by Tom Fitton
Last week, JW attorney Jim Peterson and I visited the U.S. Supreme Court with former Arizona State Senate President Russell Pearce to attend oral arguments concerning a critical issue – the right of the state of Arizona to ensure that every vote cast in the state is legitimate.
Senator Pearce was the driving force behind Proposition 200 (the Arizona Taxpayer and Citizen Projection Act), which requires voters to offer proof of citizenship before casting a ballot. (As you may recall, Senator Pearce also crafted SB1070, Arizona’s tough illegal immigration enforcement law.)
Now I cannot believe we have allowed illegal immigration activists to bully public officials and the courts to the point where clean elections have become controversial. But here we are in the Supreme Court fighting over a basic American principle in a high-stakes case that will have ripple effects across the country.
How high stakes? As UPI put it last October, “an eventual Supreme Court decision will help shape the voting landscape of the future…” The Guardian noted this week that as many as 16 states would be immediately impacted:
The Supreme Court was hearing oral arguments on Monday in a case which will decide whether US states can require voters to submit proof of citizenship to cast a ballot.
The case focuses on whether a voter-approved Arizona law known as Proposition 200, which requires voters to prove they are US citizens, violates federal law. Four other states, Alabama, Georgia, Kansas and Tennessee, have similar laws while 12 other states are contemplating such legislation, officials told The Associated Press.
The measure, amended state laws to require voters to show proof of citizenship to register as well as ID at the polls. Defenders of the law, enacted in 2004 with 55% of the vote, say it is necessary to prevent people from fraudulently impersonating registered voters at the election booth.
Does the country have a problem with election fraud? You bet. Independent research published by the non-partisan Pew Charitable Trust in February 2012 indicated that, at that time, approximately 24 million active voter registrations throughout the United States – or one out of every eight registrations – were either no longer valid or are significantly inaccurate.
And the situation has gotten no better under the Obama administration which not only refuses to enforce provisions of the National Voter Registration Act (which requires that states keep clean voter registration lists), but bends over backwards to attack states that try to impose any voter integrity measure.
As you know, Judicial Watch has led the fight for voter integrity. We launched our Election Integrity campaign in 2012 to force states to clean up their voter registration lists and earned some key victories. And specifically relevant to this case, JW filed an amicus curiae brief on December 14, 2012, with the United States Supreme Court challenging the decision by the U.S. Court of Appeals for the Ninth Circuit declaring that Arizona’s Prop 200 violated the NVRA. (Judicial Watch filed the amicus brief on behalf of Senator Pearce.)
Now let’s take a look at exactly what Prop 200 requires. According to the law, state election officials “shall reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship.”
Such evidence can include a driver’s license, a photocopy of a birth certificate or passport, naturalization documents, or “other documents that are meant as proof that [may be] established pursuant to” federal immigration laws. On April 17, 2012, the Ninth Circuit ruled that voter registration provisions of Arizona’s Proposition 200 violated certain provisions of the National Voter Registration Act of 1993. On October 15, 2012, the Supreme Court agreed to hear Arizona v. Inter Tribal Council, a challenge to Proposition 200.
With its amicus curiae brief Judicial Watch maintains that the Ninth Circuit erred when ruling that the NVRA “accept and use” provision prohibited states from requiring additional documentation:
The NVRA also does not provide that it is the exclusive authority on eligibility verification or that, as the Ninth Circuit contended, “Arizona’s only role was to make [the Federal] [F]orm available to applicants and to ‘accept and use’ it for the registration of voters.” [Emphasis added] The language of the statute not only does not prohibit additional documentation requirements, it permits states to “require . . . such identifying information . . . as is necessary to enable the appropriate State election official to assess the eligibility of the applicant . . .” Besides express authorization for a state to “develop and use” a form compliant with the statute’s criteria, the NVRA also provides that “each State shall establish procedures to register to vote in elections for Federal office . . .”
Judicial Watch further argues that, “The Ninth Circuit also failed to give any weight to the stated goal of the NVRA to ‘protect the integrity of the electoral process’ and ‘enhance the participation of eligible citizens as voters in elections for Federal office’ as guiding purposes of the statute. [Emphasis added] Under no sensible reading of the statute is the goal of election integrity advanced by allowing non-citizens to vote.”
As our client Russell Pearce stated when we jointly filed our amicus brief, the rule of law must prevail: “The Ninth Circuit Court ruling ignores the rule of law, common sense and states’ rights. This court (Ninth Circuit) is apparently okay with illegal votes or non-citizens voting. This ruling absolutely flies in the face of common sense and ignores the will of the people of Arizona, who overwhelmingly passed Proposition 200 in 2004.”
We hope the Supreme Court sees the wisdom in these arguments. There is no coherent reason for refusing to allow states to check voter identification other than a desire to circumvent the law and let non-citizens determine the results of American elections. The people of Arizona, and every other state, have the right to protect the sanctity of the ballot box. I am cautiously optimistic, after attending listening to the oral argument, that the High Court will uphold Prop 200 and election integrity.
Will Marriage Survive the Supreme Court?
Two high profile marriage cases were front and center in the Supreme Court this week that could have a significant impact on the bedrock institution of marriage. First, the High Court heard oral arguments in a case involving California Proposition 8, through which California voters amended the state Constitution to reaffirm the traditional definition of marriage as being between one man and one woman. The Ninth Circuit Court of Appeals then struck down Prop 8, and the issue is now before the High Court.
The general consensus with respect to the Proposition 8 case (insert “reading tea leaves” disclaimer here) seemed to be against the notion of the Court issuing a broad sweeping ruling either upholding or striking down gay marriage. Court observers seem to be prepared for a more nuanced ruling limited to the extent possible to the state of California and this particular lawsuit.
Judicial Watch, for its part, is hoping for a direct Supreme Court ruling in favor of Prop 8 as we argued in our amicus brief filed jointly in January with the Allied Educational Foundation:
…should the Supreme Court fail to overturn the Ninth Circuit’s decision, the people of California would be deprived of “the right to decide for themselves the ways in which they want to restrict or liberalize their marriage laws – or not.”
The Ninth Circuit’s sleight of hand decision … constitutes a dangerous erosion of the principle of rational basis review … Furthermore, the Ninth Circuit decision expands the reaches of the Equal Protection clause in such a way as to eclipse the people’s sovereignty to make laws for their own governance … Finally, this [Supreme] Court should find that petitioners have standing to bring this appeal, as a contrary ruling would undermine the people’s rights to initiative and referendum in twenty-six states.
Of course, the “standing” issue would not be on anyone’s radar if corrupt politicians (we’re looking at you former Governor Schwarzenegger and Governor Jerry Brown) had done the proper thing and defended the people’s right to decide this issue for themselves. Instead they betrayed their duty to defend the law, leaving it to the citizens of California to protect the law.
The second gay marriage case involved a challenge to the Defense of Marriage Act (DOMA), the federal law that defines marriage as it has been defined since the dawn of civilization. The challenge to DOMA comes courtesy of a plaintiff who is seeking a $300k plus estate tax refund because she thinks her same sex “marriage” in Canada should have been recognized by the federal government. I thought same sex marriage was about love!
As with Prop 8, the chief executive (President Obama) and the chief law enforcement officer (Attorney General Eric Holder) have betrayed their oaths of office and have refused to defend DOMA — the law of the land — in court.
JW has been highly critical of the Obama Justice Department’s refusal to defend DOMA, which has been the law of the land since 1996. In fact, we launched an investigation to get hold of documents that would almost certainly shed light on the administration’s internal deliberations on the issue. (We filed a similar lawsuit on behalf of the Family Research Council.)
It was good to see this week that some of the Supreme Court was critical of this lawlessness as well. Justice Kennedy called the situation “troubling” and Justice Scalia said, noting that Obama and Holder won’t defend the law but are supposedly enforcing it:
And I’m wondering if we’re living in this new world where the Attorney General can simply decide, yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it, if we’re in this new world, I — I don’t want these cases like this to come before this Court all the time.
And I think they will come all the time if that’s — if that’s — if that’s the new regime in the Justice Department that we’re dealing with.
You can see how this thing is a mess. Beyond the absurdity and hubris of lawyers and judges wondering if they can redefine marriage – despite the will of the people – we have a situation where those officials who took a solemn oath to defend and enforce the law simply refuse to do so. I can’t even hazard a guess on how these cases will turn out. I fear, especially after last year’s ludicrous and political Supreme Court opinion upholding Obamacare, that the upcoming marriage decisions will undermine the rule of law and further degrade the Supreme Court in the eyes of the public.
You can listen or read the oral arguments to get a full appreciation on the controversy this week. To access the transcript and audio on the Prop 8 arguments, click here. To access the transcript and audio on the DOMA arguments, click here.
JW Brief Challenges Constitutionality of Arizona Medical Marijuana Act
Imagine this scenario. Voters in the State of California, after a furious special interest propaganda campaign, elect to flout federal law and render it legal in the state for printers to manufacture their own counterfeit currency. Maybe they were convinced this was a necessary fix the state’s economic woes. Or maybe they were told public officials would use the currency in place of taxpayer funds to bankroll important public projects. The reason doesn’t really matter.
The key question is this: Would you support the right of California to enact such a provision?
My guess is not a chance. However a very similar ridiculous scenario is playing out right now in the State of Arizona where a new state law permits the distribution of marijuana for medical purposes. And Judicial Watch has stepped into the battle.
This week we filed an amicus curiae brief in the Court of Appeals of the State of Arizona, District One, in support of Maricopa County and the State of Arizona’s lawsuit appealing a December, 4, 2012, Maricopa Superior Court ruling that the Arizona Medical Marijuana Act (AMMA) did not conflict with federal drug laws.
In our brief Judicial Watch maintains that the AMMA, which permits the use of marijuana for medical purposes, is a direct violation of the federal Controlled Substances Act (CSA), making it unlawful to “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense” any controlled substance:
Federal law is unambiguous in that marijuana is a controlled substance regulated under a comprehensive statutory and regulatory scheme. As such, the production, sale, and use of marijuana, other than as part of a federally authorized research program, is a violation of federal law regardless of any state law permitting such activities even in a limited manner.
We further argue that, the Superior Court ruling notwithstanding, the CSA preempts the AMMA under the “Supremacy Clause,” which makes federal laws “supreme” to contrary any state law. Citing the CSA provisions, Judicial Watch maintains:
… where a”positive conflict” exists between the CSA and a state law such that “the two cannot consistently stand together, the CSA “shall be construed” as evidencing Congressional intent to “occupy the field” in which the CSA provision operates ….
And how did this wind up in the courts?
In 2010, Arizona voters narrowly approved a ballot measure allowing people with certain debilitating medical conditions to use medical marijuana. Under the law, state health officials can license up to 126 dispensaries in designated areas. In June, 2012, the White Mountain Health Center sued Maricopa County for allegedly stalling approval of its zoning application to prevent it from seeking a state operating license for a dispensary. In December, 2004, the Maricopa Superior Court ruled in White Mountain’s favor.
In its amicus brief defending the Maricopa County appeal, Judicial Watch argues:
Maricopa County cannot issue a zoning permit for a facility for the cultivation and dispensing of marijuana any more than it could issue a permit to establish a “meth lab” or a print shop for counterfeit currency. Our federal system does not permit that.
This is a clear cut case where federal law trumps state law, regardless of how many voters may wish it weren’t so. Medical marijuana special interest groups have invested heavily in shaping public perception on this issue, but we cannot allow the rule of law to be subject to the shifting whims of the electorate.
If marijuana is to be “legalized,” the U.S. Constitution requires that it be done by an act of Congress. In the meantime, a state simply can’t legalize a federal felony. Conflicting marijuana laws create not just uncertainty in the law, but undermine the rule of law that protects our liberty. I encourage you to read and share our amicus brief, as it provides a useful education on the law surrounding the drug legalization debate.
FOIA Documents Reveal Sequestration Propaganda in HHS Letters to Governors
At this point, I can honestly say that I have never seen a more politicized presidential administration than the one currently in power.
We have a Justice Department overrun by leftist activists from ACORN and the ACLU shaping policies ranging from illegal immigration to discrimination laws to voter integrity. We have a US Department of Agriculture spending hundreds of thousands to hire a radical race hustler to brainwash agency employees, forcing them to chant in unison that the Pilgrims were illegal aliens.
And we have a Department of Health and Human Services (HHS) that not only pitched Obamacare to the American people through a massive taxpayer-financed propaganda campaign (featuring television icon Andy Griffith), but also used government resources to spread lies about the impact of sequestration on government services.
Allow me to explain.
On March 19, 2013, we received documents from HHS revealing that Deputy Secretary of State William Corr had sent highly politicized letters to the governors of all 50 states attacking Congress and providing misleading information about the effects of the budget sequestration mandated by the Budget Control Act of 2011 and the American Taxpayer Relief Act of 2012.
The documents also contained memos from Secretary of HHS Katherine Sebelius to her employees indicating that sequestration would have little effect upon department operations.
JW obtained the records pursuant to a Judicial Watch Freedom of Information Act (FOIA) request made to HHS on February 26, 2013. The FOIA request asked for: “Any and all records regarding, concerning, or related to the projected effects of the potential budget sequestration mandated by the Budget Control Act of 2011 and the American Taxpayer Relief Act of 2012.”
Documents provided by HHS to Judicial Watch included letters sent in early March from Corr to the governors of each of the 50 states politicizing the sequestration:
As you are likely aware, due to the failures of Congress [emphasis added] to reach a deal on balanced deficit reduction to avoid sequestration, a series of spending cuts call sequestration will cancel approximately $85 billion in budgetary resources across the federal government for the remainder of the federal fiscal year.
Each of the fifty Corr letters detail alleged specific cuts for each state, including the previously debunked claim that sequestration would lead to “school systems forced to lay off teachers, teacher assistants, and other staff.” Other threatened cuts include: Head Start and Early Head Start, Social Services, Senior Nutrition Programs, Maternal and Child Healthcare, and Substance Abuse Treatment/Prevention.
In a Washington Post article on February 27, 2013, entitled “4 Pinocchio’s for Arne Duncan’s false claim of ‘pink slips’ for teachers,” the Post found that earlier claims by Secretary of the Department of Education (DOE) Duncan of teacher layoffs “appears to be hyperbole”:
[T]he Education Department for days was unable to cough up the name of a single school district where these notices had been delivered … [T]here is no reason to hype the statistics – or to make scary pronouncements on pink slips being issued based on misinformation. Indeed, Duncan’s lack of seriousness about being scrupulously factual undercuts the administration’s claim that the cuts are a serious problem.
Notwithstanding the failure of the DOE to produce “the name of a single school district ” where sequestration had resulted in layoffs, Corr, in his official letter to the governors of all 50 states, informed the governors that they would be forced to lay off their state’s school teachers.
However, inside HHS, Secretary Sebelius was telling a very different story. Documents we uncovered show that HHS had informed its own employees that the sequestration would not affect the ability of HHS to carry out its wide-ranging programs. In a memo dated December 20, 2012, Secretary of HHS Katherine Sebelius informed HHS employees:
I do not expect our day-to-day would change dramatically on or immediately after January 2, should sequestration occur. This means we will not be executing any immediate personnel actions, such as furloughs, on that date.
In a HHS memo dated March 1, 2013, Sebelius again minimized the impact of the sequestration, reassuring HHS employees:
It is vitally important to keep in mind the distinction between the reduction in spending authority triggered by the sequestration and the complete absence of funding associated with a government shutdown. Unlike a shutdown, sequestration does not trigger an automatic break in service. Please plan to continue your scheduled work, even if sequestration goes into effect as anticipated.
Political scare tactics are nothing new. But what makes this flagrantly corrupt is the fact that we have a taxpayer-funded federal agency doing the politicking.
Clearly this is a well-orchestrated attempt by the Obama administration to mislead the American people and the nation’s governors. These propaganda letters are a misuse of taxpayer resources and show that HHS, the agency charged with running Obamacare, is out of control.
These are troubling times. Thankfully, we have the gift and joy of Easter this week to help clarify things. On behalf of all of us here at Judicial Watch, I wish you and yours a wonderful Easter holiday.
Tom Fitton – President