Friday, April 3, 2015
The en banc Ninth Circuit's opinion in Chula Vista Citizens for Jobs and Fair Competition v. Norris rejected First Amendment challenges to two requirements that the State of California and the City of Chula Vista, California, place on persons who wish to sponsor a local ballot measure:
that the official proponent of a ballot measure be an elector, thereby disqualifying corporations and associations from holding that position; and
that the official proponent’s name appear on each section of the initiative petition that is circulated to voters for their signature.
Writing for the unanimous en banc court and affirming the district judge, Judge Reinhardt concluded that the provisions were "plainly constitutional."
On the first provision, the court held that the requirement that an official proponent—a person seeking a unique position in a quintessentially legislative process—be an elector satisfied the First Amendment. It concluded that
The plaintiffs seek a legislative power and, as they conceded at oral argument, many legislative and official political acts are properly reserved to members of the electorate. For example, corporations cannot vote. Nor can they run for political office or be appointed to fill vacancies. Under California law, they cannot sign initiative petitions, sign candidate nominating papers, or introduce legislation, The plaintiffs fail to provide any reason—and we find none—that the state and city may not similarly limit the exercise of the initiative power to members of the relevant political community: electors.
[citations omitted]. The Ninth Circuit rejected the challengers' appeal to Citizens United v. FEC (2010) as mandating strict scrutiny. The challengers argued strict scrutiny was warranted because the California requirement is a direct ban on core political speech; bans disfavored speakers’ speech; and requires speech by proxy. The Ninth Circuit opinion flatly stated that the challengers "are wrong." While the initiative process involves core political speech, the ban is only directed at corporations being the "official proponent—a unique legislative position that may properly be reserved to members of the political community" and corporations can otherwise speak as much as they'd like. As to corporations specifically, the court returned to the notion that corporations are distinct from natural persons, they do not have "the right to vote or to hold public office (or even to sit on the bench)" as the plaintiffs seemingly conceded. "We accordingly refuse to extend Citizens United to grant to corporations and associations the right to hold a distinct, official role in the process of legislating, by initiative or otherwise." Finally, the court summarily rejected the speech by proxy argument:
Under the plaintiffs’ view of Citizens United, the government could not exclude corporations or associations from any position available to human beings because to do so would impermissibly require speech by proxy—an assertion that is clearly untenable.
The second requirement - - - mandating disclosure - - - was subject to "exacting scrutiny" rather than the higher standard of "strict scrutiny," in accordance with Citizens United. The Ninth Circuit also relied heavily on Doe v. Reed (2010) in which the Court upheld disclosure and rejected a "right to be anonymous" when signing a ballot initiative petition. Here, the Ninth Circuit likewise upheld an interest in the integrity of the electoral process, citing Doe v. Reed, and also analyzed the informational interest. The Ninth Circuit also took a swipe at the sincerity of the anonymity argument:
It also bears noting, although we do not base our decision on it in any respect, that the interest of the proponents in anonymity is especially weak given the facts of the instant case. Both Kneebone and Breitfelder engaged in public activities advocating passage of Proposition G beyond the activities required of them as its official proponents, speaking at televised public meetings and having their names used in campaign materials provided to voters. Moreover, they explained in depositions that they did not really desire anonymity, but rather “wanted voters to know that the ‘correct’ sponsor of the ballot initiative was the Association of Builders and Contractors, Inc. and the Chula Vista Citizens for Jobs and Fair Competition.”
More doctrinally, the court concluded that the required "disclosure poses at the most a minimal burden on First Amendment rights."
The decision is a clear rejection of an extension of Citizens United to any type of "corporate speech" and a clear adherence to the constitutionality of disclosure mandates in both Citizens United and Doe v. Reed. And it should be clear that this unanimous opinion is not a good candidate for certiorari.
Wednesday, March 25, 2015
The Supreme Court ruled today (5-4, with Justice Kennedy joining the four progressives in the majority) that the district court erred in its analysis of the plaintiffs' racial gerrymandering claims against the State of Alabama in the wake of the state's redistricting after the 2010 census. The ruling, a victory for the plaintiffs, sends the case back to the district court and allows the parties to introduce additional evidence to support their cases. It also gives the momentum to the plaintiffs on the merits. We previously posted on the case here.
The case now goes back to the district court for reconsideration in light of the four points below. Today's ruling also allows the plaintiffs to submit additional evidence in support of their claims, thus strengthening their district-specific discrimination claims, their claims that race was a predominate factor in drawing certain districts, and their argument that the state's use of race wasn't sufficiently tailored to comply with Section 5 of the Voting Rights Act.
Thus while today's ruling isn't an outright victory for the plaintiffs, it gives them the clear momentum on remand.
The case, Alabama Legislative Black Caucus v. Alabama, arose after Alabama redrew its legislative districts in a way that packed black voters into existing majority-minority districts. The state said it did this in order to avoid retrogression under Section 5 of the Voting Rights Act. (The state was then covered by Section 5, pre-Shelby County.) The plaintiffs challenged the move as a racial gerrymander. The three-judge district court rejected the challenge and ruled in favor of the state.
The Court (by Justice Breyer) vacated that ruling and remanded the case. Justice Breyer wrote that the district court made four legal mistakes:
1. The district court treated the plaintiffs' challenge to the redistricting as a whole, when it should have treated the challenge in specific electoral districts. The Court said that the district court concluded that because racial criteria had not predominated in redrawing some districts, racial criteria did not predominate "with respect to the State as an undifferentiated whole." This was in error. Moreover, the Court held that the plaintiffs didn't pitch their case only against the State as an undifferentiated whole (as the dissent argued); instead, the plaintiffs presented evidence to support a district-specific approach (even if they could have made this case "more clearly")--the approach that the district court should have used.
The Court ordered the district court to consider a district-specific approach on remand and allowed the plaintiffs to produce additional evidence to support their claims.
2. The district court erroneously held that the Alabama Democratic Conference lacked standing to make its claims against redistricting as a whole and as to four individual Senate districts. The district court said that the Conference lacked associational standing, because the record didn't clearly identify the districts where individual Conference members resided. The Court said this was wrong--and that the district court should have given the Conference an opportunity to show standing. The Court held that the recorded supported the fact that the Conference was state-wide, and had members in each of the state's majority-minority districts. The Court ordered the district court on remand to "reconsider the Conference's standing by permitting the Conference to file its list of members and permitting the State to respond, as appropriate."
3. The district court erred by holding in the alternative that the race was not a predominant factor in the creation of any individual district. The Court held that the district court "did not properly calculate 'predominance,'" because it concluded that the state considered race along with other race-neutral factors, so that the other factors outweighed the consideration of race. Justice Breyer explained:
In our view, however, an equal protection goal is not one factor among others to be weighed against the use of race to determine whether race "predominates." Rather, it is part of the redistricting background, taken as a given, when determining whether race, or other factors, predominate in a legislator's determination as to how equal population objections will be met."
In other words, the question whether race predominates compares a state's consideration of race with its consideration of race-neutral factors like compactness, contiguity, respect for political subdivisions or communities, incumbency protection, and political affiliation. But that comparison list does not include equal population. Equal population is different, because it's constitutionally required. "It is not a factor to be treated like other nonracial factors when a court determines whether race predominates over other, 'traditional' factors in the drawing of district boundaries." Instead, it's a "background rule against which redistricting takes place." And the district court was wrong to say otherwise.
Treating equal population as a background rule (and not one of the nonracial factors), the Court said that race might well have predominated in the drawing of certain districts. It remanded for reconsideration.
4. The district court wrongly concluded that even if race predominated, the gerrmandering claims failed because the redrawn districts satisfied strict scrutiny--that is, they are drawn to comply with Section 5 of the VRA. The Court said that the district court misperceived Section 5: It "does not require a covered jurisdiction to maintain a particular numerical minority" (as the district court held), but rather "requires the jurisdiction to maintain a minority's ability to elect a preferred candidate of choice."
Justice Scalia wrote the principal dissent, joined by Chief Justice Roberts and Justices Thomas and Alito. Justice Scalia said that the plaintiffs screwed up their case by alleging a state-wide violation--a claim the law doesn't allow--and that the majority wrongly gave them a do-over.
[A]llowing appellants a second bite at the apple invites lower courts similarly to depart from the premise that our is an adversarial system whenever they deem the stakes sufficiently high. Because I do not believe that Article III empowers this Court to act as standby counsel for sympathetic litigants, I dissent.
Justice Thomas wrote a separate dissent for himself alone to say how "our jurisprudence in this area continues to be infected with error." "We have somehow arrived at a place where the parties agree that Alabama's legislative districts should be fine-tuned to achieve some 'optimal' result with respect to black voting power; the only disagreement is about what percentage of blacks should be placed in those optimized districts. This is nothing more than a fight over the 'best' racial quota.'"
Tuesday, March 24, 2015
The Supreme Court on Monday declined to take up Frank v. Walker, the challenge to the Wisconsin's voter ID law. In a dizzying and complicated case, the Seventh Circuit upheld the law, so yesterday's ruling means that Wisconsin's voter ID law stays in place. (Here's our latest post, when the Supreme Court last fall halted the Seventh Circuit's stay of an earlier district court ruling against voter ID, with links to earlier posts.)
Given the timing, the state said that it won't apply voter ID to its upcoming April 7 elections. But it will apply it to all future elections, including any special elections in 2015.
Wednesday, March 18, 2015
The Fifth Circuit denied the plaintiffs' claims for attorneys fees in the 2012 case out of San Antonio over Texas redistricting. The ruling marks a bitter end for the plaintiffs in this long-running and complicated dispute that put the plaintiffs between two district courts, two different sections of the Voting Rights Act, the Texas legislature, and the Supreme Court--and stuck them with a $360,000 bill for . . . a victory. The ruling rewards Texas's foot-dragging through the preclearance process as two cases simultaneously worked their ways through the courts.
Recall that the plaintiffs sued Texas in the Western District of Texas over the legislature's redistricting plan. The plaintiffs argued that the plan violated Section 2 of the Voting Rights Act and the Equal Protection Clause, and that it hadn't been precleared under Section 5. (The preclearance case was pending before a three-judge court in D.C.) The San Antonio court enjoined the legislature's redistricting plan because it hadn't been precleared and drew its own district maps.
The Supreme Court then stepped in and rejected the San Antonio court's maps, but gave the court another shot at drawing them. The San Antonio court redrew the maps according to the Supreme Court's new standard. Following the Supreme Court, the San Antonio court issued its new maps as "a result of preliminary determinations regarding the merits of the Section 2 and constitutional claims presented in this case, and application of the 'not insubstantial' standard for the Section 5 claims." (That "not insubstantial" standard said that the San Antonio court could only consider the Section 5 preclearance claim insofar as the plaintiffs' challenges in the D.C. court were "not insubstantial." But the merits of the Section 5 claim were reserved to the D.C. court (and not the San Antonio court).)
The D.C. court denied preclearance to the Texas legislature's maps. Texas appealed, but used the San Antonio court's plan as an interim plan for its 2012 elections.
In 2013, the Supreme Court struck the preclearance coverage formula in Shelby County and later vacated the D.C. court's judgment denying preclearance to the legislature's plan. At the same time, Governor Perry signed a bill repealing the legislature's plan and adopting the court's plan. The San Antonio district court dismissed the case (or what remained of it, the plaintiffs' Section 2 and constitutional claims).
This seems like a win for the plaintiffs. So why no attorney fees?
The Fifth Circuit held that the plaintiffs weren't "prevailing parties" under the fee-shifting statute. The court said that the plaintiffs couldn't have won their Section 5 claim at the San Antonio court, because only the D.C. court can rule on the merits of a Section 5 claim. And the Fifth Circuit said that the plaintiffs didn't win their Section 2 and constitutional claims at the San Antonio court, because the San Antonio court never evaluated them.
The Fifth Circuit suggested that the plaintiffs might have been "prevailing parties" under a "catalyst theory," by merely demonstrating that their lawsuit caused Texas to alter its conduct. But the Fifth Circuit noted that the Supreme Court rejected this approach in Buckhannon.
The Fourth Circuit ruled in Greenville County Republican Party v. Greenville County Election Commission that various challenges to South Carolina's municipal election procedures lacked justiciability and dismissed the case.
South Carolina law required municipalities to adopt by ordinance either a partisan or nonpartisan way of nominating candidates for public office in municipal elections. If a municipality selected the partisan method, South Carolina law allowed a certified political party to select one of three procedures: a party primary, a party convention, or a petition. Nomination by party primary required an open primary. Nomination by convention required a 3/4 super-majority vote of the party membership.
The Greenville County Republican Party Executive Committee, an affiliate of the state Republican party but not itself a certified political party, challenged these procedures under the First, Fifth, and Fourteenth Amendments. The Committee sought declaratory and injunctive relief, and monetary damages for having to implement the procedures in prior elections.
As the case worked its way up and down, Greenville changed its ordinance to nominate candidates using a nonpartisan procedure.
The Fourth Circuit ruled that this mooted the Committee's claims for prospective relief. In particular, the court said that the County's decision was not capable of repetition but evading review, because the Committee didn't satisfy its burden of establishing "a reasonable expectation" that it wouldn't go back to the partisan method of nominating candidates for future elections.
As to the surviving claims, the court held that the Committee lacked standing. The court said that the Committee didn't suffer any harm from the super-majority requirement for convention-nominated candidates; instead, the state party suffered that harm--making the Committee's claim a nonjusticiable third-party claim. The court also held that the Committee couldn't satisfy the traceability prong of standing, because it was the state party, not Greenville, that elected to use the open primary system. (The state Republican Party was at one time party to the suit, but withdrew.)
The ruling ends this suit, and, in the wake of Greenville's decision to use a nonpartisan nominating process, almost certainly ends any challenges to Greenville's old partisan process.
March 18, 2015 in Association, Cases and Case Materials, Elections and Voting, Equal Protection, Fifth Amendment, First Amendment, Fourteenth Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)
Sunday, March 8, 2015
On the 5oth anniversary of the Selma-Montgomery March, President Obama and other dignitaries gathered in Selma to commemorate the iconic protest which is widely believed to have galvanized support for the Voting Rights Act of 1965.
Given the Court's closely divided and controversial 2013 decision in Shelby County (Alabama) v. Holder finding parts of the Voting Rights Act unconstitutional, as well as subsequent efforts by states to enact voting restrictions, Obama not surprisingly included pertinent references in his speech:
And with effort, we can protect the foundation stone of our democracy for which so many marched across this bridge –- and that is the right to vote. Right now, in 2015, 50 years after Selma, there are laws across this country designed to make it harder for people to vote. As we speak, more of such laws are being proposed. Meanwhile, the Voting Rights Act, the culmination of so much blood, so much sweat and tears, the product of so much sacrifice in the face of wanton violence, the Voting Rights Act stands weakened, its future subject to political rancor.
How can that be? The Voting Rights Act was one of the crowning achievements of our democracy, the result of Republican and Democratic efforts. President Reagan signed its renewal when he was in office. President George W. Bush signed its renewal when he was in office. One hundred members of Congress have come here today to honor people who were willing to die for the right to protect it. If we want to honor this day, let that hundred go back to Washington and gather four hundred more, and together, pledge to make it their mission to restore that law this year. That’s how we honor those on this bridge.
Obama left unelaborated what Congress might do in light of the Court's decision in Shelby. A full text of Obama's speech is here, but the video is worth watching:
Monday, March 2, 2015
The Supreme Court heard oral arguments today in Arizona State Legislature v. Arizona Independent Redistricting Commission, the case testing whether Arizona can use an independent commission (established by voter initiative, not by the legislature) to redraw congressional districts in light of the Election Clause's language that says that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . ."
At its core, the arguments turn on just how pliable the term "the Legislature" is: Does it mean only the state legislature (as the legislature would have it); or does it also mean the lawmaking power of the state (as the commission would have it)?
The Court and attorneys predictably turned to text and history. The precedent, such as it is, wasn't much help.
Paul Clement, for the legislature, argued that the commission completely cuts the legislature out, by "permanently wresting that authority." It'd be a harder case, he conceded, if there were some role for the legislature. That prompted questions by Justices Kennedy and Kagan about voter-referendum-approved efforts like voter ID, or judge-drawn districts in the context of litigation: Don't those cut the legislature out completely? Clement argued that those initiatives actually delegate authority to the state legislature, not away from it. As to judge-drawn districts (a question from Justice Kennedy), Clement said that the Constitution requires the plan to go to the legislature. They also turned to line-drawing: If "the Legislature" means only the legislature, how can the legislature allow for so many exceptions (that is, how can the legislature allow any role for any other body, like a gubernatorial veto)? And doesn't the legislature still have a role under the commission system? Can't it initiate a referendum? Clement said no to this last point (although he conceded that the legislature could initiate a voter initiate, like anyone else). Still, there was some concern about where and how to draw lines.
The government, as amicus, argued that the legislature lacked standing. But this didn't gain any traction with the Court, and basically fizzled out.
Justices Scalia and Alito hit Seth Waxman, for the commission, with a series of questions about what "the legislature" means in other parts of the Constitution. Justice Kennedy jumped in with the history of state legislative appointments to the Senate, and the overriding Seventeenth Amendment. (It took the Seventeenth Amendment to take state legislatures out of Senate appointments. Why take state legislatures out of congressional line-drawing (without an amendment) here?) Waxman responded that the Court's interpretations favored the commission; but that response didn't seem to satisfy. (Again, the precedent didn't seem to persuade anyone much either way.) When Waxman turned to dictionaries to help him out, Justice Scalia (of all the Justices) pounced: "You've plucked that out of a couple of dictionaries!" Maybe this wasn't so surprising, though: Justice Scalia seemed to believe that he could decide the case on the text alone, and the idea that no other constitutional reference to "the legislature" means anything other than the legislature. Chief Justice Roberts added force when he wondered why Waxman's interpretation didn't make "the Legislature" superfluous. Waxman fell back on an argument that the Framers understood that the same word could mean different things in different contexts, but this point fell flat.
Clement at one point said that the legislature's position wouldn't foreclose the use of an independent commission to draw state legislative boundaries, and that in this way the people (and their commission) could influence the direction of the state legislature and thus influence the state legislature's congressional district map. He also said that it'd be a harder case if the commission didn't completely divest the legislature of all power in the map-drawing process.
If the people of Arizona are looking for a way to influence congressional district maps after this case, these may be all that's left.
Tuesday, February 24, 2015
Prof. Alan Morrison (GWU) offers his take on Arizona State Legislature v. Arizona Independent Redistricting Commission in this ACS Issue Brief. The case, scheduled for argument on March 2, tests whether Arizona's independent redistricting commission violates the Elections Clause and 2 U.S.C. Sec. 2a(c), and whether the state legislature has standing to bring the challenge.
The state legislature claims that the Commission (created by ballot initiative) violates the Elections Clause because it takes out of the hands of "the Legislature" the "Times, Places and Manner of holding Elections for Senators and Representatives."
Morrison argues that Arizona's commission is the state's "second effort at electoral reform," after the Court struck its public financing system in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett. He says that gerrymandering reformers "should be rooting hard that the Court rejects the position of the Arizona legislature."
We'll post our oral argument preview soon.
Monday, January 26, 2015
The Brennan Center's Daniel Weiner recently released Citizens United Five Years Later, the Center's latest in an outstanding series of reports on Citizens United, campaign spending, and the 2014 elections.
Weiner writes that the case's biggest impact hasn't been increased corporate spending (although corporate spending has increased). Instead, Citizens United and other cases have led to a huge increase in spending by super-wealthy mega-donors:
Perhaps most important, the singular focus on the decision's empowerment of for-profit corporations to spend in (and perhaps dominate) our elections may be misplaced. Although their influence has increased, for-profit corporations have not been the most visible beneficiaries of the Court's jurisprudence. Instead--thanks to super-PACs and a variety of other entities that can raise unlimited funds after Citizens United--the biggest money (that can be traced) has come from an elite club of wealthy mega-donors. These individuals--fewer than 200 people and their spouses--has bankrolled nearly 60 percent of all super-PAC spending since 2010.
And while spending by this wealthy club has exploded, we have seen neither the increased diversity of voices that the Citizens United majority imagined, nor a massive upsurge in total election spending. In fact, for the first time in decades, the total number of reported donors has begun to fall, as has the total contributed by small donors (giving $200 or less). In 2014, the top 100 donors to super-PACs spent almost as much as all 4.75 million small donors combined.
A sobering picture.
Weiner's "can be traced" parenthetical gets some attention in the report, too, where Weiner discusses dark money, "independent" groups, and reporting requirements (or the lack of reporting requirements)--all features of a post-Citizens United world.
Monday, January 19, 2015
ConLawProfBlog's own Prof. Ruthann Robson (CUNY) recently published her thoughtful, creative, and compelling piece on Williams-Yulee, the case testing Florida's ban on campaign contributions by judicial candidates, on the Supreme Court's calendar on Tuesday. Robson's Public Interest Lawyering & Judicial Politics: Four Cases Worth a Second Look in Williams-Yulee v. The Florida Bar is part of Vanderbilt Law Review's Rountable on the case.
Robson takes a refreshing look at the issue of judicial candidate campaign contributions through the eyes of a public interest attorney. Indeed, she starts the piece with a personal testimonial about being solicited herself--and the awkward position that put her in. (Tellingly, her position wasn't so awkward for other, non-public interest attorneys. They simply contributed.)
She argues that public interest lawyers have a special interest in this issue, and in this case. That's because
as public interest attorneys, we are less likely to be able to contribute to judicial campaigns, but may feel more likely to comply with a solicitation because we know our clients are already at a disadvantage. Additionally, our opposing clients and counsel are often those who are precisely in the position of being solicited and of answering those solicitations with substantial contributions.
She makes her case by persuasively arguing for a "second look" at four earlier decisions--newer and older, all touching on judicial integrity--that in different ways illustrate why a ruling for Williams-Yulee (overturning Florida's ban) "would have a disproportionately negative impact on the public interest bar." Those cases are Republican Party of Minnesota v. White (striking Minnesota's rule that prohibited judicial candidates from announcing their views on disputed issues); Caperton v. A.T. Massey Coal Co. (holding that the failure of a state high court judge to recuse himself from a case involving a major donor violated due process); Shelley v. Kraemer (holding that the judiciary is subject to the same constitutional constraints that the other branches are); and In Re Hawkins (Fl. Sup. Ct.) (upholding a sanction of removal from the bench after a judge sold her book to attorneys with cases before her).
Robson's "second look" cases together illustrate why an impartial judiciary, and the appearance of an impartial judiciary, are so important--to the public, to be sure, but especially to public interest attorneys and their clients. They also show how a ruling for Williams-Yulee (a former public defender herself) could so adversely affect the public interest bar.
Robson's piece brings a voice to this case--the voice of the underrepresented and their attorneys--that's all-too-often lost in sterile arguments about free speech. And she shows why the Court should pay attention to that voice.
[Public interest attorneys] should not have to worry whether [judges] think we "support" them, or whether our adversaries "support" them. We should not have to curry favor through financial contributions directly requested by a person who is hearing our client's causes. To do our work, we must continue to have faith that our judges, whether elected or whether appointed to the United States Supreme Court, are not mere politicians.
An excellent piece that adds to the debate. Check it out.
Thursday, January 15, 2015
On Tuesday, January 20, the United States Supreme Court will hear arguments in the closely-watched case of Williams-Yulee v. The Florida Bar involving a First Amendment challenge to a state rule prohibiting the personal solicitation of campaign contributions in a judicial election. Our discussion of the grant of certiorari is here.
Vanderbilt Law Review has published its "Roundtable" symposium about the pending case. It includes:
The Absent Amicus: “With Friends Like These . . .”
Robert M. O’Neil · 68 Vand. L. Rev. En Banc 1 (2015).
Public Interest Lawyering & Judicial Politics: Four Cases Worth a Second Look in Williams-Yulee v. The Florida Bar
Ruthann Robson · 68 Vand. L. Rev. En Banc 15 (2015).
Much Ado About Nothing: The Irrelevance of Williams-Yulee v. The Florida Bar on the Conduct of Judicial Elections
Chris W. Bonneau & Shane M. Redman · 68 Vand. L. Rev. En Banc 31 (2015).
Williams-Yulee and the Inherent Value of Incremental Gains in Judicial Impartiality
David W. Earley & Matthew J. Menendez · 68 Vand. L. Rev. En Banc 43 (2015).
Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. The Florida Bar
Stephen J. Ware · 68 Vand. L. Rev. En Banc 59 (2015).
The Jekyll and Hyde of First Amendment Limits on the Regulation of Judicial Campaign Speech
Charles Gardner Geyh · 68 Vand. L. Rev. En Banc 83 (2015).
What Do Judges Do All Day? In Defense of Florida’s Flat Ban on the Personal Solicitation of Campaign Contributions From Attorneys by Candidates for Judicial Office
Burt Neuborne · 68 Vand. L. Rev. En Banc 99 (2015).
Williams-Yulee v. The Florida Bar, the First Amendment, and the Continuing Campaign to Delegitimize Judicial Elections
Michael E. DeBow & Brannon P. Denning · 68 Vand. L. Rev. En Banc 113 (2015).
January 15, 2015 in Courts and Judging, Due Process (Substantive), Elections and Voting, First Amendment, Fourteenth Amendment, Scholarship, Speech, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Tuesday, November 11, 2014
The Supreme Court will hear oral arguments tomorrow in the case challenging Alabama's re-drawing of its state legislative districts after the 2010 census. The case pits a claim under Section 2 of the Voting Rights Act against a defense under Section 5, although the constitutionality of those provisions is not (directly) at issue in the case.
Alabama redrew its state legislative districts after the 2010 census in order to maintain equal population across districts (within 2 percent), to maintain the existing number of majority-minority districts, and to maintain the existing percentage of black voters in those majority-minority districts. But the state's demographics shifted so that in order to achieve those goals the state had to pack black voters into existing majority-minority districts. The net result was to consolidate minority voting power in these majority-minority districts, but to enhance Republicans' power in the rest of the state.
Democrats and black legislators and groups sued, arguing that the re-districting plans violated Section 2 of the Voting Rights Act and amounted to racial and political gerrymanders. The state countered that it was compelled to draw the districts this way under Section 5 of the VRA in order to preserve majority-minority districts and to avoid retrogression. (The irony of Alabama using Section 5 as a shield after it so vigorously attacked Section 5 in Shelby County has escaped no one.)
The three-judge district court divided along party lines--the two judges appointed by a Republican president ruling for the state, and the lone judge appointed by a Democrat dissenting.
The case pits the plaintiffs' Section 2 claim against the state's Section 5-based reason for the districts. The state's position--that Section 5 made them do it--is part of a larger trend of states applying "not the Voting Rights Act, but a hamhanded cartoon of the Voting Rights Act--substituting blunt numerical demographic targets for the searching examination of local political conditions that the statute actually demands," according to Loyola's (Los Angeles) Justin Levitt. The state's position also potentially puts the constitutionality of Section 5 before the Court: If Section 5 requires race-based decisions like this, isn't it unconstitutional? That question isn't squarely before the Court, but it's certainly lingering behind the curtains.
Wednesday, November 5, 2014
In addition to the candidates, Tuesday's ballots contained a wide variety of proposed state constitutional amendments--from protecting and curtailing fundamental rights, to taxes, to structure and governance issues.
Maybe most notably, Colorado and North Dakota voters rejected a personhood amendment, while Tennessee voters approved an amendment giving lawmakers more power to regulate abortions.
Here's a sampling of other approved amendments:
Alabama voters passed an amendment to ban the use of foreign law in state courts, and another one to strengthen the state's constitutional right to hunt.
Illinois voters passed an amendment banning discrimination in the vote and another one that expands the rights of crime victims in the criminal justice system.
Mississippi voters aproved an amendment creating a right to hunt and fish.
Missouri voters approved an amendment to make it easier to prosecute sex crimes against children, and another one to limit the governor's ability to withhold money from the state budget.
North Carolina voters approved an amendment allowing criminal defendants to choose a judge or a jury trial.
South Carolina voters approved an amendment allowing certain nonprofits to hold raffles and use proceeds for charitable causes, and another allowing the governor to appoint the head of the South Carolina National Guard with consent of the Senate.
Tennessee approved four amendments: one to give lawmakers more power to regulate and restrict abortions; two to give more power to the governor in appointing judges (and to take that power away from a judicial nominating commission); three to forbid a state income tax; and four to allow the legislature to authorize lotteries to certain nonprofits.
Utah voters passed an amendment clarifying the term of an appointed lieutenant governor.
Virginia voters approved an amendment that exempts from local property taxes the home of a surviving spouse of an armed forces member who was killed in action.
Wisconsin voters approved an amendment that prevents governors and legislators from using state transportation funds for other purposes.
Here's a sampling of rejected amendments:
Colorado voters overwhelmingly rejected a personhood amendment.
Florida voters rejected a medical marijuana amendment. (Voters in other states also voted on marijuana initiatives, but Florida's was a proposed constitutional amendment.)
Idaho voters rejected an amendment that would allow the legislature to veto rules put in place by executive branch agencies.
Missouri voters rejected an amendment to evaluate K-12 teachers based on student performance instead of seniority, and another amendment to create a limited early voting period.
North Carolina voters rejected a personhood amendment.
Saturday, October 18, 2014
The Supreme Court today rejected the applications by the Justice Department and civil rights groups to vacate the Fifth Circuit's stay of a district judge's injunction against Texas's voter ID law, SB 14. The ruling means that Texas can implement voter ID under SB 14 in the fall elections.
The brief, unsigned order simply rejected the applications for a stay.
But Justice Ginsburg wrote a dissent, joined by Justices Sotomayor and Kagan. Justice Ginsburg distinguished the Texas case from the North Carolina and Ohio cases, writing that "[n]either application involved, as this case does, a permanent injunction following a full trial and resting on an extensive record from which the District Court found ballot-access discrimination by the State." She also wrote that the Fifth Circuit didn't properly defer to the district court ruling, and that halting SB 14 wouldn't cause disruption or confusion in the election (the Fifth Circuit's principal reason for rejecting the district court's injunction).
Justice Ginsburg also reviewed the district court ruling striking SB 14, and noted that it failed preclearance under Section 5 of the Voting Rights Act (pre-Shelby County). She concluded,
The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters. To prevent that disenfranchisement, I would vacate the Fifth Circuit's stay of the permanent injunction ordered by the District Court.
Thursday, October 16, 2014
The Arkansas Supreme Court yesterday struck the state's voter ID requirement under the state constitution. The unanimous ruling means that Arkansas will not use Act 595's voter ID requirements in the upcoming elections.
The ruling is based on state constitutional law only, and therefore won't and can't be appealed to the United States Supreme Court.
The state high court ruled that Act 595's voter ID requirement added a voter requirement to those set in the state constitution. Arkansas's constitution, art. 3, Section 1, says,
Except as otherwise provided by this Constitution, any person may vote in an election in this state who is:
(1) A citizen of the United States;
(2) A resident of the State of Arkansas;
(3) At least eighteen (18) years of age; and
(4) Lawfully registered to vote in the election.
The court said, "These four qualifications set forth in our state's constitution simply do not include any proof-of-identity requirement." The court struck Act 595 on its face.
The court also rejected the argument that voter ID was simply a procedural method of identifying a voter, and therefore constitutional under a state constitutional provision allowing such methods:
We do not interpret Act 595's proof-of-identity requirement as a procedural means of determining whether an Arkansas voter can 'lawfully register to vote in the election.' Ark. Const. art. 3, Sec. 1(4). Under those circumstances, Act 595 would erroneously necessitate every lawfully registered voter in Arkansas to requalify themselves in each election.
Justice Courtney Hudson Goodson concurred in the result, but because Act 595 failed to get a two-thirds majority vote in both houses of the legislature as required by a 1964 amendment to the constitution that sets the requirements for identification and registration of voters (and does not include photo ID) and allows for legislative amendment of those requirements if the legislature votes by two-thirds in both houses.
The Fifth Circuit this week stayed an earlier district court judgment and injunction against Texas's voter ID law, SB 14. Unless the Supreme Court steps in, this means that SB 14 will apply to November's elections.
The Fifth Circuit action is not a ruling on the merits, however. Instead, it preserves the status quo under SB 14, pending appeal of the district court judgment to the Fifth Circuit.
The court said that changing the rules so close to the election risks too much confusion: "The judgment below substantially disturbs the election process of the State of Texas just nine days before early voting begins. Thus, the value of preserving the status quo here is much higher than in most other contexts." (Early voting starts on Monday in Texas.)
This is just the latest of four cases challenging state elections laws that has gone to the Supreme Court this fall, just before the elections, all on emergency applications related to lower court injunctions, and not on the merits. The Court halted Wisconsin's voter ID law; it allowed restrictions on early voting in Ohio; and it allowed restrictions on same-day voter registration and voting in the wrong precinct in North Carolina.
Thursday, October 9, 2014
Judge Nelva Gonzales Ramos (S.D. Tex.) ruled today that Texas's new voter ID law violated the Constitution and entered "a permanent and final injunction against enforcement of the voter identification provisions . . . of SB 14." Judge Ramos concluded that "SB 14 creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose." Judge Ramos also held that "SB 14 constitutes an unconstitutional poll tax."
Judge Ramos ordered Texas to "return to enforcing the voter identification requirements for in-person voting in effect immediately prior to the enactment and implementation of SB 14."
The ruling comes the same day as the Supreme Court vacated an earlier Seventh Circuit stay of a district court injunction against Wisconsin's voter ID law.
The Supreme Court this evening vacated the Seventh Circuit stay of an earlier district court injunction halting Wisconsin's voter ID law. (The Seventh Circuit upheld the state's voter ID law earlier this week.) This latest chapter in this dizzying case means that Wisconsin will almost surely not have voter ID in the upcoming elections. It also means that the Court may once again take up voter ID.
The Supreme Court order was brief, just one page, and said only that "the Seventh Circuit's stay of the district court's permanent injunction injunction is vacated pending the timely filing and disposition of a petition for a writ of certiorari . . . ." The stay will terminate if the Court denies cert.
Justice Alito dissented, joined by Justices Scalia and Thomas. Justice Alito wrote that the Seventh Circuit's ruling wasn't unreasonable, or "demonstrably" erroneous. Justice Alito alluded to the problem of absentee ballots going out without a notice of the voter ID requirement, suggesting that these problems may have driven the Court to intervene.
Judge Colleen Kollar-Kotelly (D.D.C.) this week rejected a non-profit's challenge to the disclosure provisions in the Bipartisan Campaign Reform Act of 2002. The ruling was unsurprising, even if the case may be noteworthy, as it represents a next wave of challenges to campaign finance regulation.
The Independence Institute, a Colorado non-profit, sought declaratory and injunctive relief against FEC enforcement of BCRA's disclosure requirement as applied to a specific radio ad that the Institute planned to run before the fall elections. The Institute argued that the requirement was overbroad as applied, because the planned ad was genuine issue advocacy, and not express advocacy.
Judge Kollar-Kotelly was blunt in rejecting this argument:
This dispute can be distilled to the application of the Supreme Court's clear instructions in Citizens United: in no uncertain terms, the Supreme Court rejected the attempt to limit BCRA's disclosure requirements to express advocacy and its functional equivalent. Plaintiff in this case seeks the same relief that has already been foreclosed by Citizens United.
Judge Kollar-Kotelly then rejected the Institute's attempts to distinguish Citizens United, ruled in favor of the FEC, and upheld the disclosure requirement.
This ruling was hardly surprising: if a court is going to overturn disclosure requirements, it'll have to be the Supreme Court. Still, the case should get our attention as a next-wave challenge to campaign speech regulation--the challenge to disclosure requirements.
Wednesday, October 8, 2014
The Supreme Court today stayed the preliminary injunction ordered by the Fourth Circuit against North Carolina's elimination of same-day voter registration and the state's elimination of voting in an incorrect precinct. The ruling means that North Carolina will not have same-day voter registration or allow voting in an incorrect precinct in the fall elections. Still, the underlying merits case will move forward at the district court.
The case is notable, because North Carolina enacted its restrictions on voting immediately after the Supreme Court struck the coverage formula for preclearance under the Voting Rights Act in Shelby County. The move suggested that the state itself thought that its law wouldn't achieve preclearance. It illustrates the sweep and practical effects of the Shelby County ruling.
Justices Ginsburg and Sotomayor dissented from the stay, arguing that the Fourth Circuit was right to enjoin the provisions, and that North Carolina's evidence comparing African-American turnout in the 2010 primary election (relatively low) with African-American turnout in the 2014 primary (relatively high, and under the changes at issue in the case) was flawed, because primary voting patterns are not representative of general election voting patterns.