The 10 Biggest Legal Stories to Watch on Election Night

From the death penalty to marijuana, from the right to die to the right to life, Tuesday night will be more than a contest between the two parties. 


The election of 2012 isn't just about two men and their conflicting theories of governance. It isn't just about Republicans and Democrats or control of the Senate or electoral votes in swing states. All across the country, on ballots short and long, voters will make choices about some of the most important and contentious legal issues of our time. They will also choose Tuesday night to elect, retain, or dismiss some of the most controversial local officials of our time, folks whose impact upon the rule of law has been, or would be, profound.

The biggest "legal" issue Tuesday night, of course, the one that could dwarf all these other issues in the short term, is the issue of voter fraud/vote suppression. After years of partisan legislation designed to make it harder for people to vote, and after months of state and federal court rulings protecting broader voting rights, we all soon will learn whether election officials in key states are willing and able to ensure that registered voters are able to vote, to vote accurately, and to have those votes counted fully and fairly.

Soon we also will know whether the election is close enough to generate a recount in a state the electoral votes of which would determine the presidency. I think it's likely that we'll see a recount somewhere. The tougher question is whether such a recount will be dispositive as it was in Florida in 2000. There are many reasons to be concerned about this happening again. As the good folks at the Brennan Center for Justice note, of all the recount procedures in battleground states, only New Hampshire requires hand-counting of ballots during a recount.

But those are contingencies. Let's return to what we know voters will face. Before the details, a few quick observations. Guns are on the ballot only in Louisiana. Affirmative action is on the ballot only in Oklahoma. And the election of 2012 is notable for what isn't on the ballot. Unlike the election of 2010, for example, there are no "sharia law" provisions this year. Four such measures were introduced but rejected this cycle, probably because it became apparent after the 2010 election cycle that such laws are patently unconstitutional.

Here now is a list of some of the law-related election battles I'll be following into Tuesday and beyond. After the votes are counted, I'll be back next week with a follow-up to share with you how these races turned out. If you have any suggestions for inclusion on this list by all means let me know with a comment below. I offer these in no particular order of significance.

1. California and the death penalty. Proposition 34 would end the state's costly and inefficient experiment with capital punishment and transform all existing death penalties (725 in all) into life sentences without the possibility of parole. Passage would mean an annual savings to California taxpayers of approximately $130 million. The Los Angeles Times has endorsed the change and so have many legislators and law enforcement officials. There are national implications here, too. If the state with the largest death row in the nation turns away from capital punishment you can bet it won't be long before some federal judge, or Supreme Court justice, cites it as an "evolving standards of decency" under Eighth Amendment law.

2. Marijuana. Voters in six states will be voting on marijuana initiatives. In Arkansas and Masschusetts, voters will decide whether to legalize, regulate, and tax medical marijuana. In  Montana, voters will decide whether to repeal their 2004 medical-marijuana initiative. And in Colorado, Washington, and Oregon, voters will decide whether to legalize, regulate and tax recreational marijuana. Of the latter contests, the Colorado measure, Amendment 64, appears to have the best chance of passage. None of these measures is technically legal under federal law but the Obama Administration went on the record recently, in a 60 Minutes segment, pledging not to harass individual users.

3. Same-Sex Marriage. Voters in three states** -- Maryland, Maine and Washington -- will vote on same-sex marriage initiatives. In Maine, the vote is to overturn or ratify a 2009 measure that outlawed same-sex marriage. In Maryland, the vote is to affirm or reject a new law permitting same-sex marriage. And in Washington, the vote is to endorse or preclude a similar new law. These measures are important in their own right, of course, but they also are vital for what ammunition they will give lawyers and the justices in Washington, who are about to confront the constitutionality of the federal Defense of Marriage Act.*

4. Sheriff Joe Arpaio. The most infamous lawman in America -- and longstanding sheriff of Maricopa County, Arizona -- is heading toward yet another reelection victory. This despite a series of recent political scandals, costly litigation and allegations of fiscal mismanagement. Over at Mother Jones, Timothy Murphy offers up an instant classic on the race:

Arpaio, meanwhile, has conducted his campaign more or less the same way he's run the MCSO for 20 years -- occasionally absent, punctuated by frenzied bursts of activity, and an enormous appetite for spending money. He's refused Penzone's offer to debate. His campaign website is Spartan. His campaign's listed phone number is actually the number for an insurance company (the site is out of date), which in turn directs you to the Maricopa County Sheriff's Office, which, finally, refers you to the Summit Group, a Phoenix consulting firm run by a longtime confidant, which Arpaio's campaign has paid $1.8 million over the last year. In one of his television spots (another attacked Penzone for a 2003 domestic complaint), Arpaio fidgets, unsmiling and uncomfortable, as his wife, Ava, explains why her husband shouldn't retire.

5. Judiciary. In four states closely aligned with Tea Party sentiment -- Arizona, Missouri, New Hampshire, and Florida-- conservative activists seek through ballot measures to limit judicial authority and independence through a series of partisan initiatives. The most blatant of these efforts is in Florida, where Americans for Prosperity, the Koch brothers-sponsored group, is seeking to remove three justices of the Florida Supreme Court. Millions have been spent on that race alone. Follow William Raftery's Gavel To Gavel blog on election night if you want the play-by-play. Here is his list of all judiciary-related amendments.

6. Alabama segregation. For the second time in eight years, voters in Alabama will have an opportunity to delete from their state constitution an explicit reference to racial segregation in public schools. The language currently on the books, a vestige of the state's dubious history of interposition, states:

To avoid confusion and disorder and to promote effective and economical planning for education, the legislature may authorize the parents or guardians of minors, who desire that such minors shall attend schools provided for their own race, to make election to that end, such election to be effective for such period and to such extent as the legislature may provide.

It seems simple. But it's not. Many Democrats and school administrators believe the initiative would make matters worse. And speaking of which, Alabama voters will get a chance again on Tuesday to choose or reject for the judiciary Roy Moore, the infamous former state supreme court justice who once defied a federal court order forcing him to remove the Ten Commandments monument he had ordered built at the state's supreme court.

7. Abortion. In Florida, voters will confront Amendment 6, a measure that seeks to limit interpretation of the privacy rights contained in the state's constitution. In Montana, voters face LR-120, which involves parental-notification rules. In Oklahoma, a "personhood" measure that would have criminalized abortion was rejected as unconstitutional by the state's supreme court before it could make it onto the ballot. In case you were wondering, following a campaign where abortion and reproductive rights were issues, this isn't much different than 2010, when there were also three similiar measures (in Alaska, Colorado, and Missouri).

8. Health Care. Silly you, you thought the Supreme Court's decision in June to uphold the Affordable Care Act meant the end of legal challenges to the federal health care law. Wrong. New litigation has been filed. And voters in five states -- Alabama, Florida, Missouri, Montana and Wyoming -- will have the opportunity on Tuesday to weigh in with their views of the obligations contained in the Care Act. The gist of each of these measures is made clear in the simple language of Wyoming's proposed Amendment A:

The adoption of this amendment will provide that the right to make health care decisions is reserved to the citizens of the state of Wyoming. It permits any person to pay and any health care provider to receive direct payment for services

9. Three-strikes. Back to California for Proposition 36, which would reduce the scope of the state's notorious three-strikes law in an effort to clear overcrowded prisons there of more non-violent offenders. Like Proposition 34, the popularity of this initiative is owed perhaps as much to the budget savings the state would see from it as it is from the fact that the existing "three-strikes" law has resulted in terrible injustice to some Californians. If it passes -- and it was up in the polls the last time I checked -- it will be the clearest signal yet that states are serious about adjusting their views of the harsh costs of our prison society.

10. Death with dignity. Voters in Massachusetts face Question 2, which upon approval would mean a new state law "allowing a physician licensed in Massachusetts to prescribe medication, at the request of a terminally-ill patient meeting certain conditions, to end that person's life." The measure has been consistently in front in polling although its margin has slipped in the past few weeks. It's an important moment for supporters of a "right to die." It's been long enough for them to have comforting research on how Oregon's landmark law has worked. But they've struggled to translate that information into legislative success.

*In Iowa, it's a retention year for Justice David Wiggins, the lone jurist remaining from the 2010 voter purge that kicked three Iowa Supreme Court justices off the bench for a ruling they wrote which recognized same-sex marriage. The beneficiary of good timing more than anything else, it appears that Justice Wiggins may survive a coordinated effort this year to oust him.

** Four states! I forgot to include Minnesota's Amendment One, which defines marriage as solely between a man and a woman.