SCOTUS Update

It being a Monday in June, we have Supreme Court decisions.  Four decently big ones came down today, Bank of America vs Caulkett, EEOC v Abercrombie & FitchElonis v US, and Mellouli v Lynch.

The first case (Caulkett) involved whether or not Chapter 7 bankruptcy could wipe out a second mortgage as well as the first when it came to underwater mortgages. In a 9-0 decision, SCOTUS said no dice.

The U.S. Supreme Court on Monday handed a win to Bank of America Corp by ruling that a second mortgage on an “underwater” home – one with a mortgage balance exceeding its current value – cannot by voided during bankruptcy.

On a unanimous vote, the court ruled against two homeowners, David Caulkett and Edelmiro Toledo-Cardona, in Florida, where many homeowners have struggled to pay their mortgages following the recent housing crisis.

Caulkett and Toledo-Cardona had both won before the regional appeals court that oversees Florida. The 11th U.S. Circuit Court of Appeals had ruled that homeowners in Chapter 7 bankruptcy can void – or in bankruptcy terms “strip off” – a second mortgage when the debt owed to the holder of the first mortgage is more than the property’s current value.

SCOTUS didn’t buy that argument in the least, with Clarence Thomas writing the opinion.  Things went a little better in the EEOC case:

The US Supreme Court on Monday ruled against Abercrombie & Fitch in a dispute over its decision not to hire a 17-year-old Muslim girl who wore a headscarf that would have violated the store’s notorious “look policy.”

The dispute centered on a federal law that requires employers to “reasonably accommodate” workers’ religions or disabilities. The Equal Employment Opportunity Commission (EEOC) had sued on behalf of Samantha Elauf, who wore the offending head scarf to her Abercrombie interview.

In an opinion written by Justice Antonin Scalia, the high court ruled that job applicants don’t need to show that an employer knew that a job applicant needed special accommodation for their religious beliefs in order to claim they were treated differently because of those beliefs.

“Abercrombie’s primary argument is that an applicant cannot show disparate treatment without first showing an employer had ‘actual knowledge’ of the applicant’s need for accomodation. We disagree,” Scalia wrote.

That one was 8-1 with Thomas a partial dissent.  Then there was Elonis v US, the so-called “Facebook threats case“:

The Supreme Court has reversed the conviction of a Pennsylvania man who said violent messages he posted on Facebook were therapeutic, not true threats. Anthony Elonis was arrested by the FBI, which had been monitoring his posts.

At issue is the standard by which a lower court viewed rap lyrics and messages from Elonis, who often posted graphically violent language along with disclaimers that he was merely asserting his First Amendment rights.

As we reported last year, Elonis began posting violent messages after his wife of seven years left him in 2010. The messages he posted to Facebook prompted Elonis’ now ex-wife to get a state protection order against him, and led his bosses to fire him from his job at an amusement park.

Elonis was charged with threatening his wife, a kindergarten class, and law enforcement officers — including a female agent who visited his house to question him. All were subjects of rap-style lyrics he posted to Facebook, under the pseudonym Tone Dougie.

A jury convicted him on those counts, and Elonis was sentenced to more than three years in prison.

SCOTUS tossed that conviction 7-2, Chief Justice Roberts on the opinion there, with dissents from Alito and Thomas.  Finally in Mellouli, the Supremes overturned a drug conviction case for a Tunisian man that led to deportation:

The Supreme Court has overturned the deportation of a Tunisian man whose crime was possessing drug paraphernalia.

Mones Mellouli was deported after he pleaded guilty to the minor drug crime in Kansas state court. The item in question was a sock that contained four pills of the stimulant Adderall.

Justice Ruth Bader Ginsburg wrote for the court Monday that federal law does not authorize deportation for such a minor offense.

That one went 7-2 with RBG on the opinion, Thomas and Alito dissenting.

Hash it out in the comments and all that.








Voting rights and wrongs

Went to a great voting rights panel at Netroots Nation. Nina Turner is running for Ohio Secretary of State and Maggie Toulouse Oliver is running for New Mexico Secretary of State. Jocelyn Benson ran for Michigan Secretary of State in 2010.

tina turner

Candidates running for Secretary of State will discuss voting rights issues that come up in the states and what participants can do to help fight back against Voter ID laws in their own states.

Nina Turner is very passionate about voting rights, knows her stuff and was also (incidentally) the favorite of county Democrats here when they met her along with some other state candidates recently. Maggie Toulouse Oliver focused more on the administrative role of a secretary of state, although Oliver is no slouch on the passion part either. Sometimes those two issues are separated – competent administration of elections and the history and meaning of voting – (example of that here) but I disagree with that approach. We can vigorously defend the right to vote and also focus on “good government” administration of elections. Smart, competent voter-centered process protects the right to vote, as a practical matter. Those aren’t two distinct issues. In Pennsylvania in 2012, Republicans attacked the right to vote AND monumentally screwed up the administration of their new voter ID process. They were suppressing the vote and also very bad at running elections.

This was a fun event for me because voting rights make my heart go pitter-patter and I immediately go into oppositional/adversarial posture when listening to people who compare the right to vote to buying booze or using an ATM. This was an extremely well informed crowd – throwing around “HAVA” and “Crawfordwith ease– in other words, my people. I could relax and enjoy the discussion because it wasn’t full of people screeching about mysterious white vans pulling up to polling places and disgorging hordes of fraudulent voters or the ever-popular “there are people who died still on voter rolls so that must mean dead people voted.”

The two candidates for Secretary of State talked a bit about the office of Secretary of State and how it has changed. In the past, it was a rather low-key job because it wasn’t partisan and it wasn’t considered a stepping stone to national fame and the speaker circuit. The objective was to expand lawful access to the ballot, administer elections properly and serve voters. That has changed. An example of this higher profile is Kris Kobach in Kansas, who used the job to pursue his rather extreme legal theories on immigration and become a national advisor to Mitt Romney. It is my belief that Jon Husted in Ohio is also using the job as a stop on his way to the governor’s mansion. I don’t think these folks are interested in the hard work of administering elections in a fair and competent manner. I think they have much bigger ambitions.

I think the politicization of the job began in earnest with the Bush Administration and their “purge” of those US Attorneys who would not pursue allegations of voter impersonation fraud (because voter impersonation fraud doesn’t exist). I think voting process has really suffered as a result, and voters have been all but forgotten in the rush to put in more and more voting restrictions and lump more and more people into the “probably planning a felony” category when they show up at a polling place.



You can’t base a restrictive law on an imaginary fear

Good piece about the work behind the latest win on voting rights:

The debate over state voter-ID laws in the lead-up to November’s elections may have gained a national audience, but the legal action has played out largely in Midwest and Southern courtrooms to this point. That’s not to say Seattle hasn’t been well-represented. University of Washington political science professor Matt Barreto has been in the middle of most of it. Or at least his research has.
The 37-year-old professor has lately been a man in demand. The research he and his colleague, New Mexico professor Gabriel Sanchez, are becoming known for has become part of the standard playbook for lawyers challenging voter-ID laws. Using statistically sound large-swath surveys on a state-by-state basis, Barreto’s findings have demonstrated that not only are blacks, Latinos, and minorities less likely to possess valid photo ID, they’re also less likely to have the documents necessary to obtain such ID.
These laws have proliferated in the wake of the 2013 Supreme Court case Shelby County v. Holder, in which the court, by a controversial 5-4 vote, struck down a section of the Voting Rights Act of 1965 requiring states to obtain federal preclearance before changing voting regulations or practices. With the federal preclearance hurdle removed, states that pass voter-ID laws can move quickly to implement them—and have, to the dismay of many, including the national legal arm of the American Civil Liberties Union.
Last month the effort logged its biggest victory to date when a Federal court struck down a Wisconsin law, signed by Republican Governor Scott Walker in 2011, requiring voters to show photo identification before casting a ballot.
“[Judge Adelman] just systematically dismantled the voter-fraud myth in a way that went beyond any other court decision that I have seen,” Young continues. “He said, correctly, that when it comes to election integrity, the perpetrator of the voter-fraud myth are the ones that are undermining voter confidence in the electoral process, not actual voter fraud . . . He said you can’t pass a restrictive law based on an imaginary fear.”

Who knows what will happen when it gets to the US Supreme Court, but the truth is the laws have gotten more and more restrictive. We’ve gone from “voter ID” when I first started following this to “photo ID” and now we’re accepting only certain forms of photo ID.

Ohio’s original ID law contained some protections for voters who could not jump through the hoops; utility bills, “government documents” – there was a genuine effort to recognize and address the problems that real people run into. But that wasn’t enough, the compromise wasn’t acceptable to the GOP base and looking back I don’t think it was ever going to be enough. Because, what’s “enough”? Voter impersonation fraud is imaginary. We’ll never be able to prove we fixed voter impersonation fraud with Ohio’s less restrictive ID law because that problem never existed to begin with.

This is the Texas law. We’ll never know if this one fixed the imaginary problem either:

Here is a list of the acceptable forms of photo ID:
• Texas driver license issued by the Texas Department of Public Safety (DPS)
• Texas Election Identification Certificate issued by DPS
• Texas personal identification card issued by DPS
• Texas concealed handgun license issued by DPS
• United States military identification card containing the person’s photograph
• United States citizenship certificate containing the person’s photograph
• United States passport

The voter fraud fraudsters have all but given up on arguing voter fraud. Now they argue that the ID laws are intended to promote public trust in the election process. That’s a dilemma for voting rights enthusiasts, too, because as the judge in the Wisconsin decision pointed out voter fraud fraudsters created the lack of confidence they’re now “fixing”:

“He said, correctly, that when it comes to election integrity, the perpetrator of the voter-fraud myth are the ones that are undermining voter confidence in the electoral process, not actual voter fraud . . .

I guess they’ll have to tell us when voter impersonation fraud is solved and thus their confidence is restored since this entire issue now rests completely on their “feelings.”



Open Thread – When I make a word do a lot of work like that, I always pay it extra…

I love words, despite the indignities I enforce upon them, so I relish a little bit of grammar geekery.

Geoffrey K. Pullum has a wonderfully nasty post up at Lingua Franca and a wonderfully wonky post up at Language Log, both discussing an article by Washington Post blogger Alexandra Petri.

Petri piles on poor old Bill Keller (isn’t being married to Emma punishment enough for you jackals?), not only for being a concern troll and a horrible human being but, worse still, a blatant and premeditated user of “passive constructions” in his writing. As Petri puts it:

Concern trolls thrive on passive constructions the way vultures thrive on carcasses.

Pullum wonders whether Petri might be getting her “passive” confused with her “obscured agency”, and details his analysis in the Language Log post. There are tables and numbered lists. It’s great fun.

Pullum also links to his tutorial essay which provides a “clear and simple explanation of what a passive clause is” in English, and his forthcoming article Fear and Loathing of the English Passive (pdf):

No folk rhetorical property could yoke together this diverse array of constructions. What is going on is that people are simply tossing the term ‘passive’ around when they want to cast aspersions on pieces of writing that, for some ineffable reason, they don’t care for. They see a turn of phrase that strikes them as weak in some way, or lacks some sort of crispness or brightness that they cannot pin down, and they call it ‘passive’ without further thought. And such is the state of knowledge about grammar among the reading public that they get away with it.

If concealed passives dipped in a little bit of scorn are your thing, then that will keep you entertained for a while.

Meanwhile, in segues, music. Sunday is Australia Day, and one of Australia’s proudest traditions – besides pretending to have invented pavlova*; meat pies; footballers in tiny shorts; dispossessing indigenous peoples; and shipping coloured people back where they came from – is the Triple J Hottest 100. Voting on the best music releases for 2013 has ended, but if you feel like an Aussie weekend, tune in online at 12 noon Sunday Sydney time (Saturday evening for most of you).

You may have to crank up the thermostat and buy some Australian beer to get you in the mood. Think James Boag or Little Creatures. Please don’t buy Fosters, because it is watered-down mule piss.

Cheers, buckeroos. I’m off to bed, for there is to be much drinking today, so that we’ve got a headstart on Sunday. I’ll post a post at Hottest 100 kickoff time for anyone who wants to listen along.

ETA: * Edited for accuracy

EATA: Jesus, you’re going to turn me into Greenwald.

Petri probably was using the term “passive construction” in some rhetorical sense to mean “hiding behind the alleged views of others”, but that means she was being unclear, and exposing herself to the argument that she didn’t know what the term meant. I’m a writer who agonises over every word (and I still manage to fuck up half my posts). I try to use words in a way that avoids confusion, and Petri wasn’t doing that.

I agree, however, that that doesn’t mean she deserves to be called a nincompoop.

EOATA: It is, of course, entirely possible that Ms Petri is, in fact, a nincompoop.

At this stage, I’m just enjoying typing “nincompoop”.