Friday, July 29, 2016

Fourth Circuit Enjoins North Carolina's Voting Amendments as Discriminatory

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

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

Moreover,

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.

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 [image via]

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

Thursday, July 21, 2016

Fifth Circuit Says Texas Voter ID Violates the Voting Rights Act

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

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

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

We last posted on the case here.

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

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

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

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

The Fifth Circuit did not rule on the constitutional claims.

 

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

Thursday, July 14, 2016

Daily Read: When Justices Scalia and Kennedy Referenced Donald Trump

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

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

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

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

That... that is prohibited by this.

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

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

A few moments later, Kennedy follows:

All right.

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

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

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

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

 

h/t Navid Khazanei

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

Friday, June 3, 2016

Daily (Re)Reads: Judicial Impartiality

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

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

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

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

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

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

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

 [image via]

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

Wednesday, May 18, 2016

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

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

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

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

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

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

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

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

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

Wednesday, April 20, 2016

Court Upholds Arizona Redistricting Plan

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

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

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

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

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

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

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

Monday, April 4, 2016

Court Says States Can Use Total Population to Draw Legislative Districts

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

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

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

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

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

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

Monday, March 21, 2016

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

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

Our preview is here.

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

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

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

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

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

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

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

Thursday, March 17, 2016

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

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

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

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

Case at a Glance

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

INTRODUCTION

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

ISSUES

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

FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

The court-ordered plan also changed CD4. The plan increased the BVAP in CD4 from 31.3 percent to 40.9 percent, creating a “realistic possibility,” according to Grofman, that black voters could elect a candidate of their choice. The plan also increased Democratic representation (as measured by the election results for the 2012 Presidential election) from 48.8 percent to 60.9 percent, turning a “safe seat for the Republican incumbent” into a “competitive” district, according to Grofman. (The current and previous maps, and alternative maps, are available at the web-site for the Virginia Division of Legislative Services, http://redistricting.dls.virginia.gov/2010/RedistrictingPlans.aspx#41,list.)

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

CASE ANALYSIS

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

Standing

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

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

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

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

Discrimination

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SIGNIFICANCE

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

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

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

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

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

Monday, February 22, 2016

Court Denies Stay in North Carolina Districting Case

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

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

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

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

Tuesday, February 16, 2016

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

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

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

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

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

Thursday, February 11, 2016

Three-Judge Court Orders North Carolina to Redraw Districts

Schwinn-steven
Steven D. Schwinn,  John Marshall Law School

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, January 26, 2016

Election Integrity Measures, with a Pro-Voter Bent

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

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

Tuesday, January 19, 2016

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, December 1, 2015

Davis on Shelby County's Right Against a Remedy

The right-to-a-remedy is a standard in our constitutional songbook, going back to Marbury v. Madison, even before. But what about rights against a remedy? While we might not think about such things often, they're there. And the Court in Shelby County elevated one of them to a higher level, with potentially devastating consequences to our system of constitutional remedies against the states.

So argues Seth Davis (UC Irvine) in his Louisiana Law Review piece, Equal Sovereignty as a Right Against a Remedy.

Davis argues that the Court's newfangled "equal sovereignty" principle that contributed in Shelby County to the demise of Section 4 of the VRA (the coverage formula for preclearance) is a right against a remedy--but one of a different sort altogether. Davis says that "equal sovereignty" stands apart from other rights-against-remedies, because the Court neglected to consider any countervailing interests or factors, or whether there are other ways to respect "equal sovereignty"--in short, that the Court used "equal sovereignty" as a trump card on the right to a remedy (in Section 5 preclearance). Davis explains:

Rights against remedies are usually shaped by considered judgments about the whole remedial scheme. Due process, for instance, limited remedies that might "intimidate" regulated parties from seeking judicial review. [See Ex Parte Young.] . . . Equal sovereignty imposes a different kind of right, it appears. The Shelby County majority simply did not address Justice Ginsburg's argument that a bailout process adequately protected a state's equal sovereignty.

Thus, the Court treated Shelby County more like a third party claiming an equal protection right against reverse discrimination than as a recidivist jurisdiction with a history of voting wrongs. . . .

At a minimum, this newfound equal sovereignty right against remedies is unusual and troubling. Equal sovereignty requires the Court to strike down a constitutional remedy without considering whether that remedy is necessary to redress constitutional violations.

The result: "equal sovereignty" as a right-against-remedies "has the potential to undercut the system of constitutional remedies against states.

December 1, 2015 in Elections and Voting, Federalism, News, Scholarship | Permalink | Comments (0)

Friday, September 11, 2015

Seventh Circuit Strikes Partisan Balance Statute in Judicial Elections

The Seventh Circuit this week struck an Indiana law election law that ensured "partisan balance" on the Marion Superior Court, in Marion County. Curiously (and tellingly), the law only applied to judicial elections in Marion County (the home of Indianapolis); more regular judicial election rules (or, in two counties, merit selection) applied in the rest of the state.

Here's how it worked. Each major party conducted a primary election in which each party selected a number of candidates that equaled half the open seats on the court in the general election. (If there were 16 open seats, the Republicans would put up 8 candidates, and the Dems would put up 8.) Then, in the general election, all primary winners would win a seat. The system virtually ensured an equal divide among the judges on the court. ("Virtually," because there was a remote chance that a minor-party candidate or independent could get elected.)

Common Cause challenged the law, arguing that it infringed on the right to vote. (What good is your vote in the general, if you can't select among competing candidates?) The court agreed.

The court applied the Burdick/Anderson balancing test and ruled that the infringement on the right to vote outweighed the state's interests. On the infringement side of the balance, the court simply noted that the system denied voters any choice in the general election--a "severe" burden on the right to vote:

the Statute removes electoral choice and denies voters any effective voice or ability to choose between candidates of the two major parties. In fact, absent a possible third party or independent candidate on the ballot [a remote chance, by the way--ed.], the general election is guaranteed to be uncontested, rendering any vote meaningless because there is no choice to be made.

On the state's interests side of the balance, the court rejected the claimed interest in ensuring fair political representation and impartiality, because that interest doesn't really apply to judicial elections (where judges make independent decisions in their own independent courtrooms, not like a legislature, where the body makes a decision as a whole), and because the state had other ways of achieving this interest (by enforcing standards of judicial conduct, e.g.). The court said that the state's interests in saving money and ensuring stability and public confidence could be achieved in other ways, too, and that in any event they were outweighed by the severe restriction on the right to vote.

The ruling means that the state needs to come up with a different way to elect Marion County judges before the next election (in 2018). The ruling is a victory for the right to vote, but it's a victory for judicial independence, too, given that this strange system applied only to Marion County, suggesting a legislative power-play against the court system in the state's capital and largest city.

The state hasn't said whether it will seek en banc review or cert.

September 11, 2015 in Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, September 2, 2015

D.C. Circuit Denies Attorneys' Fees to Shelby County

The D.C. Circuit today denied attorneys' fees to Shelby County growing out of its successful challenge to the coverage formula for preclearance in the Voting Rights Act. But more importantly: A majority on the panel rejected Shelby County's states' rights interpretation of the VRA.

The case arose out of Shelby County's motion for attorneys' fees after the Supreme Court struck Section 4 of the VRA, the coverage formula for preclearance, in Shelby County v. Holder. The VRA fee-shifting provision says,

In any action or proceeding to enforce the voting guarantees of the [F]ourteenth or [F]ifteenth [A]mendment, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable [attorneys'] fee, reasonable expert fees, and other reasonable litigation expenses as part of the costs.

But to win attorneys' fees, Shelby County had to show (1) that it was eligible for fees under the provision and (2) that it was entitled to them under Newman v. Piggie Park.

All three on the panel agreed that Shelby County wasn't entitled under Piggie Park. That's because "Shelby County's lawsuit did not facilitate enforcement of the VRA; it made enforcing the VRA's preclearance regime impossible." "Shelby County's argument boils down to the proposition that Congress introduced the fee-shifting provision into the VRA in 1975 with the express goal of inducing a private party to bring a lawsuit to neuter the Act's central tool. But that makes no sense." (Emphasis in original.) That was enough to deny attorneys' fees.

But that's also where the case gets interesting. On the eligibility prong, Shelby County argued that it was eligible for fees under the statute, because it prevailed in an action to enforce the voting guarantees of the Fourteenth and Fifteenth Amendments, and that these guarantees include "the structural rights of the states." That last part is a bold departure from the plain language of the amendments and any cases interpreting them; it assumes that the amendments contain some (unenumerated) version of states' rights, which, in turn, could limit the amendments' protection of individual voting rights.

The court left that question open. Judge Griffith, writing for the court, dodged it by relying only on the Piggie Park prong. Judge Silberman, in concurrence, seemed (more or less) to agree (at least on this point). Only Judge Tatel specifically took on Shelby County's reading. Judge Tatel wrote that the question was simple: "Obviously, neither of these [amendments] includes any guarantees of state autonomy over voting. . . . The two Amendments thus 'guarantee' not state autonomy, but rather the right of citizens to vote, and they expressly guarantee that right against state interference."

The upshot is that the court appears to have left Shelby County's states' rights interpretation of the Fourteenth and Fifteenth Amendments on the table, an open question. This means that the Supreme Court could step in and answer it--it Shelby County's favor. (And given the Court's states' rights approach in the original case, this seems like a possibility.)

Still, the court's reasoning on Piggie Park is extremely thorough, and seems written to insulate the ruling against Supreme Court reversal.

 

September 2, 2015 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, News | Permalink | Comments (0)

Tuesday, August 18, 2015

Texas Rolls Dice, and Loses Attorneys' Fees in Voting Rights Case

The D.C. Circuit today upheld the district court's award of over a million dollars in attorneys fees to three intervenors in Texas's lawsuit seeking preclearance for its re-drawn legislative maps under Section 5 of the Voting Rights Act.

The ruling is a significant victory for the intervenors in this complicated case that involved challenges to Texas's redistricting maps in two simultaneous lawsuits under two different provisions of the VRA, Supreme Court intervention, and the Shelby County case itself.

Recall that the Fifth Circuit rejected claims for attorneys' fees in the companion case out of San Antonio just last spring.

The case started when Texas re-drew its congressional and state legislative districts after the 2010 census. Texas sought preclearance in the D.C. District, while opponents of the new maps filed their own Section 2 claim in the Western District of Texas (the San Antonio case).

Because the preclearance suit was not resolved in time for the 2012 primaries and general election, the San Antonio court imposed interim maps. The D.C. district court then denied preclearance (to all three maps--congressional, and both state house maps), and Texas appealed to the Supreme Court. Meanwhile, the Texas legislature adopted maps largely mirroring the San Antonio court's maps, and an intervenor moved the Supreme Court to dismiss the appeal as moot.

The Supreme Court then issued Shelby County, striking the VRA's Section 4, the coverage formula, but preserving Section 5's preclearance requirement (although it had (and has) no effect without Section 4's coverage formula).

One day later, Governor Perry signed the legislature's plans into law.

The Supreme Court then vacated the D.C. district court's order denying preclearance and "remanded for further consideration in light of Shelby County v. Holder * * * and the suggestion of mootness" of one of the intervenor groups.

The district court dismissed the case, concluding that Texas's "claims were mooted by Shelby County and the adoption of superseding redistricting plans."

The internors filed for attorneys' fees, arguing that they were "prevailing parties," because the original district court denied preclearance and Texas re-drew its maps. Texas filed a three-page "Advisory" declaring that it was the prevailing party based on Shelby County and that it wouldn't respond to the intervenors' motions for attorneys' fees "unless directed to do so by the Court."

In short, the state said that Shelby County (a different case entirely, litigated by different parties, and involving issues (the constitutionality of the VRA, which was not at issue in the Texas preclearance case) alone meant that Texas prevailed in its preclearance case. But Texas did not respond to the intervenors' argument that Texas's repeal of its original maps, and the mootness it caused before the Supreme Court vacated the denial of preclearance, rendered them prevailing parties.

Texas's move was a gamble, especially in light of district rules saying that an opponent to a motion has to file an opposition and that the court could treat any argument not made as conceded. 

The district court rejected Texas's "Advisory" and ordered attorneys' fees. The D.C. Circuit today affirmed.

The D.C. Circuit held that Texas was wrong on its Shelby County claim--that Shelby County alone couldn't make Texas a prevailing party in its Section 5 case--and that under district rules Texas waived any argument that the intervenors didn't prevail by virtue of the district court's denial of preclearance and Texas altering its maps.

In other words, Texas's gamble in filing its "Advisory," and then again in not addressing the arguments in its opening brief on appeal, backfired.

The ruling upholds the district court's award of attorneys' fees to the Davis Intervenors ($466,680.36), the Gonzales Intervenors ($597,715.60) and the Texas State Conference of NAACP Branches ($32,374.05).

August 18, 2015 in Cases and Case Materials, Elections and Voting, News, Opinion Analysis | Permalink | Comments (0)

Monday, June 29, 2015

Court Hands Victory to the People in Redistricting

The Supreme Court ruled in Arizona State Legislature v. Arizona Independent Redistricting Commission that federal law and the Elections Clause permit the people of Arizona to create, by referendum, an independent redistricting commission and vest it with authority to redraw congressional districts.

Arizona voters designed the Commission to take redistricting authority away from the state legislature and put it in the hands of an independent authority. In validating the Commission, the Court handed a significant victory to the voters--the People themselves--as against the state legislature and its partisan gerrymandering. The ruling means that Arizona's independent commission stays in place and can continue its work redrawing congressional districts.

Here's our oral argument review.

The key dispute between the majority and dissent is how to cast the exercise of redistricting power through referendum: the majority says that the people themselves hold government power, and therefore hold "legislative" power under the Elections Clause to create an independent redistricting commission; the dissent says that only the legislature holds redistricting power under the Elections Clause.

Justice Ginsburg wrote for the Court, joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. She wrote that 2 U.S.C. Sec. 2a(c)--which provides that "[u]ntil a State is redistricted in the manner provided by the law thereof after any apportionment," it must follow federally prescribed redistricting procedures--permits redistricting by an independent commission created by voter referendum. She also wrote that the Elections Clause permits this. "The history and purpose of the Clause weigh heavily against [preclusion of the right of the people to create an independent redistricting commission], as does the animating principle of our Constitution that the people themselves are the originating source of all the powers of government."

Chief Justice Roberts wrote the principal dissent, joined by Justices Scalia, Thomas, and Alito. He wrote that the text, structure, and history of the Elections Clause say that only "the legislature" can prescribe "The Times, Places and Manner of holding Elections for Senators and Representatives."

Justices Scalia and Thomas each wrote their own dissents, each joined by the other.

June 29, 2015 in Cases and Case Materials, Elections and Voting, Federalism, News, Opinion Analysis | Permalink | Comments (1)

Friday, May 29, 2015

Politics and Apportionment at the Supreme Court

The Supreme Court could give Republicans another 8 seats in Congress, according to David Wasserman and Harry Enten at FiveThirtyEight. They analyze the possible political impacts of Evenwel v. Abbott, the case testing how to measure population for compliance with one-person-one-vote. Plaintiffs in the case argue that states should be allowed to apportion seats based on where U.S. citizens over age 18 (the voting-eligible population) live, and not on where everyone, including minors and noncitizens, live. The Supreme Court noted jurisdiction earlier this week.

May 29, 2015 in Cases and Case Materials, Elections and Voting, News | Permalink | Comments (0)