May 19, 2012
Saturday Evening Review: Janai Nelson on Felon Disenfranchisement
Felon disenfranchisement is a US reality that conlawprofs from non-US constitutional democracies can find a bit startling. Its justifications are many, but Professor Janai Nelson considers whether the real motivation isn't "viewpoint discrimination" and if so, whether it is susceptible to constitutional challenge.
In The First Amendment, Equal Protection, and Felon Disfranchisement: A New Viewpoint, forthcoming in Florida Law Review, available on ssrn, Nelson considers cases regarding viewpoint discrimination in voting regulations, and examines the justifications for felon disfranchisement "identifying both the perceived viewpoint that legislatures intend to exclude and the viewpoint that is ultimately excised from the electoral process." She argues:
in the effort to exclude a ―criminal viewpoint, another potential viewpoint, which I term the ―canary viewpoint is excised from the body politic. The canary viewpoint refers to the miner‘s canary whose death signals atmospheric dangers in the mine. In the context of felon disfranchisement, the canary viewpoint results from the intersectionality of race, crime, and low socio- economic status that combine to create the disfranchised population. Random and disparate breaches of the social contract would suggest individual choice rather than systemic group-based causes produce this phenomenon. . . .
Without the benefit of the political participation of those citizens who have failed to uphold the social contract, it is more difficult to understand or attract sustained attention to the root causes of its breach. As a result, democracy functions by silencing those who might signal its failure.
Of course, any constitutional challenge to felon disenfranchisement must confront Richardson v. Ramirez (1974) in which the Court held that § 2 of the Fourteenth Amendment authorized states to deny voting rights based on a felony conviction. Nelson argues that Ramirez does not extend to intentional discrimination in the form of vote denial because of how persons (felons) may vote.
May 18, 2012
D.C. Circuit Upholds Key Provisions in Voting Rights Act
A divided three-judge panel of the D.C. Circuit today affirmed a lower court decision and upheld key provisions in the Voting Rights Act. The majority in Shelby County v. Holder held that Section 5, the so-called pre-clearance provision, and Section 4(b), the section that designates covered jurisdictions under Section 5, fell within congressional authority under the Fifteenth Amendment and thus were constitutional. We covered the case in the lower court here and here; those posts contain more thorough background.
The ruling tees up the case for Supreme Court review. The high Court has strongly suggested that it was just waiting for a good case to take on the constitutionality of these key provisions of the VRA. It dodged the constitutional question three years ago in Northwest Austin Municipal Utility District v. Holder. This case gives it a second crack, with the constitutional question unavoidably front-and-center.
When the case goes to the Supreme Court--and it's all but certain a "when," not "if"--it'll turn on how the Court treats and scrutinizes congressional findings (as it did in the D.C. Circuit). In particular: Do congressional findings adequately support Sections 5 and 4(b)? If we want a preview of those arguments, we can simply look to the arguments over methodology and congressional conclusions in this case--most or all of which are thoroughly vetted in the 100-page opinions.
But there's another question to watch for: By what measure will the Court scrutinize congressional findings? In other words: How much leeway will the Court give to Congress, if congressional findings don't exactly line up with Section 5 and 4(b). This Court has suggested that it won't give much.
Congress had a thorough record when it reauthorized the VRA in 2006. The question is whether it was thorough and precise enough for this Court. Based on what we've seen from this Supreme Court, the answer is probably no; and we should brace ourselves for a sharply divided ruling that the VRA exceeds congressional authority.
In the D.C. Circuit, Judge Tatel started the majority opinion with a hat-tip to Northwest Austin and the Court's statement there that there were serious constitutional questions with the VRA--showing the court's full recognition of the importance of this case. The ruling then uses the framework in Northwest Austin to analyze the constitutionality of Section 5:
First, emphasizing that section 5 "authorizes federal intrusion into sensitive areas of state and local policymaking that imposes substantial federalism costs," the Court made clear that "[p]ast success alone . . . is not adequate justification to retain the preclearance requirements." . . . Second, the Act, through section 4(b)'s coverage formula, "differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty."
Op. at 14.
In a ruling that claimed deference to congressional judgments--but nevertheless included scores of pages of scrutiny of those judgments--the court held that Congress had satisfied both questions in reauthorizing the VRA in 2006. (Along the way,the court held that the Fourteenth Amendment's "proportional and congruent" test is also the appropriate one for the Fifteenth Amendment.)
Judge Williams dissented, writing that Section 4(b), the section setting criteria for designation as a covered jurisdiction, was too rough a cut to meet the demands of the Fifteenth Amendment. This illustration summarizes the point:
Why should voter ID laws from South Carolina and Texas be judged by different criteria (at a minimum, a different burden of persuasion, which is often critical in cases involving competing predictions of effect) from those governing Indiana? A glimpse at the charts shows that Indiana ranks "worse" than South Carolina and Texas in registration and voting areas, as well as in black elected officials . . . . As to federal observers, Indiana appears clearly "better"--it received none . . . . As to successful Section 2 suits South Carolina and Texas are "worse" than Indiana, but all three are below the top ten offenders, which include five uncovered states . . . . This distinction in evaluating the different states' policies is rational?
Dissent, at 32.
May 18, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Elections and Voting, Federalism, Fifteenth Amendment, News, Opinion Analysis, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack
D.C. Circuit Rules VRA Challenge Moot
The D.C. Circuit ruled today in LaRoque v. Holder that a plaintiff's challenge to the preclearance provision of Section 5 of the Voting Rights Act was moot after the Attorney General withdrew its objection to a referendum making local elections nonpartisan in Kinston, North Carolina, a covered jurisdiction. We previously posted on the case here.
The ruling comes the same day as the same three-judge panel affirmed the constitutionality of Sections 5 and 4(b) of the VRA. (Judge Williams dissented in that case.)
The court rejected the plaintiff's claims that the AG might again object to voting changes (that the objections are capable of repetition but evading review) and that a ruling that Section 5 is unconstitutional would make it easier for the plaintiff to ask North Carolina to nullify the last election (conducted as a pre-referendum partisan election) and give him a do-over.
The ruling says nothing about the constitutionality of Section 5. But that doesn't matter: The other case today, Shelby County, affirming the constitutionality of Section 5, is all but certainly heading to the Supreme Court.
May 17, 2012
Christian-Dominated Town Prayer Violates Establishment Clause
The Second Circuit, in its opinion today in Galloway v. Town of Greece, found that the town meetings practice of legislative prayer since 1999 "impermissibly affiliated the town with a single creed, Christianity."
The evidence, as the unanimous panel described it, was that of the 130 different invocations between 1999 and June 2010, two-thirds contained references to “Jesus Christ,” “Jesus,” “Your Son,” or the “Holy Spirit.”
The other third were theistic, but more "generic," including ones by Christians, Jewish, and Baha'i prayer givers, all of whom referenced God. There was also a Wiccan prayer, in which the Wiccan priestess invoked Athena and Apollo, apropos of the Town’s name.
But it was not only the content of the prayers. As the court stated, in concluding that "the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint," because "an objective, reasonable person would believe that the town’s prayer practice had the effect of affiliating the town with Christianity," the conclusion is supported by "several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials." The court emphasizes that it did "not not rely on any single aspect of the town’s prayer practice, but rather on the totality of the circumstances present in this case."
The panel emphasized what would be constitutional: "a practice such as the one to which the town here apparently aspired" meaning one that is "inclusive of multiple beliefs and makes clear, in public word and gesture, that the prayers offered are presented by a randomly chosen group of volunteers, who do not express an official town religion, and do not purport to speak on behalf of all the town’s residents or to compel their assent to a particular belief." (emphasis added).
In short, one invocation to Athena out of 130 is simply not sufficient, and not only in Greece.
May 16, 2012
Eleventh Circuit: Pregnancy Discrimination Suit Against Religious School To Proceed
In a relatively brief and unanimous opinion in Hamilton v. Southland Christian School, the Eleventh Circuit reversed the district court's grant of a summary judgment in favor of the school.
"A woman of childbearing age was hired as a teacher at a small Christian school. Then she got pregnant, married, and fired. In that order. Then she filed a lawsuit. She lost on summary judgment. This is her appeal."
The next paragraphs, one would assume, would be devoted to discussing the ministerial exception. And they are. Except the discussion is devoted to the procedural status of the ministerial exception in this litigation. While the school did raise it as an affirmative defense, the district judge rejected it, but granted summary judgment on the ground that the teacher had not established a prima facie case that her pregnancy was the reason the school terminated her. On appeal, the school did not raise the ministerial exception defense as an alternativeground for affirmance; its "brief mentions the ministerial exception only once, and that is when describing the district court’s rulings: 'The Court determined that the ministerial exception did not apply in this case.' ” The school's attorneys did file a notice of Supplemental Authority several months later, citing Hosanna-Tabor Evangelical Lutheran Church & Sch. v. Equal Emp’t Opportunity Comm’n. But that, the Eleventh Circuit held, was not sufficient.
The court then found there remained material issues of disputed fact as to the reason the teacher was fired. The remand, for proceedings consistent with the opinion, presuambly leaves the "ministerial exception" door open for the district court.
[image: Woodcut from The Scarlet Letter, 1878, via]
Con Law Colloquium at Loyola Chicago
We previously posted a call for papers and registration for Loyola's Third Annual Constitutional Law Colloquium, Friday and Saturday, November 2 and 3, 2012. This is an outstanding colloquium and only gets better each year.
Just a reminder: Organizers are accepting 150- to 200-word abstracts and considering them on a rolling basis through the end of May. Send your abstract to firstname.lastname@example.org.
Our original post, with links, follows.
Loyola University Chicago School of Law is organizing the Third Annual Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611. The event will begin on Friday morning, November 2 and end midday on Saturday, November 3, 2012.
This is the third annual Loyola conference bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. Unless we are overwhelmed, we hope to be able to schedule presentations for all who submit. In this way, we will provide a forum for the vetting of ideas, invaluable opportunities for informed critiques, and networking opportunities. Presentations will be grouped by subject matter.
The Loyola Constitutional Law Colloquium is aimed at Constitutional Law, Legal History, Political Science, and Philosophy scholars teaching at the university, law school, and graduate levels on matters of constitutional law. We welcome applications from full-time, part-time, and adjunct faculty members, as well as post-doctoral fellows from academic discipline related to the study of constitutional issues (anthropology, history, law, literary criticism, philosophy political science, sociology, etc.).
Application Procedure: The registration and abstract submission deadline is May 31, 2012. Conference organizers will select abstracts on a rolling basis.
Registration at: http://www.luc.edu/law/conlawcolloquium/2012_conference/
May 15, 2012
D.C. Circuit Denies Emergency Stay in Van Hollen Suit Against FEC
The D.C. Circuit yesterday denied motions for an emergency stay pending appeal of the district court's ruling in Van Hollen v. FEC. That case involved Representative Chris Van Hollen's (D-Md) suit challenging the FEC's regulation on corporate disclosure of contributors in the wake of Citizens United. The district court ruled for Van Hollen, effectively requiring corporations to disclose all their contributors (and not just contributors who contributed for electioneering communication), or to establish a separate fund for electioneering communication (even though Citizens United held that such a fund is not required). The court's denial yesterday means that the district court ruling remains in effect pending the appeal to the D.C. Circuit.
The court's ruling yesterday, and the district court's ruling before, are both victories for Van Hollen and for greater disclosure of those who contribute to corporations and labor unions (which then use those contributions for electioneering communication). As it stands under BCRA, corporations and labor unions that engage in electioneering communication can now either (1) disclose all contributors (whether for electioneering communication or not), including anyone who gives a corporation money for any purpose, or (2) establish a segregated fund for contributions for electioneering communication and disclose only contributors to that fund. This may give corporations and labor unions an incentive to establish a segregated fund. (It's either that or disclose the names and addresses of anyone who paid more than $1,000 for any purpose. This could indeed create a hassle for corporations and labor unions, and it's not clear exactly how useful this kind of undifferentiated disclosure of any and all contributors would be.) But here's the twist: Citizens United held that corporations and labor unions can't be required to use a segregated fund for electioneering communication.
Still, nothing in the rulings in Van Hollen's case challenges Citizens United. Indeed, the rulings are in harmony with it and underscore the value of transparency. The rulings only mean that BCRA requires disclosure--even of all contributors, when a corporation or labor union declines to establish a segregated fund.
But this is certainly not the end of the case. The appeals court only ruled that the appellants hadn't established the stringent requirements for an emergency stay; it did not rule finally and definitively on the merits (even if it gave strong clues in favor of Van Hollen).
Here's some background:
Van Hollen sued the FEC over its December 26, 2007, disclosure regulation, which required disclosure of corporate and labor union contributors as follows:
If the disbursements were made by a corporation or labor organization pursuant to 11 CFR Sec. 114.15, the name and address of each person who made a donation aggregating $1,000 or more to the corporation or labor organization, aggregating since the first day of the preceding calendar year, which was made for the purpose of furthering electioneering communication.
11 CFR Sec. 104.20(c)(9). The problem, according to Van Hollen, was that the italicized limit on the disclosure requirement violated the plain language of the BCRA, which says:
(E) If the disbursements were paid out of a segregated bank account which consists of funds contributed . . . directly to this account for electioneering communications, the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to that account . . . .; or
(F) If the disbursements were paid out of funds not described in subparagraph (E), the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to the person making the disbursement during the period beginning on the first day of the preceding calendar year and ending on the disclosure date.
2 USC Sec. 434(f)(2). The problem was that Citizens United said that corporations and labor unions didn't have to use a segregated fund for electioneering communications--telling corporations and labor unions that they didn't have to use subsection (E). But without (E)--that is, without a segregated fund--corporations and labor unions apparently had to disclose all contributors (for electioneering purposes or not) under subsection (F). Yet the FEC regs--the italicized part above--requires disclosure of only those contributors who contributed for electioneering purposes.
The district court ruled that the FEC reg violated the BCRA.
The appeals court yesterday denied motions for an emergency stay of this ruling, writing that appellants hadn't satisfied the stringent requirements. The court was untroubled by the fact that the district court's ruling means that corporations must disclose all contributors (and not just those who contribute for electioneering communication): the appellants failed to show that they'd be silenced by such an interpretation. The court also said that corporations and labor unions could still establish a segregated fund under subsection (E), above, even though that's not required, and thus disclose only those contributors who contribute for electioneering communication. Finally, the court said that Van Hollen would be harmed by granting a stay, because he wouldn't be able to respond to electioneering communication funded by anonymous, non-disclosed sources.
May 14, 2012
Common Cause Sues to End the Filibuster
Common Cause led a group of plaintiffs today in filing suit against Senate officers to end the filibuster. Common Cause, joined by four members of the House of Representatives and three private citizens, sued Senate President Joe Biden and the Secretary, Parliamentarian, and Sergeant-at-Arms of the U.S. Senate in the U.S. District Court for the District of Columbia for declaratory and injunctive relief in an effort to end the super-majority 60-vote requirement to end debate in Senate Rule XXII.
The filibuster is the bane of every Senate majority, especially in recent times, when nearly every piece of significant legislation, and much else, requires a 60-vote majority in the Senate. Add secret holds, and the filibuster becomes a devilish and secretive way for the minority--and even just one anonymous Senator--to hold up legislation, nominations, and Senate business, without even stating why. But the Senate itself isn't suited to undo the super-majority requirement, even if it could. (That, as it turns out, could be quite a trick itself.)
Enter Common Cause. It argues that a minority in the Senate has used the filibuster to hold up all manner of legislation, including (most importantly, for this suit), the DISCLOSE Act (to tighten electioneering disclosure requirements in the wake of Citizens United) and the DREAM Act (to create a path to U.S. citizenship for certain aliens). It argues that the 60-vote requirement in Senate Rule XXII violates the default parliamentary majority-takes-all rule, the careful balance of powers in the legislative branch and between the three branches, and the power of the Senate itself to changes its own rules (because along with Rule V (which continues the Senate rules from Senate to Senate) Rule XXII seems to require that 3/5 of Senators vote to change Rule XXII). In particular, Common Cause argues that the filibuster violates the Quorum Clause, the Presentment Clause, the power of the VP to break a Senate tie, the Advice and Consent Clause, and the equal representation of the states in the Senate--all of which in different ways assume majority rule. It also argues that the filibuster is in tension with the eight constitutional exceptions to majority rule.
The plaintiffs ask the court to excise just the italicized portion of Rule XXII and otherwise leave it unaltered:
Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure . . . is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate . . . he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:
"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn--except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting then said measure . . . shall be the unfinished business to the exclusion of all other business until disposed of.
There are obvious and significant justiciability issues with the suit. Common Cause addresses some of them in the complaint and tries to cover its bases with the range of plaintiffs and alleged harms. But still, justiciability will be a major barrier to getting a court to hear the case on the merits.
At the very least, though, the case will help publicize the problem of misuse of the filibuster. And with enough publicity, who knows? Maybe the Senate will be inspired to find a political solution.
[Image: Common Cause's graphic version of the Senate's count of cloture votes.]
May 13, 2012
Sunday Book Review: Who's Afraid of Free Speech?
Ronald K.L. Collins and Sam Chaltain take the title of their book - - - WE MUST NOT BE AFRAID TO BE FREE - - - from Justice Black's dissent in In re Anastaplo, 366 U.S. 82 (1961). Con Law Prof George Anastaplo had argued for admission to the Illinois bar, despite his refusal to answer the questions of the state Committee on Character and Fitness pertaining to his membership in the Communist Party.
Collins and Chaltain devote their first chapter to Anastaplo, providing the "back story" and the doctrine. Subsequent chapters also promise similar engagements with well-known and lesser-known free speech cases. Harvard Law Review, in its "Recent Publications" segment, lauds the book: it " skillfully blends history and doctrine, furnishing the reader with an introduction to core free speech cases through vivid and real-life accounts of the parties, judges, and attorneys involved," providing " a deeply engaging work of scholarship for general readers and students of the law alike."
Published by Oxford University Press, this is a must-have for every ConLaw Prof teaching or writing about the First Amendment. The book has been out for a year, but ConLawProfs behind in their reading should put the book on this summer's reading list. As a terrific teaser, or refresher, an hour-plus long video of Collins and Chaltain discussing the book last year at The Thomas Jefferson Center for the Protection of Free Expression is available on C-Span here.