Wednesday, January 22, 2014

Bipartisan Bills Introduced to Amend Voting Rights Act

Senator Patrick Leahy (D-VT) and Representatives Jim Sensenbrenner (R-WI) and John Conyers (D-MI) introduced legislation last week that would amend the Voting Rights Act and recalibrate the coverage formula for preclearance.  The legislation responds to the Supreme Court's ruling last summer in Shelby County v. Holder, striking Section 4(b) of the VRA, the coverage formula for the preclearance requirement.  That ruling left Section 5 preclearance nearly a dead letter (although litigants could still seek to have a court order a jurisdiction to bail-in to preclearance under Section 3). 

Our Shelby County coverage is here and here (with links to most of our other posts on the case).

The bills would update the coverage formula to include states that have 5 or more voting rights violations during the previous 15 years and political subdivisions that have 3 or more voting rights violations during the previous 15 years.  (Coverage would continue for 10 years, unless the jurisdiction gets a court order releasing it.)  This new formula would cover Georgia, Louisiana, Misissippi, and Texas, but not Alabama, Arizona, Florida, North Carolina, South Carolina, and Virginia. 

The bills also contain a number of other provisions, perhaps most notably expanding Section 3 bail-in so that litigants can ask a court to bail-in a jurisdiction when that jurisdiction has intentionally discriminated (as now) and for any other violation of the VRA.  Ari Berman over at The Nation has a nice summary.

The new provisions will undoubtedly be challenged when and if they're enacted.  On the one hand, they address a major concern of the Court in Shelby County: they update the coverage formula to use more current violations as the basis for coverage.  But on the other hand, they still treat states differently (and potentially run afoul of the Court's new-found "equal sovereignty" doctrine), and the state-wide formula does not account for actual voter turn-out (although the political subdivision formula does) and neither formula addresses the number of elected officials--data that the Court found at least relevant in its ruling.

January 22, 2014 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Race, Recent Cases, Reconstruction Era Amendments | Permalink | Comments (1) | TrackBack (0)

Monday, January 20, 2014

Daily Read: Martin Luther King's Words in Judicial Opinions

Jeremiah Goulka's "How Federal Judges Use and Abuse the Words of Martin Luther King Jr. in Their Decisions," argues that when MLK is quoted in a federal court opinion, it's probably supporting a result that MLK would not have supported.

Martin_Luther_King_Jr_NYWTS_4

Goulka describes himself as a former law clerk to a judge on the Fifth Circuit, a former US Attorney and a former Republican - - - important perspectives for evaluating his largely polemical piece.  Here's a snippet:

In Vera v. Richards (1994), a panel of three Republican judges considered a Texas redistricting law that created three minority-majority congressional districts. Judge Edith Jones, a Reagan appointee whom both presidents Bush considered elevating to the Supreme Court, opened the decision by stating that the Voting Rights Act of 1965:

"marked the full maturity in American political life of the Founders' idea that "all men are created equal" and the Rev. Martin Luther King's hope that his children would be judged by the content of their character, not the color of their skin."

Ah, yes, the famous "content of their character" line. A little later in her introduction, she continues in the same vein:

"Racial gerrymandering is unconstitutional, but it is also morally wrong, inconsistent with our founding tradition and Martin Luther King's vision. The color of a person's skin or his or her ethnic identity is the least meaningful way in which to understand that person." 

I can think of less meaningful ways to understand a person. (Do you like hot dogs?) You can guess which way they ruled.

This is worth a read on this MLK holiday.  For a less provocative read, there is President Obama's Proclamation.

[image via]

 

January 20, 2014 in Courts and Judging, Elections and Voting, History, Race | Permalink | Comments (0) | TrackBack (0)

Saturday, January 18, 2014

State Constitutional Challenge to Dual System of Voter Registration

Julie Ebenstein of the ACLU writes on Jurist.org that the dual system of voter registration in Kansas unlawfully denies citizens the right to vote.  Ebenstein outlines the Kansas case challenging the dual system under state constitutional provisions, filed last November and now pending in state court.

As we wrote, two states, Arizona and Kansas, adopted a dual system of voter registration in the wake of the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona.  In that case, the Court held that the requirement under the National Voter Registration Act that 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 NVRA form requires applicants simply to attest to their citizenship, not to provide additional documentation.) 

Arizona and Kansas then announced that they would require voters to register separately for state and federal elections.  This created a dual system of voter registration: NVRA and state-form registrants before January 1, 2013, can vote in both state and federal elections; but NVRA registrants after January 1, 2013, can vote in only federal elections.  (NVRA registrants after that date also can't sign petitions.)  Now only state-form registrants who provide the additional proof of citizenship can vote in state elections.  State-form registrants who fail to provide the additional proof of citizenship cannot vote at all.

The ACLU and ACLU of Kansas filed suit last November challenging the dual registration system.  The complaint, filed in state court, alleges that the system violates state constitutional equal protection by distinguishing between classes of voters in the state, that state officials exceeded their state constitutional authority, and that the system wasn't properly promulgated as a rule or regulation under Kansas law.

January 18, 2014 in Cases and Case Materials, Comparative Constitutionalism, Congressional Authority, Elections and Voting, Equal Protection, Federalism, News, Preemption, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Friday, January 10, 2014

Supreme Court Grants Certiorari in Susan B Anthony Fund v. Driehaus on Ohio's Prohibition of False Election Statements


The United States Supreme Court granted certiorari today in Susan B Anthony Fund v. Driehaus raising an issue of ripeness with the First Amendment issue in the background.

The background of the case involves "Obamacare," the pro-life/anti-choice Susan B Anthony (SBA) Fund, Congressperson Steve Driehaus (pictured)  and Ohio statutes that prohibit false statements in campaigns.   220px-Steve_Driehaus_official_photo

As the Sixth Circuit, explained, during the 2010 campaign, the SBA List wanted to put up a billboard in then-Congressman Driehaus's district criticizing his vote in favor of the Act. The planned billboard read: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." But the billboard never went up because the advertising company that owned the billboard space refused to put up the advertisement after Driehaus's counsel threatened legal action against it.

On October 4, 2010, Driehaus filed a complaint with the Ohio Elections Commission against SBA List claiming that the advertisement violated two sections of Ohio's false-statement statute. The first states that "[n]o person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials . . . shall knowingly and with intent to affect the outcome of such campaign . . . [m]ake a false statement concerning the voting record of a candidate or public official." Ohio Rev. Code § 3517.21(B)(9). The second section prohibits posting, publishing, circulating, distributing, or otherwise disseminating "a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate." Id . § 3517.21(B)(10).

The Sixth Circuit held that the claim was not ripe, reasoning that it could not show "an imminent threat of prosecution at the hands of any defendant" and thus could not "show a likelihood of harm to establish that its challenge is ripe for review."  There was no hardship to SBA because its speech was not chilled, according to the Sixth Circuit:  the only speech involved was the billboard and SBA List's president appeared on television and promised to "double down" to make sure its message flooded the congressperson's district. 

Thus, the Sixth Circuit did not reach the First Amendment issue regarding Ohio's prohibition of false speech.  On this issue, the Court's opinion holding unconstitutional the criminalization of false statements in the federal "Stolen Valor" Act in its 2012 opinion in United States v. Alvarez is sure to assume center stage.  The Court will decide if there should be another chance to consider whether falsity should be categorically excluded from First Amendment protections of speech.

January 10, 2014 in Courts and Judging, Elections and Voting, First Amendment, Ripeness, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Daily Video: The Chris Christie and NJ Supreme Court Theory from Rachel Maddow

Rachel Maddow posits the possibility that the scandal surrounding New Jersey Governor Chris Christie and the traffic jam by the city of Fort Lee at the George Washington Bridge may have less to do with the election than with the New Jersey Supreme Court.

Much of Maddow's conjecture rests on the timing of the now infamous email "Time for some traffic problems in Fort Lee," sent on the morning of August 13, 2013 by a top Christie aide from her private email account to a Port of Authority official who responded "Got it."

But to understand the Maddow theory, one needs to return to 2010.  Recall that as we discussed in May 2010, there was a potential "constitutional conflict" brewing over Governor Christie's non-"reappointment" of John Wallace, then the only African-American of the seven state justices on the New Jersey Supreme Court.  And recall also that despite objections from retired members of the judicary, Christie reportedly found "laughable" any notion that politics was not part of the judicial appointment process, pointing to the fact that there would be another election in 2013.

But John Wallace was not the only NJ Supreme Court Justice whose reappointment would be at issue during Christie's first term.   Another Justice, supported by Christie, was due before the Senate.  And the NJ Senate Democrats - - - led by a legislator from Fort Lee - - - may not have been being co-operative.  In any case, Christie withdrew his reappointment of that Justice the evening before the GW Bridge lane closures began.

Here's the video from the Rachel Maddow Show:

 

Worth a read with details is the discussion of MSNBC's Steve Benen.

Time for some traffic problems in Fort Lee." She wrote that on Aug. 13 from a private email account. - See more at: http://www.northjersey.com/news/opinions/239378011_The_Record__Christie_bombshell.html#sthash.r03zvDKQ.dpuf

 

January 10, 2014 in Appointment and Removal Powers, Courts and Judging, Current Affairs, Elections and Voting, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Friday, October 18, 2013

Arizona, Kansas to Use Two-Tier Voter Registration in Response to Inter Tribal Council

The states of Arizona and Kansas have announced that they will require voters to register separately for state and federal elections--using the standard federal form for federal elections, but using more stringent requirements for state registration.

The moves are a response to the Supreme Court's ruling this summer in Arizona v. Inter Tribal Council of Arizona.  That case held that the federal requirement under the National Voter Registration Act that 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.  (Under this system, state voters could register for federal and state elections all at once, using the same standardized federal form, with the same requirements.)  The result: the Court struck Arizona's proof-of-citizenship add-on to the standardized federal form. 

So the states sought a work-around, so that they could retain a proof-of-citizenship requirement for some voter registration.  And they came up with the only voter registration that they now seem to have control over: registration for state elections.

The states say that Inter Tribal applies only to federal elections, that they can design and use their own forms for state elections, and that voters who register using only the federal form are qualified only to vote in federal elections (and not state and local elections).  To the states, this all means that a two-tiered system makes sense.

Under the two-tiered system, voters in those states could register for federal elections using the NVRA standardized federal form.  But voters would have to show additional proof of citizenship--of the kind struck in Inter Tribal--in order to register to vote in state elections.

The moves harken back to practices in the Jim Crow South and stand as a barrier to voter registration.  Ari Berman argues over at The Nation:

In the Jim Crow South, citizens often had to register multiple times, with different clerks, to be able to vote in state and federal elections.  It was hard enough to register once in states like Mississippi, were only 6.7 percent of African-Americans were registered to vote before the passage of the Voting Rights Act of 1965.  And when the federal courts struck down a literacy test or a poll tax before 1965, states like Mississippi still retained them for state and local elections, thereby preventing African-American voters from replacing those officials most responsible for upholding voter disenfranchisement laws. . . .

Over 300,000 voters were prevented from registering in Arizona after its proof-of-citizenship law passed in 2004.  In Kansas, 17,000 voters have been blocked from registering this year, a third of all registered applicants, because the DMV doesn't transfer citizenship documents to election officials. 

At the very least, the two-tiered systems promise to complicate voter registration and maintenance of voter lists for the states.

Still: there's little or no evidence of voter fraud.

 

October 18, 2013 in Cases and Case Materials, Elections and Voting, Federalism, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Monday, September 30, 2013

Justice Department to Sue North Carolina Over Vote Restrictions

AG Eric Holder announced today that the U.S. Department of Justice would file suit against North Carolina in federal court to stop its new restrictions on voting.  We previously posted on the ACLU suit against the state here.

The complaint alleges that North Carolina HB 589 reduces early voting days, eliminates same-day voter registration during early voting, prohibits the counting of provisional ballots cast outside a voter's precinct, and imposes a voter ID requirement--all in violation of Section 2 of the Voting Rights Act.  DOJ argues that the changes have both a discriminatory purpose and a discriminatory effect.  The Department also seeks "bail-in" under Section 3(c) of the VRA.

DOJ most recently sued Texas to stop its voter ID law and redistricting plans.  The Department sought bail-in relief in those cases, too.

The cases come in the wake of the Court's ruling this summer in Shelby County v. Holder striking Section 4(b) of the VRA, the coverage formula for the preclearance requirement.  By striking Section 4(b), the Court rendered Section 5 preclearance a dead letter, unless and until Congress can rewrite it in a way that would pass muster with this Court--that is, likely never.  Section 3(c) bail-in works very much like Section 5 preclearance, though.  If acourt orders bail-in, it will retain jurisdiction over the state "for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color . . . ."

The North Carolina and Texas cases are sure to raise two new fronts in the assault on the Voting Rights Act: challenges to congressional authority to enact Section 3(c) bail-in, and challenges to congressional authority under Section 2 to ban state laws that have a discriminatory effect (even if not a discriminatory purpose).

September 30, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News | Permalink | Comments (1) | TrackBack (0)

Friday, September 20, 2013

Groups Sue to Stop Texas Voter ID

The Brennan Center filed suit this week in federal court on behalf the Texas State Conference of the NAACP and the Mexican American Legislative Caucus of the Texas House of Representatives challenging SB 14, Texas's strict voter ID law.  The Brennan Center's resource page on the case is here.

The suit this week comes soon after the United States Department of Justice filed its own suit against Texas to stop SB 14.

Recall that the Texas AG announced that the state would move to enforce SB 14 soon after the Supreme Court struck the coverage formula for the preclearance requirement in the Voting Rights Act this summer in Shelby County v. Holder.

The suit filed this week, like the DOJ suit before it, also seeks "bail-in" under Section 3(c) of the Voting Rights Act--that is, an order by the federal court for continued monitoring of the state that would operate very much like preclearance under Section 5 would have operated against a covered state like Texas (until the Court struck the coverage formula, leaving Section 5 a dead letter, in Shelby County).  

Section 3(c) bail-in may be the next litigation target (after opponents succeeded in challenging the coverage formula for preclearance in Shelby County) for states like Texas facing VRA suits.  Texas's responses to these suits will tell.

September 20, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Equal Protection, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Thursday, September 19, 2013

Fourth Circuit: The First Amendment, Facebook, and a Sheriff's Election

Like_sheriff_coffee_mug-r4d34abf2ed5c450cbbab97a7befb64e8_x7jgr_8byvr_324The 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.

[image via]

September 19, 2013 in Elections and Voting, Eleventh Amendment, First Amendment, Opinion Analysis, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Saturday, September 7, 2013

CFP: LBJ's Great Society at 50, MAPOC Legal Scholarship Conference

From an announcement:

19th Annual Mid-Atlantic People of Color
Legal Scholarship Conference 2014
Hosted by the University of Baltimore School of Law
Baltimore, MD
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



496px-LBJ_National_Portrait_GalleryIn 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: light_warrior@verizon.net.

[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

Groups Challenge North Carolina Voter Restrictions

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.

August 30, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fourteenth Amendment, News | Permalink | Comments (0) | TrackBack (0)

Thursday, July 25, 2013

DOJ To Seek Bail-In Preclearance for Texas Under Voting Rights Act

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.

SDS

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 Stevens's Dissent in Shelby County

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.)

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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.)

SDS

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

No Standing to Challenge None-of-the-Above Votes

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.

SDS

July 12, 2013 in Cases and Case Materials, Elections and Voting, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 3, 2013

Shelby County's Impact

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.

SDS

July 3, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 2, 2013

North Carolina Moves to Restrict Voting in Wake of Shelby County

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.

(Recall that Texas made a similar move last week.)

Still, North Carolina election laws are subject to Section 2 litigation under the VRA.

SDS

July 2, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, News | Permalink | Comments (0) | TrackBack (0)

What if Supreme Court Opinions Were Anonymous?

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?  

DonkeyHoteySCOTUS
 
  

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?

 RR

 [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

How Did We Get the Principle of Equal State Sovereignty (in the Shelby County Case)?

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.

Eric Posner recently made a similar point here; I made a similar point here.

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).

SDS

June 28, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Elections and Voting, Federalism, Fifteenth Amendment, News | Permalink | Comments (0) | TrackBack (0)

Thursday, June 27, 2013

Texas to Move Forward With Voter ID, Redistricting, After Shelby

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.

SDS

June 27, 2013 in Cases and Case Materials, Elections and Voting, Federalism, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 25, 2013

Our Voting Rights Act Coverage, So Far

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:

SDS

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)