Tag Archives: links

CA Voting Plan Unconstitutional

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Perhaps you’ve heard about this California voting plan being put forth by the Republicans in a statewide referendum — the sneakily-named Presidential Election Reform Act? It would do away with the state’s winner-take-all system and instead award California’s electoral votes by Congressional district.

In 2004, Kerry won all 54 of California’s votes; had this law been in effect at the time, Kerry would have won only 31 of those votes, and Bush would have won 22 of them instead of zero. The Democratic presidential candidate routinely wins California, so this is essentially an attempt by the Republicans to award the Republican presidential candidate a number of electoral votes equivalent to those of a big state such as Ohio, Pennslyvania, or Illinois. If the 2008 election is as close as the last two elections, this plan would — if it passed — put a big dent in the Democrats’ hopes of recapturing the White House next year.

The only thing is – it’s unconstitutional.

Article II of the U.S. Constitution states, in part:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…

(Emphasis added.)

Only the state legislature is allowed to determine how the state’s electoral votes are distributed. It can’t be done by a popular referendum. It’s pretty straightforward. Game, set, match.

If this referendum gets on the California ballot next spring and it passes, expect it to get blocked by a court injunction.

I would hope the U.S. Supreme Court would find it unconstitutional. Of course, Bush v. Gore should have been a clear-cut case, too — but I don’t think the Supreme Court will do it again. The law is even clearer this time. (But never say never.)

If you’re interested, read these comments to find out more.

Jose Padilla

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Jose Padilla has been convicted on all counts, in what Abby Goodnough of the New York Times calls “a major victory for the Bush administration.”

A major victory for the Bush administration? That’s ridiculous. The administration first detained him without even filing charges against him, gave him all but the barest access to legal counsel, and then classified him as an “enemy combatant.” He eventually filed a petition for habeas corpus, which the administration challenged. The Supreme Court declined to rule, finding the petition was filed incorrectly. But then the administration got spooked. In order to avoid having the Supreme Court rule on the merits of the case, the administration finally gave in and specified the charges against Padilla.

That wasn’t a victory.

And then the judge dismissed some of the charges against him, finding those charges “light on facts.” [Edit: that was actually overturned by an appeals court, which I didn’t realize.]

That wasn’t a victory either.

And finally, Padilla was convicted today in court. But isn’t the whole justification for the “enemy combatant” program supposed to be that we can’t entrust these people to the ordinary civilian court system? And yet, what just happened? A terror suspect was convicted by an ordinary civilian court.

So much for needing the enemy combatant program.

This is a victory for the Bush administration? Yeah, right.

Concurrence Hell

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I enjoy reading the little paragraph at the end of a Supreme Court decision syllabus summarizing who voted with whom. They tell you how complicated any particular court decision is.

Here are some examples, from simplest to most complicated.

First, there’s the per curiam opinion, which is unsigned, and therefore needs no summary at the bottom of the syllabus telling who voted with whom:

There’s the unanimous opinion:

SOUTER, J., delivered the opinion for a unanimous Court.

Then there’s the case with a lone dissenter or concurrer:

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion.

There’s the case with a few dissenters signing one opinion:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

There’s the case with a partial concurrence or dissent:

SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined, except as to Part IV.

There’s the case with both a concurrence and a dissent:

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, SOUTER, THOMAS, GINSBURG, and ALITO, JJ., joined. KENNEDY, J., filed a concurring opinion, in which ALITO, J., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, J., joined.

There’s the case with multiple concurrences and/or dissents:

ALITO, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and KENNEDY, J., joined. KENNEDY, J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined.

There’s the case where it gets a little more complicated:

SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined, and in which STEVENS and GINSBURG, JJ., joined as to Part III. THOMAS, J., filed a concurring opinion, in which SCALIA, J., joined. GINSBURG, J., filed an opinion concurring in part and dissenting in part, in which STEVENS, J., joined.

Or even more complicated:

ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III–A, and III–C, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined, and an opinion with respect to Parts III–B and IV, in which SCALIA, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

But I think my favorite is this one, from a 2003 campaign finance decision (which, incidentally, was gutted last week):

STEVENS and O’CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O’CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA §305, and in which THOMAS, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O’CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion SCALIA, J., joined as to Parts I, II—A, and II—B. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which REHNQUIST, C. J., joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which THOMAS, J., joined with respect to BCRA §213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA §305, in which GINSBURG and BREYER, JJ., joined.

So much for judges being mere umpires!