Sunshine State News, Florida's self-proclaimed "only center-right news source," has dedicated extensive coverage to the conservative charge of "judicial activism" against three state Supreme Court justices facing a retention election in November. The author of a Federalist Society report on the justices' records debunked the charge on Wednesday, telling The Miami Herald that opponents of the justices will "have a hard time" making the "activism" label "stick."
On Election Day, voters in Florida will vote on the merit retention of three justices on their state Supreme Court. The three justices, Barbara Pariente, R. Fred Lewis, and Peggy Quince, have drawn the ire of the Florida Republican Party and conservative activists for a series of decisions on state ballot initiatives, criminal procedure, and property taxes.
The Sunshine State News has extensively covered the issue in a way that promotes the right-wing case against the three, which centers on the accusation of "judicial activism." Over the past month, the Sunshine State News has published multiple articles in a series titled, "How Activist Are Florida Supreme Court Justices Pariente, Lewis, and Quince?"
The "judicial activism" framing of the issue mirrors the charges leveled by right-wing political opponents of the justices. Conservative super PAC Americans for Prosperity is leading an ad campaign accusing the justices of acting in an "activist manner." The state Republican party took the unprecedented step of formally opposing the justices' retention because the "collective evidence of judicial activism amassed by these three individuals is extensive." Although the Sunshine State News articles in the series purport to allow readers to review court documents and "decide for themselves" on the accuracy of the "activism" charge, its promotion of the issue has contributed to the cause of the justices' opponents.
But a new report commissioned by the Federalist Society, an organization previously hailed by the Sunshine State News as the "nation's premier fellowship for conservative and libertarian lawyers and law students," undercuts these right-wing accusations. After analyzing the three justices' "nine most controversial cases," the report concluded the justices were not engaged in "unprincipled" behavior. This Federalist Society report now adds to the extensive bipartisan opposition to removing the three Florida justices from office.
From The Miami Herald's reporting on a conference call with the report's author, Florida International University Professor of Law Elizabeth Price Foley:
A Florida professor commissioned by the conservative Federalist Society to review controversial cases of the three Florida Supreme Court justices up for merit retention concluded Wednesday that some of the most loaded charges used by opponents against the justices are unfounded.
Although the Federalist Society does not take a position in the merit retention races, Foley said in a conference call with reporters that her review found that the controversial rulings "are in fact supported by some prior precedent and they do involve acceptable methods of legal reasoning."
Opponents who want to accuse them of judicial activism, she said, are "going to have a hard time making that label stick.''
Unsurprisingly, opponents of the justices were upset by the conclusions of the report, but Professor Foley has remained firm in her findings, according to the Herald:
Americans for Prosperity Florida, the conservative advocacy group affiliated with the Koch brothers, were not too happy with a Federalist Society report issued Wednesday that concluded some of the most loaded charges used against the justices up for merit retention were unfounded.
[Professor Foley still] disagrees with opponents to the justices who call them activists just because their decisions may be formed by a liberal ideology rather than a conservative one.
"That is ridiculous,'' she said, noting that under that logic justices whose decisions are formed by a conservative ideology could also be called "activist." She also assiduously avoids use of the term "activist" because, she said, it has been so overused everyone has a different definition of it.
She added that she may have been too subtle in her conclusions that the justices, like all humans, inform their decisions by their ideology "but they are not in fact acting in an unprincipled way,'' she said.
In a USA Today article on the absence of the Supreme Court as a campaign issue in the presidential election, reporter Richard Wolf claimed the "most important" explanation is that the next president will be unlikely to nominate a justice who could significantly tilt the court. Not only is Wolf's reasoning at odds with that of journalists, advocates, and experts across the political spectrum, in his discussion of the aging justices, Wolf cites facts about Supreme Court retirements that undercut his thesis.
In addition to his surprising conclusion that the next president will not be able to change the ideological direction of the Court "very far," Wolf also claimed it has not become an issue in the campaign because Democrats were "satisfied" with the health care reform ruling, and Republicans can't "criticize" a conservative Court. From the October 24 article:
The Supreme Court could be transformed by the man elected president Nov. 6, but you wouldn't know it from the campaign the candidates are waging.
The reasons are many: Democrats were satisfied with the court's ruling in June that upheld Obama's health care law. Republicans can't really criticize a court still dominated by conservatives. Most voters are more focused on jobs and the economy. And those who care deeply about judicial issues likely chose a candidate long ago. Perhaps most important, the chance that Obama or Romney could tilt the court very far in one direction or the other is remote. That's because most justices choose to retire when their party is in power, and no retirements are immediately forecast.
But many progressives were not satisfied with the Court's ruling that upheld health care reform. Supporters of the law were certainly glad that it was not struck down, but conservative Chief Justice John Roberts' opinion itself, if not the holding, was widely criticized for its conservative rationale. A New York Times editorial, "The Radical Supreme Court," condemned the Chief Justice's reasoning that unified the conservative wing of the Court in a "stunning" limitation of Congress' future power to regulate the national economy, and referred to the conservative justices as "radical innovators, aggressively stepping into political issues to empower the court itself."
Conservatives have also freely criticized the Court -- despite its strong leaning in their favor -- in particular the Chief Justice, who was vilified by right-wing media after the health care reform decision. In fact, Wolf confirmed this dislike was widespread in Republican ranks in a previous article, writing that according to a Gallup poll taken soon after the ruling, "Republicans have turned against the Supreme Court and Chief Justice John Roberts with a vengeance[.]"
Further, Wolf's assumption that justices will only retire during the administration of an ideologically like-minded president is flawed. With the notable exception of progressive Justice Thurgood Marshall, who chose to step down due to advanced age and declining health during a Republican administration, it is true that in recent times justices have tended to retire during administrations of the same party as the president who appointed them. The next presidential term, however, could very well provide a Marshall-like exception to the rule. As Wolf himself observes, progressive Justice Ruth Bader Ginsburg will be 80 years old next year (and is a cancer survivor), while liberal Justice Stephen Breyer will approach that age by the end of the next presidential term.
The retirement of frequent swing vote Justice Anthony Kennedy -- who will also turn 80 years old during the next presidential term -- could also significantly tilt the court, regardless of the political affiliation of the next president. Although Wolf noted the previous swing vote Justice Sandra Day O'Connor was replaced with conservative Justice Samuel Alito, Wolf failed to report how much more conservative this replacement made the Court. As noted by The New York Times on those changes to the Court:
[O]nly one change -- Justice Alito's replacement of Justice O'Connor -- really mattered. That move defines the Roberts court. "That's a real switch in terms of ideology and a switch in terms of outlook," said Lee Epstein, who teaches law and political science at Northwestern University and is a leading curator and analyst of empirical data about the Supreme Court.
The point is not that Justice Alito has turned out to be exceptionally conservative, though he has: he is the third-most conservative justice to serve on the court since 1937, behind only Justice Thomas and Chief Justice Rehnquist. It is that he replaced the more liberal justice who was at the ideological center of the court.
Though Chief Justice Roberts gets all the attention, Justice Alito may thus be the lasting triumph of the administration of President George W. Bush. He thrust Justice Kennedy to the court's center and has reshaped the future of American law.
Other conservative and liberal experts and advocates have pointed out the importance of Supreme Court appointments as an election issue, some of whom Wolf quotes as expressing this view. In fact, the print media has stepped up its reporting on this matter of late, and the Associated Press published an article the day before Wolf's entitled "Why It Matters: 1 New Justice Could Change A Lot." Thus, it is peculiar that USA Today would choose now to play the contrarian and downplay the importance of Supreme Court appointments. As Media Matters previously reported, lack of coverage of this important issue has been a consistent problem in broadcast news. USA Today should not join this trend.
In addition to repeating the debunked claim that Mitt Romney supported the government bailout of the auto industry, Fox News contributor Karl Rove mischaracterized the bankruptcy plan that saved millions of jobs, falsely asserting that the treatment of unions as part of the restructuring was "unprecedented."
The morning after the third presidential debate, Rove recycled right-wing media misinformation that Romney's call in 2008 to "Let Detroit Go Bankrupt" was in fact a call for the type of plan that ultimately saved the country's auto industry:
This false claim has been repeatedly debunked. The plan that rescued the auto industry through Chapter 11 reorganization bankruptcy was entirely dependent on the immediate "bailout" that the federal government provided. Romney condemned this intervention and wanted to rely on non-existent private financing. Contrary to Rove's explanation, Romney's proposal that the government should come to the industry's aid after it went bankrupt would have resulted in a Chapter 7 liquidation bankruptcy of General Motors and Chrysler, leading to the rippling loss of millions of auto-related jobs across Ohio and Michigan. As reported by The New York Times:
To go through the bankruptcy process, both companies needed billions of dollars in financing, money that auto executives and government officials who were involved with Mr. Obama's auto task force say was not available at a time when the credit markets had dried up. The only entity that could provide the $80 billion needed, they say, was the federal government. No private companies would come to the industry's aid, and the only path through bankruptcy would have been Chapter 7 liquidation, not the more orderly Chapter 11 reorganization, these people said.
In addition, Rove inaccurately claimed that the eventual Chapter 11 bankruptcy was "unprecedented," because creditor claims were reorganized. But as Moody's Mark Zandi explained, a Chapter 11 reorganization plan that restructures a failing company's debt requires consensus from "all stakeholders," including those of unionized employees:
Given the economic costs, allowing the Big Three to go bankrupt without government help would thus be a serious mistake. Congress should instead encourage the automakers to begin a pre-packaged bankruptcy, with Washington guaranteeing the  financing for the Big Three in bankruptcy. The government guarantee would enable an orderly restructuring and prevent liquidation. All stakeholders--management, creditors, suppliers and the unionized workforce--would be forced by the bankruptcy to make the tough choices they have thus far been unable to confront.
Thus, any reorganizing of debt claims was negotiated and agreed upon by all necessary stakeholders, pursuant to standard practice. Unions' claims may have changed during reorganization negotiations, but collective bargaining strength is not uncommon in bankruptcy proceedings, and others - such as hedge funds -- emerged with new claims as well. Indeed, as noted by the lead adviser of the President's auto task force, the reorganization plan was approved by multiple courts:
Among Mr. Romney's grievances -- and to be fair, those of other opponents of the auto rescue -- is that the auto task force trampled on bankruptcy precedents and even the law to effect President Obama's plan of "shared sacrifice" by all stakeholders.
What he conveniently ignores is that the president's plan was litigated throughout the federal court system -- all the way to the Supreme Court, in the case of Chrysler -- without so much as a nod to the opponents from a single judge.
In retrospect, I recognize the emotions surrounding the decision to give members of the United Auto Workers company stock in exchange for resolving their health care claims. But the courts were emphatic that what we did was legal, because we remained true to a core principle of bankruptcy reorganization: every stakeholder received more from our plan than if the companies had been left to go bankrupt on their own.
Mitt Romney revealed his gender-conscious hiring policies as governor of Massachusetts -- based on "binders full of women" -- during the October 16 presidential debate, a comment that was immediately recognized as an endorsement of affirmative action by several commentators in the media. But The Wall Street Journal editorial page and other conservative media outlets that have harshly condemned such affirmative action policies have yet to fully address Romney's statement.
In Tuesday's debate, an audience member asked the presidential candidates, "[i]n what new ways do you intend to rectify the inequalities in the workplace, specifically regarding females making only 72 percent of what their male counterparts earn?" In response, Romney described his past utilization of inclusive hiring practices, also known as affirmative action:
ROMNEY: Thank you. And -- important topic and one which I learned a great deal about, particularly as I was serving as governor of my state, because I had the -- the chance to pull together a Cabinet and all the applicants seemed to be men. And I -- and I went to my staff, and I said, how come all the people for these jobs are -- are all men?
They said, well, these are the people that have the qualifications. And I said, well, gosh, can't we -- can't we find some -- some women that are also qualified?
And -- and so we -- we took a concerted effort to go out and find women who had backgrounds that could be qualified to become members of our cabinet. I went to a number of women's groups and said, can you help us find folks? And I brought us whole binders full of -- of women. I was proud of the fact that after I staffed my cabinet and my senior staff that the University of New York in Albany did a survey of all 50 states and concluded that mine had more women in senior leadership positions than any other state in America.
Mark Shields of PBS immediately recognized the significance of Romney's statements in post-debate analysis:
MARK SHIELDS: Can I tell you what the lead is -- OK -- what the lead is? Women in binders.
I mean, that is -- that will be the clip that will be seen around the world, Mitt Romney. And the interesting thing about that is, he told the story about the women in his Cabinet, was that was affirmative action. That is affirmative action.
He got all these men. And he said, no, no, can't we find some women? Go out and find some women. That's the definition of affirmative action.
MARK SHIELDS: And I will be interested to see The Wall Street Journal editorial page attack him on that tomorrow.
Like everyone else, I had several good laughs over the GOP candidate's "binders full of women" quote from last night's town-hall debate.
But then I realized that, creepy as that imagery is, the country would be better off if more powerful men took a cue from Romney on this one. He says that, as governor, he made "a concerted effort to go out and find women who had backgrounds that could be qualified to become members of our cabinet." This is a pretty big statement, especially coming from a Republican candidate. We talk a lot about how diversity matters and how equal representation is important. But in most corners of society, especially the upper echelons of power, we haven't figured out the best way to walk that talk. Usually when advocates suggest that we need policies in place to ensure our elected officials and CEOs and college admission boards are making a concerted effort to go out and find women and people of color, all political hell breaks loose. Just look at conversation surrounding the Supreme Court's recent reconsideration of the University of Texas's affirmative action policies.
Watching Romney tout his appointment record at the town-hall debate last night, I couldn't help but feel a little bit proud of him. Seriously! With the binders anecdote, he was essentially describing affirmative action: He realized he needed more diversity in his cabinet, and so he sought out qualified women he may not have otherwise considered. This is laudable. Shocking, even! Especially when you consider that, also in the first year of his governorship, Romney tried to quietly roll back the state's affirmative action laws.
Contrary to Mark Shields' joking "prediction," The Wall Street Journal editorial board has not commented on Romney's support of affirmative action as of this posting, even though it recently called on the Supreme Court to "reclaim [its] constitutional and moral bearings" by rejecting a University of Texas Law School admissions policy which takes race into account in order to promote student body diversity.
The National Review Online also ignored the substance of Romney's debate comments and instead claimed the anecdote was unremarkable, in contrast to their past objection to affirmative action on the basis of both gender and race. National Review Online and The Wall Street Journal should note that Kerry Healey, Romney's Lieutenant Governor from 2003 to 2007 and a current surrogate for his campaign, further told Fox News that the "binders full of women" program amounted to a so-called quota system in which hiring targets were linked to the percentage of women in the Massachusetts population. From America Live:
MEGYN KELLY: He was claiming that he made a commitment to fill his cabinet positions in Massachusetts with more than just men, he said most of the applicants were men, and most of the guys, the candidates were men.
KERRY HEALEY: That's right. The back story here is that a women's organization, a bipartisan women's organization, the Massachusetts Women's Political Caucus, came to both candidates in the race and said if you're elected will you pledge, will you promise to put as many women in your cabinet as there are percentage of women in Massachusetts, which is about 50 percent. Both candidates said yes. So when Governor Romney was elected he set out to fulfill that promise. One thing you can know about Governor Romney is that when he makes a promise while he's campaigning, he's going to fulfill that promise. And so...
MEGYN KELLY: How did the numbers work out?
KERRY HEALEY: 50 percent. And it was the highest in the nation.
National Public Radio (NPR) recently recycled a false narrative fueled by right-wing media that the powerful U.S. Court of Appeals for the D.C. Circuit neutrally reviews regulatory agencies. But NPR fails to mention that the court, which hears appeals on environmental, health, safety, and other regulations, is dominated by conservative judges, and is under increasing criticism for substituting its ideological opinions for scientific and technical expertise.
In an article detailing the difficulties the next president would encounter if he sought to take "a hard right turn on an environmental rule," NPR downplayed the D.C. Circuit court's importance and ideological composition. The article uncritically presented the conservative perspective that "strict constructionist" judges would prevent a weakening of bipartisan environmental law in such a scenario:
"If you take a hard right turn on an environmental rule -- or for that matter, a hard left turn -- you've got strict constructionist judges who are going to say no, and they're on the federal courts today," says Kevin Book, director of ClearView Energy Partners, a Washington-based energy consulting firm.
Book says the federal judges who oversee EPA rules most likely would prevent big changes, regardless of who wins the election.
That's because the pollution rules at the center of this debate aren't just ideas Obama and his EPA came up with. They can be decades in the making or ordered by the federal courts. They're called for in environmental laws passed by bipartisan majorities in Congress -- laws such as the Clean Air Act, which was first signed by President Nixon and strengthened by the first President Bush, both Republicans.
As described by federal courts expert Professor Carl Tobias of the University of Richmond School of Law, the D.C. Circuit court is known as the "second most important court" in the country not only because it is often the last word on appeals from federal administrative agency determinations, but because its judges are often nominated to the U.S. Supreme Court. Its prominence is one reason it is currently suffering three vacancies, despite the Obama administration's attempts to appoint qualified jurists to a court whose Republican-appointed members outnumber their Democratic counterparts 5 to 3.
The NPR article fails to recognize that this federal court has demonstrated a clear preference for crafting "hard right" policy that defers to business interests, regardless of the bipartisan pedigree of legislation before it. Indeed, The Wall Street Journal's Law Blog has described the D.C. court's view of the Environmental Protection Agency (EPA) as consistent with that of the broader anti-environmental movement, where "[t]he EPA...is a frequent bête noire for conservatives, who feel the agency is strangling industry with excessive regulation." The editorial page of the WSJ, for example, praised a recent opinion that struck down the Cross-State Air Pollution Rule, which it referred to as "another illegal Obama regulation." The op-ed went on to celebrate that:
According to a scoreboard by the American Action Forum, Tuesday's rebuke from the D.C. Circuit marks the 15th time that a federal court has struck down an Obama regulation, and the sixth smack-down for the Obama EPA. This tally counts legally flawed rules as well as misguided EPA disapprovals of actions by particular states.
Unlike the recent coverage in NPR, other media outlets have increasingly noted the ideological bent of this court willing to substitute its scientific and technical analysis for that of the experts. For example, Floyd Norris, The New York Times' chief financial correspondent, has reported on how the D.C. court has stuck down many of the new rules promulgated to prevent a recurrence of the recent financial meltdown:
[The D.C. Circuit Court] may yet be the institution that dooms many or even most of the Dodd-Frank financial reforms that Congress passed in 2010 and that regulatory agencies have been struggling to put in place since then.
In the area of regulatory law, that court, the United States Court of Appeals for the District of Columbia, reigns supreme, and it is now controlled by judicial activists who seem quite willing to negate, on technical grounds, any regulations they do not like. The Securities and Exchange Commission has suffered a series of defeats there, defeats that it has chosen to accept rather than risk an appeal to the Supreme Court.
And Steven Pearlstein, The Washington Post's business and economics columnist, explicitly attributes the recent decision striking down the Cross-State Air Pollution Rule to tea party politics, consistent with the D.C. court's pro-business tilt:
The dirty little secret is that dysfunctional government has become the strategic goal of the radical fringe that has taken over the Republican party. After all, a government that can't accomplish anything is a government that nobody will like, nobody will pay for and nobody will want to work for. For tea party conservatives, what could be better than that?
Nowhere has this strategy been pursued with more fervor, or more success, than the U.S. Court of Appeals for the District of Columbia Circuit, where a new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies.
The prospect that some balance might be restored to the nation's second-most powerful court has long since faded after Senate Republicans successfully filibustered every nominee put forward by President Obama for the three vacant seats on the D.C. Circuit. The only hope now is that Chief Judge David Sentelle and some of the court's more intellectually honest conservatives will move to rein in the judicial radicals before they turn the courts into just another dysfunctional branch of a dysfunctional government.
The EPA recently appealed the D.C. Circuit's recent pollution decision arguing the court had "developed 'regulatory policy out of whole cloth' in violation of their role of review." Media outlets should note this trend when evaluating whether "hard right" environmental policies can pass judicial review. This frame buys into the conservative myth of a "monster" regulatory state and misses the bigger picture: the D.C. Circuit is crafting "hard right" regulatory policy on its own.
A Wall Street Journal editorial asserted the recent federal court decision allowing South Carolina's voter ID law to go into effect in 2013 proved that claims of racial discrimination in voter ID laws are "specious." But the Journal - and other conservative media echoing this claim - fail to note that the court was required to hear the case because of uncontroverted evidence that the voter ID law was initially racially discriminatory. In fact, the South Carolina law was only approved because state election officials have sworn to implement it without racial discrimination.
Affirmative action policies that will come before the Supreme Court in the upcoming Fisher v. University of Texas case have long been the target of right-wing misinformation that distort the benefits of diversity in higher education. Contrary to the conservative narrative in the media, these admissions processes serve important national interests by promoting equal opportunity and are based on long-standing law.
Fox News' Stuart Varney and Charles Krauthammer have accused the Obama administration of breaking the law for advising federal contractors not to issue warnings of layoffs that may occur in the wake of budget "sequestration." But the administration is in fact correctly following the WARN Act, which explicitly disallows blanket notices to all Department of Defense (DOD) contractors before Congress specifies what contracts are to be cancelled.
The Worker Adjustment and Retraining Notification (WARN) Act requires federal contractors to inform their employees of the impending loss of their jobs 60 days prior to layoffs. Both Varney and Krauthammer misrepresent the law's requirements by arguing DOD contractors must issue sequestration layoff warnings before the presidential election, contrary to the legal advice of the Department of Labor (DOL), Office of Management and Budget (OMB), and independent experts. In fact, because budget cuts mandated by sequestration are not currently specified and would not take place immediately, WARN Act layoff warnings would be inappropriate at this juncture and are not "the law...written in stone," as erroneously asserted by Varney on the October 2 edition of America's Newsroom, nor is the administration's position "absolutely lawless," as claimed by Krauthammer on the October 2 edition of Special Report.
As explained by the nonpartisan Center on Budget and Policy Priorities (CBPP), under the Budget Control Act of 2011, Congress' inability to negotiate a long-term budget plan triggers "sequestration -- a form of automatic cuts that apply largely across the board -- [which] is now scheduled to occur starting in January 2013 and to cover the period through 2021." The CBPP has also pointed out that these automatic cuts to the federal budget include unspecified cuts to DOD spending -- including payments to defense contractors - which even after sequestration is formally triggered, would not be clear until months later. According to CBPP, "[w]hile the limit on spending authority will be imposed at the beginning of the year, the actual reductions in spending will occur over the course of the year and into subsequent fiscal years."
Therefore, as The New York Times has reported, "no one knows what 'sequestration,' the term for the automatic cuts, will look like, not lawmakers, not the military." Contractors are even more unlikely to know what the cuts will look like, as they won't be alerted by their agency until after Congress acts in January. Because no one knows which programs will be cut, and thus, which employees will be laid off when -- or if -- sequestration occurs, defense contractors cannot send out notices to those affected without notifying their entire workforce, a type of blanket alarm explicitly disallowed by the WARN Act.
In the aftermath of the health care reform case, in which conservative Chief Justice John Roberts cast a surprising vote to uphold the law, some Supreme Court observers, including Adam Liptak of The New York Times, have asked whether Roberts has permanently moved to the Court's ideological center. But a new report by the nonprofit advocacy organization Alliance for Justice indicates that the Roberts Court remains "far from apolitical," especially in cases concerning corporate power, a point often overlooked in the media.
In an article previewing the Supreme Court's upcoming term, Liptak writes that "[e]very decision of the new term will be scrutinized for signs of whether Chief Justice Roberts, who had been a reliable member of the court's conservative wing, has moved toward the ideological center of the court." The article recognizes the possibility that the health care reform decision, rather than presaging a move to the center, may have given Roberts room to maneuver even further to the right:
The term could clarify whether the health care ruling will come to be seen as the case that helped Chief Justice Roberts protect the authority of his court against charges of partisanship while accruing a mountain of political capital in the process. He and his fellow conservative justices might then run the table on the causes that engage him more than the limits of federal power ever have: cutting back on racial preferences, on campaign finance restrictions and on procedural protections for people accused of crimes.
But Roberts' strongly conservative record on corporate power is an even more powerful argument against the notion that he may have shifted in a significant way toward the Court's ideological middle. The Roberts Court remains possibly the most conservative Supreme Court in history in many areas, and its favoritism toward corporate interests is unprecedented. In the coming term, the Court will have multiple opportunities to build on recent decisions joined by Roberts that have made it harder for workers, consumers, and investors to pursue class actions, and there is little basis for supposing that Roberts will alter his views in corporate power cases.
As summarized by the Alliance for Justice in their preview of the upcoming term, if Roberts and the other conservative justices continue their trend of favoring powerful corporate interests in sharply split opinions, the Court could:
Provide a shield for corporations and other actors committing human rights abuses abroad (Kiobel)...Close the courtroom doors to class actions seeking redress for corporate malfeasance (Symczyk, Behrend, and Amgen)...Immunize employers who create a hostile work environment for women and racial minorities (Vance)...Allow lower federal court judges to punish debtors who go to court to challenge debt collectors' abusive practices (Marx) [and] Undermine the federal government's power to regulate water pollution (Georgia-Pacific, Decker, and LA County) [.]
Bill O'Reilly and Fox News legal analysts Kimberly Guilfoyle and Lis Wiehl dismissed and mischaracterized a lawsuit alleging that a citizenship question on certain Michigan ballot applications illegally burdens the right to vote. But the "citizenship checkbox" may keep citizens from voting, as the state's Republican Governor anticipated when he vetoed an earlier attempt to implement the practice.
The ACLU of Michigan has filed a lawsuit accusing Michigan Secretary of State Ruth Johnson (R) of once again violating state and federal law by including a checkbox to re-determine a voter's citizenship on absentee and election-day ballot applications. Although supporters defend the practice as a means to prevent noncitizens from voting, election experts have pointed out redundant citizenship verification is a solution to an almost non-existent problem, contrary to the claims of Johnson and Fox's Guilfoyle.
O'Reilly characterized the ACLU lawsuit seeking to eliminate the citizenship checkbox as "madness and stupidity," and threatened that if a "crazy judge" granted the injunction, he would "put the judge's face on the screen and then send [Fox's Jesse] Watters out to see him." Fox's legal analysts not only agreed with O'Reilly's evaluation of the facts and law, but also his unsupported allegation regarding the motive behind the lawsuit:
What the ACLU wants is they don't want people committing perjury when they register. They do want people voting, who are not American citizens, to advance. They believe that most of those people would vote for the Democratic candidate in Michigan. That's exactly what's going on here.
No one acknowledged the actual arguments behind the lawsuit, namely that including a checkbox for citizenship affirmation on these ballot applications violates state and federal law and suppressed voters in Michigan's most recent primary election. It was this concern that led Governor Rick Snyder (R) to veto the proposed citizenship checkbox law in July. In his veto message, Snyder, a conservative Republican, stated the citizenship question could impermissibly "create voter confusion."
Voting by noncitizens is not a problem nationally or in Michigan. Indeed, according to the authoritative and exhaustive News21 study of thousands of alleged instances of voter fraud in the U.S., voter fraud such as noncitizen voting is "virtually non-existent." With respect to Michigan, an analysis by Wayne State University Law Professor Jocelyn Benson of the Michigan Center for Election Law demonstrates that:
[Secretary of State] Johnson has irresponsibly declared that 4,000 noncitizens vote in Michigan's elections, falsely claiming that the federal government is forcing her employees to register ineligible voters.
Her data is incomplete and unverified. The 4,000 number is no more than a general estimate of how many of Michigan's 7.5 million registered voters are not citizens.
In reality, she claims to have discovered 54 noncitizens who may have voted in Michigan's elections in the past decade, and as many as 900 others who are registered but have not voted. Yet the secretary of state is able to provide details on only two noncitizens who have recently voted. That's a far cry from 4,000.
State efforts, such as Michigan's, duplicate federal law that already prohibits and punishes ineligible voting and place excessive burdens on eligible voters. A recent Advancement Project report indicates that the Latino vote in particular is susceptible to the low turnout caused by redundant citizenship screens. According to the Michigan Election Coalition, this sort of unconstitutional burden was precisely what occurred during the 2012 Michigan primary election when poll workers across the state gave contradictory and erroneous instructions to eligible voters about the voluntary nature of the checkbox. It was this inconsistent treatment of voters across the state that led the ACLU to challenge the checkbox as a violation of the federal equal protection clause of the U.S. Constitution, not the due process clause as Fox's Wiehl incorrectly stated.
Furthermore, Johnson may not even have the power to place the citizenship question on the ballot. The state legislature originally tried to pass the election change in a bill, and Michigan law does not appear to allow the Secretary to unilaterally adopt this failed legislation. Even if it did, there does not appear any justification for the Secretary to then ignore the standard administrative notice and comment procedure behind the introduction of new state rules. Finally, the Secretary appears to have passed an election practice change statewide, despite the fact that the federal Voting Rights Act -- in order to prevent illegal racial or national origin discrimination -- requires certain townships in Michigan to pre-clear any such changes with the U.S. Department of Justice before they are put into effect.