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Ballot Selfies and the First Amendment

By Kim Plemel, CLS’18

The 2016 United States election saw the increased prevalence of so-called “ballot selfies” and a corresponding dialogue concerning the legitimacy of laws prohibiting the taking of such photos. In the run-up to the election, eighteen states had statutes on the books disallowing ballot selfies.[1] These prohibitions against photos taken in the voting booth were challenged in court in several states including Colorado, Michigan, New York, New Hampshire, and California.[2] In some of these states, litigation has extended past Election Day, and how the courts resolve the issue will have long-lasting implications for how First Amendment rights are vindicated in the face of efforts to prevent corruption in American elections.

Ballot Selfie Laws in the Courts

Some decisions leading up to the election depended on procedural matters. For example, the Sixth Circuit addressed a challenge to a Michigan statute “forbidding voters from exposing their marked ballots to others.” [3] On the basis that the plaintiff had not raised the issue in a timely manner, that court stayed a preliminary injunction against enforcing the law that had been granted by the United States District Court for the Western District of Michigan. After the election, the Sixth Circuit reversed the preliminary injunction in light of the fact that the merits of the First Amendment claim were being considered in the district court, and that litigation is ongoing.[4]

When addressed on the merits, the principal interest asserted by the state in these cases has been one of preventing vote buying: being able to take a photo of a completed ballot allows parties to provide proof of the vote they cast, making exchanging that vote choice for something of value, including monetary payment, feasible. However, statutes prohibiting voters from taking and distributing photos of their completed ballots may be subject to strict scrutiny by the courts because they have been deemed content-based restrictions. After concluding that the correct standard was strict scrutiny, a federal court in Indiana found that the challenged statute was not narrowly tailored to address the state’s interests.[5] The United States District Court for the Southern District of New York, on the other hand, denied a preliminary injunction against enforcement of the New York statute, suggesting that “polling places are generally not considered to be public fora […] and therefore any regulation of speech at a polling place is evaluated only under a reasonableness standard.”[6] These few cases on the issue suggest there is ambiguity in the law that warrants clarification by a higher court.

New Hampshire’s Petition for Cert

A federal appeals court declared New Hampshire’s statute invalid as a violation of voters’ First Amendment rights on September 28, 2016.[7] However, the state has filed a petition to the Supreme Court of the United States for a writ of certiorari.[8] It is important that the Supreme Court grant cert in this case because it provides an opportunity to address the issue in a definitive manner well in advance of the next major elections. This will mitigate uncertainty across the country about whether or not taking a photo of a completed ballot is permissible, and if the Supreme Court comes down on the side of First Amendment protection there will be much-needed uniformity in this area. Because this issue has not been definitively resolved but is much less complex than, for instance, the constitutionality of voter identification laws, a Supreme Court ruling would go a long way in resolving the conflict in the decisions on the First Amendment right to photograph one’s ballot.

[1]Ballot Selfies: A look at where they are allowed or not, The Associated Press (Oct. 23, 2016)

[2] Katie Rogers, Can You Take a Voting Selfie? States Wage Legal Battles Days Before Election, The New York Times (Nov. 2, 2016)

[3] Crookston v. Johnson, 841 F.3d 396 (6th Cir. 2016).

[4] Crookston v. Johnson, 2016 WL 7383999 (6th Cir. 2016).

[5] See Indiana Civil Liberties Union Foundation. Inc. v. Indiana Secretary of State, 2017 WL 264538 (United States District Court, S.D. Indiana, Indianapolis Division 2017).

[6] Silberberg v. Board of Elections of the State of New York, 2016 WL 6537691 (S.D.N.Y. 2016).

[7] Rideout v. Gardner, 123 F.Supp.3d 218 (D.N.H. 2015).

[8] Rideout v. Gardner, 838 F.3d 65 (2016), petition for cert. filed (U.S. Aug. 11, 2015)


Andrew Ayala, CLS ’18

After President Trump won the general election in November,  many began to speculate how his presidency would change the existing legal landscape. One of the more contentious issues is the abortion right granted by Roe v. Wade. The President vowed to appoint right-wing justices to the Supreme Court, which many fear would result in less rights for women choosing to get abortions. (Source: MSNBC)

When abortion is discussed in the legal sense, it is not so much about being “pro life” as it is about an originalist approach to constitutional interpretation. Many conservative judges reject the core holding in Roe v. Wade that there is a right to privacy in the Constitution that would protect a woman’s right to abortion. Judicial conservatives hope that the Constitution will be read and applied as they believe it is written, and therefore, limit government power. They see Roe v. Wade as a total failure in that respect. (Source: CNN)

Currently, there is only one  vacancy on the Supreme Court left by Justice Antonin Scalia. Replacing Justice Scalia with another conservative judge would probably not be enough to overturn Roe v. Wade. “Right now there are about five judges on the Supreme Court that would favor Roe v. Wade.” (Source: Justice Scalia’s successor would not be enough for a majority vote against the landmark case. However, there are several judges who are in their 70’s and almost 80’s. It is possible that President Trump may get a chance to replace a second or even third seat on the Supreme Court; at which point Roe v. Wade could be in significant danger.

Furthermore, there is always a chance that the President may surprise the country and nominate someone who is pro-choice. Conservative champion former President Ronald Reagan tapped Justice Anthony Kennedy and former Justice Sandra Day O’Connor who both consistently voted to ratify the core or Roe v. Wade. (Source: Politico) It is possible that President-elect Trump follows in the path of former President Reagan. The abortion debate will definitely be something to keep an eye on now that the President’s taken office.

From Scalia and a White Supremacist, a Victory for Prisoners’ Rights

Tochi Onyebuchi

The American democratic experience is an exercise in contradiction.

Moments after the Supreme Court legalized same-sex marriage nationwide, Justice Scalia, whose loquacious and vituperative dissent in Obergefell v. Hodges has since been widely quoted, analyzed, praised, and mocked, handed prisoners’ rights activists a decisive victory. And he used a white supremacist to do it.

As of Friday, June 26, 2015, thousands of people in federal prisons could face re-sentencing procedures, some of which might result in early release, the result of a blow the Supreme Court just struck against mandatory minimum sentencing laws.

The case of Johnson v. United States addressed the constitutionality of a provision in the Armed Career Criminal Act, a 1984 law that mandated a minimum of 15 years imprisonment (and a maximum of life) for possession of a firearm, if that person bears three or more prior convictions of a “serious drug offense” or a “violent felony.” During petitioner Johnson’s conviction for possession of a firearm as a felon, the federal prosecutor, for the purposes of sentencing, classified a prior conviction for possession of a sawed-off shotgun as a “violent felony” under the statute’s residual clause. Consequently, Johnson was sentenced to 15 years in federal prison.

The problem here is that possession of a firearm is not a violent felony under the statute. Or, at least, the Court realized it wasn’t. Indeed, the clause at question had this to say regarding the definition of a violent felony: “any crime punishable by imprisonment for a term ex¬ceeding one year […] that presents a serious potential risk of physical injury to another.” §924(e)(2)(B) (emphasis added).

Under that law, prosecutors have in the past used drunk driving and failing to report to a parole officer as “violent” offenses, as well as many others that could, in no way, be categorized as violent. As a consequence, defendants were often bullied into plea deals on the basis of a law that, according to Scalia, “proved to be anything but evenhanded, predictable, or consistent.”

Johnson’s claim was that the clause that the prosecution had used to levy a harsher sentence was unconstitutionally vague. After nine years of trying to figure out what exactly that clause meant, the Supreme Court agreed.

The ACCA shares DNA with New York’s “Rockefeller Laws” enacted in 1973, which dictated mandatory minimum sentences of fifteen years’ imprisonment for selling two ounces or possessing four ounces of heroin, cocaine, or marijuana. On the federal level, Congress blanketed the statutory landscape with mandatory minimum sentence restrictions for narcotics offenses, firearm offenses, and other offenses.

Judge Rakoff, District Judge for the Southern District of New York, provides an example of the ensuing judicial insanity that came with stripping judges of their powers of discretion:

“[F]ederal law prescribes a mandatory minimum of ten years’ imprisonment, and a maximum of life imprisonment, for participating in a conspiracy that distributes five kilograms or more of cocaine. But if the use of a weapon is involved in the conspiracy, the defendant, even if she had a low-level role in the conspiracy, must be sentenced to a mandatory minimum of fifteen years’ imprisonment, i.e., ten years on the drug count and five years on the weapons count. And if two weapons are involved, the mandatory minimum rises to forty years, i.e., ten years on the drug count, five years on the first weapons count, and twenty-five years on the second weapons count—all of these sentences being mandatory, with the judge having no power to reduce them.”

The practice of augmenting sentences bears strong implications with regards to for-profit prisons: Private prison corporations, such as the Corrections Corporation of America—which in 2012 generated more than $1.7 billion (USD) in revenue—regularly contract with the federal, state, and local governments to fill prison beds and are the prime beneficiaries of sentence-enhancing legislation, such as the ACCA. And, the racial ramifications are undeniable: In fiscal year 2014, 5,498 offenders were convicted of violating the ACCA. 98% were male. 52.4% of those were black.

While the inequities of mandatory minimum sentencing are most often invoked in the context of drug offenses, they wreak similar havoc when tracking weapons offenses.

Friday’s ruling won’t open every cell in Attica, but for the approximately 900 or so prisoners whose convictions have not yet become final (i.e. when a prisoner has exhausted his direct appeal in the federal court of appeals and the Supreme Court has denied a petition for certiorari or the time to file a petition for certiorari has expired), the argument may now be made that they were sentenced under plain error that affected substantial rights and that, as in the case of Samuel Johnson, violated Due Process.

For prisoners whose convictions are final, relief may also be available. Retroactively applying the Johnson decision to defendants already convicted under the ACCA would trigger collateral review. And for those prisoners who were subject to the sentencing enhancement, they may now be able to raise the claim that they were punished with a sentence the statutory law could not impose on them, a sentence that exceeded the statutory maximum for the offense of which they were convicted.

Samuel Johnson was an avowed white supremacist who was under investigation by the FBI since 2010 and was suspected of preparing to commit acts of terrorism. He revealed to undercover agents his cache of AK-47s, semi-automatic rifles, and ammunition. He told them he had manufactured an explosive device meant for specific “progressive” targets.

And he may have provided a new avenue of relief for thousands of inmates of color nationwide.

It is up to Congress now to draft more specific language or simply to operate under the limited statute. But, in the meantime, federal prosecutors may have their hands full in determining who may be eligible now for early release.

Gideon and Habeas Corpus: The Evolution of Justice in a Post-Teague, Post-AEDPA World

Georgina Yeomans

On May 13, 2015, the Senate Judiciary Committee held a hearing, with bipartisan support, on proposals to protect the right to counsel for indigent defendants charged with misdemeanors. While this unity in favor of expanding the right to counsel for indigent defendants is encouraging for criminal justice reform advocates, providing defendants with counsel won’t mean much if Congress and the Court continue to impede defendants’ ability to challenge their convictions and to urge judicial evolution on criminal justice matters.

Fifty-two years have passed since the Court’s decision in Gideon v. Wainwright guaranteed counsel to indigent defendants facing state felony charges. The fiftieth anniversary, in 2013, prompted significant discussion about how Gideon’s promise has gone unfulfilled, as Congress and state governments have not adequately funded the offices tasked with carrying out the Court’s mandate. But also disconcerting, and left largely unmentioned by these critiques, is that access to justice has been greatly restricted in other ways since Gideon’s time. Specifically, the right to be heard on a petition for a writ of habeas corpus has been restricted—by the 1989 case Teague v. Lane and by the 1996 Antiterrorism and Effective Death Penalty Act—to the point that, had those rules applied in 1963, Gideon may not have happened. Continue reading Gideon and Habeas Corpus: The Evolution of Justice in a Post-Teague, Post-AEDPA World

From Shield to Sword: TTIP’s Lessons on Democratic Legitimacy for International Investment Arbitration

Joanna Diane Caytas

Overwhelming popular rejection in Europe imperils the Transatlantic Trade and Investment Partnership [hereinafter TTIP], a free-trade treaty currently being negotiated between Washington and Brussels.[1] Euroskeptics have already moved to exploit negative sentiment resulting from a massive failure of public diplomacy.[2] Continue reading From Shield to Sword: TTIP’s Lessons on Democratic Legitimacy for International Investment Arbitration

The Current State of Federal Firearms Regulation [Part II]

Jeremy Lerner

The problems inherent in the statutory and regulatory structure discussed in my previous post lend themselves to a variety of potential reforms. In this post, I will outline many potential reforms and their intended effects on the distribution system as a whole. I recognize that some are more politically feasible than others. But, as noted, there are serious holes within the distribution system that require serious fixes. Continue reading The Current State of Federal Firearms Regulation [Part II]

More Local, But How Democratic? Questioning Devolution

Gena Miller

There is a longstanding consensus that teacher quality is a significant – if not determinative factor- in educational quality.[1] Recently, lawsuits challenging tenure statutes in New York[2], Davids v. New York, and California,[3] Vergara v. California, have reinvigorated discussion about the role of the judiciary in addressing this issue.[4] Many of the legal commentators who have addressed the Vergara case, including Professors Eric Posner, Alexander Volokh, and Jonathan M. Zasloff, have argued that the thinly reasoned decision should be reversed on appeal because the state judiciary should not make the complex policy choices such a case presents. Though it doesn’t address the merits of any of the tenure cases, a recent article in the Harvard Law Review suggests that these cases do not challenge the democratic concerns of judicial competence because, if the complaint is successful, the court need only strike down the statutes. The state legislature can then draft new laws or if the legislature does not act, decision-making about these procedures will devolve to local school districts. Though school district authority is a lower level of government hierarchy, it is not necessarily more democratic. Continue reading More Local, But How Democratic? Questioning Devolution

Does Bitcoin Bite?

Katie Coulson

On January 22, 2015, the Winklevoss brothers announced that they were creating a new exchange for the virtual currency, Bitcoin. They hope that, unlike other Bitcoin exchanges, this one will be fully compliant with all applicable regulatory laws. While their efforts at compliance may curb some of the illegal activity surrounding Bitcoin, ultimately, it will be insufficient. Instead, Bitcoin should be regulated on a more micro-level in order to protect the average Bitcoin users.

According to the guidelines issued by the Financial Crime Enforcement Network (FinCEN), Bitcoin exchanges must comply with all regulations that apply to Money Services Businesses. However, these regulations only apply to the exchanges—that is, the businesses where users can turn their government-backed money into Bitcoin. While regulating these exchanges is helpful in theory, in practice, many of the exchanges have few incentives to comply. Most are hosted internationally and are run by people who retain a large degree of anonymity. Plus, many exchanges do not charge significant transaction fees and make fairly little money. So, many exchanges would cease to exist if complying with regulations would cause them to incur significant fees. Continue reading Does Bitcoin Bite?

The Current State of Federal Firearms Regulation [Part I]

Jeremy Lerner

In the United States, firearms are a leading public health problem.[1] Over the past decade, the total number of firearms-related fatalities has averaged approximately 31,000 deaths per year,[2] comprised largely of firearms suicides, homicides, and unintentional or accidental deaths.[3] In addition, it is estimated that almost 500,000 fatal and nonfatal violent crimes are committed each year with a firearm.[4] Compared to peer developed nations, these numbers are staggering.[5]

In order to address these problems, there has been a large movement for firearms regulation in general, and restrictions on distribution in particular. This strategy is premised on several fundamental assumptions. First, that distribution is relatively concentrated such that regulation is meaningful.[6] Second, there are classes of individuals that are deemed particularly high-risk for violence to the extent that ownership of firearms should be limited or barred. Third, in regulating distribution, these individuals can be identified and prevented from obtaining access to firearms. And fourth, such restrictions will aid in lowering the overall prevalence of firearm fatalities and crimes in which firearms are used.[7]

Federal Firearms Licensees (“FFLs”) play an integral role in this system of regulation. Continue reading The Current State of Federal Firearms Regulation [Part I]