Gov. David Paterson of New York took a stand for electoral fairness earlier this month when he signed legislation that bans prison-based gerrymandering - the cynical practice of counting prison inmates as "residents," to pad the size of legislative districts. The new law, which requires that prison inmates be counted at their homes, deserves to be emulated all across the country.

Prison-based gerrymandering mattered little when inmate populations were small. But by the 1990s, when more than a million people nationally were behind bars, lawmakers had perfected the art of inflating the political clout of underpopulated areas by drawing legislative districts around prisons.

More than a dozen New York counties with large prisons already take inmates out of the count when they draw districts for county offices. According to an analysis by the Prison Policy Initiative, a New York-based research group, seven New York State Senate districts could now have trouble meeting federal population requirements, which means that those districts will have to be drawn along different lines.

The new law could lead to a political realignment in places like Rome, the upstate city where inmates at the Mohawk and Oneida correctional facilities make up about half the residents of one City Council district. Currently each resident there has twice the voting power of a resident who lives elsewhere in that city.

Republican politicians who represent upstate prison districts have predictably tried to portray the new law as a power grab by New York City Democrats. But only about half of the nearly 60,000 people held in New York prisons come from the city while nearly 40 percent of inmates are from upstate areas. They will now be rightfully counted in the places they come from - and to which they will eventually return. By upholding the principle of one person, one vote, the new law will benefit citizens in all parts of the state.

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By now you may have heard the US EPA has dismissed VA Attorney General Ken Cuccinelli's petition challenging the EPA's efforts to regulate greenhouse gases.  Cuccinelli's challenge will proceed in federal court, where we remain hopeful his case, unfortunately brought at taxpayers' expense, will be quickly dismissed.  All the snow this past winter may have been an inspiration for our Attorney General who can't tell weather from climate change, although he seems to ignore all the record breaking heat this summer.

A federal judge has refused to block a challenge to the Obama administration’s health care law brought by the Commonwealth of Virginia.

The administration had asked the judge, Henry E. Hudson of Federal District Court, to dismiss the challenge by Virginia’s attorney general, Ken T. Cuccinelli II.

Mr. Cuccinelli had argued that Congress, in passing a measure that requires people to buy insurance or face a penalty, exceeded its limits under the Constitution’s Commerce Clause and tax powers. Mr. Cuccinelli had also argued that the federal law violated a state law, the Virginia Health Care Freedom Act, which declares that residents cannot be forced to buy health insurance.

Mr. Cuccinelli is one of 21 state officials fighting the health care law, and this is the first ruling by a federal court on the important question of whether states have the standing to sue.

Monday’s opinion does not address the merits of the health care law. It has no direct effect on the other state challenges, but it may influence the other judges.

In its briefs, the federal government argued that “this court would have to make new law and ignore decades of settled precedent” and “step beyond the proper role of the judiciary” to claim jurisdiction and block the legislation. Case after case has shown that the government’s powers to regulate interstate commerce and to create taxes reach far.

The federal government argued that Virginia had no standing to sue over the law, and that it had not stated a case it could win.

Judge Hudson, who was appointed to the federal bench by President George W. Bush, disagreed. In a 32-page opinion, he wrote that the law “radically changes the landscape of health insurance coverage in America.” 

Concerned that the Attorney General's recent opinion allowing police to inquire about an individual's immigration status will lead to racial profiling and illegal detentions, we sent a letter to Virginia police chiefs and sheriffs telling them not to follow Cuccinelli's advice.  The letter refutes the Attorney General's reasoning, which is legally faulty.

Gabriel Walters
Legal Fellow
gwalters@acluva.org

Richmond, VA--The ACLU of Virginia yesterday sent a letter to Virginia police chiefs and sheriffs telling them not to follow a recent opinion from Attorney General Ken Cuccinelli on investigating immigration status, because the opinion is legally faulty and would lead to adverse public safety consequences.

Cuccinelli's July 30 opinion states that Virginia law enforcement officials have the authority to question individuals about their immigration status during a stop or arrest to the same extent as Arizona law enforcement under a recently passed law.

Yesterday's letter from ACLU of Virginia legal director Rebecca Glenberg notes that Cuccinelli's opinion cites no Virginia law for the proposition that Virginia police have the authority to inquire about an individual's immigration status.  He simply asserts that such authority exists.

Race, the Supreme Court, voting rights act

Another public conversation about race may be the last thing the Obama administration wants, but thanks to the Supreme Court, one is very likely on the way.

It has been nearly three months since the court “invited” — that is to say, ordered — Solicitor General Elena Kagan to “express the views of the United States” on whether laws that take away the right to vote from people in prison or on parole can be challenged under the Voting Rights Act as racially discriminatory.

The order came in a case from Massachusetts, Simmons v. Galvin, an appeal by prison inmates challenging a 10-year-old state constitutional amendment that stripped them of the right to vote while incarcerated. They seek Supreme Court review of a ruling, issued a year ago by the federal appeals court in Boston, that Congress never intended the Voting Rights Act to apply in prison. The federal government was not involved in the case. Now the administration — presumably under the direction of whomever President Obama names to succeed Ms. Kagan as solicitor general — has to come up with a position.

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