Thursday, February 1, 2018
In his opinion in Hand v. Scott, United States District Judge for the Northern District of Florida Mark Walker declared Florida's re-enfranchisement scheme for persons convicted of felonies to be restored their right to vote unconstitutional under both the First Amendment and the Fourteenth Amendment's Equal Protection Clause.
The court's decision was on cross motions for summary judgment and Judge Walker opens his opinion by describing the Florida scheme:
Florida strips the right to vote from every man and woman who commits a felony. To vote again, disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida’s Governor has absolute veto authority. No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration. Until that moment (if it ever comes), these citizens cannot legally vote for presidents, governors, senators, representatives, mayors, or school-board members. These citizens are subject to the consequences of bills, actions, programs, and policies that their elected leaders enact and enforce. But these citizens cannot ever legally vote unless Florida’s Governor approves restoration of this fundamental right.
Florida’s Executive Clemency Board has, by rule, unfettered discretion in restoring voting rights. “We can do whatever we want,” the Governor said at one clemency hearing. One need not search long to find alarming illustrations of this scheme in action. In 2010, a white man, Steven Warner, cast an illegal ballot. Three years later, he sought the restoration of his voting rights. He went before the state’s Executive Clemency Board, where Governor Scott asked him about his illegal voting.
“Actually, I voted for you,” he said. The Governor laughed. “I probably shouldn’t respond to that.” A few seconds passed. The Governor then granted the former felon his voting rights.
While the state can deny persons convicted of a felony the right to vote under the Fourteenth Amendment as construed by the Court in Richardson v. Ramirez (1974), the issue before Judge Walker was whether the vote restoration process was constitutional. Seemingly, the state argued it had absolute discretion to restore voting rights. Judge Walker held that such discretion violated the First Amendment rights to free association and expression, and the Fourteenth Amendment's Equal Protection Clause.
On the First Amendment claim, Judge Walker first articulated the right of free political association and then the right to vote as including a First Amendment right, interestingly relying in part on Citizens United. Judge Walker writes that the unfettered discretion in vote restoration cannot survive exacting scrutiny. Even if the government interest in limiting the franchise to responsible persons is valid, "Florida does not use the least-restrictive means to pursue its interests in preventing possibly irresponsible citizens from choosing their leaders."
Florida’s vote-restoration scheme is crushingly restrictive. The scheme crumbles under strict scrutiny because it risks—if not covertly authorizes the practice of—arbitrary and discriminatory vote-restoration. When a scheme allows government officials to “do whatever [they] want,” viewpoint discrimination can slip through the cracks of a seemingly impartial process. [citing record] Such discrimination can lead to a denial of “the fruits of their association, to wit: [former felons’] political impact”—or widespread, insidious bias to benefit the Governor’s political party. Touchston, 234 F.3d at 1154 (Tjoflat, J., dissenting). State officials’ potential political, racial, or religious biases cannot poison the well of vote-restoration.
Judge Walker discussed several instances of possible discrimination and disparities, but ultimately concluded that it was the possibility of discrimination from unfettered discretion that was crucial. Additionally, the Governor as ultimate arbiter was fatal:
[t]he Governor has de facto veto authority over anyone’s restoration. All the component parts of the vote- restoration process that Defendants wave like shiny objects to distract from potential viewpoint discrimination—the investigations, case analyses, and hearings—mean nothing if the Governor alone has final authority to restore Plaintiffs’ rights.
Further, Judge Walker rejected the State's argument that the vote restoration scheme was akin to unreviewable executive clemency:
Executive clemency by its mere existence cannot serve as a legitimate, let alone compelling, state interest. No serious person would argue that an act of executive clemency that, for example, is motivated by race cannot run afoul of the Constitution simply because it is an act of executive clemency. This Court recognizes the novelty of a challenge to an executive clemency scheme. But “it is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). And so, if a court finds unconstitutionality in an executive clemency scheme, its role is to strike the acts permitting the constitutional violation—not to declare its hands tied.
On the Equal Protection Clause claim, Judge Walker essentially applied rational basis scrutiny and found that the "violation in this case—the substantial risk of arbitrary and discriminatory vote-restoration based on an applicant’s identity and perceived voting preferences from partisan government officials— is worse than a coin flip." Judge Walker stated that while the state may have a legitimate interest in limiting the franchise to responsible voters, the means chosen failed because it was at best, "arbitrary and disparate," interestingly quoting Bush v. Gore, on which the plaintiffs relied. Judge Walker added that at worst, the scheme would be discriminatory.
Judge Walker ordered additional briefings regarding remedies. Even if the state does not appeal, the question of remedies will be a difficult one.
Meanwhile, a ballot measure to restore voting rights to persons convicted of felonies has just been approved for the November ballot.
Wednesday, January 24, 2018
In a Complaint filed in the United States District of Maryland in National Association for the Advancement of Colored People v. United States Department of Homeland Security, the NAACP challenges the Trump Administration's decision to rescind Temporary Protective Status (“TPS”) for Haitian immigrants, as a violation of equal protection. The complaint argues that the rescission springs from an intent to discriminate on the basis of race and/or ethnicity.
Essentially COUNT I of the Complaint, based on the equal protection component of the Fifth Amendment, contents that there is sufficient governmental intent so that the classification should be deemed as a racial one. As ¶88 provides:
The inference of race and/or ethnicity discrimination is supported by the Administration’s departure from the normal decision-making process; the fact that the decision bears more heavily on one race than another; the sequence of events leading to the decision; the contemporaneous statements of decisionmakers; and the historical background of the decision. The Supreme Court has recognized these factors as probative of intentional discrimination. See Vill. of Arlington Heights v. Metro. Hous. Development Corp., 429 U.S. 252 (1977).
Subsequent paragraphs of the complaint track these Arlington Heights factors with more specificity. Earlier, the complaint in ¶ 79 mentions the President's notorious comments:
On January 11, 2018, during a White House meeting with several U.S. Senators, the President is alleged to have disparaged a draft immigration plan that protected people from Haiti, El Salvador, and some African countries, asking, “Why are we having all these people from shithole countries come here?”President Trump is alleged to have further disparaged Haitians in particular, asking “Why do we need more Haitians?” and ordered the bill’s drafters to “take them out.”In this meeting, the President is further alleged to have expressed his preference for more immigrants from places like Norway, where the population is over 90 percent white. Haiti’s population, by contrast, is over 95 percent Black.
[footnotes omitted]. If there is a racial classification, the court would apply strict scrutiny requiring a compelling governmental interest that is served by narrowly tailored means.
Interestingly, the equal protection count also includes this simple statement and citation: "The Due Process Clause of the Fifth Amendment also prohibits irrational government action. U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973)." Recall that the Court in Moreno found that a Congressional statute defining households for foodstamp eligibility as only including relatives - - - in order to exclude "hippie communes" - - - was irrational because a bare "desire to harm a politically unpopular group" could not constitute a legitimate government interest. This "animus" doctrine, also evident in cases like Romer v. Evans and United States v. Windsor, is another way that the challengers could prevail on their equal protection claim. Thus, even if the court does not find there is a racial (or ethnic) classification meriting strict scrutiny, the court could decide that there is sufficient animus here to negate the legitimate interest required under rational basis, the most lenient standard.
It will be interesting to see how the Department of Justice responds. Meanwhile, ConLawProfs teaching equal protection this semester could use this as the basis for a great problem.
Friday, January 19, 2018
The United States Supreme Court granted the application of a stay by North Carolina in Rucho v. Common Cause pending appeal of the three judge court decision. Justices Ginsburg and Sotomayor would have denied the stay.
Recall that a three judge court decision on January 9 gave North Carolina until January 29 to submit a new redistricting plan to the Court after finding that North Carolina's 2016 redistricting plan was unconstitutional partisan gerrymandering under the Equal Protection Clause, the First Amendment, and Article I §§ 2, 4.
Now Common Cause joins the other partisan gerrymandering cases before the Court: Recall that the United States Supreme Court heard oral arguments on the issue of partisan gerrymandering in Gill v. Whitford in the earliest days of this Term. Recall also that in early December, the United States Supreme Court added another partisan gerrymandering case to its docket, Benisek v. Lamone.
Thursday, January 18, 2018
The Seventh Circuit ruled that former Illinoisans who now live in Puerto Rico, Guam, and the Virgin Islands lacked standing to challenge the federal Uniformed and Overseas Citizens Absentee Voting Act and lost on the merits in their claims against Illinois after the state rejected their requests for absentee-voter ballots.
The ruling means that former Illinoisans who reside in these territories won't receive an absentee-voter ballot from the state, unless Illinois changes its law.
The plaintiffs, former residents of Illinois but now residents of the territories, sued when Illinois denied them absentee-voter ballots for federal elections in Illinois. They claimed that the UOCAVA and Illinois law defined their territories as part of the United States and thus prohibited them from getting absentee ballots as overseas voters. They claimed that this violated equal protection and their right to travel.
The Seventh Circuit ruled that the plaintiffs didn't even have standing to challenge the UOCAVA. That's because while the UOCAVA defines "the United States" to include these territories, it doesn't prohibit Illinois from providing absentee ballots to the plaintiffs. Illinois law does that. As a result, the court said that the plaintiffs couldn't challenge the federal law, although they could still challenge state law.
As to state law, the court said that Illinois's classification didn't violate equal protection and its denial of absentee ballots didn't violate the right to travel. The court said that the plaintiffs have no fundamental right to vote in federal elections--"absent a constitutional amendment, only residents of the 50 States have the right to vote in federal elections"--and no claim to heightened scrutiny. The court held that Illinois's distinction between Puerto Rico, Guam, and the Virgin Islands (on the one hand) and the Northern Marianas and American Samoa (on the other, where former Illinoisans can get an absentee ballot) passed rational basis review, because at the time that Illinois enacted the distinction, "these two territories were . . . more similar to foreign nations than were the incorporated territories where the plaintiffs reside." (The court said it was OK to look at the state's justification at the time of the distinction, in 1979, instead of now, because "even if . . . the Northern Marianas and American Samoa became more integrated into the United States, it would not help the plaintiffs [who are] injured specifically because Illinois defines their resident territories as within the United States.")
The court summarily rejected the plaintiffs' right-to-travel argument as "borderline frivolous."
Monday, January 15, 2018
Oppenheimer mentions the plans of the President and Attorney General Sessions to challenge affirmative action policies in higher education as a form of discrimination against white people and predicts that they will eventually use Dr. King’s “I Have A Dream” speech as evidence that Dr. King would be supporting their position if he were still alive. The President's Proclamation for MLK Day does not mention affirmative action (or civil rights), but does allude to King's most famous speech by including the arguably "color-blind" rejecting judgment based on "color of their skin" in favor of "content of their character." (The Proclamation states "Dr. King advocated for the world we still demand — where the sacred rights of all Americans are protected, rural and urban communities are prosperous from coast to coast, and our limits and our opportunities are defined not by the color of our skin, but by the content of our character.")
Yet as Professor Oppenheimer argues it is simplistic - - - and incorrect - - - to conclude that Martin Luther King's political theorizing can be reduced to a convenient "color-blind" position. Oppenheimer writes:
While I have found no instance of Rev. Dr. Martin Luther King, Jr. ever using the term “affirmative action,” forty-eight years after his assassination his name is often invoked in the affirmative action debate by opponents of race-based affirmative action, who cite Dr. King’s “I have a dream” speech as evidence that he supported “color-blind” policies, and thus presumably would have opposed race-conscious affirmative action. But when we examine the historical record it is clear that while Dr. King dreamed of a time when racism – and thus race – would be irrelevant, he was a supporter of both of these forms of affirmative action. On the one hand, he spent much of the last six years of his life actively promoting what we would describe today as race-conscious affirmative action, including the use of racial quotas in employment. Specifically, from 1962-68 Dr. King orchestrated and implemented “Operation Breadbasket,” a civil rights boycott campaign that demanded employment quotas for Black American workers based on their numbers in a workforce, neighborhood or city. Yet on the other hand, with regard to class-based affirmative action, Dr. King supported a massive war on poverty. In advocating for special benefits for poor Americans he sometimes used color-blind language and pointed out that it would benefit poor whites as well as poor Blacks, while at other times he justified it as an example of the kind of reparations to which Black Americans were entitled under the equitable remedy of restitution for unpaid wages.
In his discussion of the constitutional law doctrine and theory surrounding affirmative action, Oppenheimer includes the United States Supreme Court's reaction to organized efforts to mandate affirmative action in Hughes v. Superior Court for Contra Costa County (1948) in which the Court stated:
that the picketing here involved, and upon which the judgment of contempt is based, was for the attainment of an unlawful objective, viz.: not to induce Lucky [grocery store] not to discriminate against, but, rather, expressly to compel Lucky to discriminate arbitrarily in favor of, one race as against all others in the hiring of a portion of its clerks; and that therefore the injunction was properly issued and the judgment of contempt should stand. With this position, upon the record here, we must agree.
Oppenheimer writes that while the Supreme Court was willing to affirm the legitimacy of protesting discrimination, but unwilling to give any approval to demands for proportional hiring, the demands for "proportional hiring nonetheless persisted, and would become a critical part of Dr. King’s campaign for racial justice in the last six years of his life."
It seems pretty clear that MLK supported what is now known as "affirmative action."
Saturday, January 13, 2018
In a very brief opinion in Niang v. Caroll, a unanimous panel of the Eighth Circuit affirmed a district judge's grant of summary judgment to Missouri against a challenge to the state's licensing requirements for "African-style hair braiders." In short, the Missouri statutes require a license for barbers and cosmetologists that is granted only to those who complete a "costly and time-intensive training course - - - 1,000-hours for barbering and 1,500-hours for hairdressing" and passage of exam. Moreover, Missouri conceded that "only about 10 percent of the required training courses is relevant to African-style braiders, and that almost all the exams do not test on braiding."
The Eighth Circuit applied the most deferential of rational basis standards. In rejecting the challengers' argument that the license requirement was not rationally related to any legitimate government interest, the court not only found that the state interests of protecting consumers and ensuring public health and safety were legitimate, but also recognized two other interests supplied by the district judge: stimulating more education on African-style braiding and incentivizing braiders to offer more comprehensive hair care. As to the means chosen, the Eighth Circuit found that it was sufficiently reasonable: "the fit between the licensing requirement and the State’s interest is imperfect, but not unconstitutionally so."
The Eighth Circuit also rejected the Equal Protection argument focused on the classification between braiders and barbers/cosmetologist, finding that the statutory definitions of "hair dressing" included braiding.
Lurking beneath the litigation, of course, is the racial classification, but this remains unaddressed. Indeed, it would be a difficult argument on which to prevail absent other facts.
For Constitutional Law professors looking for a good example of "anything goes" rational basis as exemplified by Railway Express Agency v. New York (1949) (which the Eighth Circuit does not cite), as well as Dandridge v. Williams (1970) and Heller v. Doe (1997), both of which the court does cite, this brief opinion is noteworthy.
For persons who want to practice the profession of braiding without being subject to onerous and irrelevant licensing requirements, the remedy may have to be in the legislature.
[image by Chidi "Lex Ash" Ashimole via]
Friday, January 12, 2018
The United States Supreme Court has announced it will hear Abbott v. Perez, a redistricting case decided by a three judge court in Texas.
Recall that the lengthy opinion under both the Equal Protection Clause and the Voting Rights Act included a finding of intentional racial discrimination by the Texas legislature. The three judge court found that the plaintiffs could demonstrate "either through direct or circumstantial evidence that the government body adopted the electoral scheme with a discriminatory purpose, that the body maintained the scheme with discriminatory purpose, or that the system furthered pre-existing intentional discrimination."
The addition of Abbott v. Perez to the Court's docket heralds the 2017-2018 Term as a major one for redistricting, adding to the partisan gerrymandering cases of Gill v. Whitford (argued in October) and Benisek v. Lamone, and continuing to confront issues of racial gerrymandering as in last term's cases of Bethune-Hill v. Virginia State Board of Elections and Cooper v. Harris.
Thursday, January 11, 2018
In his opinion in Greater Birmingham Ministries v. Merrill, United States District Judge L. Scott Cooler granted summary judgment to the state in a challenge to Alabama's Photo Identification statute, Ala. Code § 17-9-30, passed in 2011 and first operative in 2014. Plaintiffs argued that the photo identification law violated the Fourteenth Amendment's Equal Protection Clause and the Fifteenth Amendment's guarantee that the "right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
Because the Alabama voter photo identification statute did not make an explicit racial classification, the plaintiffs had the burden of demonstrating that the statute had both racial intent and racial effect as the United Sates Supreme Court made clear in Arlington Heights v. Metro. Hous. Dev. Corp. (1977) and Washington v. Davis (1976). Judge Cooler recited the Arlington Heights factors for intent - - - usually the more difficult prong to prove - - - but then determined that "such an undertaking is not necessary in this case," because plaintiffs did not show effect. Judge Cooler concluded that in this case, "the Photo ID Law does not in fact discriminate on the basis of race." (emphasis in original).
Essentially, Judge Cooler rejected the relevance of expert testimony regarding the racial impact:
Also according to Dr. Siskin, 1.37% of white registered voters, 2.44% of Black registered voters, and 2.29% of Hispanic registered voters may not currently have an acceptable photo ID. Frankly, the discrepancy in photo ID possession rates among white, Black, and Hispanic registered voters in Alabama is miniscule. In other words, it appears that very few registrants of any racial group may presently be affected by the Photo ID Law. Nonetheless, the numbers show that Black and Latino registered voters are almost twice as likely as white voters to lack an acceptable photo ID for voting. Although Secretary Merrill’s expert’s numbers differ somewhat (Dr. Hood estimated that .87% of white, 1.44% of Black, and 1.26% of Hispanic registered voters lack photo ID), Secretary Merrill does not dispute that registered voters of color in Alabama are statistically more likely than white voters to lack the required photo ID.
Interestingly, Judge Cooler continued with an allusion to the high voter turnout in the hotly contested Alabama Senate race:
It is worth noting that any conclusions reached from this evidence must be qualified by the fact that the studies were completed in July 2016, and the actual possession rates are certainly in flux as voters who want them obtain photo IDs. Indeed, since the analyses were done, there has been a Presidential election and a special election to choose Alabama’s U.S. Senator. Many people who may not have had ID more than a year ago could have gotten one since, particularly if they wanted to participate in those elections.
But in the end, Dr. Siskin’s estimate does not matter. This is because a person who does not have a photo ID today is not prevented from voting if he or she can easily get one, and it is so easy to get a photo ID in Alabama, no one is prevented from voting.
Judge Cooler then discussed the requirements for obtaining photo identification and concluded:
In sum, the “impact” of the law should not be measured by how many people lack a given ID at a given point in time, but by whether someone without an ID can easily get one. In Alabama, the law has no discriminatory impact because it does not prevent anyone from voting, not when free IDs are issued in every county, or at home, under conditions that any registered voter can meet.
Returning to the issue of intent, Judge Cooler found that "there is no evidence that the Alabama Legislature believed that a photo ID law would disadvantage minority voters, particularly after providing means for people without an ID to receive one free of charge." Not surprisingly, Judge Cooler also denied the plaintiffs' claim under the Voting Rights Act.
Given the contentious state of efforts to prevent "voter fraud" that may be linked to efforts to suppress the vote by non-white voters, this is sure to be appealed.
UPDATE: Notice of Appeal and Statement from LDF-NAACP here
Tuesday, January 9, 2018
In an extensive and well-crafted opinion in the consolidated cases of Common Cause v. Rucho and League of Women Voters v. Rucho, a three judge court found North Carolina's 2016 redistricting plan was unconstitutional partisan gerrymandering under the Equal Protection Clause, the First Amendment, and Article I §§ 2, 4.
Recall that the United States Supreme Court heard oral arguments on the issue of partisan gerrymandering in Gill v. Whitford in the earliest days of this Term. Recall also that in early December, the United States Supreme Court added another partisan gerrymandering case to its docket, Benisek v. Lamone.
Fourth Circuit Judge James Wynn's almost 200 page opinion for the majority, joined by Senior District Judge Britt, first discusses the facts involved in the North Carolina redistricting, some incidents and players of which will be familiar from the Supreme Court's opinion in Cooper v. Harris, a racial gerrymandering case challenging only two districts and arising from an earlier North Carolina redistricting.
This is the 2016 plan at issue in Common Cause and League of Women Voters:
Judge Wynn's opinion carefully resolves the question of standing and justiability. Important to the justiciability analysis is the issue of judicially manageable standards, and Judge Wynn writes a robust support for social science, noting that the "Supreme Court long has relied on statistical and social science analyses as evidence that a defendant violated a standard set forth in the Constitution" and citing cases under the Equal Protection Clause such as Yick Wo v. Hopkins, Brown v. Board of Education of Topeka, and City of Richmond v. J.A. Croson Co. (It is interesting in this regard to (re)consider Chief Justice Roberts's statements during the oral argument in Gill v. Whitford disparaging social science.)
Judge Wynn wrote:
To hold that such widely used, and relied upon, methods cannot provide a judicially manageable standard for adjudicating Plaintiffs’ partisan gerrymandering claims would be to admit that the judiciary lacks the competence—or willingness—to keep pace with the technical advances that simultaneously facilitate such invidious partisanship and provide an opportunity to remedy it.
On the merits of the Equal Protection Clause claim, Judge Wynn's opinion found that there must be an intent to discriminate on a partisan basis and that there was such an effect, and then the burden would shift to the governmental defendant to prove that a legitimate state interest or other neutral factor justified such discrimination. Here, Judge Wynn's opinion concluded that all were resolved in the challengers' favor. On the First Amendment claim, Judge Wynn considered several strands of doctrine:
Against these many, multifaceted lines of precedent, the First Amendment’s applicability to partisan gerrymandering is manifest. How can the First Amendment prohibit the government from disfavoring certain viewpoints, yet allow a legislature to enact a districting plan that disfavors supporters of a particular set of political beliefs? How can the First Amendment bar the government from disfavoring a class of speakers, but allow a districting plan to disfavor a class of voters? How can the First Amendment protect government employees’ political speech rights, but stand idle when the government infringes on voters’ political speech rights? And how can the First Amendment ensure that candidates ascribing to all manner of political beliefs have a reasonable opportunity to appear on the ballot, and yet allow a state electoral system to favor one set of political beliefs over others? We conclude that the First Amendment does not draw such fine lines.
In a brief separate opinion, concurring in part and dissenting in part, District Judge Osteen, Jr., disagreed as the standard for proving intent in Equal Protection but concluded the standard was met; disagreed on the merits of the First Amendment claim; and agreed that there was a violation of Article I.
Judge Wynn's opinion gave North Carolina until January 29 to submit a new plan to the Court, but one wonders if North Carolina will also be aggressively pursuing remedies at the United States Supreme Court, especially given Gill v. Whitford and Benisek v. Lamone.
Thursday, January 4, 2018
In its opinion in Animal Defense League Fund v. Wadsen, a divided panel of the Ninth Circuit largely affirmed the injunction of Idaho's so-called "Ag-Gag" law, Idaho Code § 18-7042.
Recall that Chief Judge B. Lynn Winmill concluded that portions of the statute violated the First Amendment and enjoined them in 2015. The Idaho statute created a new crime, “interference with agricultural production" and provided that
A person commits the crime of interference with agricultural production if the person knowingly:
(a) is not employed by an agricultural production facility and enters an agricultural production facility by force, threat, misrepresentation or trespass;
(b) obtains records of an agricultural production facility by force, threat, misrepresentation or trespass;
(c) obtains employment with an agricultural production facility by force, threat, or misrepresentation with the intent to cause economic or other injury to the facility's operations . . .
(d) Enters an agricultural production facility that is not open to the public and, without the facility owner's express consent or pursuant to judicial process or statutory authorization, makes audio or video recordings of the conduct of an agricultural production facility's operations;
On appeal, the Ninth Circuit majority opinion, authored by Judge Margaret McKeown and joined by Judge Richard C. Tallman, affirmed the finding that subsections (a) and (d) violated the First Amendment, but held that subsections (b) and (c), criminalizing misrepresentations to obtain records and secure employment are not protected speech under the First Amendment and do not violate the Equal Protection Clause. In his partial dissent, Judge Carlos Bea argued that subsection (a), criminalizing misrepresentations to enter a production facility,should survive constitutional review.
What might be called the ethical center of the litigation is exemplified by the famous novel The Jungle (also discussed by the federal district judge) in which Upton Sinclair highlighted conditions in the meat-packing industry and which was based on the author's time working incognito in a packing plant. But the majority opinion also observes that the appeal "highlights the tension between journalists’ claimed First Amendment right to engage in undercover investigations and the state’s effort to protect privacy and property rights in the agricultural industry."
But the doctrinal center of the court's analysis of the Idaho statute criminalizing misrepresentation is the United States Supreme Court's fractured opinion in United States v. Alvarez (2012), holding unconstitutional the federal "stolen valor" statute criminalizing falsely claiming to have been awarded a military medal.
In short, the majority found that subsection (a)'s misrepresentation provision was protected speech under Alvarez subject to exacting scrutiny, which it did not survive, especially given the potential for selective prosecution and its overbreadth. On the other hand, subsection (b) pertaining to obtaining records was not protected speech under Alvarez because unlike subsection (a)'s "false statements made to enter property, false statements made to actually acquire agricultural production facility records inflict a property harm upon the owner, and may also bestow a material gain on the acquirer" and the provision is aimed at conduct. Somewhat similarly, subsection (c)'s criminalization of obtaining employment is not protected speech under Alvarez since the statements were made for material gain. The majority interestingly observed that it was almost as if "the Idaho legislature drafted this provision with Alvarez by its side," but interestingly did not observe that this provision would have criminalized Upton Sinclair as he researched his novel. Finally, subsection (d), the recordings clause, was not within the false statements analysis of Alvarez, but was a content-based prohibition that failed strict scrutiny.
With the proliferation of ag-gag laws, this Ninth Circuit opinion is sure to be relied on by the Tenth Circuit as it considers a district court 2017 decision in Animal Defense Fund v. Herbert holding Utah's ag-gag law unconstitutional under the First Amendment.
[Images from NYPL public domain collection]
In its unanimous panel opinion in Wandering Dago, Inc. v. DeSito, the Second Circuit reversed the district court and held that the the denial of a permit to operate a food truck at the Empire State Plaza in Albany violated the First Amendment as well as the Equal Protection Clause.
Recall from our discussion of the district court's 2016 decision that the issue involved a program in a facility owned by the state of New York and operated by the state Office of General Services (OGS) under Commissioner RoAnn Desito. In the summers of 2013 and 2014, OGS administered "The Empire State Plaza Summer Outdoor Lunch Program," permitting vendors to operate food trucks for limited hours on the plaza, intended to provide "lunch options to the approximately 11,000 State employees who work at Empire State Plaza, as well as for visitors to the Capitol, State Museum, performing arts center" and various monuments and memorials in New York's capital city.
As the list of applicants was being processed, the application for "Wandering Dago" attracted attention of OGS employees, one who "recognized the term 'dago' as 'a highly offensive term for Italians,'" and after conducting a "computer search" to determine whether this was true, his conclusion was not only "confirmed" but it was "revealed" that the term has been "used to refer to people of Spanish and Portuguese descent, as well as Italians." OGS denied the application "on the grounds that its name contains an offensive ethnic slur and does not fit with OGS' policy of providing family-friendly policy." Wandering Dago's application the next year was similarly rejected.
The Second Circuit's opinion, authored by Judge Susan Carney, concluded that the case was clearly governed by the United States Supreme Court's recent decision in Matal v. Tam ("The Slants" case) finding that the "disparagement" provision in the trademark statute constituted viewpoint discrimination and failed strict scrutiny. The district judge's decision was rendered before the Supreme Court's opinion, but she had rejected the applicability of the en banc Federal Circuit's opinion in In Re Simon Shiao Tam because she concluded the lunch program was a nonpublic forum. For the Second Circuit, however, the rejection of Wandering Dago's application based on viewpoint merited strict scrutiny under the First Amendment whether or not that "speech is categorized as commercial speech, speech in a public forum, or speech in a nonpublic forum."
Moreover, the Second Circuit held that the government's rejection of the lunch truck was not shielded by the doctrines of government speech (or government contractor speech). The district judge had held that the lunch program was "government speech," relying on Walker v. Texas Sons of Confederate Veterans in which the Court found that Texas's program of specialty license plates was government speech and therefore not subject to the First Amendment. The Second Circuit opinion contains a full discussion of the record, but ultimately finds it "implausible" that the public would view the Wandering Dago truck as New York's speech. The Second Circuit again analogized to Matal v Tam, in which the Court rejected a government speech claim. As in Matal, the United States government did not "dream up" the trademarks, it "merely registered them," and similarly here, the New York Office of Government Services did not "dream up" the food truck's branding.
The Second Circuit applied strict scrutiny, even while noting that New York did not argue it could satisfy the standard, in order to "complete the analytical picture." Not surprisingly, the court found that the denial of the permit failed strict scrutiny.
More surprisingly, the Second Circuit also reversed the district judge's grant of summary judgment to the government on the Equal Protection Clause claim. In a brief passage, the court found that there was selective enforcement of the permit scheme with "intent to inhibit or punish the exercise of constitutional rights." This finding rested on New York's granting of permits to other vendors applying to participate in the Lunch Program, including the “Slidin’ Dirty” truck. Thus, the court concluded that Wandering Dago was being discriminated against for its free speech constitutional rights "in branding itself and its products with ethnic slurs."
While it is possible that New York will seek certiorari, it seems more likely that the state will accede to the decision and perhaps change its lunch program to make it less a permit scheme and more a government-sponsored "speech" event.
Wednesday, December 13, 2017
In its opinion in Constitution Party v. Cortes, a Third Circuit panel found fault with the district judge's injunction imposing on the Constitution Party, as well as the other plaintiff small political parties - - - known in the opinion as the Aspiring Parties - - - a requirement of county-based signature-gathering requirements. The case arose out of a challenge to Pennsylvania's scheme for allowing small parties on the ballot. After finding this previous scheme unconstitutional, the district judge considered remedies, eventually adopting the remedy proposed by the Commonwealth of Pennsylvania. Under this scheme, the aspiring parties candidates could be placed on the ballot provided that they gather a certain number of signatures and that these signatures be from 10 different counties (or from 5 counties for some offices) of Pennsylvania's 67 counties.
The issue was whether these county-requirements were unconstitutional vote dilution under the Equal Protection Clause.
Relying on Reynolds v. Sims (1964) and Gray v. Sanders (1963), the panel acknowledged that geographical inequalities in state voting violate the Fourteenth Amendment's Equal Protection Clause, a principle that was extended to signature-gathering requirements for ballot placement in Moore v. Ogilive (1969). The test, from the First Amendment case of Anderson v. Celebrezze (1983), which the court stated applied also to the equal protection context, required the court to
first consider the character and magnitude of the asserted injury to the rights protected . . . that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff’ s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.
The court noted that county-based signature-gathering requirements have "fared poorly" under the Anderson doctrine and discussed cases, it was nevertheless true that in some instances these requirements survived. The focus should be on the "real-world impact" of the voting restrictions. And it is a fact-intensive one.
Looking at the district judge's order, which had been fashioned under significant time pressure before an upcoming election, the Third Circuit panel found the absence of fact-finding fatal. It therefore vacated and remanded the case, noting that the district judge could certainly issue the same or a similar injunction if it engaged in a fact-intensive analysis and found the restrictions constitutional under Anderson.
On remand, it may be difficult for the parties to muster the kind of evidence that would be necessary to demonstrate how the county-specific requirement for signatures satisfy precise state interests that are not undermined by vote dilution.
Monday, December 11, 2017
A third district judge has issued a preliminary injunction against the President's ban on transgender troops in the military. In her opinion in Karnoski v. Trump, United States District Judge Marsha Pechman of the Western District of Washington issued a preliminary injunction on the basis of the plaintiffs' likelihood to succeed on the merits of their Equal Protection, Due Process, and First Amendment claims.
Recall that after several tweets this past July, embedded President Trump issued a Memorandum for the Secretary of Defense and Secretary of Homeland Security through the Office of the Press Secretary directing the halt of accession of transgender individuals into the military and the halt of all resources "to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex." Recall that in October, United States District Judge for the District of Columbia Colleen Kollar-Kotelly in Doe v. Trump partially enjoined the president's actions denying the motion for preliminary injunction regarding the Sex Reassignment Directive based on a lack of standing and granting the motion for preliminary injunction regarding the Accession and Retention Directives. Recall that in November, United States District Judge Marvin Garvis of the District of Maryland in Stone v. Trump issued a preliminary injunction against the United States military's ban on transgender troops and resources for "sex-reassignment" medical procedures.
In Karnoski, Judge Pechman finds that the individual plaintiffs, the organizational plaintiffs, and the State of Washington all have standing to challenge the Presidential Memorandum and that the claims are ripe. She does grant the motion to dismiss as to the procedural due process claim.
On the merits, Judge Karnoski's analysis is succinct. She concludes that the policy "distinguishes on the basis of transgender status, a quasi-suspect classification, and is therefore subject to intermediate scrutiny." She then states that while the government defendants "identify important governmental interest including military effectiveness, unit cohesion, and preservation of military resources, they failed to show that the policy prohibiting transgender individuals from serving openly is related to the achievements of those interests." Indeed, she concludes, the reasons proffered by the President are actually contradicted by the studies, conclusions, and judgment of the military itself," quoting and citing Doe v. Trump.
Departing from the earlier cases, Judge Pechman also finds the plaintiffs have a likelihood of success on a substantive due process claim based on a fundamental liberty interest:
The policy directly interferes with Plaintiffs' ability to define and express their gender identity, and penalizes plaintiffs for exercising their fundamental right to do so openly by depriving them of employment and career opportunities.
On the First Amendment claim, Judge Pechman concludes that the "policy penalizes transgender service members but not others for disclosing their gender identity, and is therefore a content based restriction."
She then quickly finds that on balance, the equities weigh in favor of the preliminary injunction.
With this third court finding the Presidential Memorandum has constitutional deficiencies, the transgender ban is unlikely to go into effect by January 1. Additionally, the Pentagon has reportedly announced that the ban will not take effect.
Tuesday, November 21, 2017
In his opinion in Stone v. Trump, United States District Judge Marvin Garvis of the District of Maryland isued a preliminary injunction against the United States military's ban on transgender troops and resources for "sex-reassignment" medical procedures.
Recall that after several tweets this past July (which Judge Garvis embeds in the opinion), President Trump issued a Memorandum for the Secretary of Defense and Secretary of Homeland Security through the Office of the Press Secretary directing the halt of accession of transgender individuals into the military and the halt of all resources "to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex."
Recall also that last month in Doe v. Trump, United States District Judge for the District of Columbia Colleen Kollar-Kotelly partially enjoined the president's actions denying the motion for preliminary injunction regarding the Sex Reassignment Directive based on a lack of standing and granting the motion for preliminary injunction regarding the Accession and Retention Directives.
Judge Garvis has ordered a complete preliminary injunction. Unlike Judge Kollar-Kotelly in Doe, Judge Garvis found that several plaintiffs in Stone had standing regarding the Sex Reassignment Directive which takes effect March 23. Specifically, Judge Garvis found that it highly unlikely that plaintiffs Stone and Cole would be able to complete their medical plan before that date and that it was "at the very least plausible" that any policy exceptions would be applied to their scheduled post-March-23rd surgeries.
As for the merits, and the likelihood of success, Judge Garvis agreed with Doe. Judge Garvis discussed the Fifth Amendment protection of equal protection as applied to the military and found reason not to apply military deference, specifically mentioning the presidential tweets:
There is no doubt that the Directives in the President’s Memorandum set apart transgender service members to be treated differently from all other military service members. Defendants argue that deference is owed to military personnel decisions and to the military’s policymaking process. The Court does not disagree. However, the Court takes note of the Amici of retired military officers and former national security officials, who state “this is not a case where deference is warranted, in light of the absence of any considered military policymaking process, and the sharp departure from decades of precedent on the approach of the U.S. military to major personnel policy changes.” President Trump’s tweets did not emerge from a policy review, nor did the Presidential Memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest. Based on the circumstances surrounding the President’s announcement and the departure from normal procedure, the Court agrees with the D.C. Court that there is sufficient support for Plaintiffs’ claims that “the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.”
Similarly and succinctly, Judge Garvis found an equal protection violation:
The Court finds persuasive the D.C. Court’s reasons for applying intermediate scrutiny: transgender individuals appear to satisfy the criteria of at least a quasi-suspect classification, and the Directives are a form of discrimination on the basis of gender. The Court also adopts the D.C. Court’s reasoning in the application of intermediate scrutiny to the Directives and finds that the Plaintiffs herein are likely to succeed on their Equal Protection claim.
However, Judge Garvis also based the equal protection violation on a finding of failure to satisfy "rational basis" (or perhaps rational basis "with bite") review:
Moreover, the Court finds that, based on the exhibits and declarations currently on the record, the Directives are unlikely to survive a rational review. The lack of any justification for the abrupt policy change, combined with the discriminatory impact to a group of our military service members who have served our country capably and honorably, cannot possibly constitute a legitimate governmental interest. See U. S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973).
Thus, the Trump Administration now has two district judge opinions to appeal should it desire to pursue its new policies limiting transgender service members.
Monday, October 30, 2017
In an Order and Opinion in Doe v. Trump, United States District Judge for the District of Columbia Colleen Kollar-Kotelly partially enjoined the president's actions to limits the service of transgender persons in the United States military. Judge Kollar-Kelly denied the motion for preliminary injunction regarding the Sex Reassignment Directive, but granted the motion for preliminary injunction regarding the Accession and Retention Directives.
Recall that this lawsuit, filed by lawyers for the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates and Defenders (GLAD) is one of several complaints challenging the president's military action, and included claims for a violation of equal protection, due process, and a nonconstitutional argument of equitable estoppel.
Judge Kollar-Kotelly's 76 page opinion, which begins with a recitation of the President's "statement via Twitter" on July 26, 2017, announcing that “the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.” This was followed almost a month later by the President's Memorandum for the Secretary of Defense and Secretary of Homeland Security through the Office of the Press Secretary directing the halt of accession of transgender individuals into the military and the halt of all resources "to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex." The President's Twitter statement and the subsequent Presidential memorandum are the centerpiece of the Government's argument that the plaintiffs lack standing and that their claims are not ripe under Article III.
Judge Kollar-Kotelly wrote:
Defendants have moved to dismiss this case, principally on the basis that the Court lacks jurisdiction. Although highly technical, these jurisdictional arguments reduce to a few simple points: the Presidential Memorandum has not effected a definitive change in military policy; rather, that policy is still subject to review; until that review is complete, transgender service members are protected; and any prospective injuries are too speculative to require judicial intervention.
These arguments, while perhaps compelling in the abstract, wither away under scrutiny.
Judge Kollar-Kotelly's opinion then spends the majority of the opinion discussing the standing and ripeness issues. As to the Surgery challenge, the opinion concludes that "none of the Plaintiffs have demonstrated an injury in fact with respect to the Sex Reassignment Surgery Directive," because none of the "Plaintiffs have demonstrated that they are substantially likely to be impacted by the Sex Reassignment Surgery Directive" In fact, the plaintiffs' medical procedures would be performed. However, there was standing on the Accession and Retention Directives because although an Interim Guidance possibly protects some transgender service members and allows for waivers,
The President controls the United States military. The directives of the Presidential Memorandum, to the extent they are definitive, are the operative policy toward military service by transgender service members.
Moreover, "the injury in fact element of standing in an equal protection case is the denial of equal treatment resulting from the imposition of the barrier.”
Compared to the extensive analysis of the Article III issues, Judge Kollar-Ketelly's analysis of the equal protection claim based on the Fifth Amendment is much more succinct. The opinion first determines the level of scrutiny, deciding on intermediate scrutiny for two reasons.
First, "on the current record, transgender individuals—who are alone targeted for exclusion by the Accession and Retention Directives—appear to satisfy the criteria of at least a quasi-suspect classification," considering whether they have "experienced a ‘history of purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities," and whether they have been as a group “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process," and whether the group “exhibit[s] obvious, immutable, or distinguishing characteristics that define them as a discrete group.” Judge Kollar-Ketelly found that transgendered people satisfied these criteria, noting that although there was no binding precedent on this issue, other courts had reached similar conclusions and citing Evancho v. Pine-Richland Sch. Dist.
Second, Judge Kollar-Ketelly was "also persuaded that the Accession and Retention Directives are a form of discrimination on the basis of gender, which is itself subject to intermediate scrutiny. It is well-established that gender-based discrimination includes discrimination based on non- conformity with gender stereotypes."
In the application of intermediate scrutiny, Judge Kollar-Ketelly recited the rule of United States v. Virginia (VMI) (1996), and held that the Accession and Retention Directives relied on overbroad stereotypes and were not substantially related to the Government's stated interests. The opinion then considered the question of deference in the military context:
Nonetheless, given the deference owed to military personnel decisions, the Court has not based its conclusion solely on the speculative and overbroad nature of the President’s reasons. A second point is also crucial. As far as the Court is aware at this preliminary stage, all of the reasons proffered by the President for excluding transgender individuals from the military in this case were not merely unsupported, but were actually contradicted by the studies, conclusions and judgment of the military itself. As described above, the effect of transgender individuals serving in the military had been studied by the military immediately prior to the issuance of the Presidential Memorandum. In connection with the working group chaired by the Under Secretary of Defense for Personnel and Readiness, the RAND National Defense Research Institute conducted a study and issued a report largely debunking any potential concerns about unit cohesion, military readiness, deployability or health care costs related to transgender military service. The Department of Defense Working Group, made up of senior uniformed officers and senior civilian officers from each military department, unanimously concluded that there were no barriers that should prevent transgender individuals from serving in the military, rejecting the very concerns supposedly underlying the Accession and Retention Directives. In fact, the Working Group concluded that prohibiting transgender service members would undermine military effectiveness and readiness. Next, the Army, Air Force and Navy each concluded that transgender individuals should be allowed to serve. Finally, the Secretary of Defense concluded that the needs of the military were best served by allowing transgender individuals to openly serve. In short, the military concerns purportedly underlying the President’s decision had been studied and rejected by the military itself. This highly unusual situation is further evidence that the reasons offered for the Accession and Retention Directives were not substantially related to the military interests the Presidential Memorandum cited.
the President abruptly announced, via Twitter—without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans—that all transgender individuals would be precluded from participating in the military in any capacity. These circumstances provide additional support for Plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.
Finding a likelihood of success on the merits of the equal protection claim, the opinion quickly dispatched the other considerations used in evaluating the issuance of a preliminary injunction, finding them met.
Expect the government to appeal as well as opinions in the other pending cases.
Wednesday, October 4, 2017
Trying to get up to speed on the law of redistricting and gerrymandering after the oral argument in Gill v. Whitford?
A terrific source is the Congressional Research Service Report, Congressional Redistricting Law: Background and Recent Court Rulings, by L. Paige Whitaker, from March 2017.
Like all CRS reports, this one is relatively brief (23 pages) and written for an intelligent but not necessarily fully conversant audience. The discussion of partisan gerrymandering on pages 13-16 provides an excellent background to Whitford, including a discussion of Vieth v. Jubelirer (2004) and Justice Kennedy's pivotal role:
The deciding vote in Vieth, Justice Kennedy, concluded that while the claims presented in that case were not justiciable, he “would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.” Further, Justice Kennedy observed, that while the appellants in this case had relied on the Equal Protection Clause as the source of their substantive right and basis for relief, the complaint also alleged a violation of their First Amendment rights. According to Justice Kennedy, the First Amendment may be a more relevant constitutional provision in future cases that claim unconstitutional partisan gerrymandering because such claims “involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.” In contrast, Justice Kennedy noted, an analysis under the Equal Protection Clause emphasizes the permissibility of a redistricting plan’s classifications. When race is involved, Justice Kennedy reasoned, examining such classifications is appropriate because classifying by race “is almost never permissible.” However, when the issue before a court is whether a generally permissible classification—political party association—has been used for an impermissible purpose, the question turns on whether the classification imposed an unlawful burden, Justice Kennedy maintained. Therefore, he concluded that an analysis under the First Amendment “may offer a sounder and more prudential basis for intervention” by concentrating on whether a redistricting plan “burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association.”
[footnotes omitted]. The CRS Report also has a great discussion of the three-judge court decision in Gill v. Whitaker.
In general, the report "analyzes key Supreme Court and lower court redistricting decisions addressing four general topics":
(1) the constitutional requirement of population equality among districts;
(2) the intersection between the Voting Rights Act and the Equal Protection Clause; (although the Report was produced before the Court's decision in Cooper v. Harris it discusses the then-pending case);
(3) the justiciability of partisan gerrymandering; and
(4) the constitutionality of state ballot initiatives providing for redistricting by independent commissions.
An objective and great resource for anyone working on these issues in constitutional law.
Tuesday, October 3, 2017
In oral arguments today in Gill v. Whitford, the United States Supreme Court confronted the constitutionality of gerrymandering on the basis of political party.
Recall that in an extensive opinion the three-judge court concluded that Wisconsin's "gerrymandering" of districts was unconstitutional, rejecting the notion that the Equal Protection Clause's application "must be limited to situations where the dilution is based on classifications such as race and population." Instead, the three-judge court ruled that the First Amendment and Equal Protection Clause, together, "prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds."
The question of whether the issue was one of Equal Protection or First Amendment permeated the oral argument, in part because of the standing hurdle, with Justice Kennedy posing the initial question asking the attorney for Wisconsin (and Gill) to assume that the Court had "decided that this is a First Amendment issue, not an equal protection issue." Later Justice Kennedy asked the attorney for the Wisconsin State Senate as amici curiae who had been allotted time in oral argument the question in a more straightforward manner: "Is there an equal protection violation or First Amendment violation?" assuming standing. In the argument for the challengers to the state redistricting scheme, the attorney for the appellees Paul Smith seemed to lean toward the First Amendment regarding standing, but also stated there was not "anything unusual about using the First Amendment and the Fourteenth Amendment to regulate the abusive management of state elections by state government."
How a court would regulate (or even determine) whether state government's regulation was "abusive" is one of the central questions, no matter the doctrinal frame. Are there manageable judicial standards? Does the "efficiency gap" [EG] provide those standards? Justice Breyer sought to provide a framework early in the argument:
So I'd have step one. The judge says,Was there one party control of the redistricting? If the answer to that is no, say there was a bipartisan commission, end of case. Okay?
Step two, is there partisan asymmetry? In other words, does the map treat the political parties differently? And a good evidence of that is a party that got 48 percent of the vote got a majority of the legislature. Other evidence of that is what they call the EG, which is not quite so complicated as the opposition makes it think. Okay? In other words, you look to see.
Question 3, is -- is there going to be persistent asymmetry over a range of votes? That is to say one party, A, gets 48 percent, 49 percent, 50 percent, 51, that's sort of the S-curve shows you that, you know, whether there is or is not. And there has to be some.
And if there is, you say is this an extreme outlier in respect to asymmetry? And then, if all those -- the test flunks all those things, you say is there any justification, was there any other motive, was there any other justification?
Now, I suspect that that's manageable.
Justice Gorsuch returned to Breyer's standards later in the argument, essentially asking counsel for the challengers what the limiting principle would be so that every district would not be subject to litigation.
Justice Kagan also sought a limiting principle, especially since the redistricting map at issue was so problematical. Yet Justice Kagan contended that the science of the redistricting was a science - - - and settled and understandable - - - although Chief Justice Roberts referred to the EG as "sociological gobbledygook." The Chief Justice also noted that the EG "doesn't sound like language in the Constitution," and that the "intelligent man on the street" would view the Court as being political - - - "the Supreme Court preferred the Democrats over the Republicans" - - - which would cause "serious harm to the status and integrity of the decisions of this Court."
For Justices Ginsburg and Sotomayor, the central concern seemed to be protecting what Ginsburg called "the precious right to vote" and what Sotomayor criticized as "stacking the deck," asking about the political value of gerrymandering at all. Justice Sotomayor also described the repeated map-making and redrawing of districts until the Wisconsin map was as partisan as it could possibly be. She asked the attorney for Wisconsin why the legislators didn't use one of the earlier maps. He answered: "Because there was no constitutional requirement that they do so." She responded: "That's the point."
As always, it is unclear from oral argument what the Court might do, but there did seem to be recognition of the problem of gerrymandering and the possibility of manageable standards with a limiting principle for many of the Justices.
Wednesday, September 20, 2017
In its opinion in McLaughlin v. McLaughlin (Jones), the Arizona Supreme Court interpreted the United States Constitution to require that the statutory presumption of parentage applies to a woman in a same-sex marriage in the same way as would to a man in a different-sex marriage.
The Arizona Supreme Court relied on the United States Supreme Court's 2015 decision in Obergefell v. Hodges as well as the Court's per curiam opinion a few months ago in Pavan v. Smith, reversing the Arkansas Supreme Court's divided decision to deny a same-sex parent's name be listed on the child's birth certificate. The Arizona Supreme Court in McLaughlin, echoing Pavan, quoted Obergefell as constitutionally requiring same-sex married couples be afforded the “constellation of benefits the States have linked to marriage.”
The majority opinion of the Arizona Supreme Court, authored by Chief Justice Scott Bales, rejected the interpretation of Obergefell advanced by Kimberly McLaughlin, the biological mother, that "Obergefell does not require extending statutory benefits linked to marriage to include same-sex couples; rather, it only invalidates laws prohibiting same-sex marriage." Instead, Chief Justice Bales wrote that that such a "constricted reading is precluded by Obergefell itself ad the Supreme Court's recent decision in Pavan v. Smith." Moreover, as in Pavan, the statute itself did not rest on biology but sought to sideline it. The marital presumption assigns paternity based on marriage to the birth mother, not biological relationship to the child. Thus, any differential treatment cannot be justified and the statute was unconstitutional as applied.
As a remedy, Judge Bales' opinion concluded that the extension of the presumption rather than striking the presumption was proper, relying on yet distinguishing the Court's recent decision in Sessions v. Morales-Santana. It was on this issue that one Justice dissented, contending that the court was rewriting the statute. Two other Justices wrote separately to concur on the remedy issue, noting that the majority must follow the United States Supreme Court and "circumstances require us to drive a remedial square peg into a statutory round hole," but "nothing in the majority opinion prevents the legislature from fashioning a broader or more suitable solution by amending or revoking" the statute.
Perhaps the Arizona legislature will see fit to abolish the marital presumption for all children?
September 20, 2017 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)
Monday, September 11, 2017
Recall that last week, fifteen states and the District of Columbia filed New York v. Trump challenging the rescission of DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood. The rescission was promised by President Trump, announced by Attorney General Jefferson Sessions, now in a Memorandum from the Department of Homeland Security, although some of the details of the rescission remain murky.
Today, several other states - - - California, Maine, Maryland, and Minnesota - - - filed a complaint in the Northern District of California, California v. Department of Homeland Security, also challenging the DACA rescission making similar but not identical arguments. In the California challenge, equal protection is the sixth of the six counts, with no mention of anti-Mexican animus in the allegations. Instead, the equal protection claim contends that "rescission of DACA violates fundamental conceptions of justice by depriving DACA grantees, as a class, of their substantial interests in pursuing a livelihood to support themselves and fu1ther their education."
However, like New York v. Trump, the California complaint includes a challenge based on the Fifth Amendment's Due Process Clause, contending in its first cause of action that:
Given the federal government's representations about the allowable uses of information provided by DACA applicants, Defendants' change in policy on when to allow the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement, including identifying, apprehending, detaining, or deporting non- citizens, is fundamentally unfair.
This "informational use" due process claim is buttressed by the California complaint's fifth cause of action sounding in equitable estoppel, a claim not made in the New York complaint. Claims similar to the New York complaint include violations of the Administrative Procedure Act and the Regulatory Flexibility Act. Factual allegations supporting these causes of action include references to the President's tweets as advancing rationales for the rescission that are absent or contrary to the Homeland Security memorandum, thus making the rescission arbitrary and capricious.
Additionally, last week in a separate complaint in Regents of the University of California v. Department Homeland Security, also filed in the Northern District of California, another challenge to the DACA rescission was filed by named plaintiff, Janet Napolitano, now Chancellor of the University of California, but also former Secretary of the Department of Homeland Security. In the University of California (UC) complaint, there is no equal protection claim, and the due process claim is third of three claims for relief and sounds in procedural due process:
¶69. The University has constitutionally-protected interests in the multiple educational benefits that flow from a diverse student body. Thousands of DACA students have earned prized places as undergraduate and graduate students at the University of California through their record of high— even extraordinary—personal achievement in high school and college. In reliance on DACA, the University has chosen to make scarce enrollment space available to these students and to invest in them substantial time, financial aid, research dollars, housing benefits, and other resources, on the expectation that these students will complete their course of study and become productive members of the communities in which the University operates, and other communities throughout the nation. If these students leave the University before completing their education, UC will lose the benefits it derives from their contributions, as well as the value of the time and money it invested in these students with the expectation that they would be allowed to graduate and apply their talents in the United States job market.
¶70. UC students who are DACA recipients also have constitutionally-protected interests in their DACA status and the benefits that come from that status, including the ability to work, to pursue opportunities in higher education, to more readily obtain driver’s licenses and access lines of credit, to obtain jobs, and to access certain Social Security and Medicare benefits.
¶71. The Rescission and actions taken by Defendants to rescind DACA unlawfully deprive the University and its students of these and other constitutionally-protected interests without due process of law. Such deprivation occurred with no notice or opportunity to be heard.
The other two causes of action in the UC complaint are based on the Administrative Procedure Act, with the first claim for relief contending the rescission is "arbitrary and capricious" and the second cause of action objecting to lack of notice and comment. However, the "arbitrary and capricious" claim for relief does include a reference to the Fifth Amendment:"The Rescission and actions taken by Defendants to rescind DACA are arbitrary and capricious, an abuse of discretion, and not in accordance with law because, among other things, they are contrary to the constitutional protections of the Fifth Amendment."
It may be that even more constitutional and statutory challenges to DACA are forthcoming as protests against the rescission continue.
[image: DACA Rescission Protest at Trump Tower, NYC, September 2017, photo by via]
Friday, September 8, 2017
In a lengthy opinion in Petrello v. City of Manchester, United States District Judge Landya McCafferty found the City's efforts to control "panhandling" through its enforcement of a disorderly conduct statute and through an ordinance directed at panhandling both violated the First Amendment.
Ms. Petrello was arrested under the disorderly conduct statute although her panhandling was "passive" and she was not in the roadway. Any "disorder" was actually caused by a third party driving a Cadillac who stopped the car to hand something to Petrello, who did not step into the road.
The Cadillac then drove through the intersection, but the light turned red and the Jeep was unable to make it through the intersection. If the Cadillac had not stopped at the green light, then the Jeep would have made it through the intersection while the light was still green and would not have had to wait for the next green light.
Judge McCafferty found that the Manchester Police Department (MPD) policy was a sufficient basis for liability. The policy was clearly directed at enforcing the statute against even passive panhandling and under the First Amendment, she stated that the policy was content-neutral, because the discussions of the anti-handling policies were "not in terms of any message the panhandler is conveying, such as requests for donations." Nevertheless, she reasoned that "in the end," she "need not resolve the question of whether the MPD Policy is content based, because it does not survive scrutiny as a content-neutral regulation." Applying the doctrine of Ward v. Rock Against Racism (1989), Judge McCafferty found that while public safety and free flow of traffic are significant government interests, the policy burdens more speech than necessary. Essential to this conclusion was the fact that the statute was applied to Ms. Petrello who did not step into the street, and that her speech should not be curtailed by third party driving a Cadillac or traffic lights that turned red too quickly. Judge McCafferty issued an injunction and ruled this could proceed to trial on damages.
In its other attempt to curtail panhandling. the City of Manchester passed an ordinance providing:
“No person shall knowingly distribute any item to, receive any item from, or exchange any item with the occupant of any motor vehicle when the vehicle is located in the roadway."
Again, Judge McCafferty found the ordinance content-neutral and again that the ordinance violated the First Amendment. Again, Judge McCaffery found that while the government interests were valid, the Ordinance was not sufficiently tailored to those interests for four main reasons: (1) the Ordinance bans roadside exchanges that do not obstruct traffic or pose safety risks; (2) the Ordinance is geographically overinclusive because it applies citywide; (3) the Ordinance is underinclusive because it penalizes only pedestrians, not motorists; and (4) the City has less speech- restrictive means available to address its concerns. In reaching these conclusions, Judge McCafferty relied in part on the Ninth Circuit en banc decision in Comite de Jornaleros de Redondo Beach v. City of Redondo Beach (2011) regarding day labor solicitation.
The opinion also addresses Petrello's standing to challenge the ordinance since she was not charged under it, but only the disorderly conduct statute, finding that she satisfied Article III standing although the City argued she had no imminent injury. The opinion rejects Petrello's Fourth Amendment claim based on her original arrest and an equal protection challenge to the implementation of the statute.
The City could certainly appeal to the First Circuit, but it probably has little chance of success.
[image: William-Adolphe Bouguereau, Petites Mendiantes (1880) via]