election-law_gl-digest Tuesday, October 16 2001 Volume 01 : Number 087
----------------------------------------------------------------------
Date: Tue, 16 Oct 2001 10:15:30 EDT
From: Holman@aol.com
Subject: Watchtower Bible v. Stratton
- --part1_8e.1c9474f4.28fd9b02_boundary
Content-Type: text/plain; charset="UTF-8"
Content-Transfer-Encoding: quoted-printable
Content-Language: en
The issue of the distribution of anonymous literature--political as well as=20
religious--is once again being visited by the U.S. Supreme Court. Similar to=
=20
some of the issues in McIntyre v. Ohio, and more recently in Buckley v.=20
American Constitutional Law Foundation, the court agreed to review the=20
constitutionality of an ordinance in Stratton, Ohio, requiring door-to-door=20
solicitors (specifically targeting Jehova's Witnesses but with ramifications=
=20
for politics as well) to wear badges disclosing the solicitor's name and=20
affiliation. A federal appeals court had upheld the ordinance on the grounds=
=20
that door-to-door distribution of literature is inherently different in=20
nature than general distribution of literature in public places.
Lengthy New York Times article attached.
- -----------------------------------------------
Justices Revisit Anonymity in Door-to-Door Canvassing=20
October 16, 2001
SUPREME COURT ROUNDUP=20
Justices Revisit Anonymity in Door-to-Door Canvassing
By LINDA GREENHOUSE
ASHINGTON, Oct. 15 =E2=80=94 Six years after ruling that the Constitut=
ion=20
protects=20
the right to distribute anonymous campaign literature, the Supreme=20
Court=20
today agreed to decide whether that right extends to anonymous=20
door-to-door advocacy for a political or religious cause.
The new case is an appeal by the Jehovah's Witnesses, whose victories=20
in a=20
series of Supreme Court decisions in the 1930's and 1940's helped to=20
define the modern contours of the First Amendment. The group is=20
challenging a Stratton, Ohio, ordinance that requires anyone seeking t=
o=20
engage in door-to-door advocacy =E2=80=94 which the Witnesses regard a=
s an=20
essential part of their public ministry =E2=80=94 to obtain and displa=
y a=20
permit=20
that includes the advocate's name.
In upholding the ordinance earlier this year, the federal appeals cour=
t=20
in=20
Cincinnati ruled that a 1995 Supreme Court decision that protected=20
anonymous political leafleting was not applicable to door-to-door=20
advocates or canvassers because "the very act of going door-to-door=20
requires the canvassers to reveal a portion of their identities."
Although Jehovah's Witnesses try to get people to discuss the Bible,=20
the=20
issue before the court applies beyond religion to all cause-related=20
speech. In fact, the justices turned down a portion of the appeal that=
=20
specifically raised the issue of which constitutional standard to appl=
y=20
to=20
government restrictions on religious speech.
The court granted review only on the anonymity issue.
In their appeal, the Witnesses quoted from the majority opinion by=20
Justice=20
John Paul Stevens in the earlier anonymous leaflet case: "Anonymity is=
=20
a=20
shield from the tyranny of the majority."
That decision, McIntyre v. Ohio, struck down a state law that made it=20=
a=20
crime to distribute any "political communication" that did not include=
=20
the=20
responsible person's name and address. While also from Ohio, the new=20
case,=20
Watchtower Bible and Tract Society v. Stratton, Ohio, No. 00-1737,=20
concerns an ordinance adopted in 1998 by a village with a population o=
f=20
under 300, on Ohio's border with West Virginia. Stratton had a history=
=20
of=20
uneasiness toward Jehovah's Witnesses, who came from their nearby=20
congregation in Wellsville to conduct their ministry on the village's=20
doorsteps.=20
According to trial testimony, Mayor John M. Abdalla told a group of=20
Jehovah's Witnesses shortly before the ordinance was adopted that they=
=20
were not permitted in Stratton and that people had moved to Stratton t=
o=20
avoid them.=20
The ordinance requires anyone who wants to go to a private residence=20
for=20
the "purposes of advertising, promoting, selling and/or explaining any=
=20
product, service, organization or cause" to register and obtain a=20
permit=20
from the mayor's office. In its original form, later changed, the=20
ordinance gave residents a line to check to indicate explicitly that=20
they=20
did not want to be visited by Jehovah's Witnesses.
Jehovah's Witnesses, members of a Christian denomination that dates to=
=20
the=20
late 19th century, have brought more than two dozen Supreme Court case=
s=20
over the years, winning the right for their children not to have to=20
salute=20
the American flag and for their adherents to conduct their in- person=20
religious mission. The court's rulings in these cases have established=
=20
broad constitutional protection for political dissenters and religious=
=20
minorities.
These were among other developments at the court today:
State Immunity
The justices agreed to review a federal appeals court's decision that=20
states were constitutionally immune from suit by private parties befor=
e=20
federal administrative agencies. The case raises a federalism issue=20
from=20
which the Bush administration tried to deflect the court's attention.
Building on the Supreme Court's recent rulings that have greatly=20
expanded=20
the scope of state constitutional immunity, the United States Court of=
=20
Appeals for the Fourth Circuit, in Richmond, Va., ruled earlier this=20
year=20
that the Federal Maritime Commission could not adjudicate a cruise=20
line's=20
dispute with the South Carolina State Ports Authority, a state agency=20
that=20
operates the Port of Charleston.
The Fourth Circuit's opinion effectively nullified the maritime=20
commission's authority over state ports. The appeals court based its=20
decision loosely on the 11th Amendment, which the Supreme Court has=20
interpreted to protect states from being sued in federal court. In a=20
1999=20
Supreme Court case, Alden v. Maine, the justices ruled that the broade=
r=20
principle of sovereign immunity also shielded states from suit in thei=
r=20
own courts.
At issue in the new case, Federal Maritime Commission v. South Carolin=
a=20
State Ports Authority, No. 01-46, is the validity of the Fourth=20
Circuit's=20
conclusion that state immunity extends beyond any court, shielding=20
states=20
from being called before federal administrative agencies. "A state's=20
sovereign immunity is not so fleeting as to depend upon the forum in=20
which=20
the state is sued," the appeals court said. The Fourth Circuit was the=
=20
first federal appeals court to adopt this theory, although cases=20
raising=20
the same question are now pending in courts nationwide.
While authorizing the maritime commission to file its own appeal to th=
e=20
Supreme Court, the Bush administration did not support that appeal.
In a brief filed last month, Solicitor General Theodore B. Olson told=20
the=20
court that while the Fourth Circuit's decision was "incorrect" and an=20
undue departure from the text of the 11th Amendment, the court should=20
not=20
review the case because the Fourth Circuit had stopped short of=20
declaring=20
unambiguously that the Shipping Act of 1984 was unconstitutional. It i=
s=20
this law that gives the maritime commission authority to adjudicate=20
private complaints against state-operated ports.
The complaint against the Charleston port was brought by South Carolin=
a=20
Maritime Services Inc. after the port authority refused it permission=20
to=20
berth its ships there. The company conducts gambling cruises in=20
international waters.
Arrest Warrant
Four justices agreed that an arrest warrant that authorized the police=
=20
in=20
Toledo, Ohio, to break into the home of a woman suspected of selling=20
drugs=20
was unconstitutional because it had been issued on the basis of a=20
complaint that lacked any detail about how the police knew of any crim=
e.
Although it takes the votes of only four justices to grant a case, the=
=20
court did not grant the appeal brought by the woman, Desarie Overton,=20
of a=20
decision by the Ohio Court of Appeals. Instead, the four justices,=20
Stephen=20
G. Breyer, John Paul Stevens, Sandra Day O'Connor and David H. Souter,=
=20
said the state court's decision upholding the arrest warrant was so=20
clearly wrong that the Supreme Court should simply overturn it=20
summarily=20
rather than setting the case for a full hearing.
To overturn the decision would have taken five votes, however, and a=20
fifth=20
vote was evidently not forthcoming. So the four justices had to conten=
t=20
themselves with a statement by Justice Breyer calling attention to the=
=20
lower court's error. The case was Overton v. Ohio, No. 00-9769.
Craig Holman
Brennan Center for Justice
New York University
161 Avenue of the Americas
12th Floor
New York, NY 10013
TEL: 212.992.8642
FAX: 212.995.4550
Holman@aol.com
- --part1_8e.1c9474f4.28fd9b02_boundary
Content-Type: text/html; charset="UTF-8"
Content-Transfer-Encoding: quoted-printable
Content-Language: en
<HTML><FONT FACE=3Darial,helvetica><FONT SIZE=3D2>The issue of the distribu=
tion of anonymous literature--political as well as religious--is once again=20=
being visited by the U.S. Supreme Court. Similar to some of the issues in Mc=
Intyre v. Ohio, and more recently in Buckley v. American Constitutional Law=20=
Foundation, the court agreed to review the constitutionality of an ordinance=
in Stratton, Ohio, requiring door-to-door solicitors (specifically targetin=
g Jehova's Witnesses but with ramifications for politics as well) to wear ba=
dges disclosing the solicitor's name and affiliation. A federal appeals cour=
t had upheld the ordinance on the grounds that door-to-door distribution of=20=
literature is inherently different in nature than general distribution of li=
terature in public places.
<BR>
<BR>Lengthy New York Times article attached.
<BR>-----------------------------------------------
<BR>Justices Revisit Anonymity in Door-to-Door Canvassing=20
<BR>
<BR> October 16, 2001
<BR>
<BR> SUPREME COURT ROUNDUP=20
<BR> Justices Revisit Anonymity in Door-to-Doo=
r Canvassing
<BR> By LINDA GREENHOUSE
<BR> ASHINGTON, Oct. 15 =E2=80=94 Six years af=
ter ruling that the Constitution protects=20
<BR> the right to distribute anonymous campaig=
n literature, the Supreme Court=20
<BR> today agreed to decide whether that right=
extends to anonymous=20
<BR> door-to-door advocacy for a political or=20=
religious cause.
<BR>
<BR> The new case is an appeal by the Jehovah'=
s Witnesses, whose victories in a=20
<BR> series of Supreme Court decisions in the=20=
1930's and 1940's helped to=20
<BR> define the modern contours of the First A=
mendment. The group is=20
<BR> challenging a Stratton, Ohio, ordinance t=
hat requires anyone seeking to=20
<BR> engage in door-to-door advocacy =E2=80=
=94 which the Witnesses regard as an=20
<BR> essential part of their public ministry=20=
=E2=80=94 to obtain and display a permit=20
<BR> that includes the advocate's name.
<BR> In upholding the ordinance earlier this y=
ear, the federal appeals court in=20
<BR> Cincinnati ruled that a 1995 Supreme Cour=
t decision that protected=20
<BR> anonymous political leafleting was not ap=
plicable to door-to-door=20
<BR> advocates or canvassers because "the very=
act of going door-to-door=20
<BR> requires the canvassers to reveal a porti=
on of their identities."
<BR> Although Jehovah's Witnesses try to get p=
eople to discuss the Bible, the=20
<BR> issue before the court applies beyond rel=
igion to all cause-related=20
<BR> speech. In fact, the justices turned down=
a portion of the appeal that=20
<BR> specifically raised the issue of which co=
nstitutional standard to apply to=20
<BR> government restrictions on religious spee=
ch.
<BR> The court granted review only on the anon=
ymity issue.
<BR> In their appeal, the Witnesses quoted fro=
m the majority opinion by Justice=20
<BR> John Paul Stevens in the earlier anonymou=
s leaflet case: "Anonymity is a=20
<BR> shield from the tyranny of the majority."
<BR> That decision, McIntyre v. Ohio, struck d=
own a state law that made it a=20
<BR> crime to distribute any "political commun=
ication" that did not include the=20
<BR> responsible person's name and address. Wh=
ile also from Ohio, the new case,=20
<BR> Watchtower Bible and Tract Society v. Str=
atton, Ohio, No. 00-1737,=20
<BR> concerns an ordinance adopted in 1998 by=20=
a village with a population of=20
<BR> under 300, on Ohio's border with West Vir=
ginia. Stratton had a history of=20
<BR> uneasiness toward Jehovah's Witnesses, wh=
o came from their nearby=20
<BR> congregation in Wellsville to conduct the=
ir ministry on the village's=20
<BR> doorsteps.=20
<BR> According to trial testimony, Mayor John=20=
M. Abdalla told a group of=20
<BR> Jehovah's Witnesses shortly before the or=
dinance was adopted that they=20
<BR> were not permitted in Stratton and that p=
eople had moved to Stratton to=20
<BR> avoid them.=20
<BR> The ordinance requires anyone who wants t=
o go to a private residence for=20
<BR> the "purposes of advertising, promoting,=20=
selling and/or explaining any=20
<BR> product, service, organization or cause"=20=
to register and obtain a permit=20
<BR> from the mayor's office. In its original=20=
form, later changed, the=20
<BR> ordinance gave residents a line to check=20=
to indicate explicitly that they=20
<BR> did not want to be visited by Jehovah's W=
itnesses.
<BR> Jehovah's Witnesses, members of a Christi=
an denomination that dates to the=20
<BR> late 19th century, have brought more than=
two dozen Supreme Court cases=20
<BR> over the years, winning the right for the=
ir children not to have to salute=20
<BR> the American flag and for their adherents=
to conduct their in- person=20
<BR> religious mission. The court's rulings in=
these cases have established=20
<BR> broad constitutional protection for polit=
ical dissenters and religious=20
<BR> minorities.
<BR> These were among other developments at th=
e court today:
<BR> State Immunity
<BR> The justices agreed to review a federal a=
ppeals court's decision that=20
<BR> states were constitutionally immune from=20=
suit by private parties before=20
<BR> federal administrative agencies. The case=
raises a federalism issue from=20
<BR> which the Bush administration tried to de=
flect the court's attention.
<BR> Building on the Supreme Court's recent ru=
lings that have greatly expanded=20
<BR> the scope of state constitutional immunit=
y, the United States Court of=20
<BR> Appeals for the Fourth Circuit, in Richmo=
nd, Va., ruled earlier this year=20
<BR> that the Federal Maritime Commission coul=
d not adjudicate a cruise line's=20
<BR> dispute with the South Carolina State Por=
ts Authority, a state agency that=20
<BR> operates the Port of Charleston.
<BR> The Fourth Circuit's opinion effectively=20=
nullified the maritime=20
<BR> commission's authority over state ports.=20=
The appeals court based its=20
<BR> decision loosely on the 11th Amendment, w=
hich the Supreme Court has=20
<BR> interpreted to protect states from being=20=
sued in federal court. In a 1999=20
<BR> Supreme Court case, Alden v. Maine, the j=
ustices ruled that the broader=20
<BR> principle of sovereign immunity also shie=
lded states from suit in their=20
<BR> own courts.
<BR> At issue in the new case, Federal Maritim=
e Commission v. South Carolina=20
<BR> State Ports Authority, No. 01-46, is the=20=
validity of the Fourth Circuit's=20
<BR> conclusion that state immunity extends be=
yond any court, shielding states=20
<BR> from being called before federal administ=
rative agencies. "A state's=20
<BR> sovereign immunity is not so fleeting as=20=
to depend upon the forum in which=20
<BR> the state is sued," the appeals court sai=
d. The Fourth Circuit was the=20
<BR> first federal appeals court to adopt this=
theory, although cases raising=20
<BR> the same question are now pending in cour=
ts nationwide.
<BR> While authorizing the maritime commission=
to file its own appeal to the=20
<BR> Supreme Court, the Bush administration di=
d not support that appeal.
<BR> In a brief filed last month, Solicitor Ge=
neral Theodore B. Olson told the=20
<BR> court that while the Fourth Circuit's dec=
ision was "incorrect" and an=20
<BR> undue departure from the text of the 11th=
Amendment, the court should not=20
<BR> review the case because the Fourth Circui=
t had stopped short of declaring=20
<BR> unambiguously that the Shipping Act of 19=
84 was unconstitutional. It is=20
<BR> this law that gives the maritime commissi=
on authority to adjudicate=20
<BR> private complaints against state-operated=
ports.
<BR> The complaint against the Charleston port=
was brought by South Carolina=20
<BR> Maritime Services Inc. after the port aut=
hority refused it permission to=20
<BR> berth its ships there. The company conduc=
ts gambling cruises in=20
<BR> international waters.
<BR> Arrest Warrant
<BR> Four justices agreed that an arrest warra=
nt that authorized the police in=20
<BR> Toledo, Ohio, to break into the home of a=
woman suspected of selling drugs=20
<BR> was unconstitutional because it had been=20=
issued on the basis of a=20
<BR> complaint that lacked any detail about ho=
w the police knew of any crime.
<BR> Although it takes the votes of only four=20=
justices to grant a case, the=20
<BR> court did not grant the appeal brought by=
the woman, Desarie Overton, of a=20
<BR> decision by the Ohio Court of Appeals. In=
stead, the four justices, Stephen=20
<BR> G. Breyer, John Paul Stevens, Sandra Day=20=
O'Connor and David H. Souter,=20
<BR> said the state court's decision upholding=
the arrest warrant was so=20
<BR> clearly wrong that the Supreme Court shou=
ld simply overturn it summarily=20
<BR> rather than setting the case for a full h=
earing.
<BR> To overturn the decision would have taken=
five votes, however, and a fifth=20
<BR> vote was evidently not forthcoming. So th=
e four justices had to content=20
<BR> themselves with a statement by Justice Br=
eyer calling attention to the=20
<BR> lower court's error. The case was Overton=
v. Ohio, No. 00-9769.
<BR>
<BR>Craig Holman
<BR>Brennan Center for Justice
<BR>New York University
<BR>161 Avenue of the Americas
<BR>12th Floor
<BR>New York, NY 10013
<BR>TEL: 212.992.8642
<BR>FAX: 212.995.4550
<BR>Holman@aol.com</FONT></HTML>
- --part1_8e.1c9474f4.28fd9b02_boundary--
------------------------------
Date: Tue, 16 Oct 2001 09:21:02 -0700
From: Rick Hasen <rick.hasen@lls.edu>
Subject: new GAO reports on election reform
The GAO issued 4 reports on election reform on October 15. The reports
are:
1 .Elections: Perspectives on Activities and Challenges Across the
Nation (GAO-02-3)
2. Elections: Statistical Analysis of Factors That Affected Uncounted
Votes in the 2000 Presidential Election (GAO-02-122)
3. Elections: Status and Use of Federal Voting Equipment Standards
(GAO-02-52)
4.Elections: A Framework for Evaluating Reform Proposal (GAO-02-90)
The reports are available on the GAO website, www.gao.gov, but are quite
large.
Rick
- --
Professor Rick Hasen
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-0019
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
------------------------------
End of election-law_gl-digest V1 #87
************************************