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June 17, 2013

Host: Ted Simons

Arizona Voter Registration Law

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  • The United States Supreme Court upheld a lower court ruling today that said an Arizona voter registration law is unconstitutional. The court ruled the state cannot require people who register to vote to provide proof of citizenship when using a federal form, but can require that proof if they register using a state form. Arizona State University Law Professor Paul Bender will talk about the ruling.
  • Paul Bender - Law Professor, ASU
Category: Law   |   Keywords: ruling, law, voter, ASU,

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Ted Simons: Good evening and welcome to "Arizona Horizon," I'm Ted Simons. The United States Supreme Court today upheld a lower court ruling, that found part an Arizona voter registration law is unconstitutional. A high court ruled that the state cannot require proof of citizenship or other added obligations, from those who register to vote using a Federal form. Here now to discuss the ruling is ASU law professor Paul Bender. Always a pleasure.

Paul Bender: Especially at this time of year.

Ted Simons: Yes. And we got you coming up in a couple of weeks, you know, for the big Supreme Court show. What was the issue here?

Paul Bender: The issue here was whether Arizona, and I think that one or two other states, did this, tried to require people when they registered to vote, to have proof that they are citizens, and in the mid 1990s, Congress passed the thing that's called a motor voter act, which was intended to make it as easy as possible to register to vote. And it said that the, to register to vote in Federal elections, that is elections for the house and the Senate, you register to vote by, by filling out forms, and swearing that you are a citizen, and it says under penalty of perjury, I swear that I'm a citizen, and you cannot require any other documentation, that's what the Federal law says. Arizona, however, and I think as I said, one other state, said no, we're not going to let you register unless you provide proof, and it's, it's, it's -- administratively difficult because this form is used to register by mail. And so Arizona saying, if you want to register to vote, send us proof you are a citizen in your mail application so you have to put in the envelope your passport, or something which you don't want to do, maybe, because it may never come back, so it makes it difficult to vote, and the Supreme Court said that it was clear that, that the Federal statute meant to make it as easy as possible for people to register to vote. And that the state could not require proof of citizenship of people that the Federal Government said that if you want to register to vote in the Federal election, it's enough if you swear under the possible penalty of perjury, that you are a citizen. And, and that the state law is inconsistent with that because it made it harder to vote and therefore, it was unconstitutional.

Ted Simons: Did the court focus on the fact that this was burdensome, some would call it or extra stuff, or did they focus on the fact in that, that the Feds say this, you are a state, and you cannot force the Feds to say this.

Paul Bender: Well, what, it's a statutory case, and the Federal statute says that you should be able to register to vote in the Federal election by just swearing that you are a citizen, and the state wants to make you provide more, and they said that that's inconsistent with the Federal law, and therefore, it's preempted, is what the lawyers say, when it's inconsistent, the state can't do it, and it does not say it's unconstitutional, itself, it's that the Federal law wants to make it easier to vote and the state law interferes with that.

Ted Simons: How does this impact the voter registration efforts?

Paul Bender: The case, itself, technically only applies to Federal elections. But, as you know, as everybody knows when you register to vote you register to vote in all elections. So, state could, after this decision, continue to require proof of citizenship to register in state elections, but they cannot require you to register to, to, to the Federal elections, for Congress and for the Senate. And so, in order to avoid this, and continue to, to, to require proof of citizenship, they have to have two registration processes, and maybe two ballots so that would be very, very inconvenient. So, the chances are that this means that the state is going to have to, to forget about that requirement. And, and let people register to vote if they swear that they are citizens.

Ted Simons: Again, did the state legislature go ahead and say, yeah, you can go ahead and register by mail, Federally, but you can only vote in Federal elections, that would be two ballots.

Paul Bender: Yeah. Technically, theoretically, they could do that. I think it would be very, very difficult administratively to do that, so I doubt if they would, and that's not a problem because this is a statute that, that deals with something that, that everybody recognizes, I think, is not problem. And there has been no, no wave of people who are not citizens registering to vote and to vote. For, for a number of reasons, if you are here illegally it, you are going to go and register to vote and call attention, or try to register to call attention to yourself, and when you go to vote, you have to, to produce some kind of identification, and so the combination of those things and other things, as well, means that it's very, very rare, if it ever happens, that somebody is not a citizen registered to vote.

Ted Simons: So other states with similar laws will, will face similar challenges?

Paul Bender: Right, but, I think that there is only one other state. It's important to, to recognize that this is about registration.

Ted Simons: Right.

Paul Bender: To vote, the Supreme Court, a couple of years ago, upheld a statute like Arizona, which requires identification when you vote. So, that's, that's still valid, but, what the court has held invalid is, is this requirement that, that you have to prove affirmatively that, that you are a citizen, in order to register.

Ted Simons: Now, talk to us about the opinion, itself, because it sounds as though the opinion almost prodded Arizona, hey, you know, there is still an option left here for you.

Paul Bender: The opinion says that, that if Arizona still wants to require proof of citizenship to vote in Federal elections, they have a potential way of doing that. They can go to, to the Federal election commission, or a, or the commission and, and ask them to, to -- there are forms for each state because the states have different voting requirements. And, and so, they can ask to have the Federal form for Arizona changed to require proof. The election commission could do that, if it wants to. It does not have to do that. Arizona tried to do that, when it first passed this law, and the Federal election commission split -, about whether they would do it, and so, since it was a tie, they did not do it. And Arizona did not try to get judicial review of that. So Scalia said you could try again, and that opens up the possibility that Arizona would do that. That would be a long, expensive, process for really, for really no practical reason because as I say, there is really no evidence that there are people who are not citizens, who are registering to vote.

Ted Simons: And that particular process, should the election commission once again say no, or wind up in a tie, I guess didn't Justice Scalia say you could take it to court?

Paul Bender: You could and you might win, he said, so, it's speculative along the line and, and the state can decide whether it wants to do that, but, it would be expensive. It would be time consuming. And since there is no problem, really, that, that, to deal with, I wonder why the state would want to do that.

Ted Simons: And judging from that election commission, is there anyone home on that commission right now?

Paul Bender: Right now, there are no full-time appointments because I think that, that the Senate is not confirmed President Barack Obama's commission to the appointment. So that's one of the reasons why, why it is speculative.

Ted Simons: Right.

Paul Bender: Whether this is going to work, and Scalia just says, you could do that, it's an interesting opinion because it kind of offhandedly says might try this, and maybe it will work but don't worry about it, and I think that the reason is that again, there is no problem. If there were big problem of, of thousands of people who are not citizens voting and maybe changing the results of the elections, I think that the court might have different attitude towards this case. But there is no evidence that that is, that has ever happened. So why go to all of this trouble.

Ted Simons: And we have our Supreme Court show coming up, I believe, July 1st. We'll talk about this more and the personality, because I found it interesting Scalia wrote the opinion and Aledo was on the other side.

Paul Bender: And Roberts, the chief Justice, and Scalia joined with the liberals to do, to do this result.

Ted Simons: So that's a fascinating dynamic. We'll talk more about that and see you July 1st, good to see you now.

Paul Bender: Nice to see you, too.

Arpaio Racial Profiling Update

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  • A hearing was held Friday by a federal judge who ruled Maricopa County Sheriff Joe Arpaio’s office was racially profiling Latinos. At the hearing, lawyers who filed the racial profiling lawsuit were expected to ask for more training for officers, better record keeping for traffic stops and a monitor to make sure the racial profiling stops. Arizona Republic Reporter JJ Hensley will give us an update.
  • JJ Hensley - Arizona Republic, Reporter
Category: Law   |   Keywords: law, Joe Arpaio, profiling, latino, Maricopa County,

View Transcript
Ted Simons: A Federal judge began the process of ending racial profiles by the Maricopa County sheriff's office. Judge Snow gave the MCSO and those who filed suit time to resolve the issue with the U.S. Justice Department, also involved in the talks. Joining us now is Arizona Republic reporter J.J. Hensley who has been following the story. Good to see again.

JJ Hensley: Good to be here.

Ted Simons: So give us a better indication, what happens, this is a hearing on Friday, the first hearing since the decision, correct?

JJ Hensley: Right, the decision came out right before, before memorial day and, and so, Friday was the first time that, that everyone kind of got back together in court and, and it was a relatively brief hearing, considering that this, this case has been going on for, for years now, and this took less than an hour, and the judge opened with 8 minutes further clarifying his -page ruling. And then said, basically, this is what I'm thinking, and lawyers, why don't you tell me where you are coming from, in the ACLU spoke up and said we would like more time to negotiate with the sheriff's office and see if we can come to an agreement.

Ted Simons: The sheriff's office said that's ok by us?

JJ Hensley: Yeah, they were onboard with that, and it seems like there were a lot of issues here, you know, in training, the data collection, and the stand alone policies, on racial profiling, and all these things, the sheriff's office is generally in agreement on, it's kind of going to be the devil in the details, that that might derail the negotiations at some point.

Ted Simons: Had those two sides been working together, or talking since this decision?

JJ Hensley: I think they just got started on that process, and that is why they said, judge, it was a lengthy and thorough decision. We have had the time to go through it and we're starting the negotiations, or discussions, and we would like to be able to continue those, so maybe give us until mid August, before we can come back and tell you where we're at.

Ted Simons: And the negotiations and discussions center on how to get the sheriff's office to stop doing what it's doing, regarding racial profiling?

JJ Hensley: More or less. I mean, the real, the real point here is that correct is that the judge wants to, to, to have them both come to him, with a plan on how we're going to implement this ruling, and ensure that sticks. And, and, you know, what they don't want to happen, and one of the things that's going to be an issue with the kind of the training and the education is, is, you remember, way back when, the ICE.

Ted Simons: Yes.

JJ Hensley: The immigration and customs enforcement removed the sheriff's ability to enforce the Federal immigration law. And, and months later, they had Chris coback from Kansas, the author of SB 1070, give them training that says don't need that law, or don't need that authorization. You have inherent authority to enforce these laws, and they took that as the Marching orders and left. And, and you, you know, judge Snow clearly doesn't want to, a repeat of that with, with maybe questionable education or training being part of that order.

Ted Simons: Was that the reason that he clarified some aspects of this order?

JJ Hensley: Well, I mean, one of the main aspects, you know, when I was on last we talked about kind of what, what are the, the key pieces of this injunction, there were seven items, and most of it was you cannot detain persons of Latino decent any longer than an Anglo driver. One of the key things, one of the few like actionable items was that he prohibited the sheriff's office from using what's called their LEAR policy, L-E-A-R. It authorized them to contact ICE if they came across someone undocumented or they suspected being undocumented. But did not have any state charges on them. So, there was, you know, not speeding or murder or any other kind of violation. To hold them on. Judge Snow enjoins them from using that policy, and then in the first minutes says well, you know, I have seen coverage in the media that says you are not allowed to call ICE, that's not what I meant. You are allowed to call ICE, and you just can't detain immigrants while you are calling ICE. Which the sheriff's office says, would, would not -- the net effect is the same. We cannot detain them, what is the sense of calling ICE.

Ted Simons: Back to the talks here, we talked last time wondering, would the justices department be interested in or continue to pursue, which angle did they go? They are going to be involved in the talks.

JJ Hensley: Yeah.

Ted Simons: And are you surprised?

JJ Hensley: I was surprised, I mean, we had gotten hints that that could be coming, but, everyone afterwards, I try to get clarification on just how involved they would be, and it seems like they, both them and the, the attorneys represent the sheriff's office in that Federal lawsuit going to be very active participants in this. And the Justice Department sees this as an opportunity to get what they called a universal settlement to resolve both the, the melendras claim and their lawsuit.

Ted Simons: An all-encompassing thing, just get this over with.

JJ Hensley: Yeah, and no matter where you come down on this, this issue or these lawsuits, the potential to, avoid another costly round, of lengthy litigation and discovery by letting the Justice Department in on these negotiations, is probably good news for everyone who, who pays taxes here.

Ted Simons: Something else that we discussed at length, on your appearances, is the concept of a court appointed monitor for the sheriff's office. That seems to be the one thing that, that the sheriff and MCSO does not want. Sounds like judge Murray Snow wants it.

JJ Hensley: Oh, yeah. He made it abundantly clear in that he expects there will be a Monday for appointed here. Now the sheriff's office is saying well, if there is going to be a monitor, and it looks like there is, maybe we could get it kind of like to judge Wake did, in 2008, when, when he ruled that conditions in the jails were unconstitutional. And he played a very active role in resolving that. He stayed on top of it. He appointed what I have come to consider like monitors by proxy. He force the sheriff's office to file a, a, to, to hire a dietitian to ensure that, that all the inmates' meals meet USDA dietary guidelines. And then snow would receive reports from that dietitian.

Ted Simons: Yes. And, and is this the kind of thing, obviously, that was then. This is now. And is this the Sheriff's Department -- just, in general, how is mcso taking this? How are they responding?

JJ Hensley: The official word is, we will live up to the letter and the spirit of that ruling. And they want to, to make it, it -- no doubt, that they are following this ruling, they certainly don't want to be in contempt of the Federal judge. You know and last week, in court the sheriff's attorney said, that that, that the sheriff's office is out of the Federal immigration enforcement business. So, this, this decision managed to undo a lot of what the critics have been off after them to do since may of 2006,2007 . And, and I think privately, people are so, kind of concerned about, about catching the judge's attention with statements that they might make or that could get out there, that there is very little of that, and shows that he's aware of what people saying, just by his comments at the beginning of the hearing on Friday.

Ted Simons: And, and not only that, but the order, itself, I mean, made it clear that what you are saying, right, I was listening.

JJ Hensley: Right. The contemporaneous statements, he called them. Arpaio's statements in the media in 2007 and 2008 when the sweeps were going on.

Ted Simons: Give us a timetable here, what happens next?

JJ Hensley: So we have until mid August for both sides to negotiate. And, and snow said that he expects them to submit to him, and a consent decree by August 15th, and there is going to be hearing on August 30th. That live give him time to see what issues they have not agreed to, and I think given what we have heard, I think there will be a lot of issues that they can agree to. And it might be this monitor, who, who is it going to be and what authority they going to have? Snow saying needs to strike a delicate balance between insuring that, that, that the citizens, the constitutional rights are protect, and insuring that the sheriffs constitutional authority is protected, as well, with this so if he's aware of that argument, but the other issues, are going to be kind of, you know, who does training and, and what is their background and, and how much training are we going to be talking about and things like that.

Ted Simons: We'll look out for that, for that great work, thank you for joining us, and we appreciate it.

JJ Hensley: Thank you.

DNA Patent Ruling

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  • The United States Supreme Court ruled last week that companies cannot patent naturally occurring DNA, but can patent synthetic DNA. Gary Marchant of the Arizona State University College of Law. will talk about the ruling.
  • Gary Marchant - Arizona State University College of Law, Professor
Category: Law   |   Keywords: medical, law, DNA,

View Transcript
Ted Simons: The United States Supreme Court ruled last week that naturally occurring DNA cannot be patented. What does the ruling mean to bioscience research and industry? We ask Gary Marchant of ASU's O'Connor college of law, Marchant is also an ASU professor of life sciences. Good to have you here.

Gary Marchant: Thanks.

Ted Simons: What did the Supreme Court's patenting human genes, what are we talking about here?

Gary Marchant: A lot of people are surprised to know about a 20% of the genes are patented. There is 4,000 with patents on them. They don't apply as they exist but to say if you take them out and use them, they need a patent.

Ted Simons: The court is saying that you cannot patent something like this that is naturally occurring?

Gary Marchant: Right, so the whole issue is that the Gene occurs in your body and, and taking it out and isolating it, is that enough to get a patent on it? For 20 years, we've been giving these for these genes, and now, the Supreme Court is now definitively saying no, you cannot get a patent.

Ted Simons: So it's like patenting a kidney?

Gary Marchant: Yes, but isolated. One of my students made the analogy if you cut off a bunch of thumbs and put it in a basket, can you patent it? That's the logic used here, but the problem is we have 100 years of inconsistent precedent on, this and some saying if you isolate a vitamin, that is patentable, and others saying that it is not.

Ted Simons: I would keep an eye on that student, by the way.

Gary Marchant: Right.

Ted Simons: And what were the court's reasons? Just because it occurs in nature and it does not really belong to, to, to anyone?

Gary Marchant: The company involved, they put money into it and invested research and time but did not invent anything new. That's what the court concluded, and to get a patent it has to be something new and novel that does not exist before. It has to be human made, essentially.

Gary Marchant: The rules have change, but I think that, you know, that's where we're at.

Ted Simons: What becomes of these companies, what becomes of the patents?

Gary Marchant: There is still some issues still out there because the court, at the same time, says, patents that include just the important parts of the Gene are still valid. So there is going to be question how did the parts of the decision interrelate? So, I expect still more litigation, but, it seems that we're going to go forward, that it's not the genes patentable but rather, the question is, as science is moving in, it's take a bunch of those genes and using them in a specific way. That might still be patentable, that's where this company will go and a lot of companies are going already, and in some senses, its 1990s science that we're talking about here.

Ted Simons: So the overall impact on biomedical, and, and, and just basically biotech, the industry, itself, in general, what do you see?

Gary Marchant: It's a mix, mix bag like patent law has a double edge sword so, on one hand it will help patients in the short-term, the cost of the test will be about third of what it is now, so people at risk of breast cancer will be able to get this for $1,000 or $3,000 so there is a direct effect for patients. For scientists and industry, I think that more scientists and industry are not patenting these than patenting them because the reason, you can use these in your science, and you can now use these to develop these more sophisticated tests, that before you are blocked by the patents.

Ted Simons: And I was going to ask about research and study and those things because it seems like there are parallel tracts. You have business on one side and study on the other and, and similar impacts or divergent?

Gary Marchant: This mix bag right, because on the one hand, the patents give the incentive and the reward to go forward and develop this, and spend the money on it, and if you don't get that reward, someone else come along and take that, people are not going to do that. On the other hand, once you have the patent, it's blocking other people from using that same invention. There is this double edged sword aspect to them and, and what's important is to get the right balance of not too much patenting but not too much. I think this decision, most researchers, most companies think it's probably good decision.

Ted Simons: So I have seen critics of the decision saying it's been slow, in the development, scientific breakthroughs by some of these commercial firms. Valid?

Gary Marchant: I don't think so, I think that there will be a bit of that but, much more on the upside because now, companies like say researchers like tgen, here in town, they took 10 or 20 or 30,000 genes and put them into test, and the problem before, is that they were blocked from doing that because some of these genes had patents, and more important is this idea of genome sequencing, this is a big thing coming down the line, and there, you take all 6 billion base pairs, and sequence them, and if there is 4,000 of those genes that have patents you might not be allowed to disclose that to the patient. So, this is, basically, blocking that innovation, that 21st Century science, is being blocked by these, these 20th century patents.

Ted Simons: They are saying that the private industry, that has access to the patents, will develop something now that they may not be able to develop, is opposite by the fact that a lot of folks can get a hold of that sequencing?

Gary Marchant: That's one case, and both the researchers and the patients, both are saying, will benefit from getting access to that and developing more sophisticated, next generation of genetic tests.

Ted Simons: What about synthetic DNA?

Gary Marchant: Patentable, that's the other part, the synthetic issuing DNA is possible, and not so much for human genetics, models and other research is being done, those are all the affected by that decision, as well. And the idea, that that this whole idea of synthetic biology, which is another big thing coming down the pike where you create new genes, those are all going to still be patentable.

Ted Simons: And applications of knowledge, of DNA. That's still patentable.

Gary Marchant: Although, there is another decision in the Supreme Court year ago, the male versus prometheus case asking the question, when you have a method of a test, is that patentable? That's where the action is today, and that's where more companies are at, and that's -- developing those tests, and unfortunately, that's really up in the air, which is the Supreme Court decision last year so there is a lot of uncertainty where these patents are going to go. The bottom line, it will be great for my graduates because there is going to be more lit gag for the next ten years.

Ted Simons: I was going to say, this is a fascinating thing. It sounds like everything is very much in flux.

Gary Marchant: It is, up in the air.

Ted Simons: And good to have you here. Thanks for joining us.