Saturday, October 18, 2014

The Shadow of Rule 11 Sanctions

In Arizona, the Republican attorney general has declined to appeal a district court decision striking down the state's gay marriage ban. His reason immediately jumped out at me -- he claimed there was a risk of Rule 11 sanctions (for unnecessarily delaying the conclusion of litigation), given that the 9th Circuit has already rejected identical appeals and the Supreme Court recently denied cert on the same.

This jumped out at me because I have been playing around with the idea of courts sanctioning states for defending patently unconstitutional legislation. The idea is a sort of a check against grandstanding -- it's an expressive snapback by judges against legislators who pass laws that obviously, on face, violate the Constitution.

Now, no matter what one thinks of gay marriage, that is not this case. I think gay marriage bans are unconstitutional, but not obviously so. There are perfectly reasonable, good faith arguments to the contrary. My thoughts went more along the lines of laws banning the construction of Mosques. In any event, while I agree that an appeal by Arizona would prove to be futile, I am highly doubtful that any court would have imposed sanctions on the Arizona AG for filing it. And even under the Attorney General's view, sanctions wouldn't be imposed because his legal argument was intrinsically frivolous, but because it had functionally already been resolved by the relevant courts. Is that a distinction without a difference, though? Isn't a "frivolous" argument simply one which is absolutely, positively, obviously guaranteed to lose?

The point is, regardless of whether this decision is directly on point; I've been on the eye for any indication that Rule 11 sanctions might be factor in constitutional litigation. Even if the context is different, the fact that a state Attorney General viewed such sanctions as a legitimate possibility is very interesting on its own terms.

UPDATE: "Finally, let's be serious. When was the last time the government was sanctioned for defending the constitutional validity of one of its laws?" If I do write this article, Howard Wasserman just became my epigraph.

Monday, October 13, 2014

Lakisha and Jamal Go to the Polls

Also, now they're Latino.

A very interesting study out of USC tests responsiveness of legislators to Latino versus Caucasian citizens with concerns about how to vote. State legislators received the following message:
Hello (Representative/Senator NAME),

My name is (voter NAME) and I have heard a lot in the news lately about identification being required at the polls. I do not have a driver’s license. Can I still vote in November? Thank you for your help.

(voter NAME)
For half, the voter's name was "Jacob Smith," and for the other half it was "Santiago Rodriguez". In all of the states tested, the actual answer to this question was "yes" (a driver's license is not required to vote).

The study found that legislators were considerably more likely to respond to Jacob Smith than Santiago Rodriguez. And that gap exploded when one compared voter ID supporters to voter ID opponents. Opponents of voter ID responded the Caucasian-sounding constituent 50% of the time compared to 43% of the time for his Latino-sounding peer (a seven point gap). For proponents of Voter ID, by contrast, that split was 45/27.5 (a gap of 17.5 points). In other words, proponents of voter ID are far less likely to respond to Latino constituents who have simple questions about the voting process.

This gap still exists for opponents of voter ID, but it is almost purely a result of partisan differences. Republican proponents of voter ID evinced a nearly 40 point gap in response rates between White and Latino constituents, while Republican opponents of these laws showed only a 16 point gap. Democratic opponents of voter ID laws, by contrast, responded to White and Latino voters at equal rates (within the margin of error). There were too few Democratic supporters of voter ID laws to measure.

The draft paper is available for download here.

Monday Flash Reviews

Despite what the title implies, not the first of an ongoing series.

Middle-Earth: Shadow of Mordor: ... or as I like to call it: Assassin's Earth: Shadow of Arkham. At first glance, this is just a mashup of the Assassin's Creed and Batman games, only while slaughtering Orcs in Mordor. Is that really what I want in a game (answer: yes, more than anything)? But I'm in agreement with all the critics that the Nemesis system really elevates this title to another level. Getting taunted by a captain who's already killed you twice before ("I killed you before sonny. That's called a precedent!") makes it all the sweeter when you finally decapitate him in the rematch.

Homeland, Season 4: No Brody is just as wonderful as I imagined it. Now we can focus on Carrie and her continued narcissism and lack of self-awareness. "You let the station-chief out of your site in Islamabad, without knowing where he was? Now stay here, I'm going to exit the car and wander the streets for awhile. No, I'm not going to tell you where I'm going."

Brooklyn Nine-Nine, Season 2: Maybe a touch worse than the impeccable first season, which still makes it the best comedy on television. I may actually be in love with Stephanie Beatriz. Remember that time there was a whole subplot devoted to getting her to smile? She has a dazzling smile. Also, everyone else on the show is incredible too. Putting Boyle and Gina together was a deft way to get Boyle out of Diaz's romantic orbit, which was one of the few plot points starting to flag on me.

Gotham, Season 1: I'm really enjoying it so far. Jill is unconvinced. She thinks it's because I know more of the lore of the Batman universe, but I've never been a huge Batman fan (outside the aforementioned Arkham games). Still, I do know enough to recognize a lot of the characters (Gordon, the Penguin, the eventual Riddler). And that might help flesh out the universe, but I think underneath there is a solid (if standard-issue) gritty cop drama.

Sleepy Hollow, Season 2: Jill and I started off really enjoying the first season, but it progressively got duller and duller. Now we pretty much only watch it because it follows Gotham, and inertia is a tough foe to beat. Nothing so far in this season has really prompted us to resume paying close attention.