Saturday, January 21, 2012

Ninth Circuit Rejects As Applied Challenge to Washington Election System

A three-judge panel of the Ninth Circuit this week rejected an as-applied challenge to the two-phase Washington state election system held over from the Supreme Court's ruling in Washington State Grange v. Washington State Republican Party (2008).

Recall that the state's election system under Initiative 872, or I-872, created a "top two" primary in which the primary operates to reduce the number of candidates in the general, rather than to select party nominees.  It works like this: Primary candidates can designate any "major or minor party preference, or independent status"; the top two vote-getters in the primary (even if they designated the same party preference) go on to compete in the general.

The Washington State Republican Party challenged I-872 on its face, aguing that it violated its First Amendment associational rights, because it forced it to associate (or share its name) with candidates that it might not endorse.  The Supreme Court upheld I-872 against the facial challenge in 2008.  But the Court left open the question whether Washington's primary ballots would in fact confuse voters, thus potentially violating associational rights as applied.

The Ninth Circuit answered that question on Thursday.  The court noted that Washington adopted each of the four suggestions offered by the Supreme Court in Grange to avoid voter confusion.  These included clarifications on the ballots themselves and voter educational material to ensure that voters would not confuse a candidate's preference for a party as a party's endorsement of that candidate.  The panel also held that the plaintiffs failed to produce evidence of actual voter confusion.  Between the ballot fixes and the lack of evidence of actual voter confusion, the court held that there was no severe burden on the party's associational rights.

The court also rejected the Libertarian Party's ballot access claim.  The Libertarians argued that the top-two primary made it much more difficult for their candidates to compete in the general election.  The court said that the system provided a level playing field for all parties, and that, while a top-two system may make it more difficult for minor party candidates to move on to the general, "[t]his additional burden, however, is an inherent feature of any top two primary system, and the Supreme Court has expressly approved of top two primary systems.  See Cal. Democratic Party v. Jones (2000)."  (Citation omitted.)


January 21, 2012 in Association, Cases and Case Materials, Elections and Voting, First Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Occupy Jacket-wearer Arrested at Supreme Court Building

The video below is entitled "Man Arrested for Wearing Occupy Jacket at Supreme Court" (h/t Virginia Wilber) and the title seems accurate.  Although we don't have a good view of the jacket, the officer clearly refers to it (and asks the wearer to remove it); the officer also states that the prohibition is not based on an ordinance, but on the U.S. Code. 

As we've previously discussed, two federal statutes applying to the Supreme Court Building prohibit the  "display therein any flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement."



Students of the First Amendment will recall Paul Robert Cohen's famous "Fuck The Draft" jacket worn in the corridors of a Los Angeles courthouse.  The Supreme Court in Cohen v. California (1971) reversed Cohen's conviction and held that California "may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense."  However, the Court's opinion added that the expletive was " "the only arguably sustainable rationale for the conviction."   Thus, Cohen is focused on the expletive rather than the content.  Yet perhaps ironically, Cohen's jacket would nevertheless be excluded by officers enforcing the Supreme Court policies - - - U.S. Code provisions - - - governing words on jackets.

Just as Justice Harlan began his opinion in Cohen by noting that the "case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance," the specific arrests for jacket-wearers may seem trivial.  Yet as otherwise allowed First Amendment expressions in and at the Supreme Court Building continue, the Supreme Court Building's status as a First Amendment-free zone might again be appropriate for review.


January 21, 2012 in Courts and Judging, Current Affairs, First Amendment, Fourteenth Amendment, Fundamental Rights, News, Speech, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Friday, January 20, 2012

Supreme Court Vacates Texas Court Redistricting Maps

The Supreme Court today vacated the Texas district court redistricting maps in Perry v. Perez, saying that it was "unclear whether [the district court] followed the appropriate standards in drawing" those maps.  The ruling sends the case back to the U.S. District Court for the Western District of Texas for more map-drawing, consistent with the standards set out in today's opinion.  We most recently posted on the case here.

The standard the Court set--that the district court should take guidance from a state's policy judgments, unless they reflect aspects of a plan that stand a "reasonable probability" of failing Section 5 preclearance--is a compromise between the positions taken by the parties.  "Reasonable probability" means that the Section 5 case is "not insubstantial"--a low bar--and leaves some room for a district court to deviate from a state's plan.  The approach requires the district court to determine the "reasonable probability" of the legislature's plan piece-by-piece (or aspect-by-aspect), and not as a whole; thus a district court has to leave in place any aspect of the legislature's plan that meets the standard.

As expected, the opinion said almost nothing about the constitutionality of Section 5 of the Voting Rights Act, the preclearance requirement.  (It only reiterated what it said in Northwest Austin--that it raises "serious constitutional questions"--and that those might be exacerbated with standardless map drawing by a district court.)  The Court also did not question a district court's ability to redraw district maps in a challenge under Section 2 of the Voting Rights Act; indeed, it gave guidance to the district court in how to do that.

The opinion was per curiam.  Only Justice Thomas wrote separately--a concurrence, arguing that Section 5 is unconstitutional.

The case arose out of the Texas district court's redrawing of Texas legislative maps in a case challenging the Texas legislature's maps under Section 2 of the Voting Rights Act.  The problem was that the Texas legislature's maps were pending Section 5 preclearance in the D.C. district, and the Texas primaries are impending.

The Court set the standard for the Texas court's redrawing of the maps in its opinion today:

To avoid being compelled to make such otherwise standardless decisions, a district court should take guidance from the State's recently enacted plan in drafting an interim plan.  That plan reflects the State's policy judgments on where to place new districts and how to shift existing ones in response to massive population growth. . . .  ["A] court, as a general rule, should be guided by the legislative policies underlying" a state plan--even one that was itself unenforceable--"to the extent those policies do not  lead to violations of the Constitution or the Votigin Rights Act." . . .

Section 5 prevents a state plan from being implemented if it has not been precleared.  But that does not mean that the plan is of no account or that the policy judgments it reflects can be disregarded by a district court drawing an interim plan.  On the contrary, the state plan serves as a starting point for the district court.  It provides important guidance that helps ensure that the district court appropriately confines itself to drawing interim maps that comply with the Constitution and the Voting Rights Act, without displacing legitimate state policy judgments with the court's own preferences.

A district court making such use of a State's plan must, of course, take care not to incorporate into the interim plan any legal defects in the state plan.  Where a State's plan faces challenges under the Constitution or Section 2 of the Voting Rights Act, a district court should still be guided by that plan, except to the extent those legal challenges are shown to have a likelihood of success on the merits.  Plaintiffs seeking a preliminary injunction of a statute must normally demonstrate that they are likely to succeed on the merits. . . .

The need to avoid prejudging the merits of preclearnace is satisfied by taking guidance from a State's policy judgments unless they reflect aspects of the state plan that stand a reasonable probability of failing to gain Section 5 preclearance.  And by "reasonable probability" this Court means in this context that the Section 5 challenge is not insubstantial.  That standard ensures that a district court is not deprived of important guidance provided by a state plan due to Section 5 challenges that have no reasonable probability of success but still respects the jurisdiction and prerogative of those responsible for the preclearance determination.  And the reasonable probability standard adequately balances the unique preclearance scheme with the State's sovereignty and a district court's need for policy guidance in constructing an interim map.  This Court recently noted the "serious constitutional questions" raised by Section 5's intrusion on state sovereignty.  Northwest Austin.  Those concerns would only be exacerbated if Section 5 required a district court to wholly ignore the State's policies in drawing maps that will govern a State's elections, without any reason to believe those state policies are unlawful.

Op. at 5-8.  The Court wrote that the Texas district court met this standard in some ways, that it did not meet it in others, and that it couldn't tell in yet others.


January 20, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Justice Stevens on Colbert Report on Citizens United, et. al.

In case you missed retired Justice JP Stevens on The Colbert Report:



The Colbert Report Mon - Thurs 11:30pm / 10:30c
Colbert Super PAC - John Paul Stevens
Colbert Report Full Episodes Political Humor & Satire Blog Video Archive


More on Justice Stevens and his new book, Five Chiefs here, and Clinton v. Jones here.


January 20, 2012 in Current Affairs, Supreme Court (US), Web/Tech | Permalink | Comments (2) | TrackBack (0)

Wednesday, January 18, 2012

Groups Challenge President's Recess Appointments

Plaintiffs in ongoing litigation filed a motion last Friday challenging President Obama's recent recess appointments to the NLRB.  We most recently posted on the appointments here and here.

The plaintiffs--including the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business--filed their initial complaint in the Federal District Court for the District of Columbia last September, alleging that the NLRB lacked authority under the National Labor Relations Act to implement several new rules, including one that would require employers to post notices to their employees of their rights under the NLRA.

In the motion last week, the plaintiffs sought to amend their complaint to add a new charge--that President Obama's recent recess appointments to the NLRB were unconstitutional, and therefore the NLRB didn't have sufficient sitting members to enforce its new rules.  From the memorandum in support of the motion:

The Board has lost its quorum due to the expiration of Member Becker's term and the President's failure to appoint new Board members with the advice and consent of the U.S. Senate, as required by Article II of the Constitution. . . .  The President's purported appointment of the new Board members on January 4, 2012 was unconstitutional, null and void.  As a result, there are at present only two validly serving members of the Board, Chairman Pearce and Member Hayes.  The Supreme Court has declared that the Board lacks authority to act with only two members.  New Process Steel, L.P. v. NLRB.



January 18, 2012 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

SOPA & Protect-IP Bills Provoke First Amendment Concerns

300px-NO_SOPA.svgSOPA, the Stop Online Privacy Act, H.R.3261, and its Senate counterpart, Protect-IP Act, S. 968, seek to protect copyright on the internet.  It has provoked a day of protest today, including "blackouts" by Wikipedia, Reddit, and other sites, contending that the bills violate the First Amendment.

SOPA has a savings clause in §2(a)(1) that provides

"FIRST AMENDMENT- Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution."

However, as Laurence Tribe's 20+ page memo on the unconstitutionality of SOPA concludes:

To their credit, SOPA’s sponsors recognize the importance of the constitutional issues raised by the statute they propose. The bill includes language stating “[n]othing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1stAmendment to the Constitution.” But proclaiming the bill to be constitutional does not make it so – any more than reminding everyone of a proposed law’s good intentions renders that law immune to First Amendment scrutiny. At the same time, the proviso may have the unintended effect of rendering large swaths of the bill inoperative. For it is difficult to understand how the provisions discussed above would operate except  as impermissible prior restraints. The proviso creates confusion and underscores the need to go back to the drawing board and craft a new measure that works as a scalpel rather than a sledgehammer to address the governmental interests that SOPA purports to advance.

A good collection of the arguments against SOPA is over at Center for Democracy and Technology, including "long-form analysis" by both The Heritage Foundation and the ACLU.

As the LATimes reports today, SOPA and Protect-IP are losing Congressional support, including from former co-sponsors. It may be that the legislation may be reworked to be more scalpel-like.


January 18, 2012 in Current Affairs, First Amendment, Speech, Web/Tech, Weblogs | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 17, 2012

CFP: Gardens of Justice

What are constitutions if not plans for gardens?

476px-Frederick_Carl_Frieseke_-_Femme_dans_un_jardinA wonderful and imaginative call for papers for a critical legal conference in Stokholm this September, via Kate Sutherland at Osgoode Hall's law.arts.culture.

From the CFP: "The theme for next year’s Critical Legal Conference is “Gardens of Justice”. Although the theme may be interpreted in different ways, it suggests thinking about law and justice as a physical as well as a social environment, created for specific purposes, at a certain distance from society and yet as an integral part of it. The theme also invites you to think about justice as a concrete metaphor rather than an abstract concept. Just like any ordinary garden, legal institutions affect both people working in them and people who are just passing through their arrangements."


Critical legal conference 2012

to be held in Stockholm, 14-16 September, 2012

deadline for submissions
streams, roundtables and workshops: 31 March 2012; individual papers: 31 May 2012

[image: Frederick Carl Frieseke's Femme dans un jardin, 1912 via]

January 17, 2012 in Congressional Authority, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Fourth Circuit to Rick Perry (and Gingrich): Laches, Laches, Laches

"We cannot grant Movant’s request for this extraordinary remedy. We find it unnecessary to address whether Movant would ikely succeed in his constitutional challenges because the district court was correct in concluding that the defense of laches bars the requested relief on the instant motion in any

In its opinion today, the Fourth Circuit affirmed the district court and rejected the emergency appeal of Rick Perry - - - and intervernor Newt Gingrich - - - seeking to be placed on the Republican Presidential Primary ballot in Virginia.

The Fourth Circuit panel found both prongs of the laches inquiry satisfied and rooted its reasoning in the need for judicial restraint.  In short, a federal court should not disrupt an orderly election process based on complaints by candidates who waited until the "eleventh hour" to bring their claims.  To do otherwise would be to

encourage candidates to wait until the last minute to bring constitutional challenges to state election laws. Once a candidate learned he had been denied a place on the ballot, he would take his disappointment to the courthouse and hapless state election boards would be forced to halt their scheduled election processes to wait for a ruling. Challenges that came immediately before or immediately after the preparation and printing of ballots would be particularly disruptive and costly for state governments.

The panel also turned the lack of standing and ripeness arguments advanced by the candidates to their disadvantage: while the candidate "predicts that he would have met the 10,000 signature threshold if only he had been allowed to use non-Virginia residents to gather signatures, such counterfactual speculation is not the office of the federal judiciary." 


It is unlikely that the United States Supreme Court will intervene; thus it does seem that Perry, Gingrich, and Santorum will not join Ron Paul and Mitt Romney on the Virginia ballot. 


January 17, 2012 in Current Affairs, Elections and Voting, First Amendment | Permalink | Comments (0) | TrackBack (0)

Monday, January 16, 2012

MLK Day 2012

MLK Jan 2012 1President Obama's Presidential Proclamation on Martin Luther King Day, 2012, includes these words:

At a time when our Nation was sharply divided, Dr. King called on a generation of Americans to be "voices of reason, sanity, and understanding amid the voices of violence, hatred, and emotion."  His example stirred men and women of all backgrounds to become foot soldiers for justice, and his leadership gave them the courage to refuse the limitations of the day and fight for the prospect of tomorrow.  Because these individuals showed the resilience to stand firm in the face of the fiercest resistance, we are the benefactors of an extraordinary legacy of progress.

Today, Dr. King is memorialized on the National Mall where he once spoke, a symbol of how far our Nation has come and a testament to the quiet heroes whose names may never appear in history books, but whose selflessness brought about change few thought possible.  Dr. King's memorial reminds us that while the work of realizing his remarkable dream is unending, with persistence, progress is within our reach.

On the MLK memorial itself, the "drum major" quote has been the subject of controversy and is being "corrected."  The government sponsored MLK Day of Service continues to include the Drum Major for Service Award, as well as the correct/full "drum major" quote:   "Yes, if you want to say that I was a drum major, say that I was a drum major for justice; say that I was a drum major for peace; I was a drum major for righteousness… We all have the drum major instinct.”  Excerpt from The Reverend Dr. Martin Luther King, Jr.'s "Drum Major Instinct" sermon, given on February 4, 1968.

For ConLaw scholars, it might also be a good day to (re)read Randall Kennedy's "Martin Luther King's Constitution: A Legal History of the Montgomery Bus Boycott," 98 Yale Law Journal 999 (1989) (available on JSTOR) or Camille Nelson's " The Radical King: Perspectives of One Born in the Shadow of a King," 32 New York University Review of Law & Social Change, 485(2008) (available on ssrn), or view MLK's last speech.

[image: personal collection]

January 16, 2012 in Current Affairs, Equal Protection, History, Race, Reconstruction Era Amendments, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, January 15, 2012

. . . and Candidate Rick Perry has filed an appeal to the Fourth Circuit

422px-RickPerry2006Republican Presidential Candidate Rick Perry has appealed from the district court's order denying his First Amendment claim for a preliminary injunction. 

In the emergency motion for injunction pending appeal, Perry's attorneys argue that the requirements for laches - - - lack of diligence by plaintiff and prejudice to defendant - - - were not satisfied.  

[image: Governor Rick Perry, 2006, via]


January 15, 2012 in Association, Current Affairs, First Amendment, News, Ripeness, Speech, Standing | Permalink | Comments (0) | TrackBack (0)