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California: court denies part of VA's motion for summary judgment in voter registration case

Scott Rafferty emails: Only one veteran at the Menlo Park veterans home voted in the 2004 primary. Under new Army policies, many acutely injured soldiers will be discharged and transported directly to Menlo Park, which has major facilities for brain injury and “polytrauma.” Like all incoming patients, they will lose their right to vote unless they re-register (or change their absentee mailing address).

I represent two persons who were threatened with arrest after they asked permission to register voters in April 2004 – ostensibly under color of a VA regulation banning “demonstrations.” Because the Federal Circuit has exclusive jurisdiction over VA rulemaking, the Ninth Circuit has required the district court to “deem” the regulation constitutional pending the action to set it aside in the Federal Circuit.

Yesterday, Judge Fogel issued a decision granting in part and denying in part the VA’s motion for summary judgment in the “as-applied” First Amendment challenge. The facial challenge to the 38 CFR 1.218 was fully briefed last week before the Federal Circuit and is awaiting oral argument.

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