Fox News contributor Bradley Blakeman joins the right-wing media's assault on early voting by misreading the Constitution to fashion an argument that our founding document forbids early voting. In a Newsmax column, he argues that the Constitution requires that all votes be cast on a single day, although it contains no such requirement.
The Constitution provides in Article 2, Section 1 that:
The Congress may determine the Time of chusing [sic] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
Under the Electoral College system established by the Constitution, voters choose electors, who elect the president. Thus, the Constitution sets out three -- and only three -- rules regarding the timing of voting in presidential elections. One, Congress determines when voters choose electors. Two, Congress determines "the day" on which electors cast their votes for president. And three, the day electors cast their votes "shall be the same throughout the United States."
Blakeman, a former Bush administration official, misreads these three rules as an argument that early voting is unconstitutional because "[o]ur Founding Fathers specifically set forth 'a national Election Day' -- not days." He also writes that:
I believe the Founding Fathers set forth one day for voting because they knew that in order to best execute a fair election and in order for Americans to understand and appreciate their right to vote that voting should involve some level of "sacrifice" of time and effort.
The Constitution is clear. Congress is given the responsibility to set a single day for a national election -- not days. States have no right to subvert the clear directive and intent of the U.S. Constitution when it comes to national voting.
This argument is simply wrong. The Constitution says nothing about "a national election day" or "a single day for national elections." The Founders never "set forth one day for voting." They did provide in the Constitution that presidential electors cast their votes on the same day, but the Constitution clearly distinguishes that process from voters going to the polls.
Blakeman may simply be confused about what the Constitution actually says, because he writes that the relevant provision of the document is "Article 2, Section 1: Clause 4: Election Day". In fact, the phrase "Election Day" does not appear in the original text of the Constitution. Of course, subheadings added later by editors of various published editions of the Constitution do not alter the document's meaning or have the force of law.
Blakeman is correct that in 1845 Congress passed legislation establishing a single date for voters to choose electors. But early voting and absentee voting, in which voters in many states cast ballots over a period of days or weeks, do not prevent ballots from being counted, and electors chosen, on a single day. And in any case, arguments about the law establishing a national election day are irrelevant to Blakeman's misreading of the Constitution.
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.
Primetime news has largely overlooked the future ideological direction of the U.S. Supreme Court as a key election issue, failing to note that the candidate who wins in November will likely appoint justices and shape how the court will decide vitally important issues.
Other news outlets have acknowledged the significance of Court nominations for the next president. The New York Times has reported that "[t]he winner of the race for president will inherit a group of justices who frequently split 5 to 4 along ideological lines. That suggests that the next president could have a powerful impact if he gets to replace a justice of the opposing side." The Associated Press has added that "[d]ecisions on many of the hot-button issues in recent years have been by 5-4 votes. These include upholding Obama's health care overhaul, favoring gun rights, limiting abortion, striking down campaign finance laws, allowing consideration of race in higher education and erecting barriers to class-action lawsuits." Both articles note that because four justices are currently in their seventies, the next president's prospects for appointing multiple justices are very real.
Right-wing bloggers have echoed an accusation that Elizabeth Warren, the Democratic candidate for U.S. Senate in Massachusetts, allegedly practiced law without a license. But the charge was dismissed by the general counsel of the agency responsible for enforcing Massachusetts bar rules, who said that Warren's activities are not a violation of those rules.
The accusation against Warren originally appeared in the blog Legal Insurrection in a post titled "Elizabeth Warren's law license problem." Author William A. Jacobson, an associate professor at Cornell Law School, writes that, "Warren has practiced law in Massachusetts without a license in violation of Massachusetts law for well over a decade." He notes that Warren, a professor at Harvard Law School, listed her law school office as her address on a handful of legal briefs, and is not a member of the Massachusetts bar. The charge was quickly echoed by other right-wing bloggers ranging from Jim Geraghty at National Review Online, who termed the accusation a "bombshell," to Breitbart.com's Michael Patrick Leahy, who wrote that "though Warren operated a law practice from her Cambridge office for more than a decade, she never obtained a license to practice law in Massachusetts."
But according to a post on The Docket, the blog of the Massachusetts Lawyers Weekly, Jacobson's charge has been rejected by Michael Fredrickson, the general counsel of the Massachusetts Board of Bar Overseers, which is "an independent administrative body to investigate and evaluate complaints against lawyers." According to The Docket:
Rule 5.5 of the Massachusetts Rules of Professional Conduct states that an attorney cannot, without a license to practice in Massachusetts, "establish an office or other systematic and continuous presence in this jurisdiction for the practice of law." It also states an attorney cannot, without a license, "hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction."
Michael Fredrickson, general counsel for the BBO, says he does not believe a law professor would be considered to have "a continuous presence" or "an office practicing law."
"If they actually practice here - as some part-time law professors at some of the smaller schools do - they might," Fredrickson says. "But being a professor at one of the large schools, their office is a professor's office, and the fact that they tend to dabble in the practice of law doesn't run afoul of our rule. I don't think Elizabeth Warren would fall within that, such that she would have to register here."
Some media outlets have accepted uncritically a U.S. Chamber of Commerce Institute for Legal Reform survey on "state lawsuit climates" for businesses, even though the survey is wholly based on interviews with lawyers and executives for large corporations. Experts have for years critiqued the survey, which claims to rank states on how "fair and reasonable" their tort liability systems are, as "lack[ing] elementary social scientific objectivity" and "substantively inaccurate and methodologically flawed."
Mitt Romney's embrace of rejected right-wing Supreme Court nominee Robert Bork received another pass in the media on Sunday when David Gregory, host of NBC's Meet the Press, failed to ask Romney about Bork and his outside the mainstream view of the Constitution in the course of a lengthy interview.
Bork serves as one of three co-chairs of Romney's "Justice Advisory Committee," which, according to his campaign, advises the candidate on "the Constitution, judicial matters, law enforcement, homeland security, and regulatory issues." Bork's nomination to the Supreme Court was rejected by a bipartisan Senate majority in 1987 because his positions on the Constitution were so far outside the mainstream.
GREGORY: I want to ask you one question on the social issue and that is abortion. You were on this program in 2007 and you said that you would fight to overturn Roe v. Wade. I know you said this is an issue for the courts. I ask you now would a President Romney fight to overturn Roe v. Wade? And what would you do in that fight to achieve that goal?
MR. ROMNEY: Well, there are a number of things I think that need to be said about preserving and protecting the life of the unborn child. And I recognize there are two lives involved: the mom and the unborn child. And I believe that people of good conscience have chosen different paths in this regard. But I am pro-life and will intend, if I'm president of the United States, to encourage pro-life policies. I don't--
GREGORY: Just encourage or fight for it to be overturned?
MR. ROMNEY: Well, I don't actually make the decision the Supreme Court makes and so they'll have to make their own decision. But, I will, for instance, I'll reverse the president's decision on using U.S. funds to pay for abortion outside this country. I don't think also the taxpayers here should have to pay for abortion in this country. Those things I think are consistent with my pro-life position. And I hope to appoint justices to the Supreme Court that will follow the law and the constitution. And it would be my preference that they reverse Roe v. Wade and therefore they return to the people and their elected representatives the decisions with regards to this important issue.
Gregory asked Romney one question which touched on the courts and the Constitution: "would a President Romney fight to overturn Roe v. Wade?" But that question falls short in addressing many other vitally important legal issues - from environmental regulation to racial justice, from women's equality to corporate power - that would come before judges nominated by Romney. Bork presumably advises Romney on these "judicial matters."
Romney's embrace of Bork is especially relevant and worthy of media scrutiny because the next president will almost certainly be in a position to appoint three or more Supreme Court justices. Four of the current justices are over 70 years of age, and Justice Ruth Bader Ginsburg will turn 80 next year. If Romney is elected and is able to confirm justices with views similar to Bork, he will shift the Roberts Court -- already one of the most conservative in history -- even farther to the right.
Despite the tremendous importance of the next President's ability to reshape the Supreme Court, major media outlets have for the most part ignored Romney's embrace of Bork and its implications for the future of the Court. The Washington Post, Wall Street Journal, Los Angeles Times, and the three major broadcast networks have all failed to address the issue. Only The New York Times has provided substantial coverage of Bork's role in Romney's campaign.
Joining others in right-wing media, Fox News is using the GOP convention as an opportunity to push preferred candidates for Mitt Romney's cabinet. For example, on the August 29 edition of Fox & Friends, Gretchen Carlson promoted the prospect of Rudolph Giuliani serving as Attorney General in a Romney administration. However, in their endorsement of Giuliani for the position of the nation's chief law enforcement officer and legal advisor, the Fox News hosts did not mention Giuliani's patronage of convicted former Department of Homeland Security nominee Bernard Kerik, or Giuliani's questionable record on the protection of civil rights and liberties as Mayor of New York City.
While guest hosting The O'Reilly Factor on August 24, Monica Crowley praised SB 1070 architect Kris Kobach's filing suit against the Obama administration's "deferred action" policy, which allows young undocumented immigrants to temporarily remain in the United States. But Crowley failed to mention that the deportation policy is the continuation of long-standing prosecutorial discretion, and also neglected to report the lawsuit's basic procedural flaws.
Instead, Crowley ignored the weaknesses of the lawsuit and alleged the policy is "illegal," accused the administration of acting "extra-constitutionally," and finally commended Kobach for "fighting the good fight" against a "banana republic."
The lawsuit was filed in district court by Kobach on August 23 on behalf of 10 disgruntled Immigration and Customs Enforcement (ICE) agents and is underwritten by controversial "immigration-restriction" group NumbersUSA, despite the Supreme Court's recent reminder that "[a] principal feature of the removal system is the broad discretion exercised by immigration officials." Nevertheless, the lawsuit challenges the administration's policy of deferred action in deportation proceedings for undocumented youth - a continuation of standard immigration discretion also practiced by George W. Bush - and further undermines its credibility through its choice of plaintiffs.
A Boston Globe editorial noted that by the end of his first term, President Obama will have appointed far fewer lower court judges than either of his two predecessors, and chided him for "fail[ing] to make the most of an opportunity to shape the federal judiciary." The editorial referenced a recent New York Times article that highlighted unprecedented Republican obstruction of President Obama's nominees but does not actually mention this fact. By ignoring Republican obstruction, the Globe gives its readers far less than half the story.
The federal judiciary currently has so many vacancies that more than half of Americans are living in a "judicial emergency." That is, as district judges are increasingly faced with disproportionately large dockets, attention to individual cases falls, resolution is delayed, and access to justice for everyone suffers. As The New York Times reported, as of August 17, "Mr. Obama has appointed just 125 such judges, compared with 170 at a similar point in Mr. Clinton's first term and 162 for Mr. Bush."
The National Review has attempted to distract from Rep. Paul Ryan's (R-WI) and Rep. Todd Akin's (R-MO) support of the extreme "Sanctity of Human Life Act" -- legislation that equates abortion and contraception to murder -- by neglecting to mention its relevance to Akin's rape comments and falsely asserting potential bans on abortion aren't a concern. But it is the act's radical redefinition of a fertilized egg as a person that Akin was defending with his imaginary claim that "legitimate rape" does not lead to pregnancy, and the fact that voters in conservative states have rejected similar "personhood" laws merely demonstrates how far outside the mainstream Ryan and Akin are.
In their move to distance conservative media from Akin's comments, the editors of the National Review called for Akin to withdraw his candidacy for the U.S. Senate. However, this calculated abandonment of Akin for announcing a right-wing view that the National Review acknowledges, but prefers kept under wraps, ignores the resurgent movement to criminalize all forms of abortion. By omitting the relevance of the Sanctity of Human Life Act to Akin's comments and the editorial's claim that "no state is going to ban abortion in the case of rape even if Roe v. Wade is overruled," the editorial is perpetuating frequent contributor Ramesh Ponnuru's attempts to gloss over Ryan and Akin's hostility to reproductive rights.
Indeed, the National Review's misdirection is even more apparent now that it appears the 2012 Republican platform will once again support a so-called "human life amendment" to the Constitution that would criminalize abortion in all circumstances. Furthermore, not only is the National Review's reassurance on state abortion bans irrelevant if reports on the GOP platform are accurate, it is wholly misrepresentative of recent state efforts to infringe on women's constitutional rights. In fact, conservative-leaning states have seen multiple attempts at "personhood" bills similar to Ryan and Akin's legislation. This fall, Colorado will likely again have a "personhood" ballot initiative presented to its voters, even though the unconstitutional measure just failed in Mississippi and was held "void on its face" in Oklahoma by the state Supreme Court.
Accordingly, it is unsurprising that Akin's apology for becoming "nationally notorious...for saying something stupid" was specifically only for the "words I said" in reference to rape and not for "the heart I hold," wherein presumably all abortion is criminalized pursuant to "personhood" legislation. A radical criminalization that, the National Review fails to mention, could also apply to in-vitro fertilization, stem-cell research, most forms of contraception, and even miscarriage.
In a post on National Review Online's Bench Memos blog, Carrie Severino critiques two recent studies by the Center for American Progress (CAP) on the increasing power of conservative and big business interests over the processes by which state court judges are selected and hold office. But her "fact-checking" effort misleads on important points.
Severino makes two significant arguments against the studies, which have been discussed by a New York Times editorial and a post on the New Yorker website by Jeffrey Toobin. She states that both CAP studies, "The Conservative Takeover of State Judiciaries" and "Big Business Taking over State Supreme Courts," greatly exaggerate the number of states in which judges are elected. And she claims that the "Conservative Takeover" study states that conservatives in numerous states have sought to give their governor the power to replace judges "at will." In each case, her argument depends on a strained and deceptive reading of the points being addressed.
Severino's claim that the studies exaggerate the number of states that "elect" their high court judges hinges on excluding the common practice of retention elections, in which judges who have reached the bench by appointment or other means periodically come before the voters in referenda on whether they should be retained in office. The studies include both states that employ retention elections and those that initially select judges through elections in their count, while Severino only counts the significantly lower number of states that use elections for initial selection. Indeed, she cites as evidence for her claim an American Judicature Society factsheet on "initial selection."
Apart from the obvious point that an election is an election, it is not reasonable to argue that retention elections are not a means of "electing" judges. Just as much as initial selection elections fill vacancies on a court, retention elections shape state courts. In recent years retention elections in states including Iowa and Florida have become high-profile, high-dollar contests over who will serve on the state's highest court. For example, The Palm Beach Post reported:
An organization with tea party flavoring is targeting [Florida Supreme Court] Justices Fred Lewis, Barbara Pariente and Peggy Quince, the high court's last appointees of late Democratic Gov. Lawton Chiles, although Quince was named jointly with former Gov. Jeb Bush.
Opponents say the justices represent a left-leaning bloc that has turned Florida's court into one of the nation's most activist judiciaries. But the justices are defending themselves, raising an unprecedented level of campaign cash for what could prove to be Florida's first hard-hitting Supreme Court campaign.
It's part of a rising trend nationally that two years ago was marked by three Iowa justices being thrown off the bench by voters following a ruling that allowed same-sex marriage in the state.
In a post criticizing leading American companies' support for the diversity principle in an upcoming Supreme Court case, National Review Online contributor Roger Clegg mischaracterized the nature of the companies' support for diversity, and incorrectly implied it is race-centric in violation of the Constitution. But as the amicus brief for these Fortune 100 companies argues, the pursuit of diversity in higher education is not only important to the nation's economic success, it is also constitutionally permissible.
In October, the Court will hear Fisher v. University of Texas, the latest high-profile civil rights case brought by a rejected applicant challenging a school's race-conscious admissions process. The opponents are asking the Court to not only strike down the specific admissions policy at the University of Texas, but also to reverse Grutter v. Bollinger, the Court's 2003 case that confirmed state consideration of race or ethnicity in higher education admissions -- as one factor among many -- is permissible to achieve the goal of student body diversity.
Clegg mischaracterized the brief filed in this case on behalf of corporations ranging from Wal-Mart and Halliburton, to Microsoft and Starbucks, that instead urges the Court to "reaffirm its holding in Grutter that the conscious pursuit of diversity in the admissions decisions of institutions of higher education - including diversity based upon race, religion, culture, economic background, and other factors - is a compelling state interest."