Committee Obtains Key Evidence of President Trump’s Attempts to Overturn the 2020 Election | House Committee on Oversight and Reform

Committee Obtains Key Evidence of President Trump’s Attempts to Overturn the 2020 Election | House Committee on Oversight and Reform

Eric Segall: Partisan Politics, Legal Realism, and the Myth of the Unitary Executive ...

Dorf on Law: Partisan Politics, Legal Realism, and the Myth of ...:  By Eric Segall "Only in an Authoritarian Regime is the President Above the Law"                                                  ...

Lawyers can grow, use, and get paid in marijuana: NY State Bar Ethics Opinion 1225 - New York State Bar Association

Not The Onion

Ethics Opinion 1225 - New York State Bar Association

Topic: Counseling clients engaged in recreational marijuana business; accepting partial ownership of recreational marijuana business in lieu of fee; personal use of recreational marijuana.

Digest: In light of current federal enforcement policy, the New York Rules of Professional Conduct permit a lawyer to assist a client in conduct designed to comply with New York’s Recreational Marijuana Law and its implementing regulations, notwithstanding that federal narcotics law prohibits the activities authorized by that law. A lawyer may also use marijuana for recreational purposes and may, when the law becomes fully effective, cultivate an authorized amount of marijuana plants at home for personal use. Finally, subject to compliance with Rules 1.7 and 1.8(a), an attorney may accept an equity ownership interest in a cannabis business in exchange for legal services.

Rules: 1.1(a); 1.2(d); 1.3; 1.16(b)(2); 1.7; 1.8(a); 8.4(b); 8.4(h).

Calls for change: Presidential Commission on Supreme Court - 3rd meeting -

 The Commission heard testimony today from 10 to 6 at its third meeting.

The testimony - and bios of the speakers and Commissioners is available HERE.

I was particularly drawn to the testimony of my Rutgers '73 classmate and President of the Leadership Conference on Civil and Human Rights - and former director of the Minority Students Program at Rutgers. Wade Henderson   in his written testimony sharply criticised Mitch McConnell's conduct regarding Supreme Court nominations - accomplishments that McConnell sees as among his most important.  - GWC

Frank Askin, Fierce Defender of Civil Liberties, 89 - by Sam Roberts //NY Times

Frank as I remember him - exclaiming, thinking out loud, throwing out contending ideas.

Frank Askin, Fierce Defender of Civil Liberties, 89 - by Sam Roberts //NY Times

July 16, 2021

Frank Askin, who enrolled in law school when he was 31 and devoted the next 50 years to defending the civil liberties of Americans suspected of being disruptive radicals, died on July 1 at a hospital in Fort Lauderdale, Fla. He was 89.

The cause was cardiac arrest, his son Jonathan said.

Collaborating with law student volunteers and often with the New Jersey Civil Liberties Union, Mr. Askin won rulings that barred the state police from arbitrarily stopping and searching “longhaired travelers” on public roads during the 1960s; granted protesters the right to distribute leaflets at shopping malls; and required the F.B.I. to purge its investigative files on a 15-year-old high school student who had written to the Socialist Workers Party to gather information for a political science course.

He also won the rights of residents to challenge the rules of their homeowners’ associations and of the homeless to have access to public libraries.

After dropping out of college in Baltimore to become a community organizer and journalist, Mr. Askin was admitted to Rutgers Law School in New Jersey. He joined the faculty immediately after graduating in 1966 and taught there for 53 years. He was the founder of the Rutgers Law Constitutional Litigation Clinic (now the Constitutional Rights Clinic).

How The Roberts Court Laid The Groundwork For 2021’s All-Out Assault On Voting Rights | Talking Points Memo

How The Roberts Court Laid The Groundwork For 2021’s All-Out Assault On Voting Rights | Talking Points Memo

By Orville Vernon Burton and Armand Derfner

|

June 17, 2021 10:00 a.m.

7

This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was excerpted from “Justice Deferred: Race and the Supreme Court” by Orville Vernon Burton and Armand Derfner, published by The Belknap Press of Harvard University Press.

 

When the Supreme Court cut the heart out of the Voting Rights Act in 2013 in Shelby County, Alabama v. Holder, it cleared the way for the avalanche of voting restrictions we are seeing in 2021, in states like Georgia, Florida, Texas, and doubtless more to come. The Shelby County case continues to attract wide attention but few are aware of how the Supreme Court’s 5-4 majority abused the judicial process to reach its result. This excerpt from the new book “Justice Deferred” tells that story.

The VA GOP, Larry Sabato and The Fall of The House of Bothsides | Josh Marshall Talking Points Memo

The VA GOP, Larry Sabato and The Fall of The House of Bothsides | Talking Points Memo

by Josh Marshall

Despite its history and current branding the modern GOP is not just another center-right party of government, such as exists under different labels in every functioning modern democracy. It’s something different. It now functions like one of the revanchist, rightist sectarian parties which also exist in most multi-party European democracies. Under the most generous read they play different roles. The fact that the GOP is substantively the latter (rightist sectarian party) while structurally occupying the space of the former (center-right party of government) is the essence of the United States’ current crisis of democracy.

Voting rights: Civil Rights leaders meet with Biden at White House

 Marc Morial the President and CEO of the National Urban League, Sherilynn Ifill of the NAACP Legal Defense Fund, and other civil rights leaders met today with President Biden and Vice President Harris sounded the alarm about the movement to suppress voting rights.  The effort received a fresh blow as the Supreme Court last week.

I was particularly gratified to hear from Wade Henderson, my classmate and friend from Rutgers Law School who is Interim President and CEO of the Leadership Conference on Civil and Human Rights.

- GWC

 

Presidential Commission on the Supreme Court of the United States; Notification of Upcoming Public Virtual Meeting and Request for Public Comment

Federal Register :: Office of Asset and Transportation Management; Presidential Commission on the Supreme Court of the United States; Notification of Upcoming Public Virtual Meeting and Request for Public Comment

US bishops' theology is the true scandal in Philadelphia foster care case | National Catholic Reporter

US bishops' theology is the true scandal in Philadelphia foster care case | National Catholic Reporter

by Paul A. Ford, Jr. (Assistant Professor - Theology - St. Norbert College, WI)

When issues arise involving LGBTQ+ people in the Catholic Church, the fear of giving scandal generally is not too far behind. Scandal, as defined in the Catechism of the Catholic Church, typically refers to actions or behaviors that lead others to sin. And in the minds of the U.S. bishops' conference, the mere suspicion that same-sex couples engage in behavior that violates church teaching is enough, apparently, to lead others to sin (though what sin is had in mind is not always readily discernible).

The results of this by now are well-known. Because of the potential to give scandal, LGBTQ+ people are fired from their jobs as Catholic educators when they are suspected of living in same-sex relationships. They are advised not to be out in their parishes, and if they are, they can be denied the opportunity to serve in ministries. In the particularly notable case of Bishop Thomas Paprocki's 2017 guidance to his diocese in Springfield, Illinois, persons who live openly in same-sex relationships "giving public scandal to the faithful are to be deprived of ecclesiastical funeral rites."

This is the theological foundation that animates the practice of Philadelphia's Catholic Social Services, which refuses to consider same-sex couples as potential foster parents. Arguing that such a practice is consistent with its Catholic beliefs and should therefore be protected as part of the organization's right to religious liberty, Catholic Social Services was vindicated in a unanimous Supreme Court decision June 17 that maintained that the city of Philadelphia acted unconstitutionally when it stopped referring children to Catholic Social Services upon discovering that the agency would discriminate against same-sex couples.

Rather than focusing on legal questions, I want to focus on theological ones and say the following unequivocally: The scandal in the American Catholic Church right now is the position of the U.S. Conference of Catholic Bishops that seeks to expel lesbian and gay people in same-sex relationships from Catholic institutions. Indeed, what we are witnessing in that position is the separation of lesbian and gay couples from Catholic life unless they are willing to abandon their committed relationships, which is a form of homophobia.

KEEP READING

Laissez-faire judges and Catholic social teaching | Patrick Hornbeck - National Catholic Reporter

Laissez-faire judges and Catholic social teaching | National Catholic Reporter

by Patrick Hornbeck

U.S. courts are increasingly leaving to religious believers and institutions the decision whether or not to obey certain laws that apply to most everyone else. One way to view this trend is as an overcorrection on the part of judges who are striving at all costs to avoid entangling courts and churches. But another perspective — not incompatible with the first — is to see an opportunity for believers to hash out some of the most important moral and ethical issues of our time within, and not just outside, religious spaces.

How did we get here? In the past few years, the U.S. Supreme Court has handed down a series of rulings that represent a laissez-faire approach, dodging the biggest questions or else deferring to religious institutions in controversies involving faith. First, in 2018 the justices decided Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, dismissing a civil rights complaint against a Colorado baker who refused to make a custom cake for a same-sex couple celebrating their marriage. The court's reasoning, 7-2, was that the state civil rights commissioners who originally heard the case had been hostile to the baker's beliefs.

Then in 2020, the court decided, again 7-2, that two Catholic schools in the Archdiocese of Los Angeles were exempt from laws prohibiting discrimination in employment on the basis of age and disability. In Our Lady of Guadalupe School v. Morrissey-Berru, the court found that two grade-school teachers were "ministers," and therefore, under the First Amendment, the government could not enforce antidiscrimination laws because to do so would interfere with the church's right to choose who teaches the faith.

In the fall and winter of the pandemic, after Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg, the court invalidated several sets of state COVID-19 regulations because they treated religious institutions disfavorably in comparison to what majorities of the justices believed were counterpart secular businesses.

And then two weeks ago, as it neared the completion of its annual term, the court unanimously concluded that the city of Philadelphia could not require Catholic Social Services to place foster children with same-sex couples. In a narrow opinion, Chief Justice John Roberts wrote that because the Philadelphia law at issue allowed case-by-case exemptions, the city had to grant exemptions for religious reasons too.

Lower courts have followed suit with similar decisions, including one involving a Catholic university whose faculty attempted to unionize.

KEEP READING

ACLU GC Frank Askin, Rutgers Constitutional Scholar, Champion of the Underdog | New Jersey Law Journal

Frank and his wife Marilyn were devoted supporters of Rutgers Law School..

I was Frank's research assistant as a rising 2L in 1971.  We worked that summer on the police surveillance case Anderson v Sills   The next year I worked with him on the Supreme Court brief in Tatum v. Laird. which challenged Pentagon surveillance of lawful political activity.

Frank had been a journalist. He had a weekly column in the Newark Evening Nes.  He asked me to draft a few columns but didn't think I had the knack.  Maybe I didn't at the time.

In 1982 I represented Frank in a ballot position challenge against Essex County Clerk Nick Caputo whose lottery always gave the incumbent Line A.

Frank's hopeless crusade that year was to unseat Congressman Joseph Minish - a blue dog who touched every base that needed to be touched. - GWC

Colleagues Remember ACLU GC Frank Askin, Rutgers Constitutional Scholar, Champion of the Underdog | New Jersey Law Journal

by Charles Toutant

Frank Askin, a Rutgers Law School professor for 50 years and a longtime general counsel of the American Civil Liberties Union, died at age 89 on July 1.

He spent his career fighting for individual rights, winning courtroom victories for activists who sought to distribute leaflets in shopping malls and for condominium residents seeking to post political signs in front of their homes. In one of his best-known cases, he won a ruling in 1991 for Richard Kreimer, a homeless man banned from the Morristown public library because his body odor was deemed offensive, although that decision was overturned on appeal.

“The common thread is everybody has the First Amendment right to free speech and for Kreimer, the First Amendment right to information. He was always for the underdog,” said Bruce Rosen of McCusker, Anselmi, Rosen & Carvelli in Florham Park, who was then a fledgling attorney who worked with Askin on the Kreimer case.

Askin graduated from Rutgers Law School in Newark with highest honors in 1966 and was directly appointed to the faculty, where he taught labor law, election law and constitutional law. In 1970, he established the Constitutional Litigation Clinic.

Before law school, Askin worked as a reporter for The Record of Hackensack and other papers and had a stint as executive director of the Bergen County Democratic Party. He later ran for Congress—without success—in 1982 and 1986.

“I have always viewed myself as a public-interest lawyer, a calling that is unique to the United States, where our constitutional system has made courts of law into potent vehicles of change,” he wrote in “Defending Rights, A Life in Law and Politics,” his 1997 autobiography.

‘Trained generations’

A 2016 interview in the New Jersey State Bar Association’s Bar Report section of the Law Journal, asked about the high points of his career.

“My favorite thing was teaching my students how to become human rights lawyers,” Askin responded. “I’d bring second- and third-year law students into the courtroom with me and we’d take on controversial cases—cases that dealt with issues like government surveillance, racial profiling, affirmative action litigation, police misconduct.”

“Frank Askin has trained generations of public interest lawyers to use the law as an instrument of social justice, and is the senior mentor of much of the public interest bar in New Jersey,” said Ronald Chen, a professor and former co-dean of Rutgers Law School, in a 2015 profile of Askin in the Law Journal.

And Chen said in a Rutgers obituary of Askin that ”It was my honor to follow him in so many ways: we both were students (at different times) and then later professors (happily for me, often at the same time) here at the Law School. I was his colleague on the ACLU National Board for many years (where the ACLU President jokingly referred to us at Board meetings as ‘the Jersey Boys’), and I now hold the office that he held for decades, that of ACLU General Counsel. It was my privilege to work with him in the Constitutional Litigation Clinic on several difficult and impactful cases,” Chen said.

“He first taught me the benefits of relying on the New Jersey Constitution as the often preferred tool over the United States Constitution in expanding the reach of individual civil liberties, particularly speech,” Chen said.

Recalling other esteemed faculty members of Rutgers’ past, Chen asked, “Will we ever see their like again? Of course the answer is yes. For every great institution, as one generation passes, a new one must rise to take its place. But I confess that right now I personally cannot imagine holding any group of people in any higher awe and esteem as I do Rutgers Law’s ‘Greatest Generation,’ with Frank Askin leading the charge.”

Xu Ninglan: China's Sexual harassment law reaches a landmark in new civil code

 

Xue Ninglan: The Chinese Road to Preventing Sexual Harassment: Doctrine, Legislation and Judgment

[Google translate]

Abstract: Since the Fourth World Conference on Women, China’s progress in preventing sexual harassment has been mainly reflected in three levels: doctrine, legislation, and justice. Qualitative and quantitative surveys initiated in different years revealed the social harmfulness of sexual harassment and the importance of defining the concept of sexual harassment and establishing a prevention mechanism. The localized research on the topic of sexual harassment requires both comparative analysis and identification from an international perspective, and based on local practice, exploring local social governance models from legislative evolution and judicial practice. From the Fourth World Conference on Women to the present, China's legal system for the prevention and control of sexual harassment has grown from scratch, has been continuously improved, and has gradually become a system. In this process, the breakthrough in the provisions on sexual harassment in the Law on the Protection of Women's Rights and Interests is a historic turning point, and the establishment of relevant provisions in the Civil Code is of milestone significance. Separately enumerating sexual harassment damage liability disputes as the cause of civil litigation is more relevant to the nature of the tort of sexual harassment, which is conducive to the judicial accurate determination of the nature of the case and the timely protection of the rights and interests of the victims.

Originalism as Myth - Eric Segall

 

A driving force in the ascendance of "originalism" as a mode of constitutional interpretation is that the document has achieved scriptural status, which enables you to put whatever meaning you want into it while claiming that you are following the command of ubermenschen.

So the anonymous op-ed pieces by Madison, Hamilton and Jay known as the Federalist Papers come to have the same authority as the Greek translations of the original Aramaic recollections attributed to men whose names are transliterated as Matthew, Mark, Luke, and John.  I find their message to be inspirational: particularly to love one's neighbor as one's self.  That message can, of course be abused, as by Stephen Stills and CSNY  who took it to mean "if you can't be with the one you love, love the one you're with".  And so it goes with constitutional interpretation.

Georgia State law professor Eric Segall addresses the originalism myth on Independence Day - itself encrusted in myth.  - GWC

Originalism as Myth - Eric Segall

By Eric Segall

Professor Stephanie Barclay is an associate Professor of Law at Notre Dame. She represents a newer, younger breed of originalist scholar and recently explained why she favors originalism in a longish op-ed in Utah's "longest-running news organization...and the state’s oldest continuously operating business." 

I've met Professor Barclay and she is a charming, smart, erudite academic who has written excellent scholarship about law and religion and other constitutional matters. So there is nothing personal when I say that her op-ed reflects accurately the current sorry state of dominant thought among many originalist academics. Her op-ed shows how originalism these days is chock full of myths.

The Title of Barclay's op-ed is "Why Constitutional Originalism is not Partisan: Originalism Teaches that the Constitution’s Meaning is Fixed at the Point it was Ratified." She begins by emphasizing the fixed meaning point:

When asked to explain [originalism], then-Supreme Court nominee Amy Coney Barrett explained, '...that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.'

Supreme Court Justice Neil M. Gorsuch wrote in Time magazine that the originalist school of thought 'seeks to conserve the meaning of the Constitution as it was written.'

Put another way, originalism teaches that the Constitution’s meaning is fixed at the point it was ratified by 'We the People.' And when that meaning can be discerned, a judge’s job is to faithfully apply that law to the case at hand. Originalists argue that this principle is necessary to have a 'government of laws, not of men.'

Virtually all originalists today agree that the one thing the many different families of originalism have in common is the bottom-line assumption that the meaning of the Constitution is fixed when ratified. But this bedrock premise is demonstrably false when it comes to virtually all constitutional litigation and even constitutional disputes outside the courts. As Professor Richard Fallon of Harvard Law School argues in an excellent recent paper, constitutional provisions simply do not "have a single, factually identifiable, original linguistic meaning."

What does it mean to say the meaning of the Constitution is fixed at ratification? It suggests that judges don't create constitutional law, they simply find it in the fixed original meaning of the Constitution's text. Sure, history is hard, most originalists concede, but at least it provides an anchor that will dissuade judges from imposing their own personal values on the rest of us. 

In her op-ed, Barclay quotes Justice Barrett, who said that she favors originalism because “Courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people. The public should not expect courts to do so, and courts should not try.” Barclay adds that "if an originalist judge likes and politically agrees with all of her rulings, that almost certainly means she’s not doing it right."

The problem with all this, as Fallon argues in his article, is that most constitutional problems involve imprecise phrases like “equal protection,” “due process,” “free exercise,” "freedom of speech," and “establishment.” These kinds of phrases don't have fixed meanings when applied to hard cases. That is why the New Originalists, in the words of Professor Ilan Wurman in his book on Originalism, "recognize that original meaning often requires that the application of the text evolves as modern circumstances evolve.” Similarly, in the words of originalist Mike Ramsey, "[w]hile original public meaning methodology must apply the fixed meaning of the constitutional term, changes in knowledge might change the application of that fixed meaning to particular facts."

KEEP READING

Faggioli: Beyond the US Bishops vs. Joe Biden: The Catholic crisis in the USA - Theos Think Tank

The Catholic Church in the U.S. has suffered huge - largely self-inflicted - wounds.  Its conservative leaders raised the fight against women's right to an abortion to a "preeminent" level.

The hopeful Church of Vatican II became a chastising church. 

- GWC

Beyond the US Bishops vs. Joe Biden: The Catholic crisis in the USA - Theos Think Tank - Understanding faith. Enriching society.

by Massimo Faggioli

Professor of Theology and author Massimo Faggioli outlines the positioning of US Catholicism in relation to the global Church. 26/06/2021

1.     A multi–layered Catholic crisis in the USA 

On January 20th, Joe Biden was sworn in as the 46th President of the United States, making him the second Catholic to hold the office – the other being John F. Kennedy. In the wake of Biden’s election, a storm has been brewing in the triangle between Biden, the US bishops, and the Vatican. It’s not merely a clash between different political cultures, but rather lays bare the heart of the divisions that are affecting the Catholic Church in the USA.

In terms of global Catholicism, the US is amongst the biggest players – in population, theological and cultural production, number of men and women in ministry, financial resources, media outreach, and missionary potential – and so events there will send shockwaves around the world . Despite its size and wealth, US Catholicism is a giant in crisis, as we have seen since 2013, when important sectors of the clerical and lay Catholic leadership in the USA became the center of the opposition to Pope Francis for reasons that are both theological and non–theological. So what is this crisis, and how did we arrive here? 

There are three different kinds of crisis that are distinct but not separate. There is a crisis of ecclesial order: a vacuum not only in the authority, but in the legitimacy of the institutions of the Catholic Church, both structural institutions (the Bishops, the clergy) and non–structural (the priesthood, theology). There is a crisis of political order of which Catholicism in the USA is part: from the assault of Capitol Hill of January 6, 2021 to the ongoing attacks against voting rights, the leaders of Catholicism in the USA are reluctant to defend democratic and constitutional values. There is a crisis of geopolitical order: what is the role and position of US Catholicism in the world of today – both in terms of the secular–political world after the Cold War and War on Terror and also in the Catholic global sphere, with a traumatic  interruption of the US bond with the Vatican, and weakened relations with other areas of the world). 

2.     From JFK and the “Catholic Sixties” to Joe Biden 

What led to this situation in US Catholicism is historical development over the last sixty years, since the election of the first Catholic president, John F. Kennedy in 1960. This came after the debacle of the first Catholic candidate, Al Smith, who ran in 1928 and was crushed, thanks to a vicious and racist anti–Catholic campaign, waged (among others) by the KKK.

The Sixties was the beginning of the decline of the seamless confluence of Catholicism – for long assumed to be incompatible with American democracy – into the mainstream. It was JFK’s Catholicism itself that was the problem, not what kind of Catholicism (conservative or progressive) like Joe Biden’s in 2020–2021. Kennedy overcame that challenge by declaring his Catholicism private and irrelevant for his politics both domestically and internationally. The public split among Catholics created by Vietnam, the contraceptive pill, and the legalization of abortion now makes that option impossible for Biden.

In the sixties, thanks to the four–session assembly of all the bishops at the Second Vatican Council in Rome (1962–1965) global Catholicism tried to declare peace with modernity, with the Council bringing in changes to the liturgy, and a renewed spirit of ecumenicism, alongside reaffirming Catholic tradition. But the peace was fragile –  like “dancing on the edge of a volcano”, as American Jesuit Stephen Schloesser put it a few years ago. Until the early 1980s, the US Catholic leadership (bishops and intellectual leaders) still pursued the project of modernization and adaptation to social and cultural modernity – for instance, the pastoral letter of the US bishops of 1983 on peace and war, and of 1986 on economic justice. 

The delayed effects of the election of John Paul II (1978–2005) put a stop, in the mid–1980s, to that project of Catholic progressivism: the age of Ronald Reagan and John Paul II on the transatlantic axis, and of Reagan and Thatcher’s ‘special relationship’ between the US and UK.  This inaugurated a second phase that saw the rise of a new movement – neo–conservative Catholicism, an American endorsement of John Paul II’s effort to moderate the progressivism of the interpretations of the Second Vatican Council and of his focus on life issues as the decisive battle for the future of the church and of modernity. 

The traumatic opening of the new millennium in the USA, shaped by 9/11 and the revelations on sex abuses in the Church in 2001–2002, contributed to a mutation in the neo–conservative Catholic project of the 1980s–1990s: from neo–conservatism to neo–traditionalism. The problem is not, as it is for neo–conservative Catholics, merely some progressive interpretations of the Second Vatican Council: for Catholic neo–traditionalists, the problem is the teaching – indeed, the existence – of Vatican II itself. 

KEEP READING

Supreme Court - two strikes at democracy on the last day

When deploying the broad principles of laws and constitution the judges on the Supreme Court are convinced that they are guided by principle.  But principles are afforded different weight.

On the last day of its term the court's conservative majority demonstrated that with particular clarity.  The net result was a decision that reduced the number of minority voters, and another that shielded from disclosure wealthy contributors to advocacy organizations.  A partisan result achieved in the neutral language of the law.

In a voting rights case the court decided that burdens placed on voting in the name of ballot security required no proof that there is a present threat.  Burdens that fall on voters, even if racially disparate, are no problems if they are "mere inconveniences" or if intervention would burden the states - to which Constitution assigns the principal right to organize elections.

Although most Americans would readily affirm the right to vote as at the heart of democracy (that's how we chose class presidents) that's not the way the court or Constitution see it.  In 1789 the national government formed  but slaveholding states in particular wanted to keep in that way.  So they gave white men a bonus - 3/5 of every slave was added to the state's census population so that slave-holding states would be disproportionately represented in the House of Representatives.  There was then, of course, no national right to vote. Nor is there now.  It is left primarily to the states.

That changed after history's then bloodiest war when the post Civil War 13th Amendment made every African American count as a full person for apportionment.  But every Black vote suppressed was a step to restoring the white male advantage.  The fewer Black votes the more each white vote counted.  The 15th Amendment did not create a national right to vote, but it did bar discrimination on the basis of race and against the formerly enslaved.  Later the 19th Amendment would extend the franchise to women, though of course, it was white women who principally benefited since Black women and other minorities - Hispanic, Indian, and Asian were the victims of discrimination.

The United States Supreme Court was worse than useless in fighting for the right to vote.  So long as a burden was facially neutral it stood, though in 1944 the Supreme Court finally blocked the "white primary" system.  But few Black people were able to vote until three epochal moves - the Voting Rights Act of 1965, the 24th Amendment eliminating the poll tax (later applied to the states) , and the 26th Amendment (lowering the voting age to 18).

One might think that this history would lead to a Supreme Court opinion placing the right to vote at the center of our constitutional protections.  But no, not in Brnovich v. Democratic National Committee.  There the Supreme Court by a 6-3 vote decided that "mere inconveniences" do not impermissibly burden the right to vote.  Thus reduced mail ballots, limits on time, place, and manner (fewer polling places, no drop boxes, no Sundays, no delivering groups of ballots) even if likely to reduce the number of Black, Latin, poor, or elderly people who vote will pass muster.  Unless, of course, discriminatory intent is manifest - but the post-Reconstruction legislators learned to evade that by tricks like `grandfather clauses' and literacy tests. The court - in an opinion by Samuel Alito - achieved what John Roberts had attempted in 1982 when working in the Reagan administration - blocking the "effects" test. 

In the Arizona case - Brnovich - the state's asserted interest in preventing election fraud was sufficient - even without any evidence that such abuses have occurred.  Maximizing voting opportunities does not appear among the values the Supreme Court listed as factors for judges to consider in reviewing challenges to restrictive state voting laws.  States have rights too.

The contrast in the right of people to anonymously speak by donating large amounts of money to advocacy groups is dramatic.  As Antonin Scalia said in McConnell v. FEC  (2003) there is a "First Amendment right to spend money for speech".  Money talks, it Is speech.  So in Americans for Prosperity Foundation v. Bonta, Attorney General  John Roberts, writing for the court, struck a California law compelling disclosure of major donors.  Such laws burden speech and are subject to "exacting scrutiny"

The contrast is dramatic: voting can be subject to "time, place and manner" restrictions, mere inconveniences are OK, and hypothetical evils will weigh against actual burdens - favoring the state's asserted interests.  But wealthy donors spending money for advocacy "charities" need not show that there is any reason for them to fear disclosure.  The idea of "exacting scrutiny" as protection against compelled disclosure is derived from the 1958 case NAACP v. Alabama.  As John Roberts acknowledged that was a case of "chilling effect in its starkest form" - a time of massive resistance to the courts' desegregation orders.  No such fear could be demonstrated by AFP donors, yet the rule was mechanically applied in favor of wealthy donors in language that threatens many state and federal laws on disclosure of election contributions.

The Court's six member conservative majority has, thus, effectively repudiated the majority in McConnell v. FEC who began

More than a century ago the sober-minded Elihu Rootî advocated legislation that would prohibit political contributions by corporations in order to prevent the great aggregations of wealth, from using their corporate funds, directly or indirectly, to elect legislators who would vote for their protection and the advancement of their interests as against those of the public.

Election law expert Richard Hasen elaborates. - GWC

Opinion | The Supreme Court Is Putting Democracy at Risk - The New York Times

By Richard L. Hasen (UC Irvine)

In two disturbing rulings closing out the Supreme Court’s term, the court’s six-justice conservative majority, over the loud protests of its three-liberal minority, has shown itself hostile to American democracy.

In one case, Brnovich v. Democratic National Committee, the court has weakened the last remaining legal tool for protecting minority voters in federal courts from a new wave of legislation seeking to suppress the vote that is emanating from Republican-controlled states. In the other, Americans for Prosperity v. Bonta, the court has laid the groundwork for lower courts to strike down campaign finance disclosure laws and laws that limit campaign contributions to federal, state and local candidates.

The court is putting our democratic form of government at risk not only in these two decisions but in its overall course over the past few decades.

KEEP READING

How to Understand the Trump Tax Indictment | Washington Monthly

How to Understand the Trump Tax Indictment | Washington Monthly

by Jen Taub (Western New England College School of Law)

Former President Donald J. Trump’s business organization ran a fifteen-year, illegal off-the-books employee compensation scheme implemented by its chief financial officer, Allen Weisselberg, according to a fifteen-count New York County grand jury indictment unsealed on Thursday. Subtle hints in and surrounding this document foreshadow future legal trouble for Mr. Trump himself. With the grand jury expected to meet three times per week for much of the year, we should expect a superseding indictment by fall, one that could include other executives in the Trump Organization including the president’s sons, Donald Trump, Jr., and Eric Trump, as well as the former president himself 

In the days leading up to the indictment being unsealed and Weisselberg being brought before the court in handcuffs, defense lawyers tried to brush it off as small potatoes. Yet, the crimes alleged are quite serious, including a scheme to defraud, conspiracy, grand larceny, criminal tax fraud, and falsifying business records. Weisselberg, 73, appeared before the judge on Thursday and pled not guilty to all charges. A conviction could lead to many years in state prison.

Not only did he apparently effectuate what prosecutor Carey Dunne at the arraignment called a “sweeping and audacious illegal payment scheme,” he was one of its biggest beneficiaries. The indictment reveals that Weisselberg enjoyed luxury automobiles, a swanky Manhattan apartment, private school tuition, and more, all provided by his employer, without paying a penny from his own pocket and without declaring any of it as income. But he was not the only beneficiary. Weisselberg, who has worked for the Trump family for half a century, helped the Trump Organization pay other executives off the books as well.

New York State’s Trump Investigation - Brookings Institution Special Report

New York State’sTrump Investigation:An Analysis of the Reported Factsand Applicable LawBy Norman Eisen, E. Danya Perry,Donald Ayer, and John R. Cuti

The Brookings Institution

 

Working from the public record three distinguished lawyers have identified three areas of vulnerability for Donald J. Trump and his company The Trump Organization.  The broad brush strokes are hush money allegations, fringe benefits and other tax issues, and misrepresentations to lenders.