Why judges matter: The best-known example turns 40

Alliance for Justice President Nan Aron issued the following statement marking the upcoming 40^th Anniversary of the Supreme Court decision in Roe v. Wade:

Photo: Planned Parenthood Action Fund/womenarewatching.org

Tuesday’s anniversary of the Supreme Court decision in Roe v. Wade drives home the importance of the Supreme Court in our daily lives. A change of one vote on the Court in the wrong direction could set back set back advances made by women.  A change of one vote the right way can solidify the gains of the past four decades.

But after the anniversary, the urgency tends to fade.  We forget how important the Supreme Court is to our lives in so many other ways.  This year, for example, Supreme Court decisions may determine who can get married, who can go to college and even who can vote.

So we need to focus every day on fighting for a progressive judiciary, not only Supreme Court justices, but judges on our lower courts as well.

Sometimes it is, literally, a matter of life and death.

Read our three-part series: Will the Supreme Court overturn Roe v. Wade?

● Part One

● Part Two

● Part Three

And check out our Bolder Advocacy blog for a listing of how nonprofits are commemorating the anniversary.

Why judges matter: Republican-appointed federal appeals court tries to scare away Ohio Voters

On Halloween, a federal appeals court issued a frightening decision that may cause widespread voter disenfranchisement in Ohio. 

At issue: what happens if someone votes in the wrong place because of an error by a poll worker? A district court issued an injunction requiring that those votes be counted.  The appeals court, however, stayed the injunction, meaning that thousands of otherwise-valid votes will not be counted.

The decision came despite the fact that the district court’s factual findings showed that poll-worker error results in thousands of wrong-location ballots in Ohio, either because poll workers affirmatively misdirected voters to the wrong polling location, or because poll workers provided voters with  ballots for the wrong precinct instead of directing voters to the correct polling location. 

Moreover, the appeals court’s decision ignored Ohio election law, which requires poll workers to direct voters to the correct precinct.  Specifically, the Ohio code states that:

if, upon review of the precinct voting location guide using the residential street address provided by the individual, an election official at the polling place at which the individual desires to vote determines that the individual is not eligible to vote in that jurisdiction, the election official shall direct the individual to the polling place for the jurisdiction in which the individual appears to be eligible to vote... [emphasis added]

Given the district court’s factual findings and the actual text of Ohio’s voter laws, you might wonder why there was even a challenge to this injunction in the first place and how any court could come to such a conclusion. 

Well, the motion to stay the injunction was brought by Ohio’s controversial Republican Secretary of State, Jon Husted, and granted by a three-judge panel of conservative judges, two of whom were appointed by President George W. Bush and one of whom was appointed by President George H.W. Bush. 

In short, the decision shows why judges matter, and how past presidents can leave a continuing legacy of voter disenfranchisement.    

Why Judges matter: Is DOMA really doomed?

Responding to the decision by a second federal appellate court that the so-called Defense of Marriage Act is unconstitutional, a decision discussed in detail in the previous post to this Blog, Washington Post editorial writer Jonathan Capehart wrote a column headlined “DOMA is doomed.”

DOMA defines marriage as only between a man and a woman.  Its practical effect is to deny married gay couples the same federal benefits as other married couples, such as federal employee health benefits for spouses and Social Security survivor benefits.  As Capehart wrote: “It’s flat-out discrimination.”

But does that necessarily mean it’s doomed?  We certainly hope so.  But, as the distinguished legal scholar Stephen Colbert put it in discussing another discrimination case: “It’s the time of year again when skeletal figures shrouded in black fill your mind with fear – because the Supreme Court is in session.”

Seriously – the place where past generations turned to right wrongs and end discrimination now is a place that all advocates for equality must view with trepidation.

The court is expected to decide next month whether to hear appeals from the decisions on DOMA.  It also may hear an appeal from a 9^th Circuit Court of Appeals decision striking down Proposition 8, the voter-approved referendum that banned gay marriage in California.

On the one hand, Justice Antonin Scalia’s recent contemptuous dismissal of gay rights should add to the fear factor.  On the other hand, Justice Anthony Kennedy, often seen as the court’s swing vote, has shown some sympathy toward gay rights.

The President of the Human Rights Campaign, Chad Griffin, told Capehart: “We are at a monumental tipping point as the Supreme Court stands poised to review a law that has resulted in treating gays and lesbians as second-class citizens.”

The question is: Which way will the Supreme Court tip?

Why judges matter: another victory for voting – thanks to the Voting Rights Act

A special panel of three federal judges today delayed implementation of a South Carolina law requiring voters to produce a federal or state issued photo ID. The judges ruled that trying to implement the law in time for the presidential election would put an unreasonable burden on minority voters. That would violate the Voting Rights Act of 1965.

According to Bloomberg News:

"Given the short time left before the 2012 elections, and given the numerous steps necessary to properly implement the law -- particularly the new ‘reasonable impediment’ provision -- and ensure that the law would not have discriminatory retrogressive effects on African-American voters in 2012, we do not grant pre-clearance for the 2012 elections," U.S. Circuit Judge Brett Kavanaugh said in the ruling.

The keyword there is “pre-clearance.” Under the Voting Rights Act, one of the signature achievements of the fight for racial equality, certain parts of the country with a long history of discrimination must get special, advance approval – “pre-clearance” – before they change voting procedures.

This provision, considered the heart of the Voting Rights Act, has been in effect for nearly half a century. But now it is under threat. Its constitutionality has been challenged and the U.S. Supreme Court is expected to hear the case during the coming term. Given the track record of the current Supreme Court majority, many observers fear that the preclearance provision will be struck down.

It’s one more reason why judges matter.