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.

EFF Takes Aim at Telco Immunity

The Electronic Frontier Foundation has long been in the lead in challenging the Bush administration’s claims of limitless authority to conduct warrantless surveillance. When the administration went to the major telecommunications companies and demanded unfettered access to private data on their customers, every company but one rolled over immediately. That gave EFF the opening it needed.

EFF filed multiple lawsuits on behalf of private plaintiffs alleging that telcos violated  federal statutes prohibiting the interception and dissemination of certain information designated private. In a number of those cases EFF also alleged that the telcos were acting as de facto agents of the U.S. government and were therefore liable for violating their customers’ constitutional rights.

The telcos had much at stake in those cases. Of primary concern was the hundreds of millions of dollars in statutory damages they’d have to pay if EFF could prove its allegations.

The Bush administration came to the industry’s rescue, intervening in all the lawsuits to demand outright dismissal. Allowing any of the lawsuits to continue, the Justice Department claimed, would violate the common law military and state secrets privilege. What was the state secret? Pretty much everything was a state secret, to hear the administration tell the tale. Not just the alleged information allegedly obtained but also the alleged fact that the government had allegedly requested such alleged information was a state secret. Allegedly.

The litigation proceeded while administration pressed Congress hard for legislation granting telcos retroactive immunity for participating in the administration’s unlawful surveillance scheme. Congress caved in July, passing the FISA Amendments Act of 2008 (“FAA”). The immunity provision, Section 802 (codified at 50 U.S.C. § 1885a), states that “a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General” supplies certain information to the court in which the case is pending. Generally speaking, the AG must certify to the court that the company providing assistance acted in response to a court order or a request/directive from the executive branch issued in accordance with certain statutes. The court must dismiss the case unless the AG’s “certification is not supported by substantial evidence[.]” In the parlance of evidence law, “substantial evidence” means more than a scintilla but less than a preponderance. (Not especially helpful, I know.)

Many of the cases are grouped together in a multi-district litigation proceeding pending in the U.S. District Court for the Northern District of California. The Justice Department is invoking Section 802 in an effort to have all those cases dismissed.

EFF is opposing the dismissal on a variety of grounds. Its brief (pdf, 61 pages) is available here. EFF is arguing that: (1) Congress lacks the power to eliminate the plaintiffs’ First and Fourth Amendment claims by statute; (2) Section 802 violates constitutional separation of powers principles by unconstitutionally delegating legislative power to the executive branch and by unlawfully usurping the judiciary’s fact-finding role; (3) Section 802 unconstitutionally deprives the plaintiffs of property and liberty without due process of law; (4) the secrecy provisions of Section 802 violates the First Amendment right of access to documents in civil cases and Article III’s requirement that courts decide whether a sufficiently compelling interest warrants foreclosing such access; and (5) even if Section 802 were constitutional, the government has failed to meet its burden of supporting its dismissal demand with “substantial evidence.”

A hearing is set for December 2, 2008. We’ll have more information as soon as it’s available.

Former judge’s PI fraud trial starts today

After much wailing and gnashing of teeth over jury selection, the federal criminal trial of former Pennsylvania Superior Court Judge Michael Joyce gets under way in earnest today with opening statements and presentation of evidence. Joyce is charged with two counts of mail fraud and six counts of money laundering, all felonies, arising from his collecting $440,000 from two auto insurers for injuries he allegedly sustained in a low impact rear end motor vehicle collision.

I previously discussed the case here. Still unaddressed and uninvestigated is the question that absolutely screams for an answer: why did a couple of hardball motor vehicle insurers like State Farm and Erie cough up almost half a million dollars in record time on an injury claim that was virtually undocumented? Probable answer: the insurance companies were bribing someone who at the time was in a position to do them huge favors in future cases. We’ll never know for sure, though, because the powers that be aren’t interested in answering a question that could make the insurance industry look as bad as it actually is.

SCOTUS slaps Ohio GOP

Republicans are all about not counting votes. They’ve seen Democrats as cheaters since at least 1960, when allegations of election fraud in Illinois marred the Kennedy-Nixon election, and the butthurt persists to this day.

They’re good at getting election officials to see things their way because they’ve had lots of practice. After all, if you look at votes cast, Hubert Humphrey beat Richard Nixon in 1968. By whittling down the number of votes counted, the Republicans ensured that Nixon took LBJ’s place in the White House. And without Nixon, we never would have had the eight-year horror show that is the George W. Bush administration, but that’s a whole ‘nother kettle of fish.

Nowadays, getting election officials not to count votes is ridiculously easy thanks to the grotesquely misnamed Help America Vote Act of 2002. HAVA is the abomination that Congress foisted upon us in the wake of the 2000 Florida presidential election debacle. Since Republicans ran the whole show in Washington in 2002, HAVA is stuffed to the gills with Republican-favoring goodies.

The Ohio Republican Party recently sued Ohio Secretary of State Jennifer Brunner, the state’s top election official, for violating HAVA. In particular, the GOP alleged that Brunner breached her statutory duty to send county election boards a list of voters whose data in the voter registration database doesn’t match data in the drivers’ license system. Such non-matching information is a basis for challenging a voter, don’tcha know, and a challenged voter must submit a “provisional ballot” that only gets counted if the elector’s eligibility is confirmed after the fact.

On October 9, the U.S. District Court for the Southern District of Ohio issues a temporary restraining order requiring Brunner to update the statewide voter registration database and otherwise comply with HAVA. Brunner immediately petitioned the U.S. Court of Appeals for the Sixth Circuit to stay the order. The court of appeals voted 9-6 to keep the TRO in place.

Brunner then took her request for a stay to Justice John Paul Stevens, the Circuit Justice in charge of the Sixth Circuit. Stevens referred the request to SCOTUS as a whole, and the Court issued its ruling today. Brunner v. Ohio Republican Party, 555 U.S. ____ (2008) (pdf, 2 pages).

The Court went considerably farther than Brunner requested. It not only stayed the TRO but vacated it entirely.

The legal issue wasn’t so much what HAVA requires but instead who gets to enforce those requirements. The big question is whether Section 303 of HAVA creates a private cause of action. The Supreme Court came very close to answering the question with a big fat no, ruling that the Ohio Republicans “are not sufficiently likely to prevail on the question whether Congress has authorized the District Court to enforce Section 303 in an action brought by a private litigant to justify the issuance of a TRO.” In other words, go complain to the federal Department of Justice and demand that they enforce HAVA. Absent a “substantial likelihood of success on the merits,” a court can’t issue a TRO.

Nottingham to Quit

Edward Nottingham, chief judge of the U.S. District Court for the District of Colorado and all-around lunatic horndoggy, is resigning this week. Some of Judge Nottingham’s prior travails are discussed here. His sordid history is chronicled in detail here courtesy of Know Your Courts.

Nottingham, a Bush the First appointee, has been on the bench since 1989. According to the Rocky Mountain News article linked above:

The most recent complaint became public Thursday in a 9News report.

A former prostitute said Nottingham asked her to lie to investigators and tell them he didn’t pay her for sex, the station reported.

The woman, whom 9News did not identify, worked for the former escort service Bada Bing Denver. She claimed Nottingham paid her $250 to $300 per hour for sex once a week between February 2003 and November 2004.

Nottingham’s decision to hang up the gavel came after “a closed-door judicial misconduct hearing that didn’t go well,” according to the article.

Update (10/17/08): The waiting is the hardest part, so says Tom Petty, and we’re still waiting on official word of Judge Nottingham’s alleged resignation. His honor hasn’t been to the courthouse since Tuesday, and his case work is getting dumped in the laps of other judges. However, we still lack a formal resignation.

Protocol for resignation of a federal judge involves a phone call to White House. The Denver Post has been trying without success to discovery whether Judge Nottingham or anyone acting on his behalf has made such a call.

Update (10/22/08): Judge Nottingham made it official yesterday afternoon, resigning his commission as a federal judge effective 10/29.

Neck deep in ballot initiatives — Part III

Today we’ll have another look at Amendment 48, the Fertilized Eggs are People Too provision.

Colorado’s state constitution contains a bill of rights that includes the following near-and-dear-to-our-hearts provisions:

Article II, Section 3:

All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.

Article II, Section 6:

Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay.

Article II, Section 25:

No person shall be deprived of life, liberty or property, without due process of law.

Amendment 48 would amend the state constitution by defining the term “person” or “persons” as used in the above-quoted provisions to include “any human being from the moment of fertilization.”

There’s been a lot of insane and overheated rhetoric on both sides of the Amendment 48 dispute. The anti-48 people are saying that the proposal would make murderers out of way too many people. For an example, check out this Denver Post editorial opposing the amendment.

The fear is understandable. After all, “outlawing abortion” was the stated goal of the Christian fundamentalists who devised this abomination. However, as I explained here quite some time ago, the amendment doesn’t do that all by itself. It would take some pretty substantial revisions to the criminal code to “outlaw abortion” in the sense of making women who get abortions or doctors who perform them “murderers.”

I oppose Amendment 48 for several reasons. First, the notion that a an egg is a “human being” from the moment of conception is a religious one. Government endorsement of religious notions is and always has been a bad idea.

Second, although I’m fairly sure what the immediate consequences of 48 won’t be, I haven’t got the first clue as to what they will be. The potential for heinous unintended and unforseen consequences is off the charts here.

Third, the amendment is at odds with the approach the U.S. Supreme Court uses to decide abortion rights under the federal Constitution. We have better things to do with our limited supply of public money than spend it on legal bills to defend the amendment against the inevitable federal constitutional challenge.

Fourth, and perhaps most important, Amendment 48 rolls out the welcome mat for a plethora of Christian right frivolous litigation boutiques. Pass this monstrosity and Liberty Counsel, Liberty Legal Institute, Alliance Defense Fund, Thomas More Law Center, etc. will be all over Colorado recruiting plaintiffs for all sorts of court-clogging nonsense. Let’s sue the General Assembly to make it amend the criminal code to correspond with Amendment 48! Constitutional torts anyone? Let’s get some stranger appointed personal representative of an aborted fetus’s estate and sue the mother and her doctor for wrongful death! The possibilities are endless. And ridiculous. And odious.

More: The good folks at SquareState have a couple of the latest Amendment 48 video ads here. lmfao@”eggmendment”.

Connecticut Supreme Court strikes down same-sex marriage ban

By a 4-3 vote, the Supreme Court of Connecticut held today that Connecticut’s statutory prohibition against same-sex marriage violates the state constitution’s equal protection guarantee.

The majority opinion in Kerrigan v. Commissioner of Public Health is available here (pdf, 85 pages) and the dissents are here (pdf, 40 pages), here (pdf, 2 pages) and here (pdf, 25 pages). Newspaper coverage is available here.

Let the right wing Chicken Little pant-hooting begin anew.

Christian right plea for gross judicial activism fails

The Christian right lawyers trying to stop the Alaska Legislature from investigation Gov. Sarah Palin’s firing of the state’s top police official lost today. Alliance Defense Fund and Liberty Legal Institute lawyers invited the Alaska Supreme Court to commit a rather egregious separation of powers violation but shutting down the investigation. The Court declined invitation. The order affirming the trial judge’s dismissal of a lawsuit filed by the ADF and LLI lawyers is available here (pdf, 2 pages). An opinion will follow later.

Now it’s in the hands of the Legislative Council, the bipartisan group of legislators that authorized the investigation. The Council will meet this morning with special investigator Steve Branchflower and then vote on whether to make the 263-page report public.

Something tells me that the report itself could never live up to the hype/publicity generated by folks who brought us that idiotic lawsuit. Thanks for keeping the issue in the public eye, gents.

Update: The Legislative Council voted unanimously (12-0) to release the report. The conclusion: “Gov. Sarah Palin abused her power in pushing for the firing of an Alaska state trooper who was once married to her sister.” However, “Palin’s firing of Monegan was ‘a proper and lawful exercise’ of the governor’s authority.”

Get yer troopergate case appellate briefs right here!

Briefing is under way in the Alaska troopergate legislative investigation case, previously discussed here. The Christian right extremists who represent the Republican legislators trying to torpedo the investigation have filed their brief, which is available online here (pdf, 50 pages).

The first thing that jumps out is the brief’s length. It’s 37 pages excluding title page, tables, etc. I could have sworn that the Alaska Supreme Court’s order granting an expedited appeal limited briefs to 30 pages. Does anyone know whether the fundies obtained leave to file an extra-long brief? It’s hard to imagine them persuading anyone that seven extra pages were necessary, what with all the orphans in that document.

Section II (starting on Page 13) is also quite the eye-grabber. There, Clarkson & Co. tell us that the injury needed to support standing in Alaska state courts need only be some “identifiable trifle” sufficient for “standing to fight out a question of principle[.]” In addition, Alaska recognizes citizen-taxpayer standing where the case is of “public significance” and the plaintiff is an “appropriate party,” meaning that the plaintiff is not a “sham plaintiff” and is capable of asserting his position competently. If that’s the case — and it surely is, seeing as how a lie on this point would be so easily exposed — standing in Alaska is much broader than it is in other states, and is many orders of magnitude broader than in federal courts.

The huge, honking typo in the point heading on Page 16 is embarrassing, but not nearly as embarrassing as the substance of the arguments. Spending any time at all with the trial court’s opinion will tell you that the judge did in fact accept the averments in the legislator’s complaint as true. The constitutional argument basically boils down to “We have no idea what the Alaska constitutional provision at issue prohibits, but it undeniably prohibits this investigation.”

And here I though that wingnuts favored judicial restraint. C’est la vie, live and learn, etc.

The appellees’ brief is due tomorrow. There will be much midnight oil burnt tonight, as the targets in the appellants’ brief are legion.

Update – 10/07/08: A friend of the court brief filed by some law professors on behalf of of the Republicans is available here (pdf, 27 pages). The Democratic legislators’ brief is here (pdf, 51 pages). Chief Justice Dana Fabe has recused herself (pdf, 1 page) because her husband’s law firm represents one of the supoenaed witnesses. Oral argument is tomorrow, and we’ll probably see a decision come Thursday.

Back in Business

It’s the first Monday in October, and that means the Supreme Court of the United States is getting back to the solemn business of protecting defenseless, downtrodden Fortune 500 corporations from the predatory actions of those black-caped, Snidely-Whiplash-mustache-sporting injured people.

We previewed the big FDA preemption case Wyeth v. Levine here. That case will be argued on November 3.

Also on tap (set for argument today, in fact) is Altria Group, Inc. v. Good. The issues in that case are whether the Federal Cigarette Labeling and Advertising Act expressly preempts a lawsuit alleging that cigarette manufacturers violated Maine’s Unfair Trade Practices Act by fraudulently representing that “light” cigarettes are safer, and whether Federal Trade Commission regulations promulgated under the Act impliedly preempt such claims, even though the FTC has never actually addressed the issue.

The U.S. Court of Appeals for the First Circuit just said no to preemption, a decision that was a veritable no-brainer on the facts of this particular case. The Supreme Court’s ruling will go a very long way toward telling us whether there’s any intellectual honesty left in that venerable institution.

Speaking of intellectual honesty, also up this term is Pleasant Grove v. Summum, previously discussed here and here. When cities open up public parks to monuments bearing the sacred words of majority religions (i.e., the Ten Commandments), must they also allow monuments bearing the sacred words of minority religions (Summum’s Seven Aphorisms, in this case)? The Christians are screaming “NO!” at the top their lungs: “Hey, we believe in talking donkeys and all, but these Summum clowns are just plain NUTS.”

A three-judge panel of the U.S. Court of Appeals for the Tenth Circuit ruled that the cities had turned the parks at issue into public forums and must allow Summum to place their monuments. The court split 6-6 on en banc review, so the panel decision stood. The lunatic fringe Thomas More Law Center represents the Utah cities at issue in their effort to keep their parks closed to “crackpot” religions.

You federal jurisdiction wonks will just love Vaden v. Discover Bank. If the well-pleaded complaint rule causes wicked stirrings in your loins, Vaden is the case for you.

Detailed previews of this term’s cases, along with links to briefs and (when available) oral argument transcripts, are available here courtesy of SCOTUSblog’s SCOTUSwiki.