Courts & Law

The GOP wants to have it both ways on national security leaks to the media

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Posted by AzBlueMeanie:

Waybackmachine3Let's set Mr. Peabody's WABAC time machine to a little less than a year ago, to June of 2012 when this was the GOP position on national security leaks to the media. Republicans demand (again) special investigator to investigate leaks – CNN:

A group of Republican senators continued to fire away Tuesday at the
Obama administration for its failure to appoint a special counsel to
investigate leaks of classified information.

Sen. John McCain, R-Arizona, once again led the charge at a Capitol
Hill news conference, criticizing Attorney General Eric Holder for his
decision to appoint two Justice Department prosecutors to investigate
the recent leaks to the media.

"To think that two people appointed prosecutors from Mr. Holder's
office, overseen by Mr. Holder, is also offensive," McCain said. "We
need a special counsel. We need someone who the American people can
trust and we need to stop the leaks that are endangering the lives of
those men and women who are serving our country."

Robert Robb is right: refer a clean Medicaid (AHCCCS) restoration bill to the voters

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Posted by AzBlueMeanie:

I hate it when I have to agree with the Arizona Republic's über-conservative columnist Robert Robb, but even a broken clock is right twice a day, am I right?

Keep in mind that this latest column from Robert Robb is actually the strategy for a legal challenge to Governor Jan Brewer's Medicaid (AHCCCS) restoration plan, likely from his old employer, the Goldwater Institute, which is actively opposing the Governor's plan. If the Governor's plan is enacted by the legislature, the Goldwater Institute will file a lawsuit. (To his credit, Robb has written several columns arguing in favor of Governor Brewer's plan as a practical matter, much to Goldwater's chagrin I imagine).

I have had several Democratic legislators tell me that they agree with the Governor's legal analysis that the hospital bed tax is just a provider assessment that can be imposed by an agency head. I suspect this is wishful thinking. I have little confidence in the Governor's lawyers. I have previously posted that I disagree with this analysis. I believe this is rightly characterized as a tax, and any new tax requires a two-thirds super-majority vote of both chambers of the legislature to be approved under Prop. 108 (1992). This is why I have long argued for the repeal of the undemocratic Prop. 108.

SCOTUS watching down the final stretch

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Posted by AzBlueMeanie:

According to the stats kept by Scotusblog.com, the U.S. Supreme Court has heard 74 merit cases this term, and issued opinions in 39 of those cases.

This leaves 35 opinions to be announced over the next six weeks before the end of June. Mondays are orders and opinions days, with the exception of Tuesday, May 28, because of the Memorial Day holiday.

There are several cases I am following for decisions expected to be issued late in the term on June 17 or June 24, but one never knows.

There are two voting rights cases. The first is Arizona v. The Inter Tribal Council of Arizona, Inc., (12-71), which involves the question whether the National Voter Registration Act preempts Arizona's Prop. 200 (2004) that requires persons who are registering to vote to show proof of citizenship to register to vote. The federal law requires only an attestation of citizenship, subject to prosecution for false attestation. This is a federal preemption issue.

The "big one" that everyone is waiting for is Shelby County v. Holder, (12-96), which involves the question whether Congress’ decision in 2006 to reauthorize Section 5 of
the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority.

This is the "preclearance" provision of the Voting Rights Act with which covered states, such as Arizona, must comply because of past history of voter discrimination. Arizona has yet to qualify for the "bail out" provision of the Voting Rights Act because Arizona has not had a record of non-discrimination for more than 10 years.

If Section 5 is struck down, it will be a conservative activist court substituting its judgment for the judgment of Congress, which reauthorized the Voting Rights Act with overwhelming bipartisan support. That would set off a firestorm of protest, and justifiably so.

Update on Special Action challenge to the consolidated elections bill

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Posted by AzBlueMeanie:

Last year, Rep. Michelle Ugenti (R-Scottsdale) sponsored HB 2826 (consolidated election dates; political subdivisions), a bill providing for the consolidation of elections in the fall of even numbered years only. The law will apply to elections in 2014 and thereafter.

The City of Tucson filed its special action for declaratory and
injunctive relief on October 10, 2013 in the Pima County Superior Court,
City of Tucson v. State of Arizona et al. (Case No.
C20126272). The City of Phoenix Intervened as a
plaintiff. The case is assigned to Judge James E. Marner.

On Monday, Judge Marner ruled on the motions for summary judgment. (For some reason I am unable to access the case documents online today, so the ruling is not attached).

I have tried to interest our local newspapers The Arizona Dail Star and the Tucson Weekly in reporting on this case, but apparently they no longer have an interest in court reporting. The Arizona Republic today has a report, from a Phoenix-centric perspective, naturally. Phoenix, Tucson fight change in election calendar:

Tucson and Phoenix are waging a legal fight to overturn a
state law that would require local governments to move their elections
to even-numbered years to coincide with statewide contests for president
and governor.

If the law takes effect in 2014, Phoenix Mayor Greg Stanton and other
municipal elected officials could have their terms extended by several
months or even a year.

A Pima County Superior Court judge on Monday denied the cities’
request for summary judgment in the case, saying that he needs to get
more information than already submitted in court filings. A hearing will
likely be scheduled in the next month, so the parties can debate the
facts further.

Making the right to vote a fundamental constitutional right

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Posted by AzBlueMeanie:

I have posted about this topic from time to time whenever a member of Congress introduces a bill for a constitutional amendment that would make the right to vote a fundamental constitutional right. This is important, because fundamental constitutional rights are subject to the strict scrutiny standard of review by the federal courts. Currently the right to vote, which is not expressly guaranteed in the Constitution, is generally reviewed under the rational basis standard of review.

Under the strict scrutiny standard of review, most of the attempts to restrict voting rights that we have seen in recent years would not pass constitutional muster.

John Nichols writes at The Nation, Congressmen Seek Constitutional Guarantee of the Right to Vote:

Supreme Court Justice Antonin Scalia made a point of emphasizing during the Bush v. Gore arguments in December 2000 that there is no federal constitutional guarantee of a right to vote for president. Scalia was right. Indeed, as the reform group FairVote
reminds us, “Because there is no right to vote in the U.S.
Constitution, individual states set their own electoral policies and
procedures. This leads to confusing and sometimes contradictory policies
regarding ballot design, polling hours, voting equipment, voter
registration requirements, and ex-felon voting rights. As a result, our
electoral system is divided into 50 states, more than 3,000 counties and
approximately 13,000 voting districts, all separate and unequal.”

Mark Pocan and Keith Ellison want to do something about that.

The two congressmen, both former state legislators with long
histories of engagement with voting-rights issues, on Monday unveiled a proposal to explicitly guarantee the right to vote in the Constitution.