Volume 50, Issue 3

4 posts

Digital-Age Discrimination: The Voting Rights Act, Language-Minorities, and Online Voter Registration

Issues Volume 50, Issue 3

By Morgan E. Saunders

Online Voter Registration, a new and exciting advancement in election administration, conveniently allows individuals to register to vote on the Internet. However, Online Voter Registration also highlights deficiencies within the United States election system. Specifically, many states’ Online Voter Registration websites are only available in English, despite the fact that citizens in those states have a federally guaranteed right to access all of their election materials in a different language. This right comes from the minority-language provisions of the Voting Rights Act, which require certain states and counties to provide all election materials in specific languages other than English that are common within their jurisdictions. Unfortunately, these provisions often go unenforced or under-enforced. States and counties have been especially slow to come into compliance with the minority-language provisions with regards to their online election materials, like their Online Voter Registration websites. Due to the underenforcement of this section of the Voting Rights Act, there is little legal precedent on which to base future litigation. This Note argues that all Online Voter Registration systems provided by states containing minority-language covered jurisdictions must be provided to voters in all covered languages. It also provides both a litigation and legislative strategy to ensure full compliance with the minority-language provisions on the Internet. Achieving full compliance with the VRA is critical to ensure that non-English-speaking voters have equal access to the ballot.

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Closely Held Conscience: Corporate Personhood in the Post–Hobby Lobby World

Issues Volume 50, Issue 3

By Sean Nadel

This Note seeks to reframe scholarly criticism of Hobby Lobby by evaluating the case in the context of the evolving doctrine of corporate personhood and, specifically, the Obama Administration’s recent regulations that cabin the decision by implementing a new federal definition of “closely held corporations.” This Note suggests that, although problematic in certain regards, Hobby Lobby does not represent the return of Lochner. Indeed, the innovation of Hobby Lobby is not its interpretation of RFRA or the Free Exercise clause, but rather its extension of standing under RFRA to corporate parties. Accordingly, the concerns over Hobby Lobby are better articulated in the realm of corporate personhood rather than in the debate surrounding the First Amendment, making a focus on “Free Exercise Lochnerism” an ill-fitting mode of analysis. Moreover, by examining the progressive response to Hobby Lobby, epitomized by the resulting Department of Health and Human Services (HHS) regulations, the advantages of viewing the decision in terms of corporate personhood will become apparent. Part II of this Note examines the events precipitating Hobby Lobby, the decision in Hobby Lobby itself, and the debate surrounding and subsequent implementation of the resulting HHS regulations, which set the most comprehensive federal definition to date of closely held corporations. Part III critiques the HHS regulations by pointing to several problems, which both undermine the efficacy and goals of the regulation itself and pose precedential issues for the treatment of corporations in other contexts. Particularly, Part III comments that the post–Hobby Lobby effort to protect reproductive rights has undermined Hobby Lobby’s powerful language about corporate personhood, which could be used to advance corporate social responsibility, a key move for many progressive causes like environmentalism and workers’ rights. Part IV suggests an alternative to the current regulations that relies on the internal sincerity-testing model of RFRA, which evaluates whether the belief professed by plaintiff is authentic; this could prove to be less problematic than the current regime.

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Guardians as Gatekeepers and Other Issues of the Establishment Clause and Parole

Issues Volume 50, Issue 3

By Daniel W. Sack

The United States is relatively unique compared to other countries in two particular areas: how religious its citizens profess to be and how many of its citizens are incarcerated. This Note examines how these two characteristics interact in the parole context with an emphasis on the role of the chaplaincy in such proceedings. Federal courts have wrestled — relatively inconclusively — with where to draw the line between permissible and coercive consideration of religious attributes in the parole setting. Giving religious factors too much weight could potentially pressure inmates into adopting insincere religious habits in the hopes of obtaining favorable treatment; conversely, too little weight could fail to recognize the secular attributes of religious participation that often lend themselves toward rehabilitation. This Note suggests that limited inquiry by parole boards into the structural- or community-based (as opposed to philosophical- or tenet-based) components of an inmate’s religion may be appropriate. So too may be the parole board’s acceptance of a letter of reference from a prison chaplain. Conversely, this Note argues that prison chaplains overstep their bounds and violate the Establishment Clause when they serve on parole boards by putting a coercive force on inmates to become religious or follow a certain religion. This Note ultimately strives to flesh out the complicated and varied ways in which inmates’ freedoms of and from religion intersect with their attempts to obtain freedom through parole.

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Beyond the Reach of the Constitution: A New Approach to Juvenile Solitary Confinement Reform

Issues Volume 50, Issue 3

By Abigail Q. Cooper

In the last year, the call to reform the practice of solitary confinement has come from all sides. Most of the attention has been on changes at the federal level, despite the fact that the vast majority of inmates in the United States are held at the local and state level. Additionally, the proposed reforms have centered around constitutional arguments that the use of solitary confinement is a violation of the Eighth Amendment. This Note argues that a constitutional ruling in this area is neither necessary nor sufficient to effect change. Solitary confinement is a problem beyond the reach of the Constitution. Rather, it is a byproduct of chronic underfunding, understaffing, and a pervasive culture within prisons that regards solitary confinement as a means of keeping correctional officers safe and maintaining order.

After carefully analyzing the recent settlement in Illinois, as well as a recent lawsuit in New York, this Note argues that reformers should shift their focus to the state level, and, specifically, to the office of the Attorney General. As defense counsel for the state, the Attorney General controls the course of these litigations — including the decision of if, and when, to settle. Yet, an Attorney General is also duty-bound to represent the interests of the People, even when defending the state and its officers in court. Thus, the state Attorney General must always keep an eye towards the plaintiffs — the juveniles themselves — and their interests during these lawsuits and settlement negotiations. Moreover, as the chief legal officer to the state, the Attorney General is uniquely positioned to bring together crucial stakeholders within the government and correctional facilities in order to negotiate a settlement agreement. By examining the filings and transcripts in the New York and Illinois lawsuits, which this Note does for the first time, it becomes clear how crucial state Attorneys General are to ending juvenile solitary confinement.

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