Wednesday, December 14, 2016
Three district courts ruled late last week and early this week that petitioners lacked standing (Article III or otherwise) to challenge President-Elect Trump's election, or to petition for a recount.
On Friday, the Michigan Supreme Court effectively halted the recount effort there. Two concurring justices explained that Jill Stein was not "aggrieved" under the recount statute and therefore couldn't petition for a recount--the same argument that Trump and the Michigan AG made earlier in the process. Then on Monday Judge Diamond (E.D. Pa.) ruled that Jill Stein lacked Article III standing to seek a recount through the federal courts. (Judge Diamond identified several other problems with Stein's complaint.)
On Friday, Judge Moss (D.D.C.) tossed a case by a pro se plaintiff challenging Trump's election, because "[a]n ordinary citizen's challenge to the eligibility of a presidential candidate falls squarely within this category of nonjusticiable 'generalized grievances.'"
Monday, December 5, 2016
As an orientation for assessing the argument, Lessig trenchantly reminds us:
In 2000, Republican lawyers, desperately seeking a way to stop the recount in Florida, crafted a brilliant Equal Protection argument against the method by which the Florida courts were recounting votes. Before that election, no sane student of the Constitution would have thought that there was such a claim. When the claim was actually made, every sane lawyer (on Gore’s side at least) thought it was a sure loser. But by a vote of 7 to 2, the Supreme Court recognized the claim, and held that the Equal Protection Clause regulated how Florida could recount its votes. That conclusion led 5 justices to conclude the recount couldn’t continue. George Bush became president.
Lessig provides some scholarly sources and reveals he is planning a law review article on the applicability of Bush v. Gore and equal protection principles to the "winner take all" electoral college process.
But he also shares a first take of a legal argument drafted by Jerry Sims, an Atlanta attorney. Here's Sims's Georgia example:
In Georgia, for example, we have 16 Electors and approximately 44% of all voters cast ballots for Clinton. Yet the Clinton Voters receive no representation within the State’s Electors. They are left with no voice whatsoever in the election of the President by the Electoral College, their votes are for all practical purposes thrown away. If Georgia were electing a single candidate then a winner-take-all result would be proper, but in an election of 16 Electors, the Clinton votes are not being given equal dignity with the Trump votes. Of course the state could argue that there is a single slate of Electors is up for election. But therein lies the rub, the State is not free to disregard the one man one vote rule by arbitrarily framing the election of 16 Electors as though it is an election of a single office holder. That argument would be a pretext designed to deny any voice to the voters for the candidate not winning the plurality of the vote within the State, even though in reality multiple representatives are being selected to vote in a second election for a single candidate. This system leaves minority voters in Georgia with no voice whatsoever in the final real election. Thus, if the election is viewed by the State as a statewide election, then Electors should be allocated proportionately, in order to give every vote equal dignity and weight, thereby electing a delegation of Electors that actually represents all of the voters within the State. Under this methodology every vote counts. Proportional allocation of Electors respects the one man one vote principle while preserving the small state bias. It merely eliminates the likelihood of a President being elected who did not win the popular vote and did not win because of the small State bias embedded in the Constitution.
Sims links to a spread sheet that provides the data for other states.
The equal protection framework relies on Bush v. Gore and Reynolds v. Sims, as well as Williams v. Rhodes (1968).
It's certainly worth considering.
Friday, December 2, 2016
It depends on what "aggrieved" means, according to the Trump team in its filing yesterday in opposition to Stein's recount petition.
Under Michigan law, a candidate can petition for a recount if the candidate "is aggrieved on account of fraud or mistake in the canvass of the votes by the inspectors of election or the returns made by the inspectors, or by a board of county canvassers or the board of state canvassers."
In a filing before the Michigan Board of State Canvassers yesterday, the Trump team argued that Stein wasn't "aggrieved," because, as the fourth-place finisher in the state, "finishing over 2.2 million votes behind the winner," she could not possibly benefit from a recount. The Trump team argued that her petition should be denied.
It turns out there's little direct authority on how to define "aggrieved." The Trump team points to the gloss given by the Director of Elections in a Board hearing ten years ago, the "natural understanding" of the term, and the use of the term in other places in Michigan law and other states' laws.
But even if Stein was "aggrieved," the Trump team argues that Michigan can't possibly conduct a recount before December 13 (outside the six-day "safe harbor" under federal law before the meeting of the electors on December 19).
But even if Stein was "aggrieved" and if Michigan could conduct a recount, the Trump team argues that Stein failed to sign and swear her petition.
Trump won 2,279,543 votes in Michigan; Clinton won 2,268,839; Gary Johnson won 172,136 votes; and Stein won 51,463.
UPDATE: Michigan AG Bill Schuette just filed suit in the Michigan Supreme Court to halt any recount, making arguments substantially similar to those by the Trump camp.
Tuesday, November 22, 2016
The factual predicate for the case does not involve the most recent election. Writing for the majority, Seventh Circuit Judge Kenneth Ripple began by explaining:
The plaintiffs have brought this action alleging that Act 43, the redistricting plan enacted by the Wisconsin Legislature in 2011, constitutes an unconstitutional partisan gerrymander. Specifically, they maintain that the Republican-controlled legislature drafted and enacted a redistricting plan that systematically dilutes the voting strength of Democratic voters statewide. We find that Act 43 was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats. Moreover, as demonstrated by the results of the 2012 and 2014 elections, among other evidence, we conclude that Act 43 has had its intended effect.
In its discussion of "foundational case law," the court begins its discussion with the equal protection case of Reynolds v. Sims (1964), and concludes with League of United Latin American Citizens v. Perry (“LULAC”) (2006), although interestingly it does not cite Bush v. Gore (2000). In considering the "close relationship between equal protection and associational rights," the court found Williams v. Rhodes (1968) especially instructive. The court concluded:
We therefore believe that there is a solid basis for considering the associational aspect of voting in assessing the gravamen of the harm allegedly suffered by the plaintiffs. Indeed, in this case, the associational harm is especially important to the analysis because the testimony of the defendants’ witnesses as well as the plaintiffs’ demonstrate that, given the legislative practice and custom of Wisconsin, legislative action is controlled, as a practical matter, solely by the majority caucus. In such a circumstance, when the state places an artificial burden on the ability of voters of a certain political persuasion to form a legislative majority, it necessarily diminishes the weight of the vote of each of those voters when compared to the votes of individuals favoring another view. The burdened voter simply has a diminished or even no opportunity to effect a legislative majority. That voter is, in essence, an unequal participant in the decisions of the body politic.
It therefore rejected the notion that equal protection "must be limited to situations where the dilution is based on classifications such as race and population."
The court summarized the applicable doctrine as follows:
the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.
The court then exhaustively applied these standards to the complex facts, concluding that the plaintiffs had carried their burden. As to remedy, however, the court deferred because the parties had not had the opportunity to completely brief the matter and ordered simultaneous briefs within 30 days with 15 days thereafter to respond.
The dissenting judge, William Griesbach, relied on Davis v. Bandemer (1986) (plurality), in which the Court refused to invalidate Indiana's redistricting scheme, to support his conclusion that "partisan intent is not illegal, but is simply the consequence of assigning the task of redistricting to the political branches of government," and interestingly notes that
"It was only a term ago that the Court held by a 5 to 4 vote that it was constitutionally permissible to remove redistricting from the political branches. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n (2015). Adoption of the majority’s standard may well compel States to do so."
The incessant issue of gerrymandering may be headed to the United States Supreme Court yet again.
[image 1, Wisconsin map 1865 via; image 2, Appendix 2 to the court's opinion]
Sunday, November 6, 2016
The Supreme Court on Saturday stayed an injunction issued by the Ninth Circuit late last week halting enforcement of Arizona's ballot collection ban. The order means that Arizona can enforce its criminal ban on ballot collection pending appeal to the full Ninth Circuit--well after Election Day.
Recall that a divided three-judge panel of the Ninth Circuit denied a preliminary injunction against Arizona's 2016 ballot collection law. That law criminalized the collection and delivery of early ballots by anyone other than the voter. (Arizona had previously allowed certain persons other than the voter to collect and deliver a voter's ballot. This practice was used by minority communities in the state, including Native American, Hispanic, and African American communities that, for different reasons, lacked easy access to the polls.)
The full Ninth Circuit then agreed to hear the case. And the court issued an injunction against enforcement of the law pending appeal. As to any problems from enjoining a law so close to the election (like voter confusion)--the Purcell factors--the court wrote:
First, the injunction does not affect the state's election processes or machinery. . . .
Enjoining enforcement of H.B. 2023 will not have any effect on voters themselves, on the conduct of election officials at the polls, or on the counting of ballots. . . .
Here, the injunction preserves the status quo prior to the recent legislative action in H.B. 2023. Every other election cycle in Arizona has permitted the collection of legitimate ballots by third parties to election officials. . . .
Moreover, the court wrote that Arizona's first attempt at criminalizing ballot collection was stopped by DOJ--denied preclearance before Shelby County effective wiped preclearance off the books. But then Arizona re-enacted it in 2016, after Shelby County said that Arizona no longer had to preclear election-law changes. Thus, according to the Ninth Circuit, an injunction pending appeal didn't run into Purcell problems, because "[i]n the wake of Shelby County, the judiciary provides the only meaningful review of legislation that may violate the Voting Rights Act."
The Ninth Circuit will hear oral arguments in January, but the Supreme Court's order on Saturday ensures that Arizona's ban on ballot collection will stay in place for this election cycle.
The order was unsigned, and there were no concurrences or dissents.
Friday, November 4, 2016
In her opinion in Hill v. Williams, United States District Judge Christine Arguello enjoined Colorado Revised Statute § 1-13-712(1), which prohibits a voter from “show[ing] his ballot after it is prepared for voting to any person in such a way as to reveal its contents.” In late October, the Denver District Attorney issued a news release reminding voters that posting an image of a completed ballot - - - a "ballot selfie" - - - was a misdemeanor. Two separate sets of plaintiffs thereafter sued to enjoin the Colorado statute as a violation of the First Amendment.
As Judge Argeullo explains,
Colorado uses an all mail-in ballot election. Every registered voter who registered to vote on or before October 31, 2016, has received a mail-in ballot to complete at home. Individuals who did not register by that date are allowed to register at the polling places and vote up to, and including, Election Day. Moreover, voters who have obtained ballots in the mail are still allowed to vote in person on Election Day. . . . The Deputy Secretary of State testified that she anticipates between 100,000 and 750,000 Coloradans will vote in person on November 8, 2016.
The ballot selfie prohibition thus included photographs at polling places as well as photographs of ballots completed for mailing.
The judge first rejected the state's arguments that the plaintiffs lacked standing or that the case was already moot. The judge likewise rejected the argument that an injunction would alter election laws and procedures immediately before an election. Despite the timing, the judge stated that the plaintiffs' request (and her injunction) was narrowly crafted, and further noted that "if local rules at polling places prohibit the use of cameras due to privacy concerns, nothing in this Court’s Order prohibits the enforcement of those rules."
In the discussion of the First Amendment merits, the judge applied intermediate scrutiny for purposes of the preliminary injunction and concluded that the statute failed. The judge also accepted that voter fraud was a significant government interest. However, the judge found the means chosen were not sufficiently narrowly tailored to serve that interest: the statute prohibits a wide range of conduct and does not include a mens rea related to voter fraud. Moreover, other extant laws could achieve the purpose of preventing voter fraud.
Thus, the judge entered a preliminary injunction against the defendant prosecutors
from enforcing Colorado Revised Statute § 1-13-712(1) by prosecuting, referring for prosecution, and/or investigating violations thereof, or instructing any person to remove from publication any photograph or image of that person’s voted ballot, unless such violations or publication is in connection with violations of other criminal laws. Nothing in this Order shall alter the ability of Defendants or other officials to enforce any other laws, rules, or regulations related to the administration of the election, including those rules in effect at polling places.
This opinion contrasts with the opinion regarding the New York statute. Like the New York statute, the Colorado statute is longstanding (section § 1-13-712 was passed in 1891, but was most recently amended in 1980), and both lawsuits were filed close to the pending election. However, Judge Arguello balanced the First Amendment interests in favor of the individuals and issued a narrow but effective injunction.
Thursday, November 3, 2016
In the opinion in Silberberg v. Board of Elections of New York, United States District Judge P. Kevin Castel denied a motion for a preliminary injunction against NY Election Law §17-130(10), originally enacted 126 years ago, which makes it a misdemeanor for a person to "show" a ballot after it is prepared for voting to any person.
Judge Castel's central rationale for denying the motion relied on the age of the statute compared with the litigation:
This action was commenced 13 days before the presidential election, even though the statute has been on the books longer than anyone has been alive. Selfies and smartphone cameras have been prevalent since 2007. A last-minute, judicially-imposed change in the protocol at 5,300 polling places would be a recipe for delays and a disorderly election, as well- intentioned voters either took the perfectly posed selfie or struggled with their rarely-used smartphone camera. This would not be in the public interest, a hurdle that all preliminary injunctions must cross.
The age of the statute also figured into Judge Castel's First Amendment analysis, distinguishing the NY statute from the ballot-selfie prohibition of New Hampshire the First Circuit recently declared unconstitutional in Rideout v. Gardner. The New Hampshire statute had been recently enacted: it would be difficult for the state to provide evidence of what would happen should the statute be invalidated and the statute was not directed at any specific technology.
While Judge Castel's First Amendment analysis is cogent, it is not entirely convincing. It may be that New York's statute violates the First Amendment, but the judge made it clear that a preliminary injunction this close to an election was not the vehicle to do so.
In his opinion in Republican Party of Pennsylvania v. Cortes, United States District Judge for the Eastern District of Pennsylvania Gerald Pappert has rejected the Equal Protection, Due Process, and First Amendment constitutional challenges to the state election code provision §2687(b) requiring poll watchers to be qualified electors of the county in which they serve.
The challenge argues that the code provision violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment by hampering poll watchers’ fundamental right to vote. The "crux of this argument," as Judge Pappert states, is "that if a qualified, registered voter casts a valid ballot in one county and a fraudulent ballot is cast for a different candidate in another county, the fraudulent ballot effectively negates the valid ballot, and the qualified, registered elector’s vote is diluted." But Judge Pappert rejected any applicability of Reynolds v. Sims's vote-dilution, noting that the vote-dilution theory here is "based on speculation that fraudulent voters may be casting ballots elsewhere in the Commonwealth and the unproven assumption that these alleged instances of voter fraud would be prevented by the affected poll watchers were they not precluded from serving at these locations." Additionally, the challengers argued that the code provision arbitrarily distinguished between voters by county, a classification which the challengers conceded in the hearing would merit only rational basis scrutiny. Indeed, Judge Pappert found that the entirety of the Fourteenth Amendment challenge to the code provision was subject to rational basis scrutiny given that the fundamental right to vote was not actually being burdened.
Judge Pappert also rejected the claim that Section 2687(b) infringes on the rights to free speech and association under the First Amendment by narrowing the pool of potential watchers at any polling place to the county level. The judge noted that plaintiffs cited no authority for the proposition that poll-watching is protected by the First Amendment or that it constitutes "core political speech." Instead, it is a state-created function and is subject to limitations by the state. It is distinguished from petition-circulators, for example, because "poll watchers do not discuss or advocate for a political candidate or viewpoint, either explicitly or implicitly." Instead, poll watchers, whatever their private motivations may be, are "performing a public function delegated by the state."
In addition to finding that the constitutional claims failed to satisfy the likelihood of success on the merits necessary to warrant a preliminary injunction, Judge Pappert also found the other factors for preliminary injunction lacking. Additionally, Judge Pappert noted that the Plaintiffs "waited until eighteen days before the election to bring the case": "There was no need for this judicial fire drill and Plaintiffs offer no reasonable explanation or justification for the harried process they created." Moreover, should the code be enjoined, "poll watchers would be allowed to roam the Commonwealth on election day for the first time in the Election Code’s seventy-nine year history—giving the Commonwealth and county election officials all of five days’ notice to prepare for the change."
Judge Pappert, a former Attorney General of Pennsylvania, has authored a very well-reasoned 28 page opinion likely to withstand any appeal. And although the opinion does not mention it, election-watchers are well aware of the context of the Pennsylvania situation: As reported, Republican Presidential Candidate Donald Trump has exhorted people in the more rural portions of the state to "Go down to certain areas and watch and study make sure other people don't come in and vote five times." Meanwhile, the Pennsylvania Democratic Party filed a complaint against the Pennsylvania Republican Party and the Trump Campaign for voter intimidation violating the Ku Klux Klan Act.
Wednesday, November 2, 2016
A divided three-judge panel of the Ninth Circuit on Friday affirmed a district court's denial of a preliminary injunction against Arizona's law criminalizing the collection of early ballots. Today, the full Ninth Circuit agreed to rehear the case--just six days before the election.
Today's grant means that Friday's decision has no precedential value, and that the full Ninth Circuit will reconsider the matter itself.
The case challenges Arizona's 2016 law that criminalizes the collection of early ballots, with certain exceptions. This changed Arizona's earlier practice, which permitted individuals other than the voter to collect early ballots and submit them on behalf of the voter--a practice relied upon and favored by minority communities in the state, including Native American, Hispanic, and African American communities that, for different reasons, lack easy access to the polls.
Plaintiffs challenged the new law under the Voting Rights Act, the Equal Protection Clause, and the First Amendment. The district court ruled that they didn't show a likelihood of success on the merits and thus denied a preliminary injunction. A 2-1 panel of the Ninth Circuit affirmed on Friday. Then, today, the full court agreed to rehear the case.
But under Ninth Circuit rules, don't necessarily expect a reversal. As Judge Reinhardt explains in concurring with today's grant:
Unfortunately, however, our en banc process is not perfect and also does not necessarily represent the view of the full court. It is selected by lot, as a full court en banc is ordinarily deemed too unwieldy. Thus, although it is preferable to a three judge panel, in an extraordinary case such as this, it too may not accurately reflect the view of the court as a whole. . . . The en banc court here is composed of a majority of judges who did not support the en banc call [and] it may be that its judgment will not reflect the view of the full court.
Judges O'Scannlain, Tallman, Callahan, Bea, and Ikuta dissented from the grant, arguing that just six days out from the election, the en banc court "risks present chaos and future confusion."
Tuesday, October 25, 2016
In her order in Crookston v. Johnson, Federal District Judge Janet Neff has issued a preliminary injunction regarding Michigan's ban on the so-called ballot-selfie. Michigan's ban is expressed in two statutes, MICH. COMP. LAWS §§ 168.579, 168.738(2), which require rejection of the ballots for "exposure" and Secretary of State rules prohibiting photographs and use of cell phones by voters in the voting station.
Not surprisingly, Judge Neff relied on the First Circuit's opinion last month in Rideout v. Gardner invalidating New Hampshire's prohibition of the ballot-selfie. Judge Neff assumed that the Michigan scheme was content-based - - - prohibiting only speech about marked ballots - - - and that even if there were compelling government interests such as coercion, the means chosen was not narrowly tailored. However, even if the Michigan scheme was deemed content-neutral, Judge Neff found that it failed intermediate scrutiny. Again, part of the problem is that there is little if anything to show that the coercion and vote-buying is related to the ballot-selfie, and even if there were a sufficient interest, Michigan's ban is not sufficiently focused.
One relatively novel government interest raised by Michigan is protection of “the rights of other voters in the exercise of their right to vote by causing intimidation, disruption, and long lines at the polls.” This interest is not extensively discussed Judge Neff, but the specter of long lines caused by "photographers" could be important. However, in North Carolina where early voting has begun, the lines are reportedly related to the decrease in voting places rather than to voter-conduct.
With the election imminent, Michigan may spend its time seeking review from the Sixth Circuit - - - or it may simply concede that the trend seems to be toward ballot-selfies as protected by the First Amendment.
Monday, October 10, 2016
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.
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.
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.
Thursday, September 29, 2016
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.
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.
The 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.
Monday, September 26, 2016
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."
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.
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.
Wednesday, September 21, 2016
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.
Saturday, September 3, 2016
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.
Importantly, 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."
Friday, July 29, 2016
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.
Thursday, July 21, 2016
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.
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.
Thursday, July 14, 2016
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:
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
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.
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.