Upholding a decision by Federal District Court Judge appointed by Ronald Reagan, a three judge panel of the 9th Circuit Court Of Appeals held today that California’s Proposition 8, which rescinded the State Supreme Court decision legalizing same-sex marriage, is unconstitutional:

LOS ANGELES – A federal appeals court panel ruled on Tuesday that a voter-approved ban on same-sex marriage in California violated the Constitution, all but ensuring that the case will proceed to the United States Supreme Court.

The three-judge panel issued its ruling Tuesday morning in San Francisco, upholding a decision by Judge Vaughn R. Walker, who had been the chief judge of the Federal District Court of the Northern District of California but has since retired. Like Judge Walker, the panel found that Proposition 8 – passed by California voters in November 2008 by a margin of 52 percent to 48 percent — violated the equal protection rights of two same-sex couples that brought he suit. The proposition placed a specific prohibition in the State Constitution against marriage between two people of the same sex.

The court ruled that Proposition 8 violated the 14th Amendment of the Constitution by discriminating against a group of people, gay men and lesbians.

“Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different people differently,” Judge Stephen Reinhardt wrote in the decision. “There was no such reason that Proposition 8 could have been enacted.”

“All that Proposition 8 accomplished was to take away from same sex-couples the right to be granted marriage licenses and thus legally to use the designation ‘marriage,” the judge wrote, adding: “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.”

Supporters of Proposition 8 can now ask for a larger panel of the United States Court of Appeals for the Ninth Circuit to take up the case. But they could also chose instead to appeal the case directly to the Supreme Court, setting the stage for a decision by the nation’s highest court on an issue that has roiled legal, political and cultural circles here and across the country.

The decision was the latest victory by same-sex marriage proponents here since losing at the polls four years ago and sets the stage for what backers of same-sex marriage said they were seeking: a fight before the Supreme Court.

Lyle Denniston summarizes the Court’s decision:

The majority summed up its ruling this way: “By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause [of the federal Constitution].  We hold Proposition 8 to be unconstitutional on this ground.”

It added: “We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts.  For now, it suffices to conclude that the people of California may not, consistent with the federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the state and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class. The judgement of the district court is confirmed.”

Perhaps the most significant thing about the Court of Appeals decision here, both legally and politically, is the manner in which it is narrowly tailored. To a large degree, the Court’s decision is limited to the specific situation of Proposition 8 itself and the issue of the Constitutionality of taking away a right that had been previously been granted. The decision also relies heavily on the fact that California law already grants same-sex couples and individuals a number of legal rights such as the right to adopt children that mirror a family but that Proposition 8 was enacted for the specific purpose of denying those same couples the right to obtain a marriage license and call themselves married under state law. As the Court held, there is no rational basis for this distinction

Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.

Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, samesex couples had all the rights of opposite-sex couples, regardless of their marital status~ all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State or any other authorized party, an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California’s interests in childrearing or responsible procreation~ for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education; it could not have been enacted to safeguard these liberties.

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for “laws of this sort.” Romer v. Evans, 517 U.S. 620, 633 (1996).

The Court then concluded:

When directly enacted legislation “singl[es] out a certain class of citizens for disfavored legal status,” we must “insist on knowing the relation between the classification adopted and the object to be attained,” so that we may ensure that the law exists “to further a proper legislative end” rather than “to make[ ] [class] unequal to everyone else.” Romer, 517 U.S. at 632-33, 635. Proposition 8 fails this test. Its sole purpose is “to eliminate the right of same-sex couples to marry in California” – to dishonor a disfavored group by taking away the official designation of approval of their committed relationships and the accompanying societal status, and nothing more. Voter Information Guide at 54. “It is at once too narrow and too broad.,” for it changes the law far too little to have any of the effects it purportedly was intended to yield, yet it dramatically reduces the society standing of gays and lesbians and diminishes their dignity. Romer, 517 U.S. at 633. Proposition 8 did not result from a legitimate “Kulturekampf” concerning the structure of families in California, because it had on effect on family structure, but in order to strike it down, we need not go so far as to find it was enacted in a “fit of spite.” Id. at 636 (Scalia, J.R, dissenting). It is enough to say that Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships, by taking away from them the official designation of “marriage,” with its societally recognized status. Proposition 8 therefore violates the Equal Protection Clause.

This is a somewhat narrower ruling than Judge Vaughn Walker’s ruling back in 2010, though not by much. However, because of the manner in which it is based on the specific facts that led to the passage of Proposition 8 and the rights already granted to gays and lesbians under California law, it’s the kind of decision that is unlikely to lead to a nationwide ruling the same-sex marriage even if it were to be ultimately upheld by the Supreme Court. At the most, it would appear that it would have the most immediate impact in states where civil unions are already recognized but same-sex marriage is not. In those states, the Court’s argument that there is no rational basis to withhold the label of “marriage” when state law already effectively grants homosexuals many of the legal rights of marriage but denies them the legal and social status of marriage itself. As the Court found in this case,  and there is of course much more to the ruling than the portion quoted above, there is no rational basis for what Proposition 8 did under any of the theories put forward by the proponents, partly because all it did was say that gays and lesbians couldn’t “marry” while preserving all the rights that California law grants to them many of which undercut the very arguments that the proponents were making.

When it comes to the many states where same-sex marriage is banned, largely be Constitutional Amendment at this point, and there are no same-sex civil unions though, this decision provides at most only half the argument a Plaintiff would need to strike such provisions down. The Court’s ruling that there is no rational basis to restrict the rights of marriage to only opposite-sex couples will be powerful ammunition for Plaintiff’s in those cases, of course. However it’s going to take a little more legal legerdemain to convince a Court to hold that same-sex marriage should be recognized as a right in states that have never recognized it or granted marriage-like rights to same-sex couples. Personally, I’m convinced that argument will be made and will succeed sooner rather than later, but it’s going to take more work than just relying on the decision in this case.

There are several paths forward from here. For practical purposes, it’s unlikely that the injunction on Judge Walker’s ruling allowing same-sex marriages in California will be lifted until all appeals have been exhausted so it will still be awhile before same-sex couples will again be allowed to marry in California. On the legal side of ledger, the proponents have two choices from here. They can appeal directly to the Supreme Court, or they could ask for an en banc hearing before the entire 9th Circuit on the hope that the full Court would reverse or limit the scope of the panel’s ruling. Both of those are within the discretion of the respective Courts, of course, so there’s no guarantee either request would be granted. In the case of the Supreme Court, for example, there may be a desire to avoid this topic given the other high profile cases the Court has accepted this term, and the manner in which this decision is limited largely to California may be one factor that allows them to do decline to hear the case. This issue will make it to the Supreme Court some day, of course, but that doesn’t necessarily have to happen immediately.

On the whole, it seems to me that the Court got this mostly right. Whether it holds up on appeal is something we’ll have to wait and see.

Here’s the decision:

Perry et al v. Brown et al

The birther movement suffered yet another totally predictable setback yesterday when a Georgia Administrative Law Judge ruled that President Obama was eligible to be President under the Constitution and would appear on Georgia’s ballot:

President Barack Obama’s name will remain on the Georgia primary ballot after a state law judge flatly rejected legal challenges that contend he can not be a candidate.

In a 10-page order, Judge Michael Malihi dismissed one challenge that contended Obama has a computer-generated Hawaiian birth certificate, a fraudulent Social Security number and invalid U.S. identification papers. He also turned back another that claimed the president is ineligible to be a candidate because his father was not a U.S. citizen at the time of Obama’s birth.

The findings by Malihi, a judge for the State Office of Administrative Hearings, go to Secretary of State Brian Kemp, who will make the final determination. Last month, at a hearing boycotted by Obama’s lawyer, Malihi considered complaints brought by members of the so-called “birther” movement.

With regard to the challenge that Obama does not have legitimate birth and identification papers, Malihi said he found the evidence “unsatisfactory” and “insufficient to support plaintiffs’ allegations.”

A number of the witnesses who testified about the alleged fraud were never qualified as experts in birth records, forged documents and document manipulation and “none … provided persuasive testimony,” Malihi wrote.

Addressing the other claim that contends Obama cannot be a candidate because his father was never a U.S. citizen, Malihi said he was persuaded by a 2009 ruling by the Indiana Court of Appeals decision that struck down a similar challenge. In that ruling, the Indiana court found that children born within the U.S. are natural-born citizens, regardless of the citizenry of their parents.

Obama “became a citizen at birth and is a natural-born citizen,” Malihi wrote. Accordingly, Obama is eligible as a candidate for the upcoming presidential primary in March, the judge said.

As I noted when I wrote about this last month, there was no legal merit to the claim that the President isn’t a natural born citizen because his parents were not both citizens when he was born. That’s not now the Constitution works when it comes to citizenship.

There are only two classes of citizen under the Constitution, people who are citizens from birth and people who become citizens through naturalization. It’s rather obvious from context that when the Founders used the term “natural born citizen” in the Constitution, they did so to limit eligibility for the Presidency to those people who were citizens from the time they were born. The first Congress clarified this matter even further when it passed the first naturalization law, which provided that “”The children of citizens of the United States that may be born beyond the sea, or outside the limits of the United States, shall be considered as natural-born citizens of the United States.”  This is why someone like John McCain or George Romney was eligible to be President; McCain was born to American citizens in the Panama Canal Zone, Romney’s parents were American citizens who had fled to Mexico and stayed there until the Mexican Revolution in 1912.  The 14th Amendment further clarified this by providing that anyone born in the United States, other than the child of a foreign diplomat, was a citizen from birth regardless of parentage. In 1898, in United States v. Wong Kim Ark that the Supreme Court definitively stated that people born of immigrant parents in the territorial United States are citizens from birth, in other words they are natural-born citizens. All Judge Malihi had to do was applied this law and history to the facts, and the finding was rather straightforward. Barack Obama was born in the United States, his mother was a U.S. Citizen. Therefore, under at least two legal theories he is a natural born citizen. Any argument to the contrary is simply utter nonsense.

There is some significance, I suppose, in the fact that this is the first time that a Court at any level has ruled on the merits of the birther’s idiotic claims and rejected them as the nonsense they are. However, I doubt that’s going to deter them. Already, the same group of people are making similar arguments about Marco Rubio and Bobby Jindal, both of whom were born in the United States to immigrant parents who had not yet become citizens. Much like the people who believe that the 16th Amendment was never actually ratified, or that history has suppressed the passage of an amendment that makes it illegal for lawyers to serve in Federal Government positions, this is a legal conspiracy theory that’s likely to be around for as long as the tin-foil hat brigade is around.

Here’s Judge Malihi’s decision:

Farrar-Welden-Swensson-Powell v Obama – Judge Malihi Final Decision – Georgia Ballot Challenge – 2/3/2012
 

Not surprisingly, the Commander of the Military District of Washington has chosen to accept the findings of a preliminary hearing held last year, and ordered that Pfc. Bradley Manning face a General Court Martial for the charges that he stole hundreds of thousands of pages of classified documents which eventually ended up in the hands of Wikileaks:

The commander of the Military District of Washington has ordered a court-martial for Pfc. Bradley E. Manning, the former intelligence analyst accused of giving hundreds of thousands of classified documents to the anti-secrecy group WikiLeaks.

Maj. Gen. Michael S. Linnington made the decision Friday after reviewing testimony and arguments from a preliminary hearing at Fort Meade in December, officials said.

There was no word on whether the as-yet-unscheduled court-martial would also be held at Fort Meade, one of three installations within the military district equipped to host such a proceeding.

Manning, 24, is charged with aiding the enemy and violating the Espionage Act. If convicted, he could be sentenced to life in prison.

Manning is accused of sending raw field reports from Iraq and Afghanistan, diplomatic cables from U.S. embassies around the world and a video of a U.S. helicopter attack in Baghdad to be published online.

The U.S. Army Trial Judiciary will now assign a military judge, who will set a date for Manning’s arraignment, motion hearings and trial.

During a preliminary hearing in December, Army prosecutors called computer forensic investigators who testified that materials uploaded to WikiLeaks came from computers on which Manning worked.

Manning’s attorneys sought to portray him as a troubled young man who struggled with gender identity, was isolated from his fellow soldiers and should not have been given access to the classified materials.

Manning, who lived in Potomac and studied at Montgomery College before he enlisted in the Army in 2007, attended the hearing but did not speak. It was his first public appearance since his arrest in Iraq in May 2010.

During his detention, his case became a cause celebre among anti-war activists, who say the footage of the 2007 Apache helicopter attack that he is alleged to have released appears to show evidence of a war crime.

At least one of the charges against Manning, Aiding The Enemy, carries with it a potential death sentence but it appears that military prosecutors will demur from seeking that sentence and instead ask for life in prison. Between that charge and the others than Manning faces it’s fairly certain that, if convicted, he would never see the outside of a military prison again for the rest of his life. Judging from last year’s preliminary hearing, the outcome of the case hardly seems to be in doubt. Manning’s lawyers offered no real defense at that hearing, not that they were required to, but it was rather clear from the arguments they did make that they didn’t really have much to argue on their clients’ behalf beyond questioning and testing the elements of the prosecutions case. The logical thing at this point would be for them to try to cut a deal on Manning’s behalf, but it’s possible that Manning himself doesn’t want to plead guilty.

The other unresolved question in the Manning case, of course, is the status of Julian Assange and others associated with Wikileaks. As I noted while the hearing was ongoing, military prosecutors revealed at the time that they had recovered online communications between Manning and Assange that apparently predated the time when Manning stole the classified material. This material has been turned over to civilian prosecutors who are apparently investigating the matter further. Whether there’s enough there to charge Assange under the Espionage Act or anyone else remains unclear at this time, though. Of course, American prosecutors probably aren’t in a rush when it comes to getting something on Assange, he remains under house arrest in the United Kingdom where he’s fighting an order that he be extradited to Sweden to face rape charges. If we want him, we’re going to know where to find him.

Supreme Court Justice Ruth Bader Ginsburg gave an interview to an Egyptian television network recently, and her responses to questions about that nation’s ongoing process to create a new Constitution for itself were interesting to say the least:

Amid fresh clashes in Egypt, the U.S. Embassy in Cairo has posted an  Alhayat TV interview of Justice Ruth Bader Ginsburg. She traveled to the region last month in coordination with the State Department to meet Egyptian counterparts as they begin the nation’s constitutional transition.

“It is a very inspiring time, that you have overthrown a dictator, and that you are striving to achieve a genuine democracy,” the U.S. Supreme Court associate justice says. “So I think people in the United States are hoping that this transition will work, and that there will genuinely be a government of, by, and for the people.”

She says that after meeting with the head of the election commission, she was pleased to see that the recent elections in Parliament’s lower chamber were considered free and fair.

“Let me say first that a Constitution, as important as it is, will mean nothing unless the people are yearning for liberty and freedom.,” Ginsburg, 78, says in the Jan. 30 interview. “If the people don’t care, then the best Constitution in the world won’t make any difference. So the spirit of liberty has to be in the population, and then the Constitution, first, it should safeguard basic fundamental human rights, like our First Amendment, the right to speak freely, and to publish freely, without the government as a censor. ”

Asked by the interviewer if she thought Egypt should use the Constitutions of other countries as a model, Ginsburg said Egyptians should be “aided by all Constitution-writing that has gone on since the end of World War II.”

“I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa,” says Ginsburg, whom President Clinton nominated to the court in 1993. “That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. … It really is, I think, a great piece of work that was done. Much more recent than the U.S. Constitution.”

Here’s the video of the full interview, the first minute or so is in Arabic but the rest is in English:

And, here’s the transcript of the part of the interview that’s gotten the attention of more than a few people:

Q: Would your honor’s advice be to get a part or other countries’ constitutions as a model, or should we develop our own draft?

A: You should certainly be aided by all the constitution-writing that has gone one since the end of World War II. I would not look to the US constitution, if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. It really is, I think, a great piece of work that was done. Much more recent than the U.S. Constitution: Canada has a Charter of Rights and Freedoms. It dates from 1982. You would almost certainly look at the European Convention on Human Rights. Yes, why not take advantage of what there is elsewhere in the world? I’m a very strong believer in listening and learning from others.

Not surprisingly, this comment is already arousing the predictable response from the right. John Hayward at Human Events put it this way:

The Egyptians could use exactly the kind of timeless and powerful ideals laid out by the brilliant framers of the United States Constitution, a document written precisely to thwart the ambitions of “reformers” who think utopia is just a few trampled individual rights away.

They could also stand to hear a robust endorsement of American ideals from someone who actually loves and understands this country, not a mealy-mouthed half-hearted squeak from someone who dwells on our failures, and admires the rest of the world for being so much more enlightened than we are.  The darker forces battling for the soul of Egypt will not be hesitant in advancing their ideals.  They won’t waste any time talking about the deficiencies of their ancient laws, or suggesting the Egyptian people look around the world for more advanced upgrades to their timeless ideals.

Meanwhile, those Americans who recoil from the idea of a Supreme Court populated by people who are willing to express such casual contempt for the U.S. Constitution before foreign audiences should remember that electing Democrats to the White House means you’re absolutely guaranteed to get more of the same.

Having watched the entire interview, I think its somewhat absurd to characterize Ginsburg’s statements as expressing “contempt” for the U.S. Constitution. To me at least, it seemed as though she was making an entirely practical point about whether the system of Government that the United States adopted in 1787 is really appropriate for a non-Western country 200+ years later. It’s worth noting that our system of government is rather unique in the world, and that it hasn’t really adapted well when other countries tried to adopt something similar. David Weigel notes, for example, that the Mexican Constitution of 1824 was based to a large degree on the still-new U.S. Constitution. It proved to be a bad fit for Mexico and was abandoned by 1835. Since then, few nations have fully adopted the structural elements of our Constitution, preferring instead to copy some variation on the Parliamentary systems developed by Great Britain and France.

Of course, as John Tabin points out, there is one area where our Constitutional system has worked better than most others in the world. There are few nations in the world with protections for freedom of speech and religion as broad as those we have in the United States. In Canada, for example, freedom of speech is under constant assault by so-called “human rights” laws that would seek to prosecute people for voicing opinions or making statements of religious faith that some group or another finds offensive. To that degree, I would say that Ginsburg is wrong to say that such nations should be a guide for any other nation seeking to create a Constitution that would both create a functional government and protect individual liberty. Were I looking for a guide in that regard, I doubt one could find a better example of where to start than the Bill of Rights. Of course, I doubt the Egyptian powers-that-be really want to have the kind of freedom that a real Bill of Rights would give the Egyptian people. That’s why so many of nations have a very diluted example of what one would call a “Bill of Rights” that gives far too much authority to the government.

In that sense, then I think Ginsburg is mistaken to point to nations like Canada and South Africa as ideals for a nation considering a charter of rights to add to their Constitution. As far as her main argument goes, though, I think Weigel gets it about right:

I don’t see how you could argue the opposite — all transitional democracies should start with the Constitution we wrote in 1787! — unless you’re writing a Toby Keith song or something. Hell, we’re among the countries that have done some constitution-writing since the end of World War II. Ask a sponsor of the Balanced Budget Amendment; more boringly, ask someone who helped institute presidential term limits.

As a final point its worth noting that Constitutions are above all a reflection of the culture and values of the people that they are adopted by. The idea that we could just take a document that was written during one hot summer 225 years ago and graft it onto a completely different nation without taking into account not only those differences, but also; the numerous Amendments we’ve ratified over the years, the Court decisions interpreting the document, the things we all agree should be fixed, and how other nations have done things is little more than mindless jingoism. We live in a nation of 50 states with 50 different Constitutions, many of which have been changed several times over the years, why wouldn’t the same be true of the world? More importantly, I doubt you’d find a single person on either side of the political aisle who has advised other nations on drafting new Constitutions that would disagree with with the fundamental point that Ginsburg made.

So, yes, Ginsburg is partially incorrect here, but “contempt” for the Constitution? Don’t be ridiculous.

Stephen Colbert’s longstanding bit about his Super PAC has been amusing. But it has little to do with Citizens United or, indeed, anything new in campaign finance law.

Slate‘s Dahlia Lithwick (“Colbert v. the Court: Why, in the battle over Citizens United, the Supreme Court never had a chance“) is the latest to swoon over the shtick.

At 6:04 last Thursday morning, just before Sanchez’ alarm was set to go off, she heard a pounding outside her second floor apartment.

[...]

Within moments, the chainsaw had cut through most of her door, and someone on the FBI’s arrest team kicked the rest of it in.

“That’s when I heard the clicking of a gun and I heard ‘FBI, get down!’, so I laid right on down.

[...]

And they said get your dog, so I got her and at the same time I am laying in her urine because she did pee on herself at the same time.”

[...]

Sanchez says they left her on the floor for 35 minutes, with her daughter screaming for her mommy in the other room.

This is sickening, and yet it is a far too commonplace type of event.  The War on Drugs is out of control—a fact made even worse by the fact that it is not even successful.

My latest for The Atlantic explains, “Why We Should Be Glad the Haditha Massacre Marine Got No Jail Time.”

When Marine Staff Sergeant Frank Wuterich was handed a suspended sentence of three months on Wednesday for his role as squad leader of a group that massacred 24 unarmed Iraqis in Haditha six years ago, it naturally sparked an outrage. To many here in the U.S., in Iraq, and in the Muslim world writ large, this will likely be seen as the U.S. military excusing a heinous crime. But we should instead look at this, even if it is difficult to do so, as the price we pay for a justice system that prioritizes the rights of the accused over a desire to punish criminals.

[...]

Even though we now have a pretty good idea what happened that day, it’s incredibly hard to prove it in court without the active cooperation of reliable witnesses. Alas, as the Associated Press reports, “The prosecution was also hampered by squad mates who acknowledged they had lied to investigators initially and later testified in exchange for having their cases dropped, bringing into question their credibility.” And the few Iraqi survivors declined to testify, fearing for their safety.

[...]

Awis Fahmi Hussein, who survived the attacks, lamented, “I was expecting that the American judiciary would sentence this person to life in prison and that he would appear and confess in front of the whole world that he committed this crime, so that America could show itself as democratic and fair.”

Unsatisfying as it seems, a democratic outcome is exactly what we got. In an authoritarian society — probably even in today’s post-Saddam Iraq — governments will happily sentence citizens to jail to slake the public thirst for justice. In a liberal democracy, however, we put a very high burden on the state in taking away the liberty of a citizen accused of a crime.

Much more detail at the link–the piece is over 1300 words–but that’s the gist.

Earlier this month, I noted a criminal case pending in Federal Court in Denver that raised the question of whether or not a criminal suspect could be compelled to reveal the password to decrypt his computer’s hard drive to law enforcement, or whether such information would be covered by the 5th Amendment’s right against self-incrimination. On Monday, and after three separate hearings on the issue of whether or not the Fifth Amendment would allow the Defendant to remain silent, the Judge president over the case ordered that the password must be produced:

A judge on Monday ordered a Colorado woman to decrypt her laptop computer so prosecutors can use the files against her in a criminal case.

The defendant, accused of bank fraud, had unsuccessfully argued that being forced to do so violates the Fifth Amendment’s protection against compelled self-incrimination.

“I conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer,” Colorado U.S. District Judge Robert Blackburn ruled Monday. (.pdf)

The authorities seized the laptop from defendant Ramona Fricosu in 2010 with a court warrant while investigating financial fraud.

The case is being closely watched (.pdf) by civil rights groups, as the issue has never been squarely weighed in on by the Supreme Court.

Full disk encryption is an option built into the latest flavors of Windows, Mac OS and Linux, and well-designed encryption protocols used with a long passphrase can take decades to break, even with massive computing power.

The government had argued that there was no Fifth Amendment breach, and that it might “require significant resources and may harm the subject computer” if the authorities tried to crack the encryption.

Assistant U.S. Attorney Patricia Davies said in a court filing (.pdf) that if Judge Blackburn did not rule against the woman, that would amount to “a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.”

The relevant section of Judge Blackburn’s opinion is clearly a win for the government, at least in this case:

The small universe of decisions dealing with the Fifth Amendment issues implicated by compelling a witness or defendant to provide a password to an encrypted computer or otherwise permit access to its unencrypted contents are instructive here. In In re Grand Jury Subpoena to Boucher, 2007 WL 4246473 (D. Vt. Nov. 29, 2007) (Boucher I), a laptop computer was found in the defendant’s car during a search incident to his crossing the border from Canada into the United States. During the initial search, an officer opened the computer and without entering a password was able to view its files, revealing thousands of images of what appeared to be, based on the names of the files, adult and some child pornography. An agent of the Bureau of Immigration and Customs Enforcement (“ICE”) was called in, who asked the defendant to show him where these images were located on the computer.6 The defendant naigated to a drive “Z,” which contained several images of child pornography. After the defendant was arrested and the laptop seized, the computer was found to be password protected.

When agents were unable to decrypt the computer, the grand jury issued a subpoena demanding the defendant produce any documents reflecting any passwords associated with the computer. Boucher I, 2007 WL 4246473 at *1-2. Noting that under prevailing Supreme Court precedent, a defendant cannot be compelled to reveal the contents of his mind, the magistrate judge found that the act of producing the password was testimonial and, therefore, privileged. Id. at *4-*6. Accord United States v. Kirschner, 2010 WL 1257355 at *3-4 (E.D. Mich. March 30, 2010). On appeal of that decision, the grand jury revised its request to require the defendant to produce, not the password itself, but rather an unencrypted version of the Z drive. In re Grand Jury Subpoena to Boucher, 2009 WL 424718 at *2 (D. Vt. Feb. 19, 2009) (Boucher II). Because of the revision to the request, the district court denied the motion to quash. The court noted that “[w]here the existence and location of the documents are known to the government, no constitutional rights are touched, because these matters are a foregone conclusion,” that is, they “add[] little or nothing to the sum total of the Government’s information.” Id. at *3 & *4 (quoting Fisher, 96 S.Ct. at 1581) (internal quotation marks omitted). Likewise, the defendant’s production was not necessary to authenticate the drive because he had already admitted possession of the computer, and the government had agreed not to use his act of production as evidence of authentication. Id. at *4. Accord United States v. Gavegnano, 2009 WL 106370 at *1 (4th Cir. Jan. 16, 2009) (where government independently proved that defendant wassole user and possessor of computer, defendant’s revelation of password not su bject to suppression).

There is little question here but that the government knows of the existence and location of the computer’s files. The fact that it does not know the specific content of any specific documents is not a barrier to production. See Boucher II, 2009 WL 424718 at *3 (citing In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992)(United States v. Doe), 1 F.3d 87, 93 (2nd Cir. 1993), cert. denied, 114 S.Ct. 920 (1994)).

Additionally, I find and conclude that the government has met its burden to show by a preponderance of the evidence that the Toshiba Satellite M305 laptop computer belongs to Ms. Fricosu, or, in the alternative, that she was its sole or primary user, who, in any event, can access the encrypted contents of that laptop computer. The uncontroverted evidence demonstrates that Ms. Fricosu acknowledged to Whatcott during their recorded phone conversation that she owned or had such a laptop computer, the contents of which were only accessible by entry of a password. Of the three laptop computers found and seized during the execution of the search warrant of Ms. Fricosu’s residence, only one was encrypted, the Toshiba Satellite M305. That laptop computer was found in Ms. Fricosu’s bedroom, and was identified as “RS.WORKGROUP.Ramona.” None of defendant’s countervailing arguments – the suggestions that the computer might have been moved during the search, that someone else may have randomly designated the computer account as “Ramona,” or that the fact that the hard drive was imaged before it was read somehow undermines its validity or authenticity7 – is sufficient to alter my conclusion that it is more likely than not that the computer belonged to and was used by Ms. Fricosu. Accordingly, I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer.

As Orin Kerr notes, though, the Judge’s ruling only seems to apply when law enforcement can establish a clear nexus between the Defendant and the hard drive they want decrypted:

Based on a quick read of the opinion, the legal analysis in the Fricosu opinion is not a model of clarity. But it strikes me as a replay of the district court decision in Boucher: The Court ends up ordering the defendant to decrypt the hard drive, but only because the court made a factual finding that in this specific case, the government already knew the information that could be incriminating — and as a result, was a “foregone conclusion” that dissipated the Fifth Amendment privilege.

If I’m reading Fricosu correctly, the Court is not saying that there is no Fifth Amendment privilege against being forced to divulge a password. Rather, the Court is saying that the Fifth Amendment privilege can’t be asserted in a specific case where it is known based on the facts of the case that the computer belongs to the suspect and the suspect knows the password. Because the only incriminating message of being forced to decrypt the password — that the suspect has control over the computer — is already known, it is a “foregone conclusion” and the Fifth Amendment privilege cannot block the government’s application.

That’s still a significant victory for the government, of course, because it means that any time the facts of a case can establish that a computer belonged to the Defendant and wasn’t in the possession or control of any other person, then they could compel a Defendant to provide the password(s) necessary to allow them to access the data on the hard drive.

Of course, this is merely a District Court ruling and, as Bruce McQuain notes, other Courts have found differently in similar circumstances:

For instance:

[A] Vermont federal judge concluded that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, did not have a Fifth Amendment right to keep the files encrypted. Boucher eventually complied and was convicted.

On the other hand:

In March 2010, a federal judge in Michigan ruled that Thomas Kirschner, facing charges of receiving child pornography, would not have to give up his password. That’s “protecting his invocation of his Fifth Amendment privilege against compelled self-incrimination,” the court ruled (PDF).

One hopes that this case will be appealed to the Court of Appeals, if only because this is an issue that is going to come up again and again in the future and some resolution would be helpful for all concerned.

Here’s the opinion:

United States v. Fricosu

Joe Paterno’s death is likely to have an impact on the criminal cases arising out of the child abuse allegations against former Penn State Assistant Coach Jerry Sandusky:

STATE COLLEGE, Pa. — The death of Joe Paterno on Sunday will partly weaken the state’s prosecution of two former university officials who have been charged in connection with the child sexual abuse case involving Jerry Sandusky.

Paterno was expected to testify at the trials of Tim Curley, the former Penn State athletic director, and Gary Schultz, the university’s former senior vice president for finance and business. However, it is unclear how much of an effect the lack of that testimony will have on the state’s case against Curley and Schultz.

Paterno testified before a grand jury in January that he met with Curley and Schultz about Sandusky. Paterno told Curley and Schultz that Mike McQueary, a former graduate assistant, reported to him that he had witnessed a sexual assault involving Sandusky and a boy, known as Victim 2, in the shower of Penn State’s athletic facility in 2002.

In a separate meeting, McQueary testified, he told Curley and Schultz about the graphic sexual nature of what he had witnessed.

Curley and Schultz were charged for failing to report to the authorities what they knew about the incident. Curley is on administrative leave; Schultz has retired.

“Now that Paterno is deceased, this charge will have to stand only on the report by McQueary,” said Geoff Moulton, a former federal prosecutor and an associate professor at Widener School of Law. “With respect to Victim 2 and the charges against Curley and Schultz, McQueary’s testimony, which has always been critical, is even more so.”

Paterno’s grand jury testimony is inadmissible, according to several lawyers, because he was not cross-examined in that proceeding. The Sixth Amendment’s confrontation clause guarantees criminal defendants the right to confront the witnesses against them.

Wick Sollers, who was Paterno’s lawyer, said in an e-mail that Paterno’s statements before the grand jury constituted his only under-oath testimony in the case. With Paterno’s death, the lawyers for Curley and Schultz no longer have the opportunity to challenge his credibility.

Curley and Schultz were also charged with lying to the grand jury, but it appears from the grand jury report that those charges stem only from their account that McQueary did not tell them that the incident was sexual in nature. That would mean Paterno’s inability to take the stand is perhaps not as critical in prosecuting the perjury charges.

But his absence could have some effect.

“Why would he have told it to Paterno and not told them?” said Howard Bruce Klein, a former federal prosecutor who is a criminal defense lawyer in Philadelphia. “McQueary becomes more credible when you hear Paterno tell his version of it. On the perjury charge, I would say Paterno would be a corroborating witness.”

Aside from the legal issues keeping Paterno’s testimony out of court, one has to think that the prosecution has lost a real psychological advantage as well. The impact of JoePa himself sitting on the stand and testifying would likely have been considerable.

In a unanimous ruling, although a divided opinion, the Supreme Court ruled today that police cannot place a GPS tracking device on a suspects vehicle without first obtaining a warrant:

WASHINGTON — The Supreme Court on Monday unanimously ruled that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.

But the justices divided 5-to-4 on the rationale for the decision, with the majority saying that the problem was the placement of the device on private property. That ruling avoided many difficult questions, including how to treat information gathered from devices installed by the manufacturer and how to treat information held by third parties like cellphone companies.

Walter Dellinger, a lawyer for the defendant in the case and a former acting United States solicitor general, said the decision “is a signal event in Fourth Amendment history.”

“Law enforcement is now on notice,” he said, “that almost any use of G.P.S. electronic surveillance of a citizen’s movement will be legally questionable unless a warrant is obtained in advance.”

Though the ruling was limited to physical intrusions, the opinions in the case collectively suggested that a majority of the justices are prepared to apply broad Fourth Amendment privacy principles unrelated to such intrusions to an array of modern technologies, including video surveillance in public places, automatic toll collection systems on highways, devices that allow motorists to signal for roadside assistance and records kept by online merchants.

The case decided Monday, United States v. Jones, No. 10-1259, concerned Antoine Jones, who was the owner of a Washington nightclub when the police came to suspect him of being part of a cocaine-selling operation. They placed a tracking device on his Jeep Grand Cherokee without a valid warrant, tracked his movements for a month and used the evidence they gathered to convict him of conspiring to sell cocaine. He was sentenced to life in prison.

The United States Court of Appeals for the District of Columbia Circuit overturned his conviction, saying the sheer amount of information that had been collected violated the Fourth Amendment, which bars unreasonable searches.

The Supreme Court affirmed that decision, but on a different ground. “We hold that the government’s installation of a G.P.S. device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’ ” Justice Antonin Scalia wrote for the majority. Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor joined the majority opinion.

“It is important to be clear about what occurred in this case,” Justice Scalia went on. “The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”

In a concurrence for four justices, Justice Samuel A. Alito Jr. faulted the majority for trying to apply 18th-century legal concepts to 21st-century technologies. What should matter, he said, is the contemporary reasonable expectation of privacy.

“The use of longer term G.P.S. monitoring in investigations of most offenses,” he wrote, “impinges on expectations of privacy.” Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan joined the concurrence.

“We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark,” Justice Alito wrote. “Other cases may present more difficult questions.”

Lyle Denniston tries to make some sense of what the Court actually ruled today, because the existence of multiple concurrences with different legal theories makes the blanket statement that the Court found that the use of GPS tracking without a warrant is unconstitutional isn’t really correct:

Given the complexity of the voting pattern, and what the votes actually supported or failed to support, it nonetheless was clear that the Court was unanimous in one respect.  It upheld the result — but no more than the result — of a D.C. Circuit Court ruling that Jones’ Fourth Amendment rights had been violated.

Justice Department lawyers, trying to salvage their case in the Supreme Court, had argued that the electronic monitoring of Jones — even if it was a search — did not violate the Fourth Amendment because the search was based upon “reasonable suspicion, and indeed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.”  Justice Scalia said the Court would not consider that argument, since it was not raised in the lower courts and the D.C. Circuit did not deal with it.  “We consider the argument forfeited,” Scalia wrote.  That meant, in practice, that Jones’ convicted was overturned, as the D.C. Circuit had ruled.

Because Scalia made mention of that alternative argument, however, it appeared likely that federal prosecutors will attempt to use it in other cases involving the use of the GPS, when the investigators had not obtained a warrant.   Some caution might be in order, though, because Justice Sotomayor’s vote was necessary to make even that part of the Scalia opinion a majority-supported result, and her separate opinion might be read to raise some doubt about her enthusiasm for that argument.

Sotomayor interpreted the Court’s ruling as a narrow one, saying that it was limited to a conclusion that “the government’s physical intrusion on Jones’ Jeep” was a search under the Fourth Amendment.  But she also noted that she agreed with the separate Alito opinion that the use of GPS technology over a prolonged period of monitoring will impinge — in at least some cases — on an individual’s constitutionally protected “expectation of privacy.”

(…)

Justice Alito’s concurring opinion, representing the views of himself and three other Justices, challenged the Scalia opinion as “unwise” for relying — in an originalist sense — about what constituted a “trespass” that invaded privacy at the time the Fourth Amendment was added to the Constitution in 1791 as part of the Bill of Rights.  The Founding generation, Alito wrote, could not have imagined GPS technology.  So, he argued, the ruling in this case should turn on the question of whether individuals have a “reasonable expectation of privacy” that could be compromised by the use of such devices.

There were two qualifications in the Alito opinion’s embrace of that approach.   Such privacy would be intruded upon, he wrote, if there were “longer term GPS monitoring,” and that would be true for “most offenses” that were under investigation.   Those two apparent limitations mean, in practice, that short-term GPS monitoring might not intrude on Fourth Amendment privacy, and police and federal agents’ investigation of some crimes with such a device might not, either.

The Court, in other words. did not go nearly as far as the three judge panel of the D.C. Circuit Court of Appeals from which this case had come, which held that the act of placing the GPS device on the Defendant’s care without a warrant was, in and of itself, unconstitutional, or the position that Judge Alex Kozinski took in a case that was before the 9th Circuit Court of Appeals several years ago. Most importantly, though, it’s worth noting that the Court did not hold today that a warrant is required to place a GPS tracking device on a Defendant’s vehicle. Instead what we seem to have gotten is a ruling that doing so constitutes is a “search” under the Fourth Amendment. Whether it’s a search that requires a warrant is a question that will have to be left for another case.

What this means, of course, is that it will take further cases to decide this issue completely, but it strikes me that Justice Alito is correct when he argues in his concurrence (joined by Justices Kennedy, Ginsburg, Breyer, and Kagan) that the Court erred significantly when it tried to turn this into an issue of trespass instead of looking to the Fourth Amendment itself:

In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. The surveillance at issue in this case—constant monitoring of the location of a vehicle for four weeks—would have required a large team of agents, multiplevehicles, and perhaps aerial assistance.10 Only an investigation of unusual importance could have justified such an expenditure of law enforcement resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap. In  circumstances involving dramatic technological change, the best solutionto privacy concerns may be legislative. See, e.g., Kerr, 102 Mich. L. Rev., at 805-806. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.

To date, however, Congress and most States have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes. The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in aparticular case involved a degree of intrusion that a reasonable person would not have anticipated.

Under this approach, relatively short-term monitoringof a person’s movements on public streets accords withexpectations of privacy that our society has recognizedas reasonable. See Knotts, 460 U. S., at 281-282. But the use of longer term GPS monitoring in investigations ofmost offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that lawenforcement agents and others would not—and indeed, inthe main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surelycrossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendmentsearch, the police may always seek a warrant

Alito raises a good point in bringing up the fact that there ought to be legislative action here, because there are plenty of situations where tracking like this can be accomplished without the police having to do what they did in this case. For example, should it be permissible for law enforcement to be able to access the GPS tracking data emitted by a suspect’s cell phone, or the GPS system in their car, or the monitor the signal emitted by their electronic toll device (i.e. EZ-Pass)? Under the majority analysis, none of these would constitute a “search” because none of them involve a trespass. However, could it not be said that we have a reasonable expectation of privacy in this kind of data, or that there ought to be a law forbidding that information from being shared with law enforcement without a Court order or a search warrant? As Alito said, we have reached the point where twenty-four hour monitoring is technologically possible, and it’s only become easier as technology advances. On some level, the Courts are not the best avenue to deal with these questions because they can only deal with matters on a case-by-case basis and each particular search is dependent on the facts of the particular case, as we learned today. If we don’t get a handle on this issue soon, we may find that it’s too late to control the information that we, knowingly and unknowingly, share with the government whether we like it or not.

Here’s the opinion:

United States v. Jones

In the wake of yesterday’s decision by several major websites to either shutdown or otherwise engage in some form of protest over the Stop Internet Piracy Act and Protect IP Acts, Ken at Popehat has an interesting question for people who have spent the last two years or so criticizing the Supreme Court’s decision in Citizens United v. FEC:

The widespread protest seemed to succeed at its aim of raising awareness and led to defections from the ranks of SOPA/PIPA supporters.

All of that seemingly effective advocacy raises a question: did its participants have a First Amendment right to protest that way?

For folks like us at Popehat — mere individuals, not corporations or partnerships (we’re more like an unincorporated mystical brotherhood) — the answer is rather clearly yes. Few would dispute it.

But for entities like Google, or Mozilla, or the Wikimedia Foundation, the answer is apparently unsettled in the minds of some of you.

(…)

So, to critics of Citizens United, I have a question: should those business entities have had a right to engage in SOPA/PIPA protests like they did? If so, what is the source of that right, and by what mechanism is it vindicated?

It’s a good question, actually. There really isn’t any functional difference between what Wikimedia, Mozilla, Google, and Conde Nast (the owners of Reddit, which was blacked out for 12 hours yesterday) did yesterday and what Citizens United was seeking to do in the dispute with the Federal Election Commission that ultimately ended up in front of the United States Supreme Court. In both cases, a corporate entity (in the case of the SOPA protests many of them for-profit entities) were taking a position on a matter of public controversy and advertising their position publicly.  What’s the difference, then, between the film that Citizens United wanted to distribute and the actions that took place yesterday? Personally, I don’t see one.

Let’s take it a step further. Let’s say these four corporations wanted to get together and form a political action committee that would broadcast ads and otherwise advocate against SOPA/PIPA and the candidates for office that support it? Should they be permitted to do that or not? And if not, why not?

Ken continues his questions for the “corporations don’t have First Amendment rights” crowd later in the post:

1. If corporations have no First Amendment rights, why can’t federal or state or local governments single out, say, Wikimedia Foundation for its SOPA/PIPA blackout? Why can’t they penalize or fine or even dissolve it? Why can’t they single Wikimedia Foundation out for disproportionate enforcement of unrelated laws in retaliation for disfavored speech?

2. If your answer is “the political process — the voice of the people — will stop them from suppressing expression in this way,” what is the historical basis in America for the assertion that the political process, standing alone, without judicial review based upon application of constitutional rights, is sufficient to stop governmental overreach?

(…)

3. If courts adopt your view — if the Supreme Court says “corporations have no First Amendment rights” — is it really your view that government restrictions on corporate speech will be imposed in a neutral and even-handed manner? Really?

4. You say that people, not corporations, have First Amendment rights. Fine. Tell me: as a person, how do you plan to exercise your freedom of speech if corporate venues for doing so may be restricted by the government?

Again, all good questions that I would love to see a true opponent of Citizens United address at length. To start with, they would need to address the point that Justice Scalia made in his concurrence in the case, where he noted absurdity of trying to decide when a corporation has First Amendment rights based on the kind of business they engage in:

It is passing strange to interpret the phrase “the freedom of speech, or of the press” to mean, not everyone’s right to speak or publish, but rather everyone’s right to speak or the institutional press’s right to publish. No one thought that is what it meant. Patriot Noah Webster’s 1828 dictionary contains, under the word “press,” the following entry: “Liberty of the press, in civil policy, is the free right of publishing books, pamphlets, or papers without previous restraint; or the unrestrained right which every citizen enjoys of publishing his thoughts and opinions, subject only to punishment for publishing what is pernicious to morals or to the peace of the state.” 2 American Dictionary of the English Language (1828) (reprinted 1970). As the Court’s opinion describes, ante, at 36, our jurisprudence agrees with Noah Webster and contradicts the dissent. “The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historical connotation comprehends every sort of publication which affords a vehicle of information and opinion.” Lovell v. City of Griffin, 303 U. S. 444, 452 (1938) .

In other words, the fact that, say, Google, is principally a search engine doesn’t per se grant it any greater First Amendment rights than any other business entity. If corporations don’t have First Amendment rights, then none of them do and that includes the ones who engage in speech that you agree with.  From there, the Citizens United opponent would need to deal with the central issue of  Citizens United, the issue of “corporate rights,” an issue that The Cato Institute’s Ilya Shapiro addressed shortly after the decision came out:

[The argument that corporations lack Constitutional rights] demonstrates a fundamental misunderstanding of both the nature of corporations and the freedoms protected by the Constitution, which is exemplified by the facile charge that “corporations aren’t human beings.”

Well of course they aren’t — but that’s constitutionally irrelevant:  Corporations aren’t “real people” in the sense that the Constitution’s protection of sexual privacy or prohibition on slavery make no sense in this context, but that doesn’t mean that corporate entities also lack, say, Fourth Amendment rights.  Or would the “no rights for corporations” crowd be okay with the police storming their employers’ offices and carting off their (employer-owned) computers for no particular reason? — or to chill criticism of some government policy.

Or how about Fifth Amendment rights?  Can the mayor of New York exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he’d like to move his office there?

So corporations have to have some constitutional rights or nobody would form them in the first place.  The reason they have these rights isn’t because they’re “legal” persons, however — though much of the doctrine builds on that technical point — but instead because corporations are merely one of the ways in which rights-bearing individuals associate to better engage in a whole host of constitutionally protected activity.

That is, the Constitution protects these groups of rights-bearing individuals. The proposition that only human beings, standing alone, with no group affiliation whatsoever, are entitled to First Amendment protection — that “real people” lose some of their rights when they join together in groups of two or ten or fifty or 100,000 — is legally baseless and has no grounding in the Constitution. George Mason law professor Ilya Somin, also a Cato adjunct scholar, discusses this point here.

Corporations don’t have rights because they are corporations. They have rights because they are entities made up of individuals who have Constitutional, and natural, rights. To accept the “no corporate rights” argument, one would also have to accept that individuals lose their rights any time they act as a group toward a common purpose.  If you reject the idea that corporations have rights, then it means that you don’t believe that Wikimedia, Mozilla, Google, or Conde Nast had the right to utilize their corporate resources to speak out on an issue of public concern. There are no exceptions to the First Amendment, and there are no exceptions to an argument that a particular entity doesn’t have First Amendment rights.  The same people who reject the Court’s decision in Citizens United would no doubt be outraged if the government sought to prevent the SEIU from taking a position on upcoming recall elections in Wisconsin, for example, but if corporations don’t have rights, then the union doesn’t have a right to speak out about the election. Before you start restricting rights, then, it’s a good idea to think through the consequences of what you’re saying.

Monday’s debate in South Carolina spent what I thought was an inordinate amount of time focusing on the details of SuperPAC ads and who was responsible for what, which at one point led Mitt Romney to make this comment:

ROMNEY: We all would like to have Super PACs disappear, to tell you the truth. Wouldn’t it nice to have people give what they would like to to campaigns and campaigns could run their own ads and take responsibility for them. But you know what, this campaign is not about ads, it’s about issues.

BAIER: So governor Romney, in the general election, if you are the nominee you would like to see Super PACs ended?

ROMNEY: Oh, I would like to get rid of the campaign finance laws that were put in place McCain-Feingold is a disaster, get rid of it. Let people make contributions they want to make to campaigns, let campaigns then take responsibility for their own words and not have this strange situation we have people out there who support us, who run ads we don’t like, we would like to take off the air, they are outrageous and yet they are out there supporting us and by law we aren’t allows to talk to them.

I haven’t spoken to any of the people involved in my Super PAC in months and this is outrageous. Candidates should have the responsibility and the right to manage the ads that are being run on their behalf. I think this has to change.

Romney made a similar comment yesterday, and he has received unlikely support from Washington Post columnist Richard Cohen, who is by no means either a conservative or a Republican:

Sheldon Adelson is supposedly a bad man. The gambling mogul gave $5 million to a Newt Gingrich-loving super PAC and this enabled Gingrich to maul Mitt Romney — a touch of opinion here — who had it coming anyway. Adelson is a good friend of Gingrich and a major player in Israeli politics. He owns a newspaper in Israel and supports politicians so far to the right I have to wonder if they are even Jewish. This is Sheldon Adelson, supposedly a bad man. But what about Howard Stein?

The late chairman of the Dreyfus Corp. was a wealthy man but, unlike Adelson, a liberal Democrat. Stein joined with some other rich men — including Martin Peretz, the one-time publisher of the New Republic; Stewart Mott, a GM heir; and Arnold Hiatt of Stride Rite Shoes — to provide about $1.5 million for Eugene McCarthy’s 1968 challenge to Lyndon Johnson. Stein and his colleagues did not raise this money in itsy-bitsy donations but by chipping in large amounts themselves. Peretz told me he kicked in $30,000. That was a huge amount of money at the time.

That sort of donation would now be illegal — unless it was given to a super PAC that swore not to coordinate with the candidate. And until quite recently, even that would have been illegal — the limit being something like $2,400. Many people bemoan that the limit is no more, asserting that elections are now up for sale, as if this was something new. They point to the Adelson contribution and unload invective on the poor right-wing gambling tycoon. I understand, but I do not agree.

Back in 1967, a small group of men gave McCarthy the wherewithal to challenge a sitting president of the United States. The money enabled McCarthy to swiftly set up a New Hampshire operation and — lo and behold — he got 42 percent of the popular vote, an astounding figure. Johnson was rocked. Four days later, Robert F. Kennedy, who at first had declined to do what McCarthy did, jumped in himself. By the end of March 1968, Johnson was on TV, announcing he would not seek a second term.

My guess is that a lot of the people who decry what Adelson has done loved what Stein, Peretz and the others did. My guess is that they cheered Johnson’s defeat because they loathed the Vietnam War and wanted it ended. My guess is that while they pooh-pooh the argument that money is speech, they cannot deny that when McCarthy talked — when he had the cash for TV time or to set up storefront headquarters — that was political speech at the highest decibel.

(…)

History was changed by the sort of political donations that are now derided. Lyndon Johnson stepped down. The Democratic Party was ripped right up the middle. Bobby Kennedy joined the race (and was assassinated in June), and nothing — but nothing — was the same afterward. McCarthy’s quixotic campaign became so real that Paul Newman came up to New Hampshire, and so did throngs of kids with long hair and incredible energy. I was there, a graduate student-cum-cub reporter, eating off the expense accounts of soon-to-be Washington Post colleagues (My God, what a life!). So when the Supreme Court says that money is speech and ought to be protected, I nod because I was in New Hampshire in 1968 and I know.

Sheldon Adelson is not my type of guy. I don’t like his politics. But he has no less right to try his own hand at history than did that band of rich men who were convinced the war was a travesty-tragedy — and they were right. Since 1968, my views have changed on many matters. But my bottom line remains a fervent belief in the beauty and utility of free speech and of the widest exchange of ideas. I am comfortable with dirty politics. I fear living with less free speech.

In today’s world, the most that Stein would have been able to do for McCarthy would be to give money to a pro-McCarthy SuperPAC that would run ads against the an incumbent President in New Hampshire. Perhaps helpful, but not nearly as helpful as the direct campaign cash that McCarthy got in 1967 that allowed him to set up a campaign organization that was able to take advantage of the grassroots support he had in the Granite State and, to the surprise of everyone, bring down a President and change the course of history irrevocably. For all the talk about SuperPAC money today, it’s worth noting that none it helped Newt Gingrich or Rick Perry or Rick Santorum accomplish something as simple as getting on the ballot in Virginia (indeed, it would have been illegal for a SuperPAC to fund a petitioning effort by the campaign). As Cohen notes, with that donation from Stein, there would have been no McCarthy campaign and there was little that a bunch of SuperPAC ads would have been able to do to make up for that simple fact.

Cohen correctly goes on to point out that the 1968 and 1972 elections did reveal the need for at least some form of campaign finance regulation. The Nixon campaign in both years in particular engaged in practices that were at the very least sleazy if not borderline criminal even in an era where there were very few laws relating to donations to politicians. Additionally, it was campaign finance issues that were, in part, behind the Watergate break-in and subsequent cover-up.

It was in response to these events that our modern campaign finance laws came into being and, in at least some respects, the laws were motivated by good intentions. For example, the disclosure of the identity of campaign contributors and the recipients of campaign expenditures strikes me as a good idea. The public good is served when voters are able to discover who donates to their leaders, and who receives campaign contributions. Additionally, laws that bar campaign dollars being used for non-campaign purposes protect people who do donate to campaigns from being defrauded. Additionally, if I donate to a political campaign, I’d want to know if the campaign was spending unusual amounts of money on services provided by companies owned by friends or relatives of the candidates. Each of these, along with other regulations designed to ensure the financial integrity of political campaigns serve legitimate public purposes.

Where the initial post-Watergate attempt at campaign finance reform, and all of the efforts that followed it, when wrong, though, was in placing limits on the amount someone could contribute to a campaign. The logic for these restrictions is probably best summed up in a Washington Post Editorial published today in response to the suggestions that Romney made on Monday. Ultimately though, I think those arguments are entirely unpersuasive. If there is a lack of confidence in “the system” as the Post claims, it’s because the system itself has created a situation where the kind of back-door donations exemplified by the SuperPACs come into existence.

The only thing that four decades of laws restricting the amount of campaign contributions has accomplished is to create a system where donations come in the back door. It was the restrictions themselves that led to the creation of the myriad different forms of political action committees that now exist in this country, including SuperPACs. If individuals were free to donate as much as they wanted to a candidate there would be almost no need for political actions committees to being with, and at the very least these types of groups would play a much smaller role in campaigns than they do today. Instead of spending an inordinate amount of time in at least two debates now arguing over who is responsible for which SuperPAC ad, there would be no question who was responsible because the messaging would be coming directly from the campaigns themselves. Candidates wouldn’t be able to say “Hey, that’s not my, that’s a SuperPAC and I can’t legally tell them what to do,” they’d have to take responsibility for the ad whether it was positive or negative. Isn’t that the better way do things?

It’s also worth noting that the individual donations themselves become something of a joke because they are so easy to evade. Examine the campaign finance report of your average candidate for Federal office and you’ll eventually notices something very interesting. There will be multiple donations for the exact amount of the limit by people with the same last name living at the same address. Since individuals can each make their own contribution, a donation in the name of a father, mother, and any number of children is each subject to its own limit and it’s perfectly legal to send in four or five different checks to the same candidates in each of their names. Everyone knows that this money typically only comes from one person, but the law allows it. Again, the law creates the ability to evade it and there’s really no way that the law could be written that would make this particular form of “evasion” illegal.

We’d still need laws requiring disclosure, of course. In fact, I would suggest that our current system, where contributions only become part of a searchable public record every three months isn’t strict enough. Perhaps it made sense in the 1970s and 80s when everything was done on paper, but in today’s world even the most bare-bones Presidential campaign uses technology to track its finances, and even campaigns for the House or Senate have at least one employee or contractor whose sole responsibility is campaign finance law compliance. Given that, there’s no reason that disclosure cannot be done on a more frequently basis. Monthly disclosures of at least the identity and amount of contributions seems entirely reasonable to me, but that’s probably an issue that people who actually run campaigns for a living should be consulted on before we change the law. A phase-in period may be advisable, for example, to allow campaigns to get used to disclosure requirements that are more strict than what they’ve been used to. In any case, voters should be able to go online on a regular basis and find out who is giving money to the people seeking their votes, and how that money is being spent, and that information should be up-to-date.

Our current campaign finance system is broken. The solution, though, isn’t more laws, or public financing,  or any of the other myriad of proposals you’ll hear from the “good government” crowd. It’s to admit that the central part of the campaign finance laws we passed after Watergate was a mistake, and to start over again.

A courtroom in Washington, D.C. will be the setting for the first legal challenge to the recess appointments made by President Obama earlier this month, which Republicans and conservative legal scholars have contended are unconstitutional because Congress was not in fact in recess at the time:

A group of business organizations and individual firms on Friday began the first challenge to President Obama’s new government appointments while the Senate is out of town, using a case involving the National Labor Relations Board to test the issue.  In a motion filed in U.S. District Court in Washington, along with a legal memorandum, the challengers argued that the NLRB has no power to go ahead with a pending rule on workers’ rights because the three new appointees were not legally named, so the Board has no operating quorum.

Because the challenge puts a cloud of uncertainty over the NLRB’s authority to take any action, it appears likely that the courts will move quite rapidly to resolve the controversy.  Previously, when there were doubts about the Board’s membership, hundreds of actions it had taken had been put into a legal limbo, producing a significant Supreme Court ruling on that in 2010.

U.S. District Judge Amy Berman Jackson in Washington is hearing business challenges to a rule, not yet put into effect by the NLRB, that would require as many as six million employers to put up in their workplaces a permanent poster that notifies their employees of the legal rights they have under federal labor law.  That requirement, the so-called “notice posting” rule, is now due to go into effect on April 30.  It had been set to go into effect at the end of this month, but the Board postponed it in December at Judge Jackson’s specific request while she ponders the challenge (pending in National Association of Manufacturers, et al., v. NLRB, District Court docket 11-1629).

Although that rule was put into final form by the Board before the President early this month gave “recess appointments” to three new members, the motion filed Friday argued that those appointments are “unconstitutional, null and void,” reducing the Board to only two members, and thus the Board “no longer has authority to implement or enforce the Notice Rule on its purported effective date of April 30, 2012.”  (Under the Supreme Court decision in 2010, in New Process Steel, L.P. v. NLRB, the Board cannot take action with only two of its allotted five members.)

The potentially momentous fight over the Obama nominations thus will go first to a federal judge who has been on the bench for less than a year.  Named by President Obama initially in 2010 and renominated last year, she won unanimous Senate approval and formally joined the D.C. District Court last March 18.

The Memorandum can be found here, and is quite obviously only the beginning step in this matter. However Judge Jackson rules, this case is likely to be appealed to the D.C. Circuit Court of Appeals and, most likely, the Supreme Court given the unique nature of the Constitutional issues raised here. In all honestly, it’s hard to say how the Courts will approach this matter, though. Rather than ruling on the merits, they could end up dodging the entire thing given the judiciary’s historic reluctance to involve itself in political disputes between the Executive and Legislative Branches. Considering, though, that we’re talking about a question that goes to the nature and extent of the powers of the Presidency, though, I would hope that the Courts would be disinclined to do that and at least give us a final ruling rather than leaving it up to the President and Congress to fight about.

I’ve discussed the legal issues surrounding the President’s appointments and the legal impact of the Senate’s pro forma sessions of the Senate on the question of whether or not the Congress is actually in recess as that term is used in the Constitution. Since then, though, there has been some additional arguments made that will no doubt find their way into the legal pleadings destined to be filed in this case and its coming appeals. First, as Adam Serwer notes, late last week the Justice Department’s Office of Legal Counsel released the legal memorandum that it prepared for the White House to support the President’s authority to make these recess appointments notwithstanding the Senate’s pro forma sessions:

The opinion from the Office of Legal Counsel, authored by Assistant Attorney General Virginia Seitz, argues that these “pro forma” sessions, which have historically been used by both parties to deny presidents the ability to make executive and judicial appointments, can’t be used to block appointments unless the Senate is conducting actual business. The job of the OLC is to provide advice to the executive branch to ensure its actions comply with the law—although at moments under the Bush administration, OLC attorneys turned into virtual rubber-stamps for whatever actions the administration wanted to pursue.

Seitz writes that “while Congress can prevent the President from making any recess appointments by remaining continuously in session and available to receive and act on nominations, it cannot do so by conducting pro forma sessions during a recess.” Seitz points out that legislators have frequently referred to times of prolonged absences as “recesses,” even if Congress had not technically adjourned. (As Jonathan Bernstein noted, Tennessee Republican Rep. Diane Black said the president’s appointments were unconstitutional because Congress was not in recess, before complaining that the nominees were put forth “a mere two days before the Senate recessed for the holiday.”) Even the administration’s supporters however, have generally acknowledged that the legal questions here are a close call, and Seitz acknowledges there are “substantial arguments on each side.”

“[The opinion] is admirably forthright and candid about the closeness of the question and the arguments on the other side,” says Marty Lederman, a former attorney with the Office of Legal Counsel who, as counsel to Senator Ted Kennedy, had argued that such appointments were not constitutional. “It doesn’t hide anything.”

The OLC’s opinion should end speculation, put forth by conservatives like David Addington, former legal counsel to Vice President Dick Cheney, and even more progressive voices like Bruce Ackerman, that the president had not asked for advice from the Justice Department before making the appointments. The implication from some critics was that the administration knew the appointments were unconstitutional, and therefore didn’t ask.

(…)

The bottom line is this: The Justice Department takes the view that when the Senate “is not available to give advice and consent to executive nominations,” it is effectively in recess and the president can make appointments. Moreover, the opinion states that the Senate’s constitutional authority to set its own rules cannot be used to keep the president from making appointments. Key here is that the opinion doesn’t prevent the Senate from blocking appointments—it merely states that the Senate has to actually be in session in order to do so.

The OLC’s long single-spaced memorandum (just warning you) can be found here, and if you’re truly interested in the legal arguments that are likely to unfold over the course of this and probably other litigation that will be filed regarding these appointments, I’d recommend giving it a read. On the other side of the argument, though, Michael McConnell, who served for a decade on the 10th Circuit Court of Appeals and is now a senior scholar at Stanford Law School, is highly critical of the OLC’s reasoning and conclusion:

The Opinion places enormous weight on the fact that the Senate’s resolution providing for pro forma sessions declared that there would be “no business conducted.” There are two problems with this, as a legal matter.  First, as the Opinion concedes, the important question is whether at these sessions the Senate is “capable” of exercising its constitutional functions – not whether, on any particular occasion, it has chosen not to do so. Second, in actual fact the Senate has conducted major business during these sessions, including passing the payroll tax holiday extension during a pro forma session on December 23. The Opinion weakly responds that, notwithstanding this evidence of actual practice, the President “may properly rely on the public pronouncements of the Senate that it will not conduct business.” It is hard to see why the Senate’s stated intention not to do business takes legal and constitutional precedence over its manifest ability to do so. The President is well aware the Senate is doing business on these days, because he has signed two pieces of legislation passed during them.

More fundamentally, the Opinion creates an implausible distinction between the legal efficacy of pro forma sessions for various constitutional purposes. According to the Opinion, a pro forma session is not sufficient to interrupt a recess for purposes of the Recess Appointments Clause, but it is sufficient to satisfy the constitutional command that neither branch adjourn for more than three days without the consent of the other (Art. I, §cl. 4) and that Congress convene on January 3 unless a law has provided for a different day. There is longstanding precedent that pro forma sessions are sufficient to satisfy these constitutional requirements. Why a pro forma session would count for some purposes and not others is a mystery. It is difficult to escape the conclusion that OLC is simply fashioning rules to reach to the outcomes it wishes.

Finally, it bears mention that a great deal of the authority OLC cites in support of the President’s authority to make recess appointments during intrasession recesses in the first place – wholly apart from the pro forma issue – consists of prior executive branch pronouncements that are at odds with both the language and the history of the constitutional text. It would not be surprising if the judiciary were to reject these self-serving executive interpretations in favor of more straightforward ones. In particular, courts might rule that the Recess Appointments Clause applies only when a vacancy “happens” during a recess, as the text of Att. II, § 2, cl. 3, says, and that “the recess” of the Senate occurs only between sessions, and not (as here) in the midst of a session. The OLC Opinion acknowledges as much, when it says that the appointments face “some litigation risk.” But the Obama Administration cannot be faulted for following longstanding executive precedent, which has been used by past Presidents both Republican and Democrat. It is only the novel arguments that I criticize here. It seems to me that the Administration is under special obligation to provide a bullet-proof legal argument when it declares invalid a strategy devised by Majority Leader Harry Reid in 2007, supported by then-Senator Barack Obama, and successfully used by them to stymie President George W. Bush’s recess appointment power. The law cannot change just because the shoe is on the other foot.

Reviewing again the arguments I made when this matter first came up, I still tend to think that the arguments in favor of Presidential power are likely to prevail in this matter in the end. However, there are issues that have been raised against the recess appointments that are admittedly persuasive. Perhaps the most important argument against what Obama did two weeks ago lies in the precedent that he has set. Leaving aside the legal challenges that have and will be filed to the appointments, President Obama has set a precedent here that will be followed by every President that follows him, just as Harry Reid’s decision to use pro forma sessions starting in 2007 as a tactic to block President Bush from utilizing his recess appointment powers set a precedent that the Republicans have followed since they took control of the House last year.  With the stroke of a pen, President Obama has enhanced the power of the Presidency and just as he did not abandon the additional powers asserted by President Bush, President Obama’s successors are unlikely to surrender this new power unless someone forces them to do it. The Democrats who are cheering the appointments of Richard Cordray and the two member of the NLRB today should ask themselves how they’ll feel if the same power is used by a President Mitt Romney to fill a bunch of judicial seats, and there’s no reason that could not happen when you remember that Earl Warren, William Brennan, and Potter Stewart  all made it on to the Supreme Court initially via recess appointments. Once you give the President a new power, or a new way to use their power, it will inevitably be used in ways you don’t like.

In any event, we’re going to hear much more about this issue in the weeks and months to come. Indeed, outside of the ruling on the Affordable Care Act it could potentially end up becoming the most important Constitutional case heard by the Supreme Court in quite a long time.

Not surprisingly, a three judge panel of the 4th Circuit Court of Appeals has unanimously rejected Texas Governor Rick Perry’s effort to get on Virginia’s Primary ballot:

In a 22-page order, a three-judge panel of a federal appeals court today rejected Rick Perry’s appeal to appear on the Virginia ballot.

Perry initially challenged the state’s stringent ballot laws on Dec. 27, after he and Newt Gingrich failed to qualify with the required 10,000 signatures. Gingrich, Rick Santorum and Jon Huntsman all joined the suit.

U.S. district judge John Gibney ruled against the challenge last Friday, saying Perry and the other candidates had waited too long to file their suit. Perry and Gingrich both appealed the decision, but today’s ruling means their only path forward would be to appeal to the U.S. Supreme Court.

The appeals court confirmed the argument that Perry waited too long to challenge the law, and should have done so before he failed to qualify for the ballot.

“If we were to find Movant’s delay excusable, we would encourage candidates to wait until the last minute to bring constitutional challenges to state election laws,” the decision reads. “Once a candidate learned he had been denied a place on the ballot, he would take his disappointment to the courthouse and hapless state election boards would be forced to halt their scheduled election processes to wait for a ruling.”

The judges note that even long-shot candidates in the past have managed to meet the state’s signature requirements, meaning they are clearly feasible.

“Under this regulatory scheme, a wide array of candidates has managed to access the Virginia primary ballot,” their order says. “Although some of these candidates garnered a small percentage of the primary vote, they all were able to comply with Virginia’s 10,000 signature requirement as well as its residency requirement for petition circulators.”

The Appeals Court largely accepted the District Court’s laches analysis, and agreed that Perry and the other parties had failed to act with due diligence to protect their rights in a reasonable amount of time:

Amended in 2000, the circulator residency requirement has been in place for over a decade and has governed multiple presidential primaries. And plaintiffs’ own exhibits demonstrate that the Board adopted a document entitled “Deadlines, Duties and Ballot Access Requirements” on May 25, 2011, which stated that “[c]andidates wishing to participate in the presidential primary must follow the procedures outlined below,” including the “Petition Requirement[]” that they must “provide an affidavit signed under oath by the person who circulated it that . . . s/he is registered, or eligible to be registered, to vote in Virginia.” (emphasis in original). Virginia has done nothing to lead anyone astray with respect to this requirement. The residency requirement for petition circulators was unambiguous and available for all to see. Two candidates had no difficulty discerning or fulfilling these requirements, nor did multiple candidates in presidential primaries in the past. If Movant believed this provision violated the Constitution, he could and should have acted expeditiously

If we were to find Movant’s delay excusable, we would encourage candidates to wait until the last minute to bring constitutional challenges to state election laws. Once a candidate learned he had been denied a place on the ballot, he would take his disappointment to the courthouse and hapless state election boards would be forced to halt their scheduled election processes to wait for a ruling. Challenges that came immediately before or immediately after the preparation and printing of ballots would be particularly disruptive and costly for state governments. See Dobson v. Dunlap, 576 F. Supp. 2d 181, 187 (D. Me. 2008) (applying laches to bar a constitutionalchallenge to a state election law after noting that the state had “invested approximately 225 person hours in designing, preparing and proofing the paper ballots”). “[T]here must be a substantial regulation of elections if . . . some sort of order,  rather than chaos, is to accompany the democratic processes,” Anderson v. Celebrezze, 460 U.S. 780, 788 (1983), and we are loath to reach a result that would only precipitate a more disorderly presidential nominating process.

What is more, by permitting candidates to wait until after the ballot has been set to bring their challenges, we would perforce leave to utter speculation the question of whether any legal foundation exists for the ultimate remedy of adding a candidate’s name to the ballot. The belated nature of Movant’s suit, for instance, makes it all the more difficult to determine with any confidence whether a particular injury is even traceable to the allegedly unconstitutional residency requirement. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 590 (1992) (holding that in order to demonstrate standing, a plaintiff must allege that its injury is “fairly traceable to the defendant’s allegedly unlawful conduct”). Movant failed to submit petitions containing at least 10,000 signatures to the Board under section 24.2-545(B) of the Virginia Code, a requirement the district court noted would pass muster “even under the strict scrutiny standard.” While Movant of course predicts that he would have met the 10,000 signature threshold if only he had been allowed to use non Virginia residents to -gather signatures, such counterfactual speculation is not the office of the federal judiciary. We have no inkling as to whether Movant would have actually been able to secure 10,000 signatures, even if non-Virginia residents were able to circulate his petitions. Inviting delayed challenges like the one before us today would leave this court with only the most infirm evidentiary basis upon which to grant the relief requested.

As I said, this isn’t entirely surprising. Perry’s initial legal arguments were weak to begin with and the appeal was even weaker. I suppose they had to file it, though, just to show that they put up a fight. In any case, the only names on the Virginia ballot will be Ron Paul and Mitt Romney, although it’s looking more and more certain that the race will be over by then.

Here’s the opinion:

Perry et al v. Judd et al

The Commonwealth of Virginia has already filed its response to the Emergency Motion filed by Rick Perry’s campaign early yesterday morning in the Fourth Circuit Court of Appeals:

Following Rick Perry’s appeal in his Virginia ballot access case this morning, officials in the state filed a response urging the U.S. Court of Appeals to uphold district judge John Gibney’s ruling.

Gibney, on Friday, said Perry and the other GOP candidates involved in the suit had waited too long to challenge the Virginia ballot laws, and should have done so before they’d already missed the deadline. The opposition stands by that argument, saying Perry and the other candidates were affected by the laws as soon as they started collecting signatures and could have raised the issue then.

The document also states that Perry doesn’t have legal standing to challenge the law.

“Governor Perry is not being denied a place on the ballot because of the circulator residency/voter eligibility requirement,” the argument reads. “He is being denied a place on the ballot because he did not meet the constitutionally sound requirement of submitting 10,000 valid signatures by the constitutionally valid deadline.”

Newt Gingrich, too, filed an appeal in the Richmond-based 4th Circuit of the U.S. Court of Appeals this weekend. Both Perry and Gingrich failed to qualify for the ballot back in December, and they — along with Rick Santorum and Jon Huntsman — challenged the stringent Virginia ballot laws on Dec. 27. The only two candidates who filed the required number of signatures were Mitt Romney and Ron Paul.

In addition to refuting Perry’s arguments against Judge Gibney’s finding that his claim was barred by the doctrine of laches largely along the lines that I discussed yesterday, the Commonwealth also makes this point:

Governor Perry is not being denied a place on the ballot because of the circulator residency/voter eligibility requirement. He is being denied a place on the ballot because he did not meet the constitutionally sound requirement of submitting 10,000 valid signatures by the constitutionally valid deadline. This circumstance made his claim nonredressable at the time suit was filed.

The Commonwealth also raises a previously undisclosed, at least in public, fact about Perry’s signature gathering effort:

With respect to timing, Governor Perry’s campaign was permitted to “collect the requisite signatures for ballot access between July 1, 2011 and December 22, 2011.” (Id. at 10). Although Governor Perry declared for the presidency on August 13, 2011 and “filed his Statement of Candidacy with the Federal Election Commission on August 15, 2011,” he only “signed and affirmed . . . his Declaration of Candidacy for the Commonwealth of Virginia on October 13, 2011.” (Id. at 6). Governor Perry’s national campaign manager, Joe Allbaugh, testified that he joined the campaign October 23, 2011 and that thereafter the vendor was hired. This was necessarily less than two months before the petitions were due even though the Perry campaign “knew the rules in Virginia many months ago.” (Id. at 1). As the district court put it: “In essence, they played the game, lost, and then complained that the rules were unfair.” (Id. at 2).

And then there’s this interesting point about that vendor:

The conjectural nature of Governor Perry’s claim is emphasized by an odd circumstance. Governor Perry personally certified 11,911 signatures to the State Board of Elections on December 23, 2011 (Defendants’ Ex. 6) (App. A), despite now acknowledging that approximately 6,000 signatures were filed. (Case 3:11-cv-00856-JAG Doc. 73 at 6 n.4). According to his campaign manager, Governor Perry based his certification upon a claim of the vendor. The unexpected hospitalization of the vendor’s Virginia agent left the campaign unable to determine whether the other 5,911 signatures were in fact collected. Hence, it may be that the circulator limitations did not even conjecturally prevent the Perry campaign from collecting 10,000 signatures. It is entirely possible that the critical number of signatures were simply lost.

At the very least, this may explain the discrepency between the 11,911 signatures Perry’s campaign said they had submitted on December 22nd, and the 6000 they acknowledged submitting when the lawsuit was filed less than a week later. Of course, just as with the fraud alleged by the Gingrich campaign, if it is true that more than half of Perry’s signatures were lost due to vendor negligence, that isn’t a ground for Perry to get on the ballot. Ultimately the campaign is responsible for gathering the signatures, and ultimately they are responsible for policing the vendor.

In any event, we should get a ruling on the motion relatively soon given the fact that we’ve got a mailing deadline coming up on Saturday. Most likely, I’d expect something to come tomorrow although it is possible that the three judge panel assigned to the case may issue a written ruling today notwithstanding the fact that it is a Federal Holiday. My guess is Perry loses this one pretty handily.

Here’s the Commonwealth’s response:

Perry et al v. Judd et al Opposition To Motion For Injunction