Category Archives: US Courts

State Court influences elections?

Not sure if this is a good thing or not.

A panel of state-court judges struck down North Carolina’s legislative districts Tuesday, ruling that Republicans improperly gerrymandered state voting lines to provide an enduring political majority for the GOP.

The case highlights the new legal playbook for critics of gerrymandering after the U.S. Supreme Court ruled 5-4 in June that federal judges have no authority to place limits on the drawing of voting maps for partisan gain. That decision, written by Chief Justice John Roberts, left open the ability of state courts to rule on partisan gerrymanders under state constitutions, and that was the basis for Tuesday’s decision.

A three-judge Superior Court panel based in Wake County found that a Republican legislative majority in 2017 drew state district lines with “surgical precision” to dilute the strength of Democratic voters and perpetuate GOP power.

“The effect of these carefully crafted partisan maps is that, in all but the most unusual election scenarios, the Republican party will control a majority of both chambers of the General Assembly,” the court wrote.

The decision relied heavily on a provision of the North Carolina Constitution that guarantees free elections. That provision provides “that all elections must be conducted freely and honestly to ascertain, fairly and truthfully, the will of the people,” the court said.

Some 30 states have a constitutional requirement for free elections, according to the National Conference of State Legislatures. The Pennsylvania Supreme Court cited its own free-elections clause last year when it invalidated the state’s congressional map as a Republican gerrymander. The court imposed a new

map that improved Democrats’ electoral prospects.

The North Carolina panel on Tuesday gave the Republican majority two weeks to draw a new map for the 2020 election and barred the Legislature from relying on partisan considerations and election- results data.

State Senate Leader Phil Berger, a Republican, criticized the ruling and accused Democrats of mounting a campaign to use state courts to “game the redistricting process.” Nevertheless, he said Republicans wouldn’t appeal and instead would comply “and move forward with adoption of a nonpartisan map.”

“Nearly a decade of relentless litigation has strained the legitimacy of this state’s institutions, and the relationship between its leaders, to the breaking point,” Mr. Berger said. “It’s time to move on.”

Advocacy group Common Cause, one of the plaintiffs that challenged the Republican map, called the ruling a historic victory that “joins a growing list of victories in the fight to end gerrymandering nationwide.”

The U.S. Supreme Court ruling from June involved cases from North Carolina and from Maryland, where Democrats had drawn the map. The decision split the court along ideological lines, with the court’s conservative majority concluding that federal courts had no constitutional authority to reallocate political power between the two major political parties and no legal standards for deciding how much partisanship is too much in redistricting.

—Jess Bravin contributed to this article

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Unfinished Preet Bharara Business

If this doesn’t give you the creeps about what the Gov can do, it should.
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WSJ 4/20/2017

President Trump dumped Preet Bharara as U.S. Attorney for the Southern District of New York, and the celebrity prosecutor is conducting another media vindication tour. But a few problems from his tenure are left to resolve, including the ongoing legal crusade against David Ganek.

When we last checked on this saga, the Southern District had appealed a district judge’s ruling that discovery and trial could proceed in Mr. Ganek’s lawsuit against Mr. Bharara and the Federal Bureau of Investigation. The investor alleges that law enforcement violated his civil and constitutional rights with a 2010 insider-trading raid on his hedge fund, Level Global. The press was tipped off beforehand, Mr. Ganek was named as a suspect, and the reputational damage of the media circus ruined the firm.

Mr. Ganek was never charged with a crime, and the fraud conviction of one of his portfolio managers was overturned on appeal as an appellate court held that Mr. Bharara’s insidertrading theories exceeded the law. The feds now concede—or used to—that the affidavits used to obtain the Level Global search warrant contained false information about Mr. Ganek’s involvement in this non-scheme. Maybe these misrepresentations were honest mistakes, but that’s all the more reason to review evidence of the investigation such as emails and interview transcripts in public.

Instead, the Southern District is hiding behind the doctrine of prosecutorial immunity— and re-smearing Mr. Ganek to evade accountability for its botched investigation. At oral arguments late last month, a Second Circuit Court of Appeals panel seemed skeptical of the government’s arguments. So under questioning deputy U.S. attorney Sarah Normand accused Mr. Ganek of participating in “a scheme with regard to many, many pieces of inside information from many public companies.”

This accusation was never raised in the copious pretrial and appeal briefings, and presumably if prosecutors had anything solid on Mr. Ganek they’d have sought an indictment at the height of Mr. Bharara’s insider-trading bubble. Judge Reena Raggi noted that “certainly there’s no evidence at trial, or in the record that you’ve put forward, that the confidential informant or the cooperator ever said to law enforcement that Mr. Ganek did know that he was trading in whole or in part on inside information. That’s the record that we’ve got before us. That’s a statement made in the affidavit [that] is not true.”

The case’s larger import concerns accountability for alleged prosecutorial misconduct. Judge Alex Kozinski of the Ninth Circuit recently noted that improper and abusive behavior by prosecutors has reached “epidemic proportions.” If Mr. Bharara’s false affidavit was deliberate, it violated due process.

There’s also emerging evidence that something was rotten in Mr. Bharara’s operation. The FBI special agent who supervised securities fraud investigations in New York, David Chaves, who is also a defendant in the Ganek case, was recently cited for leaking confidential grand jury information in the insider-trading case of sports gambler William “Billy” Walters. Judge Kevin Castel issued an unusual order instructing the FBI to provide updates on Mr. Chaves’s internal disciplinary process.

According to emails revealed in the Walters case, Mr. Bharara knew about the leaks pouring out of the FBI’s white-collar unit, including to reporters at the Journal. He called it “outrageous and harmful” in a 2014 email, but as far as we know he did nothing to stanch the leaking. Earlier this year the FBI reached a rare settlement with the wife of a convicted insidetrader who was wiretapped in violation of the FBI’s eavesdropping guidelines. The terms aren’t public.

In other words, there’s a pattern of troubling behavior and a problematic culture inside Mr. Bharara’s old shop. Not least because there are so few consequences for prosecutorial abuse, the Second Circuit should allow Mr. Ganek’s suit to head to trial.

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Supreme Court Hearings

So why are Democrats so up in arms against the current nominee?
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WSJ 3/25/2017

From the 1986 Senate confirmation hearing of Judge Antonin Scalia, nominated to the Supreme Court: Sen. Ted Kennedy (D., Mass.): Judge Scalia, if you were confirmed, do you expect to overrule the Roe v. Wade?

Scalia: Excuse me?

Kennedy:

Roe v. Wade Do you expect to overrule the Supreme Court decision if you are confirmed?

Scalia: Senator, I do not think it would be proper for me to answer that question. . . .

Kennedy: There have been at least some reports that that was one of the considerations in your nomination. There are a lot of other, clearly, strengths which you bring to your own qualifications. But I am interested in what precedence you put on that decision being on the law books. I am interested in your own concept in stare decisis . Do you believe in it? What is it going to take to overrule an existing Supreme Court decision?

Scalia: As you know, Senator, they are sometimes overruled.

Kennedy: I am interested in your view.

Scalia: My view is that they are sometimes overruled. And I think that— Kennedy: But what weight do you give them?

Scalia: I will not say that I will never overrule prior Supreme Court precedent.

Kennedy: Well, what weight do you give the precedents of the Supreme Court? Are they given any weight? Are they given some weight? Are they given a lot of weight? Or does it depend on your view— Scalia: It does not depend on my view. It depends on the nature of the precedent, the nature of the issue.

Let us assume that somebody runs in from Princeton University, and on the basis of the latest historical research, he or she has discovered a lost document which shows that it was never intended that the Supreme Court should have the authority to declare a statute unconstitutional. I would not necessarily reverse Marbury v. Madison on the basis of something like that.

To some extent, government, even at the Supreme Court level, is a practical exercise. There are some things that are done, and when they are done, they are done and you move on. Now, which of those you think are so woven in the fabric of law that mistakes made are too late to correct, and which are not, that is a difficult question to answer. . . .

Kennedy: And you are not prepared on this issue to say where that decision comes out, as I understand it?

Scalia: That is right, Senator. And maybe I can be a little more forthcoming in response to your first question.

As you followed it up, you said that some thought that that is why I was going onto the Court.

I assure you, I have no agenda. I am not going onto the Court with a list of things that I want to do. My only agenda is to be a good judge. I decide the cases brought before me. And I try to decide them according to the law as best as I can figure it out.

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Another Judge Is Unpersuaded

My guess is Mr Obama will explain this at his next news conference.
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WSJ 11/19/2016

The Obama Administration’s executive overreach received another rebuke on Wednesday, this time from a federal court in Texas. In National Federation of Independent Businesses v. Perez, Judge Sam Cummings granted a motion for summary judgment and rejected the Labor Department’s attempt to stack another deck for unions.

The Obama Administration’s “persuader rule,” which was set to go into effect in July, would require a company to disclose any lawyers and consultants it talks to during a unionization campaign. The Administration claims it is merely updating the Labor-Management Reporting and Disclosure Act of 1959, which requires employers to disclose if they hire someone specifically to talk to their employees during an attempt to unionize.

That’s hilarious because the original law has an “Advice Exemption” that was explicitly designed to carve out legal counsel from the disclosure mandate. In the midst of unionization campaigns, companies are often in close contact with their labor counsel, and rightly so, to ensure they are following the law and to avoid falling into any unfair labor practices. The new disclosure rules were a Labor Department gift to union leaders who figure it might stop some companies from collaborating with allies or lawyers for fear of union retribution.

Judge Cummings found that Labor had violated the law by essentially rewriting it without congressional intent. He issued the order on Wednesday without elaboration, but when he granted a preliminary injunction in June he observed that “[t]he chilling of speech protected by the First Amendment is in and of itself an irreparable injury.” The Labor Department rule, he wrote, was “defective to its core.” That pretty well covers most of the Obama Administration’s regulatory record.

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