The Thicket at State Legislatures

Long Lost Original Light Fixtures Found in Oklahoma Capitol

From the Oklahoma Senate Communications Division:

Nearly one hundred years after beautifully ornate light fixtures were installed in the Senate Chamber, 11 of the original 20 fixtures have been discovered in attic space above the sixth floor of the Capitol. The artifacts were discovered during the ongoing historic restoration of a large conference room on the fifth floor that had been divided up into small offices decades ago. In connection with the project, Senate Information Systems Director John Warren was moving computer cables above the fifth floor ceiling and happened to notice an opening to a long-forgotten part of the attic. That led to the discovery of the fixtures....

The discovery of the sconces comes just one year before the 100th anniversary of the groundbreaking for the Capitol, which was completed in 1917. Over the next several decades, numerous changes were made to the building, with little or no concern about the original architectural designs. Hallways, conference rooms and other spaces were turned into offices. Stained glass was hidden by lower ceilings installed to conceal air conditioning ducts and other modernizations. The original sconces were eventually replaced with fluorescent lighting.

In the late 1980’s, a major historic restoration project was undertaken during the administration of then-governor Henry Bellmon. A mini-grand staircase that had long been covered up and turned into offices, was uncovered and restored to help commemorate the centennial of the Land Run of 1889. Four years later Sen. Charles Ford led a project to restore the Senate Chamber.

“We looked and looked and looked when we restored the chamber in ’93, looking for these fixtures, or at least one of them,” said Ford. The search ended in disappointment....

The States, SCOTUS, and Same-Sex Marriage

By Victor Kessler

The U.S. Supreme Court's decisions on two same-sex marriage cases are rightfully seen by both supporters and opponents as part of a larger debate on the future of same-sex marriage in this country. These cases also reveal a split among the Justices about the federalism implications of the issue and the proper forum for this historic debate.

United States v. Windsor, which struck down the Defense of Marriage Act (DOMA), though nominally decided as an Equal Protection case under the Fifth Amendment, discusses the role of state authority over marriage as a matter “of central relevance” to the ruling. Justice Kennedy’s majority opinion hammers in the traditional deference the federal government has typically shown towards state definitions of marriage. States had always determined who was or could be legally married for the purposes of their own and, with few exceptions until DOMA, federal benefits and programs. DOMA not only redefined marriage for federal purposes, it intruded into an area of traditional state authority and snatched away rights that states had granted to their citizens.

By extending federal benefits to all married couples, Windsor has been hailed as a victory for proponents of same-sex marriage. But in the Court’s reasoning, same-sex marriage is only protected insofar as states choose to support it. If Windsor’s logic prevails, the states, not Congress or the federal courts, will be the primary forum for debate over same-sex marriage in upcoming years.

Hollingsworth v. Perry is more unusual. Chief Justice Roberts, writing for an odd lineup of Justices Scalia, Ginsburg, Breyer, and Kagan, found that the challengers to a federal district court’s decision that invalidated California’s Proposition 8, which banned same-sex marriage, lacked standing to appeal. Normally, a state government will defend its own laws from challenges in the courts. However, state officials declined to defend the ballot initiative outlawing same-sex marriage in the Golden State, so the California Supreme Court unanimously decided that the bill’s citizen sponsors could represent the state’s interest in litigation. The Supreme Court disagreed, holding that the sponsors had no special interest in defending the legislation beyond that of an ordinary citizen, which was insufficient to create a “case” or “controversy” that the high court could hear.

The dissent, written by Justice Kennedy, admonished the majority for ignoring California’s interpretation of its own laws. The point of a ballot initiative system is to allow ordinary citizens to bypass officials with whom they disagree. The California Supreme Court understood that and was not willing to give politicians the backdoor veto of neglecting to defend voter-sponsored initiatives in court. The dissent argued that the state should determine who could or could not represent its interests and that the majority’s ruling undermined a basic principle of state sovereignty in order to avoid a political issue. The dissenting justices would have accepted California’s decision on standing and ruled on the case’s merits. Perry may lead to trouble for ballot-initiative systems in the future, though it will likely be limited to the unusual circumstance where not a single state official is willing to defend a voter-sponsored law.

The cases send mixed messages on federalism. On the one hand, Windsor suggests that the Court will champion state choices with respect to same-sex marriage over federal interference, a line of reasoning that may tip the scales against future judicial efforts to rule on the constitutionality of state decisions, as the Chief Justice points out in his dissent. On the other, Perry lets stand a federal judge’s order declaring a citizen-backed ban on same-sex marriage unconstitutional and contradicts the California Supreme Court’s ruling on state election law. What the two cases have in common is that both push responsibility for ultimately deciding the issue away from the Supreme Court, in Windsor to the states and in Perry back down to the federal trial court. In light of these decisions, only one thing is certain: in the same-sex marriage debate, it will still be up to the states to make the first moves.

For further reading on the same-sex marriage cases and federalism, SCOTUSblog offers an in-depth look.

Victor Kessler is a Legal Intern at the State and Local Legal Center

Recall Attempts on State Legislators Unprecedented in Colorado

By Karen Shanton

Senators Giron and Morse. Photo credit: Yahoo News

A recall petition against Colorado Senator Angela Giron (D-Pueblo) was deemed sufficient on Monday. This follows certification of a similar petition against Senate President John Morse (D-Colorado Springs) last week.

The petitions might not make it to the ballot. Senator Morse’s supporters have filed a protest against the sufficiency ruling, which is slated for a hearing on Thursday. On Tuesday, Senator Giron followed suit.

If they do make the cut, though, the petitions will set up a historic ballot for the Centennial State. Colorado had never even seen an attempt to recall a state legislator before this year so getting the pending recalls on the ballot would be a first for the state. It would also make Colorado just the fifth state in U.S. history to hold two or more state legislative recall elections in a single year and the fourth to trigger recalls for two or more members of the same chamber in one year.

Wisconsin is, of course, the undisputed record-holder on this score. In the two-year period from 2011 to 2012, Wisconsin petitioners gathered enough signatures to put 13 state senators–or almost 40 percent of the chamber’s total membership–on the ballot. Wisconsin’s recalls were prompted by a battle over labor issues, with GOP senators targeted for backing a budget bill that would limit public employee collective bargaining and Democrats in the crosshairs for leaving the state to delay passage of the bill.

Photo credit: Guns.com

Colorado’s recall efforts are similarly policy-driven. Earlier this year, Senators Giron and Morse voted for a gun control package. The recalls are widely acknowledged to be a response to those votes (recall efforts were also launched against two other gun control supporters, Senator Evie Hudak of Westminster and Representative Michael McLachlan of Durango, but those efforts have since fizzled).

Unlike in Wisconsin, the Colorado recall efforts don’t carry the potential for a change in partisan control. John Lehman’s win in Wisconsin in 2012, combined with victories by Democrats Jessica King and Jennifer Shilling in 2011, handed Badger State Democrats a (temporary) Senate majority. With a 20-15 edge in the state Senate, Colorado Democrats will hold the chamber no matter how the pending recalls turn out.

President Obama Announces Climate Action Plan

By Melanie Condon

On an appropriately hot Tuesday in Washington D.C. with temperatures reaching 93 degrees and nary a breeze to be felt, the president unveiled his plan to mitigate the effects of climate change. Environmentalists and industry alike have been waiting since the president’s second term began for the administration to take action on climate change. The detailed strategy includes a number of executive actions that increase partnerships with state, local and tribal governments and focus on cutting carbon emissions, without necessarily requiring congressional action.

The president’s Climate Action Plan breaks down his climate change priorities into three sub-categories:

Cut Carbon Pollution in America

One of the president’s headline efforts in the plan is his goal to limit carbon dioxide pollution from new and existing power plants. A subsequent White House memorandum sent on June 25 to the Environmental Protection Agency (EPA) directed the agency to issue a final rule on carbon pollution standards for both future and existing power plants in a timely manner. The president proposed increasing fuel standards, developing advanced transportation technologies, as well as expanding, to the federal level, state and local government successes in curbing other harmful gaseous emissions such as hydrofluorocarbons and methane.

Prepare the United State for the Impacts of Climate Change

While the majority of the plan focuses on cutting pollutants to stave off any future effects of climate change, the administration also acknowledges the need to build resiliency into our infrastructure systems. The plan institutes a short-term State, Local and Tribal Leaders Task Force on Climate Preparedness that will provide recommendations to the federal government on modernizing grant and loan programs, removing impediments to resilient investments and developing tools to better serve state and local communities as they deal with climate change impacts. The president also called for disaster-resilience standards that will work to improve buildings and U.S. infrastructure to protect against disasters.

Efforts to Address Global Climate Change

The president’s plan also called for enhancing multilateral engagements with the major economic powers of the world, expanding cooperation with emerging economies, and working to negotiate global free trade for environmental services and goods. Additionally, the president called for an end to U.S. government support of financing the building of coal power plants overseas.

 Some additional initiatives outlined in the president’s plan include:

• Encouraging a global market for natural gas by launching the Unconventional Gas Technical Engagement Program that will share best practices on dealing with water management, methane emissions and air quality
• Promoting solar and wind energy on federal lands and subsidized housing
• Tightening vehicle emissions standards
• Offering incentives for renewable energy
• Pushing for international climate talks
• Calling for the elimination of U.S. fossil fuel tax subsidies
• Promoting safe and secure nuclear power throughout the world
• Upgrading the electrical grid to be more energy efficient and reliable

While the majority of the president’s initiatives require federal action rather than legislation, the president’s budget to pay for said initiatives is still subject to the approval of Congress.

Following the president’s speech, the Chair of the White House Council on Environmental Quality, Nancy Sutely, met with state and local stakeholders to gauge states’ reactions and answer questions on the initiatives outlined in the plan. The White House is eager to work with the states in implementing these new directives, though certain industries and states are sure to be less enthusiastic than others.

 Melanie Condon is a policy associate for the Agriculture, Energy, Environment and Transportation Committee in NCSL’s Washington, D.C. office.

The U.S. Senate Without the 17th Amendment

By Karl Kurtz

Jeopardy quiz:To gain the majority in the Illinois General Assembly in 1858. Read below the jump to find the question.

If the 17th Amendment had not been passed and U.S. senators were still chosen by state legislatures, the Senate likely would have been tied, 50-50, at the start of the current (113th) Congress. After the death of New Jersey Sen. Frank Lautenberg (D) last month and Gov. Chris Christie's appointment of Jeff Chiesa (R) to replace him, Republicans would have a 51-49 margin in the Senate.

I was inspired to make this calculation by this year's 100th anniversary of the 17th Amendment, passed by the Congress in May 1912 and adopted by the states, May 31, 1913. This Amendment to the Constitution took away the power of state legislatures to choose U.S. senators and substituted direct elections by popular vote.

How did I make this hypothetical count? It's not enough to simply count the number of legislatures controlled by each party at one point in time, as the National Constitution Center did in a blog posting that was reproduced in Yahoo News. That method produced this erroneous calculation:

Along strict party lines, the GOP would have 58 seats in the U.S. Senate, with 41 seats for the Democrats, and one seat deadlocked. That would put the Republicans within two votes of a filibuster-proof 60-vote majority.

This count is wrong for the simple reason that U.S. Senate elections are elected in three classes, ensuring that one-third of the members are elected every two years. Thus, it is necessary to look back at legislative majorities at the time that each senator was elected. It's also important to know that the state legislatures' election of senators took place in joint assembly, meaning that the majority of the total membership, regardless of chamber, prevailed.

So let's go through the calculations. First, the lineup of popularly elected senators by class at the start of the 113th Congress (before Sen. Lautenberg's death and counting the two independents as Democrats):

Elected U.S. Senators (by Class)

And now the lineup if the 17th Amendment had not been enacted:

U.S. Senators if Elected by State Legislatures (by Class) 

Note that there was no net difference in the 2008 class between direct and indirect elections in the number of Democrats and Republican (although the next table shows that eight directly elected senators--four Ds and four Rs--would likely not have been chosen under indirect elections). In 2010 Democrats would have had a net gain of four seats under state legislative elections compared to direct popular vote. But in 2012, Republicans would have picked up nine more seats in the Senate under indirect elections than they did under direct elections.

There are two important assumptions in this count of senators if chosen indirectly by state legislatures. The first is that state legislatures would vote along party lines to select senators of the majority party. Given the finding by Wendy J. Schiller and Charles Stewart III in a recent Brookings monograph that 98 percent of the senators elected between 1871 and 1913 were from the party that controlled the majority in the state legislature, this is a reasonable assumption.

Supreme Court Ruling on Voting Rights Act Explained: Shelby County v. Holder

By Susan Parnas Frederick

The U.S. Supreme Court handed down a 5-4 decision in the closely-watched Voting Rights Act (VRA) case of Shelby v. Holder on Tuesday.

Chief Justice Roberts was joined by Justices Scalia, Kennedy, Thomas and Alito to rule that Section 4 of the VRA is unconstitutional. Justice Ginsberg led the dissent and was joined by Justices Breyer, Sotomayor and Kagan. The Court did not rule on the constitutionality of Section 5 of the VRA. 

Section 4 of the VRA defines which jurisdictions are to be covered under the VRA based on two main criteria: (1) whether the jurisdiction uses discriminatory tests as a prerequisite to voting, and (2) whether it has low voter registration and turnout rates. If a jurisdiction exhibits both criteria, it is covered under Section 5 of the VRA. This section requires covered jurisdictions to submit to the federal government (either the U.S. Department of Justice, Office of Civil Rights, or to a three judge panel in federal court) any proposed changes to its voting laws or procedures for “preclearance.” 

The Court acknowledged that voter discrimination unquestionably still exists in the United States, but determined that the criteria under VRA Section 4, virtually unchanged since the 1960s, is no longer appropriate today. In reaching this conclusion, the Court noted that at the time of enactment, the VRA was intended to be temporary in nature and was set to expire after five years, but was reauthorized for longer periods of time.

The Court then stated that since the date of enactment, the nation has made great strides in eliminating discriminatory practices at the polling place. The Court pointed out that Congress could have used this positive data during any of the VRA’s reauthorizations to modify the coverage provisions of Section 4 to reflect current conditions, but did not do so. 

The Court also focused on the fact that the VRA is an extraordinary piece of legislation with great federalism implications because it takes away the notion of equal sovereignty for states. Some states can pass laws immediately while covered states can only pass the same law by obtaining Section 5 preclearance. The Court concluded that the federalism impact coupled with Congress’ inaction in revising the standards in the VRA’s Section 4 for preclearance required it to strike down Section 4 as unconstitutional. The Court invited Congress to re-draft Section 4 based on current conditions.

Susan Parnas Frederick is Senior Federal Affairs Counsel for NCSL and works in NCSL’s Washington, D.C. office. 

Supreme Court Rules on Affirmative Action Case, Fisher v. University of Texas at Austin

 By Susan Parnas Frederick

In a straightforward opinion, the U.S. Supreme Court ruled that the University of Texas’ affirmative action program should be revisited by the Fifth Circuit Court of Appeals so that it can apply the correct legal standard. The opinion was a 7-1 decision written by Justice Kennedy.  Justice Kagan abstained, Justices Scalia and Thomas concurred, and Justice Ginsburg dissented. 

At the center of the case was Abigail Fisher, a white applicant who was denied admission to the University of Texas at Austin. She sued the school, alleging that the University’s use of race in admission decisions violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.  The Court did not answer the ultimate question in this case – whether the University’s affirmative action policies violated the Constitution, but rather held that the lower court did not use the correct legal standard in deciding that the University’s policies passed constitutional muster. The Supreme Court instead remanded the case back to the Fifth Circuit Court of Appeals so that the correct legal standard –strict scrutiny– could be applied. 

To pass strict scrutiny, the University of Texas must show two things:  First, that its affirmative action policy of achieving diversity in higher education is a compelling governmental interest.  If this prong of strict scrutiny is met, then the Fifth Circuit must determine whether the University’s means chosen to attain diversity are narrowly tailored to the University’s diversity goal. This case will live on to see another day back in the Fifth Circuit.

Susan Parnas Frederick is Senior Federal Affairs Counsel for NCSL and works in NCSL’s Washington, D.C. office. 

Trials and Tribulations of Election Reporting

By Mary Winter

Image: iWitness KTVN 2 News

The Democracy Fund backed an initiative to improve reporting by the media on the 2012 election. It funded the Center for Public Integrity and the Columbia Journalism Review to support reporters and editors to strengthen election coverage. CIRCLE (the Center for Information & Information on Civic Learning and Engagement) recently conducted an evaluation of this project and summarized the results in a blog post:

CIRCLE's interviews with 97 reporters who participated suggest the following conclusions:

• Because of staffing cuts and turnover in the profession, the news media struggles to cover politics. They are aware of their difficult situation and generally grateful for assistance.
• Providing high-quality information and constructive criticism does change reporters' behavior.
• Professionals in the news media are understandably somewhat sensitive about being given advice unless the person offering it recognizes the practical limitations they face.
• They are also concerned about being manipulated by ostensibly nonpartisan organizations that they fear may have partisan objectives.

Of particular interest to The Thicket readers was this finding:

Local coverage emerged as an area that needs special attention and support. As a reporter told us, "One of the faults with journalism coverage and journalism criticism, in general, is that it tends to focus on the big national players and the big national issues. And as we've seen a number of major publications pull back on local coverage … it's become all the more important that we have some sort of press criticism function taking care of local media and engaging with local media. And I think that a lot of reporters working locally and regionally would benefit from that sort of attention and that sort of engagement as well."

Before I joined NCSL as assistant editor of State Legislatures magazine, I was one of the reporters who participated in the project when I worked for Columbia Journalism Review as Colorado correspondent for the Swing State Project, so I read the evaluation with interest. My assignment was to monitor election coverage by print, online and TV media in Colorado, critiquing local reports that were particularly enterprising or illuminating, or illustrated how doggedness often pays off in reporting election pieces. On the other end, I also criticized stories I found particularly imbalanced, underreported or inaccurate, and I took outlets to task for missed opportunities and pack journalism. I also wrote pieces on resources and online tools for reporters covering elections such as Followthemoney.org, Opensecrets.org and the Sunlight Foundation.

The CIRCLE evaluation appears to be a good snapshot of the mood in the media world, but it didn't plow any new ground for me (although it was troublesome to read that press releases are being reported "word for word").  Many media outlets are no longer willing to (or cannot) spend the money it takes to get in-depth political reporting, and there is frustration all around.  Talented journalists and editors have willing spirits but they're overwhelmed by demands and lack of resources. 

Implications for Other States of the Supreme Court’s Decision on Arizona Voting Rights Case

By Wendy Underhill

Yesterday the U.S. Supreme Court struck down an Arizona requirement, enacted in 2004, that new voters show proof of citizenship at the time of registration. The ruling may impact other states as well: Alabama, Georgia, Kansas and Tennessee also have laws on the books that require proof of citizenship, although the details vary.

This is a perennial source of legislation. This year, at least Massachusetts, Missouri, Nevada, Oklahoma, Oregon (H 2364 and H 3428) South Carolina, Texas and Virginia considered bills. (None has been enacted yet.)

The Supreme Court did not weigh in on whether non-citizens should be on voter rolls; the law is clear on this point-- only citizens can vote. And it didn't address whether the proof of citizenship requirement is an undue burden on citizens as they become voters. Instead, the opinion "drew a distinction between Congress's broad power to set the manner of elections and its lack of power to set voter qualifications (such as residency requirements), which is an issue left to the states," according to Rick Hasen, an elections law expert. The ruling spells it all out.

In no way, though, does the ruling change the fact that states have an obvious interest in ensuring that only citizens get on the voter rolls. We already see other state approaches developing.

For instance, some states are beginning to compare their voter rolls to various data lists that may shed light on citizenship. (The U.S. has no comprehensive list of citizens.) Colorado and Florida each did this before the 2012 general election. In both cases, they compared their lists to the Systematic Alien Verification for Entitlements (SAVE), from the Department of Homeland Security. While these attempts may not have netted many noncitizens who were attempting to vote (and sparked controversy in Florida), they can be viewed as pilot efforts that can be improved on in the future.

As for legislation, at least two states have bills in the hopper this year that approach the citizenship question without following the Arizona model. In California, AB 301 would require that state courts transmit to state election authorities information about citizenship gained through the juror selection process. And, in Washington, SB 5380 would have required the state to determine citizenship through the driver's license process and provide that information to the secretary of state for voter registration purposes. The Washington bill did not pass.

Immigration Reform: “Now is the Time to Get it Done”

By Ann Morse

President Obama invited a wide range of stakeholders to the White House on Tuesday as the U.S. Senate took up S.744, the first comprehensive immigration reform bill the Senate has considered since 2007. The Senate, in a strong showing of bipartisan support, voted 82-15 to proceed. If enacted, this would be the first overhaul of the nation’s immigration laws since 1986.

At the event in the White House East Room were two of NCSL’s legislative leaders, Senator Mo Denis (D), majority leader of Nevada, and Senator Curt Bramble (R), Senate president pro tem of Utah, who serve on NCSL’s Task Force on Immigration and the States. The Senators were accompanied by NCSL immigration policy staff Sheri Steisel and Ann Morse.

 

Senator Curt Bramble (R), Senate president pro tem of Utah, left, and Senator Mo Denis (D), majority leader of Nevada

The president expressed strong support for the bipartisan bill, noting that it includes increased spending for border enforcement and more enforcement at the workplace while encouraging talented workers and students to remain in the U.S. Obama also mentioned the bill’s earned path to citizenship for the 11 million unauthorized immigrants already here.

 

“Fixing the nation’s broken immigration system is an economic, national security, and moral imperative,” said Obama. “Now, this bill isn’t perfect. It’s a compromise. And going forward, nobody is going to get everything that they want - not Democrats, not Republicans, not me. But this is a bill that’s largely consistent with the principles that I and the people on this stage have laid out for common-sense reform.”

While there are state concerns that need to be addressed in the final legislation,  Denis and Bramble stressed that the current immigration system is broken, and that action at the federal level is long overdue.

“Now is the time for the country to come together and for members of both the House and Senate to be statesmen,” said Bramble. “This is a challenge of our time, and doing nothing is simply no longer an option.”

Denis concurred: “I have been tremendously impressed by some on both sides of the aisle here in Washington that have been working together to get this important legislation passed.”

Also participating in the event was former Minnesota State Senator Mee Moua, the first Hmong state legislator in the country. Moua is now executive director of the Asian American Justice Center. She applauded the work of NCSL, and the leadership of senators Bramble and Denis in working across the aisle to advance immigration reform.

A number of Cabinet secretaries were in attendance, notably Homeland Security Secretary Janet Napolitano, Health and Human Services Secretary Kathleen Sebelius, Commerce Secretary-nominee Penny Pritzker and Attorney General Eric Holder.

Speaking with the Attorney General after the event, Bramble took the opportunity to reiterate Utah’s case for a federal waiver providing legal recognition of immigrant workers (part of Utah’s immigration reform law of 2011).

Others invited to the event included business and labor leaders, Republican and Democratic elected officials, law enforcement officers and faith and civil rights leaders.

Ann Morse is the director of NCSL’s Immigrant Policy Project, and works in NCSL’s Washington, D.C. office.