wisconsin Governor and ALEC Alum Scott Walker signed Act 23 (aka AB 7), a voter ID law which also counts ALEC affiliated legislators among its sponsors. Groups challenging this legislation have a long road ahead of them, but this week they scored some important successes.

In the League of Women Voters case, Dane County Circuit Judge Richard Niess ruled on Monday that League President Melanie Ramey has standing as a plaintiff, and Governor Walker is the proper defendant.

The League had countered that whether Ramey herself was affected or not was beside the point because the requirement imposes an additional impediment to voting that is not specified in the state constitution.

"In this, she is surely correct," Niess wrote.

Further, he wrote, the League is in the best position to argue on behalf of voters who are "too physically infirm, mentally ill, impoverished, itinerant, elderly or simply neglectful to comply" but are still qualified voters under the state constitution.

"This is the same cohort of citizens that shows up in the circuit courts in increasing numbers, day in and day out, without lawyers, in foreclosure proceedings, collection actions and family matters," Niess wrote. "Who will advocate for them on these constitutional issues that affect their fundamental, inherent and constitutional right to vote, if not the plaintiffs, or entities like the plaintiffs?"

Walker, Niess wrote, is a proper defendant because under recent state law he has ultimate authority over rule-making by state agencies, including GAB.

In the case brought by the Milwaukee NAACP and Voces de la Frontera, Dane County Circuit Judge David Flanagan on Tuesday halted AB 7’s enforcement in the upcoming April 3 general election, pending trial.

Flanagan granted a temporary injunction (read the injunction here) ordering Walker and the GAB to "cease immediately any effort to enforce or implement the photo identification requirements" of the law, pending a trial on a permanent injunction scheduled before him on April 16.

"If no injunction is issued, a clearly improper impairment of a most vital element of our society will occur," Flanagan wrote. "The duty of the court is clear. The case has been made. Irreparable harm is likely to occur in the absence of an injunction."

The message from these judges for these and other pending challenges (including Advancement Project and ACLU) is clear: voter suppression is a serious issue, and attempts to implement it merit careful scrutiny from the judicial system.

Indeed, something must be wrong when a veteran appears to vote and his VA card isn’t accepted, or when a 95-year-old cannot get ID because neither she nor the state can locate her birth certificate.

For more information, check out The Right to Vote under Attack: The Campaign to Keep Millions of Americans from the Ballot Box, a Right Wing Watch: In Focus report by PFAW Foundation.

PFAW Foundation

PFAW's Jamie Raskin Takes on Right-Wing Rhetoric on the Courts

As the 2012 presidential campaign gears up, PFAW Senior Fellow Jamie Raskin has collected an extensive glossary of the Right Wing’s favorite rhetoric about the Supreme Court and the Constitution. Sen. Raskin's Daily Kos piece explains the coded phrases and euphemisms, such as “federalism,” “legislating from the bench” and “original intent,” that the Right Wing uses to project their political agenda onto the Founding Fathers’ vision for America.

Here’s an excerpt :

“Follow the Law, Not Make the Law” – Right -Wing Usage: What Republican judges and justices do and what Republican judicial nominees will do, e.g., “It’s only a matter of time before our five justices who follow the law and don’t make the law strike down the Affordable Care Act (Obamacare) and Section 5 of the Voting Rights Act and step up the campaign to invalidate jury verdicts and punitive damages in the states.” Preferred Usage: Essentially meaningless campaign rhetoric used to describe judges who toe the right-wing corporate line, e.g., “I hope they follow the law, instead of making it, and cut our jury verdict down to a price that won’t cost us so much freedom of speech.”

You can read the whole glossary here.


DOJ and Houston senator take a stand for voting rights, against ID law

Last May, Texas Governor Rick Perry signed SB 14 into law. An ALEC award-winner himself, Governor Perry had the support of several ALEC members and others who pushed the legislation. Together they made Texas a photo ID state.

Not so fast, says the Department of Justice.

Today DOJ issued an official objection that will stop SB 14 from going into effect, saying that it disproportionately affects Hispanic voters.

Thus, we conclude that the total number of registered voters who lack a driver’s license or personal identification card issued by DPS could range from 603,892 to 795,955. The disparity between the percentages of Hispanics and non-Hispanics who lack these forms of identification ranges from 46.5 to 120.0 percent. That is, according to the state’s own data, a Hispanic registered voter is at least 46.5 percent, and potentially 120.0 percent, more likely than a non-Hispanic registered voter to lack this identification. Even using the data most favorable to the state, Hispanics disproportionately lack either a driver’s license or a personal identification card issued by DPS, and that disparity is statistically significant.

DOJ said that Texas did not meet its burden of proof and failed to demonstrate that SB 14 made positive progress, without discriminatory intent, in ensuring election integrity.

In conclusion, the state has not met its burden of proving that, when compared to the benchmark, the proposed requirement will not have a retrogressive effect, or that any specific features of the proposed law will prevent or mitigate that retrogression. Additionally, the state has failed to demonstrate why it could not meet its stated goals of ensuring electoral integrity and deterring ineligible voters from voting in a manner that would have avoided this retrogressive effect. Because we conclude that the state has failed to meet its burden of demonstrating that the proposed law will not have a retrogressive effect, we do not make any determination as to whether the state has established that the proposed changes were adopted with no discriminatory purpose.

DOJ’s action flows from its mandate under Section 5 of the Voting Rights Act to review election law changes in certain jurisdictions, Texas being one of them.

State Senator Rodney Ellis of Houston sent DOJ a letter last week, urging:

Regardless of the excuses for why the State fails to fully answer the DOJ’s question, it is clear that the State falls far short of meeting the standards set out in Section 5 of the Voting Rights Act. As outlined on the DOJ’s own website, Section 5 “requires proof that the proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group. If the jurisdiction is unable to prove the absence of such discrimination,” then the proposed change cannot receive preclearance and is legally unenforceable.

Again, given the State’s failure to prove that Senate Bill 14 has neither the purpose nor the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group, I respectfully request that the DOJ deny preclearance of Senate Bill 14. We must not proceed recklessly with far-reaching electoral changes that could potentially disenfranchise hundreds of thousands of legal voters.

Senator Ellis was responding to an in-depth Houston Chronicle review of the data that the state submitted to DOJ in support of its preclearance request.

For more information, check out The Right to Vote under Attack: The Campaign to Keep Millions of Americans from the Ballot Box, a Right Wing Watch: In Focus report by PFAW Foundation.

PFAW Foundation

GOP Seeks to Distract from their Judicial Obstruction

Senate Democrats are taking action to highlight and end Republicans' three-year efforts to keep our nation's courtrooms empty. Specifically, Senate Majority Leader Harry Reid has just announced that he will file cloture on all of the 17 district court nominations currently pending on the floor, most of which have been languishing for more than three months.

CQ reports that Republicans are tying their ongoing obstruction to their opposition to President Obama's recess appointments earlier this year.

[Sen. Dick] Durbin is assuming that enough Republicans will break ranks and help deliver the 60 votes needed to invoke cloture and clear the way for votes on confirming the judicial nominees. But Republicans said the outcome of such cloture votes is not assured, predicting that the minority will oppose the motions to protest recess appointments Obama made in January.

In reality, it could not be clearer that there is no connection between Republican obstruction and their opposition to the recess appointments. This unprincipled opposition has been going on since the start of the Obama Administration. At the end of 2011, before the recess appointments, President Obama's confirmed district court nominees had waited for a floor vote more than four times longer on average than President Bush's. That is the case today, as well. The unjustified delays in 2009-2011 were hardly caused by recess appointments made in 2012.

No, the obstruction is part of a deeply cynical effort to keep as many courtrooms empty for as long as possible in the hopes of having a Republican president fill them in 2013. With a vacancy crisis worse than anything we've seen in over 35 years, the American people need fully functioning courts.



Three Montana Legislators Support Disgraced Federal Judge

Three members of the Montana House Judiciary Committee have vocally come out in support of disgraced federal Judge Richard Cebull. Last week, Cebull seriously undermined the public's trust in his ability to preside over cases fairly as a neutral arbiter, regardless of who the parties are. However, desperate to defend the indefensible, the Montana legislators are seeking to reframe this as simply an example of someone being punished for exercising his First Amendment rights.

The Great Falls Tribune reports (subscription only):

Three Republicans on the state House Judiciary Committee supported embattled federal Judge Richard Cebull in emails to fellow state lawmakers this week, with one legislator thanking Cebull for exercising his right to free speech. ...

[Rep. David] Howard went on to say that Cebull's comments "were his own, and isn't that Freedom of Speech?"

"Freedom of Speech is being able to say something that might offend someone! Being offended is not a barrier to free speech. Therefore, the unalienable right of freedom of speech doesn't concern itself with feelings," Howard wrote.

Howard then went on to thank the judge for exercising that right.

This has nothing to do with freedom of speech. It has to do with the role of a judge in our constitutional system.

It is important that Americans see their judges as neutral arbiters, not as political figures. There is a reason that the Supreme Court Justices don't applaud lines they agree with during the State of the Union. It would be unseemly. It would cast doubt on their ability to be neutral judges.

A federal judge is free to hate the president and his policies, just as other Americans are. And he is free to privately tell his friends that, just as other Americans do. But because he is a judge, he is NOT free to express his disdain in public. Unfortunately for this judge, his words have become public. People now cannot help but doubt his neutrality, and therefore his fitness as a judge.

To use a sports analogy, if a football referee is known to have grossly insulted some of the teams, then acknowledges that he did so because he strongly dislikes them, would anyone want him refereeing a game they cared about? Would anyone trust his calls, especially the difficult ones where the answer isn't clear? Good referees are constrained in what they can say about the teams whose games they oversee, not because they don't have freedom of speech, but because they accept voluntary constraints as part of their job description.

In this case, it isn't just the integrity of a sports league at issue: It's the integrity of the system of justice throughout our entire federal courts system. Every American has a right to their day in court, but that means nothing if everyone knows the court is run by a grossly biased judge whose every decision comes under a cloud.

How sad for the people of Montana that three members of their state's House Judiciary Committee have so little understanding of the basic concept of having a fair hearing in court.

PFAW Foundation

Elected Officials Officially Calling Out ALEC

Over the past few weeks, more progressive elected officials are not just voting against ALEC inspired legislation that would privatize public services and make a few people very rich, they are calling it out by name and raising awareness of how ALEC serves as a vehicle to enact a corporate wish list into law in states across the country.

Minnesota Governor Mark Dayton recently vetoed a set of ALEC-modeled tort-reform bills that originated from an “ALEC Boot Camp” for state legislators. Here’s his statement:

“Exactly who did the Republicans in the legislature listen to? Well, three of the four bills come right from this manual, Tort Reform Boot Camp, published by the American Legislative Exchange Council, or ALEC. This is the same group who reportedly provided legislators last week with all-expense paid trips to a posh Florida hotel for what they call an “education policy conference.” It is an extremely conservative group, funded largely by large corporations, big business associations, insurance companies and very wealthy individuals. I’ve found that Minnesotans do not want their laws written by the lobbyists of big corporations.

“Since these Republican bills so closely follow ALEC’s instructions on tort reform, and since ALEC’s opinion on these subjects are evidently more important to Republican legislators than mine, their fellow legislator’s or the Supreme Court’s, perhaps they would share with us all of the other ALEC boot camp manuals, so we can know in advance what to expect from them for the rest of this session. If Republicans want to continue to prove to Minnesotans that they are too extreme to lead, they should continue to throw ALEC’s ideology at us. If they want to begin to govern responsibly, and work collaboratively, pass real jobs legislation – and my three measures have not even been taken up – real jobs legislations that will put Minnesotans back to work, then I’m ready to work with them. And I’m waiting.”

Just last week, Wisconsin State Representative Mark Pocan (D) decided to take action as well. He joined ALEC to gain access to the bill templates, and then took to the floor to expose the origins of AB110, a bill that would damage the public education system by giving special taxpayer subsidies to private schools for special needs children.

“This is part of dismantling public education in Wisconsin, and Florida, and Ohio, and every single state it’s introduced in,” Pocan explained. “This bill doesn’t come from this body, this bill is an identical bill that’s been introduced brought by special interests by ALEC and introduced state by state by state.”


ALEC’s secret jig is up. The American people don’t want their laws to be written by corporations, and they’ve made their voices heard. Now, our elected representatives – that is, the ones who are actually representing us, not wealthy special interests – are taking a stand too. ALEC’s pro- corporate agenda can only advance if kept secret. Kudos to those elected officials with the courage to shine the spotlight on this undemocratic organization.

PFAW Foundation