Friday, October 28, 2011

Caught Between Election Reform and Early Primary

The State of Florida last spring enacted sweeping changes to its election laws, including provisions that tighten requirements on third party voter registration groups, reduce the number of early voting days from 14 to 8, and require voters who changed addresses to file a provisional ballot (instead of simply filing an affidavit), among others.  ( covered the changes here.)  The arguments were familiar: The State said the changes would ensure election integrity; critics cried vote suppression.

But five counties in Florida are covered jurisdictions under the Voting Rights Act.  The State must therefore get preclearance before it can enact the changes in those counties.  (The changes can go into effect in the rest of the State.)  Florida filed for preclearance with the Attorney General but later pulled four changes (including the three mentioned above) from the administrative process and sought preclearance for those four before a three-judge district court.  The State then added a claim that the VRA preclearance provision is unconstitutional. 

Most recently, Florida moved for an expedited schedule in an effort to get an opinion before its January 31 primary--which Florida pushed earlier.  Not surprisingly, the court denied the motion, writing that it can't possibly turn the case around on Florida's tight timeline.

The court also noted that Judge Bates's ruling just last month in Shelby v. Holder, upholding the preclearance provision against a constitutional challenge, is now on appeal to the D.C. Circuit, with oral argument scheduled for January 19.  The court said that any ruling on the constitutionality of the VRA here is best put off until the court gets word from the D.C. Circuit in Shelby.


October 28, 2011 in Cases and Case Materials, Congressional Authority, Elections and Voting, Fourteenth Amendment, News | Permalink | Comments (0) | TrackBack (0)

Thursday, October 27, 2011

Servicemembers File Complaint Challenging Constitutionality of DOMA

DOMA - - -  the Defense of Marriage Act - - - already suffering from legislative efforts at repeal and seriously questionable constitutional status, including the Obama DOJ's decision not to defend its constitutionality, has been challenged again. 

SLDNIn a Complaint filed today, the Servicemembers Legal Defense Network representing several plaintiffs, challenged the constitutionality of DOMA in conjunction with several other statutes that govern benefits for military servicemembers.  The Complaint was filed in the United States District Court for the District of Massachusetts, the same district in which Judge Tauro found DOMA unconstitutional in companion cases in July 2010.

Paragraph 67 of the Complaint distills the argument:

The current military family benefits regimes of Title 10, Title 32 and Title 38, particularly as modified by DOMA, fail to address the modern military. These laws were crafted at a time when gays and lesbians were precluded from openly serving in the military, and when same-sex marriages were not legal in the United States. While Congress may have assumed that Title 10, Title 32 and Title 38 effectively covered all military spouses in the past, that is not the current reality. The military is a reflection of our society as a whole. Now that same-sex marriages are legal, and gays and lesbians can serve openly in the military, service members -- such as the Plaintiffs -- with same-sex spouses do serve in the ranks. To maintain the uniformity of benefits that Congress believed it was creating in Title 10, Title 32 and Title 38, the definition of "spouse" must include these same-sex spouses as well.

The Constitutional grounds include Equal Protection, the Tenth Amendment, the fundamental constitutional right to marry (without a specific constitutional text), and Bill of Attainder. 

Most unique is the Bill of Attainder argument, based on Article I, Section 9 of the United States Constitution which states that "No Bill of Attainder or ex post facto Law shall be passed."  The Complaint alleges that the "Bill of Attainder clause prohibits as unconstitutional any law that legislative determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial."  The argument is that as a result of DOMA's application to federal military benefits,

the federal government imposes a disability upon a clearly identifiable class of persons involved in legally-recognized same-sex marriages, including Plaintiffs, for no purpose other than to punish them. Plaintiffs were denied federal military benefits that they would otherwise be entitled to if not for their membership in this clearly identifiable class. Thus, through DOMA, Plaintiffs have been subjected to an unconstitutional Bill of Attainder.

The defense of DOMA is expensive: the original contract awarded by House Speaker John Boehner to Bush-era Solicitor General Paul Clement and capped at $500,000 was reportedly raised to three times that amount - - -  $1.5 million dollars - - - earlier this month.  This newest lawsuit may occasion even higher costs. 


October 27, 2011 in Congressional Authority, Current Affairs, Equal Protection, Family, Federalism, Fundamental Rights, Sexual Orientation, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 26, 2011

Court Rejects Claim Against Municipality for Failure to Meet Pleading Standards

Judge Amy Berman Jackson (D.D.C.) yesterday dismissed a plaintiff's civil rights suit against the District of Columbia for failure to meet the pleading standard under Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly.

The plaintiff in the case, Garabis v. Unknown Officers, Elena Garabis, alleged assault and battery, excessive force, and unreasonable seizure in violation of the Fourth Amendment after District officers arrested her.  As part of her claims, Garabis alleged that officers used Tasers excessively and unnecessarily.  Garabis sued the officers and the District, alleging, under Monell v. Department of Social Services, that the District had a policy of deliberate indifference to the widespread use of Tasers.  (Under Monell, a plaintiff may sue a municipality for civil rights violations, but only if the plaintiff can show that the municipality had an official policy that led to the violations.  A plaintiff may not sue a municipality in vicarious liability, for the acts of its officers.)

But Garabis neglected to include this allegation in her complaint.  Instead, Garabis only wrote that the District employed the officers and that it was responsible for the police department.  Garabis offered more particular facts in support of her theory of Monell liability only in response to the motion to dismiss--too late for a ruling on a 12(b)(6) motion on the complaint.

Garabis can amend her complaint to include more particular facts in support of her Monell theory, and, in any event, the ruling does not affect her on-going case against the officers.

We only just recently posted on another Monell case that failed to meet the heightened pleading standard in Iqbal and Twombly, McCauley v. Chicago, out of the Seventh Circuit.  That ruling includes a lengthy and scathing dissent that roundly criticizes the standard set in those cases. 


October 26, 2011 in Cases and Case Materials, Fourth Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

North Carolina "Speech and Display" Ultrasound Requirement for Abortion Preliminarily Enjoined

United States District Judge Catherine Eagles has preliminarily enjoined N.C. Gen. Stat. § 90-21.85 on the basis of the First Amendment in a 19 page Opinion and Order  The statute was passed last summer, over the Governor's veto, and scheduled to become effective today.

The  statutory provision at issue, known as "speech and display," required:

  • that a woman undergo an ultrasound at least four hours before an abortion
  • that the physician or qualified technician working with the physician display the images produced from the ultrasound “so that the [patient] may view them,” 
  • that the providers give “a simultaneous explanation of what the display is depicting, which shall include the presence, location, and dimensions of the unborn child within the uterus,” and
  • that the providers give “a medical description of the images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.”

Judge Eagles noted that it was undisputed that these provisions compelled content-based speech, that the State mandated regardless of the provider's medical opinion, whether or not the provider wanted to deliver the message, and whether or not the patient wanted to receive the message.

600px-Seal_of_North_Carolina.svgThe State argued against the usual standard of strict scrutiny to evaluate such compelled content speech by claiming that the speech should be evaluated under an undue burden standard, or that the speech evaluated under the lesser standard for commercial speech.  Judge Eagles rejected both of these arguments because they had little, if any, support in precedent.

Judge Eagles thus found that the "speech-and-display requirements of the Act are subject to strict scrutiny under traditional and longstanding First Amendment principles" and that the State "must establish that the compelled speech required of the providers furthers a compelling state interest and that the requirements are narrowly tailored to achieve that interest."  She quickly added that the State had "not established either element."

Yet in her analysis, Judge Eagles tended to rely on the "narrowly tailored" prong of the strict scrutiny test.  As to the State's first asserted interest, "protecting abortion patients from psychological and emotional distress," Judge Eagles concluded that even if this was a compelling interest, the evidence in the record tended not to support a claim of protection, and indeed, tended to support a claim of the harm to "the psychological health of the very group the state purports to protect."  Similarly, as to the State's second asserted interest, "preventing women from being coerced into having abortions," Judge Eagles noted that the State did not articulate the relationship between the speech and display requirements and the interest, and that "none is immediately apparent." 

Judge Eagle did squarely address the "compelling" quality of the State's third and final interest - - - added at oral argument - - - of "promoting life and discouraging abortion," with contradictory language from Casey.  But again, Judge Eagles stressed the relationship prong: "In any event, even if the state has a compelling interest, the state has provided no evidence that alternatives more in proportion to the resulting burdens placed on speech would not suffice."

North Carolina is not alone is passing these restrictive and controversial mandates regarding ultrasounds, although as Judge Eagles' decision demonstrates, they are deeply problematical under First Amendment doctrine.


October 26, 2011 in Abortion, Current Affairs, Federalism, First Amendment, Opinion Analysis, Reproductive Rights, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 25, 2011

Seventh Circuit Dismisses Free Speech, Patronage Case

The Seventh Circuit today rejected the free speech claim of a frustrated candidate for promotion in the Cook County Sheriff's Office.  The case, Brown v. County of Cook, arose out of a sargeant's claim that he was denied promotion to lieutenant after he failed to support the Sheriff--and indeed supported his opponent--in the Sheriff's earlier election and re-election campaigns.

The plaintiff, Thomas Brown, brought the case under Rutan v. Republican Party of Illinois, another political patronage case coming out of Illinois, holding that "[u]nless these patronage practices are narrowly tailored to further vital government interests, we must conclude that they impermissibly encroach on First Amendment freedoms."

But Brown didn't even get that far.  Instead, the case turned on whether patronage was even a motivating factor.  Judge Posner wrote that the Seventh Circuit just this month affirmed its burden-shifting approach to that question:

If Brown presented evidence at the summary judgment phase of the litigation that could convince a reasonable jury that his political affiliation was a motivating factor in his being passed over, the burden would shift to [Sheriff] Sheahan to present evidence that could convince a reasonable jury that Brown's political affiliation was not a "but for" cause of the discrimination. . . .

To restate [our standard] in simpler terms, if Brown can prove that he would have been denied promotion because of his political affiliation alone, then to avoid an adverse judgment Sheahan would have to show that even so Brown would have been denied promotion for some other reason, in which event his political affiliation had no causal significance.  If Sheahan can meet that burden, it is as if he had told Brown "I can't promote you because there's no opening for another lieutenant, but if there were I still wouldn't promote you, because you made a donation to my opponent five years ago."  There would be no constitutional violation because if Sheahan was being truthful Brown would not be worse off as a result of his political affiliation than if he'd contributed to Sheahan's campaign instead.

Op. at 2-3.

The problem here: Brown had no evidence.  None.  And what he did produce did far more to entertain Judge Posner than it could ever do to prove his case.  The opinion's a good read, and the case is a good lesson in how not to win a First Amendment claim under Rutan.


October 25, 2011 in Association, Cases and Case Materials, First Amendment, Fundamental Rights, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, October 24, 2011

Florida's Mandatory Drug-Testing for "Welfare Recipients" Enjoined by Federal Judge

In an Order today, Federal District Judge Mary Scriven issued a preliminary injunction against the enforcement of Florida Statute §414.0652, a law championed by controversial governor Rick Scott requiring drug testing for each individual who applies for benefits under the federally funded TANF (Temporary Assistance for Needy Families) program to take a drug test, which must occur at an "approved laboratory" and be paid for by the applicant. 

In Lebron v. Wilkins, the challenger sought a preliminary injunction and argued that the statute violated the Fourth Amendment's protection against unreasonable searches.  The State argued the requirement for acquiescence to a drug test is not a search within the meaning of the Fourth Amendment; the statute is justified by the “special needs” of the State to conduct drug testing within the ambit of its administration of TANF funds; the plaintiff will suffer no irreparable harm in the absence of an injunction because he is free to refuse the drug test; and the public interest lies in ensuring that public funds are expended for their intended purposes and not in ways that will endanger the public.

Judge Scriven rejected each of these contentions. 

674px-H_William_Harper-Florida_LandscapeCertainly drug tests are within the ambit of the Fourth Amendment, Judge Scriven held, with a surfeit of citations to support her conclusion. 

Her most pointed analysis, however, concerned the State's argument of "special needs" for testing applicants for TANF.  The State's argument was undermined by the State's own evidence.  Florida's first drug-testing regime started in 1996 as a "Demonstration Project" to study and evaluate the “impact of the drug-screening and drug-testing program on employability, job placement, job retention, and salary levels of program participants” and to make “recommendations, based in part on a cost benefit analysis, as to the feasibility of expanding the program,” including specific recommendations for implementing such an expansion.   This program was allowed to expire by the Florida lesgilature under the statutory sunset provisions because the studies showed that TANF applicants rarely tested positive for substance abuse.  Indeed, they tested positive at a lower rate than the estimate for the Florida population at large.   Thus, the "exceptional circumstances" necessary to support "special needs" was contradicted by the State's own evidence.

As Judge Scriven wrote:

the State invokes the government’s general interest in fighting the “war on drugs” and the associated ills of drug abuse generally to contend that TANF funds should not be used to fund the drug trade. The Court agrees. But, if invoking an interest in preventing public funds from potentially being used to fund drug use were the only requirement to establish a special need, the State could impose drug testing as an eligibility requirement for every beneficiary of every government program. Such blanket intrusions cannot be countenanced under the Fourth Amendment.

What the Fourth Amendment requires is that such incursions by the Government must be reserved for demonstrated special needs of government or be based on some showing of reasonable suspicion or probable cause. The State has made no showing that it would be “impracticable” to meet these prerequisites in the context of TANF recipients. Any suggestion that it would be impracticable should be based on some evidentiary showing, and any such showing would likely be belied by the fact that other states competently administer TANF funds without drug tests or with suspicion-based drug testing and no other state employs blanket suspicionless drug testing.

The judge entered a preliminary injunction as to the individual plaintiff Lebron and noted the State's stipulation to apply the court's ruling to all persons similarly situated.

[image: William Harper, Florida Landscape via]

October 24, 2011 in Criminal Procedure, Current Affairs, Fourteenth Amendment, Fourth Amendment, Opinion Analysis | Permalink | Comments (2) | TrackBack (0)

Bork’s “75 page” Memo to Goldwater on the 1964 Civil Rights Act’s Unconstitutionality?

Did Robert Bork, as a law professor, write a “75 page” brief to Presidential Candidate Barry Goldwater arguing that the bill that would become the 1964 Civil Rights Act was unconstitutional?

Bork2Bork (pictured left) the controversial conservative and rejected Supreme Court nominee, has reappeared on the political scene as the co-chair of the legal advisory team of potential GOP Presidential candidate Mitt Romney.   He has recently also made news for opining that women are no longer discriminated against and do not need constitutional attention.

Bork has also long been famous for his argument that the 1964 Civil Rights Act, including Title VII, is unconstitutional.  Rand Paul has also made this argument, although at least one commentator distinguishes Rand Paul’s position from Goldwater’s based upon Goldwater’s “constitutional concerns” rooted in the “75 page brief” Bork sent to Goldwater as well as future Chief Justice William Rehnquist’s concerns.

When internet references to the “75 page” memo or brief mention a source, they cite to Richard Perlstein’s Before the Storm: Barry Goldwater.   Speaking on C-Span (written transcript provided), Perlstein in 2001 discussed Goldwater’s agonizing over the 1964 Civil Rights Bill which was resolved by the influence of Rehnquist’s statements and Bork’s 75 page memo against the Act.   In Perlstein’s book, he sources the Bork brief to James Perry, [A Report in Depth on] Barry Goldwater: A New Look at A Presidential Candidate.   Perry’s “Report in Depth” is a “Newsbook” peppered with photographs, published by the National Observer in 1964.   In the chapter “Men Around Goldwater,” the author names Bork as a “Goldwater favorite” and one of a number of law professors to whom “the Goldwater idea men went for advice” on the 1964 Civil Rights Bill.  Perry wrote:

The Goldwater staff asked for an objective, legal analysis by Professor Bork of the civil-rights bill.  They received a 75-page critique, which was used (along with other analyses) in preparing Mr. Goldwater’s statement against the bill.

 (at 25).

Scholars wishing to read the “75-page critique” by Bork sent to Goldwater - - - or to Goldwater’s staff - - - will have a difficult time obtaining it, as I learned when I asked faculty law librarians.  The memo is not in the seven volumes of Bork nomination materials compiled by Roy Mersky and J. Myron Jacobstein in their series of Supreme Court Nominees.  The Mersky and Jacobstein Volume 14-F, however, does include Bork’s notorious piece for The New Republic, “Civil Rights—A Challenge,” (August 31, 1963), arguing that the Act would be a “loss of liberty,” as well as the New Republic Editors’ reply and Bork’s rejoinder (here).  It is apparently not in the Goldwater papers at the Arizona Historical Foundation at Arizona State University or in the papers of Dean Burch, also at ASU, the Chair of the RNC in 1964.   As for the papers of Robert Bork, there may be some at the Library of Congress, although apparently Bork retains the authority to grant access.

Does the “75 page” memo still exist - - - perhaps a Xerox of a carbon copy - - - in someone’s files?  Did it ever?     

Almost a half-century has passed.  It is not that a missing document is nefarious (indeed, it sometimes seems a wonder that anything is preserved) or that Bork should be assumed not to have changed his opinions (indeed, he has recently stated that the “transition to a non-discriminatory society was much easier” than he thought it would be).  But page-number precise references to a document that is not available is intriguing. 

So, if you have a copy or have read a copy of that "75 page" memo, I’d love to hear from you.

[image: Robert Bork, 2007, via]

October 24, 2011 in Books, Commerce Clause, Congressional Authority, Courts and Judging, Current Affairs, Equal Protection, Federalism, Fourteenth Amendment, Gender, History, Profiles in Con Law Teaching, Race, Reconstruction Era Amendments, Scholarship, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Sunday, October 23, 2011

Next Steps for Libya

The Libyan National Transitional Council today declared Libya liberated from the Gaddafi regime and set the country on a path toward multiparty elections and a democratic constitution.  Prime Minister Mahmoud Jibril told the World Economic Forum yesterday that the NTC will set elections for a transitional national congress within 8 months.  The body will draft a new constitution, to be put to Libyans in a referendum, and form an interim government until the first presidential elections are held.  For more, check out reports from Al JazeeraReuters,, and the Gulf Times.

Whatever the NTC and the new congress come up with, it'll surely be an improvement over Gadhafi's home-made rambling handbook on governance, the Green Book.


October 23, 2011 in Comparative Constitutionalism, International, News | Permalink | Comments (0) | TrackBack (0)