Supreme Court – Page 93

The question for the justices was whether that state law conflicted with the National Voter Registration Act of 1993, which allows voters to register using a federal form that asks, “Are you a citizen of the United States?” Prospective voters must check a box yes or no, and they must sign the form, swearing that they are citizens under penalty of perjury.

Several members of the court’s conservative wing indicated that the state was free to impose additional requirements to make sure only citizens vote.

Justice Antonin Scalia said the federal form was inadequate. “So it’s under oath,” he said. “Big deal. If you’re willing to violate the voting laws, I suppose you’re willing to violate the perjury laws.”

“Under oath,” he added, “is not proof at all. It’s just a statement.”

Patricia A. Millett, a lawyer for several groups challenging the Arizona law, responded that “statements under oath in criminal cases are proof beyond a reasonable doubt” sufficient to lead to the death penalty.

She added that tens of thousands of people had been rejected from the registration rolls because of the Arizona law, though there was no evidence that they were not citizens.

Briefs and other materials are here.

Kate Fort: “The Vanishing Indian Returns: Tribes, Popular Originalism, and the Supreme Court”

March 19, 2013Matthew L.M. Fletcher3 Comments

Our own Kathryn E. Fort has posted her paper, “The Vanishing Indian Returns: Tribes, Popular Originalism, and the Supreme Court,” on SSRN. It was published in the St. Louis Law Journal.

Here is the abstract:

As the nation faces cultural divides over the meaning of the “Founding,” the Constitution, and who owns these meanings, the Court’s embrace of originalism is one strand that feeds the divide. The Court’s valuing of the original interpretation of the Constitution has reinforced the Founder fetishism also found in popular culture, specifically within the politics of those identified as the Tea Party. As addressed elsewhere, their strict worship of the Founders has historical implications for both women and African Americans, groups both marginalized and viewed as property in the Constitution. No one, however, has written about how the Court’s cobbled historical narrative and their veneration for the Founders have affected American Indian tribes. Tribes barely exist in the Constitution, and the Founders’ “original” understanding of tribes was that they would inevitably disappear.

The “vanishing Indian” stereotype, promulgated in the early Republic, and reaching an apex in the 1820’s, continues to influence fundamentally how the Court views tribes. Compressing history from the Founding through the Jacksonian era undermines tribal authority and sovereignty within the Court. In its federal Indian law cases, the Court relies on racial stereotypes and popular conceptions of American history. As a result of these shortcuts, the Court folds all tribes into one large group, empties the American landscape of tribal peoples, and forces tribes into a past where they only exist to disappear.

United States Amicus Brief in Support of Affirmance in the Baby Veronica Case

March 18, 2013Matthew L.M. Fletcher1 Comment

Here.

Supreme Court Denies Cert in New 49ers v. Karuk Tribe

March 18, 2013Matthew L.M. Fletcher

Here is the order list for today.

And the briefs are here.

Native Village of Kivalina v. ExxonMobile Cert Petition

March 14, 2013Matthew L.M. Fletcher1 Comment

Here:

Native Village of Kivalina Cert Petition

Question presented:

Petitioners Native Village of Kivalina and the City of Kivalina, a federally-recognized tribe and an Alaskan municipality, are the governing bodies of an Inupiat village located on an Arctic barrier island that is being destroyed by global warming. Greenhouse gases have caused the Earth’s temperature to rise, especially in the Arctic, which has melted the land-fast sea ice that protects the village from powerful oceanic storms. Kivalina is thus now exposed to erosion and flooding from the sea and must relocate or face imminent destruction.

Petitioners seek damages — not injunctive relief–from the largest U.S. sources of greenhouses gases under the federal common law of public nuisance. In American Electric Power Co. v. Connecticut (“AEP”), 131 S. Ct. 2527 (2011), the Court dismissed a federal common law claim for injunctive relief, holding that the Clean Air Act displaces “any federal common law right to seek abatement” of emissions because the Clean Air Act “provides a means to seek limits on emissions [2] of carbon dioxide from domestic power plants — the same relief the plaintiffs seek by invoking federal common law.” AEP, 131 S. Ct. at 2537, 2538 (emphasis added).

The question presented is: Whether the Clean Air Act, which provides no damages remedy to persons harmed by greenhouse gas emissions, displaces federal common-law claims for damages.

Lower court materials here.

BLT: Experts Debate Effects of Voting Rights Act Case on Indian Voting Rights

February 26, 2013Matthew L.M. Fletcher

Here.

Excerpt:

During a February 22 media conference call with legal experts, Laughlin McDonald, director of the ACLU Voting Rights Project, said he thinks it is the Supreme Court’s duty to reject the challenge of constitutionality of Section 5. “The Section 5 objections enforcement actions…show that the extension of Section 5 in 2006 was more than justified,” McDonald said. In his report, “Voting Rights in Indian Country,” McDonald lays out several discriminatory decisions, such as redistricting in South Dakota, which diluted the Indian vote.

However, Section 5 is not permanent and jurisdictions may terminate or “bail out” from coverage if they have not discriminated for at least 10 years. Nine states are currently covered as a whole: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia.

According to Patricia Ferguson-Bohnee, law professor at Arizona State University and author of an amicus brief filed by the Navajo Nation, Section 5 has improved American Indian’s voting rights in Arizona. However, she said, voters are still facing challenges, such as distant poll locations, linguistic barriers, and restrictive ID requirements.

James Tucker, a voting rights of counsel with Wilson Elser Moskowitz Edelman & Dicker and a primary author of the amicus brief filed by the Alaska Federation of Natives, said Section 5 remains an appropriate measure to prevent the ongoing voting discrimination against Alaska Natives. Section 203 of the Act requires that minorities in certain designated jurisdictions are to be given assistance in voting in their native language.

Cert Stage Briefing Complete in New 49er’s v. Karuk Tribe

February 25, 2013Matthew L.M. Fletcher

Here, from SCOTUSblog. The case is set for Conference on March 15, 2013.

Lower court materials here (case formerly captioned as Karuk Tribe of California v. USFS). Previous post here.