Monday, October 10, 2016

Federal Judge Extends Florida Voter Registration Because of Hurricane

In an Order in Florida Democratic Party v. Scott, United States District Judge Mark Walker extended the voter registration until Wednesday, October 12, at 5:00pm and also scheduled a hearing for that afternoon for further determinations.

As Judge Walker explained the facts:

Florida’s voter registration deadline for the 2016 election cycle is currently set for Tuesday, October 11, 2016. For aspiring eligible voters, failing to register by that date effectively forecloses the right to vote in the 2016 election. Just five days before that deadline, however, Hurricane Matthew bore down and unleashed its wrath on the State of Florida. Life-threatening winds and rain forced many Floridians to evacuate or, at a minimum, hunker down in shelters or their homes. Like Hurricane Matthew, the voter registration deadline also approached and bore down on the State of Florida. Citing the impending Hurricane, many urged the Governor of Florida, Defendant Rick Scott, to extend the deadline. But Defendant Scott demurred, asserting instead that Floridian’s had other avenues to ensure that their right to vote was protected.

Judge Walker first considered whether the Florida Democratic Party had standing to assert the rights of voters, quickly concluding it had.  Judge Walker next decided that while the second named defendant, Ken Dentzer, as Secretary of State was a proper defendant, Governor Scott was not.  Judge Walker concluded that while Governor Scott had statutory general emergency management powers, this did not include extending voter registration.  Thus, the judge held that Governor Scott has no power in this regard and is not a proper defendant.

Hurricane Matthew approaches Florida 7 October 2016 NASA via
On the merits in the context of the Temporary Restraining Order (TRO), Judge Walker applied the well-established test of Burdick v. Takushi (1992) regarding challenges to state election laws: courts considering a challenge to state election laws “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” 
Judge Walker concluded there was a severe burden on voting rights.  He noted that Florida's statutory framework includes no provision that extends the voter registration in an emergency.  Given the hurricane, "Florida’s statutory framework completely disenfranchises thousands of voters, and amounts to a severe burden on the right to vote."  A severe burden warrants strict scrutiny.  Judge Walker concluded that even if Florida could articulate a compelling state interest - - - adding in parenthesis ("and this Court doubts that it can") - - - it "is nonsensical to argue that it is narrowly tailored to that interest."  Further, even if more lenient scrutiny was afforded, Florida's statutory scheme would be unconstitutional.

Even assuming that Florida’s statutory framework was subject to a more flexible Anderson–Burdick test, it still would be unconstitutional. In no way could Defendants argue that there is some sort of limitation that requires them to burden the constitutional rights of aspiring eligible voters. Many other states, for example, either extended their voting registration deadlines in the wake of Hurricane Matthew or already allow voter registration on Election Day.  There is no reason Florida could not do the same. In so ruling, this Court is not suggesting that Florida has to allow voter registration up to Election Day. Rather, it simply holds that the burden on the State of Florida in extending voter registration is, at best de minimis. . . .

Finally, Florida’s statutory framework is unconstitutional even if rational basis review applied (which it does not). Quite simply, it is wholly irrational in this instance for Florida to refuse to extend the voter registration deadline when the state already allows the Governor to suspend or move the election date due to an unforeseen emergency.

[citations omitted].

    After finding that the TRO criteria supported the restraining order, Judge Walker added that the order was necessary state-wide because "Hurricane Matthew’s effects are not circumscribed to one region of the state." He reasoned that it "would be grossly inappropriate, for ex- ample, to hold that aspiring eligible voters in Jacksonville could register later than those in Pensacola."  

Therefore, this Order holds that Florida’s current statutory framework is unconstitutional. That unconstitutionality is not limited to those in the areas most affected by Hurricane Matthew. It extends to the entire State of Florida.

Thus, Floridians have at least one additional day to register to vote for the November 9 election.


In a brief Order after the hearing on October 12, Judge Walker granted the preliminary injunction "for the same reasons" articulated in the TRO order and extended the deadline to Tuesday, October 18, 2016.

October 10, 2016 in Due Process (Substantive), Elections and Voting, Eleventh Amendment, Equal Protection, Opinion Analysis | Permalink | Comments (0)

Thursday, September 29, 2016

First Circuit: Statute Prohibiting "Ballot Selfies" Violates First Amendment

In its opinion in Rideout v. Gardner, the First Circuit, affirming the district judge, held that New Hampshire's prohibition of "ballot selfies" violates the First Amendment.

New Hamp. Rev. Statute §659.35, I, was amended in 2014 to provide:

No voter shall allow his or her ballot to be seen by any person with the intention of letting it be known how he or she is about to vote or how he or she has voted except as provided in RSA 659:20. This prohibition shall include taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.

(amended language underlined). The rationale for the statute was to prevent situations in which voters could be coerced into providing proof that they voted in a particular way, and thus as a means to prevent vote-coercion or vote-buying. 

polling place 1900 via

Judge Sandra Lynch's succinct opinion for the First Circuit panel includes a discussion of the nineteenth century practice in which political parties and other organizations had the power to print their own ballots, which they printed in a manner as to make the ballots easily identifiable by size and color.  "This practice allowed the ballot-printing organizations to observe how individuals voted at the polls, which in turn created an obviously coercive environment. "  Thus, "New Hampshire undertook a series of reforms to combat widespread vote buying and voter intimidation" and in 1891 passed legislation requiring the Secretary of State to prepare ballots for state and federal elections, and in 1911 passed the precursor statute forbidding any voter from allowing the "ballot to be seen by any person, with the intention of letting it be known how he is about to vote."

New Hampshire's problem in defending the constitutionality of the 2014 statute is that the problem of vote-buying and coercion has been solved.  As Judge Lynch stated, New Hampshire could not point to any such incidents since the nineteenth century (with the last complaint, seemingly unsubstantiated, being in 1976).  While the state's interests might be compelling in the abstract, they need to be real.  A broad prophylactic prohibition is unwarranted, despite worries about new technologies and media.  Indeed, Judge Lynch wrote:

Digital photography, the internet, and social media are not unknown quantities -- they have been ubiquitous for several election cycles, without being shown to have the effect of furthering vote buying or voter intimidation. As the plaintiffs note, "small cameras" and digital photography "have been in use for at least 15 years," and New Hampshire cannot identify a single complaint of vote buying or intimidation related to a voter's publishing a photograph of a marked ballot during that period.

And even if there were a present problem that needed solving, "the statute still fails for lack of narrow tailoring."  Judge Lynch's opinion for the panel stated that the statute infringed on the rights of all voters and not the smaller (or even nonexistence) pool of those motivated to cast a vote for illegal reasons.  Additionally, there exist other state and federal laws prohibiting vote corruption which are adequate to address the problem, should it arise.  In an interesting footnote, the court lists statutes from other states allowing ballot selfies and notes that these states have not reported "an uptick" in vote buying or voter intimidation.

SnapchatThe First Circuit opinion applied intermediate scrutiny under the First Amendment.  The district judge had concluded the New Hampshire statute was a  content-based regulation and applied strict scrutiny.  However, relying on McCutcheon v. FEC (2014), the First Circuit reasoned that given that the statute fails the lower intermediate standard, the court need not "parse the differences" between the two standards in this case.  Nevertheless, the First Circuit did note that the New Hampshire statute affects voters who are engaged in "core political speech," and in a footnote quoted from the amicus brief for Snapchat that "younger voters" especially use ballot selfies as political expression.

Governments contemplating prohibiting "ballot selfies" would be wise to reconsider after a read of Rideout v. Gardner.

September 29, 2016 in Campaign Finance, Cases and Case Materials, Elections and Voting, Film, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Monday, September 26, 2016

SCOTUS ConLaw Cases Preview for 2016-17 Term

The United States Supreme Court hears only small fraction of cases: The Court hears about 80 cases a year, of the approximately 8,000 requests for review filed with the Court each year, flowing from the approximately 60, 000 circuit court of appeals decisions and many more thousands of state appellate court opinions. And of this small fraction, generally about half involve constitutional issues, including constitutional criminal procedure issues.

Not surprisingly then, with the new Term starting October 3, the traditional first Monday in October, there are only a handful of constitutional law cases included among the less than 30 the Court has already accepted.


The Court is set to hear two racial gerrymandering cases, both of which involve the tensions between the Voting Rights Act and the Equal Protection Clause with underlying political contentions that Republican state legislators acted to reduce the strength of Black voters; both are appeals from divided opinions from three-judge courts. In Bethune-Hill v. Virginia State Board of Elections, the challenge is to the three-judge court’s decision and order holding that a number of Virginia House of Delegates districts did not constitute unlawful racial gerrymanders in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Virginia concededly did consider race in the redistricting, but the more precise issue is an interpretation under current doctrine regarding whether race was the predominant (and thus unconstitutional) consideration. The three-judge lower court is faulted for requiring an “actual” conflict between the traditional redistricting criteria and race. The petitioners argue that “where a legislature intentionally assigns voters to districts according to a fixed, nonnegotiable racial threshold, “strict scrutiny cannot be avoided simply by demonstrating that the shape and location of the districts can rationally be explained by reference to some districting principle other than race.” If it were other-wise, they argue, even the most egregious race-based districting schemes would escape constitutional scrutiny. In McCrory v. Harris, a racial gerrymandering case involving North Carolina, the challenge is to a three-judge court’s decision finding a constitutional Equal Protection Clause violation. The plaintiff originally argued that the congressional map drawn by the NC Assembly in 2011 violated the Equal Protection Clause in two districts by making race a predominant factor and by not narrowly tailoring the districts to any compelling interest. North Carolina argues that the conclusion of racial predominance is incorrect and that it need not show that racial considerations were “actually necessary” as opposed to “having good reasons” under the Voting Rights Act. The North Carolina districts have been long controversial; a good timeline is here.

In another Equal Protection Clause case, the classification is sex rather than race.  In Lynch v. Morales-Santana, the underlying problem is differential requirements regarding US presence for unwed fathers and unwed mothers to transmit citizenship to their child; the Second Circuit held that the sex discrimination was unconstitutional, subjecting it to intermediate scrutiny under equal protection as included in the Fifth Amendment. The United States argues that because the context is citizenship, only rational basis scrutiny is appropriate. This issue has been before the Court before. The last time was 2011 in Flores-Villar v. United States when the Court's per curiam affirmance by an "equally divided Court" upheld the Ninth Circuit’s finding that the differential residency requirement satisfied equal protection. In Flores-Villar, Kagan was recused. The Court hearing Morales-Santana, scheduled for oral argument November 9, will also seemingly be only eight Justices, but this time including Kagan.

Trinity Lutheran Church of Columbia, Mo. v. Pauley also includes an Equal Protection issue, but the major tension is between the Free Exercise of Religion Clause of the First Amendment and principles of anti-Establishment of Religion. Like several other states, Missouri has a so-called Blaine Amendment in its state constitution which prohibits any state monies being used in aid of any religious entity. It is concededly more expansive/restrictive than the US Constitution’s Establishment Clause in the First Amendment as the United States Supreme Court has interpreted it. Missouri had a program for state funds to be awarded to resurface playgrounds with used tires; the state denied the Trinity Lutheran Church preschool’s application based on the state constitutional provision. Trinity Lutheran argues that the Blaine Amendment violates both the Free Exercise Clause and the Equal Protection Clause, with the Eighth Circuit siding with the state of Missouri.

There are also several cases involving the criminal procedure protections in the Constitution.  Pena-Rodriguez v. Colorado involves a claim of racial bias on a jury in a criminal case. The Colorado Supreme Court resolved the tension between the “secrecy of jury deliberations” and the Sixth Amendment right to an impartial jury in favor of the former interest. The court found that the state evidence rule, 606(B) (similar to the federal rule), prohibiting juror testimony with some exceptions was not unconstitutional applied to exclude evidence of racial bias on the part of a juror.  Bravo-Fernandez v. United States involves the protection against “double jeopardy” and the effect of a vacated (unconstitutional) conviction. It will be argued in the first week of October. Moore v. Texas is based on the Eighth Amendment’s prohibition of cruel and unusual punishment, with specific attention to capital punishment and the execution of the mentally disabled. In short: what are the proper standards for states to make a determination of mental disability?

Finally - - - at least for now - - - the Court will also be hearing a constitutional property dispute.  Murr v. Wisconsin involves the Fifth Amendment’s “Taking Clause,” providing that private property cannot be “taken” for public use without just compensation. At issue in Murr is regulatory taking. The Court granted certiorari to a Wisconsin appellate court decision regarding two parcels of land that the Murrs owned since 1995; one lot had previously been owned by their parents. Under state and local law, the two lots merged. The Murrs sought a variance to sell off one of the lots as a buildable lot, which was denied. The Murrs now claim that the denial of the variance is an unconstitutional regulatory taking. The Wisconsin courts viewed the two lots as the “property” and concluded that there was no regulatory taking.

We will be updating this post as the Court adds more cases to its docket.

UPDATE September 29, 2016:  The Court granted certiorari to two important First Amendment cases.

September 26, 2016 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Current Affairs, Elections and Voting, Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Race, Religion, Sixth Amendment, Takings Clause | Permalink | Comments (0)

Sunday, September 25, 2016

Ninth Circuit: Green Party's First Amendment Challenge to Arizona's 180-day Party Recognition Deadline

In its opinion in Arizona Green Party v. Reagan, the Ninth Circuit affirmed the district judge's grant of summary judgment in favor of Arizona's Secretary of State, Michele Reagan, in a challenge to Arizona Revised Statute §16-803(A).  The statute requires a petition for recognition of a "new" - - - or actually a minor - - - party to be filed "not less than one hundred eighty days before the primary election for which the party seeks recognition.  The challenge involved the 2014 election; the Green Party had lost its official status the prior year because it failed to garner 5% of the vote and was thus treated as a "new" party under the statute.  The Ninth Circuit first held that there was not an issue of mootness because the deadline issue was likely to "surface again," fitting into the exception for mootness of claims that are “capable of repetition, yet evading review.”

The Ninth Circuit considered the merits of the challenge as one of ballot access and articulated the balancing tests of Anderson v. Celebrezze, 460 U.S. 780 (1983) and Burdick v. Takushi, 504 U.S. 428 (1992).  But the Ninth Circuit essentially found any required balancing was impossible because of the Arizona Green Party's stance that the "deadline was unconstitutional as a matter of law" and submitted no evidence to support its claim that the 180-day deadline burdened its constitutional rights.

Analogy and rhetoric are no substitute for evidence, particularly where there are significant differences between the cases the Green Party relies on and the Arizona election system it challenges. The Supreme Court and our sister circuits have emphasized the need for context-specific analysis in ballot access cases. . . .

That filing deadlines of similar lengths may prove unconstitutionally burdensome in the context of some election schemes does not eliminate the need for evidence that a severe burden was imposed by the filing deadline in this case.

Thus, "absent evidence of the particular burdens imposed in this case," the panel concluded that  "at best, the 180-day petition- filing deadline imposes a de minimis burden on constitutional rights."  And given the de minimus burden, Arizona faced a very low hurdle: that the filing deadline served "important regulatory interests."

Unlike the Green Party, the Secretary [of State of Arizona] presented substantial evidence that details the processes for ballot access and the rationale behind each step in the timeline at each stage of the election process. The nested deadlines leading up to the Arizona primary, as well as the tasks that must be accomplished between the primary and general election, reflect an effort by the state to achieve the important goal of orderly elections. For example, the number of required signatures for independent candidate petitions depends on the number of registered voters who are not affiliated with a recognized party. For this reason, the state must know how many recognized parties will appear on the ballot before setting the candidate signature requirements, at which point candidates have two months to collect signatures. As Arizona’s Assistant State Election Director explained, “[i]f the petition deadline to obtain recognized party status were moved to a later date, new party candidates would have little or no meaningful opportunity to obtain the requisite number of signatures to qualify for the party’s primary ballot.” She also noted that in late May, Arizona counties mail a list of recognized political parties holding primaries in a particular election to the more than 1.9 million early registered voters, and that adding additional parties after the mailing deadline could therefore impose considerable burdens on the counties and lead to voter confusion. Also, in preparation for the primary, ballots must be translated into Spanish and several Native American languages, a process that takes time.

It does seem as if the Green Party of Arizona might have a successful challenge if it could marshal its evidence of the burden it faces under the 180-day deadline.

September 25, 2016 in Elections and Voting, First Amendment, Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0)

Wednesday, September 21, 2016

District Court Orders Texas to Halt its Nonsense Over Voter ID

After the Fifth Circuit ruled this summer that Texas's voter ID law violated the Voting Rights Act, and after a district court ordered the state to educate voters on voting requirements in light of that ruling (that voters need not produce ID), Texas continued to play games to dodge the courts' rulings and hassle voters. For example, the state issued misleading materials that mischaracterized language in the district court's order, and state officials threatened to investigate anyone who signed a declaration saying that they couldn't get the required ID.

So the district court issued a new order yesterday, requiring the state to re-issue press releases, edit printed material to go at polling places, edit its web-site and online materials, and "provide counsel for all Plaintiffs scripts and copy for documents and advertisements that have not yet been published for review and objection prior to publication."

The Texas AG is reportedly planning to seek Supreme Court review of the Fifth Circuit ruling this week.

The Brennan Center has all the litigation documents and a good overview of the case here.

September 21, 2016 in Cases and Case Materials, Elections and Voting, News | Permalink | Comments (0)

Saturday, September 3, 2016

EnBanc Ninth Circuit Rejects Equal Protection Challenge to Tucson's City Council Election Scheme

In its en banc opinion in Public Integrity Alliance v. City of Tucson, the Ninth Circuit held that Tucson's "hybrid system" for electing members of its city council does not violate the Equal Protection Clause.  The staff summary succinctly describes this hybrid system:

Tucson is divided into six wards of approximately equal population, and each ward is allotted one seat on the six- member city council. Council members are elected through a hybrid system involving a ward-level partisan primary election and an at-large partisan general election. The top-vote getter from each party eligible for inclusion on the ward- level primary ballot advances to an at-large general election where she competes against the other candidates nominated from the same ward. In the general election, every Tucson voter may vote for one candidate from each ward that held a primary.

Tucson-logoImportantly, once elected, the city council members represent the entire city.  The challenge to this system rested upon a denial on the one-person one-vote principle in equal protection doctrine.  The challenger Public Integrity argued that either an entirely ward-based system or an entirely at-large system would be constitutional, but the hybrid combination resulted in For the challenger, the hybrid system means that Tucson voters are denied the right to participate in the primary elections for all but one of their representatives. 

The court noted that although primary elections are "indisputably" state action subject to the same constitutional constraints as general elections, this dis not mean that "primaries and general elections must be identically structured and administered." The court thus rejected the challenger's contention that Gray v. Sanders (1963) mandated that the primary and general election use the same geographical units.  Instead, the court applied the balancing test of Burdick v. Takushi (1992) for less than "severe restrictions."  (Recall that in Burdick, the Court upheld Hawai'i 's ban on write-in voting). The Ninth Circuit here found Tucson's restrictions minimal and found they were justified by Tucson's "important" interests including to "promote local knowledge and legitimacy, geographic diversity, and city-wide representation on the city council."  

Eleven (of the 29) active judges of the Ninth Circuit participated in this en banc opinion, authored by Judge Marsha Berzon, and affirming the district judge.  Judge Berzon's relatively brief and straightforward opinion provoked no dissenting or concurring opinions.  It does overrule a previous Ninth Circuit case decided in 1994 on the basis that it articulated a different standard than that required by Burdick.  Perhaps the clearest message from the court is that it deferred to a "careful longstanding choice" that is a "product of our democratic federalism" allowing experimentation even where "the best solution is far from clear."

September 3, 2016 in Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, Opinion Analysis, State Action Doctrine | Permalink | Comments (0)

Friday, July 29, 2016

Fourth Circuit Enjoins North Carolina's Voting Amendments as Discriminatory

In its extensive opinion in North Carolina State Conference of the NAACP v. McCrory, the Fourth Circuit has permanently enjoined the implementation of North Carolina SL 2013-381’s photo ID requirement and changes to early voting, same-day registration, out-of-precinct voting, and preregistration.  The Voter Information Verification Act, the Fourth Circuit concluded, made a racial classification although it seemed neutral, reasoning that

on the day after the Supreme Court issued Shelby County v. Holder (2013), eliminating preclearance obligations, a leader of the party that newly dominated the legislature (and the party that rarely enjoyed African American support) announced an intention to enact what he characterized as an “omnibus” election law. Before enacting that law, the legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.


In response to claims that intentional racial discrimination animated its action, the State offered only meager justifications. Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the State’s true motivation.

The Fourth Circuit concluded that the North Carolina Voter Information Verification Act violated both the Fourteenth Amendment's Equal Protection Clause and §2 of the Voting Rights Act.  For both, the hurdle was finding the legislature acted with racially discriminatory intent.  Most of the opinion is devoted to this discussion. The Fourth Circuit reversed the district judge on this basis, writing that the judge seemed "to have missed the forest in carefully surveying the many trees," and ignoring "critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina."

In the Equal Protection analysis, the Fourth Circuit applied the well-established requirement of racial intent (as well as effects) from Washington v. Davis. In considering whether the seemingly-neutral voting requirements were enacted “because of,” and not “in spite of,” their discriminatory effect, citing Pers. Adm’r of Mass. v. Feeney (1979), the Fourth Circuit discussed the factors of Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977):

In Arlington Heights, the Court set forth a nonexhaustive list of factors to consider in making this sensitive inquiry. These include: “[t]he historical background of the [challenged] decision”; “[t]he specific sequence of events leading up to the challenged decision”; “[d]epartures from normal procedural sequence”; the legislative history of the decision; and of course, the disproportionate “impact of the official action -- whether it bears more heavily on one race than another.”

The Fourth Circuit then discussed these factors individually.  Importantly, on the sequence of events, the opinion stated that 

the General Assembly’s eagerness to, at the historic moment of Shelby County’s issuance, rush through the legislative process the most restrictive voting law North Carolina has seen since the era of Jim Crow -- bespeaks a certain purpose. Although this factor, as with the other Arlington Heights factors, is not dispositive on its own, it provides another compelling piece of the puzzle of the General Assembly’s motivation.

But, as the Fourth Circuit noted - - - and for which it faulted the district court - - - the factors should not be considered in isolation. Instead, Arlington Heights requires a totality of circumstances analysis. 

The Fourth Circuit having found that race was a factor in the enactment of the Voter Information Verification Act (emphasis in original), the burden shifted to the state to demonstrate that the law would have been enacted without this factor, by assessing "whether a law would have been enacted without a racially discriminatory motive by considering the substantiality of the state’s proffered non-racial interest and how well the law furthers that interest." The Fourth Circuit faulted the district judge for conducting this analysis through a "rational-basis-like lens," when such deference is "wholly inappropriate." 

The Fourth Circuit discussed each challenged provision of the Voter Information Verification Act. On the voter identification requirement specifically, the Fourth Circuit found Crawford largely inapplicable given that Crawford did not involve even an allegation of intentional race discrimination. It found that while preventing voter fraud is a valid government interest, the means chosen are both too narrow and too broad.  Similarly, the Fourth Circuit found that the other provisions could not satisfy the standard:

In sum, the array of electoral “reforms” the General Assembly pursued in SL 2013-381 were not tailored to achieve its purported justifications, a number of which were in all events insubstantial. In many ways, the challenged provisions in SL 2013-381 constitute solutions in search of a problem. The only clear factor linking these various “reforms” is their impact on African American voters. The record thus makes obvious that the “problem” the majority in the General Assembly sought to remedy was emerging support for the minority party. Identifying and restricting the ways African Americans vote was an easy and effective way to do so.

The Fourth Circuit panel was unanimous to this point, but divided as to the relief.  Judge Diana Gribbon Motz, wrote the panel's opinion except to Part V.B., from which she dissented.  Her dissent is from a permanent injunction as to the photo identification requirement given that the North Carolina legislature passed a "reasonable impediment exception" from that requirement.  She would"only temporarily enjoin the photo ID requirement and remand the case to the district court to determine if, in practice, the exception fully remedies the discriminatory requirement or if a permanent injunction is necessary."

The dissenting point is a small one.  The Fourth Circuit panel unanimously held that the North Carolina Voter Information Verification Act violates both the Equal Protection Clause and §2 of the Voting Rights Act.


 [image via]

July 29, 2016 in Current Affairs, Elections and Voting, Equal Protection, Federalism, Fifteenth Amendment, Fourteenth Amendment, Race, Recent Cases | Permalink | Comments (1)

Thursday, July 21, 2016

Fifth Circuit Says Texas Voter ID Violates the Voting Rights Act

The en banc Fifth Circuit yesterday ruled that Texas's voter-ID law, widely described as the most restrictive voter-ID law in the country, had a discriminatory effect in violation of Section 2 of the Voting Rights Act.

The ruling is a decisive victory for voting-rights advocates and opponents of Texas's voter-ID law. If the state appeals, it'll face an 8-member Supreme Court (assuming the Court would take the case). If the Supreme Court were to divide 4-4, the Fifth Circuit's ruling stays in place. (The Texas AG hasn't said yet what he plans to do, if anything.)

The sharply divided ruling sends the case back to the district court to fashion a remedy for the November elections.

We last posted on the case here.

Recall that Texas's voter-ID law was denied preclearance under the VRA, but Texas implemented the requirements as soon as the Supreme Court struck the coverage formula for preclearance in Shelby County.

This suit challenged the law under Section 2. The district court ruled that the law had a discriminatory purpose and a discriminatory effect in violation of Section 2.

The Fifth Circuit yesterday walked that ruling back, but just slightly. The court said that the district court erred in its analysis of discriminatory purpose, and sent the case back for further proceedings on that ground (because there may be sufficient evidence of discriminatory purpose, but the district court analyzed it the wrong way). But the court went on to agree with the district court that the law had a discriminatory effect.

Given the timing of the ruling (so soon before the fall elections), the Fifth Circuit instructed the district court to fashion a remedy for the law's discriminatory effect as to "those voters who do not have SB 14 ID or are unable to reasonable obtain such identification," with an eye toward one of the legislature's purposes, reducing voter fraud. That remedy could include something like voter registration cards, or an indigency exception to the ID requirement. The Fifth Circuit also instructed the lower court to "consider the necessity of educational and training efforts to ensure that both voters and workers at polling places are capable of making use of whatever remedy the district court selects."

The Fifth Circuit did not rule on the constitutional claims.


July 21, 2016 in Cases and Case Materials, Elections and Voting, News, Opinion Analysis | Permalink | Comments (0)

Thursday, July 14, 2016

Daily Read: When Justices Scalia and Kennedy Referenced Donald Trump

Justice Ginsburg's comments about presidential candidate Donald Trump have caused controversy and invited comparisons with the late Justice Scalia's remarks and relationship with a sitting Vice President and his refusal to recuse himself from a case involving the VP which Scalia himself described as "heroic" in an interview. (Amy Howe for SCOTUSBlog has a great round-up of commentary on the controversy; Howard Bashman also has a good list).

But interestingly, Justice Scalia - - - as well as Justice Kennedy - - - broached the possibility of a Donald Trump presidential candidacy more than 25 years ago, in the 1989 oral arguments in Austin v. Michigan Chamber of Commerce.  The Court in Austin upheld the constitutionality of a Michigan statute that prohibited corporations, excluding media corporations, from using general treasury funds for independent expenditures in connection with state candidate elections, rejecting both First Amendment and Equal Protection claims, and recognizing a government interest in preventing corruption or the appearance of corruption in the political arena from large corporate treasuries.  Both Scalia and Kennedy dissented.  Twenty years later, the Court, 5-4, with Kennedy authoring the opinion and Scalia joining, overruled Austin in the controversial 2010 Citizens United v. FEC

Near the beginning of the Austin oral arguments, Justice Scalia uses Donald Trump, alluding to the wealth that would allow him to self-finance a campaign, as a comparison to corporate financing:

General Caruso, why is there a greater risk to the political process from an independent political expenditure by a family corporation, closely held corporation, eight family members, and they want to spend the corporation's money for a particular candidate whom they think will favor their business.

That... that is prohibited by this.

But if Donald Trump wants to come in and spend as much money as he likes, that is perfectly all right.

Why wouldn't it make much more sense, if you are worried about the problem, to establish an amount of money as the criterion?

A few moments later, Kennedy follows:

All right.

Then it... it seems to me that Justice Scalia's question indicates that you have to give a specific reason why a corporation of that type presents more [of] a danger than Donald Trump, and I didn't really hear the answer to that question.

Louis J. Caruso:  Well, the thing of it is--

Anthony M. Kennedy:  And it has to be answered in the terms of a compelling interest that is narrowly tailored.

 Did Justice Kennedy actually call Donald Trump a "danger" in 1989?


h/t Navid Khazanei

July 14, 2016 in Campaign Finance, Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, News, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)

Friday, June 3, 2016

Daily (Re)Reads: Judicial Impartiality

Republican Presidential Candidate Donald Trump has made news by charging that United States District Judge Gonzalo Curiel has “an absolute conflict” in presiding over the litigation about Trump University because Curiel is of Mexican heritage and Trump proclaims he is "building a wall" between the United States and Mexico: "It’s an inherent conflict of interest.”  Trump's comments are reported in The Wall Street Journal here and The Washington Post (with video) here.

Nypl.digitalcollections.94398bd0-6987-0130-fdaa-58d385a7b928.001.wBut while this allegation of bias seems unprecedented and even alarming, the notion that judges are biased because of their identity is nothing new. 

Recall the motions and eventual ruling regarding the federal district judge who heard the same-sex marriage trial, Perry v. Schwarzenegger; there was an argument he should be disqualified when he revealed he was gay.  As the court stated, "The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself." Moreover, these allegations of bias usually seem to be leveled against persons who have not traditionally been members of the judiciary. 

This is distinct from situations such as Caperton v. Massey Coal Co., a divided opinion in which the Court's majority held that the financial campaign contributions to an elected judge on the state's highest court mandated the judge's recusal as a matter of due process when the contributor was a litigant. 

And it is distinct from the decision due this Term from the Court, Williams v. Pennsylvania, argued in February, in which the bias involves a justice on the state's highest court reviewing a habeas petition that includes allegations of prosecutorial misconduct when that justice happened to be the District Attorney.

The notion of an independent - - - and impartial - - - judiciary, whether state or federal, is fundamental, but where and how the lines should be drawn can be difficult.  Chief Justice Roberts's dissenting opinion in Caperton illustrated the difficulties of line-drawing with 40 numbered issues (often containing multiple questions). 

No one, however, seems to have argued that a litigant's beliefs, for example about Mexico, that have nothing to do with the actual matter of litigation, for example about alleged fraudulent practices at Trump University, could lead to a credible claim that of judicial bias because the judge happens to have Mexican heritage.  If this were to be the rule, then some litigants with unsavory ideas would be able to claim bias against every judge. 

 [image via]

June 3, 2016 in Courts and Judging, Current Affairs, Due Process (Substantive), Elections and Voting, News, Race, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Wednesday, May 18, 2016

Court Puts a Halt on Kobach's Latest Effort to Restrict Voter Registration in Kansas

Judge Julie A. Robinson (D. Kansas) granted a preliminary injunction and halted Kansas's requirement that motor-voter applicants provide proof of citizenship when they register to vote (along with their driver's license application) in federal elections.

The ruling halts Kansas Secretary of State Chris Kobach's latest effort to restrict voter registration in that state. It also requires the state to register about 18,000 voters whose registrations were cancelled or put on hold for failure to provide proof of citizenship. At the same time, it allows the state to use a proof-of-citizenship requirement for registration for state elections. Kobach will appeal.

The Kansas law requires applicants for a driver's license and for voter registration to submit proof of citizenship. But the National Voter Registration Act, Section 5, says that every application for a driver's license "shall serve as an application for voter registration with respect to elections for Federal office." It goes on to say that a state "may require only the minimum amount of information necessary to . . . enable State election officials to assess the eligibility of that applicant and to administer voter registration and other parts of the election process."

Judge Robinson focused on the "minimum amount" language and ruled that Kansas's requirement didn't meet it. In particular, she said that the evidence didn't support that Kansas needed proof of citizenship, because the registration form already required an applicant to attest to citizenship and to sign the form. She said that the attestation requirement was plenty sufficient for the state to ensure that an applicant was qualified. (She noted that there wasn't really a problem with noncitizens registering, anyway, and that the proof-of-citizenship requirement was applied in a pretty sloppily.)

Judge Robinson rejected the state's argument that this would lead to two different registration forms--one for state elections (which would require proof of citizenship) and another for federal elections (which would not). She said that this wouldn't result in two different sets of electors, just two different sets of requirements that would lead to the same result. And in any event it was a problem of the state's own creation.

The upshot is that Judge Robinson held that the NVRA preempted Kansas's proof-of-citizenship requirement under the Elections Clause and temporarily enjoined enforcement of the proof-of-citizenship requirement for motor-voter applicants for federal elections.

If the case sounds familiar, that's because it is--or almost is. The Supreme Court ruled in 2013 in Arizona v. Inter Tribal Council of Arizona that the state couldn't require proof of citizenship for the federal mail-in form for the same reason: the NVRA preempted state law under the Elections Clause. The NVRA provision in that case--for the mail-in registration option, not the motor-voter option--was different than the provision in this case, so Arizona didn't direct the result here. Still, the NVRA provision at issue here--the "minimum amount" language--led to the same outcome.

May 18, 2016 in Cases and Case Materials, Elections and Voting, Music, Opinion Analysis, Preemption | Permalink | Comments (0)

Wednesday, April 20, 2016

Court Upholds Arizona Redistricting Plan

A unanimous Supreme Court today upheld a redistricting plan drawn by the Arizona Independent Redistricting Commission that included an 8.8% population deviation in order to comply with nonretrogression under the Voting Rights Act.

The ruling in Harris v. Arizona Independent Redistricting Commission is a win for the controversial Independent Commission and its state legislative map. It's also a mark in favor of allowing relatively greater population deviations (up to 10%) to comply with the VRA. And the case reaffirms the 10% threshold for allowable population deviations under the one-person-one-vote principle.

This is the case where the Redistricting Commission took an initial cut at a state legislative map by drawing cookie-cutter boundaries that yielded a 4.07% population deviation. The Commission then tinkered with the boundaries in order to comply with nonretrogression (that is, to ensure that there was no diminution in the number of districts in which minority groups could elect their preferred candidate of choice) under Section 5 of the VRA (when that Section still had force, pre-Shelby County). The result was a second-draft map that complied with the VRA, but also yielded an 8% population deviation (increased over the 4.07% deviation in the first cut), and put in play a previously solid Republican district. The Commission voted 3-2 in favor of the revised plan, with the two Republican members dissenting.

A group of Arizona voters sued, arguing that the plan violated the one-person-one-vote rule, because the Commission increased the population deviation for partisan purposes.

The Court disagreed. Justice Breyer wrote for the unanimous Court that the plan didn't violate equal protection. Justice Breyer wrote that the plan fell within the presumptively allowable 10% population deviation for the one-person-one-vote rule, and that the plaintiffs therefore had to show that the deviation reflected the predominance of illegitimate reapportionment factors. But the plaintiffs couldn't meet their burden here. In particular, Justice Breyer wrote that the record reflected that the deviation was the result of the Commission's efforts to comply with the VRA by retaining the number of ability-to-elect districts in the state--a legitimate reapportionment factor.

Justice Breyer wrote that Shelby County had no bearing on this case, because it came down after the Commission issued its plan.

April 20, 2016 in Cases and Case Materials, Elections and Voting, Fourteenth Amendment, News, Opinion Analysis | Permalink | Comments (0)

Monday, April 4, 2016

Court Says States Can Use Total Population to Draw Legislative Districts

A unanimous Supreme Court ruled today in Evenwel v. Abbott that states can use total population--and need not use voter-eligible population--to comply with the one-person-one-vote principle in drawing legislative districts.

The ruling is a setback for a group of conservative Texas voters that argued that states must use voter-eligible population in drawing legislative districts. Using voter-eligible population (as compared to total population) would benefit rural, and conservative, areas in a state like Texas, because urban areas contain a higher proportion of non-voter-eligible persons (who would count in measuring total population, but not voter-eligible population).

The case arose when a group of Texas voters argued that their votes were diluted as compared to the votes of eligible voters in other state senate districts, thus violating the one-person-one-vote principle. The state drew its state senate map based on total population, but the voters claimed that this resulted in inequalities. In particular, the voters claimed that their senate district contained a far greater eligible-voter population than other districts of equal total population. (The state senate map had a deviation between districts of 8.04 percent when measured by total population--the population that the state used in drawing the maps. This deviation is within the 10 percent deviation range that is presumptively permissible under the one-person-one-vote principle. But when measured by voter-eligible population, the map had a deviation of 40 percent--well outside that presumptively permissible point.) The voters argued that the state must use voter-eligible population in drawing districts.

The unanimous Supreme Court disagreed. Justice Ginsburg, writing for the Court, said that constitutional history, precedent, and practice show that a state may use total population in drawing legislative districts. In short: we've always done it this way, and we've said it's OK, so it's OK.

The Court declined to say whether a state may use voter-eligible population.

April 4, 2016 in Cases and Case Materials, Elections and Voting, Equal Protection, News, Opinion Analysis | Permalink | Comments (0)

Monday, March 21, 2016

Racial Redistricting, District Packing, and an Outsider's Interests in Reelection

The Supreme Court heard oral arguments today in Whittman v. Personhuballah, the case testing whether a state's move to pack black voters into a congressional district supposedly to comply with Section 5 of the Voting Right Act, but with the effect of diluting black voters' influence, violates equal protection.

Our preview is here.

Not surprisingly, the justices spent a good deal of time on standing, in particular, whether Representative Forbes, a congressman who had a lock on reelection in District 4, had standing to challenge the lower court's redistricting plan, because it made it tougher for him to get reelected in District 4. (Indeed, he's running in District 2, where he has a better chance of election, for this reason.) Justices Sotomayor and Kagan seemed to take strong positions that Forbes lacked standing; Justice Breyer staked out an only somewhat weaker position. The conservatives, along with Justice Kennedy, seemed to lean the other way.

On the merits, Justice Kagan put the finest point on the challengers' theory: If a legislature redistricts based malign racial intent, but the map also perfectly promotes acceptable political interests, is it subject to strict scrutiny? Michael Carvin, attorney for the challengers, said no. Justice Kagan went right to the point: "that sounds to me as though it's a harmless error rule for racial discrimination. And we've never had a harmless error rule for racial discrimination."

Chief Justice Roberts put a similar question to all the attorneys, but his hypo did not include any other evidence of racial motive: "If race and partisanship are co-extensive, then . . . which one predominates?" Opponents of the legislature's map had to concede that it'd be a tie; and under a tie, race could not predominate.

The difference between Justice Kagan's hypo and Chief Justice Roberts's hypo is the evidence of the 55-percent BVAP floor. But Chief Justice Roberts didn't seem inclined to look to that evidence to show that race predominated with the legislature. He asked: How do we determine the intent of the legislature? By 10 percent say-so? By 80 percent say-so? What if most of the legislators were only interested in protecting their own party, even though the sponsor of the legislature's redistricting plan used a 55-percent-BVAP (race-based) floor? If the direct evidence of a 55-percent-BVAP floor doesn't persuade that race predominated, then it's a tie, and then race didn't predominate--and the legislature's plan stands.

Chief Justice Roberts was also troubled that the lower court didn't require the plaintiffs to show that a map based on partisanship interests would be different.

With Justice Kennedy seeming to lean with the conservatives, the case could be headed for a 4-4 split, which would uphold the lower court's ruling that District 3 was an unconstitutional racial gerrymander.

March 21, 2016 in Cases and Case Materials, Elections and Voting, Equal Protection, Jurisdiction of Federal Courts, News, Oral Argument Analysis, Standing | Permalink | Comments (0)

Thursday, March 17, 2016

Can a State Pack Black Voters in a District to Comply with the Voting Rights Act?

The Court will hear oral arguments on Monday in Whittman v. Personhuballah, a case testing whether a state's move to pack black voters into a congressional district supposedly to comply with Section 5 of the Voting Rights Act, but with the net effect of diluting black voters' influence, violates equal protection. This is the second time in two Terms that the Court has dealt with the issue: last Term the Court ruled in Alabama Legislative Black Caucus v. Alabama that the lower court applied the wrong standard and remanded the case for further proceedings. Whittman deals with a slightly different question, as described below. There's also a significant question of standing.

Here's my oral argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

Does a redrawn congressional district, which is based on maintaining a minimum fixed percentage of black voters in a district and in fact increases the percentage, violate equal protection?

Case at a Glance

The Equal Protection Clause forbids a state legislature from unjustifiably using race as the predominate factor in redrawing state legislative and congressional districts. At the same time, some states were required under the Voting Rights Act to ensure against retrogression, the diminution of a minority group’s ability to elect a preferred candidate of their choice. This means that a covered state had to consider race in redistricting. This case tests how a covered state can consider race.


The Virginia legislature adopted a redistricting plan that increased the percentage of black voters in a majority-minority congressional district. The legislature based the plan on maintaining a fixed percentage of black voters in a certain congressional district, supposedly to comply with the Voting Rights Act. A three-judge district court struck the plan as a racial gerrymander and ordered the implementation of its own map.


    1. Does a member of congress from an adjoining district have standing to challenge the court-ordered map, on the theory that the map may make it harder for him to win re-election?
    2. Did the Virginia legislature’s use of race predominate when it drew congressional district 3, and, if so, was its use of race justified in order to comply with the Voting Rights Act?


In 1991, as part of its redistricting plan after the 1990 Census, Virginia created its Third Congressional District, or “CD3.” The state created CD3 as its only majority-minority district, so that racial minorities in the district could elect a candidate of their choice. At the time, CD3 had a black voting age population, or “BVAP,” of 61.17 percent. The U.S. Department of Justice, or “DOJ,” precleared the plan and CD3 under Section 5 of the Voting Rights Act, “VRA.”

In 1997, however, a three-judge court invalidated CD3 as a racial gerrymander. The court in Moon v. Meadows, 952 F. Supp. 1141 (E.D. Va. 1997), found the evidence “overwhelming that the creation of a safe black district predominated in the drawing of the boundaries.” As a result, the General Assembly redrew the district, and lowered its BVAP to 50.47 percent. DOJ precleared the plan, and CD3 was not challenged.

After the 2000 Census, the state redrew CD3 again, along with its other congressional districts. As part of this redistricting, the state shifted a number of black voters from CD4 into CD3 and CD5. As a result, the BVAP in CD3 increased to 53.1 percent. DOJ precleared the plan, and CD3 was not challenged. (This plan is sometimes called “the Benchmark Plan,” because it immediately preceded the challenged plan and thus sets the benchmark against which the challenged plan is measured.)

After the 2010 Census, the state once again undertook to redraw its congressional districts. This time, CD3 was underpopulated by 63,976 citizens, so it needed additional citizens in order to reach the state’s benchmark population for compliance with the one-person-one-vote principle. Delegate Bill Janis introduced a plan that added population to CD3 and increased its BVAP from 53.1 percent to 56.3 percent.

Janis said that he based his plan on several criteria. These included the one-person-one-vote principle, the VRA rule against retrogression of minority voter influence, respecting the will of the Virginia electorate as reflected in the November 2010 elections, and maintaining current boundaries as much as possible. Throughout the floor debates on the plan, Janis repeatedly said that Section 5 of the VRA prohibited retrogression of minority voter influence, that compliance with Section 5 was “nonnegotiable,” and that compliance with the non-retrogression mandate was a “paramount concern” in drafting the plan.

The Virginia legislature failed to enact a plan in its 2011 special session. But Janis’s plan was reintroduced in the 2012 session (although Janis was no longer a member). At least two members of the legislature (Senators Locke and McEachin) protested that the plan packed black voters into CD3 and some surrounding districts, leaving them “essentially disenfranchised.” The House and Senate nevertheless passed the Janis plan, and the governor signed it. The plan maintained an 8-3 partisan division in favor of Republicans in the state and protected all incumbent members of congress. DOJ precleared the plan in March 2012.

In June 2013, in Shelby County v. Holder, 133 S. Ct. 2612, the Court invalidated the preclearance coverage formula in Section 4 of the VRA. This meant that Virginia (along with other previously covered jurisdictions) were no longer subject to the non-retrogression requirement in Section 5.

In October 2013, Dawn Curry Page, Gloria Personhuballah, and James Farkas, three voters in CD3, filed this case, seeking to invalidate CD3 as a racial gerrymander. Republican members of congress from districts surrounding CD3, including Representative Randy Forbes, Republican from CD4, intervened in the case to defend the plan.

The plaintiffs alleged that CD3 was designed to pack black voters in the district, which would dilute black voters’ influence in CD3 and in other districts. During trial, the plaintiffs called an expert, Dr. Michael McDonald, who testified that CD3 was drawn as a majority-black district for predominantly racial reasons. (McDonald based his conclusion in part on an Alternative Plan, produced by the plaintiffs, that resulted in a 50.1 percent BVAP in CD3. The parties disagree over the meaning of the Alternative Plan and whether it supports McDonald’s conclusion.) The state called its own expert, John Morgan, who testified that CD3 was explainable by race-neutral factors of politics and incumbency protection.

Importantly, evidence suggests the General Assembly applied a 55-percent-BVAP floor in drawing CD3. In particular, some evidence shows that at least some in the legislature thought that CD3 needed a 55 percent BVAP in order to pass DOJ preclearance under Section 5 of the VRA. (Remember, the state created CD3 before the Court ruled in Shelby County.)

The district court, by a 2-1 vote, concluded that CD3 was an unconstitutional racial gerrymander and enjoined the state from conducting any further congressional elections under the 2012 plan. The intervenors appealed, and the Supreme Court vacated the district court’s judgment and remanded the case in light of Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015). (Alabama Legislative Black Caucus involved the same kind of challenge to a similar plan, which also packed black voters into a district supposedly to comply with Section 5 of the VRA. The Court held that the lower court used an incorrect standard for judging this kind of case and gave some guidance for applying the correct standard. As discussed below, a portion of this ruling is relevant here.)

On remand, the district court again ruled 2-1 that CD3 was an unconstitutional racial gerrymander. The court wrote that the “legislative record here is replete with statements indicating that race was the legislature’s paramount concern in enacting the 2012 Plan,” and that the legislature had impermissibly used “a 55% BVAP floor” in redrawing CD3. (Because race predominated in redrawing CD3, the court applied strict scrutiny. The court held that compliance with Section 5 was a compelling state interest, but that the state’s use of race to increase the BVAP from 53.1 percent to 56.3 percent was not narrowly tailored to avoid retrogression in CD3. That’s because Congressman Bobby Scott, “a Democrat supported by the majority of African-American voters,” had been repeatedly reelected under the prior BVAP by large margins.) The intervenors appealed to the Court.

Meanwhile, the remedial phase of the litigation proceeded in the district court. The court invited the parties and any interested non-parties to propose plans and appointed Dr. Bernard Grofman as special master. Grofman rejected the proposed plans and recommended his own. The court found that the Grofman plan cured the racial gerrymander by redrawing CD3 according to neutral districting criteria, and not race. The court also found that the plan complied with the VRA, despite the drop in CD3’s BVAP (to 45.3 percent), because the lower BVAP combined with significant white-crossover voting preserved “African-American voters’ ability to elect the representative of their choice.”

The court-ordered plan also changed CD4. The plan increased the BVAP in CD4 from 31.3 percent to 40.9 percent, creating a “realistic possibility,” according to Grofman, that black voters could elect a candidate of their choice. The plan also increased Democratic representation (as measured by the election results for the 2012 Presidential election) from 48.8 percent to 60.9 percent, turning a “safe seat for the Republican incumbent” into a “competitive” district, according to Grofman. (The current and previous maps, and alternative maps, are available at the web-site for the Virginia Division of Legislative Services,,list.)

The intervenors again appealed to the Supreme Court. The plaintiffs in the original case (minus Dawn Curry Page, who was dismissed by stipulation) defend the court-ordered plan as appellees before the Court. The Virginia State Board of Elections also defends the plan as an appellee. The government defends the plan as amicus in support of the appellees. The Court divided oral argument to permit each of the parties and the government to participate.


The case involves two principal issues. Let’s take them one at a time.


In order to bring a case in federal court, a plaintiff must demonstrate (1) that he or she suffered an “injury in fact,” (2) that the challenged action caused the injury, and (3) that the lawsuit will redress the injury. The injury-in-fact requirement means that a plaintiff must show “concrete” and “particularized” harm, “actual or imminent.” The causation requirement means that the plaintiff has to show that the challenged action (here, the district court ruling and the court-ordered map) caused the injury. And the redressibility requirement means that the plaintiff must show that a successful lawsuit would redress their harm.

Standing is a threshold requirement. This means that the Court has to be satisfied that the intervenors have standing before it will rule on the merits (the discrimination claim, discussed below). Here, the parties focus particularly on intervenor Forbes. If Forbes has standing, then the Court will consider the merits. If not, the Court will dismiss the case.

The intervenors argue that they have standing, because the court-ordered plan transforms at least one of their districts (CD4, Forbes’s district) from a majority-Republican district to a majority-Democratic district. (Indeed, they say that every proposed plan would have made at least one Republican district a majority-Democratic district, so that they would have standing under any of the proposed plans.) The intervenors contend that this injures at least one of them, because it harms his or her chances for reelection, replaces his or her “base electorate” with “unfavorable” Democratic voters, and undoes his or her recommendations for the district. (The Board sides with the intervenors on standing and makes similar arguments.)

The plaintiffs argue that the intervenors lack standing. They claim that the intervenors have no responsibility for drawing or enforcing the 2012 redistricting plan (and therefore cannot complain that they were harmed by losing their redistricting power), and that they do not live in or represent CD3, the only challenged district. The plaintiffs assert that the intervenors’ only claim to standing is that the court-ordered plan might make it harder for some of them to win, if they choose to run, and if they defeat their primary challengers. The plaintiffs say that this alleged harm is too speculative and not sufficiently connected to the court-ordered plan. And in any event, they say, there are many other factors that might contribute to this harm. (The government sides with the plaintiffs on standing. The government adds that the intervenors have no right to “fence out those voters to enhance their odds of electoral success,” and therefore no harm when that happens.)


State legislatures can use a variety of factors in redrawing state legislative and congressional districts. Most of these factors are neutral—for example, preserving the compactness of a district, preserving the contiguity of a district, maintaining communities with like interests within a single district, and even advancing political interests—and do not alone raise constitutional problems. But the Equal Protection Clause prohibits a state legislature from using race as a factor, when its use of race predominates over other race-neutral factors without a sufficient justification (that is, without satisfying strict scrutiny).

States that were subject to the preclearance requirement in Section 5 of the VRA, including Virginia, had to consider race in their redistricting decisions. That’s because in order to obtain preclearance under Section 5, a covered state had to show that its new map, as compared to the immediately preceding map, would not result in retrogression, that is, diminishment of a minority group’s ability to elect its preferred candidate. (No state is subject to the preclearance requirement today. The Supreme Court in Shelby County struck the coverage formula for preclearance. This means that preclearance remains on the books, but currently there are no covered jurisdictions.)

This raises an important question: If a state legislature uses race in redistricting in order to comply with Section 5, does that use of race violate equal protection? The Supreme Court gave us some guidance to work that out last Term in Alabama Legislative Black Caucus v. Alabama. As relevant here, the Court held that Section 5 does not require a state to maintain a particular minority percentage; instead, it requires the state to maintain a minority’s ability to elect a preferred candidate of choice. This means that when a state legislature uses race as a predominate factor in redistricting in order to comply with Section 5, it cannot use a mechanical percentage—because that’s not what Section 5 requires.

That principle would seem to answer the question in this case (in favor of the plaintiffs and the Board), except that this case involves an additional wrinkle. Here, the intervenors claim even if the legislature used race as a predominate factor, CD3 would have looked the same if the legislature hadn’t used race. The intervenors rely on language from Easley v. Cromartie, 552 U.S. 234 (2001), to argue that because CD3 would have come out the same under neutral principles (without considering race), then race couldn’t have predominated, and the 2012 map satisfies equal protection.

The parties and amicus frame their equal protection arguments around these principles.

The intervenors argue first that the district court erred in finding that race predominated in drawing CD3 in the 2012 plan. The intervenors concede that race was a factor in the 2012 plan—that the legislature recognized that compliance with Section 5 of the VRA was “non-negotiable” and “paramount.” But they say that this use of race was necessary (because the state had to comply with Section 5), and that if it is considered predominant, then every use of race to comply with the VRA will automatically be deemed predominant. Moreover, they contend that the legislature’s racial goals were coextensive with neutral redistricting principles that governed all districts (like protecting incumbents by preserving the cores of existing districts) and with the legislature’s political objectives. They say that because the use of race resulted in the same district lines that would have resulted without the use of race, race cannot have predominated over neutral redistricting principles. Finally, the intervenors contend that the district court’s approach requires the legislature to treat majority-minority districts differently than majority-white districts, because under the district court’s approach the legislature could not use neutral principles to draw CD3, so long as the VRA also required the legislature to draw CD3 the same way.

Next, the intervenors argue that the district court failed to properly determine whether the legislature’s racial considerations subordinated other neutral redistricting criteria. They claim that the legislature would have drawn CD3 the same based only on neutral criteria, and so race could not have predominated. (They even say that achieving a 55 percent BVAP floor was the best way to achieve the legislature’s neutral redistricting objectives, irrespective of any racial purpose in using that floor.) The intervenors contend that the district should have determined whether there was an inconsistency between the neutral motives and the racial motives in order to determine whether racial motives predominated. But they say that the court never looked at this question.

Third, the intervenors argue that CD3 in the 2012 plan served permissible political purposes. They say that the 2012 plan treated CD3 the same as all other (majority-white) districts in the state, making only minor changes to district cores for the permissible purpose of benefitting incumbents. They claim moreover that changing CD3’s shape or reducing its BVAP would have sent a significant number of Democratic voters into the adjacent districts, all of which had Republican incumbents. Again, according to the intervenors, this means that CD3’s shape and BVAP serve the permissible purpose of benefitting incumbents. Finally, they contend that even the plaintiffs’ expert conceded that CD3 benefitted Republican incumbents and could be explained by a political purpose.

Fourth, the intervenors argue that the plaintiffs failed to show that the state could have achieved its political goals by drawing CD3 any other way. They contend that drawing CD3 with a BVAP of 56.3 percent was the only way for the state to retain all Republicans incumbents. They say that the plaintiffs’ alternative plan proves their point: this plan, which itself subordinated neutral redistricting principles to race, would have converted CD2 from a toss-up district with a Republican incumbent into a Democratic district, in order to achieve a lower BVAP.

Finally, the intervenors argue that CD3 in the 2012 plan meets the Alabama test. They claim that of all the alternatives, CD3 best advances the legislature’s political purposes and thus least subordinates those principles to race. In particular, they say that the court-ordered plan, with its reduction to a 30 percent BVAP, was not only based on race but likely would have failed DOJ preclearance. They contend that the legislature therefore had a “good reason” under Alabama to adopt the 2012 version of CD3.

The plaintiffs argue that race impermissibly predominated when the legislature redrew CD3 in 2012. They say that Janis, who originally introduced the plan, said as much, when he adopted the 55-percent-BVAP threshold based on a mistaken belief that any decrease in the BVAP would violate Section 5 of the VRA. They claim that circumstantial evidence shows this, too: the 2012 version of CD3 was the least compact district in the state, using water continuity to connect disparate black communities along the James River; it moved over 180,000 people to address underpopulation in CD3 of only 63,976; and the legislature disproportionately moved black voters into and white voters out of CD3.

The plaintiffs argue next that the intervenors are wrong to assert that the district court failed to apply Alabama—a legal error. Instead, the plaintiffs say that in truth the intervenors challenge the district court’s factual findings. But the plaintiffs contend that the intervenors cannot show that the district court’s findings were “clearly erroneous,” the standing for reversal on appeal.

The plaintiffs argue that the intervenors are also wrong to assert that the legislature’s use of race could not have predominated, because CD3 would have looked the same based on race-neutral redistricting criteria. The plaintiffs claim that if the legislature used race as a proxy for race-neutral criteria (as the intervenors seem to argue), then the legislature impermissibly used race. Moreover, the plaintiffs say that Comartie II is distinguishable: in that case, the direct evidence showed a partisan purpose, and the plaintiffs advanced a largely circumstantial case to prove otherwise; but in this case, the direct evidence (Janis’s statements) reveals a clear racial purpose behind the 2012 version of CD3.

Finally, the plaintiffs argue that Alabama supports their position. They say that the legislature made the same mistake as the legislature in Alabama, by focusing on how it could meet the arbitrary threshold of a 55 percent BVAP. But the plaintiffs argue that under Alabama the legislature should have focused on this question: “To what extent must we preserve existing minority percentages in order to maintain the minority’s present ability to elect the candidate of its choice?” Alabama, 135 S. Ct. at 1274. The plaintiffs argue that the intervenors try to escape the plain factual record, but they cannot: the record clearly reflects that race was the predominate purpose in drawing the 2012 version of CD3.

The Virginia State Board of Elections (as appellees) and the government (as amicus) make substantially similar arguments. The government clarifies a couple of points, however. First, the government says that mere statements that the legislature has to comply with the VRA does not mean that race predominated; instead, the legislature’s use of the 55-percent-BVAP threshold, along with other circumstantial evidence, means that race predominated. And the government, like the plaintiffs and the Board, argues that the court made no clear error in finding these facts. Next, the government contends, contrary to the intervenors, that a racial gerrymandering claim does not depend on a showing that race and politics conflicted. Instead, the government says that the constitutional harm comes from the predominate use of race, and that a plaintiff who can show that race predominated need not also show that the district’s actual configuration was different than an alternative configuration under race-neutral criteria. Finally, the government emphasizes that “Section 5 does not require jurisdictions to adhere to mechanical and factually unsupported racial targets, uninformed by a functional analysis of a minority group’s ability to elect.” And because that is exactly what the legislature did here, race impermissibly predominated.


This is the second time in two years that the Court will consider a case of a previously covered jurisdiction packing black voters into a district supposedly to comply with Section 5 of the VRA. The Court limited this practice last Term in Alabama by ruling that (as relevant here) a state legislature cannot use mechanical percentages in order to comply with the VRA; instead, it must use the retrogression standard. That principle seems to answer the question in this case (because the Virginia legislature used a mechanical percentage), except that the intervenors claim that CD3 would have looked the same even without race—and therefore that race did not predominate in drawing CD3. Look for the Court to test this claim at oral argument.

The history of this case and the result in Alabama both suggest that the Court may lean toward the plaintiffs and the Board (and against the intervenors). First, the Court denied the intervenors’ application for a stay of the lower court’s decision pending appeal. Ordinarily, that would not (necessarily) suggest anything about the likely outcome. But in this case, Virginia has to know the shape of its districts, because it has to conduct 2016 elections. Because Virginia is set to run its elections based on the court-ordered map, the Court would throw a real wrench into Virginia politics by reversing course. (For one, it could affect Forbes himself. Forbes has announced that he will run for re-election in 2016 in CD2, not CD4, his current district. That’s because under the court-ordered map, CD4 leans much more Democratic. If the Court reversed the lower court, this could affect Forbes and the new representative in CD4, among others. It’ll be interesting to see if Forbes’s decision to run in CD2 becomes a factor for standing purposes.) Second, Alabama was a 5-4 decision, with Justice Kennedy siding with the progressives. This is a different case, to be sure, but it could turn on a similar line-up.

If the Court gets to the merits, look for it to rule narrowly. Given the Court’s approach in Alabama and given certain features of this case, this case seems an unlikely vehicle for the Court to make a grand statement about the constitutionality of the practice of packing districts for the supposed purpose of complying with the VRA, but with the effect of diluting the impact of all black voters in the state.

But that’s only if the Court rules on the merits. Indeed, we have good reason to think it might not, or at least that the Court will take the standing issue very seriously. The Court itself introduced the issue and ordered the parties to file supplemental briefs on it—twice. The first time, the Court simply asked the parties to brief whether the intervenors had standing. This apparently didn’t satisfy the Court, however, because it then asked the parties to brief whether they had standing because none of them lived in or represented CD3. These orders raise the real possibility that the Court could simply dismiss the case based on lack of standing, and not even address the merits.

March 17, 2016 in Cases and Case Materials, Elections and Voting, Equal Protection, News | Permalink | Comments (0)

Monday, February 22, 2016

Court Denies Stay in North Carolina Districting Case

The Supreme Court on Friday denied a stay of a three-judge district court order requiring North Carolina to redraw two congressional districts because they violated equal protection.

The brief denial (without opinion) came after the state developed a new districting plan--which wouldn't have gone into effect if the Court granted a stay, but which will now go into effect for the state's primaries.

Recall that the lower court ruled that North Carolina impermissibly used race to draw the districts, by packing black voters into these two districts. The court rejected the state's claim that it used race in one of the districts to comply with preclearance under the Voting Rights Act. The court said that even assuming (without deciding) that compliance with the VRA is a compelling government interest, the state failed to show that its use of race was narrowly tailored to achieve that interest.

February 22, 2016 in Cases and Case Materials, Elections and Voting, Equal Protection, News | Permalink | Comments (0)

Tuesday, February 16, 2016

Morley on Injunctive Relief in Election, Voting, and Constitutional Cases

Check out Prof. Michael T. Morley's (Barry) just-posted and timely piece, De Facto Class Actions? Injunctive Relief in Election Law, Voting Rights, and Constitutional Cases.

Morley provides a framework for courts deciding whether to award plaintiff-oriented injunction (limited to the plaintiff in the case) or defendant oriented injunction (applying more broadly, to the defendant's actions anywhere) in these kinds of cases:

First the court should assess whether granting the requested relief solely to the individual plaintiffs would create unconstitutional disparities concerning fundamental rights in violation of Equal Protection principles, although this seldom, if ever, should be the case. Second, after confirming that limiting relief solely to the individual plaintiffs would be constitutional, the court should then determine whether such a Plaintiff-Oriented Injunction would be proper under the challenged statute or regulation itself by applying traditional severability principles. If the challenged provision can be applied coherently, and the entity that enacted the provision still would have intended for it to be enforced, even with the plaintiffs excluded from its scope, then a Plaintiff-Oriented injunction would be the proper remedy. Otherwise, a Defendant-Oriented Injunction is required.

February 16, 2016 in Courts and Judging, Elections and Voting, Jurisdiction of Federal Courts, News, Scholarship | Permalink | Comments (0)

Thursday, February 11, 2016

Three-Judge Court Orders North Carolina to Redraw Districts

Steven D. Schwinn,  John Marshall Law School

A three-judge federal district court last week ruled in Harris v. McCrory that two of North Carolina's congressional districts violated equal protection, because the state impermissibly used race as a predominant factor in drawing them.

The state claimed that it used race in one of the districts to comply with the Voting Rights Act. But the court rejected that claim, saying that even if compliance with the VRA is a compelling government interest, the state failed to demonstrate that it used race in a narrowly tailored way.

The court ordered the state to redraw the districts quickly, within two weeks, although the state has already asked the Supreme Court for a stay pending appeal.

North Carolina is notorious for its shenanigans with elections and voting. Recall that the state moved quickly to tighten voting requirements after the Supreme Court in Shelby County released it and other covered jurisdictions from the preclearance requirement in Section 5 of the VRA.

The case raises an important question, yet unanswered by the Supreme Court (but assumed for the purpose of further analysis in its cases), whether compliance with the Voting Rights Act (avoiding Section 2 liability, and avoiding the Section 5 non-retrogression rule in previously covered jurisdictions) can be a compelling government interest that could justify race-based redistricting. If so, the problem, addressed last Term in Alabama State Legislature, is that a state might then use race to pack black voters into districts in a way that dilutes their influence in other districts. The Supreme Court in Alabama gave four principles for courts to use in evaluating these kinds of claims (and remanded that case for further proceedings), but it didn't categorically answer the question whether and when states might use race to comply with the VRA (even if only putatively).

The case challenges North Carolina Congressional Districts 1 and 12. These were not majority-minority districts (majority-Black Voting Age Population, or "BVAP," districts) going into the 2010 census, but "African-American preferred candidates easily and repeatedly won reelection under those plans."

After the 2010 census, legislators engaged Dr. Thomas Hofeller, who served as redistricting coordinator for the Republican National Committee for the 1990, 2000, and 2010 redistricting cycles, to design and draw the 2011 Congressional Redistricting Plan. On instructions from legislators (which, they said, were based on VRA concerns), the 2011 plan increased the percentage of the BVAP in districts 1 and 2 so that they became majority-minority districts. DOJ precleared the plan, in the days before Shelby County, when preclearance was still a thing.

A prior state supreme court ruling held that race was the predominant factor in drawing CD 1, but that the state had a compelling government interest in using race to draw CD 1 to comply with the VRA. It also held that race was not a factor in drawing CD 12. The state high court thus found no violation of the Equal Protection Clause.

Plaintiffs in this federal case argued that the state used compliance with Section 5 as a pretext for packing black voters into CDs 1 and 12 in order to reduce those voters' influence in other districts.

The court ruled that "plaintiffs have presented dispositive direct and circumstantial evidence that the legislature assigned race a priority over all other districting factors in both CD 1 and CD 12." The court went on to say that even if compliance with the VRA is a compelling government interest for CD 1 (a point the court assumed, without deciding), the legislature's use of race in drawing the districts was not narrowly tailored to meet that interest: "Evidence of narrow tailoring in this case is practically nonexistent." (The state didn't give a compelling government interest or argue narrow-tailoring for CD 12.)

The next word on the case will come from the Supreme Court, which should rule soon whether to the stay the three-judge court's ruling pending North Carolina's appeal.

February 11, 2016 in Cases and Case Materials, Elections and Voting, Equal Protection, News, Opinion Analysis | Permalink | Comments (0)

Tuesday, January 26, 2016

Election Integrity Measures, with a Pro-Voter Bent

Check out Myrna Perez's (Brennan Center) report Election Integrity: A Pro-Voter Agenda, arguing for sensible election regulations that both protect integrity and make it easy to vote.

January 26, 2016 in Elections and Voting, News | Permalink | Comments (0)

Tuesday, January 19, 2016

Court Hears Oral Arguments in First Amendment Public Employee Case: Heffernan v. City of Paterson

The Court heard oral arguments in Heffernan v. City of Paterson, NJ today, a situation presenting a question that Justice Alito at one point described as "like a law school hypothetical." Heffernan, a police officer, was demoted for his perceived political activity: he had decided to stay neutral but was seen picking up a mayoral campaign sign at the request of his "bedridden mother" to "replace a smaller one that had been stolen from her lawn" and was therefore demoted.

At the heart of the oral argument is a large question about the purpose (and one might say the direction) of the First Amendment.  On one view - - - that of the City of Paterson as represented by Tom Goldstein - - - the First Amendment requires that a person be exercising the right of free association (or speech): "It's called an individual right, not a government wrong."  On the other view - - - that of Jeffrey Heffernan represented by Mark Frost - - - the First Amendment restrains the government from acting to infringe First Amendment rights, even if it does so in error.  This was perhaps best expressed by Justice Ginsburg:

And I thought ­­ - - - and unlike Justice Scalia ­­ - - - that the thrust of the First Amendment is operating on government. It says government, thou shalt not ­­ - - - thou shalt not act on the basis of someone's expression, speech or belief.

Justice Ginsburg broached the analogy to Title VII, which arguably allows perceived status to support a claim, was quickly distinguished by Justice Scalia as being a statute that focuses on the employer's discrimination rather than the employee, unlike the First Amendment.  There was no reference to the text of the First Amendment which of course begins "Congress shall make no law . . ." which could be read as emphasizing the restriction on government.

Justice Kennedy asked the first question of the argument to Mark Frost as he was just finishing his opening by requesting an articulation of the right: "How would you define the right that your client wishes this Court to vindicate?"  But although some other Justices seemed to believe there was no actual right, Justice Kennedy later seemed more equivocal:

JUSTICE KENNEDY: You want this Court to  hold that the government of the United States has a right to ascribe to a citizen views that he or she does not hold.

MR. GOLDSTEIN: Justice Kennedy, I think that that is not a First Amendment violation.

The Solicitor General's views on behalf of the United States, represented by Ginger Anders, supported the employee.  Ms. Anders articulated the right as "a First Amendment right not to have adverse action taken against him by his employer for the unconstitutional purpose of suppressing disfavored political beliefs" and later as the "right not to be subject to a test of political affiliation." 

Chief Justice Roberts at several points expressed concerns about a possible "flood of meritless lawsuits" if the employee does not have to show he was actually exercising a protected right. 

The Justices seemed divided; Justice Kennedy may (again) be the "swing" vote on this one.

January 19, 2016 in Association, Elections and Voting, First Amendment, Oral Argument Analysis, Speech | Permalink | Comments (2)