The Progressive States Network sends out weekly reports on issues in state legislatures and state politics. They come from a, well, a progressive angle. Below is there report on Supreme Court decisions this last term. You can see the full report on their site.

Supreme Court and the States: Business Wins, Voting Rights Lose, and a Mixed Bag on Criminal Justice

As the Supreme Court marches to the Right, corporate interests continue to thrive at the expense of state regulatory powers. “This has been a very successful year for the business community,” said Miguel Estrada, a Washington appellate lawyer who represents many key corporate interests before courts in Washington, D.C." This session at the U.S. Supreme Court, as this Dispatch will highlight, had an almost uniform tilt towards business versus state regulatory authority. In other areas like election law, the tilt was against poor voters who faced restrictions on their right to vote, though the term was a more mixed bag on criminal justice and other issues before the Court.

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Business Interests Win Big Against State Regulation

In almost every Supreme Court decision decided this term, state regulation lost out against business claims of federal preemption of state powers.
Consumers Lose in Medical Device Liability Case: As we highlighted in February, Riegel v. Medtronic is potentially one of the most dangerous decisions undercutting state consumer protection laws in decades. Essentially, the court declared that once the Federal Food and Drug Administration (FDA) approves a medical device, however careless or politicized the decision, the companies are then immune to lawsuits under state consumer protection laws authorized by the 1976 Medical Device Amendments. What made this decision especially appalling is that sponsors of that federal law, such as Sen. Edward Kennedy, point out that no such preemption of state law was ever intended, so the Supreme Court created this attack on state powers completely on its own authority. Legislation to reverse this decision has already been introduced into Congress.

Making the decision especially dangerous is its likely expansion to consumer suits over defective prescription drugs. A decision on that exact issue, Warner-Lambert v. Kent, deadlocked 4-4 only because Chief Justice Roberts recused himself because of substantial stock holdings in the drug company involved in the suit. There is the likelihood, though, of Roberts be a deciding vote next term in a similar case about state consumer laws.

Court Compels States to Fund Union Busting by Government Contractors: In one of the most anti-labor decisions in decades, and one of the most bizarre ones, the Supreme Court in Chamber of Commerce v. Brown struck down a California law that prevented government contractors from diverting money meant for health care or other public services to paying union-busting lawyers. Many federal laws, including Head Start and the Workforce Investment Act, prohibit use of federal money for anti-union activities, so it is especially odd that states are helpless to stop public money from being misused for anti-union purposes when the federal government reserves the right to prevent such misuse of its own funds. Despite claims that federal labor law preempts the California law, as Justice Breyer wrote in dissent, legislatures have "broad authority to decide how to spend the People's money." If Californians do not want their tax money used to block unionization, "why should they be conscripted into paying?"
Beyond these two blockbuster decisions, corporate interests won in a series of other cases:

• States Can't Stop Mail Order Cigarette Sales to Minors: In Rowe v. NH Motor Transport Association, the Court found that the Federal Aviation Administration Authorization Act of 1994 preempts a Maine statute requiring tobacco shippers to use delivery companies that verify the age of the customer.
• Arbitration Clauses Void Right to State Administrative Appeals: In its ongoing gutting of state labor laws, the Court declared in Preston v. Ferrer that a California state law requiring an administrative hearing in talent agency disputes was overridden by the Federal Arbitration Act if an arbitration clause had been signed.
• Corporations Win Tax Rulings Against States: In both CSX v. GA Board of Equalization and Meadwestvaco v. Illinois Department of Revenue, state methodologies for taxing the corporation plaintiffs were struck down as preempted by federal law or constitutional rules, in each case likely handing the plaintiff companies a large tax decrease.
  
• Punitive Damages Owed by Corporations Slashed: While focusing on federal maritime law in its details, numerous legal experts expect the Court's Exxon v. Baker decision - which slashed punitive damages owed to the Alaskan victims of Exxon's Valdez oil spill to no more than actual damages - will spill over into state courts, the primary venue for punitive damages against companies.
  

The one major corporate case involving state regulation that had even a mixed result was Morgan Stanley Capital Group, Inc. v. Public Utility District No. 1, which made a strongly pro-corporate legal argument that predatory utility contracts will generally be upheld no matter how unreasonable the rates for consumers, but that in the narrow case of unlawful manipulation of the power market, there might be cause for overturning the power contract.

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Election Law Decisions: Burdening Voting Rights, Upholding Voting Systems and Opposing Campaign Finance Fairness

If the Court was eager to override state laws for the benefit of corporate interests, it bent over backwards in deference to state law when the issue was Indiana's photo ID law gutting the rights of our nation's poorest voters in Crawford v. Marion City Election Board. As we detailed when the decision came down in May, the Court ignored clear evidence that a large majority of voters without ID who came to the polls would be prevented from having their votes counted-- and that the financial and time costs of obtaining a photo ID for many of them would be prohibitive, far more than poll taxes previously struck down as unconstitutional, as Justice Breyer noted in dissent.

Upholding Primary Systems: In two other decisions, the Court deferred to unusual state primary systems:

• In Washington State Grange v. Washington State Republican Party et al., the Court upheld Washington's new ballot system that allows candidates from all parties to compete in a single primary together, with the top two vote-getters going on to a runoff. The court ignored concerns that it violated the parties' associational rights that candidates could identify themselves with a party on the ballot and even advance to the runoff, despite the possibility of that candidate not being the choice of voting members of that party.
• In NY Board of Elections v. Lopez Torre, the Court approved New York state's system of nominating lower court judges at party conventions, rather than through direct elections.

Implications of Davis for State Public Financing Laws? While not directly effecting a state law, the majority in Davis v. Federal Election Commission, struck down the federal "Millionaire's Amendment" which allowed candidates facing self-funding candidates exceeding a certain level of spending to receiving larger campaign contributions to level the playing field. Given clear legal differences, state public financing laws in states like Arizona which increase state funding for candidates facing high-spending opponents should survive challenge, but the animosity by the Court majority to the goal of levelling the electoral playing field between those with and without wealth in our democracy is a general threat to such state campaign finance laws.

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A Mixed Term on Criminal Justice Issues

In terms of both justice and protection of state authority on criminal justice issues, the term was an extremely mixed bag.

• In Baze v. Rees, the Court upheld Kentucky's use of lethal injection for its death penalty.
• In Danforth v. Minnesota, the Court upheld Minnesota's decision to extend stronger retroactive relief for violations of Federal Constitutional rights than even federal courts might grant themselves, since "[f]ederal law sets certain minimal requirements that states must meet but may exceed in providing appropriate relief."
• In Kennedy v. Louisiana, the Court struck down Louisiana's law imposing the death penalty for the rape of a child as violating the Eighth Amendment.
• In Snyder v. Louisiana, the Court tightened scrutiny of state courts that allow government prosecutors to use preemptory strikes against black jurors in a discriminatory manner.
• In Indiana v. Edwards, the Court said that states may require defendants found competent enough to stand trial, but whose mental illnesses may prevent them from representing themselves, to be represented by counsel.
• In Medellin v. Texas, the Court ruled that the President does not have the authority to order a state to follow a World Court decision finding a state had violating an international treaty, in this case Texas denying an immigrant defendant access to his embassy council as required under a treaty signed by the United States. The court essentially made international law and U.S. treaties irrelevant for state governments unless Congress passes a separate law implementing them.
  

Implications of Heller for State Gun Laws: While the District of Columbia v. Heller decision creating a personal right to own a gun under the Second Amendment could have major implications for striking down state and local gun control laws, it is worth noting that the decision, written by Justice Scalia, stated that many existing gun law restrictions are still valid, including those limiting the kinds of weapons people may own, limiting ownership by felons and the mentally ill, limiting possession in schools and government buildings, and regulations on commercial sales. And it's not even clear, since this case was about a District of Columbia law and thus implicates only 2nd Amendment rights versus federal authority, that state gun laws will be restricted at all under the doctrine, a point Justice Scalia made in a footnote where he noted that a number of past Supreme Court cases had "reaffirmed that the Second Amendment applies only to the Federal Government."

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Other Miscellaneous Cases Upholding State Powers

A few other decisions had important implications for state authority:

• State leaders breathed a sigh of relief when the Court in Department of Revenue of KY v. Davis upheld the right of states to offer tax free gains under state law as an incentive for investments in municipal bond funding state and locally-authorized projects without running afoul of the federal Commerce Clause.
• In Kentucky Retirement System v. EEOC, the Court ruled that Kentucky’s pension system, which treats more generously some retired workers who became disabled before rather than after retirement agent, does not violate the Age Discrimination in Employment Act.

The Court's Hostility to Public Employee Rights: Engquist v. Oregon Department of Agriculture was a notable case in emphasizing the double standard of the Court in regards to public employees' constitutional rights. Having in past cases allowed property owners and others effected by state government actions to bring equal protection claims, under the doctrine of a "class-of-one," against arbitrary, vindictive, and malicious treatment, the Court in Engquist denied state employees the right to bring the same kind of constitutional claims when facing similar treatment. In dissent, Justice Stevens noted that this case was following the recent trend of the Court systematically excluding public employees from First Amendment and civil rights protections.

Unfortunately, I agree with Tyrone Brooks. I don't have faith the Supreme Court will rule justly on this. Worth a shot, but I'm not holding my breath.

Supreme Court review of Indiana's voter ID law to affect Georgia's

By BEN SMITH
The Atlanta Journal-Constitution
Published on: 09/25/07

A U.S. Supreme Court decision Tuesday to hear an appeal of Indiana's voter ID law could have far-reaching implications for Georgia's new statute and similar measures across the nation.

The Georgia law, which like the Indiana statute requires voters to bring one form of photo identification to the polls, is expected to be challenged in the 11th U.S. Circuit Court of Appeals.

RELATED: • More state and local news

This month, a lower federal court judge upheld the statute, allowing the law to be applied for the first time in local elections across Georgia on Sept. 18. So did the Georgia Supreme Court, which tossed out a similar lawsuit against the voter ID statute in June.

The law, passed by the Georgia Legislature in 2006, is intended to prevent voter fraud.

But opponents said the law could dissuade the poor, the disabled, ethnic minorities and the elderly — who are less likely to carry driver's licenses or other forms of photo identification — from going to the polls.

Advocates on both sides welcomed the Supreme Court review of Indiana's law.

"I'm not surprised or disappointed at all," said state Sen. Cecil Stanton (R-Macon), the author of the state's voter ID law. "I think it can resolve this issue once and for all."

The state Legislature passed Stanton's voter ID bill in 2005. He reintroduced it in 2006 after U.S. District Court Judge Harold Murphy struck it down. Murphy upheld the revised statute on Sept. 6.

A plaintiff in the Georgia case was less optimistic that the Supreme Court might rule on the plaintiffs' side in the Indiana case.

"This is the same court that decided Bush v. Gore, the same court that has spoken on school desegregation," said state Rep. Tyrone Brooks (D-Atlanta). "Just looking at the record of this court there doesn't look like much to celebrate. But it is a ray of hope."

Brooks said it was a good sign that the high court didn't refuse to hear the case.

Brooks is president of the Georgia Association of Black Elected Officials, one of the groups listed as plaintiffs in the suit. The others are the League of Women Voters of Georgia; the NAACP; the Georgia Legislative Black Caucus; and the Concerned Black Clergy of Metro Atlanta.

The plaintiffs' lawyer, David Brackett, said the court's final decision on Indiana's voter ID law could have a direct impact on his clients' case.

That's because the central argument in both cases is the same, Brackett said.

"In cases in which the right to vote is burdened, there is a sliding scale," said Brackett. "You have to look at the interests that the state is trying to protect and you have to look at the magnitude and character it imposes on the right to vote."

Brackett said he plans to file a notice of appeal with 11th Circuit Court.

In Georgia and Indiana, lower courts have ruled that the new voter ID requirements didn't pose a significant burden on an individual's right to vote.

If the high court were to disagree, both laws ultimately could be tossed out because neither state provided evidence that voter fraud was actually taking place, said Brackett.

Stanton said he was confident the Georgia law would survive further court challenges.

"There is a balance between the right to vote and the need to protect voting and elections from fraud," said Stanton. "And I think the Georgia law has struck a good balance."

Below is an article from the Guardian (original link here). There's an interesting paragraph where Secretary of State Handel said 3,585 ID's had been issued so folks could vote. It then says 522 of those had been done since the education effort started on August 1. What I find so interesting is that the AJC story reports Handel spending $250,000 on educational efforts on the new law. Handel said, "It was my view as long as the state made the effort to do the education and outreach, we would be able to manage if we did our jobs. All of that happened." Does it really make sense to say the outreach happened? 522 people got ID's who otherwise wouldn't have. That's about $478.93 per person spent on voter education statewide. To be fair, this was such a small election it's hard to read a lot into it. Unfortunately, I don't think there's data on who didn't vote because of the new law. We may have that on the primary. But I don't think we'll ever know how much more effort is put into turnout because of this. I'm thinking we're going to have to start pushing absentee ballots.

Georgia Voter ID Law Passes Test

Wednesday September 19, 2007 4:46 AM
By SHANNON McCAFFREY
Associated Press Writer

ATLANTA (AP) - Local elections in 23 counties ran without a hitch on Tuesday in the biggest test yet of the state's new law requiring a photo ID to cast a ballot, election officials said.

``I didn't notice anything different,'' said Jennifer Rivers of South Fulton, which is voting on whether to incorporate. ``I think people are used to having to show ID to do most anything these days. I know I am.''

Secretary of State Karen Handel said Georgia poll workers have been trained to allow those without photo IDs to cast a provisional ballot. They would then have 48 hours to present a valid ID in order for their vote to count.

``We want as many people who are eligible to vote to be able to vote,'' Handel said.

Opponents of the voter ID law warn that hundreds of thousands people lack the photo ID needed to vote and will stay away from the polls. Most experts say the true test of the law will come in Georgia's Feb. 5 presidential primary, when turnout is expected to be far higher.

Lawyers and legislators in Georgia have been battling over voter ID for several years now.

Opponents claim the photo ID law will disenfranchise minorities, the poor and the elderly who don't have a driver's license or other valid government-issued photo. Supporters say the law is needed to prevent voter fraud and preserve the integrity of the electoral system.

The most recent twist came when a federal judge this month cleared the way for the law to take effect. U.S. District Court Judge Harold Murphy had found an earlier version of the law unconstitutional, saying it amounted to a poll tax. The Legislature addressed his complaints in a subsequent version, which made photo IDs free to anyone who needed them.

Handel's office reported that 3,585 state photo ID cards have been issued to Georgians who presumably lacked the needed photo identification, 522 of them since the state launched an education effort on Aug. 1 to let voters know about the new requirement.

Lawyers who challenged the law are deciding whether to appeal to the 11th U.S. Circuit Court of Appeals.

A separate state lawsuit also failed. The Georgia Supreme Court tossed out a challenge filed by former Democratic Gov. Roy Barnes.

The voter ID law had been used three times in Richmond and Gwinnett counties in 2005 before it was blocked by the courts.

Georgia's is one of several voter ID laws passed in recent years across the country. Laws in Arizona, Indiana and Michigan have survived court challenges.

This is from today's AJC. Is there anyone who can doubt the Republican strategy at this point? Of course, the Democrats had a similar strategy in place. That doesn't excuse it, it means the majority of the people are right to see both parties as 2 sides of the same corrupt coin. On another note, Judge Murphy is the same judge who threw out the ACLU racial profiling motion in the Operation Meth Merchant case. Seems he's willing to go only so far on anything.


STATE LAW UPHELD: Bring photo ID for voting
Ruling takes effect in time for Sept. 18 local elections. Judge commends Georgia's efforts to spread the word.

By Bill Rankin, Jim Galloway
The Atlanta Journal-Constitution
Published on: 09/07/07

Georgia's much-debated photo voter ID law survived a major court challenge Thursday when a federal judge found it did not impose a significant burden on the right to vote.

The ruling upholds Georgia's law, said to be one of the most restrictive in the country, and clears the way for it to be enforced in the upcoming local elections on Sept. 18. Early voting begins Monday.

"It's a tremendous victory for Georgia, for our citizens and for the integrity of our elections," Secretary of State Karen Handel said in a joint press conference with Gov. Sonny Perdue.

Handel promised to continue outreach efforts, which she started this summer, that show voters how they can receive free IDs. This program included 250,000 mailings, hundreds of radio ads and a toll-free hotline.

To date, she said, the state has issued about 3,000 free voter IDs, including 300 since it began the education project in August.

Said Perdue, "Our goal has never been, is not now and never will be to try to keep people from voting."

Lawyers for groups challenging the law claim it creates an unnecessary step that could prevent minorities, the elderly, the disabled and the poor from going to the polls. But state legislators maintained voter ID is a vital component in the state's effort to combat voter fraud.

In a 159-page ruling, U.S. District Court Judge Harold Murphy in Rome, who had previously halted enforcement of the law, lauded the state for its efforts to educate the public about the law.

"Plaintiffs simply have failed to prove that the photo ID requirement unduly or significantly burdens the right to vote," Murphy wrote.

"On the other hand, preventing voter fraud serves the public interest by ensuring that those individuals who have registered properly to vote are allowed to vote and to have their votes counted in any given election," the judge said.

David Brackett, a lawyer representing the plaintiffs, said it was too early to tell if the groups will appeal.

"Obviously, we're disappointed," he said. "We think it's going to result in the disenfranchisement of a significant number of elderly and minorities in Georgia who are registered to vote and who desire to vote in person."

In October 2005, when Murphy suspended an earlier version of the law, he was vilified by Republican legislators who accused him of being an activist judge. At that time, Murphy declared the law imposed an unconstitutional poll tax and did not effectively fight voter fraud.

The Legislature responded by passing a revised version of the photo voter ID law in 2006, allowing state-issued IDs to be obtained for free and requiring that local registrars be able to issue the free cards. But last year, Murphy again issued injunctions halting enforcement of the law.

However, after the Georgia Supreme Court ruled that a similar lawsuit filed in Fulton County should be dismissed, Murphy held a trial in August on the ongoing federal lawsuit. First, Murphy found the plaintiffs in the case did not have legal standing to bring the lawsuit.

Filing suit were Common Cause/Georgia, League of Women Voters of Georgia, the Central Presbyterian Outreach and Advocacy Center, the NAACP, the Georgia Association of Black Elected Officials, the Georgia Legislative Black Caucus, the Concerned Black Clergy of Metro Atlanta and two individuals, Bertha Young, a 78-year-old woman from Rome, and Eugene Taylor of Screven County.

Among the organizational plaintiffs, only the NAACP could assert that at least one of its members would be harmed by the ID law. But Murphy noted that the NAACP could not provide the names of its members who could make that claim.

Although Young does not have a driver's license, she has a ID card issued by the Rome Police Department, and her sons or friends can drive her to the registrar's office, Murphy noted. Even though Taylor's daughter would have to take off from work to drive him to the registrar's office, this is not an unconstitutional burden, the judge found.

Murphy could have ended the case after making those findings. Instead, he also ruled on the merits of the issue.

Murphy noted that his previous injunction hinged in large part on the fact that many voters who lacked a photo ID had no real notice of the requirement or knew how to get one or vote absentee. But the judge said recent evidence showed the state "made exceptional efforts" to contact voters in the 23 counties planning to hold local elections this month.

The plaintiffs, Murphy wrote, "are hard-pressed to show that voters in Georgia, in general, are not aware of the photo ID requirement."

Addressing claims the law does nothing to combat voter fraud, Murphy did note that election rules allow someone to register to vote without presenting a Social Security number or other documentation, including a photo ID. This means, the judge said, a voter could register and then get a voter ID card without showing any other form of identifying information.

But Murphy said the additional step of obtaining the card could deter fraud.

Neil Bradley, a lawyer with the ACLU voting rights project, said Murphy's ruling shows that owning a state voter ID card "merely proves that you have a picture of yourself."

The law "is a complete sham, and we are disappointed that the court did not see it as a sham," said Bradley, one of the lawyers representing the groups that challenged the law.

Sen. Cecil Stanton (R-Macon), a sponsor of the law, praised the ruling.

"I am enormously pleased," Stanton said. "I feel vindicated that this frivolous lawsuit, like the ones brought before, has been dismissed. Judge Murphy did the right thing and I commend him."