Wednesday, February 27, 2013
The Supreme Court today heard oral arguments in Shelby County v. Holder, the case testing the constitutionality of the preclearance provision and related coverage formula of the Voting Rights Act. If the questions at arguments are any indication of the Court's leaning--and it's always dicey to predict based on arguments, but here perhaps less so than in a more ordinary case--it looks like preclearance or the coverage formula or both will go down by a close vote.
Section 5 of the VRA, the preclearance provision, provides that "covered jurisdictions" (defined under Section 4(b)), have to get permission from the Justice Department or a federal court in the District of Columbia before making changes to their election laws. This means that jurisdictions need to show that proposed changes to their election laws aren't motivated by race and won't result in disenfranchising voters or dilluting votes by race. This extraordinary remedy is justified in part because the more usual way of enforcing voting rights--individual suits against offending jurisdictions--is not an effective way to address voting discrimination. (Individual suits, by a voter or by the Department of Justice, are authorized by Section 2 of the VRA. Section 2 is not at issue in this case.)
Shelby County, which sits within fully covered Alabama, brought the facial challenge against Section 5, the preclearance provision, and Section 4(b), the coverage formula, as reauthorized by Congress in 2006, arguing that Congress exceeded its authority under the Fourteenth and Fifteenth Amendments. In particular, Shelby County claimed that Congress didn't have sufficient evidence in its 2006 reauthorization to require the covered jurisdictions to seek permission (or preclearance) from the Justice Department or the District Court in the District of Columbia before making any change to its election laws. Shelby County also said that preclearance for the covered jurisdictions violated principles of federalism and equal sovereignty among the states.
The arguments were lively, to say the least. The justices seemed to be arguing with each other more than questioning the attorneys, who often seemed more like bystanders in a debate among the nine. And they all seemed to have their minds made up, more or less. If there are swing votes, look to Chief Justice Roberts or Justice Kennedy. Although they seemed set in their positions, they seemed perhaps the least set.
Substantively, there were few surprises. Remember, we've heard these arguments before--in the NAMUDNO case, which the Court ultimately resolved by allowing the jurisdiction to bail out (and thus avoided the constitutional question, although the parties briefed it and it got attention at oral argument). So these points that came up today are familiar:
- Whether Congress had sufficient evidence to warrant preclearance for selected covered jurisdictions;
- Whether the Section 4(b) coverage formula, which dates back 40 years or so, is sufficiently tailored to the realities of voting discrimination in 2013--that is, whether some covered jurisdictions under this formula really ought not to be covered, and whether others should be covered, given contemporary disparities in registration and offices held and other indicia of voting discrimination;
- Whether Congress violated principles of equal state sovereignty by designating only selected jurisdictions as covered (rather than designating the whole country);
- Whether Section 2 individual suits are a sufficient way to enforce non-discrimination in voting (and therefore whether Section 5 is really necessary); and
- Whether with a string of reauthorizations preclearance will ever not be necessary.
On this last point, it was clear that for some justices the government was in a tough spot. On the one hand, the government argued that Section 5 deters voting discrimination: Sure, things have gotten a little better since 1965, it said, but Section 5 is still justified because it deters against a back-slide. But on the other hand, some on the Court wondered whether under this theory Section 5 would ever not be necessary. (By this reckoning, the government would be justifying Section 5 even when there's no evidence of continued discrimination.)
All this is to say that a majority seemed unpersuaded that this preclearance requirement and this coverage formula were sufficiently tailored--proportionate and congruent, the Court's test--to meet the constitutional evil of voting discrimination that Congress identified.
This doesn't mean, necessarily, that the whole scheme will go down. There is an intermediate position: The Court could uphold Section 5 preclearance in theory, but reject the coverage formula in Section 4(b). But this result would likely doom the whole scheme, in fact. That's because it seems unlikely that Congress could pass a different coverage formula or that Congress would extend preclearance to the whole country. Without specifying coverage in a new Section 4(b), Section 5 would be meaningless.
There was a low point. Justice Scalia went on a tear toward the end of SG Verrilli's argument, opining on why Congress passed each reathorization with increased majorities:
Now, I don't think that's attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
It's not exactly clear what's the "racial entitlement" in Section 5. Section 5 is simply not an entitlement provision. But if we have to identify an entitlement: Maybe the right to vote, without being discriminated against by race? If so, we can only hope that it's "very difficult to get out of [it] through the normal political processes." As much as anything else in the arguments today, this comment may tell us exactly why we continue to need preclearance, sadly, even in 2013.
February 27, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News, Oral Argument Analysis, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
As the Court - - - and the country - - - consider the Voting Rights Act (VRA) and the constitutionality of the preclearance provision at issue in Shelby County v. Holder ConLawProfs might find useful the insights of Andrew Cohen, Atiba Ellis, Adam Sewer (on CJ Roberts), Adam Winkler or numerous others. But the observations of William Faulkner (pictured), Nobel Prize in Literature recipient who placed Yoknapatawpha County, Mississippi on our (fictional) maps are also pertinent according to Joel Heller's excellent article, Faulkner’s Voting Rights Act: The Sound and Fury of Section Five, 40 Hofstra Law Review 929 (2012), and available on ssrn.
Joel Heller argues that pronouncements that 'The South has changed' fail to take into account the "ongoing burden of memory that Faulkner portrays so powerfully." Heller contends that the VRA's section 5 preclearance provision "does not punish the sons for the sins of the father, but keeps in check the uncertain consequences of a current ongoing consciousness of those sins." Heller uses Faulkner to effectively discuss various attitudes short of intentional discrimination that might nevertheless have racially discriminatory results. These include lawmakers shame and denial of the past accompanied by a devotion to the "things have changed" mantra that would prevent perceptions of racially problematic actions. Additionally, "local control" possesses a nostalgic power, even as the era being evoked was one of white supremacy.
While Faulkner did not live to see the VRA Act become law, Joel Heller's engaging article is definitely worth a read as the Court considers Congressional power to remedy discrimination in the Old/New South.
[image of William Faulkner via]
February 27, 2013 in Books, Congressional Authority, Elections and Voting, Fifteenth Amendment, History, Race, Reconstruction Era Amendments, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Saturday, February 23, 2013
Entitled "After 50 Years, the Voting Rights Act's Biggest Threat: The Supreme Court," Andrew Cohen's extensive article just published in The Atlantic is a must-read for anyone following the Court's pending oral argument (on Wednesday, February 27) in Shelby County v. Holder.
Recall that the Court's grant of certiorari last November 9 put the Voting Rights Act (VRA) "in the crosshairs" of the Court - - - as we said at the time - - - noting that the VRA's constitutionality had been seriously questioned but ultimately evaded by the Court's 2009 decision in Northwest Utilities District of Austin v. Holder . The DC Circuit had upheld the constitutionality of the preclearance provisions of the VRA.
Andrew Cohen's article provides a terrific contextualize of the politics, including the Court's politics, that surround the constitutional controversy. Cohen writes that "racial polarization has intensified during the Obama Administration," with "'explicit anti-black attitudes'" around the country, "especially among Republicans," many of whom "sponsored and enacted some of the voter suppression laws of the 2012 cycle." Cohen also argues that the Court essentially "invited many of the state voter suppression efforts of the past three years" by its decisions, including not only Northwest Utilities District of Austin v. Holder, but also the 2008 decision in Crawford v. Marion County, upholding a voter identification statute. Cohen contends: "Having created the factual and legal conditions to undermine the federal law, the Court now is poised to say that it is weakened beyond repair."
Cohen concludes that the stakes in Shelby are very high:
If the Court strikes down Section 5 of the Voting Rights Act, this year especially, given the record of the past three years, the justices who do so will reveal a disconcerting level of disconnect from the realities of modern American politics as they were expressed in the near-unanimous renewal of the Act in 2006. And the partisan ruling they would issue in this circumstance would be even more brazenly ideological and untethered from precedent than the Citizens United ruling issued in January 2010.
Cohen's timely, provocative, and well-argued article is definitely worth a read and would be a great suggested reading for law students considering the issue.
February 23, 2013 in Courts and Judging, Current Affairs, Elections and Voting, Fifteenth Amendment, History, Interpretation, Race, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Friday, January 25, 2013
Virginia is leading a group of states controlled by Republicans but voting for President Obama in the 2012 election to change the way they allocate their electoral votes in the presidential election--moving from winner-take-all to allocation by congressional district, according to WaPo and HuffPo. Michigan, Ohio, Wisconsin, and Pennsylvania are also considering, or have considered, similar measures.
Currently just Nebraska and Maine allocate their electoral votes by congressional district. Both states award their other two electoral votes to the overall winner in the state. The proposal in Virginia would award its two additional votes to the candidate who wins the most congressional districts in the state.
Changing the allocation in all 50 states would have resulted in a 273-262 win for Romney in the 2012 election. (The total, 353, doesn't include D.C.'s 3 electoral votes. Even including those for Obama, however, Romney still would have won.)
The proposals stand in contrast to the national popular vote plan, an interstate compact in which participating states would award all their electoral votes to the winner of the national popular vote. But the compact has to hit a critical mass of participating states--a number that hold a majority of electoral votes. (It's currently about half-way there.)
Monday, January 21, 2013
Reversing a federal district judge's holding that portions of Wisconsin's controversial Act 10 regarding public unions, the Seventh Circuit split panel's opinion in Wisconsin Education Association Council v. Walker upheld the constitutionality of the act.
Recall that the federal district judge had held that Act 10's requirement of annual recertification of general employees unions violated equal protection guarantees and Act 10's prohibition of dues withholding for general employees violated the first amendment.
The Seventh Circuit majority emphasized that the Act 10's "speaker-based distinctions are permissible when the state subsidizes speech. Nothing in the Constitution requires the government to subsidize all speech equally."
Moreover, the Seventh Circuit majority found that Act 10 was viewpoint neutral, even as it admitted that
the Unions do offer some evidence of viewpoint discrimination in the words of then-Senate Majority Leader Scott Fitzgerald suggesting Act 10, by limiting unions’ fundraising capacity, would make it more difficult for President Obama to carry Wisconsin in the 2012 presidential election. While Senator Fitzgerald’s statement may not reflect the highest of intentions, his sentiments do not invalidate an otherwise constitutional, viewpoint neutral law.
On the Equal Protection claim, the panel majority applied rational basis review, in which "the law is presumed constitutional, and we impose a weighty burden on the Unions—they must “negative every . . . basis which might support” the law because we will uphold it “if there is any reasonably conceivable state of facts” supporting the classification." The panel rejected the argument that heightened rational basis attributable to animus should apply: "unfortunate as it may be, political favoritism is a frequent aspect of legislative action."
Judge David Hamilton dissented from the majority's decision upholding Wisconsin’s selective prohibition on payroll deductions for dues for some public employee unions but not others on the basis of the First Amendment. In his lengthy dissent, Judge Hamilton differs on the central point of viewpoint neutrality, noting that while "on its face, Wisconsin’s Act 10 seems viewpoint-neutral: public safety unions can have dues withheld from paychecks, while other public employee unions cannot." But he quickly observes: "Facial neutrality, however, is not the end of the matter."
Hamilton agreed with the district judge and credited the unions' arguments that Act 10 was a
pretext for viewpoint (here, political) discrimination. The first is the close correlation between various unions’ political endorsements in the 2010 Wisconsin governor’s race and their ability to continue payroll deductions. The second is the flimsiness of the State’s proffered rationales for drawing the line as it did between public safety and general employees and for barring payroll deductions of union dues for all but public safety employees. The third is the overtly partisan political explanation for the Act that was offered in the legislative debate.
While there are some minor disagreements on doctrine between the majority and dissenting opinions, for the most part they are in accord. Where they differ is in their essential understanding of whether the facts satisfy the requirement of viewpoint neutrality. Dissenting Judge Hamilton seems to have the better opinion in this regard; the majority opinion too often seems poised to conclude their is viewpoint discrimination and then retreats without explanation.
Perhaps the Seventh Circuit will proceed with en banc review.
Monday, January 7, 2013
Pamela Karlan's "Democracy and Disdain" is the Forward to Harvard Law Review's annual Supreme Court issue for the 2011 Term and is a compelling - - - indeed, necessary and delightful - - - read. Karlan's central thesis, as the title aptly communicates, is that the Roberts' Court has little but disdain for the democratic process. By "Roberts' Court," of course, she means the five Justices who usually form the majority, including Roberts, Scalia, Thomas, Alito, and Kennedy.
The Roberts Court’s narrow substantive reading of enumerated powers maps fairly closely onto the contemporary conservative political agenda. To the extent that the conservative agenda gains popular acceptance, the Court may garner acclaim as a guardian of constitutional values. But if the public rejects that agenda, or remains sharply divided, the Court risks being perceived as simply another partisan institution. The Court’s current status rests in substantial measure on its having been on the right side of history in Brown v. Board of Education. Only time will tell whether the Court will retain that status given the choices the Roberts Court is making.
Karlan is adept at comparing the present Court to previous ones, not only including the Warren Court. Spoiler alert: When she quotes Justice Roberts, she might not be quoting the 2012 John Roberts but the 1936 Owen Roberts, a device she uses to especially good effect. Also to good effect is her usage of other justices, colloquies in oral argument, the occasional poet, and theorist. The writing is broad and engaging without being precious. It makes her analysis of the cases even more trenchant, situated in larger themes and trends.
Of course, not all ConLawProfs will agree with Karlan's views of the Court, including one subsection entitled "Protecting Spenders and Suspecting Voters," and another "Suspecting Congress." And Karlan's argument is hardly unique, as anyone who recalls Rehnquist Court scholarship, including the excellent 2001 article "Dissing Congress," by Ruth Colker and James J. Brudney can attest. And it is especially noteworthy that the Court did uphold the constitutionality of the Affordable Care Act in National Federation of Independent Business v. Sebelius, a case that Karlan extensively discusses and more interestingly, situates within the Term's other less notable decisions.
But this is a must read article before beginning the new semester.
[image of Pamela Karlan via]
January 7, 2013 in Courts and Judging, Due Process (Substantive), Elections and Voting, Fifteenth Amendment, First Amendment, Fourteenth Amendment, History, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Separation of Powers, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, November 19, 2012
In the wake of the 2012 election, members introduced several measures to facilitate quick and easy voting, to establish a period for early voting, to establish penalties for interfering with voting, and to make voting easier for overseas military:
- H.R. 6591 and S. 3635, the Fair, Accurate, Secure, and Timely (FAST) Voting Act of 2012, which provides financial incentives to states to invest in practices and technologies that are designed to expedite voting at the polls and to simplify registration.
- H.R. 6591, the SIMPLE Voting Act, which amends the Help America Vote Act of 2012 to require states to establish a minimum period of 15 days for early voting prior to the date of election for federal office and to ensure that no individual will be required to wait for longer than one hour to cast a ballot at a polling place in an election for federal office.
- H.R. 6593, the Voter Fraud Prevention Act of 2012, which amends the National Voter Registration Act of 1993 to increase the penalties for intimidating, threatening, or coercing any person from engaging in voter registration or for procuring, submitting, or casting false voter registration applications or ballots, and to require election officials to transmit balloting materials to absent members of the military using the automated tagging and tracing services of the Postal Service.
- H.R. 6594, the Military Ballot Integrity Act of 2012, which requires states that fail to transmit valid requested absentee ballots in an election for federal office to absent members of the military within a specified deadline to delay certifying the election results, and to provide a private right of action to enforce that requirement.
In addition, Rep. Steve Israel (D-NY) introduced H.J. Res. 121, proposing a constitutional amendment that would grant 29 extra votes in the electoral college to the winner of the national popular vote. Why 29? It's the average of the state with the most votes (California, at 55) and the states and D.C. with the least (3). According to HuffPo, it would encourage candidates to spend more time campaigning in states where they already have a lock, in order to ensure a popular vote victory to get the extra 29. Here's Rep. Israel's explanation. Section 1 reads:
In an election for President and Vice President, after the popular vote has been counted and electors have been appointed in each of the several States and the District constituting the seat of Government of the United States, each State and the District shall report the total number of popular votes cast for each of the candidates. The candidate receiving the largest percentage of the total popular vote as reported by the several States and the District shall receive 29 electoral votes in addition to those cast by the Electors chosen by the several States and the District. These votes shall not be considered votes cast by Electors and shall not affect the total number of votes necessary to constitute a majority of the whole number of Electors appointed.
Thursday, November 15, 2012
In its opinion today in Coalition to Defend Affirmative Action v. Regents of the University of Michigan, the en banc Sixth Circuit has declared Michigan's anti-affirmative action constitutional amendment, passed in 2006 as a ballot initiative Proposal 2, unconstitutional.
The majority opinion, written by Judge Cole, and joined in full by seven other judges, and in part by others, applies the "political-process" doctrine of Equal Protection Clause. Disagreeing, there is a splintering of five other mostly dissenting opinions, joined by various other judges, with two judges not participating.
The opinion begins with a concrete illustration of the "political process" doctrine:
A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.
The court specifically discounted the Supreme Court's decisions in Grutter and Gratz - - - which arose in Michigan and prompted Proposal 2 - - - by stating it was "neither required nor inclined to weigh in on the constitutional status or relative merits of race-conscious admissions policies as such." Indeed, the majority charges the dissenters with seeking to take a "second bite" at Grutter. Instead, the constitutional challenge involved a "state amendment that alters the process by which supporters of permissible race-conscious admissions policies may seek to enact those policies."
With this interpretation, the court looked to Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969), cases that
expounded the rule that an enactment deprives minority groups of the equal protection of the laws when it: (1) has a racial focus, targeting a policy or program that “inures primarily to the benefit of the minority”; and (2) reallocates political power or reorders the decisionmaking process in a way that places special burdens on a minority group’s ability to achieve its goals through that process.
The court then applied the rule to conclude that Proposal 2 targets a program that “inures primarily to the benefit of the minority” and reorders the political process in Michigan in a way that places special burdens on racial minorities."
Interestingly, the en banc majority rejected any distinction based upon the race benefited or burdened:
The Attorney General and the dissenters assert that Hunter and Seattle are inapplicable to Proposal 2 because those cases only govern enactments that burden racial minorities’ ability to obtain protection from discrimination through the political process, whereas Proposal 2 burdens racial minorities’ ability to obtain preferential treatment. At bottom, this is an argument that an enactment violates the Equal Protection Clause under Hunter and Seattle only if the political process is distorted to burden legislation providing constitutionally-mandated protections, such as anti-discrimination laws. Under this theory, a state may require racial minorities to endure a more burdensome process than all other citizens when seeking to enact policies that are in their favor if those policies are constitutionally permissible but not constitutionally required. This effort to drive a wedge between the political-process rights afforded when seeking anti- discrimination legislation and so-called preferential treatment is fundamentally at odds with Seattle.
The only way to find the Hunter/Seattle doctrine inapplicable to the enactment of preferential treatment is to adopt a strained reading that ignores the preferential nature of the legislation at issue in Seattle, and inaccurately recast it as anti-discrimination legislation.
None of the opinions mention the recently argued case of Fisher v. Texas. If the United States Supreme Court were to take a very broad approach and declare that all racial affirmative action policies in education were per se unconstitutional, the rationale of today's opinion in Coalition to Defend Affirmative Action would be seriously undermined.
[image: "Women's Studies Turns 40" from the University of Michigan, via]
Tuesday, November 6, 2012
Here's a primer, courtesy of CNN:
WAMU's Diane Rehm hosted a wonderful show with Profs. James Thurber and Jeffrey Rosen last month. Here's a short report from the Congressional Research Service, and here's a report from the U.S. Election Assistance Commission.
Smartphone cameras plus social media distribution pose many possibilities of First Amendment challenges to laws prohibiting recording, such as the recording of law enforcement officers as we've previously discussed.
On Election day, the existence of a wide array of laws prohibiting recording inside polling places - - - collected at Citizen Law Media Project - - - might be violated by a casual posting of a ballot to a facebook page. Although many of the statutes seem to be aimed at prohibiting voter intimidation or at regulation of the media, and thus their extension to the recording of one's own vote would seem a matter of statutory construction, any construction would occur in light of the First Amendment, as would the intimidation and media regulations. Of special constitutional concern are the laws and regulations that delegate (seemingly total?) discretion to local polling officials.
The First Amendment interests involved would not only be the personal/artistic ones of an interesting facebook page or personal scrapbook, but also ones more central to democracy, such as identifying problems with voting protocols such as the machinery recording an incorrect vote (video below).
[image of ballot via]
In The Founders’ Bush v. Gore: The 1792 Election Dispute and its Continuing Relevance, published in Indiana Law Review and available in draft on ssrn, Professor Edward B. Foley provides a historical perspective on election disputes.
Foley argues that the contentious election for Governor of New York between the incumbent, George Clinton, and the challenger, John Jay (pictured) provides an important window into the constitutional shortcomings of elections. Foley demonstrates that when the Founders were confronted with a vote counting dispute, they were ill-equipped to resolve it.
Professor Foley discusses the role of lawyers and legal principles, but also tells us that after "the canvassing committee announced its decision against John Jay, there was great public agitation," including what Alexander Hamilton called talk of the “bayonet.” Foley argues the Founders were a "generation of revolutionaries who were not afraid of extralegal means to secure their fundamental right to a representative democracy." He reminds us that the "it was not just the revolt against England that was revolutionary," but also the "Constitution itself was an unauthorized break from the legal regime of the Articles of Confederation." The question for John Jay and his supporters "was whether to take to the streets and demand a new constitutional convention for the state of New York that would undo what they viewed as the partisan atrocity committed by the canvassing committee."
A good read for Election Day.
Sunday, November 4, 2012
The Caucus blog at the NYT reports that state Democrats sued on Sunday to extend the state's early voting and that local election officials in five counties agreed to accept absentee ballots on Sunday.
The moves came in response to long lines at Florida's early voting sites on Saturday, with some voters reportedly waiting up to seven hours to vote, and Governor Scott's refusal to extend early voting to Sunday. The moves by local election officials allow early voting on Sunday by way of absentee ballots in Miami-Dade, Palm Beach, Hillsborough, Orange, and Pinellas counties. (In another case, a judge extended in-person, non-absentee early voting Sunday at one site in Orange County after a polling station was forced to shut down Saturday over a suspicious package.)
Recall that Florida changed its early voting law for the 2012 election, eliminating the Sunday before the election as an early voting day. The change drew a lawsuit, Brown v. Detzner, which we covered here. The judge in that case rejected the plainitffs' motion for a preliminary injunction in late September, leaving the changes in place for Tuesday's election.
Thursday, November 1, 2012
While much has been written on voter fraud, Jane Mayer's article, The Voter-Fraud Myth, appearing in the New Yorker is one of the most in-depth and well-researched journalistic pieces.
She addresses voter identification proposals, such as those we've recently discussed in Texas, Pennsylvania, Minnesota, and Indiana, situating them in their political contexts and providing differing perspectives.
With legions of citizen watchdogs on the lookout for fraud, voters confused about the documents necessary to vote, and the country almost evenly divided politically, von Spakovsky is predicting that November 6th could be even more chaotic than the 2000 elections. He will play a direct role in Virginia, a swing state, where he is the vice-chairman of the electoral board of Fairfax County. Joining us at the conference table at the Heritage Foundation, John Fund, von Spakovsky’s co-author, told me, “If it’s close this time, I think we’re going to have three or four Floridas.” Von Spakovsky shook his head and said, “If we’re lucky only three or four.” If there are states where the number of provisional ballots cast exceeds the margin of victory, he predicts, “there will probably be horrendous fights, and litigation between the lawyers that will make the fights over hanging chads look minor by comparison.” Pursing his lips, he added, “I hope it doesn’t happen.” But, if it does, no one will be more ready for the fight.
Thursday, October 25, 2012
The current controversy in the UK over voting by persons who are presently incarcerated and the imminent US election again raise questions regarding the general US policy of disenfranchisement by persons convicted of felonies (even if not incarcerated), a topic we've previously addressed here and here.
Ruvi Ziegler's 2011 article, Legal Outlier, Again? US Felon Suffrage: Comparative and International Human Rights Perspectives, 29 Boston University International Law Journal 197, available on ssrn, situates the US practices and doctrine within international human rights and comparative constitutional law perspectives.
Ziegler concludes that defending the "rights of convicts is hardly a popular task. However,defending their right to vote means, inter alia, defending the substantivedemocratic legitimacy of criminal law, which labels certain community members as convicts by proscribing their acts and which sanctions the imposition of punishments. Convicts’ disenfranchisement is a hurdle on the path towards the democratic project’s successful completion. It can and should be removed."
This is worth a read for any scholar or student pondering the relationship between the fundamental right to vote and punishment.
"Prisoners are not getting the vote under this government," UK Prime Minister David Cameron said yesterday. This is despite the attorney general's statements earlier that day that the UK should comply with opinions from the European Court of Human Rights (ECHR) regarding the UK's blanket ban on prisoner voting. The ECHR in 2005 ruled in Hirst v. UK that the UK's bar on voting was too "blunt" of an instrument:
It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be.
In 2009, the ECHR expressed "serious concern" that the Hirst judgment had not been implemented.
And it seems that PM Cameron is voicing his opinion that Hirst will never be implemented - at least under his government.
Tuesday, October 16, 2012
In a very brief Order today, the United States Supreme Court stated in Husted v. Obama for America: "The application for stay presented to Justice Kagan and by her referred to the Court is denied."
Thus, the Court let stand the Sixth Circuit's opinion upholding the district court's finding that the Ohio differential early voting scheme violated the Equal Protection Clause of the Fourteenth Amendment. Our previous discussion is here.
Monday, October 15, 2012
Today the United States Supreme Court granted the petition for certiorari of the State of Arizona in Arizona v. The Inter-Tribal Council of Arizona, from the Ninth Circuit's en banc opinion in Gonzalez v. Arizona. (The Inter Tribal Council of Arizona, ITCA, was a named plaintiff in Gonzales).
The central issues, as have been the case with other recent Arizona laws before the Supreme Court, involve pre-emption and citizenship. Here, Arizona's law derives from a ballot initiative, Proposition 200, passed in 2004. It requires prospective voters in Arizona to provide proof of U.S. citizenship in order to register to vote and requires registered voters to show identification to cast a ballot at the polls. The plaintiffs contended that these provisions were pre-empted by the National Voter Registration Act and the Voting Rights Acts.
With regard to the polling place requirements, the en banc Ninth Circuit affirmed the district judge and rejected the plaintiffs' claims that the requirements were inconsistent with the Voting Rights Act, violated the Twenty Fourth Amendment's prohibition of poll taxes, or violated the Fourteenth Amendment's Equal Protection Clause.
However, the Ninth Circuit found the challenge to the registration to vote provisions had merit. As a grounds of pre-emption, the plaintiffs relied on the Supremacy Clause, Article VI, but also upon the Elections Clause, Art. I, § 4, cl. 1. Recall that the Elections Clause 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 Ninth Circuit en banc extensively discussed Election Clause pre-emption and compared the provisions of the NVRA and the Proposition 200 regulations. The court found:
Although Arizona has offered a creative interpretation of the state and federal statutes in an effort to avoid a direct conflict, we do not strain to reconcile a state’s federal election regulations with those of Congress, but consider whether the state and federal procedures operate harmoniously when read together naturally. Here, under a natural reading of the NVRA, Arizona’s rejection of every Federal Form submitted without proof of citizenship does not constitute “accepting and using” the Federal Form. Arizona cannot cast doubt on this conclusion by pointing out that the NVRA allows states to reject applicants who fail to demonstrate their eligibility pursuant to the Federal Form. Congress clearly anticipated that states would reject applicants whose responses to the Federal Form indicate they are too young to vote, do not live within the state, or have not attested to being U.S. citizens. Indeed, the NVRA instructs the EAC [Election Assistance Commission] to request information on the Federal Form for the precise purpose of “enabl[ing] the appropriate State election official to assess the eligibility of the applicant.” Thus, a state that assesses an applicant’s eligibility based on the information requested on the Federal Form is “accepting and using” the form in exactly the way it was meant to be used. In contrast, Proposition 200’s registration provision directs county recorders to assess an applicant’s eligibility based on proof of citizenship information that is not requested on the Federal Form, and to reject all Federal Forms that are submitted without such proof. Rejecting the Federal Form because the applicant failed to include information that is not required by that form is contrary to the form’s intended use and purpose.
In its petition for writ of certiorari, Arizona argues that the Ninth Circuit mistakenly created a "new, heightened preemption test" under the Elections Clause and incorrectly concluded that the Proposition 200 requirements were preempted by the NVRA.
The litigation has already garnered a few amicus curiae briefs at the certiorari stage; it is sure to be another closely watched case on Arizona's attempts to regulate citizenship.
[image: ITCA,"Tribal Homelands in Arizona" via]
Thursday, October 11, 2012
In its opinion today in Northeast Ohio Coalition for the Homeless v. Husted, consolidated on appeal with SEUI v. Husted, the Sixth Circuit considered yet another problem with Ohio's voting regime and as in Obama for America v. Husted decided last week regarding early voting ruled mostly against the state.
The 35 page per curium opinion considers Ohio’s requirements that provisional ballots be cast in the correct precinct and with completed voter affirmation, making no exception for wrong-precinct and deficient-affirmation ballots caused by poll-worker error.
The Sixth Circuit affirmed the district judge's injunction in SEIU v. Husted regarding wrong precinct voting as a denial of equal protection. After extension discussion regarding factual nuances of the district court's order, the Sixth Circuit upheld the wrong precinct voting injunction. However, in a very brief analysis, the panel reversed the injunction against deficient affirmation ballots, finding that the "spotty record" did not support the judge's presumption of poll-worker error.
Yet the panel's own ruling created some equal protection issues:
we note some additional issues our ruling creates that must be resolved. While we have set aside the portion of the preliminary injunction addressing deficient-affirmation provisional ballots, the consent decree continues to mandate that some deficient-affirmation provisional ballots will be counted. This discrepancy appears to create a Bush v. Gore problem. Similarly, the consent decree standing on its own also raises Bush v. Gore issues by virtue of treating some provisional ballots differently than others. This latter concern is not purely academic, as the consent decree will be the only agreement governing these issues for Ohio’s 2013 primary elections.
Thus, the panel remanded the Northeast Ohio Coalition for the Homeless case for the district judge to "expeditiously address" the equal protection issue created by the consent decree’s provision for the counting of deficient-affirmation ballots and the motion to modify the consent decree in light of the equal protection concerns raised by the consent decree’s differential treatment of provisional ballots.
Saturday, October 6, 2012
In its opinion yesterday in Obama for America v. Husted, the Sixth Circuit has affirmed the district judge's injunction against Ohio's new law that prevented some Ohio voters from casting in-person early ballots during the three days before the November 2012 election on the basis that the statute violates the Equal Protection Clause of the Fourteenth Amendment.
The Sixth Circuit opinion tracks the district judge's explanation of the confusing (and confused) statutory scheme that resulted in different allowances of early in-peson voting to military and overseas voters than to non-military voters. In its equal protection analysis, the Sixth Circuit panel noted that Ohio had both burdened the right to vote and had classified voters disparately. It examined Ohio's two asserted governmental interests - - - the burden on local boards of elections and the need to accommodate military voters and their families - - - and found that the State did not demonstrate they were “sufficiently weighty” interests to curtail voting. While the Sixth Circuit does not explicitly find that the interests were not being served by the means chosen, this usual prong of equal protection analysis is implicit in the analysis.
Importantly, the panel explicitly upheld the district judge's remedy:
The State argues that the district court’s remedy was overbroad because it could be read to affirmatively require the State to mandate early voting hours during the three- day period prior to the election. We do not read the district court’s order in this way. The order clearly restores the status quo ante, returning discretion to local boards of elections to allow all Ohio voters to vote during Saturday, November 3, 2012; Sunday, November 4, 2012; and Monday, November 5, 2012. Because Ohio Rev. Code § 3509.03 is unconstitutional to the extent that it prohibits non-military voters from voting during this period, the State is enjoined from preventing those voters from participating in early voting. But the State is not affirmatively required to order the boards to be open for early voting. Under the district court’s order, the boards have discretion, just as they had before the enactment of § 3509.03. The district court’s remedy was therefore appropriate.
It was on the question of remedy that Circuit Judge Helene White disagreed, suggesting that she would "remand the matter with instructions to give the Secretary and the General Assembly a short and finite period in which cure the constitutional defects."
Tuesday, October 2, 2012
On remand from the Pennsylvania Supreme Court's opinion last month, Commonwealth Judge Robert Simpson issued his Memorandum Order by today's deadline issuing a partial injunction of Pennsylvania's controversial voter photo identification law administered by PennDOT.
In short, the Judge allows election officials to request an in-person voter show photo identification, but "enjoin[s] enforcement of those provisions of Act 18 which amend the provisional ballot procedures of the Election Code and cause disenfranchisement based on failure to present photo ID for in-person voting." [emphasis added]. The Judge rejected the State's argument that such a voter be allowed only to cast a "provisional ballot."
Judge Simpson also noted that the Pennsylvania Supreme Court's
reference to “no voter disenfranchisement ... for purposes of the upcoming election,” Applewhite, ___ Pa. at ___, ___ A.3d at ___, slip op. at 7, has sparked debate between the parties. I understand the phrase to be focused on the preliminary injunction for purposes of the upcoming election. I do not understand the phrase to define the test for a facial validity challenge in the context of a permanent injunction. If that understanding is not correct, the Court’s guidance will be necessary.
With a little over a month until the election, this case may be heading back to the Pennsylvania Supreme Court for such guidance.