Arizona’s Proposition 200 and the Halloween haunting by Sandra Day O’Connor

It is fitting that during Halloween week, Supreme Court justice Sandra Day O’Connor has decided to haunt again America’s conservatives.  As you may recall, in one of her most monumental decisions – 2003’s Grutter v. Bollinger – she ruled that affirmative action in higher-education admissions was an evil that America should try to phase out in the next 25 years or so.  Until then, she concluded that the benefit of classroom diversity outweighed the evil of reverse discrimination.

Full-blooded conservatives may have felt relief when moderate conservative O’Connor retired and was replaced by stalwart conservative Alito.  In her retirement, however, O’Connor would occasionally serve as a guest judge on the Ninth Circuit Court of Appeals, and as luck would have it, she was guesting as part of the three-judge Ninth Circuit panel that earlier this week overturned a critical part of Arizona’s Proposition 200.  Gonzalez v. State of Arizona, 08-17094 (Ninth Circuit, October 26, 2010). 

Proposition 200 was passed by the people of Arizona in 2004.  The critical part of the proposition requires people who are registering to vote to show proof of their citizenship – e.g., driver’s license or birth certificate.  That seems like a reasonable requirement, especially in a state like Arizona with a huge number of non-citizens.  After all, citizenship is still a requirement to vote in America.

Advocates for Mexican-Americans didn’t think Proposition 200 was reasonable.  In fact, they thought it stifled Mexican-American participation in the electoral process and, more importantly, was void because it conflicted violated the National Voter Registration Act (NVRA), which only required that voter applicants give their word about their citizenship.  As Ronald Reagan didn’t say, “Trust, but don’t bother verifying.”

On October 26, 2010, a three-judge panel for the Ninth Circuit agreed 2-1 with the Mexican-American advocates, and Sandra Day O’Connor was part of the “2.”  Although she didn’t write the opinion, she concurred in Judge Ukuta’s opinion that the NVRA superseded Proposition 200.

Although I was skeptical as I started reading the Judge Ukuta opinion, I came away thinking that the decision was correctly made.  The first important point in the opinion was that the matter was controlled, not by the Supremacy Clause in the Constitution, but rather by the Elections Clause:

“’The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time by Law make or alter such Regulations, except as to the Place of chusing Senators.’  U.S. Const. art, I, § 4, cl. 1. In a nutshell, the Elections Clause gives state governments initial responsibility to regulate the mechanics of national elections, but only so far as Congress declines to preempt state legislative choices.”

This is an important distinction because a court’s analysis under the Supremacy Clause attempts to maintain a delicate balance between state and federal governments and to preserve state authority where possible.  By way of contrast, a court’s analysis under the Elections Clause does not involve two competing sovereigns, but rather one dominant sovereign (the feds), with the states having delegated, not reserved, authority. 

After deciding that this matter would be controlled by the Elections Clause, it was only a short jump for the court to decide that requiring proof-of-citizenship conflicted with the easy-to-register procedures established by the 1973 NVRA.  As the court noted, the NVRA was a comprehensive law that included the infamous “motor voter” provision and even forbade states from requiring that any registrant statements be notarized.  (The law was obviously the brainchild of the same type of Congress that contributed to the financial crisis of 2007-2008 by pushing for everyone in America to own a home, including the $14,000 strawberry picker in California who obtained a government-backed home mortgage for $700,000.)

An interesting nuance to the Gonzalez decision is that it applies only to registration for federal elections.  State and local jurisdictions are free to establish different requirements for their non-federal elections.  In fact, I read last week that there are several northeastern jurisdictions in the process of enabling legal non-residents to vote in local elections.  If the federal government refuses to amend the NVRA, perhaps Arizona should consider limiting Proposition 200 to non-federal elections.

Personally, I have always believed that increased voting should be an objective and a benchmark of America’s civic-mindedness.  But I don’t believe in artificially increasing participation by dumbing-down the process.  Instead of making it easy to vote, let’s make it something that people care about, at least as much as football.

California’s Proposition 19 – legalizing marijuana

When I worked for USAA, one of my duties was to ensure that it complied with all new insurance statutes, regulations, and caselaw.  The first step in performing that duty – to identify all the new laws – was not as easy as it sounds.  Most people don’t realize how much government activity there is in the 50 states and, unfortunately, there is no single reliable source that can alert you to matters that you are interested in.  Instead we had to create a patchwork system that included both redundancies and gaps. 

I now have the same problem trying to keep up with all of the political activities in the states.  Although I continually surf the internet and read national newspapers like the NYTimes and USAToday and national magazines like Time, I find that they provide only sporadic coverage of activities in the states.  Their world obviously revolves around Washington, D.C.  This weekend brought me another example of the media’s lack of attention to non-Washington matters when I first learned about California’s Proposition 19, which is scheduled for a vote in a mere two weeks. 

Proposition 19 is titled, “The Regulate, Control and Tax Cannabis Act of 2010.”  California is already one of 15 states that have legalized marijuana for medicinal use, but Prop 19 will legalize it for recreational use.  I consider Prop 19 to be a hugely significant vote because, as California goes, so goes the country, and I am disappointed that it has received so little national coverage. 

The legalization of recreational marijuana has long been endorsed by libertarians and free thinkers, like Milton Friedman and William F. Buckley, but people who want to win elections treat it like a “third rail.”  Thus, it is not surprising that both gubernatorial candidates in California – Meg Whitman and Jerry Brown – are on record as opposing Prop 19.  

When I ran for Congress last year, I participated in a candidate forum at UTSA in which a student asked for our position regarding the legalization of marijuana.  The two independent candidates – libertarian Lowry and me – both expressed support, while the two establishment candidates vehemently condemned the thought. 

I have been in favor of legalization ever since reading Friedman back in college, and the arguments have become even more compelling in recent years because of the development of the Mexican drug cartel.  Proponents of Prop 19 claim that, just as legalizing alcohol helped dismantle organized crime in the United States in the 1930s, legalizing marijuana could devastate major drug trafficking organizations.  The financial-impact statement attached to Prop 19 asserts that its adoption will save millions of expenses in the enforcement of the current law and produce millions of revenues in the taxing under the new law. 

U.S. Attorney General Eric Holder has recently attempted to complicate the vote on Prop 19 by warning that the federal government will vigorously enforce the federal law against marijuana even if California legalizes it, and several California law enforcement agencies have said they will support the federal enforcement of federal law.  These statements contrast nicely with the federal reluctance to enforce their immigration laws and their unwillingness to accept local law-enforcement support in that enforcement.

To Eric Holder – don’t treat on me.  You go, California.

Same-sex marriage and California’s Proposition 8

California’s Proposition 8 proposed prohibiting same-sex marriage by amending the CA constitution to provide, “Only marriage between a man and a woman is valid or recognized in California.”  Prop 8 became law in November of 2008 when it was approved by 52% of the voters.  Earlier this week, a federal judge in San Francisco held that Prop 8 was an unconstitutional denial of due process and equal protection under the 14^th Amendment.  The holding in Perry v. Schwarzenegger, Brown, et al. was a pleasant surprise to many same-sex proponents who had concluded that the issue should be resolved in one state at a time instead of obtaining a decision in federal courts that would have nationwide implications.  Their state-by-state efforts for same-sex marriage had been successful in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia.

Prop 8 was defended in the litigation by a private party because Governor Arnold Schwarzenegger and Governor-to-be Attorney General Jerry Brown declined to do so.  In fact, Attorney General Brown conceded that the law was unconstitutional.  Despite their personal disagreement with the law, it is shocking that neither politician was willing to defend something that a majority of the voters approved. 

The private-party Defendant of Prop 8 appears to have put on a half-hearted defense, “eschewing all but a rather limited factual presentation.”  While the plaintiffs presented eight lay witnesses and nine expert witnesses, the defendants presented only two expert witnesses.  Essentially, the Defendant of Prop 8 merely repeated the explanation that had been provided to voters on the ballot:

• “Proposition 8 is simple and straightforward. * * * Proposition 8 is about preserving marriage; it’s not an attack on the gay lifestyle. * * * It protects our children from being taught in public schools that same-sex marriage is the same as traditional marriage. * * *.”

I don’t question bare-bones defense strategy because I have some experience trying to accomplish things on a shoe-string budget.  The Prop 8 proponents probably didn’t think it would be cost-effective to present facts to a judge who was predisposed to disregard their facts.  

Federal Judge Vaughn Walker, a Bush-41 appointee who is rumored to be a homosexual, ultimately (a) found that all of the Plaintiffs’ witnesses were credible and neither of the Defendant’s witnesses was, and (b) ruled that there was no legitimate government interest in prohibiting same-sex marriage.  The decision was based on equal protection and due process under the 14^th Amendment.

• “Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”

Under the Due Process analysis, Judge Walker first rejected the Defendant’s argument that same-sex marriage was a new right and accepted the Plaintiffs’ argument that it was an off-shoot from the existing freedom to marry.  This is important because the U.S. Supreme Court has already declared that the freedom to marry is a fundamental right and, therefore, any limitation placed on this right is subject to strict scrutiny.  Under strict scrutiny, the state must present evidence that showing that the law is narrowly tailored to a compelling government interest.  Judge Walker noted that the government Defendants (Schwarzenegger and Brown) declined to advance such arguments, and held that the private-party Defendant not only failed to meet the heavy burden of production to show that Prop 8 was narrowly tailored to meet a compelling government interest, but also didn’t even produce enough evidence to withstand a rational-basis review.

Under the Equal Protection analysis, Judge Walker suggested, without holding, that any classification relating to sexual orientation was the same as a classification relating to sex.  This is important because the U.S. Supreme Court has already held that any law that classifies by sex is a suspect classification and must be subjected to strict scrutiny – i.e., narrowly tailored to a compelling government interest.  Judge Walker did not make this holding because it was not necessary:

• “As presently explained in detail, the Equal Protection Clause renders Proposition 8 unconstitutional under any standard of review. Accordingly, the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.  Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.”

Instead of applying a strict-scrutiny standard, Judge Walker made his holding based on a rational-basis standard:

• “The Equal Protection Clause of the Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction the equal protection of the laws.  The guarantee of equal protection coexists, of course, with the reality that most legislation must classify for some purpose or another.  When a law creates a classification but neither targets a suspect class nor burdens a fundamental right, the court presumes the law is valid and will uphold it as long as it is rationally related to some legitimate government interest.  The court defers to legislative (or in this case, popular) judgment if there is at least a debatable question whether the underlying basis for the classification is rational. Even under the most deferential standard of review, however, the court must insist on knowing the relation between the classification adopted and the object to be attained.  The court may look to evidence to determine whether the basis for the underlying debate is rational.”  (Citations omitted.)

Judge Walker correctly notes in his opinion that law enacted by proposition, just as law enacted by legislation, must be reviewed by courts to ensure the rights of minorities are not trampled upon.  One wonders, though, what role Judge Walker’s lifetime appointment made in this decision.  Can you imagine an elected judge declaring that the California voters had no rational interest in prohibiting same-sex marriage?  This might be a good argument for keeping judges off the ballot.

Another interesting aspect of this decision concerned whether the liberal domestic-partner law in California should satisfy the needs of same-sex couples.  Although I never noticed Judge Walker using the analogy, I kept thinking of the “separate, but equal” arguments that were used in earlier Civil Rights cases.  “Separate, but equal” arguments were horribly flawed with respect to civil rights, but I wouldn’t be surprised to see the conservative majority on the U.S. Supreme Court conclude that the domestic-partner law in California is an acceptable substitute for same-sex marriage.

Public financing of campaigns and the Fair Elections Now Act

Public financing of political campaigns seems like a good thing because it allows candidates to communicate with the voters without having to sell their souls to fat-cat contributors.  There is a campaign-finance bill pending in Congress that seems promising, but based on my experience with a Congressional campaign earlier this year, the bill needs to some serious tweaking.  For a recent Express-News column regarding the bill, see “Public Financing Bill Will Clean Up Campaigns.”  http://www.mysanantonio.com/opinion/public_financing_bill_will_clean_up_campaigns_97692474.html. 

 The pending bill is titled the Fair Elections Now Act (FENA), and it would apply to federal campaigns for the Senate or House of Representatives.  Because my campaign experience was for the House of Representatives, I will focus on that part of the bill.

To qualify for public financing under FENA, a Congressional candidate would be required to collect at least 1,500 contributions of no more than $100 from in-state contributors for a total of at least $50k.  Thus, the average contribution would be about $33.  After qualifying, the candidate would receive $360k for the primary, and, if successful in the primary, $540k for the general election.  For those Congressional candidates who raise more than $50k, they will $4 for every dollar raised more than $50,000. 

I think this statutory scheme is generally well-conceived.  Although federal election law currently treats contributions in excess of $200 as requiring detailed documentation, I agree that a lower limit of $100 makes more sense for this statutory scheme.  I also agree that the $360k cap on primary spending is appropriate.  I suggest, however, that contributions from outside the Congressional district should not be authorized.   Out-of-district Texans have no more business than Arizonans in a District election.  Furthermore, authorizing out-of-Distrct contributions would give candidates in populated states an advantage in qualifying for FENA financing over those in unpopulated states.

From my perspective, two numbers in the FENA-qualification scheme seem daunting:

1,500 contributions.  Texas requires 500 signatures or $3,000 to get on the primary ballot.  Of the nine candidates running for Congress in Districts 20 and 23, only three candidates collected the signatures and the rest paid a filing fee.  Collecting 500 signatures is a challenge, so imagine getting 1,500 people to give you money.  I believe 500 contributions should suffice.

$50,000 in small contributions.  My Congressional race in 2008 included two candidates – Will Hurd and Quico Canseco – who raised huge amounts of money.  Most of it, however, came in large contributions, and much of it came late in the campaign. 

• According to Hurd’s pre-primary report (21 days before the primary), he had received $138k in contributions, but only $30k was in unitized contributions (i.e., not more than $200 each).  If his 122 in-state itemized contributions were reduced to the FENA maximum of $100, Hurd would have received a total of $42k in FENA-qualified contributions at the time of his pre-primary filing.  Thus, Hurd would not have qualified for FENA financing in time to help his primary campaign.
• Quico Canseco’s campaign fell even more short of qualifying for FENA financing.  According to his pre-primary filing, Canseco had received $154k in contributions, but only $12k was in unitized contributions.  If his 122 in-state itemized contributions were reduced to the FENA maximum of $100, Canseco would have received a total of only $24,000 in FENA-qualified contributions at the time of the pre-primary filing, and he would have been less than half way to FENA financing.

Of course, one can argue that FENA candidates who are not pre-occupied with seeking large sums of money from fat cats will work harder to obtain modest sums from non-fat cats.  That makes sense to me.  In fact, candidates may have to aggressively seek the support of lots of people with some money instead of some people with lots of money.  That sounds like an improvement over the current system. 

Because of the difficulty in securing adequate contributions several weeks before the primary, I think it makes sense to reduce the qualifying amounts to 500 contributions totaling $25,000.  Or even better, FENA should allow pro-rated qualification - e.g., 10% funding after qualifying with 150 contributions for $5,000 – because this would validate low-budget campaigns.