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.
Wednesday, September 26, 2012
Judge Timothy J. Corrigan (M.D. Fla.) ruled in Brown v. Detzner that the plaintiffs failed to show that they were substantially likely to succeed on their statutory and constitutional claims challenging Florida's 2011 changes to its early voting law. Judge Corrigan thus rejected the plaintiffs' motion for a preliminary injunction.
The ruling means that Florida's 2011 changes to its early voting law--and the counties' rules and regulations as to early voting days and times--will almost certainly stay in place for the upcoming election. But if Judge Corrigan is right, the changes will have little effect on access to the ballot.
(One issue that Judge Corrigan didn't touch: the plaintiff's argument that the disparate voting days and times in the various counties violated the Equal Protection Clause. Judge Corrigan wrote that the plaintiffs failed to plead this claim.)
The case arose in response to Florida's 2011 changes to its early voting laws. Florida reduced the number of early voting days, but gave local elections supervisors the discretion to allow voting on certain other days and to offer up to 12 hours of voting each day. On net, the 2011 changes didn't necessarily mean fewer total voting hours--and several counties intend to offer the same number of hours as they did under the old law, 96 hours in all--but it does mean fewer total days. (There's a nice chart in the last six pages of the linked file that gives each county's voting days and times and total available voting hours.)
Here's the old law:
Early voting shall begin on the 15th day before an election and end on the 2nd day before an election. . . . Early voting shall be provided for 8 hours per weekday and 8 hours in the aggregate each weekend at each site during the applicable periods. Early voting sites shall open no sooner than 7 a.m. and close no later than 7 p.m. on each applicable day.
And here's the new one:
Early voting shall begin on the 10th day before an election that contains state or federal races and end on the 3rd day before the election, and shall be provided for no less than 6 hours and no more than 12 hours per day at each site during the applicable period.
The plaintiffs, including Congresswoman Corrine Brown, the SCLC Jacksonville Chapter, and the Duval County Democratic Executive Committee, challenged the new law, arguing that it violated Section 2 of the Voting Rights Act and the Equal Protection Clause by burdening the rights of African Americans to vote. (Because five Florida counties are covered jurisdictions under the VRA, those counties had to seek preclearance under Section 5 before implementing the change. The Section 5 court originally declined to preclear, but said that "Florida would likely satisfy its burden of proving that the overall effect of its changes in law would be nonretrogressive" (and thus satisfy the Section 5 preclearance standard) if the covered counties opened their polls for the maximum allowable time--thus ensuring that the total available voting hours under the new law would equal the total available hours under the old one. That's exactly what they did.)
Judge Corrigan ruled that the plaintiffs failed to show a substantial likelihood of success on either the VRA or the Equal Protection claim. In particular, he ruled that the plaintiffs couldn't show that Florida enacted the change with discriminatory purpose. Looking to the Arlington Heights factors, he said that the change will have a disproportionate effect on minority voters (although this effect will be mitigated if counties implement the full 96-hour voting plan allowable under the new law); nothing in the historical background of the change suggests a racial intent; irregularities in the process of enacting the new law were insufficient to suggest a racial intent; and the legislative history didn't suggest a racial intent (although some statements from the history suggested otherwise).
Tuesday, September 25, 2012
In a per curium reversal of a three judge court, the United States Supreme Court today issued its brief opinion in Tennant v. Jefferson County Commission.
The issue was not whether West Virginia itself was unconstitutional - - - as some have entertained - - - but whether the latest redistricting plan of its state legislature was constitutional. The constitutional argument centered on the “one person, one vote” principle the Court has held to be "embodied" in Article I, §2, of the United States Constitution.
Reversing, the Court held that the three judge court misapplied the standard of Karcher v. Daggett, 462 U. S. 725 (1983), requiring first, that the parties challenging the plan bear the burden of proving the existence of population differences that “could practicably be avoided," and then if so, the burden shifts to the State to “show with some specificity” that the population differences “were necessary to achieve some legitimate state objective.”
There was no dispute that the new plan had a population variance of 0.79%, the second highest variance of the plans the legislature considered. Instead, there was disagreement over whether this was necessary to achieve some legitimate state objective. The state had several other objectives, including not splitting county lines, redistricting incumbents into the same district, or requiring dramatic shifts in the population of the current districts.
As to county lines, the Court noted:
With respect to the objective of not splitting counties, the [Three Judge] District Court acknowledged that West Virginia had never in its history divided a county between two or more congressional districts. The court speculated, however, that the practice of other States dividing counties between districts “may portend the eventual deletion” of respecting such boundaries as a potentially legitimate justification for population variances.
[emphasis in original]. As those who have ever resided in West Virginia know, counties are quite important as demographic markers in the state. The Court thus seems to nod to the state's individual circumstances, as well as also acknowledging its relatively small population.
[image: West Virginia counties map via]
Thursday, September 20, 2012
In perhaps the final chapter of the long-running saga involving Texas's congressional and state legislative districting maps, the Supreme Court yesterday denied a motion to stay the maps drawn by the Texas court after remand from the Supreme Court earlier this year in Perry v. Perez.
Here's our last post for background. Here's a thumbnail version (with links to many of our earlier posts):
- The Texas legislature redrew its congressional and state legislative districting maps in response to the 2010 census and to ensure that districts respected the one-person-one-vote principle.
- Texas, a "covered jurisdiction," filed for preclearance under Section 5 of the Voting Rights Act, but dragged its feet through the preclearance process. Call this the D.C. Court proceeding.
- Plaintiffs sued Texas for violating Section 2 of the VRA in federal court in Texas. Call this the Texas Court proceeding.
- The Texas Court found a violation and redrew the maps. Texas appealed. The U.S. Supreme Court vacated the Texas Court's ruling and sent the Texas Court back to the drawing board.
- The Texas Court issued new maps earlier this year--new maps that were based on the original legislature's maps, with some changes. Texas used these maps for its primaries earlier this year. No party to the litigation challenged its use of these maps.
- The D.C. Court denied preclearance to the legislature's maps. This left the most recent Texas Court maps as the only ones available. (Recall that the Supreme Court rejected the first Texas Court maps.)
- Texas is planning its fall elections around the most recent Texas Court maps.
The League of United Latin American Citizens asked Justice Scalia for an emergency stay. The Court yesterday rejected that request, without comment or dissent.
The ruling puts an end to the litigation and leaves the most recent Texas Court maps in place for the fall elections.
Tuesday, September 18, 2012
A three-judge panel of the D.C. Circuit today vacated the district court ruling in favor of plaintiff-Representative Chris Van Hollen over the FEC's disclosure regulation in Van Hollen v. FEC. The ruling sends the case back to the FEC either to reissue its regs or to reargue that its current reg is a permissible construction of the statute, the Bipartisan Campaign Finance Reform Act. The district court retains jurisdiction.
Recall that Representative Van Hollen sued the FEC over its reg, which required disclosure of corporate and labor union contributors as follows:
If the disbursement were made by a corporation or labor organization pursuant to 11 CFR Sec. 114.15, the name and address of each person who made a donation aggregating $1,000 or more to the corporation or labor organization, aggregating since the first day of the preceding calendar year, which was made for the purpose of furthering electioneering communication.
11 CFR Sec. 104.20(c)(9). The problem, according to Van Hollen, was that the italicized limit on the disclosure requirement violated the plain language of the BCRA, which requires disclosure as follows:
(E) If the disbursement were paid out of a segregated bank account which consists of funds contributed . . . directly to this account for electioneering communications, the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to that account . . .; or
(F) If the disbursements were paid out of funds not described in subparagraph (E), the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to the person making the disbursement during the period beginning on the first day of the preceding calendar year and ending on the disclosure date.
2 USC Sec. 434(f)(2).
Van Hollen argued that BCRA's (E) and (F) required disclosure of "all contributors," but the FEC reg limited that to only contributions "made for the purpose of furthering electioneering communication."
The district court ruled that the FEC reg violated the plain language of the BCRA. FEC's amici, but not the FEC itself, appealed. The D.C. Circuit denied an emergency stay of the district court ruling pending appeal. And finally today the D.C. Circuit vacated the district court ruling and remanded the case.
The court ordered the district court to retain jurisdiction while the FEC decides whether to re-write its regulation or to re-argue its case--this time focusing on whether its regulation was a permissible construction of the statute.
(The district court originally ruled that the statute violated the plain language of BCRA--at Chevron's step 1. It didn't even get to Chevron's step 2. Because the D.C. Circuit ruled that the district court got it wrong on Chevron's step 2, the FEC may, if it chooses, reargue at the district court that the reg satisfies Chevron's step 2--that it's a permissible interpretation of the statutory language.)
A three-judge panel of the Tenth Circuit ruled in Dool v. Burke that the election procedure for attorney members of the Kansas Judicial Nominating Commission did not violate the Equal Protection Clause. The ruling affirms a lower court decision and means that the procedure remains in place. We posted on the complaint and motion for preliminary injunction here.
The Judicial Nominating Commission is comprised of nine-members--a chairperson (who is a lawyer licensed and residing in Kansas) and one attorney and one non-attorney from each of the state's four congressional districts. The attorney members are elected by licensed attorneys residing in the respective congressional districts; the chairperson is elected by Kansas attorneys voting at large. The non-attorney members are appointed by the governor.
Whenever a state appellate court vacancy arises (including a vacancy in the state supreme court), the Commission generates a short list of candidates based on a competitive application process. The governor then selects the appointee to fill the vacancy from among those on the short list. Still, all judges--including those appointed by way of the Commission--are subject to periodic retention elections in which Kansas voters may vote them out.
The plaintiffs, non-attorneys, argued that the election procedure for attorney members of the Commission closed the attorney seats to non-attorneys in violation of the one-person-one-vote principle set out in Reynolds v. Sims.
The Tenth Circuit disagreed. In a very brief, per curiam opinion, the court rejected the plaintiffs' claims and upheld the lower court's ruling denying preliminary relief and dismissing the case.
Judge O'Brien concurred, arguing that the Commission didn't possess the kind of general government functions and direct government power that would trigger strict scrutiny analysis of its election procedure under Avery v. Midland Cnty. Tex.--the post-Reynolds case that said that Reynolds applied with equal force to officials of a county government who exercised "general governmental powers over the entire geographic area served by the body." Judge O'Brien also noted that the Commission serves a separation-of-powers function (insulating the judiciary from threats of control and threats to its integrity by the executive)--that it was created in direct response to an embarrassing episode in which the governor engineered his own appointment as Chief Justice--and that the federal Constitution does not prescribe any particular structure of government on the states.
Judge Matheson went a step further in a separate concurrence, arguing that the Commission satisfied the Salyer/Ball exception to Reynolds: that Reynolds doesn't apply to elections for limited-purpose bodies exercising narrow government functions and operating to the burden or benefit of one group of constituents more than others. Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.; Ball v. James.
Judge McKay dissented, arguing that the Commission's work is quintessential governmental--the appointment of judges--even if it's indirect and mediated by the governor's independent appointment (from the Commission's short list).
September 18, 2012 in Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)
Applying the Pennsylvania Constitutional provision that “no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” PA. CONST. art. 1, § 5, in its opinion in Applewhite v. Commonwealth of Pennsylvania, the Pennsylvania Supreme Court today remanded the question of the constitutionality of Pennsylvania's new "Voter ID" law back to the trial judge.
In its 7 page ruling, the per curium majority stressed that the affected population involves "members of some of the most vulnerable segments of our society (the elderly, disabled members of our community, and the financially disadvantaged)." As the ruling makes clear, the statute's original plan - - - that persons needing voter ID could easily obtain it from the Pennsylvanian Department of Transportation, PennDOT - - - was unworkable given PennDOT's rigorous requirements. A bit less clearly, the opinion states:
Upon review, we find that the disconnect between what the Law prescribes and how it is being implemented has created a number of conceptual difficulties in addressing the legal issues raised. Initially, the focus on short-term implementation, which has become necessary given that critical terms of the statute have themselves become irrelevant, is in tension with the framing of Appellants’ challenge to the Law as a facial one (or one contesting the Law’s application across the widest range of circumstances). In this regard, however, we agree with Appellants’ essential position that if a statute violates constitutional norms in the short term, a facial challenge may be sustainable even though the statute might validly be enforced at some time in the future. Indeed, the most judicious remedy, in such a circumstance, is the entry of a preliminary injunction, which may moot further controversy as the constitutional impediments dissipate.
Absolutely clear, however, is the Supreme Court's remand to the Commonwealth Court and its vacating of that court's "predictive judgment" that there would be no voter dienfranchisement. Instead, the lower court must "consider whether the procedures being used for deployment of the cards comport with the requirement of liberal access which the General Assembly attached to the issuance of PennDOT identification cards," and if not, issue a preliminary injunction against the voter ID law. The Supreme Court ordered the lower court to issue its opinion on or before October 2.
There were two vigorous dissents, both arguing that the Supreme Court should not remand the issue.
In her dissenting opinion, Justice Todd stated that in her view, "the time for prediction is over":
Forty-nine days before a Presidential election, the question no longer is whether the Commonwealth can constitutionally implement this law, but whether it has constitutionally implemented it. Despite impending near-certain loss of voting rights, despite the Commonwealth's admitted inability thus far to fully implement Act 18 and its acceptance that, presently, “the Law is not being implemented according to its terms,” and despite the majority's concession that the “most judicious remedy” in such circumstances would be to grant an injunction, the majority nonetheless allows the Commonwealth to virtually ignore the election clock and try once again to defend its inexplicable need to rush this law into application by November 6, 2012.
And in a dissenting opinion as long as the per curium, and in which Todd joined, Justice McCaffery made clear that not only should the court decide the matter, but that there was "no doubt that the record, as it is, establishes the immediate and irreparable harm required for the injunction." McCaffery also had some especially pointed words about the political process:
While I have no argument with the requirement that all Pennsylvania voters, at some reasonable point in the future, will have to present photo identification before they may cast their ballots, it is clear to me that the reason for the urgency of implementing Act 18 prior to the November 2012 election is purely political. That has been made abundantly clear by the House Majority Leader. Exhibit 42 at R.R. 2073a. I cannot in good conscience participate in a decision that so clearly has the effect of allowing politics to trump the solemn oath that I swore to uphold our Constitution. That Constitution has made the right to vote a right verging on the sacred, and that right should never be trampled by partisan politics.
Thus, it seems that at least two of the six sitting Justices would immediately enjoin the voter ID law, and four are waiting for a lower court judge to make additional findings but lean towards an injunction. [UPDATED INFO: Recall that Justice Orie Melvin is not on the court at present; Order of Suspension here.
[image: Pennsylvania Supreme Court Justices via]
Thursday, September 6, 2012
Judge Rudolph Contreras (D.D.C.) ruled in La Botz v. FEC that the Commission's decision upholding a private organization's standards that kept the plaintiff out of the organization-sponsored U.S. Senate debates in Ohio in 2010 were not supported by substantial evidence. Judge Contreras sent the case back to the FEC for further consideration.
La Botz, a member of Ohio's Socialist Party, didn't get an invitation to the U.S. Senate debates sponsored by the Ohio News Organization (ONO), a consortium of eight newspapers in Ohio. He complained to the FEC that the ONO failed to use "pre-established, objective criteria" in determining who got to participate, as required by FEC regs. The FEC dismissed the complaint with no more than a conclusory sentence of analysis (based on a single, flawed affidavit of an editor of one of the ONO newspapers) concluding that the ONO's standards satisfied FEC regs. La Botz sued.
Judge Contreras ruled that La Botz had standing, and that the case was not moot (because it was capable of repetition yet evading review). Then he sent the case back to the FEC for a more complete analysis, supported by substantial evidence.
The ruling means that the FEC will have another crack at it. But even a ruling for La Botz (obviously) won't have a direct impact on his 2010 Senate run. At most, it'll tell the ONO what kinds of criteria it needs to adopt the next time around.