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Bonner-BridgeThe dispute over the Bonner Bridge project is heading back to the district court, after a unanimous panel of the 4th U.S. Circuit Court of Appeals held today that the lower court had failed to consider certain requirements relating to the protection of wildlife refuge land — here, the Pea Island National Wildlife Refuge on Hatteras Island, through which the battered NC- 12 runs.

The state had agreed in 2003 to build the the Pamlico Sound Alternative – a 17-mile causeway bridge that would bypass NC-12 in the troubled areas, spanning instead from Bodie Island, out into the Pamlico Sound and connecting back at Rodanthe. Construction was set to begin in 2006, with the new bridge opening in 2010.

But the NCDOT shifted course in 2009 and agreed to build a parallel bridge instead, leaving improvements to NC-12 in the troubled areas to then undefined “later phases.”

The Department has since proposed the construction of two additional bridges in the shifting sands of the Refuge to overcome storm wash-out on NC-12.

In the ruling, written by U.S. Circuit Judge  James A. Wynn Jr., the judges did find though that the state had complied with provisions of the National Environmental Policy Act when evaluating multiple proposals that included the building of the single replacement bridge and the planning of future bridges along NC -12.

A full analysis of the decision will follow.

Read more about the case here.

 

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vote2Election law expert Justin Levitt has this must-read post today in the Washington Post about the lack of credible voter fraud incidents that a photo ID could have prevented.

Levitt, a professor at Loyola Law School in Los Angeles, has been tracking such incidents since 2008 and reports that out of billions of votes cast during that period, he’s found 31 credible incidents.

Referring to claims asserted in recent cases in Mississippi and Wisconsin that voter ID can stop voter fraud,  Levitt notes:

This sort of misdirection is pretty common, actually. Election fraud happens. But ID laws are not aimed at the fraud you’ll actually hear about. Most current ID laws (Wisconsin is a rare exception) aren’t designed to stop fraud with absentee ballots (indeed, laws requiring ID at the polls push more people into the absentee system, where there are plenty of real dangers). Or vote buying. Or coercion. Or fake registration forms. Or voting from the wrong address. Or ballot box stuffing by officials in on the scam. In the 243-page document that Mississippi State Sen. Chris McDaniel filed on Monday with evidence of allegedly illegal votes in the Mississippi Republican primary, there were no allegations of the kind of fraud that ID can stop.

Instead, requirements to show ID at the polls are designed for pretty much one thing: people showing up at the polls pretending to be somebody else in order to each cast one incremental fake ballot. This is a slow, clunky way to steal an election. Which is why it rarely happens.

 

 

 

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womens-healthFor the second time in days, a federal judge has ruled as unconstitutional state provisions requiring doctors who perform abortions at clinics to have admitting privileges at local hospitals.

The decision in Alabama by U.S. District Judge Myron Thompson follows a 2-1 decision from the 5th U.S. Circuit Court of Appeals on July 29, rejecting a similar provision in Mississippi.

Similar provisions have been adopted in at least 10 states, with court challenges following.

In June, the U.S. Supreme Court  blocked efforts by Wisconsin’s Attorney General to reinstate a state law requiring that abortion providers have admitting privileges at nearby hospitals.

That provision was one of several restrictive measures hastily passed by the Wisconsin legislature in 2013. In the lawsuit that followed in federal court there, U.S. District Judge William Conley enjoined enforcement of the provision and the 7th U.S. Circuit Court of Appeals affirmed. 

As we’ve noted before, doctors have been among the most vocal critics of such provisions. As several contended in the Wisconsin case:

Doctors providing services submitted letters from hospitals rejecting their requests for admitting privileges mostly because they wouldn’t admit the number of patients required.  Hospitals normally require physicians with admitting privileges to admit a certain number of patients each year and with complications of abortions being rare, those minimum admission rates would never be met by doctors performing abortion.

The law requiring hospital admitting privileges only applies to abortion providers.  Those providing outpatient surgery, oral surgery, or other outpatient procedures are not required to have admitting privileges.

They’ve also argued that admitting privileges are not necessary, since patients in distress are sent to the emergency room, where they are treated by physicians there. 

In North Carolina, an admitting privileges requirement was one of several abortion restrictions proposed early in the 2013 long session but dropped from the bill ultimately signed into law, pending the adoption of regulations by the Department of Health and Human Services. That process has since been stalled.

 

 

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Last week’s unanimous Fourth Circuit ruling in King v. Burwell, upholding the availability of Affordable Care Act tax credits to health insurance purchasers on both state exchanges and the federal exchange, may be heading to the U.S. Supreme Court.

Yesterday, attorneys for challengers to that ruling filed a petition asking the high court to take the case next term.

Read the full petition here.

 

 

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The notion that the state should have a three-judge panel at the trial court level to decide constitutional challenges to state laws was the brainchild of the Senate, appearing in its budget back in May.

Although the House had no similar language in its draft budget, the provision is back in the latest (and supposed final) budget which the Senate approved twice during the last 24 hours and is now before the members of the House.

If the House passes the budget with the three-judge panel provision included and the governor signs it into law, North Carolina will be the one and only state in the country with such a provision, as Bill Raftery at Gavel to Gavel reported here.

“No state provides for a mandatory three judge panel at the trial level for constitutional challenges to state laws,” he said.

We wrote back in early June that the impaneling of three-judge trial courts to decide any and all constitutional challenges to state laws was just a bad idea — one that had been rejected elsewhere as often unworkable and unnecessary.

And judges at the appellate level disliked them because of the provision — as is included in the current proposal here — making decisions from the panels directly appealable to the Supreme Court.

As one federal judge in western North Carolina wrote in 1995, when referring to similar panels at the federal level:

The legislative history of the repealing bill shows a thorough dissatisfaction with the operation of three-judge courts, finding the procedure to be confusing and inefficient. The Senate report states that “three-judge court procedure has recently been termed by one scholar, `the single worst feature in the Federal judicial system as we have it today.’ It has imposed a burden on the Federal courts and has provided a constant source of uncertainty and procedural pitfalls for litigants. 

Here’s more from our earlier post :

Judges didn’t like them. And it became increasingly difficult to empanel three judges.

“Consuming the energies of three judges to conduct one trial is prima facie an egregious waste of resources,” David Currie, then a professor at University of Chicago Law School wrote years before the repeal.

Supreme Court justices didn’t appreciate lawmakers interfering with the Court’s long-held discretionary right to select the cases worthy of review. And they felt inundated by the number of appeals they were required to hear because of the automatic direct appeal.

“Members of the court were very vocal about it in the 60s and 70s,” Solimine said. “Warren Burger and others were just openly hostile to the three-judge courts because of the mandatory appeal aspect and they unabashedly urge Congress to modify the statute.”

And many people thought the three-judge courts had become unnecessary, he added. The single-judge district court and ordinary avenues of appeal worked fine for most constitutional challenges.

For litigants, working their cases through the courts proved more troubling.

Upon the filing of a lawsuit, a single district court judge determined whether the case was properly in federal court and whether it otherwise fit the parameters for assignment to a three-judge panel.

As pointed out by scholars, those initial rulings set in motion an appellate review process that played out in a number of confusing ways and led at times to inconsistent results.

What if the initial judge was mistaken? What if similar judges across the country were ruling differently? And where did an appeal of those initial rulings go – to the Circuit Court of Appeals, to a three-judge panel, or directly to the U.S. Supreme Court?

Similar problems exist with the proposed North Carolina law, which will require a judge to determine initially whether a case presents “a challenge to the validity of an act of the General Assembly on its face” before any transfer to a three-judge panel.

That may be a larger number of cases than the senators anticipate, given that, as the state bar noted in its statement opposing provisions of the senate budget, constitutional challenges often arise in suits between private citizens too, not just in direct lawsuits against the state.

How will “on its face” be determined? Does that mean simply any case that crosses the clerk’s desk alleging that a state law is unconstitutional? Or does that mean the more nuanced constitutional interpretation of a “facial” as opposed to an “as applied” challenge?

Solimine suspects even that initial determination might breed confusion and litigation.

“If it does pass, North Carolina’s bill will probably suffer some of the same problems as occurred in the federal system,” he said, “leading some people to ask, as they did with that system, “Is this really necessary?”