Colorado Gov. Jared Polis celebrated federal health officials' recommendation that the Drug Enforcement Administration loosen marijuana restrictions and urged President Joe Biden to take specific actions to support state-run cannabis markets and promote polices that will support the existing state markets. In a four-page letter issued Tuesday, Polis praised the Biden administration for the steps it has taken that led to the U.S. Department of Health and Human Services recommending the DEA reschedule cannabis from Schedule I to Schedule III, but added that "much work lies ahead." "I am writing to offer my enthusiastic support as DEA promptly reviews and acts upon [the agency's] analysis in the coming weeks," Polis said. "I ask you to simultaneously consider a few next steps in the near future by showing your support for access to banking for the state-regulated marketplace, reduced criminal penalties for possession and distribution of cannabis, addressing immigration related consequences and enforcement discretion from FDA." He is the latest politician pushing for marijuana reform following the news of the HHS letter. Lawmakers including Senate Majority Leader Chuck Schumer, D-N.Y.; Sen. Ron Wyden, D-Ore.; Rep. David Joyce, R-Ohio; and others all praised the findings of the agency's review. Polis stands out as being the head of a state that has operated a cannabis market since 2014 and conducted some $14.7 billion in sales, he said in his letter. But Colorado's regulated industry and others face "headwinds" due to federal tax policy known as Section 280E, which forbids entities that sell Schedule I or II substances from taking ordinary business deductions. On top of that, cannabis companies must conduct most of their business via cash, making them targets for robberies, Polis said. "I have been tirelessly pushing Congress to fix the banking problem for over a decade as both a congressman and a governor, and would welcome your assistance in encouraging Congress to provide access to banking and financial services for state-regulated cannabis-related businesses as well as reform IRS Section 280E to ensure continued success in the industry," he said. But the most damaging aspect of the federal prohibition on cannabis has been the criminal prosecutions and law enforcement's uneven targeting of Black citizens, Polis said. He added that if Biden merely signaled that he would support criminal justice reform in this area, it would "go a long way toward bringing young people to the polls in 2024." He suggested that the DEA's review of cannabis rescheduling could be informed by Colorado and the 37 other state-regulated markets. He added that potential federal policy should avoid capsizing the state regulatory frameworks that are well-established. "To provide clarity, we hope that you will press [the U.S. Food and Drug Administration] to develop and publish guidance outlining their enforcement discretion and priorities with respect to the state-regulated cannabis industry," Polis said. "Specifically, an enforcement discretion policy should articulate that FDA will not bring a compliance action against companies whose products and activities are authorized by state medical and recreational marijuana laws, so long as they are abiding by state law and not making health claims, marketing in interstate commerce, or marketing to children."
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A California tribe is the first to open a U.S. voter registration agency established on tribal lands, a move civil rights advocates say is decades in the making as other Native American tribes continue to fight for more electoral access and challenge states' polling district boundary laws.Consisting of about 500 tribal members on a 160-acre reservation in El Dorado County, the Shingle Springs Band of Miwok Indians established its Health & Wellness Center on Tuesday as a voter registration agency under the National Voter Registration Act.
"Throughout this nation's history, voting rights and equitable access to registration has been a key ethical and political issue that as a self-governing people, we understand as an essential right for every citizen," said Shingle Springs Band Tribal Chairwoman Regina Cuellar in a statement. Currently, with more than one-third of qualified Native Americans not registered to vote, Cuellar said having an electoral site at a health care center will help the tribe reach its goal of "voting for all." "This designation means we are now partners. We want to make sure that every voter who is eligible to vote has an opportunity to vote," said California Secretary of State Shirley Weber in a statement. "Like the Department of Motor Vehicles and California healthcare providers under NVRA, this will provide a convenient opportunity for visitors to the Shingle Springs Health & Wellness Center to register to vote. We have as our goal 100 percent registration of eligible voters in California, that includes the full enfranchisement of Indigenous peoples throughout the state." The National Voter Registration Act, also known as the Motor Voter Act, was enacted by Congress in 1993 as a way to make it easier for residents to register to vote, particularly at Department of Motor Vehicles locations. Under the act, other locations may be designated as a voter-registration agency. However, the law wasn't that simple, or helpful, for Indigenous tribes, according to a March 2022 federal Interagency Steering Group on Native American voting rights. Formed as part of President Joe Biden's March 2021 executive order directing an "all-of-government" effort to promote access to voting, the group relied on a 2020 report by the Native American Voting Rights Coalition — a yearslong product of the Native American Rights Fund — for a closer look at the barriers voters faced since the law's passage. In 2017 and 2018, the coalition held nine public hearings, with 120 witnesses testifying from dozens of tribes, to better understand "how Native Americans are systemically and culturally kept from fully exercising their franchise." The 176-page "Obstacles at Every Turn" report found that Indigenous voters faced obstacles from a lack of traditional mailing addresses to registration identification requirements. And, with an increased national focus shifting toward online registration, tribes were well behind the curve with about 90% of communities lacking sufficient broadband internet access, the report said. "While cost savings is touted as a reason for states to shift to all online or predominately online models of voter registration, increasing focus on online voter registration comes at the expense of Native Americans who lack access to it," the report said. Indigenous voters, the report found, sometimes traveled as far as 140 miles to the nearest election offices and 100 miles round trip to the closest Department of Motor Vehicles location. "Native American's registration rates are among the lowest in the country," Jacqueline De León, a Native American Rights Fund attorney, said in a statement on Tuesday. "This is because Native Americans face logistical barriers that would surprise most Americans. Most Native American homes don't have addresses and many Native American homes do not receive residential mail." The group's findings eventually led to the 2021 introduction of a bill — the Frank Harrison, Elizabeth Peratrovich and Miguel Trujillo Native American Voting Rights Act of 2021 — that would have ensured equal protections for access to the electoral process for Indigenous residents living on tribal lands. A companion bill on the measure passed in the House, but failed to make it off the Senate floor. However, Native American rights groups as well as Biden, have called for its passage. Introduced by Democratic U.S. Sen. Ben Ray Lujan, the bill would have improved access to voter registration, polling places and drop boxes as well as mandated that polling places accept tribal or federal forms of identification, among other things. "Our democracy is at its strongest when every American can participate and make their voice heard. But in too many communities across America, voter suppression efforts are making it harder for Americans to vote, especially for Native Americans who continue to experience geographic, linguistic and legal barriers to voting," Lujan said in a statement in introducing the bill. "Congress has a moral imperative to protect the sacred right to vote and reduce barriers to the ballot box for voters living on tribal lands." Civil rights advocates say a legacy of Native American voter suppression continues as states pass legislation that allegedly target Indigenous voters with new redistricting policies, as highlighted in recent court rulings, or federal agencies are failing altogether to implement stronger registration access. The American Civil Liberties Union in March, on the 30th anniversary of the National Voting Registration Act, in an analysis of its own found that a few federal agencies had made headway in following Biden's executive order that strengthened the law. Most agencies, the ACLU found, either made minimal progress on their initial commitments to expand voter access or left important opportunities open. "This must change; we must make the promise of democracy real for every single American," the ACLU said in introducing the report. Other tribes have had mixed results in their fight for greater access to the ballot. In 2020, a Montana federal judge struck down the state's Ballot Interference Prevention Act following a challenge by a coalition of tribes, including the Blackfeet Nation, and voting rights advocates who said the 2018 law unconstitutionally restricted their efforts to deliver and collect ballots. But a U.S. Supreme Court 6 -3 ruling in 2021 upheld two voting laws in Arizona, finding they didn't discriminate against Native Americans, Hispanics and African American voters under Section 2 of the Voting Rights Act. In that decision, the justices found that a state voting regulation criminalizing some third-party ballot collection and another rejecting out-of-precinct ballots weren't illegal when considering the "totality of circumstances" around the measures, as required by Section 2. Elsewhere, the Spirit Lake Nation and the Turtle Mountain Band of Chippewa Indians in North Dakota are awaiting the outcome of a federal district en banc hearing where the tribes challenged the state's 2021 legislative map, which they allege weakens the voting strength of reservation residents by packing Native voters into one state House district and by taking others out of a majority in another district. And in Arizona, a group of civil rights nonprofits and two Native American tribes have contested in federal court two Republican-sponsored bills that they allege disqualify many would-be voters when the law went into effect on Jan. 1 in violation of the National Voter Registration Act and the U.S. Constitution. The Federal Trade Commission lodged a long-expected case Tuesday accusing Amazon of violating antitrust law, marking another aggressive step in the administration's efforts to increase competition across the economy, especially through moves to rein in large digital platforms. The suit filed in federal court in Washington state targets Amazon's policies that enforcers say punish sellers for offering lower prices elsewhere and requirements that force merchants to use Amazon's logistics services to gain access to the platform. FTC Chair Lina M. Khan, who shot to public prominence while still in law school with a paper titled "Amazon's Antitrust Paradox," said during a press briefing Tuesday that the complaint, joined by the attorneys general of 17 states, lays out several tactics Amazon uses to "thwart competition and protect its dominance." "The upshot here is that Amazon is a monopolist and it is exploiting its monopolies in ways that leave shoppers and sellers paying more for worse service," Khan said. "In a competitive world, a monopoly hiking prices and degrading service would create an opening for rivals and potential rivals to come in, draw business, grow and compete. "Amazon's unlawful monopolistic strategy has closed off that possibility and the public is paying dearly as a result," Khan added. The suit targets Amazon's policies that prevent third-party sellers from selling products cheaper on other platforms by punishing sellers through degraded search results on Amazon. Enforcers also allege third-party sellers are required to use Amazon's costly logistics services in order to obtain "Prime" eligibility, which the commission said is crucial to their success but also makes it more expensive to sell on other platforms. Khan said Tuesday the tactics employed by Amazon all had the same goal of depriving rivals of "the scale necessary to meaningfully compete." Amazon's senior vice president of global public policy and general counsel, David Zapolsky, responded to the suit in a statement Tuesday saying it makes clear that the FTC's focus has "radically departed" from its mission of protecting consumers and competition. Zapolsky contended that the practices the commission is challenging have helped spur competition and innovation "across the retail industry," resulting in greater selection, lower prices and faster delivery for consumers, along with greater opportunities for Amazon sellers. "If the FTC gets its way, the result would be fewer products to choose from, higher prices, slower deliveries for consumers, and reduced options for small businesses — the opposite of what antitrust law is designed to do," Zapolsky said. "The lawsuit filed by the FTC today is wrong on the facts and the law, and we look forward to making that case in court." The suit alleges that Amazon deploys a sophisticated surveillance network to monitor for sellers offering discounts on other platforms "that might threaten Amazon's empire" and then punishes those sellers by making their products harder to find on Amazon. Originally, the complaint said, Amazon used explicit contractual requirements to prevent sellers from selling cheaper elsewhere but turned to a new approach after scrutiny from European enforcers and U.S. lawmakers. Now, the complaint says, Amazon levies sanctions on sellers found to be offering discounts, including removing them from the "Buy Box" at the top of the page and burying them far down in results. The suit also contends Amazon uses its own retail business, which competes against sellers, to deter them from competing on price. "Moreover, Amazon's one-two punch of seller punishments and high seller fees often forces sellers to use their inflated Amazon prices as a price floor everywhere else," the complaint said. "As a result, Amazon's conduct causes online shoppers to face artificially higher prices even when shopping somewhere other than Amazon." Amazon's pricing policies were already the subject of a suit from the California attorney general's office alleging the policies violate state law, while the D.C. attorney general's office is also trying to revive a similar case over the pricing policies under local laws there. Consumers and retailers, meanwhile, also have various private suits targeting Amazon for antitrust violations that remain pending. The case from the FTC and the states on Tuesday also targets requirements that sellers use Amazon's order fulfillment service in order to be eligible for "Prime," contending the designation is critical for reaching Amazon's "enormous base of shoppers." This not only raises the costs for sellers on Amazon but also prevents them from selling on multiple channels since they are unable to use an independent provider for Amazon orders, according to the suit. "Each element of Amazon's monopolistic strategy works to keep its rivals and potential rivals from growing, gaining momentum, and achieving the scale necessary to meaningfully compete against Amazon," the complaint said. "The cumulative impact of Amazon's unlawful conduct is greater than the harm caused by any particular element." The sprawling 172-page complaint accuses Amazon of illegally maintaining monopolies over a market for "online superstores" used by consumers and a market for online marketplace services used by third-party sellers on its platform. It includes claims under Section 2 of the Sherman Act as well as unfair competition under the FTC Act, and myriad state-law claims. The potential remedies listed in the complaint include injunctions preventing Amazon from engaging in the conduct, or similar conduct in the future, and also "structural relief" if needed to restore competition, which could refer to a break up or a sale of part of Amazon's business. During Tuesday's press briefing, Khan said the focus of the case right now is on liability and said the goal is to halt the illegal conduct and prevent its recurrence. Though she also said the commission will try to explain the competitive dynamics of the market to the court and how Amazon's activity is cumulative and self-reinforcing. Khan's seminal paper about Amazon for The Yale Law Journal outlined the company's growth and accumulation of dominance across various sectors of the economy, contending Amazon achieved its status by accepting meager profits for years to fuel expansion and to attract loyal consumers with low prices. Before taking helm of the commission, Khan was also a lead author of a landmark report from staff of the House antitrust subcommittee examining the dominance of Apple, Amazon, Facebook and Google. In anticipation of FTC enforcement, Amazon has raised objections about Khan's objectivity in the face of her past work targeting it. The FTC has been ramping up its scrutiny of Amazon more generally, cutting a deal in May for the company to pay more than $30 million in separate settlements over allegations that it breached the privacy of children who used its Alexa voice assistant service and users of its home security camera company, Ring LLC. In June, the FTC also accused Amazon of using "dark patterns" to trick consumers into automatically renewing their Prime subscriptions and added three senior Amazon executives to that case earlier this month. Amazon has faced scrutiny from enforcers abroad over various business practices as well. In July, it cut a deal with the U.K.'s Competition and Markets Authority agreeing not to use third-party seller data to its own advantage. It also agreed to make sure its own products are not more likely to appear as the Buy Box featured offer and to ease delivery service restrictions on sellers. That came after a similar deal last year with European Union enforcers, when Amazon promised not to use nonpublic marketplace seller data for its own retail purposes and to eliminate bias when choosing Buy Box and Prime sellers. The European Commission has also gone after Amazon over its distribution agreements for e-books in the past. The states that have joined the lawsuit are Connecticut, Delaware, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Hampshire, New Mexico, Nevada, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, and Wisconsin. The commission is represented internally by John M. Newman, Susan A. Musser, Edward H. Takashima, Christina F. Shackelford, Christine M. Kennedy, Colin M. Herd, Daniel S. Bradley, Daniel A. Principato, Danielle C. Quinn, David B. Schwartz, Emily K. Bolles, Emma P. Dick, Jake O Walter-Warner, Kelly M. Schoolmeester, Megan E. B. Henry, Sara M. Divett, Stephen E. Antonio and Z. Lily Rudy. The states are represented by their respective attorneys general. Counsel information for Amazon was not immediately available. The case is Federal Trade Commission et al. v. Amazon.com Inc., case number 2:23-cv-01495, in the U.S. District Court for the Western District of Washington. A Florida federal judge presiding over Donald Trump's classified documents criminal case on Wednesday ordered the former president and his attorneys to review and discuss evidence containing "sensitive compartmented information" in a secure facility approved by the court. In her order issued in the Southern District of Florida, U.S. District Judge Aileen Cannon granted the U.S. government's motion following a two-hour sealed hearing in Fort Pierce on Tuesday, saying that Trump and his attorneys can only review classified information in a "sensitive compartmented information facility approved by a designated chief information security officer for the storage, handling and control of classified information." Trump disagreed with the government's condition, instead seeking to discuss classified material with his attorneys at a secure facility located at his Mar-a-Lago residence. "The court finds that this case will involve information that has been classified in the interest of national security," Judge Cannon said in her order. "The storage, handling, and control of this information will require special security precautions mandated by statute, executive order, and regulation." Trump was initially indicted on 31 counts related to willfully retaining national defense information held in boxes at Mar-a-Lago after leaving office in 2021. Trump and his personal aide Walt Nauta are also each charged with obstruction for allegedly moving some boxes to keep them from being returned by the government pursuant to a grand jury subpoena. A superseding indictment that came down in July added new charges and a third defendant, former Trump aide Carlos De Oliveira, who is accused of trying to delete surveillance footage at Mar-a-Lago last summer. All three men have pled not guilty to the charges. Judge Cannon's order said the CISO "shall establish procedures to assure" the SCIF is accessible during business hours for Trump and his defense team, or at other times upon "reasonable request." The request must be approved by the CISO and in consultation with the court, and U.S. Marshals, according to the order. The secure area must be "outfitted with any secure office equipment" that's requested by the defense and procedures must be established to "assure that the SCIF may be maintained and operated in the most efficient manner consistent with the protection of classified information and in compliance with security requirements," according to Judge Cannon's order. Special procedures for reviewing the classified information include listening to recordings that can only be reviewed on a "stand-alone, non-networked computer or other device within the SCIF that does not have the capability to duplicate or transmit information." Headphones must be used to review the recordings, and they must be wired and can't have any wireless capability, Judge Cannon ordered. In addition, Judge Cannon ordered that all classified materials must be maintained in the SCIF and any documents containing the sensitive information must also be prepared in the facility on word processing equipment approved by the CISO. Discussion of classified information is prohibited except to anyone listed in the order, to the court, and any court personnel and anyone with the government identified by the CISO who holds the "appropriate security clearances and have been determined to have a need-to-know that information." Judge Cannon also prohibited Trump and his defense team from referencing any classified material leaked into the public domain, saying the information is not automatically declassified unless specifically stated by the U.S. government. "Persons subject to this order are advised that direct or indirect unauthorized disclosure, retention or handling of classified documents or information could cause serious damage, and in some cases exceptionally grave damage, to the national security of the United States, or may be used to the advantage of a foreign nation against the interests of the United States," Judge Cannon said. Attorneys representing Trump and the Special Counsel did not immediately respond to requests for comment Wednesday. The government is represented by David V. Harbach II, Jay I. Bratt, Julie A. Edelstein and Michael E. Thakur of the Special Counsel's Office. Trump is represented by Christopher M. Kise of Continental PLLC and Todd Blanche of the Blanche Law Firm. Nauta is represented by Sasha Dadan of the Dadan Law Firm and Stanley E. Woodward Jr. of Brand Woodward Law LP. De Oliveira is represented by John S. Irving of Earth & Water Law. The case is U.S. v. Trump et al., case number 9:23-cr-80101, in the U.S. District Court for the Southern District of Florida. The U.S. Department of Justice, in an effort to support survivors of violence, is awarding $68.2 million in grant funding to indigenous communities, saying the funding will help strengthen its relationship with the tribes.
The funds, announced Tuesday through the DOJ's Office on Violence Against Women, will be awarded through 88 grants to provide services and promote justice for survivors of domestic violence, sexual assault, stalking and trafficking. "For too long, Alaska Native and American Indian communities have endured persistent and disproportionate levels of violence," Attorney General Merrick B. Garland said in a statement. The grants, part of the 2022 Violence Against Women Act, will enhance tribal justice systems, support an array of services for victims, and provide training and technical assistance to service providers and tribal governments, according to the DOJ. The DOJ's press release announcing the funding said that a National Institute of Justice study found that more than 80% of American Indians and Alaska Natives have experienced violence in their lifetimes. Within that group, more than 56% of indigenous women and 27% of men experienced sexual violence, and more than 55% of women and 43% of men were victims of physical violence by an intimate partner, the study found. "American Indian and Alaska Native individuals experience unacceptably high rates of violence, which is in many ways a direct reflection of systematic injustice and institutional failures these populations face," Associate Attorney General Vanita Gupta said in a statement. "Through the authority and funding in VAWA 2022, the Justice Department is strengthening our partnerships with more tribes, supporting communities in holding individuals accountable and focusing on solutions that center survivors." Forty-eight of the grants — totaling nearly $40 million — will go toward developing tribal strategies to respond to violence, stalking and sex trafficking against women and support survivor safety through education and prevention strategies, the DOJ said. According to Native Hope, a tribal justice nonprofit, indigenous women and children in the U.S. and Canada are being abducted and killed at alarming rates. Many Native Americans, the group said, don't live on reservations and are often transient between tribal and state lands. There were 5,712 reports of missing American Indian and Alaska Native women and girls in 2016, the latest information available through the National Crime Information Center. The DOJ's federal missing person database, NamUs, logged 116 cases that same year, according to the Urban Health Institute. "American Indian and Alaska Native communities know best the unique challenges they face and how best to allocate resources, strengthen prevention efforts and provide pathways for safety, healing and justice for survivors," Office of Violence Against Women Director Rosie Hidalgo said in a statement. She said the grants were "a direct result of tribes, advocates and survivors who have bravely shared their stories, challenges, recommendations and leadership." Under the Grants to Tribal Domestic Violence and Sexual Assault Coalition Program, 20 of the grants will go toward the development of nonprofit, nongovernmental tribal domestic violence and sexual assault coalitions, the DOJ said. The issue of violence against indigenous individuals has been a hot topic of discussion between tribal government leaders, nonprofits and lawmakers in recent years as advocates continue to protest what they say is a lack of appropriate accounting of the number of missing and murdered women and children. Tribal governments themselves are beginning to pass legislation bolstering victims' rights services, with Navajo Nation President Buu Nygren on Sept. 4 signing a law to strengthen protections and resources for victims of domestic violence and sexual assault. Council leaders said the legislation was a long time in the making, with a plethora of victim advocate nonprofits and tribal and state law enforcement agencies working to support it. The DOJ said that seven of the grants, totaling $6.45 million, will support projects that create, maintain and expand services for sexual assault survivors provided by tribes, tribal organizations and nonprofits within tribal lands. Four of the grants are reserved for tribal governments and will provide $6 million for support and technical assistance to plan and implement changes in their criminal justice systems to exercise special jurisdiction. The funding announcement comes after the DOJ said last month that it had awarded $69.6 million through its Tribal Victim Services Set-Aside program to support crime victims in American Indian and Alaska Native communities. Those 212 awards were consistent with the requirements of the federal Victims of Crime Act, which gives states money for victim assistance and compensation programs, and will fund services such as counseling, civil legal assistance, emergency housing and tribal wellness ceremonies, the DOJ said at the time. Almost $22 million of the awards went to 67 tribal communities in Alaska, according to the department. The Chancery Lane Project said Tuesday that it's releasing a batch of 10 climate-oriented contract clauses attorneys and businesses can use copyright-free to address climate risks and regulatory requirements under U.S. law.
The group, founded in 2019 in the U.K., said it collaborated with U.S. attorneys to adapt some of its existing climate-related clauses for use in the U.S. The clauses cover practice areas including construction, commercial transactions and energy and differ in their climate ambitions, with more adapted clauses expected to come. Chancery Lane Project, which describes itself as the largest global network of attorneys and businesses using climate clauses to deliver fast and fair decarbonization, said the release marks an expansion into the U.S. — which is the world's largest economy and has some of its largest greenhouse gas emissions — as "climate contracting" to reduce emissions continues to expand. "Many lawyers now realize the power of contracts to make or break climate goals and manage climate risk and are gearing up their teams to take action," Becky Annison, the head of engagement for Chancery Lane Project, said in a statement on Tuesday. "The publication of many of our clauses in the United States provides an amazing opportunity to American businesses to get a jump-start. We look forward to seeing how these clauses pave the way for new legal solutions to climate issues in American contracts as they do in the U.K.," Annison said. According to a press release, the clauses cover things such as sustainable and circular economy principles in leasing arrangements for repairs and alterations, landlord and tenant obligations to provide renewable electricity, sustainable soil management obligations, and dockless mobility data-sharing and renewable energy requirements in supply contracts. Teresa Garcia-Moore, a science and impact manager for The Sustainability Consortium, which has offices in Arizona, Arkansas and the Netherlands and works to deliver more sustainable consumer products, said in a statement that there is an ongoing shift to more businesses seeing climate change not as an exercise in social responsibility, but in risk management. "Climate change poses a real threat to businesses, in terms of their bottom line, regulatory, supply chain, procurement and investment risk," Garcia-Moore said in a statement Tuesday, calling the clauses a valuable resource for attorneys looking to help clients manage that risk. "And, with that shift, we have seen an increase in the number of attorneys being asked to address these issues for clients through climate contract law, which is one of the most effective ways for companies to protect themselves." A New York state judge on Tuesday placed Donald Trump's assets in limbo and sanctioned his attorneys after ruling that the former president and his real estate company defrauded banks and insurers for years by exaggerating his net worth by billions of dollars. State Supreme Court Justice Arthur F. Engoron ruled that Trump and the Trump Organization repeatedly used false statements of financial condition, or SFCs, in business transactions between 2011 and 2021, violating a civil anti-fraud enforcement statute. The judge flatly denied Trump's competing motion to toss the case altogether.The judge rejected Trump's central argument that real estate valuations are subjective and therefore there could be no fraud. "The documents here clearly contain fraudulent valuations that defendants used in business, satisfying [the Office of the Attorney General]'s burden to establish liability as a matter of law against defendants," Justice Engoron ruled. "Defendants' respond that: the documents do not say what they say; that there is no such thing as 'objective' value; and that, essentially, the Court should not believe its own eyes." "What OAG has established, in many cases by clear, indisputable documentary evidence is not a matter of rounding errors or reasonable experts disagreeing," Justice Engoron added. "OAG has submitted conclusive evidence that between 2014 and 2021, defendants overvalued the assets reported in the SFCs between 17.27-38.51%; this amounts to a discrepancy of between $812 million and $2.2 billion dollars." The judge went on to call Trump's own sworn statements "wholly without basis in law or fact." He also sanctioned Trump's attorneys — Michael Madaio, Clifford S. Robert, Michael Farina, Christopher M. Kise and Armen Morian — for repeating arguments previously rejected as frivolous by the trial court and an appeals court, fining them $7,500 each. "Defendants' conduct in reiterating these frivolous arguments is egregious," Justice Engoron said. "Defendants' repetition of them here is indefensible." The judge had highlighted the issue at oral arguments, calling some of the arguments "literally crazy." "Exacerbating defendants' obstreperous conduct is their continued reliance on bogus arguments," he said Tuesday. "In defendants' world: rent regulated apartments are worth the same as unregulated apartments; restricted land is worth the same as unrestricted land; restrictions can evaporate into thin air; a disclaimer by one party casting responsibility on another party exonerates the other party's lies," and "square footage is subjective." "That is a fantasy world, not the real world," the judge added. In a further remarkable move, Justice Engoron effectively ordered Trump Organization LLCs dissolved as he immediately "canceled" all New York business certificates held by Trump, his sons Donald Trump Jr. and Eric Trump, as well as their long-serving financial officers Jeffrey McConney and Allen Weisselberg. Trump may be able to transfer his assets to other companies, but those decisions would be managed by an independent receiver. The judge asked for three recommendations for receivers "to manage the dissolution of the canceled LLCs," which appear to hold marquee properties like 40 Wall Street and the Seven Springs estate. In the interim, a former U.S. judge for the Southern District of New York, Barbara Jones, will continue to serve as independent monitor over Trump's businesses, Justice Engoron said. The ruling grants partial summary judgment to New York Attorney General Letitia James, handing her a significant victory one week before a bench trial in front of the same judge on her remaining related claims for false business records, false financial statements, insurance fraud and conspiracy. However, the judge found that a trial was still necessary to determine whether the defendants "intentionally and materially" violated these laws. A further victory for James at trial could hobble the Trump family's ability to do business in the state and trigger massive financial penalties — at least $250 million in disgorgement of allegedly ill-gotten gains. The attorney general touted the decision on Tuesday. "Today, a judge ruled in our favor and found that Donald Trump and the Trump Organization engaged in years of financial fraud," James' office said in a statement. "We look forward to presenting the rest of our case at trial." Trump has argued that the state is engaged in a political prosecution and is ignoring the law, the evidence, the subjective nature of real estate values and Trump's own expertise as a real estate tycoon. Through a representative, he vowed to "immediately appeal" the decision. "Today's decision is fundamentally flawed at every level," attorney Alina Habba said. "The fact that this court summarily found that there is no question of fact, finding in part that Mar-a-Lago is worth approximately $20 million and issu[ing] a decision of this magnitude is an affront to our legal system." Commenting on the decision, Trump attorney Kise said that "while the full impact of the decision remains unclear," the decision "seeks to nationalize one of the most successful corporate empires in the United States and seize control of private property all while acknowledging there is zero evidence of any default, breach, late payment or any complaint of harm." Trump himself lashed out at both the attorney general and the judge in a 400-word statement on Truth Social later on Tuesday. "The widespread, radical attack against me, my family, and my supporters has now devolved to new, un-American depths, at the hands of a DERANGED New York State Judge, doing the bidding of a completely biased and corrupt 'Prosecutor,' Letitia James," he said. Echoing his father's sentiments, Eric Trump posted late Tuesday on X, the social media platform formerly known as Twitter, that he had "lost all faith in the New York legal system." "Never before have I seen such hatred toward one person by a judge - a coordinated effort with the Attorney General to destroy a man's life, company and accomplishments," he said. "We have run an exceptional company - never missing a loan payment, making banks hundreds of millions of dollars, developing some of the most iconic assets in the world. Yet today, the persecution of our family continues." New York is represented by Kevin Wallace, Andrew Amer, Colleen Faherty, Alex Finkelstein, Wil Handley, Eric R. Haren, Louis M. Solomon, Sherief Gaber, Mark Ladov and Stephanie Torre of the New York State Office of the Attorney General. Trump and the Trump Organization are represented by Alina Habba and Michael Madaio of Habba Madaio & Associates LLP, Christopher Kise, Jesus M. Suarez and Lazaro P. Fields of Continental PLLC, and Armen Morian of Morian Law PLLC. Donald Trump Jr. and Eric Trump are represented by Clifford S. Robert and Michael Farina of Robert & Robert PLLC. The case is New York v. Donald J. Trump et al., index number 452564/2022, in the Supreme Court of the State of New York, County of New York. A Michigan federal judge overseeing the sprawling Flint water crisis litigation put some guardrails Tuesday around a trauma expert's testimony about the effects of the crisis on Flint residents' mental health ahead of an upcoming issues class trial. U.S. District Judge Judith E. Levy restricted somewhat what Stanford professor Daryn Reicherter, director of the university's Human Rights in Trauma Mental Health Program, will be allowed to say about the "community trauma" Reicherter says Flint experienced following the water crisis. Reicherter, an expert in trauma psychiatry and psychology, was retained by Flint plaintiffs to testify about how the water crisis affected Flint residents' mental health. Reicherter's expert testimony includes a discussion of how a community's collective experience of trauma creates a higher risk of individual mental health problems. Granting in part and denying in part engineering company Veolia North America LLC's motion to exclude Reicherter's testimony, Judge Levy said the idea that Flint suffered "community harm" as a whole is not relevant to the claims of individual Flint residents and is not admissible at trial. Reicherter also won't be allowed to discuss community trauma as a type of psychological harm that individuals can experience because "the conception of community trauma is only a brief aside in Dr. Reicherter's report and is not supported or explained in a manner that would enable the court to evaluate its reliability," Judge Levy said in the opinion. However, the judge said the trauma expert would be allowed to opine on how widespread mental health issues in a community could affect individuals' risk of harm. "Dr. Reicherter suggests that individual trauma can lead to dysfunction in community institutions like schools and hospitals, the failure of which can further harm individuals' mental health. This latter point is clearly relevant to the general causation, insofar as it suggests that the water contamination can harm individual mental health, specifically through the mechanism of dysfunctional community institutions," Judge Levy said. The judge threw out Veolia's other complaints about Reicherter's testimony, including that Reicherter's evidence of mental health problems in Flint post-water crisis was based on flawed methodology and failed to account for other socioeconomic factors that could explain a decline in mental health. Judge Levy said the fact that Reicherter's data came from a self-reported survey was not enough to exclude the data when self-reported data is widely used by major academic institutions and in peer-reviewed research, and Veolia could make its arguments about comparing survey data to clinical interview data to the jury. "VNA can certainly challenge the comparison between these data sets in cross-examination of Dr. Reicherter, but their attacks on this comparison do not support excluding this testimony," Judge Levy said. Judge Levy also rejected Veolia's argument that Reicherter failed to account for other potential causes of Flint's rates of mental health disorders, such as poverty. While the data on its own "may not firmly establish causation, the various sources Dr. Reicherter draws upon undermine VNA's arguments that he insufficiently considers other variables that might have an impact on his opinions about causation," Judge Levy said. Tuesday's opinion was the latest in a series of decisions from the judge on Veolia's battery of challenges to nine plaintiffs' experts ahead of the issues class trial, which is set for Feb. 13. So far, Judge Levy has denied Veolia's challenges to the testimony of five other plaintiffs' experts, including Larry Russell, a professional engineer who is an expert in water quality assessments and corrosion mitigation; Clifford Weisel, an expert on the effects of lead exposure' David Keiser, an environmental and natural resource economist; Paolo Gardoni, an expert in engineering ethics, and Panagiotis G. Georgopoulos, a chemical engineering expert. The first bellwether trial over the Flint water crisis, which featured four individual child plaintiffs, was six months long and ended in a mistrial when an Ann Arbor jury failed to reach a verdict in August 2022. Veolia and engineering firm Lockwood Andrews & Newnam PC and its parent corporation, the Leo A. Daly Co., were the defendants in that trial. LAN has since announced it has reached a tentative settlement with the Flint plaintiffs. Representatives of the parties did not immediately respond to a request for comment. Class plaintiffs are represented by Cohen Milstein Sellers & Toll PLLC, Pitt McGehee Palmer Bonanni & Rivers PC, Weitz & Luxenberg PC, Susman Godfrey LLP, Motley Rice LLC, the Law Offices of Teresa A. Bingman PLLC, Bronstein Gewirtz & Grossman LLC, Law Offices of Deborah A. Labelle, NAACP, Goodman & Hurwitz PC, Trachelle C. Young & Associates PLLC, The Dedendum Group, McKeen & Associates PC, Law Office of Cirilo Martinez PLLC, Shea Aiello PLLC, Cynthia M. Lindsey & Associates PLLC, McAlpine PC and Abood Law Firm. Veolia is represented by Michael A. Olsen of Mayer Brown LLP and James M. Campbell and Alaina M. Devine of Campbell Conroy & O'Neil PC. The case is In re Flint Water Cases, case number 5:16-cv-10444, in the U.S. District Court for the Eastern District of Michigan. As a federal jury in California was deliberating last year in the trial of four former U.S. Navy officials swept up in the massive "Fat Leonard" bribery scandal, attorneys for the defendants learned a startling fact: The lead special agent in the case had allegedly made false sworn statements in a similar matter in Washington, D.C., that spurred the government to dismiss serious criminal charges. Prosecutors in the Fat Leonard case had never disclosed the inaccuracies to the four defendants. Now it was too late to question the agent, Cordell "Trey" DeLaPena, who had provided key testimony for the government. The jury convicted all four defendants — former Navy Capts. David Newland, James Dolan and David Lausman and ex-Cmdr. Mario Herrera — handing a signature win to the U.S. Attorney's Office for the Southern District of California. But a judge recently threw out the verdict, ripping federal prosecutors for "outrageous" misconduct in withholding the information. In a highly unusual move, the government agreed in early September to let the defendants plead guilty to a minor misdemeanor. Each defendant was fined $100 and sent on their way with no prison time or any other penalties. The messy ordeal highlights the apparent rise in so-called Brady violations, experts say, as well as the challenge of knowing when the government has failed to turn over potentially exculpatory evidence or relied on sloppy investigative work. "It's a problem," white collar defense lawyer Nina Marino of Los Angeles-based Kaplan Marino PC, who briefly served as local counsel in the Fat Leonard case in 2017, told Law360. "It's difficult to know, to discover and, frequently, by the time the discovery is made, it's too late to make an impact on the case." Law360's attempts to speak with DeLaPena have been unsuccessful, and messages left with the Office of Inspector General, which oversees the Defense Criminal Investigative Service, or DCIS, where DeLaPena serves as an agent, have gone unanswered. Andrew Haden, acting U.S. attorney for the Southern District of California, admitted in an earlier written statement that "errors were made" in the Fat Leonard case, but pushed back on criticism from the defendants' attorneys and U.S. District Judge Janis Sammartino's finding that prosecutorial misconduct had sullied the case. "As stated in court, we do not agree with all the allegations or characterizations in the motions or in court," he said. "We recognize and regret, however, that errors were made, and we have an obligation to ensure fairness and justice. The resolutions of these defendants' cases reflect that." Defense lawyers say they're now pursuing ethics complaints against prosecutors in the case, and calling for DeLaPena to face discipline. "He shouldn't be an agent," Lausman's attorney Laura Schaefer of Boyce & Schaefer told Law360. "He lied under oath. That's a problem." A Big First Assignment Before he was a special agent with DCIS, DeLaPena spent about four years as a special agent with the U.S. Department of the Interior's Office of Inspector General, which investigates and audits department programs for waste, fraud and abuse. He said in a court filing that he had participated in "numerous ... financial and white-collar criminal investigations" and had "personally conducted or assisted in complex financial fraud investigations" involving allegations of bribery, money laundering and antitrust violations. When DeLaPena testified last year in the Fat Leonard case, he said he was stationed in Wiesbaden, Germany. It's unclear where he's currently based. He also testified that he teaches other agents for DCIS as a "certified adjunct instructor for the Federal Law Enforcement Training Center, specifically for public corruption investigations." The Fat Leonard case was DeLaPena's first assignment when he joined the DCIS in 2012 as a special agent, and it has grown into a sprawling bribery investigation centered around Malaysian defense contractor Leonard Francis, nicknamed "Fat Leonard." Francis, the government's star witness, pled guilty in 2015 to bribing senior staff and officers in the Navy's Seventh Fleet with wild parties, prostitutes, luxury hotel accommodations and other expensive gifts. In turn, Francis' company, Glenn Defense Marine Asia, secured lucrative "husbanding services contracts" to maintain Navy ships in port. He also allegedly overcharged the Navy for GDMA's services by more than $35 million. DeLaPena testified that he worked the Fat Leonard case for more than a decade and pored over millions of documents in the matter, which is ongoing. So far, the probe has resulted in criminal convictions for about two dozen defendants, including the four that were overturned, while at least four others have pled guilty to felony charges and are awaiting sentencing. Attorneys for the defendants awaiting sentencing did not respond to requests for comment. Attorneys for Newland and his co-defendants alleged in a July motion for dismissal or a new trial that DeLaPena lied on the stand when he testified about the source of the documents and materials that Francis and a private investigator who worked for him, Esteban Hernandez, provided to the government to build its case. DeLaPena allegedly falsely testified that Hernandez obtained the evidence directly from hard drives from GDMA's headquarters in Singapore, when the materials actually came from the company's information technology manager in Malaysia. The distinction was important because Francis earlier said during a podcast interview that he'd "doctored evidence on GDMA's server, with the help of his 'IT people,'" according to the motion. The defendants' attorneys also said DeLaPena lied when he claimed to have no knowledge of how the hard drive retrieval occurred and if anyone other than Hernandez was involved in the process, asserting that those details were protected under attorney-client privilege. "None of that was true," the defense attorneys said in their motion. They told the court that DeLaPena knew the IT manager provided the evidence in question. Moreover, they claimed that the case's lead prosecutor at the time, Mark Pletcher, "sat silent and allowed the testimony to go uncorrected, not only to prevent the jury from learning about the evidence that was obviously harmful to the prosecution's case, but also to avoid impeachment of Agent DeLaPena, the government's central witness." The government never called Hernandez to testify, according to court filings. The defense attorneys also accuse DeLaPena of instructing two other agents to offer a $5,000 "reward" to a witness in the case to entice her to leave her home in the Philippines and travel to the U.S. to testify that Francis used her services as a sex worker to bribe the defendants. DeLaPena denied any wrongdoing under cross-examination and testified that the payment was never made, according to court transcripts. The woman in question ultimately refused to testify in the case because she was afraid of Francis, according to court filings. Before he was sentenced, Francis, who allegedly had child pornography on his computer — a detail that prosecutors tried to hide from Newland and his co-defendants, according to their attorneys — cut off his ankle monitor, fled house arrest in the U.S. and was later caught in Venezuela. He is awaiting extradition. Newland's attorney, Joseph Mancano of the Law Offices of Joseph D. Mancano in Philadelphia, filed an ethics complaint against Pletcher last year but said that to his knowledge the U.S. Department of Justice's Office of Professional Responsibility has not taken any action. He told Law360 that he and his co-counsel are gathering additional evidence to file an updated complaint against Pletcher and, potentially, other prosecutors in his office. Misconduct Inquiry Deepens In March 2022, around the same time the Fat Leonard trial was starting in California federal court, the government quietly dismissed fraud charges in a similar bribery and fraud case in Washington, D.C., against Navy contractor Frank Rafaraci due to "factually inaccurate" statements that DeLaPena made in an affidavit supporting the criminal complaint against Rafaraci. Rafaraci, like Francis, was CEO of a company that contracts with the Navy to service ships in foreign ports. Rafaraci also was charged with bribing a Navy official and overcharging the government for his company's services. Details of DeLaPena's alleged false statements against Rafaraci are under seal. But the government was concerned enough about the inaccuracies in the agent's criminal complaint affidavit that prosecutors dismissed the original complaint against Rafaraci, who had been charged with bribery, conspiracy to commit bribery, conspiracy to commit wire fraud and conspiracy to commit money laundering. He later pled guilty to a single count of bribery and is awaiting sentencing, according to court filings. An attorney for Rafaraci, Michael Sherwin of Kobre & Kim LLP, declined to comment on the case. In a joint motion to strike the original complaint against Rafaraci, the government stressed that the "defense has not alleged, and we have found no evidence suggesting, that any inaccuracies in the affidavit supporting the complaint were made purposefully, or with intent to deceive or mislead." But prosecutors never alerted Newland or his co-defendants in the Fat Leonard case about DeLaPena's flawed affidavit in the Rafaraci case. Lausman attorney Schaefer and her law partner and co-counsel Robert Boyce said they first learned about the Rafaraci issue while the jury was deliberating in their case in June 2022. They declined to disclose how they came across the information, which they described in a motion to compel discovery from the government as a blatant Brady violation, alleging prosecutors had again failed to share crucial evidence that could have been used to impeach DeLaPena. Schaefer and Boyce asserted in the July 2022 motion, which all four Fat Leonard defendants joined, that the government had refused to provide discovery related to DeLaPena's alleged false statements in the Rafaraci case. They told the court that prosecutors expected the defendants to blindly accept the government's assertions that there were only two "factual inaccuracies" in DeLaPena's affidavit and both were "innocent" and did not qualify as impeachable evidence. At the same time, though, prosecutors in the Rafaraci case were "undertaking a comprehensive re-review of the evidence supporting the fraud and money laundering allegations in the complaint and accompanying affidavit," Schaefer and Boyce said in the motion. "If the prosecutors in the Rafaraci case were confident Agent DeLaPena's other allegations were factually supported, no such review would be required," they said in the motion. "At a minimum, false statements made by an agent to further a criminal prosecution shows a reckless disregard for the truth," they added. Judge Sammartino ultimately ordered prosecutors to give the four Fat Leonard defendants the government's materials on DeLaPena's alleged false statements in the Rafaraci case. "Based on the evidence presently before the court, it is clear that, at a minimum, Agent DeLaPena made misrepresentations in his sworn affidavit, which resulted in significantly reduced charges against Rafaraci," Judge Sammartino wrote in her order. "Given the similarity between offenses in both cases, Agent DeLaPena's critical role in the instant case, and the several instances of failure to disclose in this case, the court finds that defendants are entitled to discovery of the underlying facts related to agent DeLaPena's misrepresentations," she concluded. The Fat Leonard defendants detailed DeLaPena's alleged false statements in the Rafaraci case in a pleading, but the document was sealed, over the defendants' objections, after the government argued that it's tied to an ongoing investigation, according to Newland attorney Mancano. "The government's position in Rafaraci was that these weren't lies, they were just mistakes and they were inadvertent," Mancano said. "I believe that we established in our sealed filing that that wasn't the case and that he would have known that the representations he was making were not correct, yet he made them anyway." Mancano worked closely with government agents earlier in his career as a federal prosecutor and, since switching over to criminal defense in the late 1980s, has cross-examined hundreds of them. He told Law360 he's never encountered an agent like DeLaPena during his more than four decades of legal practice. "He was willing to say and do just about anything to make this case," Mancano said. However, attorneys for Newland and his co-defendants have no evidence that DeLaPena made false statements in any of the other Fat Leonard cases, according to Schaefer. The U.S. Department of Justice's Office of Professional Responsibility investigates reports of professional misconduct involving DOJ lawyers. The inspector general would typically look into allegations of misconduct involving one of its agents, though it's unclear if DeLaPena was being investigated. Even if he doesn't face formal discipline, experts say DeLaPena could be haunted by his alleged misconduct if and when he testifies again, as an informed defendant would try to bring up the agent's history to attack his credibility on cross-examination. Kevin O'Brien, a partner at Ford O'Brien Landy LLP in New York and former federal prosecutor who is not involved in the Fat Leonard case, said instances of government misconduct, particularly failures to produce relevant discovery, "seem to be on the rise today." In many instances, Brady violations are inadvertent — simply the result of living in a digital world in which "virtually nothing is destroyed or erased," making the government's disclosure obligations "more burdensome" than they were in the past when electronic records were minimal, O'Brien added. Identifying deceitful federal agents, especially those who work abroad, can be extremely difficult if they haven't been formally disciplined, according to Marino of Kaplan Marino. She said defense attorneys who suspect they're dealing with a problematic federal law enforcement officer can file a discovery motion seeking potential impeachment information on that agent. "The problem is that if there was no disciplinary action, then you don't get anything," Marino noted. "It's very difficult when you have an untrustworthy agent or lawyer, whether that's a prosecutor or defense attorney. Disciplinary proceedings are not automatic. And there's a lot of forgiveness for bad conduct."
Mississippi residents Dennis Hopkins, Herman Parker and Walter Wayne Kuhn Jr. could soon get to vote for the first time in more than 25 years thanks to a "groundbreaking" new ruling from a federal appeals court.
All three lost their right to cast a ballot decades ago under a Mississippi law barring those convicted of certain crimes from voting — for life. "Hearing their stories — lots of them who had been convicted of a felony many, many years earlier and since then had completely law-abiding lives and could never vote — it really hit you how unfair this law was," said Simpson Thacher & Bartlett LLP senior counsel Janet A. Gochman, who challenged that felon disenfranchisement law on behalf of the three men and others. The Fifth Circuit agreed with Gochman and her clients in August, labeling Mississippi's permanent disenfranchisement of convicted felons cruel and unusual punishment. The ruling reflects a growing national consensus against felon disenfranchisement and could further efforts to end the practice, say activists working to restore voting rights to the formerly incarcerated. But the decision's critics say the ruling ignores precedent, conflicts with the U.S. Constitution, and could throw voting regimes for felons in many states into disarray.The ruling could also prime the issue for consideration by the U.S. Supreme Court, experts say. "This is a groundbreaking decision," said Patrick Berry, an attorney with the Brennan Center for Justice's democracy program. "This ruling sends a really strong message, not just to state legislatures but also Congress: Restoring voting rights is an issue that's supported by Americans from all walks of life." A 'Remarkable' Ruling The August decision made the Fifth Circuit the first federal court to rule that permanently banning felons from the voting booth is a form of cruel and unusual punishment in violation of the Eighth Amendment, according to experts. Section 241 of the Mississippi Constitution, which disenfranchises for life those convicted of murder, rape, theft and other crimes, violates society's evolving standards of decency since only 10 other states still have lifetime voting bans for convicted felons, the appellate panel said. Most states have moved away from permanently disenfranchising former inmates, U.S. Circuit Judge James L. Dennis wrote for the divided three-judge panel, pointing out that, since the U.S. Supreme Court upheld such lifetime voting bans in its 1974 decision in Richardson v. Ramirez , 16 states have stopped imposing those bans. But previous challenges to felony disenfranchisement laws have largely been rejected by federal courts, making the Fifth Circuit ruling "remarkable" and "significant," according to Berry. The Fifth Circuit even upheld the very same Mississippi provision just a year ago, ruling that it didn't violate the 14th Amendment's equal protection clause. But after last year's ruling upholding the provision, attorneys from Simpson Thacher and the Southern Poverty Law Center took a different approach, challenging the law under the Eighth Amendment instead. "So we took an extremely thorough look and analysis of the law and of the state of play leading up to the suit, and as a result of that we did uncover and identify some theories that some other litigants hadn't pursued," said Simpson Thacher partner Jonathan K. Youngwood, who also worked on the case. The Fifth Circuit's decision is also significant because, in order to rule that permanent disenfranchisement constitutes cruel and unusual punishment, the panel had to find that it constituted a form of punishment in the first place, according to Bruce Reilly, deputy director of the nonprofit Voice of the Experienced and an attorney and former inmate working to restore felon voting rights. While felon disenfranchisement laws have been evaluated — and often upheld — by courts under the 14th Amendment, they have largely evaded Eighth Amendment review since courts generally haven't defined disenfranchisement as punishment, Reilly explained. The Fifth Circuit panel, though, did define disenfranchisement as punishment, relying on the 1870 Readmission Act, which set the requirements for confederate states to be readmitted to the union after the Civil War. The Readmission Act prohibited those states from depriving citizens of the right to vote "except as a punishment," according to the panel. Since the felon disenfranchisement provision in Mississippi's 1890 Constitution was written after the Readmission Act, it could only comply with federal law if disenfranchisement was considered a form of punishment. "Considered in this light, there is clear proof that Section 241 was intended as punishment — indeed, there can be no other permissible intention under the Readmission Act," the panel wrote. "We think that the reasoning and the basis of the Fifth Circuit decision is incredibly sound, and hopefully it will change the trend, especially in other states that do permanently disenfranchise," Gochman said. Restoring Voting Rights and Energizing Advocacy The ruling, if it stands, could restore voting rights to tens of thousands of Mississippians, say experts.Approximately 47,000 Mississippi citizens were convicted of crimes resulting in permanent disenfranchisement between 1994 and 2017, according to Youngwood and Gochman's original complaint. Over 28,000 of those people have completed their sentences but still can't vote. The ruling could also spark similar legal challenges to other states' felon disenfranchisement laws under the Eighth Amendment, according to experts. "There's a lot of enthusiasm following the ruling, and some of my advocacy partners do think that it's a very innovative approach to try the argument that the plaintiffs tried in this case," said Nicole D. Porter, senior director of advocacy at the Sentencing Project. "This case is excellent authority now for other plaintiffs bringing the same type of claim," echoed Gochman. But the opinion is also having an impact outside the courtroom, according to Porter, who said it is energizing activists like her working to end felon disenfranchisement. Legislation doing just that recently passed in New Mexico and Minnesota, and similar bills are pending in Oregon, Illinois, Connecticut and Massachusetts. Those efforts are bolstered by the Fifth Circuit ruling, according to experts. "I've had a lot of enthusiastic conversations over the last couple of weeks with national advocates and also state-based advocates from New Jersey and Louisiana and California who were all very much encouraged by the ruling and wanted to talk about the impact nationally," Porter said. "This decision is a powerful example of how litigation and out-of-court advocacy can be complementary tools," said Berry. Against Precedent and the Constitution But critics say the Fifth Circuit's ruling ignores both the constitution and precedent. State laws concerning when and if convicted felons can vote are so inconsistent that the idea of any national consensus on the issue is meaningless, Circuit Judge Edith H. Jones wrote in a dissenting opinion in the case. "A reasonably clever lawyer could find a dozen ways to divvy up states and find a national consensus against any particular practice," Judge Jones said. States do "vary widely" when it comes to felon voting rights, making the national picture on the issue "entirely confusing," Berry acknowledged. And Section 2 of the 14th Amendment specifically allows felon disenfranchisement as a criminal punishment, according to Judge Jones. That section, which reduces the congressional representation of states that disenfranchise their citizens, contains a notable exception: States can disenfranchise citizens who participate in "rebellion, or other crime," Judge Jones explained. "Yet the majority's interpretation renders the Section 2 proviso meaningless," she said in the dissent. "It is useless for the 14th Amendment to authorize felon disenfranchisement if the practice is made illegal by the Eighth," Judge Jones wrote. This is where Judge Jones' dissent "goes astray," according to Reilly, who said that "just because something is allowable under one provision, doesn't make it necessarily allowable under every provision." But it's not just the Eighth and 14th amendments that would conflict under the majority's interpretation, according to the Mississippi attorney general.The Supreme Court ruled in Robinson v. California that the federal Eighth Amendment applies to states through the due process clause in Section 1 of the 14th Amendment, which bars states from depriving citizens of "life, liberty, or property, without due process of law." But Section 2 of the 14th Amendment allows the disenfranchisement of those convicted of certain crimes, the attorney general's office said in its Aug. 18 petition for en banc rehearing of the ruling. So, the majority's finding requires Section 1 of the 14th Amendment to conflict with Section 2 of the same amendment, the attorney general insisted. "The Supreme Court has signaled that felon disenfranchisement is not punishment, and the Eighth Amendment cannot be distorted to prohibit what the plain language of the Constitution affirmatively acknowledges as legitimate," a spokesperson for the Mississippi attorney general's office told Law360 in a statement. But opponents' biggest critique of the ruling is that taking away convicted felons' right to vote is simply not a form of punishment. Both Judge Jones and the state pointed to the Supreme Court's 1958 ruling in Trop v. Dulles , in which a four-justice plurality found that taking away a bank robber's right to vote constituted "a nonpenal exercise of the power to regulate the franchise." The Second Circuit echoed that finding in 1967 in Green v. Board of Elections of the City of New York . And as recently as April, the Eleventh Circuit ruled that Alabama's felon disenfranchisement law doesn't constitute punishment, Mississippi's attorney general pointed out. The Fifth Circuit panel's majority decision in this case "conflicts with controlling precedent at each turn," the attorney general said. Primed for the High Court There's a good chance the Supreme Court will have the final say on the issue, say experts. Mississippi has asked for en banc rehearing, and the full court could "very easily" overturn the panel's 2-1 ruling. If that happens, the plaintiffs will likely appeal to the justices, according to Reilly. Youngwood and Gochman wouldn't comment on that possibility. "What I can tell you is we'll continue to stick with the case and the plaintiffs until it's reached its conclusion," Youngwood said. At the same time, if an en banc court upholds the majority decision, there's "a strong possibility" the state will appeal to the Supreme Court, according to Berry. The justices may choose not to hear either appeal, of course, given that in June they rejected an appeal of the Fifth Circuit's previous ruling upholding Mississippi's permanent felon disenfranchisement, experts point out. But the uniqueness of the latest ruling, including its reliance on the Eighth Amendment rather than the 14th, and its possible national implications could make it difficult for the justices to turn the case down, according to Reilly. Indeed, he said that the state-by-state inconsistencies in how felon voting rights are handled meant that the justices "need to take it." "I think it would really be hard for them just to ignore it," he added. So it may be a while before plaintiffs like Hopkins, Parker and Kuhn know if they'll actually be able to vote again. But it's something they very much hope to do soon, according to Youngwood. "Our plaintiffs brought this case so that they could regain the right to vote, and they are looking very forward to — for most of them — casting their first ballot in decades," Youngwood said. |
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April 2024
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