# Judiciary



Resolution of lawsuit removes political case for Des Moines Water Works bill

Opponents of the legislative effort to disband the Des Moines Water Works got a boost yesterday when the water utility’s Board of Trustees voted not to appeal last month’s federal court ruling dismissing their lawsuit against three northwest Iowa counties. The Iowa Farm Bureau’s wrath over that case inspired a bill that would transfer authority over the Des Moines Water Works to three area city councils.

Agriculture committees in the Iowa House and Senate advanced versions of the Water Works bill, but neither chamber voted on the measure before a “funnel” deadline in late March. Several House and Senate Republicans representing districts with independently-managed water utilities spoke privately about opposing the bill.

Among Iowans who have been fighting this legislative overreach, one big fear has been that powerful Republicans would slip Water Works language into an appropriations bill during the final days of the session. Senate Appropriations Committee Chair Charles Schneider has pledged not to do so, but his House counterpart Pat Grassley has made no such promise. The deadline for appealing the federal court ruling was coming up on April 17, and some Water Works supporters worried that pursuing the case might strengthen the Farm Bureau’s allies at the Capitol, who are still trying to get this language to Governor Terry Branstad.

Instead, the Water Works will waive its right to appeal in exchange for the defendants agreeing not to pursue legal fees. According to Laura Sarcone, communications specialist for the water utility, the next step will be defense counsel getting the boards of supervisors of Sac, Buena Vista, and Calhoun counties to sign off on the agreement. The U.S. Department of Justice would also have to approve the resolution.

I would guess that the county supervisors will happily agree not to pursue legal fees in exchange for finalizing an end to the lawsuit. After all, the cost of defending the case didn’t come out of their budgets. As Art Cullen discussed in a Pulitzer Prize-winning series of editorials for the Storm Lake Times, secret donors, supposedly unknown even to the county supervisors themselves, paid for the first $1 million or so of the defendants’ legal expenses. The Iowa Farm Bureau and Iowa Corn Growers Association stepped in to cover the rest.

I enclose below a Water Works news release and the ruling from U.S. District Court Chief Judge Leonard Strand. In dismissing the case, he found that the Water Works “may well have suffered an injury” from pollutants entering waterways in the named counties, but the northwest Iowa drainage districts “lack the ability to redress that injury.” Almost certainly, the Water Works would not have prevailed on appeal to the Eighth Circuit. The lawsuit accomplished only one thing: making Iowa’s dirty water a more salient political issue. Even so, bills that would address the major source of the problem–agricultural runoff–have no more traction now than they ever did.

APRIL 19 UPDATE: No Water Works provisions are in the standings bill Schneider introduced this week.

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Weekend open thread: Stolen Supreme Court seat edition

Confession: I didn’t watch the confirmation hearings of Judge Neil Gorsuch*. The outcome was foreordained, down to Republicans invoking the “nuclear option” of changing Senate rules to allow confirmation of U.S. Supreme Court nominees with a simple majority of votes. The late-breaking news of flagrant plagiarism by Gorsuch* was never going to change any Republican minds.

Democrats could make various political arguments for fighting this nomination through extraordinary means. Even though I knew the filibuster wouldn’t keep Gorsuch* off the high court, I supported the tactic for one reason alone: “business as usual” cannot go on after the theft of a Supreme Court seat.

No matter how qualified Gorsuch* is on paper, he should never have been able to receive this lifetime appointment. Denying the equally qualified Judge Merrick Garland a Judiciary Committee hearing was unprecedented and will be a permanent stain on Senator Chuck Grassley’s legacy. Republican excuses for refusing to consider President Barack Obama’s nominee have no more merit now than they did a year ago. Gorsuch* will never be a legitimate Supreme Court justice in my eyes, and Bleeding Heartland will put an asterisk by his name in perpetuity.

This is an open thread: all topics welcome.

Another tragic story caught my attention this past week: Rekha Basu’s feature for the Des Moines Register on former Mason City council member Alex Kuhn. Well-liked and seen by many as a rising star, Kuhn took his own life last summer. Basu told the story through the frame of the intensely negative feedback–by some accounts bullying–Kuhn received after opposing an incentives package for a huge Prestage pork processing plant. When John Skipper told the story of Kuhn’s final months in the Mason City Globe-Gazette last December, he focused on the young man’s battle with depression. According to Basu, Kuhn’s parents believe Skipper built “a narrative around depression, enabling those who had hurt Alex to turn his suffering back on him.”

The Globe-Gazette’s editor David Mayberry wasn’t a fan of the way Basu built her narrative, on grounds he laid out in this Twitter thread. He observed that “pinning a suicide to one cause is a well-documented no-no in journalism” and linked to this guide for reporters to support his case.

No one can precisely reconstruct why Kuhn’s suffering became too much to bear. Clearly the Prestage controversy profoundly affected him. I can’t imagine what a devastating blow his death was to his loved ones. It’s a huge loss for Iowa as well. Whatever you may think about local giveaways to profitable corporations, elected officials with Kuhn’s political courage are few and far between.

Read the teachers union lawsuit against Iowa's collective bargaining law

The largest labor union representing Iowa teachers and its Davenport affiliate filed a lawsuit yesterday challenging the constitutionality of House File 291, which eliminated almost all collective bargaining rights for teachers.

I enclose below the full text of the initial Polk County District Court filing. Scroll down to read comments Iowa State Education Association President Tammy Wawro delivered at a press conference, which you can watch here.

Like the lawsuit Iowa’s AFSCME chapter filed in February, the new lawsuit targets the unequal treatment of two classes of workers under the revised Chapter 20, which governed collective bargaining here for more than four decades. “Public safety” workers will be able to keep bargaining over a larger range of subjects, while other public employees can negotiate only about a handful of subjects, primarily base pay. ISEA maintains that this division violates Article I, Section 6 of the state constitution, which stipulates, “All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”

In addition, the ISEA is challenging the law’s two biggest union-busting provisions: a ban on automatic payroll deduction for union membership and political contributions, and procedures that will make it harder for public unions to stay certified. ISEA holds that the payroll deduction ban also violates the uniformity clause of Article I, Section 6, because such deductions will be allowed for other professional associations or organizations. In addition, the lawsuit charges that by creating “an undemocratic election system” for unions representing public workers, which “counts votes based on population instead of number of votes cast,” the law violates the substantive due process guarantee of Article I, Section 9.

Attorney General Tom Miller is not defending the collective bargaining law, to “avoid any questions about a potential conflict.” The state retained the Belin McCormick law firm to handle legal challenges. At the end of this post, I enclose the motion filed to dismiss ASFCME’s lawsuit; the defense against ISEA’s suit will make the same arguments.

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Weekend open thread: Iowa legislative news roundup

The Iowa legislature’s second “funnel” deadline passed on March 31. In theory, aside from appropriations bills, any legislation that hasn’t yet cleared one chamber and at least one committee in the other chamber is no longer eligible for consideration for this year. However, leaders can resurrect “dead” bills late in the session or include their provisions in appropriations bills. The Des Moines Register’s William Petroski and Brianne Pfannenstiel reviewed important bills that did or did not make it through the funnel. James Q. Lynch and Rod Boshart published a longer list in the Cedar Rapids Gazette.

This paragraph caught my eye from the Register’s story.

Senate Majority Leader Bill Dix, R-Shell Rock, said everything that lawmakers are doing is a reflection of learning from states where prosperity is occurring as a result of business-friendly policies. That formula includes low-cost government, innovative public services, and easing regulatory burdens on businesses to spur job creation and to allow Iowa companies to compete in a global marketplace, he added.

Not so much: Republicans following a similar playbook drove Kansas and Louisiana into the ground. Wisconsin has performed poorly in employment growth, poverty reduction, household income, and wages compared to neighboring Minnesota, where corporate interests didn’t capture state government.

This is an open thread: all topics welcome. I enclose below links and clips about bills I haven’t had time to write about yet. Two are “business-friendly” policies that will hurt Iowans suffering because of exposure to asbestos or medical malpractice. One would make local governments and first responders less accountable by excluding all “audio, video and transcripts of 911 calls involving injured victims of crimes or accidents” from Iowa’s open records law.

Quick update on House File 484, the bill to dismantle the Des Moines Water Works: once seen as almost a sure thing due to covert support from the Iowa Farm Bureau, the bill was on the House debate calendar for many days in March but never brought to the floor. Majority Leader Chris Hagenow put House File 484 on the “unfinished business” calendar on March 30, after House Republicans voted down a Democratic motion to exclude it from that list.

Opponents of the Water Works bill have become more confident lately, as several GOP representatives and senators have said privately they oppose the legislation. In addition, a Harper Polling survey commissioned by the Water Works showed that 68 percent of respondents oppose disbanding independent water works boards in Des Moines, West Des Moines, and Urbandale in order to give city councils control over the water utility. The same poll indicated that by a 55 percent to 23 percent margin, respondents said an independent board of trustees rather than the city council is “best qualified to manage your local water utility.” By an 88 percent to 5 percent margin, respondents said “people who live in the community” and not the state legislature should have “the final say” on municipal utilities. No one should be complacent, because powerful forces are behind this legislation. Republican leaders could attach Water Works language to must-pass budget bills.

P.S.- The legislature is supposed to wrap up its business this month and adjourn for the year before the end of April. I suspect that even with unified Republican control, the session will go into overtime. Lawmakers haven’t finalized budget targets for the 2018 fiscal year yet. With less money to go around following the recent downgrade in revenue forecasts, and legislators of both parties calling for a review of increasingly expensive tax credits and exemptions, I expect several more weeks of behind the scenes negotiations before the House and Senate are ready to approve appropriations bills.

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Why my conservative values make me vote for Democrats

A guest commentary by a committed activist who served on the Iowa Democratic Party Platform and Rules Committees and currently serves on a county central committee. -promoted by desmoinesdem

I believe in obeying the Constitution. The 14th Amendment says that debts of the USA shall not be questioned. Steve King–and most Republicans–voted to not raise the debt ceiling which would have put the government in default. That vote led to the downgrading of the government’s credit rating. The 14th amendment also guarantees equal protection under the law. But Republicans don’t think the Constitution applies to same sex couples who wish to marry. George W. Bush violated the constitutional rights of Americans by spying on them without a warrant. Democrats objected; Republicans didn’t. President Barack Obama nominated a replacement for the late Justice Scalia. Republicans senators refuse to do their duty and vote to confirm—or not—that nominee.

I don’t believe judges should legislate from the bench, but I do believe they must strike down laws that violate the Constitution. Republicans applauded the U.S. Supreme Court for striking down the Washington D.C. handgun law, but went nuts when the Iowa Supreme Court unanimously struck down the law banning gay marriage. Republicans agreed when activist justices on the U.S. Supreme Court created a new right for corporations to spend unlimited secret money to try to buy our elections with misleading TV ads; Democrats want that decision overturned.

Originalists, who claim that the Constitution must be interpreted as the Founding Fathers meant it, are contradicted by the Founding Fathers themselves.

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Read the first lawsuit over revoked University of Iowa scholarships

University of Iowa undergraduate Ben Muller filed a class action lawsuit today in Polk County District Court, charging that the university “revoked its scholarship offers to Plaintiff and the putative class without warning, without due process, and without just compensation.” Muller is among 3,015 undergraduates who learned last week that the University of Iowa was discontinuing five scholarship programs to help cover losses in state funding. Scroll down to read the full seven-page court filing, which alleges multiple violations of the Fifth and Fourteenth Amendments to the U.S. Constitution.

In a news release also enclosed below, attorney Steve Wandro described the university’s action as “not only immoral, but illegal as well.” Jon Muller, the plaintiff’s father, said, “What has occurred here is insane. My son’s decision to attend the University of Iowa was partially based on his being awarded a scholarship.”

Attorneys have scheduled meetings in West Des Moines and Iowa City this Saturday for “students, parents of students, and interested alumni to discuss their concerns and legal options.” The press release includes details on meeting locations and times.

The plaintiff is asking for a jury trial. A Facebook page created to support a class-action filing has nearly 250 likes.

My hunch is that University of Iowa President Bruce Harreld and his advisers will come up with a face-saving way out of this mess before Muller and other members of his class have their day in court. A trial pitting the university against students, most of whom are children of alumni, would generate massive terrible publicity.

After Harreld figures out how to cover the $4,343,699 the university planned to save by canceling the current students’ scholarships, he needs to deal with an extra $1,237,500 reduction in state funding before June 30. The Branstad administration announced additional mid-year cuts to higher education last Friday.

UPDATE: Added below details on a second class-action lawsuit that undergraduate Jenna Pokorny filed in Johnson County District Court on February 27.

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Key Iowa Senate Republican: "Loser pays" bill going nowhere

A Republican bill that would have made Iowa courts far less accessible to ordinary people will die in an Iowa Senate subcommittee, GOP State Senator Charles Schneider told Bleeding Heartland on February 25. Bill Brauch, former director of the Consumer Protection Division in the Iowa Attorney General’s Office, explained here how the so-called “loser pays” bill “would in effect kill Iowa’s private consumer fraud law, and just about eliminate any other type of legal action by an individual against a defendant with money.”

Senate Judiciary Committee Chair Brad Zaun introduced Senate Study Bill 1008 during the first week of the legislative session, then assigned it to a subcommittee chaired by Schneider. Following a February 25 public forum in Clive, I asked Schneider about that bill’s status. He replied, “I don’t think it’s going anywhere. I haven’t held a subcommittee meeting for it, and I’m not planning to.”

I mentioned that Senate Majority Leader Bill Dix had named “loser pays” as one of his top four priorities in an interview with Radio Iowa. Schneider responded, “I’m not planning to hold a subcommittee meeting on it. I don’t think any other tort reform bills include a ‘loser pays’ section in them.”

Under Iowa legislative rules, most non-appropriations bills will be dead for the year if they have not cleared at least one Iowa House or Senate committee by the first “funnel,” coming up on Friday, March 3. The leaders of subcommittees and committees have discretion on what bills to bring up for a vote.

I’m pleasantly surprised to learn Senate Study Bill 1008 will go down without a fight. Only a month and a half ago, Dix cited a “measure that ensures losers in those court cases pay for the cost associated with the case” as one of “four bills that I believe define us and give Iowans a clear indication of where we plan to go with policies for our state.” The Iowa Association of Business and Industry, a lobby group with substantial influence among statehouse Republicans, registered in favor of this bill almost immediately. Perhaps Schneider, who practices law as a day job, was able to convince non-attorneys Dix and Zaun that “loser pays” is unnecessary and unfair. Or perhaps Zaun miscalculated by putting Schneider in charge of this subcommittee.

Whatever caused this bill’s demise, any bit of good news from this dreadful legislative session is worth celebrating.

UPDATE: Reader Marian Kuper noticed that Senate Study Bill 1144 contains a “loser pays” clause for nuisance lawsuits against large livestock farms. Senate Agriculture Committee Chair Dan Zumbach proposed that bill, which contains several provisions designed to shield confined animal feeding operations (CAFOs) from lawsuits. It has passed a subcommittee and appears likely to survive the funnel, with support from several Big Ag lobby groups.

Iowa attorney general: Outside counsel should defend collective bargaining law

To “avoid any questions about a potential conflict,” Iowa Attorney General Tom Miller will request that outside legal counsel defend the state against a public employee union’s legal challenge to Iowa’s new collective bargaining law. AFSCME, the largest labor union representing state workers, and four of its members filed suit on February 20, charging that House File 291 violates Iowa constitutional provisions on equal protection and non-interference in contracts. In a statement I enclose in full below, Miller said he will ask the Iowa Executive Council to approve other counsel for this case, because “the new collective bargaining law has the potential to existentially threaten the viability of public sector unions,” which have supported him in past campaigns.

The council is likely to approve Miller’s request. Its five members are Governor Terry Branstad, Secretary of State Paul Pate, State Treasurer Mike Fitzgerald, Secretary of Agriculture Bill Northey, and State Auditor Mary Mosiman. Branstad’s spokesperson Ben Hammes told Barbara Rodriguez of the Associated Press, “[Miller] summed it up when he said that AFSCME had supported him in the past and he wants to avoid any questions about a potential conflict.”

The Attorney General’s Office defended the Branstad administration against a lawsuit challenging the closure of the Iowa Juvenile Home, for which AFSCME Iowa Council 61 President Danny Homan was a plaintiff. But outside counsel defended the state when Democratic lawmakers and Homan challenged the governor’s use of line-item vetoes to close Iowa Workforce Development offices.

Miller may need to ask outside counsel to be appointed if other labor unions and public employees file additional lawsuits challenging the collective bargaining law. Aside from the points raised by AFSCME, several other provisions may raise constitutional questions:

• The law bans automatic payroll deductions for labor union dues, while allowing such deductions to continue for professional association memberships or recurring charitable contributions.

• The law may violate free association rights by requiring unions to win a majority of all eligible voters, not just those who cast ballots, in order to stay certified.

• The law eliminates a quid pro quo contained in the first paragraph of Chapter 20, which could be seen as a due process violation.

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Read the first lawsuit challenging Iowa's horrible new collective bargaining law

AFSCME Iowa Council 61 and four of its members filed suit today in Polk County District Court, saying the collective bargaining law Governor Terry Branstad signed on Friday is unconstitutional. I enclose below the petition filed on behalf of Iowa’s largest union representing state employees, as well as the plaintiffs’ request for expedited hearing. The filing repeatedly refers to “the amendments” because House File 291 amended Chapter 20 of the Iowa Code, which has regulated collective bargaining since 1974.

The new law’s disparate treatment of “public safety workers” and other public employees is the central issue raised in AFSCME’s lawsuit. Plaintiffs argue that Article I, section 6 of the Iowa Constitution requires that “all laws of a general nature shall have a uniform operation” and that the legislature “shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.” All four individual plaintiffs fail to qualify as “public safety workers,” and therefore have lost almost all meaningful collective bargaining rights, even though some of their occupations are as dangerous or more so, compared to some of the “public safety” jobs. Johnathon Good is a corrections officer, Ryan De Vries is a police officer III, Terra Kinney is a motor vehicle enforcement officer, and Susan Baker is a drafter for the University of Northern Iowa. Excerpt from page 7 of the petition:

The arbitrary definition of “Public Safety Employee,” the arbitrary classification of public employees as “Public Safety Employees” or other public employees and the arbitrary classification of bargaining units into those whose members are at least thirty percent “Public Safety Employees” and those whose members are not which are included in the Amendments deprive Officer Good, Officer De Vries, and Ms. Baker of the constitutional guaranty of equality of all before the law that is set forth in Art. I, § 6 of the Iowa Constitution.

The petition also argues that “transition procedures” altering and terminating bargaining procedures and schedules established in the union contracts violate Article I, section 21 of the Iowa Constitution, which prohibits passing a “law impairing the obligation of contracts.”

Before the text of House File 291 became public, Republican lawmakers were rumored to be at odds over whether to exempt “public safety workers” from most of the new restrictions on collective bargaining. Supposedly Iowa House Republicans opposed that division, while key GOP senators wanted to copy the political strategy used in Wisconsin six years ago. The collective bargaining bill Iowa House Republicans approved in 2011 did not treat law enforcement officers or firefighters differently from other public employees.

Sources in Iowa’s labor community expect other lawsuits challenging the collective bargaining law to be filed later this year. The two main union-busting provisions are seen as particularly ripe for challenge: onerous election requirements for unions to stay certified, and a ban on automatic payroll deductions for union members, even though employees will still be able to automatically deduct membership fees in other professional associations and recurring charitable donations. Neither provision was part of the 2011 Iowa House collective bargaining bill.

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Standing in Solidarity Speech

On Saturday, February 4th, 2017, Linn County Supervisor Stacey Walker joined several organizations from around the state at Mt. Zion Missionary Baptist Church in Cedar Rapids, Iowa to call for fair policing and justice reform. Below is the speech Supervisor Walker gave at the event. -promoted by desmoinesdem

Thank you all for coming here today as we stand in solidarity.

Thank you to Pastor Epps for opening the doors of this church for this very important community event.

And to the Mitchell family. We are all here for you today.

Since that fateful night in November, when Jerime Mitchell was fired upon three times at close range, with one bullet entering his neck, leaving him paralyzed, much has been said by many people in this community. These incidents tend to be controversial in nature for many reasons, one of them being our society tends to hold certain institutions as sacrosanct. And any time those institutions are challenged or questioned, our society divides itself into two camps: those who believe certain institutions are infallible and those who wish to hold all institutions to an equal account.

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Trump delivers stolen Supreme Court seat to Neil Gorsuch

President Donald Trump announced this evening that he is nominating 10th Circuit Appeals Court Judge Neil Gorsuch for the U.S. Supreme Court seat that should have gone to President Barack Obama’s nominee. A few good backgrounders on the man who will benefit from last year’s unprecedented Republican obstruction: Eric Citron for SCOTUS blog, Robert Barnes for the Washington Post, and Adam Liptak for the New York Times. Liptak dug up a 2002 article by Gorsuch, in which he lamented the Senate’s treatment of two appeals court nominees “widely considered to be among the finest lawyers of their generation”: John Roberts (the current Chief Justice) and Merrick Garland (who should have been confirmed to fill this vacancy).

USA Today’s justice reporter Brad Heath observed, “It would be hard for Trump to have picked a federal appellate judge more like Scalia than Gorsuch.” Heath posted excerpts from a number of Gorsuch’s opinions in this thread, noting the judge believes in “applying the Constitution’s ‘original public meaning.’” Some of the rulings are counter-intuitive, such as this case in which Gorsuch found “extortion doesn’t violate the Equal Protection Clause if [the] corrupt official solicited bribes from everyone.”

Senator Chuck Grassley praised Gorsuch for being well qualified and having been confirmed unanimously to the appeals court. Speaking to the Des Moines Register’s Jason Noble, the Judiciary Committee chair said he hoped Democrats would not filibuster Gorsuch, just as Republicans didn’t filibuster Supreme Court nominees during the first terms of Presidents Bill Clinton and Barack Obama. What’s missing from this narrative? Grassley never even gave Garland a hearing.

After the jump I’ve posted prepared statements from Grassley and Senator Joni Ernst welcoming the nomination. I also enclose below the Alliance for Justice fact sheet on Gorsuch, which references many of his legal writings. That non-profit’s president Nan Aron described Gorsuch as a “disastrous choice,” because his “record shows no sign that he would offer an independent check on the dangerous impulses of this administration. What it does show is that he would put the agenda of powerful special interests ahead of the rights of everyday people […].”

Gorsuch is only 49 years old, so he will probably serve on the high court for decades. Several analysts believe picking him was an effort to “reassure” Justice Anthony Kennedy “that it would be safe to retire.” Once Kennedy goes and Trump appoints another justice, we can say goodbye to reproductive rights, voting rights, any kind of environmental and labor regulations, consumer protections, and equal rights for women and LGBTQ people. The Supreme Court will for all practical purposes be unavailable as a check on Republican governance.

While conservatives across the country celebrate tonight, a few locals may be disappointed Trump passed over 8th Circuit Appeals Court Judge Steven Colloton of Iowa. Colloton and Iowa Supreme Court Justice Edward Mansfield were both on the long list of possible Supreme Court nominees Trump released during the campaign. By some recent accounts, Colloton was on the president’s short list after the election too. Maybe next time.

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Iowans Lose with Senate "Loser Pays" Bill

Bill Brauch, the former director of the Consumer Protection Division in the Iowa Attorney General’s Office, warns about a “little sleeper of a bill” that would be “a nuclear weapon against judicial fairness.” -promoted by desmoinesdem

Iowa Senate Republicans have hit the ground running this session, and their agenda is replete with extreme proposals. One of them hasn’t gotten much notice yet but, if enacted, would represent the most radical change to Iowa’s judicial system since its inception.

Senate Study Bill 1008 would impose the “loser pays” standard in all civil actions in Iowa courts. This means that if you lose a civil lawsuit you not only have to pay your own attorney fees, you have to pay the other side’s attorney fees as well. Another term for this would be “instant bankruptcy!”

Imagine you are injured in a car accident and sue the other driver to seek recovery for your injuries. If the case is hard-fought both sides might run up tens of thousands of dollars in attorney fees. Say the case is a close one and you lose by a whisker – the jury thought you had a good case but your proof fell just short. Under SSB 1008, you’ll not only have to pay your own attorney fees, you’ll have to pay the other side’s as well!

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Steve King's unconstitutional Obamacare bill getting national ridicule

For a self-style “constitutional conservative,” Representative Steve King has a lot of trouble with the separation of powers concept. In the past, King has tried to block federal courts from hearing cases related to marriage rights and encouraged state governments to disregard the U.S. Supreme Court’s 2015 marriage equality ruling.

King went one step further this week by introducing a bill to prohibit the Supreme Court from citing its previous cases involving the 2010 Affordable Care Act.

Legal experts agree King’s proposal is itself unconstitutional.

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A year's worth of guest posts, plus tips for guest authors

One of my blogging new year’s resolutions for 2016 was to publish more work by other authors, and I’m grateful to the many talented writers who helped me meet that goal. After the jump I’ve linked to all 140 guest posts published here last year.

I encourage readers to consider writing for this site in 2017. Guest authors can write about any political issue of local, state, or national importance. As you can see from the stories enclosed below, a wide range of topics and perspectives are welcome here.

Pieces can be short or long, funny or sad. You can write in a detached voice or let your emotions show.

Posts can analyze what happened or advocate for what should happen, either in terms of public policy or a political strategy for Democrats. Authors can share first-person accounts of campaign events or more personal reflections about public figures.

Guest authors do not need to e-mail a draft to me or ask permission to pursue a story idea. Just register for an account (using the “sign up” link near the upper right), log in, write a post, edit as needed, and hit “submit for review” when you are ready to publish. The piece will be “pending” until I approve it for publication, to prevent spammers from using the site to sell their wares. You can write under your own name or choose any pseudonym not already claimed by another Bleeding Heartland user. I do not reveal authors’ identity without their permission.

I also want to thank everyone who comments on posts here. If you’ve never participated that way, feel free to register for a user account and share your views. If you used to comment occasionally but have not done so lately, you may need to reset your password. Let me know if you have any problems registering for an account, logging in, or changing a password. My address is near the lower right-hand corner of this page.

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Politically motivated Iowa fraud case points to Polk County prosecutor's failure

A former administrative law judge who testified about political interference at Iowa Workforce Development is facing a felony fraud charge after staff in the Polk County Attorney’s office failed to do their homework.

Ryan Foley reported Thursday for the Associated Press that former Administrative Law Judge Susan Ackerman is charged with making fraudulent submissions, having “falsely certified that her married daughter was single so that she could receive state health insurance in 2013 and 2014.” When the Iowa Supreme Court Attorney Disciplinary Board reviewed an Iowa Workforce Development complaint citing the same conduct a year and a half ago, the board determined “that Ackerman didn’t commit an ethical violation and declined to take action against her law license,” Foley noted.

So why is she facing criminal prosecution now? Because no one in the Polk County Attorney’s office researched this case before filing charges.

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Iowa Supreme Court: Branstad had power to veto mental health funding

Another one for the “elections have consequences” file: The Iowa Supreme Court unanimously ruled on November 10 that Governor Terry Branstad “did not exceed the scope of his constitutional authority” when he vetoed funds state lawmakers had approved to keep open mental health facilities in Mount Pleasant and Clarinda.

A large group of Democratic legislators, joined by the president of the public employee union AFSCME, filed suit soon after Branstad vetoed the funding in July 2015. Their lawsuit contended that Iowa Code contains language requiring the state to operate Mental Health Institutes in Mt. Pleasant and Clarinda. But last November, a Polk County District Court held that “Existing statutes are not conditions on appropriations” and “cannot limit the Governor’s item veto authority.” Bleeding Heartland published excerpts from Judge Douglas Staskal’s decision here.

Last week’s Iowa Supreme Court opinion by Justice David Wiggins affirmed Staskal’s ruling but found that the District Court “failed to address” a matter of constitutional law raised by the plaintiffs. After additional analysis of the legislative intent behind language designating the facilities in Mount Pleasant and Clarinda as “state hospitals for persons with mental illness,” the high court reached the same conclusion as Staskal: the governor had the power to veto funds earmarked for operating facilities he had closed. I enclose below excerpts from the opinion.

Branstad’s spokesperson Ben Hammes did quite the spin job in his statement:

Today’s unanimous Supreme Court decision affirms the Governor’s action by allowing more Iowans to have access to quality mental health care and substance abuse treatment than ever before. The State’s mental health care redesign allows Iowans to access treatment in a community-based setting and through more modern means. Gov. Branstad is committed to putting patients first, improving care, increasing access and modernizing the delivery of mental health services. In fact, there are currently at any time 60-100 psychiatric inpatients beds open across the state. Iowa now maintains a robust level of access to mental health beds that are more efficiently delivered.

Nice try, Hammes. In reality, the justices did not assess either the merits of Branstad’s decision to close the in-patient facilities or the quality of mental health care and substance abuse treatment in Iowa. In reality, Iowa “consistently ranks in the bottom five of all states in every single category of mental health programs and services.” In reality, Iowa “ranks dead last in the country for state psychiatric beds per capita.” In reality, “many Iowans with serious mental illnesses are being marooned” for weeks or months in hospitals, for lack of adequate facilities or services to monitor their care.

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"The Lord gave, and the Lord hath taken away": a Jobian analysis of gay marriage in America

A frightening look at how a changed Supreme Court might strip LGBT Americans of marriage rights. You can find previous writing by Bill from White Plains here. -promoted by desmoinesdem

If there is one group whose rights may be most immediately at risk following the election of Donald Trump to the Presidency of the United States, it isn’t refugees, or Muslims, or Mexicans, or women. It is those who are wed to their gay partners. The reason for that has a lot to do with a really poorly written and poorly reasoned United States Supreme Court ruling finding restrictions on marriage to those of different genders unconstitutional.

The ruling, Obergefell v. Hodges, does a couple of really bad injustices to gay married couples.

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A look at the campaign to retain Iowa's Supreme Court justices

The last three Iowa Supreme Court justices involved in the landmark 2009 marriage equality ruling are on the ballot this year: Chief Justice Mark Cady (author of the Varnum v Brien decision) and Justices Brent Appel and Daryl Hecht. However, this year’s Iowa judicial retention elections aren’t getting much attention, largely because social conservative groups decided not to engage heavily in the fight.

By this point in 2010, television commercials calling for a “no” vote on three Iowa Supreme Court justices had been on the air for six weeks. Bob Vander Plaats and allies were holding “Judge Bus” events across Iowa. In a radio ad, Representative Steve King urged listeners to “vote ‘no’ on Judges [Marsha] Ternus, [Michael] Streit and [David] Baker” to “send a message against judicial arrogance.” For about a month before the 2012 general election, conservative groups paid for tv ads asking Iowans to “hold [Justice] David Wiggins accountable for redefining marriage and legislating from the bench.”

In contrast, Vander Plaats and like-minded Iowans have made a lower-key case against Cady, Appel, and Hecht, largely relying on e-mail, social media postings, and letters to the editor. They probably realized a full-court press was unlikely to succeed in a presidential election year. Nor did they have a way to fund a more extensive anti-retention campaign, with the biggest donor from 2010 and 2012 staying on the sidelines this year.

Supporters of retaining the Supreme Court justices are taking no chances, though. Two groups are leading the fight to persuade and remind voters to mark “yes” for all Iowa judges, especially Cady, Appel, and Hecht. I enclose below a sampling of messages from the Justice Not Politics coalition and the Iowa State Bar Association.

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How Roe v. Wade came to be and why it won't be overturned

Guest author Bill from White Plains takes a close look at a U.S. Supreme Court case that is a perennial issue in presidential campaigns. You can read earlier posts in his series on the Supreme Court here. -promoted by desmoinesdem

“Abortion? I personally don’t think abortion is that important. I think it’s just an issue to evade whatever issues are makin’ people drink about abortion.” Bob Dylan, 2016 winner of the Nobel Prize for Literature, speaking to Rolling Stone in 1986

You wouldn’t know it if you listened to the second and final 2016 Presidential debates, abortion isn’t even in the top 10 of the most important Presidential election issues this year. According to the Pew Research Center’s survey results from the week, June 15-26, 2016, abortion comes in at #13 of the 14 most important issues, trailing, among others, gun policy (#5), immigration (#6), Social Security (#7), trade policy (#11) and the environment (#12). Likewise, what one might expect as a hot-button issue – marriage equality – is last on the list (#14), meaning (according to Pew, anyhow) that only 40% of potential voters believe this is a “very important” issue.

Of course, in that same poll, Supreme Court Justices come in at #9, meaning that 65% of those surveyed believe appointments to the most influential court in America, and elsewhere, are “very important.”

But the issue was brought to the forefront at the debates, anyhow.

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"The judge who always likes the results he reaches is a bad, bad judge"

United States Supreme Court Justice Antonin Scalia during a January 28, 2013 book promotion at Southern Methodist University

Thanks to Bill from White Plains for another close look at the U.S. Supreme Court. His first post in this series is here. -promoted by desmoinesdem

At the end of the second Presidential debate, held on October 9, 2016 in St. Louis, Missouri, and at the outset of the third (and final) Presidential debate, held October 19, 2016 in Las Vegas, Nevada, both candidates – New York Republican Businessman Donald John Trump and former Democratic New York senator – and former United States Secretary of State – Hillary Clinton provided their “litmus tests” for their nominees to the United States Supreme Court.

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"Maybe the legislature and the president are not as stupid as you think. They assuredly picked those people because of who they are and when they get to the court they remain who they were." -- Associate Justice Antonin Gregory Scalia on whether the Supreme Court is too political

As the results of the upcoming Presidential election are impending, much ink – digital and print – and more breath have been spent discussing “The Supreme Court.”

The Supreme Court’s fourth Chief Justice, John Marshall, famously wrote, in Marbury v. Madison (1803), that the United States Supreme Court “emphatically” has “the province and duty . . . to say what the law is.”

When John Marshall wrote that, the number of justices on the United States Supreme Court was set by the Judiciary Act of 1789 at six by the Congress (the Federal legislature) of the United States – the Chief Justice and five associate justices. That is because there is no set number of justices articulated in the United States Constitution. Article III of the United States Constitution governs the powers of the Federal judiciary. Article I of the United States Constitution governs the responsibilities of the Federal legislature, which is the bi-cameral body (the Senate and the House of Representatives) collectively known as the Congress of the United States.

Pursuant to the Judiciary Act of 1869 (16 Stat. 44 (1869)), an act passed by Congress, and currently found at 28 U.S.C. § 1, the number of United States Supreme Court justices is now set at nine.

Prior to 1869, the number had been as high as 10.

Currently, there are eight United States Supreme Court justices due to a vacancy created by the death of Associate Justice, Antonin Gregory Scalia, which occurred nine months ago on February 13, 2016.

The office of the Presidency of the United States is created by the United States Constitution under Article II, regarding the “Executive” branch of government. See U.S. CONST. ART. 2 § 2 cl. 1. Among the constitutional powers of the President is the power – and the duty – to appoint Federal judges. That authority is found at U.S. CONST. ART. 2 § 2 cl. 2 (“He [yes, he – not he or she] shall have Power . . . and by and with the Advise and Consent of the Senate, shall appoint . . . Judges of the supreme court and other Officers of the United States. . . .”).

During this presidential election cycle, the question has come up, again and again, whether the Senate has a co-existing duty to provide “Advice and Consent.” Particularly this year, and particularly in Iowa, this question has been a topic of discussion because Iowa’s own senior Senator, Charles Ernest Grassley, a Republican, is the Chairman of the House Judiciary Committee (the committee that, among other things, presides over hearings on Federal judicial nominees), in a Senate whose majority is currently Republican, and who is running for re-election. Senator Grassley has stated publicly that Merrick Brian Garland – the judge outgoing Democratic President Barack Obama has nominated to fill the vacancy created by Associate Justice Scalia’s death – will not be considered by the Judiciary Committee because President Obama nominated him during an election year.

The truth is, the Senate probably does have a Constitutional duty to consider the Article III judicial nominations made by the President. But, it’s not clear. The Constitution itself, in Article I (the article laying out the make-up and responsibilities of the Senate and the House of Representatives), is silent on the matter. But, under Article II, the article laying out the powers and responsibilities of the Executive Branch of the United States generally, and of the President of the United States particularly, the Constitution gives a duty to the president to nominate and, upon the Senate’s approval, appoint, Federal Judges (defined generally, by Article III, but particularly United States Supreme Court justices).

The Constitution, by virtue of creating the duty in the President, makes some assumption that the Senate, upon being created by Article II, will follow through with acting on the nomination. But again, Article I, which creates the Senate, doesn’t specify how the Senate should handle presidential nominations of judges or anybody else.

To the extent there is some dormant obligation on the part of the Senate to be read in the Constitution, the Senate has ignored it for nearly 200 years. A March 16, 2016 “Fact Check” commentary in The Washington Post called, “Does the Senate have a constitutional responsibility to consider a Supreme Court nomination?” cites President John Quincy Adams’ lame duck nomination of a potential justice in December 1828 – two months after he lost his bid for re-election, three months before his successor, Andrew Jackson, would take office. The Senate ignored the nomination. President Jackson, shortly after his inauguration, nominated the successor, who was later approved by the Senate, and appointed. The Post’s commentary, written by Glenn Kessler, concludes that

Nearly 200 years ago, the Senate made it clear that it was not required to act on a Supreme Court nomination. In periods of divided government, especially with elections looming, the Senate has chosen not to act — or to create circumstances under which the president’s nominee either withdrew or was not considered. Indeed, the patterns don’t suggest the Senate used procedures out of constitutional duty, out of deference for what the Constitution says or what previous Senates have done. Instead they used procedures based on the political circumstances of each confirmation.

Then, of course, there is the situation where Congress is not in session. The President has power under the Constitution to appoint Federal judges when that situation arises. It should not go unnoticed that, since this past February, the Senate has jiggered its individual members’ time such that someone is always, at least, present in Washington, so, technically, the Senate is never in recess.

Judges of the United States Supreme Court, being among the “Officers of the United States,” the President has the power to appoint them while the Senate is in recess, pursuant to by U.S. CONST. ART. 2 § 2 cl. 3, but upon the Senate’s return, the Senate must confirm that appointment by the end of its term – typically meaning, the end of that calendar year. Indeed, Associate Justice William Joseph Brennan Jr. (1956), Associate Justice Potter Stewart (1958) and, perhaps most significantly, Chief Justice Earl Warren (1953), were all recess appointees of President Dwight D. Eisenhower, whose appointments were subsequently confirmed by the United States Senate.

Justice Brennan’s appointment was not only a recess appointment, but a 1956 appointment. Nineteen fifty six was an election year and moderate conservative President Eisenhower was running for re-election. William J. Brennan was a Roman Catholic Democrat, a moderate liberal, and from the northeast. He was, in other words, a superfecta nominee for a Republican President seeking to please those four constituencies that year. At the time, William Joseph Brennan Jr. was serving his fifth year as an associate justice on the New Jersey Supreme Court, following a brief tenure (less than two years) as a New Jersey trial judge.

Associate Justice Potter Stewart was perhaps the first of only two “swing justices” in the United States Supreme Court’s history; the predecessor to Justice Anthony McLeod Kennedy, who is currently an Associate Justice on the Supreme Court.
Earl Warren, governor of California, had run against General Dwight David Eisenhower for the Republican Presidential nomination in 1952. Prior to Eisenhower’s subsequent nomination, young, California Senator, Richard M. Nixon, had publicly endorsed Governor Warren for the Republican Party’s nomination. Nixon – feral, self-serving and despicable always – turned on fellow Californian Warren like Peter to Jesus before the cock crowed, when then-General Eisenhower offered Nixon the vice presidency if Eisenhower were elected.

Consequently, in 1953, Nixon actually had a legitimate reason to be paranoid about Warren’s political retribution. Likewise, then-President Eisenhower owed Warren, big time. Initially, Eisenhower offered Warren the role of United States Solicitor General (whose office argues all Federal appeals to the United States Supreme Court) and promised to follow that up with a Supreme Court appointment once a vacancy arose. Before he could announce his appointment of Warren as Solicitor General, however, a Supreme Court vacancy arose.

As happened most recently when District of Columbia Circuit Judge John Glover Roberts Jr., who had never served as an associate justice of the Supreme Court before being nominated for a Chief Justice slot (Chief Justice William J. Rehnquist having passed away), Earl Warren was appointed by President Eisenhower, not only as a new Supreme Court justice, but to the position of Chief Justice, replacing Chief Justice Fred M. Vinson, who died unexpectedly in 1953.

In 1953, Earl Warren was everything that a Republican President in 2016 would want in a Supreme Court Justice. First, he was a Republican up-and-comer with a solid, conservative background. In any election cycle other than 1952, he probably would have been President of the United States. But in 1952, bolstered by his status as a five-star general in World War II, Dwight D. Eisenhower was the Republican nominee who ultimately won the presidency by huge numbers (442 electoral votes to his opponent, Adlai Stephenson’s 89 electoral votes).

In 1953, Earl Warren was serving his third term as Governor of California. As governor, he had successfully used New Deal financial initiatives to create jobs in California, chiefly through the creation of vast infrastructure initiatives like highways and bridges, and higher education both in terms of advancing scholarship and constructing brick-and-mortar institutions with the expansion of the University of California system with universities, colleges and community colleges.

Prior to becoming California’s longest-serving Republican governor (his tenure in California has only recently been surpassed by current Democratic governor, Jerry Brown, who was previously California governor in the 1970s), Earl Warren had been the state’s attorney general. As attorney general, Warren was responsible for implementing a number of programs Americans now view as loathsome and reprehensible. Perhaps his most unfortunate and enduring legacy was the internment of Japanese immigrants – among them many, many American citizens of Japanese descent – during World War II. Likewise, Warren enforced laws that promoted eugenics in the form of sterilization of Mexicans, Asians and Native Americans – primarily women – in order to have their communities die out so that the state could confiscate their land.

Prior to becoming attorney general, Warren had been a “tough on crime,” “law and order” county attorney for Alameda County, targeting bootleggers and corrupt politicians.

Warren went on, then, to become the Chief Justice who, with a compliment of like-minded jurists from 1953 through his retirement in 1969, ushered in perhaps the most liberal Constitutional case law in the history of the Supreme Court. Right out of the shoot, the Supreme Court ruled on Brown v. Board of Education of Topeka, Kansas, in 1954, and held, unanimously, that separate but equal school systems for Black children and White children were inherently unequal. Brown overturned more than half a century of precedent from its 1896 Plessy v. Ferguson decision to the effect, separate accommodations in every aspect of public life from rail cars to rest rooms, was equal and acceptable.

Likewise, the Warren court, in 1962, decided a case about Congressional redistricting that was so gut wrenching for the justices that one of them, Associate Justice Charles Evans Whittaker, a conservative justice from Missouri who had only been on the Court for six years, recused himself and quit the Court the next year. In that case, the Supreme Court ruled that the Fourteenth Amendment to the United States Constitution afforded equal protection under state legislatures’ redistricting laws. Generally, states re-draw their Congressional districts in order to make them relatively equal in population. They do this by using the United States census. The affect to redrawing Congressional districts is, the interests of the populace change based on how you determine the population. And, as a result of that, state legislatures “gerrymander” the districts, such that, to draw them out on a map, they look like a crazy quilt, because they are rigged to retain a certain party’s power, while fulfilling the obligation to keep the districts relatively equal in terms of population.

But that is a story for another time.

In Baker, the plaintiff was a Tennessee mayor living in an urban district seeking re-election in the late 1950s who noticed that the Congressional districts hadn’t changed since 1901, following the 1900 Federal census. In that half century, the population had shifted from primarily rural to urban, but the district map had not been updated; the district had not been reapportioned. The defendant, Joe Carr, was the Tennessee secretary of state, based on the fact he was officially in charge of conducting free and fair elections. The only question for the court at the time was whether the matter was purely legislative, and the responsibility of the state’s elected officials to sort out, or whether it was something courts could decide.

The Warren Court, split 6-2, with Justice Whittaker abstaining, ruled in Baker that reapportionment was “justiciable:” whether, under Article III, the case was either a “case” or “controversy.” Article III § 2 cl. 2 of the United States Constitution lays out the jurisdiction (what it calls the “judicial power of the United States”) of the United States Supreme Court and “inferior Courts as the Congress may from time to time ordain and establish.” This was a very big deal because, as is just as true today, the dividing line between states’ rights and Federal government intrusion was a major issue. In the ruling, the court went out of its way to list a series of cases that, it said, confirmed that reapportionment was always justiciable. That being said, the question arose, “Why now, then?” The answer, history has shown, is that the Warren court “went there;” all previous courts had begged off.

But that is as far as it went. The Supreme Court’s Baker ruling did not decide whether Tennessee’s Congressional districts were Constitutional; it remanded the case back to the trial court to make that determination.

Until 1964, when the court exercised its newly-proclaimed justiciability over Congressional redistricting, in a case called, Reynolds v. Sims. The question in Reynolds was whether a state’s redistricting of its own legislative districts was unconstitutional under the United States Constitution. There, the Alabama Constitution called for one state senator for every county. Voters in Jefferson County, Alabama – home of the state’s capital, Birmingham, objected to the consequential disparity between the power of their senator, representing a densely populated urban region, and that of any senator from some rural and sparsely populated county.

As in Baker, the apportionment of Alabama counties in Reynolds was based on the 1900 census and a 1901 statute setting forth the rules of redistricting. As in Baker with respect to Missouri, much had changed in those 50 + years, population-wise, in Alabama. In Reynolds, the population variations were so lopsided that when comparing urban and rural counties, the Court found that in some cases, a senator would receive 41 votes in one county for 1 vote received by a senator in another county.

The court was careful in Reynolds to point out that “No effective political remedy to obtain relief against the alleged malapportionment of the Alabama Legislature appears to have been available.” The court was obviously still concerned about the impression the Federal judiciary (nine unelected judges) was forcing its preferences onto the people (judicial activism). It observed that, in order to change the redistricting in Alabama, there had to be a constitutional amendment and constitutional amendments in Alabama could only occur through a 3/5 majority of legislators agreeing to one, followed by a simple majority vote of the people or, by means of a constitutional convention called after a simple majority of the popular vote, and approved by a majority of senators and house legislators. The senators and house members, having obtained their seats through the lopsided system created in 1901, were not likely to change anything.

Ultimately, the court found that the system was unconstitutional under the 14th Amendment’s equal protection clause, and that the constitution required a system to permit a proportional, one person-one vote, plan. The court wrote, as follows:
History indicates, however, that many States have deviated, to a greater or lesser degree, from the equal-population principle in the apportionment of seats in at least one house of their legislatures, So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature. But neither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation. Citizens, not history or economic interests, cast votes. Considerations of area alone provide an insufficient justification for deviations from the equal-population principle. Again, people, not land or trees or pastures, vote. Modern developments and improvements in transportation and communications make rather hollow, in the mid-1960’s, most claims that deviations from population-based representation can validly be based solely on geographical considerations. Arguments for allowing such deviations in order to insure effective representation for sparsely settled areas and to prevent legislative districts from becoming so large that the availability of access of citizens to their representatives is impaired are today, for the most part, unconvincing.

Voting rights was a major civil rights issue in 1964, as they continue to be today, 52 years later. But it took the Warren court to break through a century of states running amok with voting schemes that disenfranchised voters. One of the important issues Hillary Clinton raised during the second Presidential debate was voter disenfranchisement.

Aside from voting rights, the Warren court declared in Gideon v. Wainwright (1963) that the Fifth and Sixth Amendments to the United States Constitution afforded indigent Federal prisoners the right to defense counsel paid for by the Federal government. And, in 1968, the Warren court ruled, in Miranda v. Arizona, that a criminal suspect must have his rights explained to him before being interrogated by law enforcement officials – especially the right to remain silent, because anything said can, and will, be used against that suspect.

This level of Constitutional analysis resulting in such a sweeping installment of rights to so many people in such a brief, 16 year period, is viewed by many as unprecedented since Chief Justice Marshall articulated the power of the Federal courts and, in particular, the Supreme Court.

As will be discussed in subsequent installments, there are several questions about the outcome of the 2016 Presidential campaign as it relates to the Supreme Court as a body, and as it relates to the individual justices as legal scholars. As I have just demonstrated, Chief Justice Earl Warren turned out to be the polar opposite of what President Eisenhower would have wanted, much less expected, from the hard-as-nails/law and order California governor and attorney general that Warren had been before presiding over the United States Supreme Court.

Just as clearly, and as demonstrated prior to the recent appointments of Associate Justices Sonia Maria Sotomayor and Elena Kagan, a block of justices appointed by Presidents of a certain political ideology can affect the types of cases, and the outcomes of cases, coming before the Supreme Court.

Over the next four, and potentially eight, years, the next president is likely to replace up to four justices on the United States Supreme Court – two of them (Associate Justices Ruth Bader Ginsburg and Stephen Gerald Breyer), appointees of Democratic, politically moderate, President William Jefferson Clinton and two of them (Associate Justices Antonin Gregory Scalia and Anthony McLeod Kennedy), appointees of Republican, politically conservative, President Ronald Wilson Reagan.

Sometimes, as in the case of the period Chief Justice Earl Warren presided over the Court, that can mean a great deal. Other times, like the past 37 years since Chief Justice Warren retired, and that sesquicentennial period between Chief Justice John Marshall’s 1803 Marbury v. Madison opinion and the commencement of Chief Justice Warren’s term on the Supreme Court began in 1953, it hasn’t seemed to matter much at all.

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Second presidential debate takeaways: Did Trump stop the bleeding?

The 48 hours before tonight’s town-hall debate were unlike anything seen before in a American politics: 42 Republican members of Congress or governors had announced since Friday that they could not support their party’s presidential nominee. Daniel Nichanian (known on Twitter as Taniel) listed the Donald Trump defectors in narrative form and on this spread sheet.

Hillary Clinton had already been gaining in nationwide and swing state polls since the first debate on September 26, improving her chances of winning the presidency to above 80 percent on FiveThirtyEight.com–before massive news coverage and social media chatter about Trump’s “grab them by the pussy” videotape. FiveThirtyEight’s Nate Silver speculated that “The Bottom Could Fall Out for Trump,” while Nate Cohn of the Upshot wondered whether the new scandal could send the whole Republican ticket “crashing down.”

Shortly before the debate, Trump staged a bizarre media stunt with three women who have accused former President Bill Clinton of sexual misconduct and one who was allegedly raped in 1975 by a man Hillary Rodham represented. Three of those women appeared on his behalf in the post-debate “spin room.”

Republicans are cheering Trump’s performance tonight, and on a superficial level, he clearly handled himself much better than in the first debate. After an excruciating early stretch defending his taped comments as merely “locker room talk” (in contrast to Bill Clinton’s alleged “actions”), Trump repeatedly hammered home his favorite talking points about Hillary Clinton: she’s been a “disaster,” her policies would be a “disaster,” she lies, she has bad judgment like Bernie Sanders said, she’s been there for 30 years but never done anything. He also gave wavering Republican voters plenty of reasons to hang in there with him: bashing Obamacare and the “terrible” Iran nuclear deal, proposing big tax cuts, promising to appoint Supreme Court justices in the mold of Antonin Scalia. Trump also finished the debate on a stronger note, managing a surprisingly gracious answer to the “say something nice about your opponent” question.

So arguably, the Republican nominee did what he needed to do tonight. And yet…

• Trump’s body language was angry and sometimes menacing. Many viewers commented that Trump was looming or hovering behind Clinton in a creepy, threatening, and stalker-like way.

• He denied that his “locker room talk” was tantamount to bragging about sexual assault. I have no doubt more women or previously unknown recordings will come out this week to undercut his denials.

• He vowed to put his political opponent in jail if he becomes president. Bob Schieffer of CBS News lamented, “this is what they do in banana republics.”

• He admitted that he had used a $916 million reported loss on his 1995 tax return to avoid paying personal federal income taxes in subsequent years.

• He made more than a dozen false or misleading statements (see also here).

• He acknowledged that he knows “nothing” about Russia and said he disagrees with his running mate on policy toward Syria. Incidentally, the Indianapolis Star reported on October 9 that unnamed sources close to Indiana Governor Mike Pence say he is “keeping his options open”–whatever that means. Pence is stuck with Trump through November 8, for better or worse.

Any comments about the presidential race are welcome in this thread. In CNN’s instant poll, 57 percent of respondents said Clinton won the debate, 34 percent said Trump did. YouGov’s respondents thought Clinton won the debate by a 47 percent to 42 percent but thought she looked “more Presidential” by a 57 percent to 31 percent.

Two Iowans among "40 Under 40" Midwestern clean energy leaders

The non-profit news site Midwest Energy News has honored two Iowans on its second annual 40 Under 40 list of “emerging leaders” working on “America’s transition to a clean energy economy.” From last week’s announcement:

Erin Buchanan works as an Energy Services Coordinator for Cedar Falls Utilities in Cedar Falls, Iowa. In 2011, Buchanan was named a “rising star in public power” by the American Public Power Association. She is a graduate of the University of North Carolina-Chapel Hill, with a B.S. in mathematical decision sciences. She also holds an M.S. in statistics from Iowa State University. […]

Josh Mandelbaum is a Des Moines-based staff attorney with the Environmental Law & Policy Center (ELPC). Before joining ELPC, Mandelbaum practiced law with Lane & Waterman LLP in Davenport, Iowa. He previously served as a senior policy advisor to Iowa Governor Thomas J. Vilsack and Lt. Governor Sally J. Pederson. Before his work in the Governor’s office, Mandelbaum held a fellowship at the U.S. Department of Transportation in the Secretary’s Policy Office. Mandelbaum is a 2000 Truman Scholar, a 2001 magna cum laude graduate of Brown University, and a 2009 honors graduate from the University of Iowa College of Law.

I wasn’t familiar with Buchanan’s work before learning about this award. I was impressed to see all the resources Cedar Falls Utilites provides for customers seeking to use less energy, purchase wind-generated electricity, buy units in a community-owned solar garden, or install small-scale wind or solar systems.

I’ve known Mandelbaum for many years and am an active supporter of the Environmental Law & Policy Center. The non-profit’s legal team has contributed to major public policy victories in the renewable energy field, from a solar power case that went to the Iowa Supreme Court to mostly below-the-radar battles with intransigent rural electric cooperatives and investor-owned utilities Alliant and MidAmerican. Mandelbaum and his colleagues have also been involved in important water policy fights, such as a 2014 Iowa Supreme Court case that kept state “anti-degradation” rules alive. Earlier this year, an Iowa District Court ruled in favor of ELPC’s lawsuit on behalf of the Iowa Environmental Council, seeking to force the state Department of Natural Resources to enforce those rules, “an important part of the [federal] Clean Water Act.”

Iowans Paritosh Kasotia and Dwight Stewart were part of the first Midwest Energy News 40 Under 40 cohort last year.

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Iowa Supreme Court Justice Mansfield on Trump's expanded list for SCOTUS

Iowa Supreme Court Justice Edward Mansfield is among ten new names on Republican presidential nominee Donald Trump’s list of possible U.S. Supreme Court appointees, multiple journalists reported today.

Former Governor Chet Culver appointed Mansfield to the Iowa Court of Appeals in 2009. He was a workhorse on that bench, writing some 200 opinions in less than two years. Since Governor Terry Branstad named him to the Iowa Supreme Court in February 2011, Mansfield has been one of the court’s most prolific opinion writers. He is part of a conservative bloc of justices including the other two Branstad most recently appointed.

Mansfield’s judicial philosophy would appeal to many conservatives. He rarely joins what might be called “activist” decisions to overturn state law, administrative rule, or executive body determinations. In this year’s biggest case, Mansfield was part of a 4-3 majority upholding Iowa’s broad ban on voting by people with felony convictions. He has not joined various majority opinions related to juvenile sentencing, including one this year that held “juvenile offenders may not be sentenced to life without the possibility of parole” under Iowa’s Constitution. He dissented from a 2014 ruling that allowed a lawsuit against top Branstad administration officials to proceed.

Social conservatives might be encouraged by the fact that three years ago, Mansfield hinted in a one-paragraph concurrence that he does not agree with the legal reasoning underpinning the Iowa Supreme Court’s 2009 Varnum v Brien decision on marriage equality. However, he has never clarified whether he would have upheld Iowa’s Defense of Marriage Act or struck it down on different grounds.

The biggest red flag about Mansfield from a conservative perspective would probably be his decision to join last year’s unanimous ruling to strike down Iowa’s ban on telemedicine for abortion services. When the State Judicial Nominating Commission put Mansfield on the short list for the Iowa Supreme Court in early 2011, some conservatives grumbled that the judge’s wife was an active supporter of Planned Parenthood. Though the telemed abortion decision was grounded in the law and medical facts, critics may view Mansfield as untrustworthy on one of their key priorities for the U.S. Supreme Court: overturning Roe v Wade. I am not aware of Mansfield expressing any public opinion on that landmark 1973 abortion rights ruling.

One other Iowan is on Trump’s long list for the Supreme Court. Judge Steven Colloton of Des Moines, who serves on the Eighth Circuit U.S. Court of Appeals, was one of eleven names the Trump campaign released soon after locking up the GOP nomination. I enclose below more background on Colloton.

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Group polled Iowans on Supreme Court retention vote (updated)

Leaders of the campaigns to oust Iowa Supreme Court justices in 2010 and 2012 have chosen not to engage in this year’s retention elections, which will decide whether the last three justices who participated in Iowa’s marriage equality ruling will stay on the bench.

However, the coalition formed to stop “extremists from hijacking Iowa’s courts” is taking no chances. Justice Not Politics commissioned a statewide poll last week to gauge voters’ attitudes toward Chief Justice Mark Cady and Justices Brent Appel and Daryl Hecht, as well as some issues related to controversial Iowa Supreme Court rulings.

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Latest PPP survey shows Clinton up by 2, Grassley by 6

Democratic nominee Hillary Clinton leads Republican Donald Trump by 45 percent to 43 percent in a two-way race, and U.S. Senator Chuck Grassley leads Democratic challenger Patty Judge by 49 percent to 43 percent, according to a Public Policy Polling survey of 827 “likely voters” in Iowa on August 30 and 31. PPP conducted the poll on behalf of We Need Nine, which advocates for filling the U.S. Supreme Court vacancy as a project of the Constitutional Responsibility Project. (That advocacy group has spent $31,273 so far against Grassley.)

PPP did not include minor-party presidential candidates in its ballot test, and at this writing no cross-tabs are available to shed light on Clinton’s narrow lead over Trump. The main purpose of the survey was to gauge support for Grassley and Iowa voters’ opinions on the Supreme Court vacancy.

For those wondering about priming effects–that is, whether the pollster “primed” respondents to evaluate Grassley on this issue in order to reduce his lead over Judge–PPP asked respondents about the Senate race before the series of questions about judicial confirmations. It’s worth noting that PPP did some internal polling for Judge’s campaign before the Democratic primary in June.

Buzzfeed’s Chris Geidner was first to report on this survey. I enclose below excerpts from PPP’s polling memo and other findings from the survey.

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Key funder confirms no plans to go after Iowa Supreme Court justices

The National Organization for Marriage does not plan any “campaigning or intervention” in this year’s retention elections for three Iowa Supreme Court justices, Grant Rodgers reported for the Des Moines Register on September 5. The group was the largest single funder of the two previous anti-retention campaigns, contributing more than $635,000 to help oust three justices in 2010 and more than $148,000 to the unsuccessful effort to remove Justice David Wiggins two years later.

The last three justices involved in Iowa’s 2009 marriage equality ruling will be on the ballot this November: Chief Justice Mark Cady, author of the Varnum v Brien decision, and Justices Brent Appel and Daryl Hecht. National Organization for Marriage spokesperson Joe Grabowski told Rodgers, “There’s nothing planned at this time,” adding that “We always keep our options open.”

Those options are fading fast, with early voting set to begin in Iowa on Thursday, September 29. The previous two anti-retention campaigns, led by social conservative activist Bob Vander Plaats, were well underway by the end of August 2010 and 2012. As Bleeding Heartland discussed here, Vander Plaats and his allies have not signaled any plan to go after the Iowa Supreme Court justices. It’s a remarkable admission of weakness on their part, but also a rational decision. Convincing voters to remove justices over same-sex marriage (now allowed in all 50 states) would be a tall order, especially in a presidential election year, which brings out hundreds of thousands more voters than a typical midterm election.

This year’s high-profile voting rights case could have provided fodder for an anti-retention campaign, but that scenario failed to materialize when Cady joined three other justices to uphold Iowa’s current broad lifetime ban on voting by most people convicted of felonies.

Rodgers discussed another possible peg for a campaign against Cady, Appel, and Hecht: all joined a 4-3 decision (authored by Appel), which held that “juvenile offenders may not be sentenced to life without the possibility of parole under article I, section 17 of the Iowa Constitution.” You can read the majority opinion, concurring opinions, and dissents in Iowa v. Sweet here. The majority ruling drew heavily on a 2012 U.S. Supreme Court decision, which invalidated mandatory life without parole sentences for juveniles, and several 2013 Iowa Supreme Court cases related to juvenile sentencing. Cady, Appel, and Hecht were all part of the majority in those 2013 cases.

Rodgers spoke to Lyle Burnett and Josh Hauser, who have experienced the tragedy of losing a loved one to a teenage killer. Both oppose retaining the three justices on the ballot this November, but “So far, neither Hauser nor Burnett have been contacted by any group or political organization that could elevate their personal campaigns.” Two victims’ advocates quoted in the Register said they do not support ousting Cady, Appel, and Hecht over this issue. It’s worth noting that neither the Iowa Supreme Court’s 2013 ruling in State v Ragland nor this year’s decision in Sweet guaranteed the release of any convicted murderer. Parole boards will still have discretion to approve or deny parole, based on expert assessments of whether the prisoner has been rehabilitated or still poses a danger to society.

Smooth sailing for Iowa Supreme Court justices up for retention in 2016

Three of the seven Iowa Supreme Court justices who concurred in the historic Varnum v Brien ruling on marriage equality lost their jobs in the 2010 judicial retention elections. A fourth survived a similar campaign against retaining him in 2012.

The last three Varnum justices, including the author of the unanimous opinion striking down our state’s Defense of Marriage Act, will appear on Iowa ballots this November. At this writing, no one seems to be organizing any effort to vote them off the bench. Iowa’s anti-retention campaigns in 2010 and 2012 were well under way by the end of August, but the social conservatives who spearheaded those efforts have shown no interest in repeating the experience.

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IA-Sen: Chuck Grassley's back on tv, and he brought his lawnmowers

The “barrage” of television commercials promoting U.S. Senator Chuck Grassley’s re-election began a few days ago. The senator’s campaign stayed off television for most of the summer following short buys for two commercials in late May and early June.

In style and content, the new 60-second ad resembles the first commercials Grassley ran during the 2010 general election campaign. The focus is on the senator’s personal qualities and work ethic, not policy accomplishments. The viewer hears about Grassley’s past work in factories as well as on the farm, his near-perfect attendance for Senate floor votes, and his commitment to visiting all 99 counties every year. Finally, as Iowa politics watchers have come to expect, the ad includes footage of Grassley mowing his own lawn, using his “cheap” invention of two push mowers attached to the back of a riding mower.

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Patty Judge, in new tv ads: "Washington changed Chuck"

Democratic U.S. Senate nominee Patty Judge took the fight to 36-year Senator Chuck Grassley in her campaign’s first two general election television commercials, launched on Tuesday. Both 30-second spots assert that Grassley has “changed” during his long tenure in Washington. One spot features Judge delivering the message alongside a cardboard cutout of the incumbent. A string of “ordinary Iowans” question the cardboard Grassley during the other ad. Scroll down for videos and transcripts.

Grassley hasn’t run any commercials since the two ads his campaign aired before the June primary, which Bleeding Heartland analyzed here and here. I’m surprised he didn’t prepare a spot to run during the Rio Olympics, after reporting more than $1.2 million in contributions during the second quarter and nearly $6 million cash on hand as of June 30. Judge’s campaign raised $347,707 during the second quarter and had only $228,292 cash on hand at the end of June.

Three of the four Iowa polls released this month showed Grassley’s support barely above 50 percent; Judge was running 9 or 10 points behind. The most recent survey, conducted by CBS/YouGov, found Grassley leading Judge by only 45 percent to 38 percent. An incumbent polling below 50 percent traditionally signals an opening for the challenger.

But contrary to KCRG’s misleading headline and write-up, a 45-38 lead is not a “statistical tie.” The margin of error of plus or minus 4 percent in CBS/YouGov’s poll means that assuming professional sampling methods, there’s a 95 percent chance that Grassley’s support is between 41 and 49 percent, and that Judge’s support is between 34 and 42 percent. In other words, Grassley is extremely likely to be ahead if CBS/YouGov’s respondents are representative of the likely voter universe. He’s just not dominating the race by the kind of margins he’s enjoyed over previous Democratic opponents.

Over the weekend, the Des Moines Register’s Jason Noble reviewed data from earlier re-election campaigns pointing to Grassley’s strong performance among no-party voters, as well as his “crossover appeal” for thousands of Iowa Democrats.

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Quinnipiac adds to remarkable polling consensus on IA-Sen race

Today Quinnipiac supplemented its latest poll on the presidential race in Iowa with findings about Senator Chuck Grassley’s campaign against Democratic challenger Patty Judge. Key graphs from the polling memo:

Quinnipiac IA-Sen photo Screen Shot 2016-08-18 at 3.39.14 PM_zpsdvw0h0a4.png

The 51 percent to 42 percent lead for Grassley is remarkably close to the 52-42 gap in last week’s polls by Suffolk University and Marist for NBC and the Wall Street Journal.

I infer that polls from earlier this summer, showing Grassley below 50 percent and leading Judge by just 7 points, slightly understated his lead. One of those polls looked like a outlier in general. Two of the surveys were conducted by Public Policy Polling, which did some work for the Judge campaign before the Democratic primary.

That’s not to say that Judge can’t make this election more competitive–only that she can’t wait around for the race to fall into her lap. She’s losing men by a lot and isn’t making up for it among women voters. She hasn’t held many public events this summer and needs to campaign more aggressively over the next two and a half months. In addition to improving her name ID, Judge has to give Iowa voters a reason to fire Grassley after so many years of public service. The obvious issue, the one she has vowed to hammer home since the day she announced her campaign, is the Senate Judiciary Committee chair’s refusal to hold confirmation hearings for Judge Merrick Garland. Iowans don’t support Grassley’s stance on the U.S. Supreme Court vacancy, but it will take more work to convince enough of them to send the senator into retirement for that reason.

The Democratic Senatorial Campaign Committee put their thumb on the scale for Judge before the Democratic primary, but national strategists have quite a few more promising pickup opportunities than Iowa at present. The DSCC won’t come in with big money here unless the polling starts to show Grassley more vulnerable than he now appears.

Using a flag to express a political view is protected speech

A Calhoun County judge has dismissed a short-lived criminal case that never should have been filed. Homer Martz was arrested last week and charged under Iowa’s flag desecration statute, because he “flew a U.S. flag upside down under a Chinese flag.” An upside-down flag is a widely recognized distress signal. Martz was protesting the Dakota Access (Bakken) pipeline, which will run near his Calhoun County home.

Trouble is, U.S. District Court Judge Robert Pratt ruled in December 2014, “Conduct involving the American flag has long been recognized by the United States Supreme Court as expressive communication that falls within the protection of the First Amendment.” Click here for the full opinion in that case, brought by the American Civil Liberties Union of Iowa on behalf of Westboro Baptist Church members who had dragged the flag on the ground while trying to disrupt military funerals.

Word of that court decision didn’t reach law enforcement in Calhoun County. David Pitt reported for the Associated Press on August 15,

Calhoun County Attorney Tina Meth Farrington filed a motion to dismiss the charges Monday, saying that she read the 2014 federal ruling and concluded she shouldn’t pursue the charge.

“The Legislature should take immediate action to repeal this law so that other citizens and law enforcement are not caught in this type of situation again,” she said.

A judge approved the motion Monday afternoon.

Calhoun County Sheriff William Davis said at the time Martz was arrested, he and the two arresting officers were unaware the law had been struck down.

When I was growing up, flag protection laws and constitutional amendments were a salient topic, as Republicans exploited a tiny number of flag-burners on the left in search of a wedge to use against Democrats. In recent years, some conservatives have displayed upside-down flags to protest President Barack Obama or his policies. On a busy corner in Windsor Heights, an upside-down flag flew for several weeks in late 2014, presumably to communicate the homeowner’s view of the president’s executive orders on immigration policy.

We can debate whether an unconventional flag display is an effective tool for political persuasion. But no matter how deeply offensive the message may be to some Americans, there is no legal recourse against those who use or abuse a flag to make their point.

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The Cady Court: Same As It Ever Was?

First-person accounts of politically-oriented events are always welcome here. Thanks to IowaBadger for this perspective. -promoted by desmoinesdem

Chief Justice Mark Cady’s leadership of the Iowa Supreme Court has been bookended by two major cases. First came his unanimous majority opinion in the Varnum v. Brien decision recognizing marriage equality under the Iowa Constitution, resulting in the defeat of then Chief Justice Marsha Ternus (and two other justices) in the 2010 retention election, and Cady’s elevation to Chief Justice. Then, several weeks ago, was his 4-3 majority opinion in Griffin v. Pate, deciding that the Iowa Constitution’s prohibition against voting by anyone who has committed an “infamous crime” bars anyone with a felony conviction from voting, absent a restoration of voting rights from the governor.

Yesterday, the Des Moines Register held an event entitled “The Cady Court At Five,” which gave five panelists the opportunity to talk about both cases, and how the court has gotten from one to the other. Anyone hoping for post July 4th fireworks would have been disappointed, and anyone hoping for definitive answers will have to heed desmoinesdem’s post from yesterday recognizing that we will only understand Justice Cady’s rationale for his vote in Griffin and its seeming inconsistency with his previous opinion in Chiodo v. Panel when he’s interviewed about it years down the road. But for those of us who follow the Iowa Supreme Court closely, we did gain some insight into the Chief Justice’s thinking and what that might mean for future decisions.

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Why did Chief Justice Cady change his mind about felon voting rights?

I don’t usually write posts like this one.

Check that: I don’t think I’ve ever written a post like this one.

I’m making an exception because the question has been nagging at me since the Iowa Supreme Court announced its 4-3 decision in Griffin v Pate two weeks ago today, and because a number of people who share my interest in felon voting rights have asked for my opinion.

Only Chief Justice Mark Cady knows the answer, and we won’t hear his side of the story until he writes his memoirs or speaks to some interviewer in retirement.

So with no claim to telepathic powers and full awareness that my analysis may therefore be flawed, I will do my best to understand why the author of the 2014 opinion that inspired Kelli Jo Griffin’s lawsuit ultimately decided our state constitution “permits persons convicted of a felony to be disqualified from voting in Iowa until pardoned or otherwise restored to the rights of citizenship.”

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Divided Iowa Supreme Court upholds felon voting ban; key points and political reaction

The Iowa Supreme Court has rejected a lawsuit challenging state policy on disenfranchising all felons. Four justices found “insufficient evidence to overcome the 1994 legislative judgment” defining all felonies as “infamous crimes,” which under our state’s constitution lead to a lifetime ban on the right to vote or run for office. Chief Justice Mark Cady wrote the majority ruling, joined by Justices Bruce Zager, Edward Mansfield, and Thomas Waterman. They affirmed a district court ruling, which held that having committed a felony, Kelli Jo Griffin lost her voting rights under Iowa law.

Justices Brent Appel, Daryl Hecht, and David Wiggins wrote separate dissenting opinions, each joined by the other dissenters. I enclose below excerpts from all the opinions, along with early political reaction to the majority ruling and a statement from Griffin herself.

The American Civil Liberties Union of Iowa filed the lawsuit on behalf of Griffin in November 2014, seven months after an Iowa Supreme Court plurality had stated, “It will be prudent for us to develop a more precise test that distinguishes between felony crimes and infamous crimes” that disqualify Iowans from voting.

Three of the six justices who participated in that 2014 case decided Griffin v. Pate differently. In Chiodo v. Section 43.24 Panel, Cady wrote and Zager joined the plurality opinion, which left open the possibility that not all felonies rise to the level of infamous crimes. Wiggins dissented from the Chiodo plurality, saying the court should not rewrite “nearly one hundred years of caselaw” to “swim into dangerous and uncharted waters.”

All credit to Ryan Koopmans for pointing out in March that given how quickly the court had decided Chiodo, “Having had more than a couple days to think about it, some of the justices could easily change their mind.” The justices were on a compressed schedule in Chiodo because of the need to print ballots in time for the early voting period starting 40 days before the 2014 Democratic primary. Ned Chiodo was challenging the eligibility of Tony Bisignano, a rival candidate in Iowa Senate district 17.

Side note before I get to the key points from today’s decisions: An enormous opportunity was missed when the state legislature did not revise the 1994 law defining infamous crimes between 2007 and 2010, when Democrats controlled the Iowa House and Senate and Chet Culver was governor. The issue did not seem particularly salient then, because Governor Tom Vilsack’s 2005 executive order had created a process for automatically restoring the voting rights of most felons who had completed their sentences.

But Governor Terry Branstad rescinded Vilsack’s order on his first day back in office in January 2011. During the first five years after Branstad’s executive order, fewer than 100 people (two-tenths of 1 percent of those who had been disenfranchised) successfully navigated the process for regaining voting rights. I consider the policy an unofficial poll tax, because getting your rights back requires an investment of time and resources that most ex-felons do not have. Today’s majority decision leaves this policy in effect, with a massively disproportionate impact on racial minorities.

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PPP poll finds Grassley leading Judge by 7, Clinton ahead of Trump by 2

Today Public Policy Polling released results from six news polls of battleground states, conducted on behalf of Americans United for Change and the Constitutional Responsibility Project. The full results from the Iowa survey are here (pdf). Key findings: only 43 percent of respondents approve of Senator Chuck Grassley’s job performance, while 40 percent disapprove and the rest are unsure. If Iowa’s U.S. Senate election were held today, 46 percent of respondents would vote for Grassley, 39 percent for Democrat Patty Judge, and 14 percent would be undecided. In the presidential race, 41 percent of respondents support Hillary Clinton, 39 percent Donald Trump. After the jump I’ve enclosed highlights from Tom Jensen’s polling memo.

Another PPP poll taken earlier this month also found Grassley below 50 percent and only seven points ahead of Judge. No public poll released in 2010 ever found the senator so narrowly leading his Democratic challenger Roxanne Conlin. Republicans are likely to discount today’s survey, because it was commissioned by progressive advocacy groups. I am reserving judgment until I see other pollsters test these Iowa races. That said, the PPP questionnaire showed no sign of “priming” voters to evaluate Grassley or Trump on any particular issue. Respondents were asked about job approval and candidate preferences before answering questions related to the U.S. Supreme Court vacancy. By the way, 64 percent of respondents support Senate hearings for Judge Merrick Garland, and only 35 percent trust Donald Trump to pick a Supreme Court justice.

PPP surveyed 897 registered Iowa voters on June 22 and 23, producing a margin of error of plus or minus 3.3 percent.

UPDATE: Added below Judge’s letter to Grassley, asking for four televised debates and one radio debate.

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Iowa reaction to landmark U.S. Supreme Court ruling on abortion

In what has been called the most important abortion rights case for many years, the U.S. Supreme Court today struck down a 2013 Texas law that had forced more than 20 abortion clinics to close. Writing for the 5-3 majority in Whole Woman’s Health v. Hellerstedt, Justice Stephen Breyer determined, “Both the admitting-privileges and the surgical-center requirements place a substantial obstacle in the path of women seeking a previability abortion, constitute an undue burden on abortion access, and thus violate the Constitution.”

Justices Anthony Kennedy, Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg joined Breyer’s opinion. A succinct concurrence by Ginsburg noted, “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements. […] Given those realities, it is beyond rational belief that [Texas law] H.B. 2 could genuinely protect the health of women, and certain that the law “would simply make it more difficult for them to obtain abortions.”

As Alexa Ura explained at Texas Tribune, today’s decision will not automatically reopen the shuttered Texas clinics. But it could lead to similar laws being struck down in 23 other states, shown on maps in this post by Sarah Kliff and Sarah Frostenson.

Iowa law does not place such restrictions on abortion providers, nor have they been the focus of recent legislative efforts by anti-abortion state lawmakers. But today’s U.S. Supreme Court decision reminded me of the unanimous Iowa Supreme Court ruling from June 2015, which used the same reasoning to reject a state ban on the use of telemedicine for abortion. Just as Iowa Supreme Court justices found no evidence suggesting that women’s health or safety would benefit from being in the same room as a doctor when taking a medication, Breyer’s opinion found nothing in the record supported the claim that the Texas regulations advanced the state’s “legitimate interest in protecting women’s health”; on the contrary, “neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes.”

I sought comment today from Governor Terry Branstad and all members of Iowa’s Congressional delegation, as well as the challengers who had not already released statements on the ruling. I will continue to update this post as needed.

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