Arizona Redistricting

By Michele Bastacky 

Although not a new issue, redistricting has become highly contentious again, this time in Arizona.  In more than half of the states in the country state legislators are the sole groups responsible for the redistricting process.  However, some states have created alternative methods for the redistricting process such as the formation of unbiased and/or independent or bipartisan commissions.  

 Since 2000, Arizona has become one of one seven states that utilizes a specially formed bipartisan commission to determine the district’s electoral geography, with the goal of reducing political bias. _[1] This bipartisan commission was created through a referendum, Proposition 106, and is composed of two Democrats, two Republicans, and one independent designated to chair the commission.  Until recently, this method was successfully utilized to establish more politically balanced districts, free of a purposeful political majority.   As a result of the redistricting, there still remained safe Republican and Democratic seats, however, the state typically still had a few competitive seats, making political races more fair.  As neither political party wanted to lose their chances of maintaining a safe seat the Republican Governor Jan Brewer (sworn in 2009), chose to fire the chair of the committee, Colleen Coyle Mathis, in December of 2011.  The Arizona Supreme Court had a hearing over the issue of the firing and ruled that it was without just cause and reinstated her as commission chair. _[2] 

Earlier this year the Arizona Supreme Court ruled on Arizona State Legislature v. Arizona Independent Redistricting Commission (2013) and rejected the challenge against the electoral commission, finding the commission within the proper use of the term “legislature” of the Elections Clause of the Constitution.  Because Republican state officials remained dissatisfied with the Arizona Supreme Court decision, they have filed an appeal that has made its way to the US Supreme Court, which heard the case over Arizona redistricting on March 2, 2015. _{[3] [4]}  Arizona Republicans presented the argument that state election issues should be left to the state legislatures as is mandated by part of the Elections Clause of the Constitution.  Former Solicitor General Paul Clement argued that the founding fathers did not intend for a direct democracy, and that the state legislatures are responsible for elections within individual states.  Clement like many other Republicans do not believe that the authority to influence elections through redistricting should be left to an “unelected and unaccountable commission”.  Currently, the only available option for the state legislature to regain control of the redistricting process would be for the state to have another referendum to place the process back under the legislature’s jurisdiction.  However, the likely result of another referendum is anticipated to be unfavorable to the legislature.  _[5]

The opposing position led by former Solicitor General Ted Olson, argues that the Republicans are misreading the Constitution, and that the word “legislature” within the Constitution has a quite broad definition, comprising the “entity or collection of individuals that made the law” which would include the people of Arizona.  Olson fears that if the Supreme Court rules in favor of the collective view of Arizona Republicans held view that the legislature has the authority to create districts, the districts would become progressively uneven and favor the particular party in power, creating more safe seats and non-competitive elections.  Olson also contends that by allowing the commission to continue, the people, who created it through referendum, are part of the legislative process, which he believes to be one of the original and fundamental ideals of the founding fathers.  Therefore Olson holds that the referendum is a legal, constitutionally allowed amendment to the state Constitution. _[6]

During the US Supreme Court proceeding in the case of Arizona State Legislature v. Arizona Independent Redistricting Commission, the justices that tend to favor more conservative rulings appeared more opposed to electoral redistricting commissions being seen as constitutional, while the more liberal justices favored the position supporting the constitutionality of laws that allow these commissions.  As of now, it appears that the deciding vote will be determined by which side Justice Kennedy finds Constitutional.  Justice Kagan, who was the most actively vocal while hearing the case posed the question of what would happen if this commission was found unconstitutional as she asserted, “you take the 2011 law in Mississippi adopting voter ID requirements; 2007, Oregon, voting by mail; 1962, Arkansas, use of voting machines. All of these things were done by referendum or by initiative with the legislative process completely cut out. So would all of those be unconstitutional as well?”. _[7]

            Depending on the ruling, other states’ laws would likely be impacted, which would have far-reaching consequences that could significantly influence the 2016 national election.  _[8]

  

References

1.     "Independent Redistricting Commission." Independent Redistricting Commission. AZ.gov, n.d. Web. 07 Mar. 2015.

2.     Totenberg, Nina. "Supreme Court To Weigh Power Of Redistricting Commissions." NPR. NPR, 2 Mar. 2015. Web. 06 Mar. 2015.

3.     "Arizona State Legislature v. Arizona Independent Redistricting Commission." SCOTUSblog RSS. SCOTUSblog, n.d. Web. 07 Mar. 2015.

4.     Parti, Tarini. "High Court Hears Redistricting Case." POLITICO. POLITICO LLC, 2 Mar. 2015. Web. 07 Mar. 2015

5.     Totenberg, Nina. "Supreme Court To Weigh Power Of Redistricting Commissions." NPR. NPR, 2 Mar. 2015. Web. 06 Mar. 2015.

6.     Ibid.

7.     Parti, Tarini. "High Court Hears Redistricting Case." POLITICO. POLITICO LLC, 2 Mar. 2015. Web. 07 Mar. 2015

8.     Ibid.

Prosecuting Rape in Armed Conflict

By Nina Jones

With the introduction of Common Article 3 in 1949, crimes against humanity in non-international conflict became illegal under international law and were therefore under the jurisdiction of international courts. However, sexual violence, specifically rape, was not included as a crime against humanity though it was acknowledged that even during World War II, all sides of the conflict participated in forcible sexual violence. In 1998, the International Criminal Tribunal for Rwanda (ICTR) set a precedent by convicting someone for rape under a crime against humanity charge. This marked the first time rape was a convictable offense in wartime rather than being considered a spoil of war to which victors were entitled.

The Fourth Geneva Convention, adopted in 1949, introduced common Article 3, which applies to armed conflicts that are not international and that take place in one country. Conflicts that are subject to Article 3 include civil wars, internal armed conflicts that involve other states, or conflicts that garner international support. Article 3 requires that any individual not participating in the conflict, including those considered hors de combat due to injury or other reasons is treated humanely and that those wounded in battle be properly cared for. Additionally, it prohibits a variety of inhumane acts such as torture, hostage taking, and failure to provide a trial before passing sentencing.[1] Additional Protocol II was introduced in 1977 and aims to offer further protections for victims of non-international armed conflict. It works to clarify some of the ambiguities in Article 3 and to ensure the sovereignty of states who might be experiencing internal conflict. Protocol II states that,

Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs.[2]

The international community’s dedication to national sovereignty also presents the issue of prosecution for crimes against civilians and hors de combat in violation of Article 3 and Protocol II. As it is a treaty and is not ratified or recognized by all nations, it is important to note how it is that international criminal cases can be brought against violators. In The Republic of Nicaragua v. The United States, the International Court of Justice ruled, among other decisions regarding sovereignty, that the U.S. had to comply with the decision even though it objected to the proceedings. This, to many legal scholars, indicates that states or parties being prosecuted had to comply, for “if a state could only be sued when it wanted to be, a state would never be sued.”[3]

Rape is one of the more overlooked and under talked about human rights violations in conflict. For many centuries, rape was considered an inevitable outcome of war.  Historically, armies considered the ability to rape women on the opposing side of conflict a legitimate spoil of war.[4] Even after World War II, neither of the courts set up in Nuremburg and Tokyo recognized sexual violence as a war crime.  The International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1992 included rape as a crime against humanity after sexual violence came to the attention of the United Nations Security Council with the widespread rapes of women in the former Yugoslavia.[5] In addition to prosecuting rape as a crime, the ICTY also included sexual slavery in the definition of slavery as a prosecutable crime against humanity.

            In 2008 the United Nations passed UN Resolution 1820, which formally described the act of rape as a “tactic of war and a threat to international security.”[6] The Resolution underscores the importance of acknowledging rape as a legitimate threat and crime in conflict, both internal and international. 

During the Rwandan Genocide, between 250,000 and 500,000 women and girls were raped over three months. Prosecutors Sara Darehshori and Pierre-Richard Prosper used this information to argue that the act of rape was just as integral to the genocide as the killing itself and worked to have rape prosecuted as a war crime under the ICTR.[7] In Prosecutor v. Akayesu, the ICTR found that,

[…] In most cases, the rapes of Tutsi women in Taba, were accompanied with the intent to kill those women. […] In this respect, it appears clearly to the chamber that the acts of rape and sexual violence, as other acts of serious bodily and mental harm committed against the Tutsi, reflected the determination to make Tutsi women suffer and to mutilate them even before killing them, the intent being to destroy the Tutsi group while inflicting acute suffering on its members in the process.[8]

In the case of the Rwandan Genocide, rape was used as both a tool for ethnic cleansing and as a form of torture before killing victims. The Court defined rape as “a physical invasion of a sexual nature committed under circumstances that are coercive.”[9] The ICTR set a legal precedent for the prosecution of and conviction on the charge of rape for the ICTY, which convicted someone of rape in 2001.

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[1] “Geneva Conventions,” Council on Foreign Relations, last updated February 2015, http://www.cfr.org/human-rights/geneva-conventions/p8778.

[2] “Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977,” Treaties and Documents, International Committee of the Red Cross, last updated August 2014, https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=71FB1C6EEE672887C12563CD0051E768.

[3] Anthony D’Amato, “Nicaragua and International Law: The Academic and The Real,” 79 American Journal of International Law 657, 1985, http://anthonydamato.law.northwestern.edu/Adobefiles/A85d-nicar.pdf.

[4] “Background Information on Sexual Violence used as a Tool of War,” Outreach Programme on the Rwanda Genocide and the United Nations, United Nations Department of Public Information, last updated 2015, http://www.un.org/en/preventgenocide/rwanda/about/bgsexualviolence.shtml.

[5] “Background Information on Sexual Violence used as a Tool of War,” Outreach Programme on the Rwanda Genocide and the United Nations, United Nations Department of Public Information, last updated 2015, http://www.un.org/en/preventgenocide/rwanda/about/bgsexualviolence.shtml.

[6] “Rape: weapon of war,” United Nations Office of the High Commissioner for Human Rights, http://www.ohchr.org/en/newsevents/pages/rapeweaponwar.aspx.

[7] Melissa Jeltsen, “A Look Back at the Trial That Made Rape a War Crime,” The Washington Post, July 29, 2014, http://www.huffingtonpost.com/2014/07/29/rwanda-genocide-rape_n_5602108.html.

[8] Count 13, Prosecutor v. Jean-Paul Akayesu (ICTR-96-4-T), International Criminal Tribunal for Rwanda, September 2, 1998, http://www.unictr.org/sites/unictr.org/files/case-documents/ictr-96-4/trial-judgements/en/980902.pdf.

[9] Nancy Sai, “Rwanda,” Women Under Siege, Women’s Media Center, February 8, 2012, http://www.womenundersiegeproject.org/conflicts/profile/rwanda.

The Controversy of Domestic Surveillance Programs

By Caitlin Barbas

Following the wake of the NSA leaks, the legality of the surveillance techniques of local and federal agencies throughout the United States have been questioned. Tracking of Americans has emerged as one of the most controversial areas of domestic surveillance. This essay will seek to analyze the arguments of the legality and illegality of these programs through the examination of the Federal license plate tracking program and the regional use of Stingray Surveillance.

Stingray Surveillance

            The Stingray Surveillance device allows the holder to track the location of a mobile phone by simulating a cell-tower. This simulation causes cell phones in the region to connect to the Stingray device and to transmit their information, such as phone numbers, unique electronic serial numbers, and phone and messaging logs, to the database of the Stingray.[1]

This technology is used throughout the United States by federal and local/state agencies. In particular, the perceived unchecked use of the device by local police has prompted the greatest backlash. The American Civil Liberties Union (ACLU) has taken the lead in opposition against the technology after requesting information from various Florida departments on the use of Stingray devices and the policies surrounding that use.[2] The secrecy of the technology has prompted many questions about the legality of the Stingray device. One of the main focuses of critics is that police departments frequently do not obtain a warrants or submit court filings before using the technology.[3] This is problematic because it contrasts the policies required for obtaining information from an actual cell-tower. A cell-tower will provide an approximate location (rather than the exact location produced with Stingray) and a warrant is required to obtain this lesser information on the phones from the companies controlling the cell-tower information.[4] In the instances that a warrant was obtained prior to the use of Stingray, critics argue that the wording of the warrant is too vague and does not provide judges with a full description of the information-collection procedures. Further complications emerge during the use of Stingray as the cell-phones of innocent persons in the area will also be recorded by the device.

License Plate Readers

A second case of concern in the United States is the use of License Plate Readers by the Drug Enforcement Administration. According to a report by the Wall Street Journal, “The primary goal of the license-plate tracking program, run by the Drug Enforcement Administration, is to seize cars, cash and other assets to combat drug trafficking.”[5] However, concerns have emerged as the program begins to grow. The massive database created by the DEA through their use of License Plate Readers is now being used by local and federal authorities handling cases outside of Southwest border-states and unrelated to DEA investigations, though access to the database is still controlled by the El Paso Intelligence Center (EPIC).[6] The lack of transparency into the program, has prompted criticism, as it is unclear whether the program is regulated by a court or by a set policy.[7]

These examples are two of many new surveillance-based information gathering procedures used by federal, state, and local authorities. While these new procedures may be efficient in apprehending criminals, the secrecy surrounding many of these practices has called their legality into question. Controversy emerges over the application of the Fourth Amendment to newer forms of technology, such as computers or cellular phones. The United States’ common law tradition relies on precedent and interpretation of society, however, this has left a distortion between defined constitutional rights and real-world practices. The law has not evolved quickly enough to the introduction of new technology. In order to rectify this problem, there must establishment of clear regulations and/or legislation governing these new procedures.

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[1] [1] Nakashima, Ellen. "Secrecy around police surveillance equipment proves a case’s undoing." The Washington Post. The Washington Post, 22 Feb. 2015. Web. 22 Feb. 2015. <http://www.washingtonpost.com/world/national-security/secrecy-around-police-surveillance-equipment-proves-a-cases-undoing/2015/02/22/ce72308a-b7ac-11e4-aa05-1ce812b3fdd2_story.html>.

[2] "Florida police used warrantless 'Stingray' surveillance over 1,800 times." RT America. RT, 24 Feb. 2015. Web. 24 Feb. 2015. <http://rt.com/usa/234875-aclu-florida-police-surveillance/>.

[3] Ibid.

[4] Nakashima, Ellen. "Secrecy around police surveillance equipment proves a case’s undoing." The Washington Post. The Washington Post, 22 Feb. 2015. Web. 22 Feb. 2015.

[5] Barrett, Devlin. "U.S. Spies on Millions of Drivers." The Wall Street Journal. The Wall Street Journal, 26 Jan. 2015. Web. 22 Feb. 2015. <http://www.wsj.com/articles/u-s-spies-on-millions-of-cars-1422314779>.

[6] Ibid.

[7] Lewis, Renee. "DEA program capable of tracking movements of millions, ACLU says." Aljazeera America. Aljazeera, 27 Jan. 2015. Web. 22 Feb. 2015. <http://america.aljazeera.com/articles/2015/1/27/license-plates-spying.html>.