Birfers take it up the ass yet again

Sadly, I can’t seem to get enough of the birthers (“birfers,” to impart a needed and useful sense of derision), the lunatic fringers who insist that President Barack Obama should be removed from office because he isn’t a “natural born Citizen” (NBC) as Article II, Section 1 of the U.S. Constitution requires. Some birfers insist that Obama can’t be a NBC because he born in Kenya or Indonesia or anywhereelsebutHawaii. Others contend that it doesn’t really matter where Obama was born. Those birfers claim that Obama is not a NBC even if he was born in Hawaii; the Constitution requires that both parents be U.S. citizens, and Obama’s father was a British citizen.

These nutjobs have clogged state and federal courts alike with innumerable frivolous lawsuits aimed at ousting the president. All those cases have failed miserably. In the vast majority of cases, dismissal is based on the plaintiffs’ failure to establish standing and/or the fact that the lawsuits present issues that are non-justiciable under the “political question” doctrine.

That brings us to Ankeny v. Governor of Indiana (pdf, 19 pages), which the Indiana Court of Appeals decided yesterday. The case began with a couple of pro se litigants filing suit against Indiana’s governor and others in an Indiana state court. The complaint appeared to be based on the notion that the governor owed and breached a legal duty to ascertain whether or not candidates for President of the U.S. met the constitutional criteria for office. The plaintiffs averred that neither Obama, the Democratic nominee, nor John “WALNUTS!” McCain, the Republican nominee, qualified as a NBC.

(The plaintiffs also evidenced a rather amusing inability to distinguish between presidential electors and presidential candidates, but that’s neither here nor there for present purposes.)

Yes, it does indeed sound batshit insane. Yes, the “argument” did indeed fail in a big way. However, the two buffoons who brought this case managed to pull off something that’s proven to be far beyond the grasp of illustrious birfer lawyers such as Leo Donofrio, Phil Berg, Mario Apuzzo, Orly Taitz and thrice-disbarred Charles Lincoln III (currently serving as Taitz’s “law clerk” and alleged fuck buddy): they got a ruling on the merits.

The defendants in Ankeny didn’t rely on standing-based arguments. The governor moved to dismiss on the ground that, even assuming that all the facts alleged in the complaint were true, the plaintiffs’ claims nonetheless failed as a matter of substantive law. The trial court agreed, and the court of appeal affirmed in the opinion linked above.

The Ankeny plaintiffs are among birfers who believe that only someone born of two citizen parents can be a NBC for presidential qualification purposes. That contention is based in part on Le Droit des Gens ou Principes de la Loi Naturelle, appliques a la conduite & aux affaires des Nations & des Souverains, a treatise on natural law completed in 1758 by Swiss philosopher and bureaucrat Emmerich de Vattel. In Book I, Chapter 19, Section 212 of his treatise Vattel allegedly wrote that “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” That, the argument goes, is the definition of NBC the framers of the U.S. Constitution had in mind.

Relying on U.S. Supreme Court case law, the Indiana Court of Appeals rejected the Vattel argument on the merits. Per the well established rule of English common and positive law — a rule that was entirely familiar to the framers — a person born in country is “natural born” regardless of the citizenship of his parents. There’s no support at all for the remarkable contention that the framers cast aside that familiar understanding in favor of the Vattel definition.

Moreover, although the Ankeny court didn’t actually address the issue, the Vattel definition that birfers rely on doesn’t really exist. Vattel never defined or purported to define the term “natural born citizen.” Being Swiss, Vattel wrote exclusively in French, so the term at issue never appears in Les Droit des Gens.

The initial appearance of “natural born citizen” in an English translation of Vattel’s book came in a edition first published in 1797, a full decade after the Constitutional Convention. The wildly speculative conclusion that the framers got their understanding of NBC from the original French edition of Vattel’s book is belied by the fact that nothing in the original Section 212 fairly and accurately translates to “natural born citizen.”

All in all, Ankeny is pretty tame stuff compared to the multiple spectacular legal train wrecks wrought by soon-to-be-former-attorney Orly Taitz. But a victory for sanity is still a victory, even if unaccompanied by $20,000 in monetary sanctions for frivolous conduct.

De novo review lives (in the 10th Circuit, at least)

I have on multiple occasions bitched, moaned, whined and otherwise griped about the unholy abomination that is the federal Employee Retirement Income Security Act of 1974 (“ERISA”). Opportunities to pass along ERISA-related good news don’t come along that often, but we got one earlier this week, and it definitely warrants a bit of discussion.

As we’ve seen before, ERISA authorizes employees to sue in federal court to recover benefits to which they’re entitled under their employer-provided benefit plans. Unfortunately, the federal judiciary has long been renowned for its predisposition toward wrapping its lips lovingly around the insurance industry’s aching, tumescent Johnson and comfortably sucking the industry to the point of release. That predisposition appears in abundance in ERISA cases.

For one thing, insurance companies and self-funded employee benefit plans invariably include provisions in the plan documents under which benefits denials are subject to one or more levels of in-house “appellate review.” In other words, if the insurance company denies your claim you must appeal that decision to the insurance company, which then gets to decide whether or not it acted properly in denying your claim.

You can guess how those “appeals” generally come out, but the painfully obvious fact that in-house “appeals” are textbook exercises in futility is wholly irrelevant in federal court. You must comply with all of the plan’s in-house “appeals” procedures. If you don’t, the federal court in which you file suit will dismiss your case for “failure to exhaust administrative remedies.”

In addition, though federal law allows courts to review an ERISA plan’s decision to deny benefits, federal courts exercise that authority with substantially less than boundless enthusiasm. In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), the Supreme Court set up a default rule under which courts must review an ERISA benefits denial de novo,  meaning the court gives no deference to the ERISA plan’s decision at all. However, Firestone also endorsed including language in ERISA plan documents giving the plan administrator sole and absolute discretion in interpreting and applying the plan’s terms, as well as determining eligibility for benefits. If the magic language appears in the plan, then judicial review of a benefits denial is limited to whether the plan administrator acted “arbitrarilty and capriciously.” Under that standard, the benefits denial stands if there’s any remotely reasonable basis for the administrator’s decision. Application of arbitrary-and-capricious review generally means that the federal court acts as a rubber stamp for ERISA plan administrators.

If the notion that an insurer or self-funded employee benefit plan can exempt itself from meaningful judicial review by unilaterally inserting a nyah-nyah-na-nyah-nyah clause into the pertinent plan documents sounds, well, TOTALLY FUCKING INSANE to you, that’s because it IS totally fucking insane. But there it is nonetheless.

In 2003 the U.S. Court of Appeals for the Tenth Circuit, the territorial jurisdiction of which includes Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah (as well as the parts of Yellowstone National Park extending into Montana and Idaho), decided Gilbertson v. AlliedSignal, Inc., 328 F.3d 625 (10th Cir. 2003). In that case, the employee benefit plan included the magic “sole and absolute discretion” language, but the plan administrator didn’t issue any decision on the plaintiff’s claim for disability benefits. Many months after the regulatory deadlines for making a decision, the plaintiff filed suit. The trial court, applying “arbitrary and capricious review,” dismissed the lawsuit.

Department of Labor regulations then in effect provided that failure to issue a decision within the regulatory deadlines (generally 90 days for an initial claim and 60 days for an in-house “appeal”) meant that the claim was “deemed denied.” The Tenth Circuit held that a plan administrator isn’t entitled to a deferential standard of review in federal court unless the administrator actually exercised the discretion conferred by the plan within the time alloted by law. Absent an actual, timely decision, Firestone’s default de novo standard of review applies unless the administrator can prove “substantial compliance” with the regulatory deadlines. Substantial compliance requires a showing that the delay in issuing a decision was both “inconsequential” and the product of “an ongoing productive evidence-gathering process in which the claimant is kept reasonably well-informed as to the status of the claim and the kinds of information that will satisfy the administrator.” 328 F.3d at 636.

Gilbertson gave claimants a path to de novo review other than the one recognized in Firestone. The Supreme Court case law suggests that de novo review is allowed only when a plan does not include the magic language. Gilbertson hold that de novo review can be available even if the magic language is there. The heightened level of judicial review basically serves as a sanction for (and thus a deterrent to) inexcusably dilatory conduct.

The Gilbertson Court noted that after the events at issue in that case the Labor Department amended its ERISA regulations. The time limits stayed essentially the same, but the provision that noncompliance with the deadlines resulted in a claim being “deemed denied” was replaced with one stating that noncompliance meant that the claimaint was “deemed to have exhausted . . . administrative remedies.” The Gilbertson Court expressed no opinion on whether its standard-of-review analysis  would apply in cases governed by the amended regulations.

The Tenth Circuit addressed the continuing viability of Gilbertson in Rasenack v. AIG Life Ins. Co. (pdf, 33 pages), decided on Monday. There, a Colorado man was creamed by a hit and run driver, leaving him permanently brain-injured and otherwise severely disabled. The injured person worked for Marriott International, which had an employee benefit plan that included accidental death and dismemberment (“AD&D”) benefits under a policy issued by AIG Life Insurance Company. (Yes, AIG Life is part of the same motley band of sink-or-swim free marketeers that’s received hundreds of billions of dollars in largess from the American taxpayer.)

The AD&D policy included a rider under which the employee is entitled to benefits if he suffers “hemiplegia,” which the policy defines as the “complete and irreversible paralysis of the upper and lower limbs of the same side of the body,” within 365 days of an accidental injury. Mr. Rasenack purchased the basic AD&D coverage and the supplemental hemiplegia coverage through payroll deductions.

Mr. Rasenack’s spouse, who was appointed his guardian and conservator after the accident, made a claim for hemiplegia benefits based on the fact that Mr. Rasenack’s left arm and left leg were paralyzed as a result of the hit-and-run.

AIG denied the claim. The AD&D policy did not define the term “paralysis.” AIG hired a couple of whores with medical degrees to opine that Mr. Rasenack was not hemiplegic because the medical records indicated that he some de minimis movement in his left hand. According to said whores, any movement at all = no “paralysis” and therefore no hemiplegia. AIG was unimpressed with the conclusions of Mr. Rasenack’s treating physician and a nurse AIG itself hired to interview Mr. Rasenack,  both of whom stated in no uncertain terms that he was hemiplegic. Nor was AIG persuaded by the fact that a number of well-recognized medical authorities define “paralysis” in ways that do NOT require a total absence of movement.

AIG’s troubles in this case started with its laughably egregious disregard for regulatory guidlelines. The standard deadline for deciding an intial claim is 90 days, with an absolute maximum limit of 180 days. AIG took sixteen months to deny Mr. Rasenack’s claim.

In-house “appeals” have to be decided within 60 days, up to a maximum of 120 days. When AIG failed to act on an appeal after eight months, Mr. Rasenack filed suit in the U.S. District Court for the District of Colorado. Only after the lawsuit was filed did AIG bother to deny the appeal.

Despite AIG’s egregious and unjustifiable delays, the trial court declined to review AIG’s actions de novo. The AIG policy included the magic Firestone language. The court noted that Gilbertson was based on a now-superseded version of Labor Department ERISA regulations and that, in any event, AIG did exercise its discretion (albeit belately) by denying the claim. The lower court, applying a somewhat modified version of arbitrary-and-capricious review, dismissed Mr. Rasenack’s lawsuit.

On appeal, a unanimous three-judge panel of the Tenth Circuit held that the above-described change to ERISA regulations did not render Gibertson inapplicable. Slip op. at 8. The court of appeals also rejected the rather silly contention that the fact that AIG eventually issued decisions on the intial claim and the appeal rendered arbitrary-and-capricious review appropriate. The court ruled that there’s no meaningful distinction between issuing a decision long after expiration of the applicable deadlines, as happened here, and issuing no decision at all.

Rasenack also illustrates the potential benefits of de novo review. For one thing, in de novo review cases the court must apply the rule of insurance policy construction under which any ambiguities are construed strictly against the insurer and strictly in favor of the insured. The court of appeals found that the undefined term “paralysis” was  ambiguous in the context of this policy, and on that basis ruled that AIG wasn’t allowed to define the term in a way that required proof of a total absence of movement.

We can expect AIG to demand an en banc review of this decision. If that fails, they’ll probably seek review in the U.S. Supreme Court. For now, though, claimants can take comfort in knowing that not all federal courts are completely goddamned unreasonable when it comes to ERISA claims. Such tepid declarations aren’t ordinarily anything to write home about, but in the ERISA context it’s a very big deal indeed.

Capital Punishment Avoids Execution

The 2009 Session of the 67th Colorado General Assembly adjourned sine die on Wednesday.  House Bill 1274, which would have abolished capital punishment in Colorado and channelled additional funds to the Colorado Bureau of Investigation’s cold case unit, went down to a narrow 18-17 defeat in the state senate. Democratic Senators Mary Hodge, Jim Isgar, John Morse and Lois Tochtrop sided with the senate’s fourteen Republicans in voting to keep capital punishment. Earlier, the bill passed the state house of representatives by an equally slender vote of 33-32.

For now, at least, troglodytic Old Testament savagery is safe in Colorado.

And what would Gov. Ritter have done had the bill passed? He ain’t sayin’.

CERCLA Jerk

On Monday, the U.S. Supreme Court decided Burlington Northern & Santa Fe Railway Co. v. United States, 556 U.S. ____ (2009) (pdf, 27 pages). At issue was the scope of liability for environmental cleanup costs under the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). In brief and grossly oversimplified terms, CERCLA authorizes certain federal and state agencies to clean up contaminated lands and collect the costs of cleanup from certain types of entities Congress deemed responsible.

Among the parties that can be held liable for cleanup costs are those who “arrange[] for disposal . . . of hazardous substances” on the site. The Court ruled that “arranger liability” requires a finding that the defendant intended that at least some of the hazardous material at issue would be disposed of on the site in question; mere knowledge or foreseeability of disposal on the land is not enough.

CERCLA imposes a general rule of joint and several liability for cleanup costs. In other words, if more than one entity contributed to the problem, any one of those entities can be compelled to pay the full cost of cleanup. In effect, joint and several liability places the risk of insolvency of one co-defendant on the other co-defendants rather than the plaintiff. However, CERCLA provides that each defendant is liable for only a proportionate share of the cleanup costs (several-only liability) if “there is a reasonable basis for determining the contribution of each cause to a single harm.” The Supreme Court arguably lowered the bar for obtaining several-only liability by approving the trial court’s apportionment, which suffered from what appears to be a rather serious lack of evidentiary support.

A hoity toity law firm’s analysis of Burlington is available here. I’m not especially interested in these cases, but I blogged about this one because it’s morally repugnant to pass on an opportunity to use  the term “CERCLA jerk.”

Judge McConnell leaving 10th Circuit

The U.S. Court of Appeals for the Tenth Circuit announced yesterday that Judge Michael McConnell is resigning effective August 31. After seven years on the bench Judge McConnell is returning to academia. He’s going to be a law professor and director of the Constitutional Law Center at the prestigious Stanford Law School.

Judge McConnell has served with distinction since being appointed to the Tenth Circuit in 2002 by President George W. Pencilcock. Here’s wishing Judge McConnell all the best in his new endeavor.

The Tenth Circuit’s official announcement, along with the resignation letter Judge McConnell send to President Obama, is available here (pdf, 4 pages).

Republic collapses after court enjoins new regulations authorizing concealed weapons in national parks

Back in January 2008, I wrote about the efforts of forty-seven U.S. Senators to remedy a horrific injustice by urging the Secretary of the Interior to amend a couple of Reagan-era administrative regulations to protect the God-given right of all Americans to pack loaded, concealed weapons on lands under control of the National Park Service and the Fish and Wildlife Service.

Proving yet again that no idea was too stupid for the Bush administration to entertain, the Department of the Interior (“DOI”) swallowed the whole mess hook, line and sinker. The Department amended the existing rules to allow people to carry concealed, loaded, operable firearms in national parks and wildlife preserves so long as it’s legal in the state in which the park or preserve is located. See 73 Fed. Reg. 74,966, 74,972 (Dec. 10, 2008). The final rule took effect on January 9, 2009.

On March 19, 2009, Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia granted a preliminary injunction against enforcement of the new regulation.  The injunction was issued in connection with two consolidated lawsuits, one filed by the Brady Campaign to Prevent Gun Violence and the other by the National Parks Conversation Association, the Coalition of National Park Service Retirees and the Association of National Park Rangers.

The outrage over the ruling is damn near palpable, a fact due in no small part to the fact that the National Rifle Association sought and received permission to intervene in both lawsuits as a defendant. The NRA has appealed the preliminary injunction ruling.

One needn’t look around the internet very far or hard to find some winger talking about how the preliminary injunction was wrong because Jesus gave us the right to have guns in the Second Amendment, as the Supreme Court itself recently recognized in District of Columbia v. Heller, 554 U.S. ___ (2008).  Going back to the old regs, which were born on the watch of former Interior Secretary and starry-eyed liberal hippie environmentalist freak James Watt, would deprive us of our most sacred and holy freedoms. So yes, as with most “conservative” “argument,” the basic thrust here is OMFG T3H FREADUM!!1!

Trouble is, these case have precisely jack shit to do with gun rights in general or the Second Amendment in particular. The validity of the amended rule boils down to the comparatively mundane question of whether DOI complied with applicable provisions of the National Environmental Protection Act (“NEPA”) in promulgating the new rule.

Generally, NEPA requires federal agencies to conduct a detailed environmental analysis (called an Environmental Impact Statement) of proposed agency action.  An EIS isn’t necessary if the agency conducts an Environmental Assessment (“EA”) and issues a “finding of no significant impact” presenting the reasons why the proposed action won’t have a significant impact on the human environment.

The Interior Department didn’t do any of that shit before promulgating the amended rules. It decided instead that its actions in amending the rule were subject to a statutory “categorical exclusion” from the EIS/EA requirement. Why? Four reasons: (1) the amendment was “strictly legal” in nature; (2) the amended rule won’t have any environmental effects because it doesn’t authorize any such effects; (3) people were allowed to carry concealed weapons on other federally owned lands with no indication of any increase in poaching, illegal firearms use or danger to the public; and (4) the amended rule maintains existing reastrictions on actual firearm use.

The court’s opinion and order granting the preliminary injunction (pdf, 44 pages) is available here. Getting a preliminary injunction against enforcement of a law is no easy job. The plaintiff has to prove:

(1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction were not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction.

The judge found that the plaintiffs cleared those imposing hurdles easily. As to substantial likelihood of success on the merits, the court found that “DOI’s Decision Memorandum reflects a significant misunderstanding of the obligations imposed by NEPA.” The statute required the agency to take a “hard look” at potential environmental impacts before implementing a new rule. DOI obviously didn’t do that here. The issue isn’t merely whether the amended rule authorizes environmental impacts but rather what environmental effects were foreseeable as a result of the rule.

DOI not only used the wrong legal standard but totally ignored its own long-standing view that the prior regulations prohibiting concealed weapons were “necessary to ensure public safety and provide maximum protection of natural resources by limiting the opportunity for unauthorized use of weapons.” The agency is free to amend its views, of course, but NEPA requires some explanation as to why the rationale underlying the prior rule no longer applies.

If that weren’t enough, DOI’s bare conclusion that the new regulation would have no environmental impact because the concealed weapons would likely never be used on federal land was belied by statements of numerous supporters of the amended rule submitted during the public comment period. Those supporters argued that the amendment was needed so that people can use concealed firearms for self-defense while on federal land. Oops.

NEPA doesn’t provide a direct right of action against administrative agencies, but NEPA’s requirements are enforceable through 5 U.S.C. § 706(2)(A), part of the federal Administrative Procedures Act, which provides that a court may set aside administrative agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” The court had no trouble finding a “substantial likelihood” of the plaintiffs proving that DOI’s actions were arbitrary and capricious with regard to NEPA requirements.

At this point, the lawsuits will proceed along the normal lines. Unless and until the preliminary injunction ruling is reversed on appeal, visitors to National Park Service and Fish and Wildlife Service lands are subject to the old regulations prohibiting concealed, functioning firearms. Despite the title of this blog entry, the republic remains intact despite Judge Kotelly’s commie ruling.

Iowa Supreme Court torpedos gay marriage ban

Here I discusssed the August 30, 2007 decision in which an Iowa trial court judge held that the state statute limiting civil marriage to man-woman couples violated the due process and equal protection rights of same-sex couples under the state constitution. It was a big victory, especially considering that Iowa is pretty much the quintessential “heartland” state, but the decision was largely symbolic since the judge stayed his ruling pending the outcome of an appeal to the state supreme court.

Today the Iowa Supreme Court issued its own ruling in Varnum v. Brien. The court held UNANIMOUSLY (7-0) that the statute in question violated the state constitution’s equal protection clause. All the documents you’d ever want on the case, including the 69-page opinion and a much shorter summary, are available here.

This isn’t California or Taxachussets or some other wild-eyed, drug-addled hippie state, folks. This is goddamn IOWA. And the decision was unanimous. By contrast, the recent California Supreme Court ruling was 4-3.

Naturally, “conservatives” are already calling for an amendment to the state constitution that would overrule today’s decision. Fortunately for gay folk, amending the Iowa Constitution takes serious  time. Any amendment likely  wouldn’t take effect  until 2012.

In the meantime, we can all sit back and enjoy the inevitable tsunami of argumentum ad Santorum wherein “conservatives” scream bloody murder about how this ruling paves the way for people marrying donkeys and ventriloquist dummies and shit.

Cases to Watch (CO Supreme Court)

Today the Supreme Court of Colorado granted cert. in Boles v. Sun Ergoline, Inc., No. 08 SC970. The issue is:

Whether the public policy of Colorado allows enforcement of an exculpatory agreement purporting to release a manufacturer from liability for possible future injuries caused by the manufacturer’s defective products.

The Court of Appeals didn’t designate its opinion for official publication, so that opinion isn’t publicly available.

Exculpatory clauses are nominally “disfavored” in this state, but they’re generally enforceable on some ridiculous freedom-of-contract theory absent some truly horrific disparity of bargaining power. Colorado also adheres to the near-universal rule that excupatory clauses are enforceable as against negligence claims, but are void as against public policy as applied to claims arising from willful and wanton conduct or some higher level of misconduct.

One of the issues in Boles will surely be what rules apply to enforcing exculpatory clauses as to “strict liability” claims. Strict liability means liability without proof of fault. In the product context, the idea is that someone injured in a product-related accident needn’t show that the manufacturer was negligent in designing, making or marketing the product. All the plaintiff has to do is prove that the product was defective and that the defect caused the plaintiff’s injuries. As a practical matter, though, proving that a product is “defective” under the applicable legal standards often involves proving fault on the manufacturer’s part.

In other states, the enforceability of exclupatory clauses as to strict liability claims often boils down to the identity of the plaintiff. If the person bringing the claim is a sophisticated commercial entity and the clause is contained in a contract entered into by the plaintiff  and the  defendant, the clause is likely enforceable. If the plaintiff is some poor schulb who got hurt by a defective product and lacks any direct contractual relationship with the defendant, courts won’t enforce an exculpatory  clause. Time will tell just how “business friendly” our Supreme Court wants our state to be.

Wyeth v. Levine: “That be pre-empted.”

Here I previewed Wyeth v. Levine, the latest and arguably biggest case testing the limits of SCOTUS’s willingness to use the Supremacy Clause of the U.S. Constitution as an instrument of tort “reform.” The Court held oral argument today, and the transcript is available here (pdf, 66 pages).

At issue is whether the tort law of Vermont regarding a drug manufacturer’s failure to provide adequate label warnings conflicts with the federal Food and Drug Administration’s labeling regulatory scheme. I know better than to try predicting votes based on oral argument, but what the hell. I do all sorts of things I know better than to do.

Scalia and Roberts clearly favor the drug manufacturer. Thomas was characteristically silent, but he’ll side with the drug manufacturer as well. Ginsburg pretty clearly favors the plaintiff. The remaining Justices, based solely on their questions, could go either way. For example, Kennedy thinks that one component of Wyeth’s preemption argument is wholly bogus, but he seems much more sympathetic to an alternative argument. Thus, we could be looking at anything from 6-3 win for the plaintiff to an 8-1 win for Wyeth. Most likely outcome: 5-4 win for Wyeth.

BTW, the quote in the title of this entry appears on Page 34 of the transcript. In response to a hypothetical posed by Justice Alito, counsel for Ms. Levine said, “That be pre-empted.” Probably a transcription error (“That would be pre-empted” seems more likely), but for now I choose to believe that at least some manifestations of the consuetudinal “be” are acceptable in SCOTUS oral argument discourse these days.

Court bitch-slaps wannabe election thief Mike Coffman

Mike Coffman, Colorado’s Republican Secretary of State, is a despicable sack of shit. He’s currently running for a seat in the U.S. House of Representatives in a safe Republican congressional district, and virtually assured of victory. With his tenure as Secretary of State winding down fast, this petty, partisan hack and Katherine “Sugartits” Harris wannabe is doing everything possible to suppress the vote.

Back in July, Coffman began “Checkboxgate” by promulgating a rule that would invalidate tens of thousands of new voter registrations. Proper identifying information on new voter registration forms includes driver’s license number, state identification card number and Social Security number. Apparently, many new registrants used their Social Security numbers as identification, but didn’t check the box on the form stating “I do not have a Colorado Driver’s license or Dept. of Revenue identification number.”

Of course, there are other valid voter registration forms out there that don’t include the checkbox at issue. The form that does use the checkbox doesn’t actually say that checking it is required in order to register with a Social Security number. Perhaps most important of all, state law mandates that voters show ID at the polls in order to cast a vote. Thus, the identifying information on the registration form is of little consequence in and of itself.

So what was Coffman’s problem? The vast majority of new registrations came from groups considered friendly to Democrats. Moreover, many of the new registrants were YOUNG, in the 18-22 age range. In other words, Coffman’s problem is that many of these new registrants wouldn’t vote Republican. That simply won’t do during a presidential election year in which Colorado is actually in play for a change. Solution: get them hippies the fuck off the rolls.

Common Cause and others filed suit against Coffman in the U.S. District Court for the District of Colorado. The plaintiffs alleged in their complaint that Coffman violated federal voter registration laws by illegally scrubbing over 31,000 names from the rolls.

Yesterday the lawsuit settled. The settlement provides:

The morning after the election, the state will generate a list of voters who were removed from the rolls since May 14 and send it to county clerks and the groups’ attorneys for review.

The state then will order that the voters on the list who voted by provisional ballot will be verified before other provisional ballots that have been cast.

“Voters on the list shall be presumed to be eligible and their ballots will be counted,” the agreement says. “Only upon a showing by clear and convincing evidence that a voter is not eligible shall a provisional ballot be rejected by the county.”

The secretary of state also must conduct an independent review of each ballot rejected at the county level and order the clerk to count the ballot of any voter whose ballot was incorrectly rejected no later than two weeks before the certification of the statewide election results.

Fortunately for voting rights in Colorado, Coffman is a pig with delusions of grandeur who can’t keep his own maw shut to save his life. Soon after the settlement was announced he told the Rocky Mountain News that, settlement or not, he plans to keep purging names from the voter rolls and leaning on county election officials to do likewise.

This afternoon Judge John L. Kane told Coffman in no uncertain terms to knock it the hell off:

“There has been a violation of federal law, and that must cease and stop immediately,” Kane said from the bench. “That is the order.”

. . .

“I don’t think there is anything deliberate about this, although possibly something obdurate about the secretary’s comments (to the paper),” Kane said. “Let’s just cease and stop from … removing names immediately.”

Jessie Allen, a lawyer for the activists, then told the judge she was concerned Coffman wouldn’t follow the advice of his counsel, or the judge’s order.

“If the defendant doesn’t listen to his counsel, he’s going to be listening to me personally,” Kane said. “I don’t issue threats idly, and I’m not issuing one now. … I expect to be obeyed.”

Once again, the “elitist” and “undemocratic” judicial branch steps in to save democracy from Republican thuggery.