If you want a textbook exercise in selective use (or nonuse) of information and utter lack of logical reasoning to justify a healthy dose of judicial activism, look no further than Harding v. Edwards.
That’s the case in the Middle District of Louisiana contesting the state’s election procedures for fall elections. Voters sued the state, asking for more time to vote early and greater expansion of unverifiable excuses for not showing up in person and qualifying for a ballot to vote by mail. Democrat Pres. Barack Obama appointee Judge Shelley Dick bought just about all of their argument, ruling that the state had to revert to rules used this summer that exempted registrants subject to a medically necessary quarantine, experiencing COVID-19 symptoms or awaiting a diagnosis, caring for someone who is quarantined, or having a chronic health condition that imparts a higher risk of serious COVID-19 complications. It also temporarily waived the usual requirement that first-time voters must vote in person. And, early voting would expand in number of hours and days, although three days fewer than in the summer.
In her written opinion, Dick telegraphed early she would legislate from the bench with a vengeance when she noted the U.S. Supreme Court’s standing jurisprudence, reinforced in an April ruling, to interfere in how states conducted balloting, that the “Court has been presented with more than a handful of cases on the subject of elections during the pandemic, but has provided virtually no guidance,” but then cherry-picks a line from that decision, that it “should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough.”
Posted by Jeff Sadow at 16:30
The Baton Rouge Metropolitan Council made the right call in rejecting an invitation to become a rainmaker for relatives of an oft-convicted black man killed while strenuously resisting arrest.
In 2016, Alton Sterling, who an autopsy showed had in him what experts called a dangerous combination of substances, some illegal, underwent a minutes-long struggle with police after they had responded to reports he had threatened somebody. Unfortunately, acting in a way that experts said reflected subpar procedure but an understandable fear for their safety, one of the two white police officers trying to control Sterling fatally shot him.
Given these dynamics of the incident, authorities didn’t charge either officer with a crime, concluding their actions not unreasonable. However, his children – five, from different mothers; he never was married – already had launched a civil lawsuit against the city for wrongful death, blaming the city for allegedly not having a written policy for use of deadly force, claiming it tolerated “racist behavior” among its police, and that it didn’t vet adequately the hiring of the two officers.
Posted by Jeff Sadow at 14:45
The latest decision made by Louisiana’s Democrat Gov. John Bel Edwards regarding the Wuhan coronavirus pandemic makes clear the lengths to which he will go to politicize the issue and demands that the state’s Legislature counteract him.
Last week, on the day a previous proclamation expired, Edwards issued a new one. He asserted that it meant the state had moved into the federal government’s definition of “Phase 3” for reopening the economy. Those federal guidelines envision that individuals unless considered vulnerable face no restrictions to their activity although advised to minimize time in crowds while vulnerable ones could interact with physical distancing and/or utilizing other measures such as face coverings; employers could go to full worksite staffing; and, all businesses could reopen although with some minor distancing in large venues and bars (which under state law are places that serve more alcohol than food except in this case for those with video poker machines), and visitation of nursing homes could resume without additional restrictions.
By contrast, Edwards ordered continued masking in public for everyone, applying major distancing requirements for larger venues and bars that could stay open, even as almost all bars still would remain closed for on-site consumption as they are located in parishes with a greater than one-in-twenty positive rate over the past two weeks on virus tests. All places offering dine-in food service could operate only limited hours. He also disallowed nursing home visits for the time being, although saying limited ones eventually would become allowed. Obviously, little has changed.
Posted by Jeff Sadow at 12:00
Louisiana’s state higher education institutions, and perhaps even its private colleges and universities, have a lot to do in a short period to ensure they properly observe the First Amendment.
Last week, the U.S. Department of Education announced the imminent publication of a final rule that, among many things, addresses distribution of federal grant money to such institutions. Sixty days after publication, schools will have to have in place rules that protect First Amendment rights – which covers expression, assembly, and religious practice – or else potentially forfeit departmental grants if a court determines the school violated the First Amendment (in the case of private institutions, the burden of proof would rest on its own promulgated speech policies). It distributes several billion dollars a year this way, and other federal agencies that give out several times more are expected to follow with similar rules in the near future.
Unfortunately, Louisiana’s universities and colleges have trouble maintaining such protections. Despite a 2018 law that forced schools to comply with constitutional requirements regarding assembly, a review of the state’s larger universities show distinct problems in protecting expression. A leading advocacy and litigant for protecting speech rights higher education employees and students, the Foundation for Individual Rights in Education, reviews schools with over 10,000 students for their constitutional compliance. Of the nine that qualify, only one – McNeese State University – grades as compliant. Four others have problematic aspects to their regulations that might be unconstitutional depending upon application. The other four have at least one policy that unambiguously violates constitutional jurisprudence.
Posted by Jeff Sadow at 14:05
In a contest where he has no margin for error, Republican District 5 Public Service Commission candidate Shane Smiley committed a big one.
Smiley, the current president of the Ouachita Parish Police Jury, will face off in November as the only alternative to Democrat incumbent Foster Campbell after another Republican withdrew. Campbell survived a challenge to his candidacy over his current three-term service given constitutional term limits, but remained on the ballot through a loophole permitting those in office prior to 2009 to serve an unlimited number of terms.
Although the district routinely votes for Republicans, with almost half a century in elected offices Campbell has dug in his influence deeply throughout the district. Personally wealthy and with ample fundraising ability, with his haul in no small part from the companies the PSC regulates, Campbell makes for a formidable foe against a relatively unknown Republican like Smiley who has no proven fundraising history and who will have to campaign at the top of his game to win.
Posted by Jeff Sadow at 15:20