The Thicket at State Legislatures

Delegate Jameson Testifies on Nuclear Waste Storage and Disposal before U.S. Senate Committee

By Melanie Condon

Delegate Sally Young Jameson of Maryland testifying before the U.S. Senate Energy and Natural Resources Committee.

On July 30, Delegate Sally Young Jameson of Maryland testified on behalf of NCSL before the U.S. Senate Energy and Natural Resources Committee to discuss the recently introduced Nuclear Waste Administration Act of 2013 (NWAA), S. 1240. Delegate Jameson, whose Maryland district borders the Calvert Cliffs Nuclear Power Plant, has long been involved with issues of nuclear waste disposal and storage, and has twice provided testimony to the Blue Ribbon Commission on America’s Nuclear Future.

Delegate Jameson’s testimony applauded the bi-partisan work of Senators Wyden, Murkowski, Feinstein and Alexander to move comprehensive policy on the permanent disposal of spent nuclear fuel forward. In her testimony, Delegate Jameson noted the consent-based approach with state and local governments throughout the disposal siting processes.

Although the process has generally been positive, Jameson pointed out how important it is for state legislatures to be involved. Specifically, Delegate Jameson suggested adding the phrase “presiding officer of each legislative chamber” to the bill’s current language of “Governor or duly authorized official of the state.”

Also testifying before the Committee was newly confirmed U.S. Secretary of Energy Ernest Moniz. Secretary Moniz noted that, in his opinion, one of the most important pieces of the NWAA is the consent-based approach of working with state, local and tribal governments throughout the waste disposal life-cycle, saying that the legislation wouldn’t be workable without state consent.

The NCSL Natural Resources and Infrastructure Committee will be holding a session, moderated by Delegate Jameson, on the future of the NWAA and nuclear waste storage at the upcoming Legislative Summit in Atlanta on August 13.

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

Vital Statistics on Congress Available Online

By Karl Kurtz

Anyone who has ever done comparative research on American legislatures, especially the Congress, has relied on the "Vital Statistics on Congress" published every two years by Thomas E. Mann of the Brooking Institution, Norman Ornstein of AEI and Michael Malbin of the Campaign Finance Institute. That trio, along with Andrew Rugg, have now released a free, online version of this invaluable volume on the Brookings website. Here's an excerpt from their announcement, followed by a short video with highlights of this edition:

Vital Statistics’ purpose has always been to collect useful data on our first branch of government – in the election and composition of its membership as well as its formal procedure, such as the use of the filibuster, informal norms, party structure and staff. This dataset also documents the increasing polarization of Congress and the demographics of those who serve in the U.S. Senate and U.S. House of Representatives.

Over the years, we’ve received innumerable requests for updated versions of the chapters in between printings of the published book. We heard you and have now changed the way we present Vital Statistics’ data: We’ve put the book online, making each chapter available online as a collection of spreadsheets for download at no cost. This new interactive format allows us to update and correct the data more frequently and make it accessible to anyone interested in learning about Congress. We’ve formatted the tables so that each is both printer-friendly and read-writable.

This is a great contribution to legislative studies. Thanks, Tom, Norm and Mike!

Clever Political Ads

By Karl Kurtz

Sabato's Crystal Ball features "10 classic political ads that 2014 candidates should (or shouldn’t) copy". All of them are clever and engaging. A few were successful. My favorites (maintaining strict multi-partisanship) are "Fast Paced Paul" Wellstone's 1990 insurgent campaign ad against incumbent U.S. Sen. Rudy Boschwitz (R-Minn.), Republican challenger Florence Sullivan's ad depicting U.S. Sen. Daniel Patrick Moynihan riding a fence as "The Great Straddler" in 1982, and independent Jesse Ventura's "Action Figure" making fun of his own background as a professional wrestler in the 1998 Minnesota governor's race.

The Business of Job Creation

By Qiana Torres Flores

While many remain unemployed, one job-creating strategy lawmakers are considering is microenterprise development.  Of the nation’s businesses, 88 percent are considered microenterprises—businesses with up to four employees.  These smaller businesses create an average of 900,000 new jobs every year. 

Microenterprise development programs assist aspiring business owners who can’t access mainstream bank loans by helping them draw up a solid business plan, training them on how to run a business, and, in some cases, providing start-up capital.  There are at least 21 states with laws that foster microenterprise development.

In this edition of the Buzz at State Legislatures (6:12), Qiana Torres Flores of the National Conference of State Legislatures (NCSL) Working Families Project talks about the results states have seen in the capability of these programs to create jobs. 

Microenterprise.mp3

States that Require a Constitutional Amendment to Pass Photo Voter ID

By Karen Shanton

Credit: examiner.com

In response to my recent post on state constitutional challenges to voter ID laws, ElectionSmith's Dan Smith raised an interesting question: Which states would require a constitutional amendment to enact a photo voter ID requirement? 

The answer to this question depends a bit on what we mean by 'require.' Consider the following pair of cases:

• In 2006, the Missouri General Assembly passed a photo voter ID law but the state Supreme Court struck it down as unconstitutional. The General Assembly tried (ultimately unsuccessfully) to supersede this ruling by putting a photo ID requirement on the ballot as a constitutional amendment.
• In 2011, the Minnesota Legislature passed a photo voter ID bill but Governor Mark Dayton vetoed it. In an (ultimately unsuccessful) effort to sidestep the veto, the Legislature sent the ID requirement to the 2012 ballot as a constitutional amendment.

Arguably, both of these are cases in which a constitutional amendment would be required to enact a photo ID requirement. After all, in both, the route to enacting the requirement as a statute is blocked.

However, the nature of the obstacle in each case is different. In Missouri, the obstacle is legal. Once Missouri's ID requirement was found unconstitutional, it couldn't be enacted as a statute (at least, not in its existing form); the General Assembly couldn't simply re-pass the same bill. Even if the governor and legislature both overwhelmingly favored the ID requirement, they couldn't enact it without a change to the state constitution.

In Minnesota, on the other hand, the obstacle is political. The 2012 voter ID amendment was an effort to clear the political hurdle of the governor's veto. If ID supporters in the Legislature had had the numbers to override the veto (or the governor had changed his mind), the subject of a constitutional amendment might never have come up.

So, there are a couple of ways to interpret the question we started with. One is as a question about legal necessity: Which states would legally require a constitutional amendment to enact a photo voter ID amendment? As of this writing, Missouri is the only state that has struck down a photo voter ID requirement under the state constitution in a court of final jurisdiction. But state constitutional challenges to ID laws are pending in Kansas, Pennsylvania, Tennessee and Wisconsin (1,2). If any of these challenges succeeds, an amendment will presumably be legally required for the state to enact the challenged requirement. And the state will join Missouri on the list of answers to the first question.

Another way to read the question is as a question about political necessity: Which states would politically require a constitutional amendment to enact a photo voter ID amendment? Here, the answer isn't quite as easy to pin down. Political obstacles can come and go with shifts in the political landscape–and the political necessity of a constitutional amendment can come and go with them. Take, for example, the case of North Carolina. Former North Carolina Governor Bev Perdue vetoed an ID bill when she was in office. Her successor, Governor Pat McCrory, on the other hand, supports photo voter ID and is expected to sign an ID bill if it reaches his desk. The changeover in the North Carolina governor's mansion likely eliminated the veto threat to the photo ID requirement and, with it, the political need for an amendment.

Similar changes–or even just changes of heart–in the governor's mansion or legislature could similarly eliminate (or create) political obstacles to photo ID in other states. So, unlike the answer to the first, legal version of the question, the answer to this second, political version depends pretty directly on turns in the political tides.

Federal Law and Family Drama in Adoptive Couple v. Baby Girl

By Victor Kessler

A man and woman fall in love. They get engaged and start planning their wedding. The woman discovers she’s pregnant; she tells her fiancée, but it tears apart their relationship. He won’t support her financially until after the wedding, she breaks up with him. Months later, she texts him asking for child support for their daughter. He texts back that he would rather give up his parental rights instead.

Poor and alone, the soon-to-be mother looks into adoption. She meets a nice couple from South Carolina who agree to take care of the baby girl. They support the mother during her pregnancy and are in the delivery room when the time comes. The adoptive father even cuts the umbilical cord. For four months, the couple looks after the baby, allowing the mother to visit her child whenever she likes. Then the biological father returns, looking to take custody of his daughter. A court battle ensues, and at the age of two the little girl meets her dad for the first time after the family court awards him custody. The case makes it all the way up to the Supreme Court.

It may sound like a soap opera, but Adoptive Couple v. Baby Girl is a real-life drama with serious implications for the family and thousands like them nationwide. The legal issue before the Court revolves around the Indian Child Welfare Act of 1978 (ICWA), which Congress passed to combat abusive child welfare practices that were forcibly breaking up Indian families and placing the children into foster care in non-Indian homes. The ICWA sets higher standards for terminating the rights of an Indian parent than states typically require under their own domestic laws. Because the father in this case is a member of the Cherokee Tribe, he was able to contest the adoption under the ICWA. The South Carolina Supreme Court ruled that the federal law applied and affirmed the family court’s award of custody to the father. But for the application of the ICWA, the adoption would have likely gone through and the little girl would have stayed with her adoptive parents.

The Supreme Court, in an opinion authored by Justice Alito, overturned South Carolina’s ruling. According to the Court, the ICWA was designed to prevent the removal of an Indian child from her family, not to create rights in a parent who had never had legal or physical custody of a child. Likewise, the majority decided that a provision of the ICWA requiring that efforts be made “to prevent the breakup of the Indian family” before terminating parental rights does not apply where the “breakup” happened long before the child’s birth. Justice Alito argued that it would be “unusual” to give custody to a father who had abandoned his child before her birth just because he happened to be an Indian, when state law would normally side with the mother and the adoptive parents. The dissenters express concern that the ruling will adversely affect all Indian parents who have never had formal custody of their children, even those who are involved in their offspring’s lives and who provide financial support to their families.

Ultimately, this case restricts the operation of the ICWA, a federal statute that sets a uniform standard to govern adoptions of Indian children nationwide. The Court’s ruling swaps out national uniform treatment of Indian parents under the ICWA for uniform treatment of non-custodial parents, Indian and non-Indian alike, under state law. While the federal government typically has jurisdiction over Indian affairs, this tips the scales back towards the states in an area where they have traditionally exercised almost exclusive authority, family law and the regulation of domestic life. As for the little girl, she’ll stay with her biological father while the South Carolina Supreme Court hears the case one more time.

Victor Kessler is the Legal Intern at the State and Local Legal Center in Washington, D.C.

 

Alan Rosenthal, 1932-2013

By Karl Kurtz

"The field of state politics lost a giant." So said University of Illinois Springfield Prof. Chris Mooney upon learning of the death last night of Rutgers University Prof. Alan Rosenthal. Here's an excerpt from a lengthy and informative article about Rosenthal in The Star Ledger today:

Alan Rosenthal, a Rutgers University political science professor whose quiet demeanor masked his far-reaching influence on government in New Jersey and beyond, has died.

Rosenthal, 81, succumbed to cancer Tuesday at his Princeton home.

Although most recently known for casting the deciding vote two years ago on a map that will help decide the state’s Senate and Assembly elections for the next decade, Rosenthal’s most enduring legacy is helping to build state Legislatures – including New Jersey’s — into more powerful branches of government that rival the governor and judiciary.

“He had more influence nationally over state legislatures and their operations in the last 40 or 45 years than anybody else in the country," said William Pound, executive director of the National Conference of State Legislatures. "There’s no question about it."

But that influence did not feed into ego, according to Raymond Bateman, a former senate president who knew Rosenthal since the 1960s.

"He was a self-effacing guy. He never worked to get in the spotlight, but he always did his work well," Bateman said. "Alan was in the vanguard of people who were really trying to make the Legislature better... When Alan talked about legislatures, legislators listened."

Look for a full-length tribute to Alan Rosenthal in the July-August issue of State Legislatures magazine. The articles in that tribute touch not only on Rosenthal's extraordinary contributions to the study of state politics but also his far-reaching impact on strengthening the legislative branch of government across the nation, his leadership of efforts to improve public understanding of representative democracy and his commitment and support to NCSL and other national organizations.

As part of the tribute, I solicited testimonials from 66 current and former legislators, staff, governors, lobbyists, students and political scientists who have known Alan well. Remarkably, 37 of these highly placed and busy people responded with  comments about his effect on their lives. For example, former Wyoming U.S. Senator Alan Simpson said:

Alan Rosenthal shaped my legislative life. We first met when I was a young Wyoming state legislator. Here was this amazing, creative, inspiring, warm, wise and witty man. He became my mentor as to how to make legislating work. He was a game changer for me. My life is richer for having shared a portion of it with him. I consider him to be one of the greatest influences in my life as a legislator. There have been many other influential people in other areas of my life, but he won the prize in that field. He was “The Wizard” in my mind.

Simpson's comments, along with 36 others, can be found in an online supplement to the July-August issue of State Legislatures magazine.

I have known Alan for more than 40 years as mentor, collaborator and good friend. Our once a month or so hour-long phone conversations--lively dialogues ranging across American state politics, civic education and life in general--have been a highlight and staple of my life for many years. I have missed his energy and ideas over the last several months as he has been in decline with his terrible cancer. He is irreplaceable. 

7/12/03 addendum: See the New York Times and NPR obituaries.

Supreme Court Decides Takings Case

By Lisa Soronen

In a bright media glare during its last week in session at the end of June, the Supreme Court issued rulings in two same-sex marriage cases, struck down Section 4 of the Voting Rights Act, and issued a ruling regarding affirmative action in universities.  More in the shadows, the Supreme Court also issued its third ruling of the term involving takings.  The State and Local Legal Center (SLLC) filed an amicus brief, which NCSL signed onto, in this case.     

In Koontz v. St. Johns River Water Management District the Supreme Court held 5-4 that there must be a “nexus” and “rough proportionality” between the government’s conditions for issuing a land-use permit and the effects of the proposed development, even when the government denies the permit and the demand is for money. 

Mr. Koontz sought permits to develop a portion of wetlands that he owned in Florida.  St. Johns River Water Management District told Koontz he could proceed with the development if he would reduce its impact or, alternatively, pay for improvements on District-owned property several miles away.  Koontz refused, was denied a permit, and sued, claiming his property was taken without just compensation. 

In two previous Supreme Court cases, Nollan and Dolan, the Court held that the government may condition approval of a permit on the dedication of property to the public as long as there is a “nexus” and “rough proportionality” between the property demanded and the social cost of the applicant’s proposal.  The Florida Supreme Court did not apply Nollan and Dolan for two reasons.  First, the District had denied the application because Koontz refused to make a concession rather than issuing the permit subject to conditions, and so had not “taken” anything.  Second, the District requested money instead of an interest in land. 

The Supreme Court reversed the Florida Supreme Court and applied Nollan and Dolan to both permit denials and demands for money.  All nine Justices agreed that Nollan and Dolan should apply whether or not the permit is ultimately issued.   According to the Court, Nollan and Dolan reflect the reality that the government may abuse the permitting process to coerce people into giving up land by denying a permit worth far more than the property the government wants to take.  At the same time, land uses can impose social costs that land dedications can offset.  Five Justices agreed that Nollan and Dolan should apply to monetary conditions to avoid the government demanding “extortionate” amounts of money in exchange for a permit.  The dissenting Justices were sympathetic to the argument in the SLLC’s amicus brief that there is no principled way to distinguish between demands for money in the land use context and taxes.

In a New York Times Op-Ed SLLC brief writer and University of Vermont law Prof. John Echeverria writes that this case “creates a perverse incentive for municipal governments to reject applications from developers rather than attempt to negotiate project designs that might advance both public and private goals — and it makes it hard for communities to get property owners to pay to mitigate any environmental damage they may cause.”

Lisa Soronen is the executive director of the State and Local Legal Center in Washington, D.C.

Voter ID in the States: Possible Obstacles Post-Shelby

By Karen Shanton

Within hours of the U.S. Supreme Court’s ruling in Shelby County v. Holder, five states that were previously covered (in part or in full) by Section 5 of the Voting Rights Act (VRA) announced plans to proceed with pending voter ID legislation.

In North Carolina, the chair of the Senate Rules Committee said that his chamber would take up an ID bill this week. Officials in Alabama, Mississippi, Texas and Virginia indicated that they would move forward with implementing pending ID laws. (Another former Section 5 state, South Carolina, had already had its new voter ID law precleared for 2013 before the Court handed down its ruling.)

However, the path to voter ID in these states might not be completely clear. The Court struck down Section 4’s coverage formula in Shelby but left the rest of the VRA intact. That leaves at least three scenarios in which the VRA could continue to pose an obstacle to ID laws:

1. The U.S. Congress revisits Section 4: Though political observers consider it unlikely, Congress could revise the coverage formula in Section 4 to address the Court’s concerns. Because Section 5 was not directly affected by the Court’s ruling, jurisdictions covered by the newly-revised formula would be subject to its preclearance requirement.
2. Action is brought under Section 2: Section 2 of the VRA, which applies to all states, is a general prohibition on discriminatory voting practices and procedures. As has already happened in Texas, ID opponents could bring challenges to voter ID legislation under Section 2.
3. Jurisdictions are ‘bailed in’ under Section 3: Under Section 3 of the VRA, jurisdictions that are found to violate the Fourteenth or Fifteenth Amendment of the U.S. Constitution can be ‘bailed in’ to federal oversight. Once bailed in, a jurisdiction must seek preclearance for specified types of election law changes until a specified sunset date.

There’s also another possible obstacle to ID laws: the state constitution.

State constitutions typically have equal protection and due process clauses that parallel clauses in the Fourteenth Amendment of the U.S. Constitution. Many also provide robust protections for the franchise, up to and including an affirmative guarantee of the right to vote.

These types of provisions have formed the basis for legal scrutiny of voter ID laws in eight states (Georgia, Indiana, Kansas, Michigan, Missouri, Pennsylvania, Tennessee and Wisconsin 1, 2) – and could prompt similar suits in some of the former Section 5 states.

The prospects for such challenges depend on a number of variables, including the:

• Wording of the state constitution: A state constitutional challenge based on the right to vote succeeded in Missouri, where the constitution explicitly guards the franchise, but was rejected in Michigan, which offers more indirect protection of political rights. As this suggests, state constitutional challenges will fare better in states with robust constitutional guarantees of equal protection under the law, due process and/or suffrage than states with weaker constitutional safeguards.
• State courts’ approach to constitutional analysis: State courts have three options for interpreting constitutional provisions about individual rights: (1) a lockstep approach that yokes state law to federal law, (2) a primacy approach that prioritizes state law and (3) an interstitial approach that starts with federal law then checks state law for more expansive protections. Given the U.S. Supreme Court’s 2008 ruling upholding Indiana’s voter ID law (Crawford v. Marion County Election Board) and the fact that state-level protections for the franchise are often more robust than federal protections, state constitutional challenges to voter ID laws face better odds in courts that take a primacy or interstitial approach.
• Details of the challenged ID law: Some ID laws count expired IDs as acceptable voter identification while others accept only valid IDs. Some permit voters to provide affidavits attesting to their identity instead of an ID card while others don’t. Laws with greater flexibility are more likely than restrictive laws to survive legal scrutiny.
• Evidence for a constitutional violation: At the end of May, a Wisconsin appellate court lifted a lower court’s injunction on the state’s voter ID law. However, the court hinted that the outcome might have been different if the plaintiffs had made a more persuasive case that the law would be unreasonably burdensome. This illustrates the important, if unsurprising, point that a strong evidential record will bolster plaintiffs’ chances.

The right combination of these variables has to be in place for a state constitutional challenge to win out so state constitutional suits are far from guaranteed to succeed. Still, they provide ID opponents with an additional possible avenue for action–and ID supporters with another possible obstacle. So, as they map out their moves post-Shelby, strategists on both sides of this debate may want to take a closer look at their state constitutions.

Karen Shanton is a legislative studies specialist at NCSL and a public fellow of the American Council of Learned Societies.