Politics – Page 136 – dwkcommentaries

Bipartisan Call for Reform of U.S. Elections

On January 22^nd a bipartisan presidential commission unanimously recommended many changes to U.S. election laws and procedures to reduce lines and wait times, speed counting, and end confusion that can lead to delays and disenfranchisement.

Here are some of the recommendations of the Presidential Commission on Election Administration:

1. Expand online voter registration.

2. Expand states’ sharing of voter rolls to prevent registration in more than one state.

3. Plan resources to cut voter wait time.

4. Expand early voting.

5. Hold elections in schools.

6. Adopt uniform guidelines for voting machine technology.

7. Conduct comprehensive, public audits of voting machines after every election.

8. Improve transfer of personal data from departments of motor vehicles to election officials.

9. Develop professional, nonpartisan teams of election officials.

10. Recruit new and more diverse poll workers, including those with foreign language abilities.

11. Train the poll workers.

12. Provide waiting voters with information to ensure they have the proper identification and are at the correct polling place.

13. Use electronic poll books with search function.

14. Provide online absentee ballots.

These recommendations echo some of the suggestions previously made in this blog.

Report for dwkcommentaries–-2013

This blog, which started on April 4, 2011, reports the following activity through December 31, 2013:

	POSTS	COMMENTS	VIEWS
2011	190	26	9,190
2012	179	170	51,161
2013	86	708	49,100
TOTAL	455	904	109,451

The busiest day for 2013 was December 2 with 282 views. For 2013 as a whole the viewers came from 174 countries with most from the U.S.A. followed by Canada and the United Kingdom. This blog has 392 followers (Facebook, 269; direct, 103; Tumblr, 2; and commentators, 18).

The following were the most popular posts in 2013:

Great Britain’s Deteriorating Relationship with Her American Colonies, 1765-1775 (July 16, 2012);
The American Revolutionary War’s Battle of Bunker Hill, June 17, 1775 (July 30, 2012);
The American Revolutionary War’s Battles of Lexington and Concord, Massachusetts, April 19, 1775 (July 2012);
The American Revolutionary War’s Siege of Boston, April 19, 1775–March 17, 1776 (July 27, 2012); and
The American Revolutionary War’s Campaign for New York and New Jersey, March 1776–January 1777 (August 2012).

As indicated in detail on Page: List of Posts and Comments to dwkcommentaries–Topical, the posts and comments for 2011-2013 fell into the following categories:

Personal
Higher Education
Religion/Christianity
Lawyering (practice of law)
U.S. History
U.S. Politics
El Salvador
Cuba
Human Rights Treaties & U.N. Human Rights Council
Refugee and Asylum Law
Alien Tort Statute & Torture Victims Protection Act
International Criminal Justice
International Criminal Court
Miscellaneous

The blogger would appreciate receiving substantive comments on his posts, including corrections and disagreements.

Over the last half of the year this blogger was preoccupied with selling his suburban town house, buying and remodeling a downtown condo and moving. In this period he also was very discouraged about U.S. political developments. As a result, he was unable to write any posts after September 5th. In 2014 he plans to gradually resume his blogging.

Former Salvadoran Colonel Inocente Orlando Montano To Serve 21 Months in U.S. Prison

On August 27, 2013, the federal court in Boston, Massachusetts sentenced Inocente Orlando Montano to 21 months in prison for violating U.S. immigration laws.

To obtain certain relief under those laws, Montano had stated to U.S. immigration officials that he had never served in any foreign military service, had never received military weapons training and had never been involved in persecuting others. A year ago he pleaded guilty to three counts of a federal indictment for those statements.[1]

In fact, Montano had served in the Salvadoran military, had received such training and had been involved in persecuting others. The record in the U.S. criminal case established the following:

During the Salvadoran Civil War, Montano quickly rose to the highest echelon of its security forces, and the forces he commanded were responsible for death squad activities and numerous other human rights abuses. According to expert witness, Dr. Terry Karl, there were at least 1,169 such violations, including 65 extrajudicial killings, 51 disappearances and 520 cases of torture. His appointment as Vice Minister for Public Security coincided with “a strong resurgence [in such crimes] . . . aimed at prominent civilians and civilian groups.” [2]
Before the November 1989 murder of the Jesuit priests in El Salvador, Montano was an active participant in trying to publicly discredit the priests, including publicly calling Ignacio Ellacuria, the Jesuit Rector of the University of Central America (UCA) who was one of those murdered, as one “fully identified with subversive movements.”
In November 1989, according to the 1993 report of the Truth Commission for El Salvador, Montano was a member of a “small group of elite officers, one of whom gave the official order to ‘kill Ellacuria and leave no witnesses.” (Later in 1993 the Ad Hoc Commission, which was established by the Peace Accords that ended the Salvadoran civil war, recommended that virtually the entire military command, including Montano, be removed from office.)[3]
After the murder of the Jesuits, Montano aided the cover up of the involvement of the security forces in this crime. He publicly insisted that the FMLN, not the security forces, had committed the crime. Although Montano initially was responsible for investigating the crime, he did not do anything to do so. He also pressured lower level military officers not to disclose the orders to kill Ellacuria and leave no witnesses to the Salvadoran court in charge of investigating the crime. In addition, Montano refused to cooperate with, or be interviewed by, the investigating judge, and in 2000 publicly rejected the claim that he was the indirect author of the murders, rebuked the Jesuits at UCA of “raking up the past” and called the reopening of the case as “orchestrated by the left” as part of “an international leftist plan.”[4]

Moreover, in May 2011, Montano was one of 20 former Salvadoran military officials who were subjects of arrest warrants by a Spanish court investigating the murder of the Jesuit priests, and in December 2011 the Spanish court issued a request to the U.S. for Montano’s extradition to Spain to face trial on those charges.[5]

The 21-month prison sentence was imposed by U.S. District Judge Douglas P. Woodlock.

The Judge noted that the site of the sentencing hearing–the Boston federal courthouse–was named after former U.S. Congressman John Joseph (“Joe”) Moakley, who had lead a congressional investigation of the murders of the Jesuits and whose words from a speech he had given at the site of the Jesuits murders had been engraved on the front of the courthouse: “There is no such thing as half justice. You either have justice or you don’t. You either have a democracy in which everyone–including the powerful–is subject to the rule of law or you don’t.”

Judge Woodlock closed the sentencing hearing by quoting the final summation of Justice Robert Jackson in the 1946 Nuremberg trials of Nazi perpetrators:

“These defendants now ask this Tribunal to say that they are not guilty of planning, executing, or conspiring to commit this long list of crimes and wrongs. They stand before the record of this Trial as bloodstained Gloucester stood by the body of his slain king. He begged of the widow, as they beg of you: ‘Say I slew them not.’ And the Queen replied, ‘Then say they were not slain. But dead they are…’ If you were to say of these men that they are not guilty, it would be as true to say that there has been no war, there are no victims, there has been no crime.”

Judge Woodlock then added, “In El Salvador, “there was a war, there are victims, and there has been a crime.”

[1] A prior post reported on early developments in the U.S. criminal case against Montano.

[2] Dr. Karl’s expert report is available online.

[3] A prior post discussed the actual murders of the Jesuits along with their housekeeper and her daughter while another post reviewed the Truth Commission’s report regarding same.

[4] The attempted cover up of the Salvadoran military’s planning and commission of the murders was discussed in a prior post while another post reviewed the Salvadoran criminal case about the murders.

[5] A prior post covered the Spanish court’s arrest warrants; another, developments in that case; and another, the requests for extradition. After Montano’s sentencing, the Center for Justice and Accountability, which backed the case against Montano, said that the U.S. has indicted that it would be amenable to his extradition to Spain after he had served his U.S. sentence.

CJA re Jesuits–http://cja.org/article.php?list=type&type=84

Enforcement– http://dwkcommentaries.com/2013/04/14/enforcement-of-international-human-rights-norms-with-u-s-immigration-laws/

Is This Blog’s Proposed New Federal Voting Rights Act Constitutional?

A prior post proposed a new federal voting rights act that would (a) make every U.S. citizen (including children and felons) eligible to vote; (b) require every citizen to vote; (c) forbid any racial discrimination in voting; and (d) simplify voting laws and procedure. Left unadressed was the constitutionality of such a statute.

Relevant Constitutional Law

Such a constitutional analysis is suggested in a recent article by Jesse Wegman, an experienced lawyer and journalist and a member of the New York Times’ Editorial Board, and this post draws from his article.

We start with the U.S. Constitution’s Elections Clause (Article I, Section 4). It provides: ” The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

According to the U.S. Supreme Court in various cases, the words “Times, Places and Manner” in this Clause are “comprehensive words,” which “embrace authority to provide a comprehensive code for congressional elections.” The Clause functions as “a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only as far as Congress declines to pre-empt state legislative choices.” Indeed, the congressional power under the Clause “is paramount and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no further, the regulations effected supersede those of the State which are inconsistent therewith.”

On the other hand, the Supreme Court has held in various cases, the Clause does not empower Congress to regulate who may vote in congressional elections. Instead, Article I, section 2(1) of the Constitution states, “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” (Emphasis added.) The same criteria for senatorial elections are set forth in the Seventeenth Amendment to the Constitution.

These constitutional provisions were the bases for the Supreme Court’s decision, 7 to 2, on June 17, 2013, in Arizona v. Inter Tribal Council of Arizona to invalidate an Arizona statute that required voter-registration officials to reject any application for registration that did not include documentary evidence of U.S. citizenship even though a Federal Form for such registration under the National Voter Registration Act that states are required to “accept and use” does not require such documentary evidence.

The opinion for the Court was written by Justice Antonin Scalia and was joined by Chief Justice John Roberts and Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justice Anthony Kennedy joined the opinion in part and filed his own concurring opinion. [1] It was from Justice Scalia’s opinion that the foregoing summary of prior Supreme Court precedents was drawn.[2]

Application of the Constitutional Law to the Proposed Federal Voting Rights Act

Clearly the proposed statute’s making every U.S. citizen, including children and felons, eligible to vote would be unconstitutional. It could be rescued on the federal level only by an amendment to the U.S. Constitution. Individual states, however, could enact such laws.

The same conclusion would probably also apply to the proposal that every U.S. citizen be required to vote.

However, the various suggestions in the prior post for simplifying voting laws and procedure should be constitutional as would the ban on racial discrimination in voting.

Furthermore, I join Mr. Wegman in concluding that the Elections Clause could be the constitutional basis for “[s]trong federal laws . . . [to] help ensure voting fairness to all voters, especially when a state law appears neutral but has serious partisan or racially discriminatory effects. For instance, a state’s voter ID law might put up hurdles for poor or young voters, who may be disproportionately minority and Democratic, or for elderly voters, who lean Republican.” In addition, even though the Elections Clause “allows Congress to set rules only for federal elections, . . . those laws almost always guide state election practices.”

[1] Associate Justices Clarence Thomas and Samuel Alito filed dissenting opinions in Arizona v. Holder.

[2] Only eight days later, Justice Scalia was in the majority in Shelby County v. Holder that, 5 to 4, invalidated an important provision of the federal Voting Rights Act. This case has been discussed in a prior post while another post summarized the criticism of that decision by former Supreme Court Justice John Paul Stevens.

Leaders of U.S. Commission on International Religious Freedom Criticize U.S. Government for Alleged Failure To Promote Religious Freedom

The top officials of the U.S. Commission on International Religious Freedom –Its Chairperson, Robert P. George, and its Vice Chairperson, Katrina Lantos Swett –recently have been entering the public forum to discuss that freedom. A prior post reviewed their recent essay in the Wall Street Journal entitled “Religious Freedom Is About More Than Religion.”

The Criticism

Now in the Washington Post they have criticized the U.S. Government for its alleged failure to comply with the requirements of the International Religious Freedom Act of 1998 (“the Act“). They assert that the statute requires all administrations to conduct annual reviews and designations of “countries of particular concern,” defined as those governments engaging in or allowing ‘systematic, ongoing, egregious” violations.’” Unfortunately, they continue, “neither Republican nor Democratic administrations have consistently designated countries that clearly meet the standard for offenders.”

Now, the Commission leaders say, “a key deadline for action [is] arriving this month, [and] it is time to confront this unwise failure to act.”As a result, they ask Congress to press the executive branch “to apply the International Religious Freedom Act fully and the country designation process decisively.”

Analysis

George and Swett apparently refer to section 402 (b)(1) (A) of the Act, which states:

“Not later than September 1 of each year, the President shall review the status of religious freedom in each foreign country to determine whether the government of that country has engaged in or tolerated particularly severe violations of religious freedom in that country during the preceding 12 months or since the date of the last review of that country under this subparagraph, whichever period is longer. The President shall designate each country the government of which has engaged in or tolerated violations described in this subparagraph as a country of particular concern for religious freedom.”

Guidance on this requirement is provided in section 402(b)(1)(B) of the Act, which says that such presidential review “shall be based upon information contained in the latest [State Department} Country Reports on Human Rights Practices, the [State Department’s] Annual Report [on International Religious Freedom], and on any other evidence available and shall take into account any findings or recommendations by the [U.S.] Commission [on International Religious Freedom] with respect to the foreign country.”

Given these statutory provisions, I think George and Swett erroneously say that various administrations have failed to comply with section 402 (b)(1)(A) of the Act. That provision, as I read it, invests the president with the exclusive authority to make the determination of whether another country has “engaged in or tolerated particularly severe violations of religious freedom.” In so doing, the president determination shall be based on any available evidence, including said reports by the State Department and the Commission.

Moreover, Ms. Swett undercut her and Mr. George’s criticism when she acknowledged the Commission has limited authority when compared with the U.S. Department of State and implicitly the U.S. President.

In an interview about whether or not the U.S. should grant a visa to an Indian politician, she said, “The State Department has a more difficult job than we do because they are balancing American security interests, American commercial interests, American cultural interests, American exchange interests, a whole range of diplomatic interests, and one of the things that they are putting into that mix is the defense of our fundamental values, human rights and religious freedom and other such things. Because of its much larger portfolio the State Department cannot be as single-minded as we are.”

New U.S. Office of Faith-Based Community Initiatives

On August 7, 2013, the U.S. Department of State announced its formation of the Office of Faith-Based Community Initiatives as “the [U.S.] portal for engagement with religious leaders and organizations around the world . . . [to ensure] that their voices are heard in the policy process and [to work] with those communities to advance U.S. diplomacy and development objectives.”

In making this announcement, U.S. Secretary of State John Kerry said, “there is common ground between the Abrahamic faiths, and, in fact, between the Abrahamic faiths and all religions and philosophies. . . . All of these faiths are virtuous and in fact, most of them, tied together by the golden rule, as well as fundamental concerns about the human condition, about poverty, about relationships between peoples, our responsibilities each to each other. And they all come from the same human heart.”

The Director of the new Office is Dr. Shaun Casey, a professor of Christian ethics at Wesley Theological Seminary in Washington, D.C. and a Senior Advisor for Religious Affairs and National Evangelical Coordinator for Barack Obama’s 2008 presidential campaign.

At the announcement of the new Office, Dr. Casey said, “religious leaders and faith communities . . . have an influence and shape our foreign policy concerns here in the [U.S., and it is] essential for the [U.S.] to understand them and to bring them into our diplomacy and diplomatic efforts.”

The Office already has a Strategy on Religious Leader and Faith Community Engagement to encourage “U.S. government officials to develop and deepen their relationships with religious leaders and faith communities . . . to advance the following objectives:”

“Promote sustainable development and more effective humanitarian assistance.”
“Advance pluralism and human rights, including the protection of religious freedom.”
“Prevent, mitigate, and resolve violent conflict and contribute to local and regional stability and security.”

The executive branch of the U.S. federal government also has the following other agencies or offices relating to religion and faith-based communities:

The State Department’s Office of International Religious Freedom, which is headed by an Ambassador at Large for International Religious Freedom, who serves as the principal advisor to both the President of the U.S. and Secretary of State for Religious Freedom globally.
The State Department’s Envoy to Monitor and Combat Anti-Semitism, who since 2004 has developed and implemented policies and projects to support efforts to combat anti-Semitism.
The State Department’s Envoy to the Organization of Islamic Cooperation, who since 2010 has sought to deepen and expand U.S. partnerships with OIC member countries and Muslim communities around the world.
U.S. Agency for International Development’s Center for Faith-Based and Community Initiatives, which provides “a bridge for faith-based and community groups seeking to connect with USAID’s mission, . . . [convenes] faith-based and community groups to catalyze new opportunities for collaboration between these groups, and between these groups and the government [and helps] to eliminate barriers encountered by faith-based and community organizations seeking to partner with USAID on a range of global development issues, including global health, child survival and food security.”
The White House’s Office of Faith-based and Neighborhood Partnerships, which “coordinates Centers for Faith-based and Neighborhood Partnerships in various federal agencies . . . . [and] coordinates the President’s Advisory Council on Faith-based and Neighborhood Partnerships.”

The Importance of Religious Freedom

The top officials of the U.S. Commission on International Religious Freedom have set forth compelling reasons why religious freedom around the world is important. Its Chairperson, Robert P. George, and its Vice Chairperson, Katrina Lantos Swett, have done so in an essay in the Wall Street Journal entitled “Religious Freedom Is About More Than Religion.”

They assert, “To respect fundamental human rights is to favor and honor the [human being] . . . who is protected by those rights—including the rights to freedom of speech, press, assembly and religion.” Therefore, honoring the individual human being favors “human flourishing in its many dimensions. For those who regard humans not just as material beings but also as spiritual ones—free, rational and responsible—it is obvious that their spiritual well-being is no less important than their physical, psychological, intellectual, social and moral well-being.”

Such human flourishing “requires respect for their freedom—as individuals and together with others in community—to address the deepest questions of human existence and meaning. This allows them to lead lives of authenticity and integrity by fulfilling what they conscientiously believe to be their religious and moral duties.”

Moreover, religious “faith by its nature must be free. A coerced ‘faith’ is no faith at all. Compulsion can cause a person to manifest the outward signs of belief or unbelief. It cannot produce the interior acts of intellect and will that constitute genuine faith.” Indeed, coercion “in the cause of belief, whether religious or secular, produces not genuine conviction, but pretense and inauthenticity.”

Religious freedom, therefore, must “include the right to change one’s beliefs and religious affiliation. It also includes the right to witness to one’s beliefs in public as well as private, and to act—while respecting the equal right of others to do the same—on one’s religiously inspired convictions in carrying out the duties of citizenship.”

As a result, “one of the aims of U.S. foreign policy should be to combat . . . [religious] intolerance—not just because religious freedom reduces the risk of sectarian conflict, but more fundamentally because it protects the liberty that is central to human dignity.”

Conclusion

This statement echoes the words of the international legal instruments that appropriately guide the work of the U.S. Commission on International Religious Freedom: the Universal Declaration of Human Rights, which the U.S. supported in the U.N. General assembly in 1948, and the International Covenant on Civil and Political Rights, which the U.S. ratified in 1992.

The Universal Declaration opens with these words in its Preamble: “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” It then declares in Article 18, “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

These latter words are essentially repeated in Article 18(1) of the International Covenant. Its Article 18(2) goes on to say, “No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.”

U.S. Needs New Voting Rights Act

Problems exist with the present U.S. voting systems and procedures. Here are just a few:

In the November 2012 general election, many states that were controlled by Republican state legislatures and governors adopted various measures that, in my opinion, were intended to suppress voting by U.S. citizens, including minorities, who were deemed likely to vote for Democratic candidates.
Late this June the U.S. Supreme Court invalidated an important provision of the Voting Rights act of 2006. [1]
Immediately after that Supreme Court decision, some states–most notably Texas [2] and North Carolina–have moved to implement or adopt restrictive voting laws. [3]

This blog has criticized these efforts to restrict voting and that Supreme Court decision. This blog also has proposed ways to expand voting in this country, many of which have been voiced as well by Norman Ornstein, author and Resident Scholar at the American Enterprise Institute.[4]

Here are my suggestions for a new federal Voting Rights Act.

First, every U.S. citizen entitled to vote.

That includes all citizens who have been convicted of felonies and who are still in prison and those who have served their sentences. They are human beings who have interests and opinions, and they have unique experiences of life inside our prisons, which are often neglected in the political debate about allocation of resources.

Now only two states (Maine and Vermont) impose no voting restrictions on felons or ex-felons. Other states impose various restrictions, with 12 states (six in the South) banning ex-felons from voting even after they have completed prison and probation or parole. As a result, an estimated 5.9 million citizens are disenfranchised on this basis, about one-fourth of whom are still in prison. Because 38.2% of these people are African-American, it is also a racial justice issue.

The electorate also should include all children. They too are human beings with interests that should be reflected in elections. This is especially true in an electorate in which older citizens tend to vote in higher percentages and naturally have an interest in programs and services that benefit them. I am a member of the older group and yet believe our political influence needs to be counterbalanced by the voices of the youngest. Creation of a voting system to allow all children to vote would require a lot of careful consideration of how this could be accomplished. It presumably would have parents or guardians voting for their children through a certain age such as 16 or 18.[5]

Second, every U.S. citizen required to vote.

Every citizen should be required to vote at least in national elections.

This is true in many countries so it can be done. Such a system, I believe, would have the beneficial effect of causing political parties and candidates to appeal to voters in the middle of the political spectrum and thereby combat the polarization of our political system. Again, creation of such a system would require careful consideration of how that could be done.

Ornstein and Thomas E. Mann have made such a proposal. One means of enforcing such a law, they say, would be a modest fine, say $15, for failure to vote with increased amounts for repeated failures. Another way would be to provide a small tax credit for voting.

Third, no racial discrimination in voting.

Using the language of the Voting Rights Act of 2006, forbid any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.”

Fourth, simplified voting laws and procedure.

To make it easier to vote, Ornstein and Mann offer the following suggestions:

a. A new voter registration regime. Ornstein asserts, “eligible citizens should be presumed registered.” Allow online registration and transfer of such records when the voter moves to a new home by sharing data with private databases. Allow “same-day voter registration available for those not registered via their draft registration or driver’s license. Ideally, Congress would provide the funds to modernize voter registration lists and create a 21st-century voting process in which voters could get personalized ballots printed, with all the offices they are eligible to vote on, at any polling place in their vicinity. Why shouldn’t Americans be able to vote at any nearby polling center?”

b. More easily accessible polling places. Use facilities in or near shopping centers or arenas.

c. Weekend Election “Day.” As Ornstein says, “’Election Day’ should suit contemporary American life: a 24-hour period from noon Saturday to noon Sunday, with early voting the week before. This would eliminate ‘rush-hour’ backlogs early in the morning and at the end of the day, as well as Sabbath problems. If Wal-Mart can stay open 24/7, our democracy can stay open 24 hours once every two years.”

d. Social Security cards as valid voter IDs. Any U.S. citizen, Ornstein asserts, “who can provide proof of a valid Social Security number should be able to obtain, free, a Social Security card with a photo. It should be mandated as acceptable for identification wherever a photo ID is required to vote. Such cards should be available not just at Social Security offices but also at post offices.”

e. Uniform separate federal election ballot. Finally, Ornstein believes “Congress has the clear constitutional right to manage federal elections. A separate ballot for federal races strengthens that control. Other advantages include no more confusing butterfly ballots; there would be no more than three races (president, Senate and House) on a federal ballot. No more provisional ballots or access denied if someone shows up at the wrong polling place; the vote would still count only for those federal offices.”

Conclusion

These voting changes would help make the federal government more accountable to the citizens. Other changes to aid in this effort have been suggested in this blog: certain constitutional changes, elimination of the U.S. Senate’s filibuster rule and reforming the system for creating new congressional districts after the decennial census.

[1] Former Supreme Court Justice John Paul Stevens has criticized the Court’s decision invalidating a provision of the Voting Rights Act.

[2] On July 25th the Department of Justice sued the State of Texas to ask a federal court to require Texas to get permission from the federal government before making voting changes. The suit is based upon section 3 of the Voting Rights Act of 2006 which allows such relief if the Government shows that the jurisdiction has committed constitutional violations with respect to voting. Richard H. Pildes, a New York University professor said, “If this strategy works, it will become a way of partially updating the Voting Rights Act through the courts.” A Washington Post editorial endorsed this approach while also calling on Congress to enact a new statutory formula for comprehensive coverage of states for such preclearance. An editorial in the New York Times also supports this approach as does Washington Post columnist E. J. Dionne, Jr.

[3] New York Times columnist, Charles Blow, points out that almost all of the states that were covered by the Voting Rights Act provision that was invalidated are Republican-controlled and are now wasting “no time . . . to institute efforts to suppress the vote in the next election and beyond.”

4] Thomas E. Mann & Norman J. Ornstein, It’s Even Worse Than It Looks: How the American Constitutional System Collides with the New Politics of Extremism (Basic Books; New York 2012); Ornstein, Let’s enact a new Voting Rights Act, Wash. Post (July 17, 2013).

[5] I originally made such a suggestion in 1996.

Former U.S. Supreme Court Justice Criticizes Its Decision on the Voting Rights Act of 2006

John Paul Stevens, who served as an Associate Justice of the U.S. Supreme Court for nearly 35 years (1975-2010), has issued a stinging rebuke to its recent decision invalidating an important provision of the Voting Rights Act of 2006.

Stevens’ remarks came in his review of a book about the history of that statute: Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy.[1]

As discussed in a prior post, the court on June 25th in an opinion by Chief Justice John Roberts (joined by Justices Scalia, Kennedy, Thomas and Alito) held unconstitutional the Act’s formula that determined which states were subject to pre-clearance by the U.S. Department of Justice or a three-judge federal district court of any changes to the state’s voting procedures. The Court concluded that the burdens of such pre-clearance on the jurisdictions covered by the formula were not justified by current needs and, therefore, violated basic principles of equal state sovereignty or autonomy over voting.[2]

First, Stevens disputed the major legal premise of the Roberts’ opinion. Instead, Stevens agreed with Justice Ruth Bader Ginsburg’s dissenting opinion in the case that “the principle [of equal sovereignty] “applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.” (Emphasis in Stevens’ book review.)

Second and more importantly, Stevens strenuously objected to the Court’s not respecting the virtually unanimous congressional support for the 2006 re-authorization of the Voting Rights Act after “thorough evidentiary hearings.” Said Stevens,

“The members of Congress, representing the millions of voters who elected them, are far more likely to evaluate correctly the risk that the interest in maintaining the supremacy of the white race still plays a significant role in the politics of those states. After all, that interest was responsible for creating the slave bonus when the Constitution was framed, and in motivating the violent behavior that denied blacks access to the polls in those states for decades prior to the enactment of the [Act].”

Stevens found support for this conclusion in an unlikely source–the dissenting opinion of Justice Antonin Scalia in the case that invalidated the federal Defense of Marriage Act.[3] According to Justice Scalia,

“This [DOMA] case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution [the Supreme Court] in America.”

[1] The Stevens book review is also discussed in The Atlantic and Politico.

[2] Earlier posts provided important background for the Supreme Court’s decision.

[3] The DOMA case is United States v. Windsor, No. 12-307 (June 26, 2013).

Dismissal of U.S. Lawsuit Against Ex-President of Mexico

On July 18th the U.S. District Court for the District of Connecticut dismissed a private lawsuit under the U.S. Alien Tort Statute and Torture Victims Protection Act against Ernesto Zedillo, a former President of Mexico.[1]

The written dismissal order merely states that it was for the reasons stated at the oral argument that day. Those reasons, according to the attorney for Mr. Zedillo, centered on the court’s deferring to the U.S. Department of State’s conclusion that Mr. Zedillo was entitled to immunity as a former head of state of Mexico sued for alleged acts taken in his official capacity. This was confirmed in the transcript of the court’s ruling.

The State Department’s position, which was provided to the court in September 2012, was based upon “principles of immunity articulated by the Executive Branch in the exercise of its constitutional authority over foreign affairs and informed by customary international law, and considering the overall impact of this matter on the foreign policy of the [U.S.].” These principles of officials’ immunity included the following:

Under the law and practice of nations, a foreign sovereign is generally immune from lawsuits in the territory of another sovereign.
Until the 1976 enactment of the Foreign Sovereign Immunities Act (FSIA), U.S. federal courts routinely “‘surrendered’ jurisdiction over suits against foreign sovereigns ‘on recognition, allowance and certification of the asserted immunity by the political branch of the government charged with the conduct of foreign affairs when its certificate to that effect was presented to the court.'”
Under the U.S. Constitution, the executive branch of the federal government had the responsibility for foreign affairs.
A “sitting head of state’s immunity is based on his status as the incumbent office holder and extends to all his actions.” (Emphasis added.)
For a former official, on the other hand, immunity “is based upon the character of that official’s conduct and extends only to acts taken in an official capacity” with a presumption that “actions taken by a foreign official exercising the powers of his office were taken in his official capacity.”
Such a presumption “is particularly appropriate when a former head of state is sued, because holders of a country’s highest office may be expected to be on duty at all times and to have wide-ranging responsibilities.”
That presumption is corroborated when “the foreign government itself has asserted that the actions of its official were taken in an official capacity.”

The court’s dismissal also relied upon the U.S.’ advising the court on May 15, 2013, that it did not intend to appear at the July 18th hearing and that it “rests on its [previous] Suggestion of Immunity.” The court saw this advice “as a reaffirmation of the State Department’s Suggestion of Immunity, but even if it were a Statement of Neutrality, as the Plaintiffs’ contend, the fact is that the State Department has not withdrawn its Suggestion of Immunity.”

The U.S. court also noted that on May 23rd an unanimous Mexican appellate court reversed a lower court’s ruling that the Mexican government’s request for Zedillo’s immunity was illegal under Mexican law.[2]

The Mexican appellate court held that the Mexican plaintiffs in the U.S. case were not injured bythat Mexican government’s request because it was a “communiqué between Sates, and is a suggestion or proposal of immunity that the neighboring country [the U.S.] may or may not accept.” The appellate court also denied a motion to have the Mexican Supreme Court of Justice review the case, thereby finally ending the Mexican case.

According to the U.S. court, “even if . . . [the lower Mexican court’s decision had been affirmed], I find that it would ultimately be irrelevant to this Court’s determination of whether the Defendant is immune from this lawsuit because the Plaintiffs have cited no authority, and I’m not aware of any authority, for the proposition that the impropriety of such a request by the Mexican government would be sufficient justification for a court to disregard our own State Department’s Suggestion of Immunity.”

The U.S. case should also be over. Any appeal by the plaintiffs, in my judgment, would be fruitless.

The U.S. case was brought by ten anonymous Mexicans alleging that Mr. Zedillo had been complicit in a a 1997 massacre in the Mexican village of Acteal in the southern state of Chiapas.

[1] Various aspects of this U.S. case have been discussed in prior posts.

[2] The decision of the lower Mexican court was discussed in posts on March 10 and March 26, 2013.