Courts & Law

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.

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.