Facile Turnout Stats on Voter ID: Wrong, the First Time

By Associate Professor Justin Levitt

This op-ed originally appeared in The Huffington Post.

Judge Richard Posner and Justice John Stevens wrote the 2007 Court of Appeals'majority opinion and 2008 Supreme Court plurality opinion, respectively, upholding Indiana's strict photo ID law against challenge. Their recent public musings about the merits of the dissenting opinions in those cases are sufficiently unusual to have provoked a flood of commentary.

One of these commentaries stands out. Hans von Spakovsky, who has served as a local election official, at the FEC, and at the Department of Justice, joined the mix again last week. In a piece titled "Right the First Time," Mr. von Spakovsky defends Judge Posner's original opinion upholding the ID law.

His primary argument ridicules the notion that ID has stopped some voters from casting their ballots, by pointing to Indiana's consistent turnout gains since the law was implemented. Indiana's law was implemented in 2006. But turnout increased 2 percent from 2002 to 2006 (including in counties with large minority populations), increased 8 percent for Democrats and 5 percent for black voters from 2004 to 2008, increased (including for black voters) from 2006 to 2010, and increased again for black voters from 2008 to 2012. Therefore, he claims, Indiana's ID law can't possibly have hurt voters, particularly minorities.

I don't know if Mr. von Spakovsky will talk about Kansas: After Kansas implemented a strict ID law in 2012, black turnout dropped by 2 percent, and Latino turnout dropped by 21 percent.

Conclusions about the role of ID from either set of numbers are, of course, nothing but garbage. They should fail Statistics 101 at any school in the country.

Continue reading the remainder of this post on www.huffingtonpost.com.

Can Executive Officials 'Veto' Initiatives Passed by the Voters?

By Professor Karl Manheim and Adjunct Professors John S. Caragozian and Donald Warner

This op-ed originally appeared in the Oct. 21 edition of the Los Angeles Daily Journal.

A case has reached the 9th U.S. Circuit Court of Appeals that may further determine the fate of the initiative process in California. In Vivid Entertainment v. Fielding, No. 13-56445 (9th Cir. filed Aug. 20, 2013), the court is being asked whether an initiative will be invalidated, even after its constitutionality has been upheld at trial, because executive officials have abandoned its defense.

Vivid follows on the heels of Hollingsworth v. Perry, decided by the Supreme Court in June. In Hollingsworth, same-sex California couples challenged voter-approved Proposition 8, which had banned same-sex marriage. The U. S. district court ruled that Prop. 8 was unconstitutional, and state officials refused to appeal. Accordingly, Prop. 8's official proponents -- who had successfully intervened as defendants at trial -- appealed. The 9th Circuit affirmed the district court's ruling of unconstitutionality, and the proponents petitioned for certiorari.

The Supreme Court held that Prop. 8 proponents lacked Article III standing and dismissed the appeal. Chief Justice John Roberts' majority opinion stated that only state "officials" may represent the state's interests in defending a voter-enacted initiative. Although the California Supreme Court earlier had held that Prop. 8's official proponents were authorized by state law to represent the state's interests, Roberts characterized the proponents as mere "bystanders" for Article III purposes.

Vivid challenges another voter-passed initiative, and elected officials are again refusing to defend it. Measure B, which was passed by Los Angeles County voters, requires, inter alia, condom use by actors in adult films made in the county. Vivid's plaintiffs -- movie producers and actors -- sued the county in U. S. district court, claiming that Measure B was an unconstitutional restriction on expression.

What's New and Old About Asbestos Litigation?

By Professor Georgene Vairo

On October 1-2, the ABA TIPS Asbestos Litigation Task Force held its second round of hearings at Loyola Law School, Los Angeles. The Task Force was created to study the current state of asbestos litigation and consider ways in which fairness for both claimants and defendants can be achieved. The L.A. hearing, as well as an earlier hearing in Washington, D.C., revealed deep divisions among plaintiffs' attorneys and defendant attorneys on what needs to be done to deal with current aspects of what the U.S. Supreme Court once described as an "elephantine mass." Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999).

A 1991 Report of The Judicial Conference Ad Hoc Committee on Asbestos Litigation 2-3 (Mar. 1991) sets forth the challenge: "[This] is a tale of danger known in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s. On the basis of past and current filing data, and because of a latency period that may last as long as 40 years for some asbestos related diseases, a continuing stream of claims can be expected. The final toll of asbestos related injuries is unknown. Predictions have been made of 200,000 asbestos disease deaths before the year 2000 and as many as 265,000 by the year 2015."

We are only two years away from that date, and the asbestos litigation has morphed significantly and shows no sign of abating any time soon. Back in 1991, the Judicial Conference report identified numerous problems: growing dockets in state and federal courts; delays in getting to trial; long trials with complex issues being litigated over and over; transaction costs that dwarfed any recovery. Additionally, "the exhaustion of assets threatens and distorts the process; and future claimants may lose altogether." One piece of "good news" is that the federal MDL that was established in the same year is near completion of the resolution of most of the cases filed in the federal courts.

Much Ado About McCutcheon

By Associate Clinical Professor Jessica Levinson

This piece appears in Pacific Standard.

Shaun McCutcheon wants to make political donations to federal candidates. Allow me to clarify; McCutcheon wants to make a LOT of political donations to federal candidates. The Republican National Committee, among others, wants him to be able to do so. So what's the problem?

Currently, McCutcheon can give $2,600 per election directly to a federal candidate, a total of $48,600 per election to all federal candidates, and $74,600 per election to federal political party committees and political action committees, or PACs, that give money to federal candidates. Put another away, McCutcheon (and other individuals) are subject to a $123,200 per election aggregate contribution limit with respect to candidates, political parties, and PACs. McCutcheon, a general contractor living in Alabama, would like to change that. The result is the latest and greatest campaign finance question to hit the high court since Citizens United.

In the early 1970s, in the wake of the Watergate scandals that lead to the resignation of President Nixon, Congress implemented the nation's first comprehensive campaign finance law. The law limited how much could be given to and spent by candidates, how much could be spent by independent groups and organizations, required that certain donations and expenditures be disclosed to the public, and created a system of public campaign financing for presidential candidates.

In 1976, in a decision that remains the bedrock of campaign finance law, Buckley v. Valeo, the U.S. Supreme Court essentially accepted half of Congress' attempt to regulate money in politics. The court upheld limits on contributions, disclosure provisions and the public financing program. However, the court struck down limits on spending by candidates and independent organizations. In the court's patchwork opinion it upheld the limits on the total amount of contributions that donors could give to candidates, political party, and other political committees, finding that those limits were a way to prevent the evasion of the direct limits on contributions from individuals to candidates. The court's analysis is less than satisfying on this point. In the almost 40 years since that decision much has changed regarding campaign finance laws. Money now flows relatively freely, and in some cases in undisclosed amounts, through our political system. But the aggregate limits on contributions have stood.

Now the Supreme Court appears poised to change that and the only question for McCutcheon is how big his likely win will be. In order to determine the size and scope of McCutcheon's potential victory, we need to look at the current state of the law.

Al Bahlul, Conspiracy, and the Misuse of History

By Professor David Glazier

This piece originally appeared on Lawfare.

The oral arguments in Monday's D.C. Circuit en banc review of Ali Hamza al Bahlul's military commission conspiracy conviction essentially came down to competing views of history. The government concedes that conspiracy is not a recognized war crime under international law. But rather than accepting chief prosecutor Brigadier General Mark Martins' plan to move forward using more credible charges, the Justice Department argued that the Guantánamo commissions can try conspiracy based on historical U.S. practices. Relying largely on research by prosecution team member Haridimos Thravalos (discussed on Lawfare here and here), the government asserts the existence of a "domestic" U.S. law of war which includes conspiracy to overcome concerns that its initial codification in the Military Commissions Acts of 2006 cannot be applied retroactively. Al Bahlul naturally disagrees.

After reviewing each authority cited by Thravalos' article and the government's briefs, I believe that al Bahlul has the best of this argument for reasons I expressed to the court in an amicus briefand have more fully developed in a draft law review article available here. As I see it, there are two basic flaws in the domestic law arguments:

(1) Virtually every credible reference to the law of war, including the sources the government relies on, describes the law of war as being part of international law. 

(2) None of the cases cited as domestic "law of war" conspiracy prosecutions really stand up to exacting scrutiny. On closer examination, each one seems to (a) represent the prosecution of completed, rather than inchoate, conduct; (b) ground the conspiracy charges in domestic legal jurisdiction under martial law or military government rather than the law of war per se; or, (c) use conspiracy as a mode of liability rather than charging conspiracy as a substantive offense.

Introducing our Inaugural Guest Journalist Blogger

I am excited to announce a new Summary Judgments feature: the Journalist Guest Blogger. We see this as a way for those who report on the law to weigh in on its inner workings. And not many reporters know the law better than Gina Barton, whose investigative reporting on law-enforcement and criminal-justice issues at the Milwaukee Journal Sentinel has earned her a series of prestigious journalism awards. We are proud to count Gina as an alumna of the first class of our Civil Justice Program's Journalist Law School and honored to present her as the first Summary Judgments Journalist Guest Blogger.

-Associate Dean Michael Waterstone

Legal Community Divided over Standard of Review in Suspect's Death

By Gina Barton, Guest Journalist Blogger
Reporter, Milwaukee Journal Sentinel

What is the definition of an intentional failure?

Debate over the answer to that question divides the legal community in Milwaukee after the death of Derek Williams, who died after gasping for breath and begging for help in the back of a Milwaukee police car.

Officials at the Milwaukee Police Department, Milwaukee County District Attorney's office and at the city's civilian Fire and Police Commission all watched a squad video that captured Williams' eight-minute struggle to breathe and concluded officers did nothing wrong.

After an investigation by the Milwaukee Journal Sentinel, which included a 10-month battle for a copy of the video, the medical examiner's office changed its ruling on the manner of death from natural to homicide. As a result of the revised findings, the district attorney re-opened the case, appointing a special prosecutor and calling for an inquest.