The Faculty Lounge

The Ronald Reagan McDonalds! (Tuscaloosa, Alabama)

While reading this review of Princeton University historian Sean Wilentz' The Age of Reagan over at Slate this morning, I saw a picture of President Reagan eating a big mac at ... the McDonalds on route 82 in Northport!  You know what?  I eat there, too, sometimes.  (The building Reagan ate in was knocked down a few years ago and then rebuilt.)  Rather unrepresentative photo, though; as I understand the story, it was the only McDonalds he ever ate at.  Never can tell when Tuscaloosa will appear in the national news!

I enjoyed Wilentz' article on "1967" in Rolling Stone a while back, although as I said at propertyprof last summer:

Wilentz locates 1967 as the start of the culture wars: free love & drugs vs. stability.  Locating major trends in American culture in a single year is always hard--though there have been some really successful books built around years (Kenneth Stampp's 1857; Louis Mazur's 1819 immediately come to mind.)  And while I would have emphasized more of the counter-culture and less of the conservative response were I fortunate enough to be writing for Rolling Stone, the essay's well worth a read.

And, hey, writing for Rolling Stone's  a big deal for an academic (or anyone else, I'd imagine).

The review's worth a read.  The conclusion is:

[H]e's still, in some sense, with us. By Wilentz's reckoning, the Reagan era has lasted longer than "the ages of Jefferson and Jackson; longer than the 'gilded' age or the Progressive era; and virtually as long as the combined era of the New Deal, Fair Deal, New Frontier, and Great Society." Which means that the GOP's happiest warrior can now be spoken of in the same breath as Jefferson and Jackson, as Lincoln and the Roosevelts.

Alfred Brophy

SCT Upholds Indiana Voter ID Law

In a 6-3 decision released this morning the Supreme Court upheld an Indiana law that requires voters to produce a photo id in order to cast a ballot.  Its not an easy decision to digest.  Justice Stevens authored the lead opinion, joined by CJ Roberts and Justice Kennedy.  Justices Thomas and Alito joined Scalia's concurrence.  Souter, Ginsburg and Breyer were in dissent. 

Couple points to note, however.  Civil rights groups had lined up with Democrats to oppose the Republican inspired measure on the ground that the burdens imposed will discourage poor, elderly and minority voters from participating in the political process - all without delivering any counterbalancing benefits to the state.  One of the primary motivations behind the law is the asserted need to deter in-person voter misidentification.  The problem is, as pointed out by Justice Souter, not a single instance of this type of voter fraud has been recorded in the history of Indiana elections.  Ever.  But real problems, such as absentee-voter fraud, duplicate registrations, and the like, go unremedied.   

The decision leaves room for future "as applied" challenges - an increasingly favorite strategy for disposing of controversial cases - but those challenges are difficult to win, and certainly don't leave much promise for the tens of thousands of Indiana voters who are now disenfranchised, just in time for the state's May 6 primary.   

Access Crawford v. Marion County Election Board here.  More from Rick Hasen, (Loyola Los Angeles) who authored an amicus brief in support of the challengers, at Election Law Blog.

-Kathleen A. Bergin

He Who Does Protest Too Much: Scalia and Washington Grange

Justice Scalia is fond of excoriating his more centrist colleagues for blurring the line between politics and judicial decision-making. The decision to strike down a Colorado measure that discriminated against gay, lesbian and bisexual individuals was "an act, not of judicial judgment, but of political will," he wrote in his dissent to Romer v. Evans.  Seven years later, again in dissent, he called the decision to strike down Texas’s anti-sodomy law in Lawrence v. Texas "the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda."

There are those of us who think Scalia does protest too much, that his rulings are at least as transparently right-leaning as those he rejects are, in his view, transparently left.  After all, if the majority in Lawrence took sides in the culture war over gay rights, as the accusation stands, then Scalia did too.  He just came out on the other side.

Last week the Court decided Washington Grange v. Republican Party, and once again Scalia found himself in dissent. Having read and re-read the decision nearly a dozen times, I can’t help but conclude, once again, that it is Scalia himself who stands guilty of blurring the lines between politics and law. Its not so much that I disagree with his rationale, or his conclusion. Much to my surprise, I agree with Scalia on the merits of the case. That said, I can’t find a way to reconcile his dissent in Washington Grange with what he’s written in other First Amendment cases.

Let me explain.

This, Democracy?

Where's the Carter Center when you need them? 

For anyone interested in a follow up to my last post anticipating Tuesday's Texas caucus, here's a thumbnail sketch of how it went down:

1.  No-one knew the rules.  We were first told by someone who seemed to have authority (we weren't sure who they were exactly) that doors would shut once caucusing began, and no-one could leave until the night was over.  Of course dozens of voters immediately bolted for the door until a woman from the Clinton campaign told us that was incorrect, we could leave and come back.  Caucus organizers asked us to "be patient while [they] figure out the rule."  The problem: No-one had a copy of the caucus rules, save for one savvy lawyer who showed up as a citizen, not as a caucus organizer.  She had the printed rules. 

2.  Towing cars.  About 2 hours in, a police officer went on stage to announce they were about to start towing cars.  Dozens more bolted for the door - voters who showed up at  7:15 ready to caucus, not knowing that the streets were unavailable for parking.   Some came back, but then were told by one presumptive organizer that they couldn't vote because they left the room, but by another that they could because they "signed-in" at 7:15.  But no-one "signed-in" at 7:15.  You just showed up.  We're we supposed to sign in?  See problem #1.

3.  Caucus Rosters:  There were not enough voting rosters to sign.  I saw one, on a clip board being passed around to voters in the auditorium seating areas.  It had an official control number, bolded in red, which I assume was used to keep track of the number of rosters distributed.  That is, if 10 rosters are distributed, I assume you want 10 rosters back.  You can't tally the vote if you've only got 8 because that means 2 are still floating around.  Yes, I said floating around.  We ran out of rosters, so an Obama organizer pulled out a yellow legal pad, drew a series of improvised columns and rows, and told us to vote on that.   "Yellow legal pad", I asked.  No control number?  How many of these are being distributed?  How many would they get back?  Are the Obama people supposed to be collecting signatures?  The Clinton people were collecting votes in the precinct seated next to us.  Doesn't seem right . . but  . . . ok . . . I guess.  Is that right?

3.  Proof of Primary Participation.  We were first told we needed to present our voter registration card to caucus.  Then we were told to present our receipt from voting in the primary.  Then we were told that if we didn't have either of those we couldn't vote.  But wait, the Clinton woman told us we could vote.  That they'd asterisk our name and check it against the primary voter list.  Is that right?  More people left.  Did they even have a primary voter list?      

4.  Allocating delegates.  Fifteen delegates were allocated to precinct 189, my precinct in Oak Forest.  Delegates are allocated proportionally according to the "votes" that are "tallied" for each candidate.  But there was a problem with the allocation because the precinct chair kept coming up with 1 delegate for Clinton and 1 for Obama, after apparently dividing the number of "voters" by the number of "votes," and doing that for each candidate.  I'm no math whiz, but X divided by X is 1 no matter how many candidates are running.  Someone apparently stepped in to explain the concept of proportional delegation because at the end of the night we were told that Clinton received 9 and Obama received 6 delegates.  Who knows.

I asked my Con Law students on Wednesday to report their experiences and they all had similar tales to tell.  One of my students was even elected a delegate chair because, as he put it, "I guess everyone thought I was qualified because I'm in law school."  They didn't have enough voting rosters either, so he pulled out his draft legal research and writing brief, and created a roster on the back of the pages.  Good effort, friend.  Its not your fault.

Sometimes we laugh instead of cry in the midst of chaos and uncertainty, and there were moments of spontaneous laughter at the chaos that was the caucus on Tuesday night.   And I suppose on one level the absurdity would still be funny, that is, if we weren't TRYING TO ELECT A PRESIDENT!!

-Kathleen A. Bergin