Thursday, September 19, 2013
The Fourth Circuit's opinion in Bland v. Roberts addresses whether Sheriff Roberts violated the First Amendment rights of the six plaintiffs by terminating their employment in retailiation for their support of his opponent in an election, and whether Roberts has immunity. The court reverses in part the grant of summary judgment to the sheriff by the district judge.
As the panel notes, the applicable doctrine is a merging of public employee speech doctrine, especially their rights to speak as private citizens which was clearly the case here, and "the established jurisprudence governing the discharge of public employees, because of their political beliefs and affiliation," as in Elrod v. Burns (1976) and Branti v. Finkel (1980).
An important question for some of the plaintiffs was whether some of their actions "on Facebook" met the First Amendment threshold of "speech." The district court had concluded that “merely ‘liking’ a Facebook page was insufficient speech to merit constitutional protection,” but the Fourth Circuit panel disagreed. Its discussion of Fabeook's "like" - - - citing the amicus brief of Facebook, Inc. and posts on the Facebook site such as "What is a Facebook Page?" - - - led to its conclusion that once one understands the nature of what one of the plaintiffs
did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.
Moreover, the importance of Facebook was clear, given that Sheriff Roberts "specifically warned his employees not to support [his rival] Adams through Facebook." Roberts also seemingly specifically "threatened that Adams supporters would not be reappointed."
Nevertheless, the Fourth Circuit panel found that three of the six plaintiffs did not present sufficient evidence to create a jury question. Additionally, the panel found that the defendant was entitled to qualified immunity given the state of the law and Eleventh Amendment immunity as to money damanges, but not on the issue of reinstatement.
Judge Ellen Lipton Hollander, a Maryland District Judge sitting by designation, wrote separately to dsisagree on the issue of qualified immunity on the state of the law.
The majority concludes that, at the relevant time, “a reasonable sheriff could have believed he had the right to choose not to reappoint his sworn deputies for political reasons,” and, on this basis, it determines that Sheriff Roberts is protected by qualified immunity with respect to his discharge of [the three plaintiffs]. In my view, when these deputies were discharged in December 2009, the law was clearly established that a sheriff’s deputy with the job duties of a jailer could not be fired on the basis of political affiliation.
This case will most likely be cited and known for its finding of "like" on Facebook as speech. But in addition, with its interweaving First Amendment issues and its questions of qualified immunity, Eleventh Amendment and otherwise, this case could be the basis of an interesting in-class exercise - - - or even exam question - - - for ConLawProfs.
Saturday, September 7, 2013
From an announcement:
19th Annual Mid-Atlantic People of Color
Legal Scholarship Conference 2014
Hosted by the University of Baltimore School of Law
January 23-25, 2014
– Conference Theme & Call for Papers –
President Lyndon B. Johnson’s Great Society and Beyond:
The Historical and Contemporary Implications of Progressive Action and Human Fulfillment
Honoring and Critiquing the 50th Anniversary of Johnson’s Vision
In May 1964, President Lyndon Baines Johnson unveiled his revolutionary plans for the Great Society. As he explained it, Americans “have the opportunity to move not only toward the rich society and the powerful society, but upward to the Great Society. . . . The Great Society rests on abundance and liberty for all. It demands an end to poverty and racial injustice.”
According to Doris Kearns Goodwin, who wrote Lyndon Johnson and the American Dream, Johnson’s Great Society would be based on “progressive action” and the “possibilities for human fulfillment.” This action and fulfillment meant that regaining control of our society required us to end policies that threatened and degraded humanity.
Johnson’s Great Society reforms, included the Voting Rights Act of 1965, Medicare, Medicaid, Equal Opportunity Act, Elementary and Secondary Education Act, Social Security expansion, the Earned Income Tax Credit, the Higher Education Act, Head Start, the Civil Rights Act of 1964, the Housing and Urban Development Act of 1965, and the Open Housing Act of 1968. These laws extended and expanded the Bill of Rights and continued and expanded the programs initiated in Roosevelt’s New Deal of the 1930s and Truman’s Fair Deal in the late 1940s and early 1050s. As a result of LBJ’s programs, America’s official poverty rate declined throughout the 1960s, reaching a low of 11.2 percent in 1974, down from 19 percent in 1964, and most recently settling at 15.1 percent in 2010. According to Dylan Matthews, who wrote Poverty in the 50 Years Since ‘The Other America,’ in Five Charts, Johnson’s Great Society programs, which included the War on Poverty, “made a real and lasting difference.” Moreover, according to Demos, an estimated 40 million Americans avoided official poverty due to such programs as food stamps and Medicaid.
Unfortunately, what is also true is that the Vietnam War, which Johnson escalated and only at the end of his administration moved to end, crippled his domestic economic policies and undermined his goals for true racial equality. Despite the War on Poverty and dramatic changes in Civil Rights, racially concentrated poverty remains with us. Since the Johnson years, America has weathered the recessions of the 1980s and early 1990s, the late ‘90s dot com bubble, our current recession, the national security encroachment on civil liberties, the rise and fall of the Occupy Movement, the waning of the Arab Spring, and two middle east wars since 9-11.
It is clear that Johnson’s Great Society programs have saved millions of Americans from the depth of official poverty. It also true that Johnson’s vision, to which he was truly committed, staggered and failed when the civil rights movement dovetailed with political marginalization, economic inequality, pervasive racial discrimination, and imperialist policies. The Moynihan Report, the Watts Riots and urban unrests, and the emotional and financial suck of Vietnam prevented Johnson from deeply redressing America’s lingering poverty.
At MAPOC 2014, we intend to explore the furthest implications of President Johnson’s domestic and foreign policies, especially the impact of these policies on progressive action and human fulfillment, as we collectively explore and analyze the contemporary implications of Johnson’s Great Society. From these implications, the conference planning committee is seeking papers and panel proposals on the following substantive but not exhaustive subjects:
-- A Hand Up: The Meaningful Tension Between Formal Equality and Substantive Outcomes under the Civil Rights Act of 1964
-- Beyond Legislative Bogs and Dangerous Political Animals: President Obama’s Legislative Agenda and the Limits of Second-Term Progressivism
-- Endangered Citizens?: Rights and Remedies after State v. Zimmerman
-- Equality, Choice, and Happiness: the Rise and Fall of DOMA
-- Guns or Butter: Social Welfare Programs, Modern Problems of Central Banks, Debt Slavery, and Foreign Policies
-- Medicare, Healthcare, and Welfare: the Poor, the Elderly, and the Needy
-- Moynihan and the Contemporary (In)Stability of the Black Family
-- Racial (Dis)Harmony Then and Today
-- Voting Rights: Shelby County v. Holder and the Promise of One Citizen, One Vote
Paper submissions must include a working title, bios, abstract, and contact information.
Panel proposals must also include the foregoing information for each of the panel’s participants, and the organizer’s contact information, all of which must be submitted together only by the organizer.
Submit Papers and Panel Proposals by September 30, 2013 to: Reginald Leamon Robinson, Howard University, Conference Chair and Founder, MAPOC 2014: firstname.lastname@example.org.
[image: LBJ, National Portrait Gallery, via]
September 7, 2013 in Conferences, Elections and Voting, Equal Protection, Family, Federalism, Fundamental Rights, Gender, Race, Recent Cases, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)
Friday, August 30, 2013
The ACLU filed suit earlier this month in the Middle District of North Carolina challenging the state's new restrictions on voting under the Fourteenth Amendment and the Voting Rights Act. Recall that North Carolina, a previously partially covered jurisdiction under the Voting Rights Act, moved quickly after the Supreme Court struck the preclearance coverage formula in Shelby County v. Holder to introduce certain restrictions on the vote, knowing that the full state was free of the preclearance requirement. The ACLU's suit, League of Women Voters of North Carolina v. North Carolina, challenges certain provisions in the state's Voter Information Verification Act, or VIVA.
In particular, the case challenges restrictions on early voting in the state, restrictions on same-day registration, and restrictions on out-of-precinct voting in the state.
The plaintiffs seek declaratory and injunctive relief, and bail-in under Section 3 of the VRA. Bail-in allows a federal court to order continued monitoring of a state's proposed changes to its election laws upon a showing that the state's violations of the Fourteenth and Fifteenth Amendments justify such monitoring--much like Section 5 preclearance, except that the coverage formula isn't fixed.
After Shelby County struck the coverage formula in Section 4(b), and thus rendered Section 5 preclearance a dead letter, Section 3(c) bail-in is the only way that the VRA might authorize continuing federal preclearance of a state's proposed changes to its election laws. The ACLU sought Section 3(c) relief here, and the Department of Justice sought Section 3(c) relief in its recently filed case against Texas.
If the Texas AG's press release is any indication of a litigation position, Section 3(c) is the next likely provision in the VRA to go on the chopping block under a challenge that it exceeds congressional authority under the Fourteenth Amendment.
Thursday, July 25, 2013
AG Eric Holder announced today that the U.S. Department of Justice will ask a federal district court in Texas to bail-in Texas for preclearance under the Voting Rights Act. The move, the Department's first after the Supreme Court struck the Section 4 coverage formula for preclearance in Shelby County v. Holder, is part of Holder's announced strategy to use still-available portions of the Voting Rights Act (like bail-in and Section 2 litigation) to enforce voting rights.
If successful, bail-in would mean that Texas would be subject to the preclearance requirement, notwithstanding the Court's ruling in Shelby County. That's because the Court in Shelby County struck the coverage formula for preclearance (in Section 4 of the VRA), but didn't touch other portions of the VRA, including the bail-in provision in Section 3(c). (It also didn't touch Section 5, the preclearance provision.) Under the bail-in provision in Section 3(c), the DOJ can seek continued federal court monitoring of an offending jurisdiction, a freeze on the jurisdiction's election laws, and a requirement that the jurisdiction get permission, or preclearance, from the court or the DOJ before it makes any changes to its election laws.
AG Holder cited the federal court's rejection of preclearance to Texas's redistricting, which the court said had both the purpose and effect of discriminating in the vote, as support for his action. (Recall that the Supreme Court vacated that federal court's rejection of preclearance shortly after it handed down Shelby County.)
If successful, AG Holder will subject Texas again to preclearance. This approach, seeking individual jurisdiction bail-in under Section 3(c) of the VRA, is a more tailored way to target particularly offending jurisdictions than the coverage formula in Section 4, struck by the Court in Shelby County. Still, it may face some of the same problems that Section 4 faced in Shelby County--particularly, it may run up against the new "equal state sovereignty" doctrine that we wrote about here.
July 25, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)
Friday, July 19, 2013
Justice John Paul Stevens in the New York Review of Books writes a thoughtful "dissent" in the Court's ruling in Shelby County around his review of Gary May's outstanding book Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy (Basic). Justice Stevens's piece is mostly an indictment of Chief Justice Roberts's majority opinion in Shelby County, based on some of May's study of voting discrimination; but he also has quite kind things to say (and justifiably so) about May's excellent history. (Our posts on Shelby County itself are collected here.)
Justice Stevens writes that May takes a longer, more detailed view of the history of voting than Chief Justice Roberts did in Shelby County--a view that Justice Ginsburg also took in her dissent in that case. He notes that Chief Justice Roberts didn't even mention anything before 1890 in his opinion, and glossed over significant details since.
And Justice Stevens takes on Chief Justice Roberts's new-found doctrine of "equal state sovereignty"--a doctrine that drove a good part of the result. Justice Stevens says that unequal treatment of states is woven right in to the fabric of the Constitution itself. In particular, the three-fifths clause gave southern states a "slave bonus" in political power, giving those states disproportionate representation and even leading to the election of Thomas Jefferson over John Adams in 1800. If the original text of the Constitution itself can treat states so dramatically differently, why this new doctrine of equal state sovereignty? (We posted on this new doctrine here.) (It can be no answer that the Reconstruction Amendments abolished the three-fifths counting system, for the Reconstruction Amendments themselves were specifically designed to give Congress power over the states, and led to dramatically different treatment of the states. It similarly can be no answer that the Tenth and Eleventh Amendments protect state sovereignty (even if they do), because the Reconstruction Amendments came after them. As last-in-time, they at least inform the meaning of the earlier amendments, even if they don't do away with them entirely.)
July 19, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Elections and Voting, Federalism, Fifteenth Amendment, History, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Friday, July 12, 2013
The Ninth Circuit ruled this week in Townley v. Miller that plaintiffs lacked standing to challenge a Nevada law that allows voters to choose "None of these candidates," but does not count those votes in determining an election winner.
The ruling means that the case is dismissed and the challenge to the NOTC law goes away. NOTC stays on the books in Nevada. It's not obvious that the plaintiffs had any serious claim on the merits, anyway.
Nevada's NOTC law allows voters to register their preference for none-of-the-above by ticking the box for "none of these candidates" on an election ballot. The state counts these votes and reports them, but it doesn't use them to determine the winner of the election. Instead, these votes are treated as blank votes. Their value is in publicizing the extent of voter discontent with the named options on the ballot.
Plaintiffs challenged that portion of the NOTC law that says that NOTC votes aren't counted in determining the winner of an election. They said that this provision disenfranchises them--because it means that their NOTC votes don't count.
The Ninth Circuit dismissed the case, ruling that the plaintiffs lacked standing. Seven of the plaintiffs didn't say in the complaint that they had or would vote NOTC, and the court concluded that they didn't assert a sufficient injury in fact. Two plaintiffs said they would vote NOTC, but the court said that their case wouldn't redress their alleged harm. Those two plaintiffs asked the court to strike the NOTC option from the ballot entirely, and not just to order the state to count NOTC votes. The court said that this would only disenfranchise them more, not redress their claimed disenfranchisement. The remaining plaintiffs alleged competitive standing--standing based on a candidate's or party's challenge to the inclusion of an ineligible rival on the ballot--but the court said that their injuries (if any) were not caused by the NOTC law and that their cases wouldn't redress any of their alleged injuries. The problem was that these plaintiffs conceded the legality of the NOTC option on the ballot--"the voter option that would have a siphoning effect," op. at 16--and therefore failed to connect their injuries to their claim and requested relief.
Wednesday, July 3, 2013
We posted on two state efforts in Texas and North Carolina to enact election laws that would have required federal preclearance before last week's ruling in Shelby County v. Holder. In Texas, the laws were denied preclearance by a three-judge federal court; those rulings, Texas v. Holder and Texas v. United States, were vacated by the Supreme Court two days after Shelby County came down, making way for the laws to go on the books.
I posted at the ACSblog on what this all means, and how it illustrates the stunning impact of Shelby County. In short, the federal courts in the two Texas cases held that Texas's proposed voter-ID law and its redistricting plan for congressional and state legislative districts would likely have a retrogressive effect on the voting rights of racial minorities. (One of those courts also found that Texas drew its redistricting map with a discriminatory purpose.) Now that those cases are vacated, and now that the Texas AG has ordered the laws enforced, we'll soon get a fuller picture of the impact of Shelby County.
Tuesday, July 2, 2013
North Carolina Republicans wasted little time in introducing legislation to tighten voting rules after the Supreme Court last week struck the coverage formula for preclearance in the Voting Rights Act. North Carolina was partially covered by the preclearance provision in Section 5 of the VRA, before the Court struck the coverage formula in Section 4 last week in Shelby County v. Holder. The LA Times first reported this weekend that state Republicans intended to tighten voting rules under their new-found, unfettered authority to act without federal preclearance. Legislation was introduced Tuesday.
SB 721, "Election Omnibus," introduces a voter ID requirement, tightens felon disenfranchisement rules, and limits early voting days.
(State Democrats introduced a competing measure, S 708, the Ella Baker Voter Empowerment Act, that would open up voting in the state.)
North Carolina was a partially covered jurisdiction under Section 4 (before Shelby County struck Section 4): 40 out of 100 of its counties were covered. That meant that those counties had to gain federal preclearance under Section 5 of the VRA before making any changes to their election laws--and to show that their proposed changes wouldn't produce a racially retrogressive effect.
But now that Section 4 is off the books, those counties don't need to gain federal preclearance. And the state can much more easily change its election laws--and enact bills like SB 721.
Still, North Carolina election laws are subject to Section 2 litigation under the VRA.
Last Term's opinions - - - especially its opinions regarding the constitutionality of the VRA in Shelby, of DOMA and Prop 8 in Windsor and Perry, and of UT's affirmative action plan in Fisher - - - continue to spark debate and commentary. As well they should. But much of our discussions focus on individual Justices: Is Justice Kennedy the "first gay Justice?" Is Justice Alito really rude? Is Chief Justice Roberts playing a "long game?" And what about the tumblr "Notorious R.B.G.? Or @SCOTUS_Scalia, a twitter account?
In their 2010 law review article, Judicial Duty and the Supreme Court’s Cult of Celebrity, available on ssrn, Craig Lerner and Nelson Lund observed that there was a huge dissonance between the personality portrayed in confirmation hearings and the outsized personality on the bench and suggested four Congressional reforms. Their first proposal:
Congress should require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously. This should lead to fewer self-indulgent separate opinions, more coherent and judicious majority opinions, and more reason for future Justices to treat the resulting precedents respectfully.
They contend, "[t]ruly unpretentious judicial servants should have no need to put their personal stamp on the law, and the practice of doing so has contributed to unnecessary and unhealthy flamboyance in the Court’s work."
Their article contains an excellent discussion of the problem of "celebrity," but little discussion of the constitutionality of a Congressional mandate for anonymity or for their other proposals. Certainly, should the anonymity proposal be enacted, there would be a constitutional separation of powers challenge. Although who would have standing? And what about recusal?
[image DonkeyHotey via]
July 2, 2013 in Affirmative Action, Cases and Case Materials, Congressional Authority, Courts and Judging, Current Affairs, Elections and Voting, Equal Protection, Gender, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Sexual Orientation, Standing, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Friday, June 28, 2013
As we reported shortly after the Court released its opinion in Shelby County v. Holder, striking the coverage formula for preclearance under the Voting Rights Act, Chief Justice Roberts's majority opinion relied heavily on the newly minted doctrine of equal state sovereignty. That doctrine, argues Judge Richard Posner (7th Cir.) at Slate, doesn't exist:
Shelby County v. Holder, decided Tuesday, struck down a key part of the Voting Rights Act (the part requiring certain states with a history of racial discrimination in voting to obtain federal permission in advance to change their voting procedures--called "preclearance") as violating the "fundamental principle of equal sovereignty" of the states. This is a principle of constitutional law of which I had never heard--for the excellent reason that . . . there is no such principle.
So where does this principle come from? It comes from Chief Justice Roberts's majority opinion in Northwest Austin Municipal Utility District Number One v. Holder, the 2009 case holding that NAMUDNO can bail out of preclearance and thus dodging the constitutional question whether Congress had authority to reauthorize preclearance in 2006.
In NAMUDNO, as traced in the pieces linked above, Chief Justice Roberts worried about the "federalism costs" of preclearance, including its intrusion on equal state sovereignty. But he failed to mention that the principle of equal state sovereignty previously applied only to the conditions upon which states were admitted to the Union, and not to day-to-day treatment of the states by Congress, much less congressional treatment of the states under the enforcement power in the Reconstruction Amendments. Justices Stevens, Souter, Ginsburg, and Breyer all signed on to that opinion.
Chief Justice Roberts picked up that NAMUDNO language in Shelby County and ran with it. He also poked Justices Ginsburg and Breyer for signing on to NAMUDNO but dissenting in Shelby County (in part because they said that there is no general doctrine of equal state sovereignty).
This is but one example of the way that Chief Justice Roberts has slowly pulled the Court to the right, argues Adam Liptak in today's NYT--an article well worth reading, whether you think the argument is too strong, too weak, or just right. It involves a slow, patient approach to changing the doctrine--by first writing relatively benign opinions (and gaining the votes of the more liberal Justices) but that nevertheless include potentially explosive language (like the reference in NAMUDNO to the doctrine of equal state sovereignty), then later citing that language (and the fact that the more liberal members signed on) in much, much bigger cases (like Shelby County).
Thursday, June 27, 2013
The Texas Attorney General announced today that the state would move forward with its voter ID law and redistricting plan, both of which were denied preclearance by the D.C. District Court. The move comes the same day that the Supreme Court vacated the lower court's denial of preclearance in light of its ruling earlier this week in Shelby County v. Holder, striking Section 4, the coverage formula for preclearance, of the VRA.
Because Shelby County didn't touch Section 2 of the Voting Rights Act, Texas voter ID and redistricting are still subject to Section 2 lawsuits.
Tuesday, June 25, 2013
The Supreme Court today ruled in Shelby County v. Holder that the coverage formula for the preclearance provision of the Voting Rights Act exceeded congressional authority under the Fifteenth Amendment. The ruling means that the preclearance provision of the VRA remains on the books, but sits dormant, as there is no formula specifying its coverage. Congress can re-write the formula, but it seems unlikely that this Congress can do that in a way that would satisfy this Supreme Court. The ruling did not touch Section 2 of the VRA, the section banning race discrimination and allowing individual case-by-case litigation against offending practices.
We posted several times this morning on the ruling; here is our coverage so far:
- Court Strikes Voting Rights Act Preclearance Coverage Formula
- Chief Justice Roberts's Paean to Equal State Sovereignty
- The Core Problem With Preclearance Coverage Under the Voting Rights Act
- What's Next for Voting Rights?
- Justice Thomas's Concurrence on Voting Rights
- Justice Ginsburg's Dissent in Shelby County
June 25, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, News, Opinion Analysis, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Justice Ginsburg wrote the lengthy and detailed dissent in today's ruling striking the coverage formula for the preclearance provision of the Voting Rights Act. She was joined by Justices Breyer, Sotomayor, and Kagan.
Justice Ginsburg made several points:
- Congressional authority under the Reconstruction Amendments is vast, and Congress is the principal enforcer of equal voting rights under the Constitution. The Court should defer to Congress in evaluating its enforcement mechanisms--applying rational basis review, under Chief Justice Marshall's famous formulation in McCulloch v. Maryland--and the Court should apply that test even more deferentially for a re-authorization of an act, like the VRA.
- Congress more than did its job in compiling a legislative record of vote discrimination in the jurisdictions covered by Section 4. Justice Ginsburg carefully recounted this record and some particularly egregious violations in her dissent.
- Shelby County, Alabama, of all jurisdictions, had no business bringing this case. Shelby County lodged a facial challenge to Sections 4 and 5, yet Shelby County itself is a clear violator--and should be in any coverage formula that Congress might devise. That means that the coverage formula has at least one valid application--to Alabama--and cannot be struck in a facial challenge. The VRA's severability provision only buttresses this point.
- "Equal state sovereignty," the backdrop for the Court's ruling, applies only to the conditions on states for admission to the Union, not differential treatment outside that context. Justice Ginsburg understates: "Today's unprecedented extension of the equal sovereignty principle outside its proper domain--the admission of new States--is capable of much mischief."
- Preclearance, with the now-struck coverage formula, itself is responsible for the improvements that the Court cites in voting practices. Without it, we face retrogression--that is, falling back into patterns of racial discrimination in the vote. "In the Court's view, the very success of Section 5 of the Voting Rights Act demands its dormancy."
While the Supreme Court today struck only the coverage formula for the preclearance provision of the Voting Rights Act, Justice Thomas, concurring alone, would have ruled Section 5 preclearance itself unconstitutional. That's because, according to Justice Thomas, "[t]oday, our Nation has changed." He points to voter turnout and registration rates, which "now approach parity," and the "rare" "[b]latantly discriminatory evasions of federal decrees."
Against these improvements, Justice Thomas argues that Section 5 itself exceeded congressional authority, especially after Congress changed and increased the preclearance requirement in reauthorizing the VRA in 2006.
Justice Thomas wrote just for himself; he garnered no other votes. Still, his ominous conclusion rings true, given the likely inability of Congress to re-write a coverage formula that would satisfy this Court:
While the Court claims to "issue no holding on Section 5 itself," its own opinion compellingly demonstrates that Congress has failed to justify "'current burdens'" with a record demonstrating "'current needs.'" By leaving the inevitable conclusion unstated, the Court needlessly prolongs the demise of that provision.
In the wake of today's ruling in Shelby County v. Holder, striking the coverage formula for preclearance under the Voting Rights Act, the ball's in Congress's court. While the Supreme Court held that the coverage formula in Section 4 is outdated and unconstitutional, it did not touch Section 5 preclearance, and it did not touch Section 2's ban on racial discrimination. (Our posts are here, here, and here. Our oral argument review is here.)
So, Section 2 case-by-case litigation remains in play. Litigants can still sue jurisdictions for racial discrimination in voting on a case-by-case basis. But the problem with this case-by-case approach, as Congress recognized when it reauthorized the VRA in 2006, is that case-by-case litigation really can't catch up with the myriad and clever, under-the-radar ways that some states and jurisdictions now discriminate in the vote--the so-called "second generation" practices. (You can sue your state for a discriminatory vote practice in one election, but by the time the courts rule, the election is over.) Some of these were on full display in the 2012 election.
Preclearance always provided a back-stop for this problem--that was its principal value. Preclearance required covered jurisdictions to gain permission before making any changes to their voting laws, thus shifting the usual burden to the states to show a lack of discrimination. It applied, under the now-struck Section 4, to jurisdictions that had a particularly ugly history of race discrimination in the vote.
Today's ruling strikes the coverage formula in Section 4, but it doesn't strike Section 5 preclearance. That means that preclearance remains on the books, even if it lacks a coverage formula--and therefore preclearance now sits dormant.
That puts the ball back in Congress's court to re-write the Section 4 formula, to give life to preclearance again. Whether Congress can actually do that is a different question. While the VRA passed in 2006 by overwhelming numbers, the inertia was behind the coverage formula then. (Remember that the same basic formula had been around, doing its job, in 2006.) Now Congress will have to start from scratch--to write a formula that calls out certain states and jurisdictions and subjects them to the burdensome process of preclearance. It seems unlikely that this Congress will be able and willing to do that.
If Congress doesn't respond with a valid coverage formula, Section 5 preclearance will remain on the books, but dormant. That will leave Section 2 litigation alone to fight discrimination in the vote. As we've seen, and as Congress found, that will almost surely be insufficient.
The five-Justice majority, led by Chief Justice Roberts, today struck the coverage formula for preclearance under the Voting Rights Act. Our earlier posts are here and here; our oral argument review is here.
In short, Chief Justice Roberts wrote that the Section 4 coverage formula was out of date. He took issue with Congress's "reverse engineering"--that is, figuring out which states should be covered, and working backwards to design a formula that covered them--when it reauthorized the VRA in 2006, because, he wrote, that formula was based on data compiled 40 years ago. He wrote that the coverage formula was rational then; it is not now, 40 years later, with substantially changed circumstances.
Chief Justices Roberts acknowledged that Congress compiled voluminous data demonstrating racial discrimination, but he wrote that the coverage formula reauthorized in 2006 wasn't based on that data. Instead, it was based on 40-year-old data, from the time Congress originally enacted the VRA.
Because the Court saw preclearance as such a dramatic action--shifting the usual burden on the plaintiff to show discrimination to a covered state or jurisdiction to show lack of discriminatory effect in a proposed change in their voting laws, and thus infringing on the "equal sovereignty of the states"--it held the coverage formula to a higher standard. The Court said that the formula, based on 40-year-old data, was simply out of date.
Still, the Court said that Congress could rewrite the formula. This seems a far-fetched possibility, given the politics and divisions in Congress. If it doesn't happen, preclearance under Section 5 remains on the books, but it'll have no effect, because there will be no jurisdictions covered.
Without preclearance, the VRA loses its crown jewel. Section 2 case-by-case litigation against offending jurisdictions remains in play, but, as Congress found, case-by-case litigation has a real hard time keeping up with the clever, under-the-radar ways that some states and jurisdictions use their voting laws to discriminate in the vote.
In striking the coverage formula for the preclearance provision in the Voting Rights Act today, Chief Justice Roberts wrote a good three-plus pages on state sovereignty--and particularly the doctrine of "equal sovereignty." According to the Chief, the coverage formula, which the majority held outdated, violated this principle. More: He wrote that this principle applies beyond the admission of states to the Union; it applies here. The Chief planted this time-bomb in Northwest Austin; it's now coming home to roost.
Here's part of what he said:
Not only do States retain sovereignty under the Constitution, there is also a "fundamental principle of equal sovereignty" among the States. [Northwest Austin (citing United States v. Louisiana); Lessee of Pollard v. Hagan; Texas v. White.] Over a hundred years ago, this Court explained that our Nation "was and is a union of States, equal in power, dignity and authority." [Coyle v. Smith.] Indeed, "the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized." Coyle concerned the admission of new States, and Katzenbach rejected the notion that the principle operated as a bar on differential treatment outside that context. At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treeatment of States.
The Supreme Court today in Shelby County v. Holder ruled that Section 4 of the Voting Rights Act is unconstitutional. Section 4 provides the coverage formula for Section 5, the preclearance provision. The ruling does not stirke preclearance (in Section 5); it only strikes the coverage formula (in Section 4). Moreover, the ruling says that the coverage formula was rational in 1966, just not today. The case leaves in place Section 2, the ban on racial discrimination in voting.
Chief Justice Roberts wrote the majority opinion, joined by Justices Scalia, Kennedy, Thomas, and Alito; Justice Ginsburg wrote the dissent, joined by Justices Breyer, Sotomayor, and Kagan.
The Court said that Congress can re-write Section 4. If Congress cannot do that, though, or if it can only do it in a way that this Court would strike, Section 5 preclearance will have no practical effect (even if it remains on the books). That is: with no valid coverage formula for preclearance, preclearance doesn't happen.
If so, the ruling effectively strikes the preclearance requirement. And if so, the VRA remedy for racial discrimination in voting is Section 2--the ban on racial discrimination in voting, enforced by case-by-case litigation against offending jurisdictions. (Preclearance, on the other hand, required historically offending jurisdictions to justify in advance any changes to their voting laws.) The failure of case-by-case litigation to keep up with so-called "second generation" voting discrimination is one key reason why Congress reauthorized Sections 4 and 5.
So, the long-and-short of it is this: If Congress can't re-write the coverage formula in Section 4 (which seems likely, given the politics in Congress), then Section 5 preclearance is of no effect. If so, the VRA has lost a significant, singular tool in fighting race discrimination in voting. We will continue to see case-by-case litigation against offending jurisdictions under Section 2, but if history is any guide, that litigation will never catch up with the many and clever ways that jurisdictions use to discriminate in voting.
This is a big loss for voting rights, even as it frees up covered jurisdictions from a burdensome preclearance requirement.
Wednesday, June 19, 2013
In response to Monday's ruling in Arizona v. InterTribal Council of Arizona, Inc., striking Arizona's requirement that voters show proof of citizenship above and beyond the oath of citizenship on the standard federal voter registration form, there's a debate about whether the case is a pyrrhic victory for the federal government. Our most recent post on the case, with links to earlier posts, is here.
On one side, Mary Lederman argued over at SCOTUSblog that the case, for all its talk of federal supremacy over how federal elections are held, probably curtails federal authority over who may vote in them. That's because Justice Scalia, writing for the Court, carefully reserved the power to determine who may vote in federal elections to the states. Lederman seized on Justice Scalia's line that the Elections Clause "empowers Congress to regulate how federal elections are held, but not who may vote in them" and argued that this principle puts in jeopardy current and possible future federal legislation requiring states to register certain persons to vote. For example, he argued that the ruling threatens the Uniformed and Overseas Citizens Absentee Voting Act, UOCAVA, which requires a state to register for federal electiosn any person who resides outside the United States but would otherwise be qualified to vote in that state; any congressional restriction on state felon disenfrachisement laws; and even federal law upheld under Oregon v. Mitchell. Rick Hasen made a similar point at The Daily Beast, followed up with a post on his own Election Law Blog.
On the other side, David Gans over at the Text and History blog at the Constitutional Accountability Center, argued that Lederman's argument "misses the enduring significance of Justice Scalia's sweeping reaffirmation that the Constitution gives Congress very broad powers to protect the right to vote in federal elections . . . ." Gans and others seized on Justice Scalia's repeated and very strong language affirming federal authority under the Elections Clause--its "paramount power," without a presumption against preemption--to set the rules of the "Times, Places, and Manner" of congressional elections.
So who's right?
Both, it turns out--with an important caveat. The ruling gives Congress broad authority under the Elections Clause to regulate the "Times, Places, and Manner" of congressional elections, including prescribing a federal form, using an oath on that form as evidence of citizenship, and requiring states to petition federal authorities (the EAC) to add a proof-of-citizenship requirement on that form (or to sue to get the EAC to add the requirement). That's the core holding of the case--that the NVRA, with the prescribed federal form, including the oath, is a valid regulation of the "Times, Places, and Manner" of congressional elections that preempts contrary state law.
But the NVRA and the federal form spill over into the state-controlled power to determine who gets to vote, because they regulate the manner of determining an important qualification for voters, citizenship. The Court said that to the extent that a federal law spills over and regulates voter qualification like this, the states must have an opportunity to petition federal authorities and ultimately to sue (under the Administrative Procedures Act) to enforce their own state voter eligibility requirements.
So even under the Elections Clause, the case stands for vast federal authority--authority to set the "Times, Places, and Manner" of congressional election in a way that absolutely preempts state law, and more: to set those standards even when they spill over into regulation of who gets to vote, so long as the states have an opportunity--under a very loose standard--to preserve their power to set voter qualifications through administrative petitioning and APA action. (Note that this administrative petitioning, by the Court's own reckoning, is informal and casual. Note further that APA review is deferential. Between the two, the principle puts the inertia behind federal regulation that spills over into regulation of voter qualification.)
While the Court articulated these rules in the case--that is, that the feds have the absolute power over how to vote, while the states have the power over who gets to vote--even perhaps more clearly than it has in the past, it's not obvious that this breaks any new ground. In particular, it's not obvious that it breaks any new ground reducing the power of the federal government or enhancing the powers of the states. Indeed, if anything, the core holding of the case only underscores the vast power of the federal government at the expense of the states. (While Justice Scalia's line dividing power between the feds and the states may eventually prove to be a "time bomb" (Hasen's phrase), the principal, driving holding of the case reaffirms federal authority.)
So here's the caveat: the Court said all this only with respect to the Elections Clause, but of course made no ruling on any other federal authority to regulate voter qualifications. Thus the Court left in place vast federal power under the Fourteenth and Fifteenth Amendments, and left untouched the constitutional rights to travel and to vote. Those authorities and rights, and others, might well support federal authority to enact the UOCAVA and maybe even to restrict certain state felon disenfrachisement laws. If so, Monday's ruling doesn't do anything to those actual and potential federal laws.
Moreoer, Monday's ruling does nothing to the federal laws upheld under Oregon v. Mitchell, or otherwise to undermine whatever holdings came out of that case. (Justice Scalia's footnote 8 does nothing to the vitality or legitimacy of Mitchell, say what you will about the footnote or about Mitchell itself.) Lederman argues that those laws might not withstand scrutiny under the Court's current approach to congressional enforcement power under the Reconstruction Amendments. But, if so, that's a function of City of Boerne, not Monday's ruling. Moreover, some or all of the laws upheld under Mitchell might well be upheld under different authorities. As we know, the Court itself split sharply on the sources of authority in that case, suggesting that those laws might enjoy support under other authorities, not subject to the Elections Clause constraint that states have the power to determine who gets to vote.
In short, Monday's ruling is a clear victory for federal authority under the Elections Clause, with a reservation of qualified state authority to determine who gets to vote in congressional elections even when Congress regulates the "Times, Places, and Manner" of congressional elections in a way that spills over into voter qualifications. (Why "qualified state authority"? Because the Court upheld a federal law that set a standard for voter eligibility, based on the oath on the federal form, so long as the states can petition the EAC and bring an action to court to supplement the oath if they can show that the oath is insufficient. This putting-the-burden-on-the-state when the federal government prescribes a way to determine eligibility is a thumb on the scale in favor of federal power. At the very least, it's an extremely unusual way to preserve and protect state power.) But the ruling does nothing to other constitutional powers that Congress might use to validly enact federal law, and to preempt state law, regarding voter qualifications.
June 19, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Travel | Permalink | Comments (0) | TrackBack (0)
Monday, June 17, 2013
The Supreme Court ruled today in Arizona v. InterTribal Council of Arizona, Inc. that the federal requirement under the National Voter Registration Act, NVRA, that the states "accept and use" an approved and uniform federal form for registering voters preempted Arizona's requirement that voters present evidence of citizenship at registration. The ruling strikes Arizona's proof-of-citizenship requirement for users of the federal form, but also invites Arizona to try to get the federal Election Assistance Commission to provide state-specific instructions requiring proof of citizenship through an administrative process. We posted on the case earlier here; our argument preview is here; our argument review is here.
The ruling is a strong statement of federal authority over the states when Congress acts pursuant to its Elections Clause power. But the case doesn't change the basic federalism framework that the Court uses in its ordinary preemption cases (under the Supremacy Clause)--including its presumption against preemption in those cases--and it of course says nothing about the likely direction the Court will take in Shelby County, the pending decision on the challenge to Section 5 of the Voting Rights Act.
Justice Scalia wrote for the Court, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kennedy, writing separately, concurred in part and concurred in the judgment.
The case arose out of Arizona's Proposition 200, a ballot initiative that required county recorders to reject any voter registration application not accompanied by a proof of citizenship. The problem is that the NVRA requires states to "accept and use" a uniform federal form designed by the Election Assistance Commission; and the federal form only requires an applicant to attest, under penalty of perjury, that he or she meets the state voting requirements (including citizenship). (The EAC rejected Arizona's request to include a state-specific instruction on the federal form that applicants must provide proof of citizenship.)
So the question in InterTribal was whether the NVRA requirement that states "accept and use" the federal form preempted Arizona's proof-of-citizenship requirement. The Court ruled that it did.
Congress enacted the NVRA pursuant to its authority under the Elections Clause. The Elections Clause, Article I, Sec. 4, cl. 1, provides:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the places of chusing Senators.
The Court recognized that the Clause was designed to give Congress certain authority over federal elections in order to ensure that states wouldn't undercut the federal government by refusing to provide for the election of representatives to Congress. Thus, the preemptive power of the Clause, even if a "default," is sweeping:
In practice, the Clause functions as "a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to pre-empt state legislative choices." . . . The power of Congress over the "Times, Places and Manner" of congressional elections "is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supercede those of the State which are inconsistent therewith."
Op. at 5-6 (citations omitted). More, the Court rejected Arizona's argument that there is a presumption against preemption in the Elections Clause context. It said that when Congress regulates under the Elections Clause, "it necessarily displaces some element of a pre-existing legal regime erected by the States." Op. at 11 (emphasis in original). "Moreover, the federalism concerns underlying the presumption in the Supremacy Clause context are somewhat weaker here. Unlike the States' 'historic police powers,' . . . the States' role in regulating congressional elections--while weighty and worthy of respect--has always existed subject to the express qualification that it 'terminates according to federal law.'" Op. at 12 (citations omitted).
Thus, the Court said that there was no reason not to give the congressional requirement that states "accept and use" the federal form its plain meaning. And that meaning prohibits the states from adding a proof-of-citizenship requirement over and above what the federal form already requires.
The Court noted that the "alternative means of enforcing its constitutional power to determine voting qualifications"--petitioning the EAC to alter the federal form, and challenging the EAC's rejection of a petition under the Administrative Procedures Act--"remains open to Arizona here." Op. at 16.
Justice Kennedy concurred, but wrote separately to take issue with the Court's creation of "a hierarchy of federal powers so that some statutes pre-empting state law must be interpreted by different rules than others, all depending upon which power Congress has exercised." He would have applied a presumption against preemption in this case--and any case involving federal legislation under the Elections Clause--but thought that that presumption was satisfied here.
Justice Thomas dissented, arguing that the Voter Qualifications Clause and the Seventeenth Amendment reserve the power to the states to determine qualifications of voters in federal elections. The Voter Qualifications Clause, Article I, Sec. 2, cl 1., says that "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature" in elections for the federal House of Representatives. The Seventeenth Amendment contains similar language for elections for the Senate. Because both parties' interpretations of the "accept and use" language were plausible, according to Justice Thomas, these other provisions tilt the scale in favor of Arizona--and state determination of voter qualifications.
Finally, Justice Alito dissented, arguing that the NVRA language is ambiguous, but "their best reading is that the States need not treat the federal form as a complete voter registration application."