ABA Journal Daily News By Debra Cassens Weiss Posted Nov 07, 2016 07:00 am CST
Thinking of casting a write-in vote for president? It may not be counted.
You can write in anyone on the ballot in 10 states and Washington, D.C., the Washington Post reports. But you will face more hurdles if you want your write-in to count in other states.
Eight states don’t even have a line for write-ins, according to the article. Thirty-two states won’t count write-ins unless a candidate is registered with the state before the election.
The jurisdictions allowing write-ins for anyone are: Alabama, the District of Columbia, Iowa, Mississippi, New Hampshire, New Jersey, Oregon, Pennsylvania, Rhode Island, Vermont and Wyoming.
The states that don’t allow write-ins are: Arkansas, Hawaii, Louisiana, Nevada, New Mexico, Oklahoma, South Carolina and South Dakota.
There are additional restrictions in some states, including some of those that allow write-ins for anyone. In Mississippi, for example, write-ins won’t be considered unless a candidate on the ballot dies, resigns, withdraws or is removed from the ballot. Some states won’t allow a write-in to win unless additional paperwork is filed after the election.
And in some states, preciseness counts. Nicknames and initials may not be allowed. Read more
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ABA Journal Daily News By Debra Cassens Weiss Posted Nov 07, 2016 02:59 pm CST
The U.S. Supreme Court is at a crossroads, according to a New York Times editorial.
The death of Justice Antonin Scalia in February and Republicans’ refusal to consider the Supreme Court nomination of Merrick Garland "have converged to throw the court’s future as a functioning institution into doubt," the editorial says.
Now some Republicans are threatening to continue to block Supreme Court nominees if Hillary Clinton wins the presidency. "The indefinite blockade not only hobbles the justices’ ability to resolve current cases, it takes open aim at the court’s legitimacy as the sole unelected branch of government," the editorial says. "Because the court ‘has no influence over either the sword or the purse,’ as Alexander Hamilton wrote in the Federalist Papers, its legitimacy and authority depend entirely on the shared public acceptance of its verdicts."
Until this year, the editorial says, no one disputed that the president should have wide latitude in choosing justices. Many Republicans opposed Supreme Court nominees Sonia Sotomayor and Elena Kagan, but they allowed the nominations to go forward. And Democrats allowed votes on Supreme Court nominees Robert Bork and Clarence Thomas, despite opposition to their nominations.
If Donald Trump wins the election, there would be calls among Democrats to block his nominees, the editorial says. "But the Constitution asks more of all of us than that," the editorial says. "In the next Congress, regardless of who wins on Tuesday, the very survival of the court as an independent body will be at stake." Read more
NOTE: I have a free ABA Journal Daily Newsletter online subscription. I encourage ordinary folks (nonlawyers) to read the online ABA Journal Daily News. I profile stories from the online ABA Journal on the Justice Network blog and website because it is an authority on legal matters. I find some of the best insights in the comments section.
The two men met in the Oval Office, and reporters were ushered into the room afterward to hear brief statements from the duo.
Obama said he was "encouraged" by the meeting with Trump and the president-elect’s interest in working with his team.
"I believe that it is important for all of us, regardless of party and regardless of political preferences, to now come together, work together to deal with the many challenges that we face," he said. Read more
ABA Journal Daily News By Debra Cassens Weiss Posted Oct 31, 2016 09:12 am CDT
FBI director James Comey’s disclosure on Friday that the bureau will investigate a Clinton aide’s emails has politicians and experts considering whether any laws were broken or whether any rights were violated.
Senate Minority Leader Harry Reid, D-Nevada, said in a letter on Sunday that Comey’s disclosure 11 days before the election may have violated the Hatch Act, which restricts political activities of government workers, the Washington Post reports. And the Volokh Conspiracy’s Orin Kerr, a law professor at George Washington University, says it’s possible the new investigation will be found to violate the Fourth Amendment.
Comey disclosed on Friday that the bureau was investigating new emails that may be relevant to its probe of Hillary Clinton’s use of a private email server. The emails were discovered on the computer of Anthony Weiner, who was under investigation for allegedly sexting a 15-year-old girl. His wife. Huma Abedin, is a top aide to Clinton.
The FBI has obtained a search warrant, unnamed law enforcement officials told the New York Times on Sunday. Weiner’s laptop was seized on Oct. 3, and FBI agents soon learned that Abedin’s emails were on the computer. At that point, agents were told to search the metadata to see if any emails were relevant to the Clinton investigation, according to the Times. Authorities decided to seek a search warrant late last week.
University of Minnesota law professor Richard Painter, a former White House ethics lawyer, sees some merit in Reid’s argument. In a New York Times op-ed, he said he filed a complaint on Saturday with the Office of Special Counsel, which investigates Hatch Act violations, and with the Office of Government Ethics.
"The FBI’s job is to investigate, not to influence the outcome of an election," he wrote.
Painter says a government official doesn’t have to have a specific intent to influence an election to violate the Hatch Act. "The rules are violated if it is obvious that the official’s actions could influence the election, there is no other good reason for taking those actions, and the official is acting under pressure from persons who obviously do want to influence the election," he wrote.
Painter says he is supporting Clinton in the election, though he previously supported Jeb Bush, Marco Rubio and John Kasich.
Kerr of the Volokh Conspiracy, meanwhile, considers case law on the Fourth Amendment and the facts that were known as of Oct. 30, when the blog post was written.
Kerr says he assumes the FBI obtained a warrant to search Weiner’s computer, as is required absent special circumstances. The search warrant presumably authorized a search relating relating only to Weiner’s communications with underage girls, Kerr says.
The first issue, he says, is whether the FBI was permitted to search through Abedin’s email account for records of Weiner’s improper messages to underage girls. He notes a Colorado Supreme Court case—which he has criticized—that dealt with officers who had a warrant to search for texts between a suspect and an undercover officer posing as an underage girl. The court found a search of a different folder that contained texts to a real underage girl violated the Fourth Amendment.
There might be similar problems in Clinton’s case because Weiner’s alleged texting crimes occurred in 2016. Hillary Clinton was secretary of state from 2009 to 2013. "If I’m right that there was a several-year gap between the warrant crime and the second investigation, it’s not clear the government could search through older emails for evidence of such a recent crime," Kerr writes.
A second issue is whether the FBI could seize the Abedin emails because they were outside the scope of the warrant, Kerr says. The "plain view" exception allows a law enforcement official who is searching a computer to obtain a second warrant to search for items in plain view that are evidence of a second crime. That standard may not be satisfied in the Clinton case, Kerr says.
"The plain view exception does not allow evidence to be seized outside a warrant unless it is ‘immediately apparent’ upon viewing it that it is evidence of another crime. Just looking quickly at the new evidence, there needs to be probable cause that it is evidence of a second crime to justify its seizure, which would presumably be necessary to apply for the second warrant," Kerr writes.
"The Fourth Amendment plain view standard doesn’t allow a seizure of emails based on a mere we-hope-to-later-determine standard. The government can’t seize the emails just because the Clinton investigation is extra important and any possible evidence is worth considering."
Kerr adds that the scope of the plain view doctrine with regards to computer searches "is very much in flux."
He also said he wanted "to flag the question of whose rights are at issue." If the FBI violated the Fourth Amendment, the only Clinton person who could move to suppress any evidence of crimes would be Abedin.
ABA Journal Daily News By Debra Cassens Weiss Posted Oct 28, 2016 12:42 pm CDT
Updated: FBI director James Comey told Congress on Friday that the FBI will investigate new emails that appear to be relevant to its once-closed probe of Hillary Clinton’s use of a private email server.
Comey said in a letter that the FBI learned of the existence of the emails in connection with an unrelated case, report the Washington Post and the New York Times.
According to the New York Times, unnamed officials told the newspaper that the new emails were discovered after the FBI seized electronic devices belong to Anthony Weiner and his wife, Huma Abedin, a top aide to Clinton. Weiner was under investigation for allegedly sexting a 15-year-old girl, the Associated Press reported in September.
The FBI "will take appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation," Comey wrote.
Comey said he couldn’t predict how long it would take to complete the additional work and couldn’t assess at this time whether the new material may be significant.
The Washington Post calls Comey’s disclosure an "explosive announcement" that could shape the final days of the presidential campaign.
The FBI closed the Clinton email investigation in July with a recommendation that Clinton not be charged. Comey said at the time that Clinton and her staff were "extremely careless" in handling data, but "no reasonable prosecutor" would bring a case over the emails. Attorney General Loretta Lynch accepted the FBI recommendation.
In past cases involving the mishandling of classified information, Comey said in July, prosecutions "involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here."
Updated at 3:45 p.m. to note that the New York Times’s report that
the emails were uncovered after the seizure of Huma Abedin’s electronic
devices is based on information from unnamed officials.
ABA Journal Daily News By Debra Cassens Weiss Posted Oct 25, 2016 09:20 am CDT
Circuit Judge Richard Posner says he’s writing a new book called Strengths and Weaknesses of the Legal System, and one of the weaknesses is the U.S. Supreme Court.
Posner, a judge on the Chicago-based 7th U.S. Circuit Court of Appeals, criticized the high court at a recent bookstore appearance for a new Posner biography written by William Domnarski, Above the Law reports. Here is what Posner said:
The new book is "almost entirely about the federal judiciary…. So I have about 10 pages on the strengths and about 320 pages on the weaknesses. I’m very critical. I don’t think the judges are very good. I think the Supreme Court is awful. I think it’s reached a real nadir."
Above the Law reviewed the C-SPAN video of Posner’s remarks and published his Supreme Court criticisms.
Posner said "probably only a couple of the justices," namely Ruth Bader Ginsburg and Stephen G. Breyer, "are qualified. They’re OK, they’re not great." Those justices’ opinions, he said, are "readable, and sometimes quite eloquent. The others, I wouldn’t waste my time reading their opinions."
The "most tedious opinion I’ve ever read," Posner said, was the dissent by Justice Samuel A. Alito Jr. in Whole Woman’s Health v. Hellerstedt, (Opinion PDF) (Wikipedia) which overturnedTexas abortion-clinic regulations. The 40-page dissent said the case should have been dismissed on the basis of res judicata because the plaintiff challenging the law had filed a previous case that was dismissed. Res judicata, Posner said, is a common law rule that is "not part of the Constitution or anything, and this is an important issue we’re trying to get settled—so why should you fuss with res judicata, especially for 40 pages?"
Posner said a weak federal judiciary can be blamed on appointing politicians who are more interested in politics rather than in good judges. He also said appellate and Supreme Court law clerks—who are typically very good and smart—are part of the problem.
"So the politicians figure," Posner said, "well, we’re appointing this person because he or she is of a particular race, or comes from a special part of the country, or this or that, or is liberal or is conservative. And this person is not particularly bright and doesn’t have much experience—never been in a trial courtroom, for example—but, there are all these brilliant law clerks working, so their opinions will be all right, because the law clerks will write them…. That’s a very serious deficiency in our system, and there are zillions more."
Posner went on to say that appellate judges should have trial experience, and they could get it—as he does—by sometimes sitting by designation as trial judges. Read online
Amendment 1 is an effort by big monopoly utilities to choke-off rooftop solar and keep a stranglehold on customers by preventing them from generating their own power. Watch!
This is a very important Amendment on the ballot in November. Amendment 1 seems like it is pro-solar but it is, in fact, very bad for solar in Florida. The big utilities worded Amendment 1 to make it seem like you are voting for something that is good for solar, but it is the exact opposite. Don't be fooled!
A Virginia lawyer used Facebook to denounce two restaurant patrons who left no tip for their waitress and explained why on the credit card receipt.
In the line reserved for the tip amount, the couple wrote, "We only tip citizens." The 18-year-old waitress was a citizen and the granddaughter of John Elledge, a lawyer in Harrisonburg, Virginia, the Washington Post reports. WSVN and the Huffington Post also have stories.
Elledge took a photo of the receipt, which included the woman’s signature, and posted it on Facebook. "You are a complete and total piece of dung," he wrote.
Elledge tells the Post he flunked out of college and spent time in the Honduras in the 1980s working for the Episcopal Church as a bilingual English teacher. He met and married a Honduran woman and adopted her two children, one of whom is the father of the waitress.
"We’re a totally bicultural family," he says.
Elledge had also posted on Facebook that he would "happily do the jail time if I could get just one solid punch in to the face" of the person who wrote the note. But he didn’t carry through on the threat when he learned the angry couple returned to the diner.
Elledge tells the Washington Post that the woman demanded to know why she posted the receipt. "I said obviously, it was an insult—your signature against my granddaughter—darn right I’m going to post it. And no apologies."
