Wednesday, October 4, 2017

Daily Read: Redistricting and Gerrymandering Primer

 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.

 

October 4, 2017 in Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Teaching Tips | Permalink | Comments (0)

Tuesday, October 3, 2017

SCOTUS Hears Arguments on Constitutionality of Partisan Gerrymandering

 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.

6a00d8341bfae553ef01bb09c9853b970d-800wiJustice 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.

 [image via] 

 

October 3, 2017 in Elections and Voting, Equal Protection, First Amendment, Oral Argument Analysis, Race, Standing, Supreme Court (US) | Permalink | Comments (1)

Wednesday, September 20, 2017

Arizona Supreme Court Accords Parental Status to Same-Sex Married Partner

 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. Smithreversing 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?

1600px-Fountain_of_the_Mothers_of_Macedonia

 image via

 

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

More Challenges to DACA Rescission

 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.

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[image: DACA Rescission Protest at Trump Tower, NYC, September 2017, photo by Rhododendrites via]

 

 

September 11, 2017 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Procedural Due Process, Race, Standing | Permalink | Comments (0)

Friday, September 8, 2017

New Hampshire Federal Judge Finds Panhandling Laws Violate First Amendment

 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.

William-Adolphe_Bouguereau_(1825-1905)_-_Petites_Mendiantes_(1880)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]

 

 

September 8, 2017 in Criminal Procedure, Equal Protection, First Amendment, Fourth Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, September 6, 2017

States Challenge DACA Rescission in New York v. Trump

 In a Complaint filed today in the Eastern District of New York in New York v. Trump, fifteen states and the District of Columbia have challenged 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, and is now in a Memorandum from the Department of Homeland Security, although some of the details of the rescission remain murky.  The complaint describes the rescission as "animus-driven."

The first two causes of action of the five total causes of action in the 58 page Complaint allege constitutional infirmities. 

The first cause of action is based on the Equal Protection component of the Due Process Clause of the Fifth Amendment, and alleges that the rescission targets individuals based on their national origin and is based, at least in part, by the desire to harm a particular group. Paragraphs 239-252 detail the statements by Trump, both as a candidate and as President, expressing anti-Mexican sentiments.  Part of these allegations include the controversial pardon of former Maricopa County, Arizona Sheriff Joe Arpaio. As for the timing of the rescission, the complaint also contains allegations regarding Texas, alleging that a "demand that President Trump eliminate DACA is part of a history of intentional discrimination against Latinos/Hispanics by the State of Texas" (¶256) and then detailing federal court findings that Texas has been found liable for "engaging in unlawful discrimination based on race and/or national origin."  Among the cases cited is the recent Perez v. Abbott concerning redistricting.

The second cause of action sounds in Due Process, arguing a breach of "fundamental fairness" relating to information use.  Specifically, ¶278 avers:

Given the federal government’s representations about the allowable uses of information provided by DACA applicants, a refusal to prohibit 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.

Two other causes of action relate to the Administrative Procedure Act - - - arbitrary and capricious action and failure to follow notice and comment - - - while the final cause of action is based on the Regulatory Flexibility Act, requiring federal agencies to "analyze the impact of rules they promulgate on small entities and publish initial and final versions of those analyses for comment."

The extensive allegations in the complaint by individual states include statements regarding each state's harm if DACA were rescinded in an effort to establish each state's standing.  In addition to New York, the plaintiffs are Massachusetts, Washington, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia. Generally, the allegations pertaining to each states detail the effect on their state colleges and universities, state companies, and state economies.

The complaint is a serious challenge to the DACA rescission and in some ways is similar to the ongoing state challenges to the so-called Muslim travel ban, another highly controversial Trump administration action still in litigation.

Rally_Against_the_Immigration_Ban_(32487618142)[image via]

 UPDATE: Additional complaints discussed here.

September 6, 2017 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Fifth Amendment, Standing | Permalink | Comments (0)

Tuesday, August 29, 2017

Alito Stays Three-Judge Court Ruling on Texas Redistricting Violations

 In an exceedingly brief Order signed only by Associate Justice Samuel Alito, the United States Supreme Court in Abbott v. Perez, stated:

UPON CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the order of the United States District Court for the Western District of Texas, case No. SA-11-CV-360, entered August 15, 2017, is hereby stayed pending receipt of a response, due on or before Tuesday, September 5, 2017, by 3 p.m., and further order of the undersigned or of the Court.

Recall that the three-judge court, after an extensive opinion, ultimately directed the Texas Attorney General to provide a "written advisory within three business days stating whether the Legislature intends to take up redistricting in an effort to cure these violations and, if so, when the matter will be considered." 

As we discussed, the extensive opinion by the three judge court found constitutional violations, including intentional discrimination, but also rejected several of the challengers' claims.

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[image: Caricature of Associate Justice Alito by Donkey Hotey via ]

 

August 29, 2017 in Current Affairs, Elections and Voting, Equal Protection, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0)

Monday, August 28, 2017

Lawsuits Filed Against Transgender Troop Ban

 Late Friday August 25, 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."  By Monday, there were at least three lawsuits challenging the action on constitutional grounds.

A month before, Trump had tweeted his thoughts regarding transgender individuals in the military, reportedly taking military officials by surprise.

TWEETS

Soon after the tweets, the complaint in Doe v. Trump was filed by lawyers for the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates and Defenders (GLAD) in the District Court for the District of Columbia, challenging any military action on the basis of a violation of equal protection, due process, and a nonconstitutional argument of equitable estoppel.

This complaint is now joined by two others: The complaint in Stone v. Trump was filed by lawyers for the ACLU in the United States District Court for the District of Maryland, challenging the 3 policies of the military ban - - - existing troops, enlistment of new troops, and medical care - - - as well as the policies taken as a whole.  Again, the two constitutional issues are equal protection and due process. The complaint in Karnoski v. Trump was filed by lawyers for Lambda Legal Defense and Education Fund in the United States District Court for the Western District of Washington, challenging the policy on the basis of equal protection, due process, as well as the First Amendment's free speech clause.

On the core challenge of equal protection - - - as applied to the federal government through the Fifth Amendment - - - the complaints vary in their detail and possible theories.  In Doe, the NCLR and GLAD complaint, paragraph 71 reads: "The categorical exclusion of transgender people from military service lacks a rational basis, is arbitrary, and cannot be justified by sufficient federal interests." In Stone, the ACLU complaint, paragraph 140 contends that transgender classifications should be treated as sex classifications, deserving heightened scrutiny, and additionally in the next paragraph that transgender status itself warrants heightened scrutiny because "men and women who are transgender, as a class" have historically been subject to discrimination, have a defining characteristic that frequently bears no relation to an ability to contribute to society, exhibit immutable or distinguishing characteristics that define them as a discrete group, and are a minority with relatively little political power.  In Karnoski, the complaint contends that in addition to sex-discrimination, discrimination on the basis of transgender status "bears all the indicia of a suspect classification requiring strict scrutiny by the courts," enumerating similar criteria including history of discrimination, discrete and insular minority, no relation to ability to contribute to society, and arguing the characteristic sometimes expressed as immutability in stating that "gender identity is a core, defining trait" so "fundamental to one's identity and conscience that a person should not be required to abandon it as a condition of equal treatment."

However, whatever standard of scrutiny is applied, all the complaints contend that there is not a sufficient government interest in the policy - - - an argument that may well lead into judicial inquiry into Trump's unorthodox announcement on Twitter as well as any details of thoughtful decision-making.

While there has been some reporting that military officials have discretion in implementing Trump's directives, professors of military law have issued a worth-reading policy statement that the discretion is quite limited; they also argue that the directives are discriminatory and based on inaccuracies.

This litigation is certain to accelerate. Expect more action from the NCLR and GLAD action filed before the Friday policy announcement and requests for preliminary relief. 

 

August 28, 2017 in Current Affairs, Due Process (Substantive), Equal Protection, First Amendment, Gender, Sexuality, Speech, Theory | Permalink | Comments (0)

Tuesday, August 22, 2017

District Judge Finds Arizona Anti-Ethnic Studies Law Violates Fourteenth and First Amendments

 In his opinion in González v. Douglas, United States Circuit Judge A. Wallace Tashima, sitting by designation in the District of Arizona, found that Arizona Revised Statutes §§15-111 and 15-112, the so-called anti-ethnic studies law eliminating the Tucson Unified School District's Mexican-American Studies (MAS) program violated the Fourteenth and First Amendments.

Recall that the law, passed in 2010, prohibits any school or charter school from including in its program of instruction any courses or classes that:

  • Promote resentment toward a race or class of people; 
  • Are designed primarily for pupils of a particular ethnic group; or
  • Advocate ethnic solidarity instead of the treatment of pupils as individuals

Recall also that in 2013, Judge Tashima upheld most of the statute in a facial challenge based on the First and Fourteenth Amendments on summary judgment.

On appeal, in Arce v. Douglas, the Ninth Circuit concluded that subsections (3) and (4) of the statute, while not facially discriminatory, raised Equal Protection Clause issues because of evidence of their discriminatory purpose in enactment or enforcement, and found there might be First Amendment viewpoint discrimination, and remanded the case.

In his opinion on remand, Judge Tashima found both an equal protection and First Amendment violation after a non-jury trial in an opinion with extensive findings of fact. As the Ninth Circuit had instructed, Judge Tashima considered the equal protection issue regarding racial intent in light of the Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997) factors:

  • (1) the impact of the official action and whether it bears more heavily on one race than another;
  • (2) the historical background of the decision;
  • (3) the specific sequence of events leading to the challenged action;
  • (4) the defendant’s departures from normal procedures or substantive conclusions; and
  • (5) the relevant legislative or administrative history.

Judge Tashima's opinion carefully analyzes each of the factors. He noted that the anonymous blog posts of  then-Senator John Huppenthal, who  was chairman of the Senate Education Accountability and Reform Committee at the time the statute was passed, were "the most important and direct evidence that racial animus infected the decision to enact A.R.S. § 15-112." Judge Tashima rejected the defendants' argument that Huppenthal’s public statements, which were facially neutral as to race, should be considered more probative of his true intent. Instead,

The blog comments are more revealing of Huppenthal’s state-of-mind than his public statements because the guise of anonymity provided Huppenthal with a seeming safe-harbor to speak plainly. Huppenthal’s use of pseudonyms also shows consciousness of guilt. Had Huppenthal, a public official speaking in a public forum on a public issue, felt that his inflammatory statements were appropriate, he would not have hidden his identity. 


 In looking at the legislative history, Judge Tashima also focused on Huppenthal, who along with other officials used "code words" to refer to Mexican-Americans.  These code words included “Raza,” “un-American,” “radical,” “communist,” “Aztlán,” and “M.E.Ch.a,” were employed as derogatory terms. "In Huppenthal’s own words, the term “Raza” became “shorthand for . . . communicating with Republican primary voters” in the Tucson community." Then, considering the application of the statute to the Tucson program, Judge Tashima noted that Huppenthal had become Superintendent of Public Instruction, with an enforcement process rife with irregularities.  Essentially, it seemed that Huppenthal and other officials, believed they knew what really happened in the classrooms, with no need to investigate or believe evidence contrary to their preconceived notions.  In sum, "the passage and enforcement of the law against the MAS program were motivated by anti-Mexican-American attitudes."

On the First Amendment claim, Judge Tashima relied upon Island Trees Union Free Sch. Dist. No. 26 v. Pico (1982), that there may be a  First Amendment violation if the reasons offered by the state, "though pedagogically legitimate on their face, in fact serve to mask other illicit motivations."  Judge Tashima found that while the "stated policy" of the statute was to "reduce racism in schools, which is a legitimate pedagogical objective," the plaintiffs' argument that this was only a pretextual objective, and that the "statute was in fact enacted and enforced for narrowly political, partisan, and racist reasons was valid, "because both enactment and enforcement were motivated by racial animus" as found in deciding the Fourteenth Amendment claim.

 Given the previous rulings and Judge Tashima's extensive findings of fact including on credibility, the ruling that the enforcement of the statute is unconstitutional may be the final chapter in the lengthy saga of Arizona's anti-ethnic studies statute.
 
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[ image: Painel Paulo Freire by Luiz Carlos Cappellano via]
 
 

August 22, 2017 in Courts and Judging, Equal Protection, First Amendment, Fourteenth Amendment, Race | Permalink | Comments (0)

Tuesday, August 15, 2017

Three Judge Court Finds Fault with Texas Redistricting Plan

 In its extensive and detailed opinion in Perez v. Abbott, a three judge court found problems including intentional racial discrimination in some aspects of Plan C235, the redistricting plan enacted by the Texas Legislature in 2013.

Authored by United States District Judge Xavier Rodriguez, joined by Chief Judge for the Western District of Texas District Judge Garcia, and Fifth Circuit Judge Jerry Smith, the panel opinion is another episode in the ongoing litigation regarding redistricting in Texas.  The opinion itself is an interlocutory order, with the remedial phase to follow.  Additionally, as in most redistricting litigation, there is a mix of determinations under the Voting Rights Act and the Equal Protection Clause.

Perhaps one of the more interesting issues in the case involves the court's findings regarding intentional discrimination. The court considered the Shaw v. Reno racial gerrymandering claims elaborating on the strict scrutiny standard if racial classifications could be proven.The court rejected the state's position that the discriminatory intent inquiry was limited to the drawing of district lines in 2013, but relying on Fifth Circuit precedent found that the challengers 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 court stated:

The decision to adopt the interim plans was not a change of heart concerning the validity of any of Plaintiffs’ claims . . . . {in previous litigation} and was not an attempt to adopt plans that fully complied with the VRA and the Constitution—it was a litigation strategy designed to insulate the 2011 or 2013 plans from further challenge, regardless of their legal infirmities. The letter from then-Attorney General Abbott to Speaker Joe Straus makes the strategy clear: Abbott advised that the “best way to avoid further intervention from federal judges in the Texas redistricting plans” and “insulate the State’s redistricting plans from further legal challenge” was to adopt the interim maps. Thus, Defendants sought to avoid any liability for the 2011 plans by arguing that they were moot, and sought to ensure that any legal infirmities that remained in the 2013 plans were immune from any intentional discrimination and Shaw-type racial gerrymandering claims.

The court did reject some of the challengers other claims, although finding that MALC (a Latino legislative caucus of Texas members in the House of Representatives) had standing, it rejected the claim that there was intentional discrimination in a specific "Latino opportunity district."

The court's summary of its more than 100 page opinion is useful:

  • In Part II, the Court concludes that the racially discriminatory intent and effects that it previously found in the 2011 plans carry over into the 2013 plans where those district lines remain unchanged. The discriminatory taint was not removed by the Legislature’s enactment of the Court’s interim plans, because the Legislature engaged in no deliberative process to remove any such taint, and in fact intended any such taint to be maintained but be safe from remedy. The Legislature in 2013 intentionally furthered and continued the existing discrimination in the plans.
  • In Part IIIA, the Court concludes that Plaintiffs’ § 2 results claims in the DFW {Dallas-Fort Worth} area fail for lack of proof of African-American and Hispanic cohesion.
  • In Part IIIB, the Court finds that the intentional discrimination found in DFW in Plan C185 is remedied in Plan C235, and that Plaintiffs failed to prove that any alleged cracking and packing that remains in DFW was intentionally dilutive.
  • In Part IV, the Court concludes that Plaintiffs’ § 2 results claims in the Houston area fail for lack of proof of African-American and Hispanic cohesion.
  • In Part V, the Court finds that CD23 is a Latino opportunity district and there is no evidence of intentional discrimination/dilution.
  • In Part VI, the Court concludes that the Plan C235 configurations of CD35 and Nueces County/CD27 violate § 2 and the Fourteenth Amendment. These statutory and constitutional violations must be remedied by either the Texas Legislature or this Court.

 The court directed the Texas Attorney General to provide a "written advisory within three business days stating whether the Legislature intends to take up redistricting in an effort to cure these violations and, if so, when the matter will be considered."

Map

 

UPDATE: Stay

August 15, 2017 in Courts and Judging, Elections and Voting, Equal Protection, Federalism, Fifteenth Amendment, Fourteenth Amendment, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, August 10, 2017

Federal Judge Declares Louisiana's Restriction on Non-Native Born Marriage Applicants Unconstitutional

 In an opinion in Vo v. Gee, Senior United States District Ivan L.R. Lemelle declared Louisiana's Act 436 violates both the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

Act 436 amended the requirements to obtain a Louisiana marriage license so that an applicant born outside of the United States must submit a copy of the person's birth certificate under the raised seal or stamp of the vital statistics registration authority of the person's place of birth, with additional requirements if the document is not in English, and a valid and unexpired passport or an unexpired visa accompanied by a Form I-94 issued by the United States, verifying that the applicant is lawfully in the United States.  Viet "Victor" Ahn Vo, naturalized as a United States citizen at the age of 8, was nevertheless denied a marriage license because he did not have a birth certificate.  Vo was born in Indonesia in a refugee camp to parents who were Vietnamese nationals, relocating to Louisiana when Vo was three months of age.

Nypl.digitalcollections.510d47e2-d195-a3d9-e040-e00a18064a99.001.rOn the equal protection issue, Judge Lemelle stated that the "birth certificate provisions that the Louisiana legislature enacted creates classifications that distinguish between United States citizens on the basis of their national origin," and thus merits strict scrutiny, requiring a compelling government interest which the statute serves by narrowly tailored means. Without discussing any interests put forward by the state, Judge Lemelle concluded that the "State of Louisiana fails to demonstrate in their opposition that this classification based on national origin furthers a compelling governmental interest."  The judge therefore concluded there was an equal protection violation.

On the due process challenge, Judge Lemelle cited the "fundamental right to marry" under Obergefell v. Hodges as well as the Zablocki v. Redhail (1978) test of directly and substantially interfering with marriage as warranting strict scrutiny.  The judge rejected Louisiana's claim that a subsequent amendment to the act that allows for a judicial waiver in some cases cures the constitutional defects or rendered the case moot. (Recall that in Zablocki itself the statute allowed a judicial waiver of the bar for past due child support payments as an impediment to marriage).  Instead, Judge Lemelle noted that "the failure of the State of Louisiana to proffer any evidence of why this regulation passes constitutional muster" and held it violated due process.

The bulk of Judge Lemelle's relatively brief opinion addresses the more procedural issues of summary judgment and injunction standards, perhaps because the constitutional issues were clear as Louisiana seemingly conceded. Nevertheless, this is an important opinion regarding the issue of differential treatment for non-native born citizens.

 

 

August 10, 2017 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fundamental Rights, Opinion Analysis, Race | Permalink | Comments (0)

Sunday, August 6, 2017

Seventh Circuit Rebuffs Preliminary Challenge to Same-Day Voter Registration Law

The Seventh Circuit ruled last week that plaintiffs were unlikely to succeed on the merits of their challenge to Illinois's same-day voter-registration law. The ruling sends the case back to the district court for proceedings on the merits, although the ruling strongly suggests that the law is constitutional.

The case, brought by a Republican congressional candidate in the 2016 election and a county Republican party, alleged that Illinois's same-day registration law violated the Equal Protection Clause, because an opt-out provision would disadvantage voters in smaller counties, and thus comparatively boost Democratic voter turnout.

The law requires counties to provide same-day voter registration. But it includes an opt-out for smaller counties that don't have an electronic pollbook. Still, the law requires those counties to offer election-day registration at "the election authority's main office," as well as at "a polling place in each municipality where 20% or more of the county's residents reside if the election authority's main office is not located in that municipality."

The plaintiffs sought and received a preliminary injunction in the district court, but the Seventh Circuit stayed it before the 2016 election. Last week the Seventh Circuit vacated the injunction altogether.

The court said that the law didn't severely burden voters' constitutional right to vote, and so the district court improperly applied strict scrutiny. The court went on to say that the plaintiffs didn't demonstrate a likely success on the merits even under the less rigorous balancing test under Burdick v. Takushi. It concluded:

Even though [the Illinois law] does not force quite as many options on the smaller counties as it does on the 20 largest counties, it permits every county to adopt the default same-day rules, and it provides realistic same-day options even in the smaller places. This, couples with the lack of any data about which groups are disadvantaged and how, dooms the injunction.

August 6, 2017 in Cases and Case Materials, Elections and Voting, Equal Protection, News, Opinion Analysis | Permalink | Comments (0)

Monday, June 26, 2017

SCOTUS Reverses Arkansas Supreme Court Denial of Birth Certificate Listing Both Same-Sex Parents

 In a brief per curiam opinion in Pavan v. Smith, the Court reversed the Arkansas Supreme Court's closely divided opinion regarding same-sex parents being listed on a child's birth certificate.  Recall that Arkansas' Supreme Court's majority opinion found that the United States Supreme Court's 2015 decision in Obergefell v. Hodges declaring same-sex marriage bans unconstitutional was inapposite.  The Court, like the dissenting justices in the Arkansas opinion, concluded that Obergefell was determinative.  The Court's per curiam opinion stated that the Arkansas Supreme Court's opinion "denied to married same-sex couples access to the 'constellation of benefits that the State has linked to marriage,'" quoting Obergefell.

Importantly, the Court noted, that "when a married woman in Arkansas conceives a child by means of artificial insemination, the State will—indeed, must—list the name of her male spouse on the child’s birth certificate." 

Arkansas has thus chosen to make its birth certificates more than a mere marker of biological relationships: The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents. Having made that choice, Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.

Thus, the Court's opinion in Pavan makes it clear that Obergefell applies not merely to marriage, but also to situations in which the marital relationship affects children.

June 26, 2017 in Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)

Monday, June 12, 2017

SCOTUS holds Gender-Differential in Unwed Parents Citizenship for Child Violates Equal Protection

 In its opinion in Sessions v. Morales-Santana, the United States Supreme Court has held that the differential requirements regarding US presence for unwed fathers and unwed mothers to transmit citizenship to their child violated equal protection as included in the Fifth Amendment's protections.  Recall that the Second Circuit had held there was an equal protection violation and had subjected the  the statutory scheme to intermediate heightened scrutiny under United States v. Virginia (VMI) (1996), rejecting the government's argument that essentially all citizenship statutes should be subject to mere rational basis review.  The Supreme Court opinion in Morales-Santana, authored by Justice Ginsburg (who also wrote VMI), was joined by Chief Justice Roberts, Kennedy, Breyer, Sotomayor, and Kagan.  Justices Thomas and Alito briefly dissented.

But while the Court's opinion affirms the Second Circuit's constitutional conclusion, it nevertheless holds that Morales-Santana is not entitled to relief, reversing the Second Circuit on that point.

Fabritius_-_van_der_HelmThe Court first rehearses the complicated statutory scheme and facts. The Immigration and Nationality Act of 1952, codified at 8 U.S.C. § 1409(c), was the one in effect when Morales-Santana was born in 1962 outside the US to unwed parents.  His parents married each other in 1970 and he was admitted to the US as a lawful permanent resident in 1975.   In 2000, Morales-Santana was placed in removal proceedings after a conviction for various felonies and applied for withholding based on derivative citizenship from his father.  Derivative citizenship, which occurs at the moment of birth, is bestowed on a child born abroad to an unwed citizen mother and non‐citizen father has citizenship at birth so long as the mother was present in the United States or one of its outlying possessions for a continuous period of at least one year at some point prior to the child’s birth. By contrast, a child born abroad to an unwed citizen father and non‐citizen mother has citizenship at birth only if the father was present in the United States or one of its outlying possessions prior to the child’s birth for a period or periods totaling at least ten years, with at least five of those years occurring after the age of fourteen.  Morales-Santana's father, born in Puerto Rico in 1900, met the one year requirement but not the ten year requirement at the time of his son's birth.  Both parties agreed that had Morales‐Santana’s mother, rather than his father, been a citizen continuously present in Puerto Rico until 20 days prior to her nineteenth birthday, she would have satisfied the requirements to confer derivative citizenship on her child. It is this gender‐based difference in treatment that Morales‐Santana claims violated his father’s right to equal protection.

The Court finds that the Morales-Santana has standing to raise the differential as applied to his parents and that the difference between unwed mothers and unwed fathers is "of the same genre of classifications" as the one in landmark sex equality cases, thus "heightened scrutiny is in order."  The Court finds that there is no exceedingly persuasive justification and notes that the statutory scheme dates "from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are."  The Court also concluded that previous immigration cases, such as Nguyen v. INS (2001) which upheld gender discrimination regarding establishment of paternity were not controlling.  The Court rejected the government's rationale of "risk-of-statelessness" for the children as being "an assumption without foundation."

Despite the Court's resounding conclusion that the provision violates equal protection, the Court declines to extend the shorter unwed mother residency period to the unwed father.  Instead, the "right of equal treatment" here should be a withdrawal of benefits from the favored class (women) rather than an extension of benefits to the disfavored class (men).  The Court states that any choice between the methods of achieving equal treatment "is governed by the legislature's intent, as revealed by the statute at hand."  Thus, although the general approach is extension of benefits, because the statutory general rule was the longer one, the exception for favorable treatment is the one that should be stricken.

Thus, this is one of those relatively rare equal protection cases in which the challenger wins the battle to have the provision declared unconstitutional, but loses the war because equal treatment becomes the harsher rule.

[image via]

June 12, 2017 in Courts and Judging, Equal Protection, Family, Fifth Amendment, Gender, Race, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Daily Read: On the 50th Anniversary of Loving, A Look at its Portrayal in Film

 In Loving v. Virginia, decided June 12, 1967, the United States Supreme Court unanimously held that the Virginia statute criminalizing marriage between White and (most)non-White persons violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment.  The case has become an iconic one, not only because it explicitly states that the Virginia law was "obviously an endorsement of the doctrine of White Supremacy," but also because it identifies the "freedom to marry" as "one of the vital personal rights essential to the orderly pursuit of happiness by free men." 

Creighton Law Review hosted a symposium for the 50th anniversary of the case and the issue is just published.

Lovings

Among the terrific articles is one that considers the Hollywood film, released last year, as well as the previous documentary.  In the important contribution Filmic Contributions to the Long Arc of the Law: Loving and the Narrative Individualization of Systemic Injustice, Alanna Doherty argues that the film, and to a lesser extent the documentary "repackages the Lovings’ historic civil rights struggle against wider systemic oppression as a personal victory won by triumphant individuals through the power of love."  This individualization through narrative, she argues, obscures the collective and civil rights struggle that is the ground of the action the film portrays. Likewise, the "White Supremacy" of the state is attributed to a few rogue individuals. Doherty argues that such individualization is not only limited, but also accounts for the post-Loving developments in equality doctrine regarding affirmative action:

Both Loving (the film) and Fisher [v. University of Texas at Austin] (the case) present their stories of individualized racial harm at the cost of avoiding meaningful recognition of systemic injustice. While in Loving this may seem positive due to the nature of the decision, and although in Fisher the court ultimately upheld the admissions policy, harmful ideological work is still being done to our socio-legal consciousness. In Fisher, the Court set injurious legal precedent in how it evaluates affirmative action programs—under intense scrutiny and with such little deference that fewer, if any, will pass constitutional muster. And because law is an embodiment of social practices interacting with cultural conceptions in noetic space, a trend in cinematic and legal narratives to shirk responsibility for holding oppressive institutions accountable only furthers a reciprocity with cultural ideology that moves the law away from helping those most vulnerable under it.

[footnotes omitted].

And yet, even as Loving (the film) is subject to critique as being limited, sentimental, and nostalgic, Doherty ultimately contends that the film has legal relevance given our fraught political landscape:

perhaps the cultural and legal imagining that needs to be done in the noetic space of 2017 is one grounded in the inspiring recognition of triumphant small-scale love. Maybe what Loving truly contributes to such a tumultuous cultural moment is the notion that not only must we continue to commit to fights we should not have to fight, but that if we want to take care of each other even when the law fails us, we must decide to keep loving.

 


 

June 12, 2017 in Affirmative Action, Conferences, Due Process (Substantive), Equal Protection, Family, Federalism, Film, Fourteenth Amendment, Fundamental Rights, History, Race, Scholarship, Supreme Court (US) | Permalink | Comments (2)

Tuesday, May 30, 2017

Seventh Circuit Affirms Preliminary Injunction Against School District in Transgender Sex-Segregated Restroom Case

In its opinion in Whitaker v. Kenosha Unified School District, Judge Ann Williams begins for the unanimous panel including Chief Judge Diane Wood and Judge Illana Rovner, by stating that  the issue would seem to be a "simple request: to use the boys' restroom while at school," but the school district believed it was "not so simple because Ash is a transgender boy."

The Seventh Circuit decision to affirm the preliminary injunction directing the school district allowing the plaintiff, a transgender student, Ash (also known as Ashton), to use the boy's restroom rests both on Title IX and the Equal Protection Clause.  As a preliminary issue, the court found that pendent jurisdiction of the district court's order denying the school district's motion to dismiss was not appropriate.

On the likelihood to succeed on the merits of Title IX, the court considered companion Title VII doctrine in the circuit, including the doctrine of sex-stereotyping.  The fact that Congress has not added transgender status to Title IX (or Title VII) was not determinative.  Instead,

Custom-boys-restroom-school-braille-sign-se-3937Ash can demonstrate a likelihood of success on the merits of his claim because he has alleged that the School District has denied him access to the boys’ restroom because he is transgender. A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX. The School District’s policy also subjects Ash, as a transgender student, to different rules, sanctions, and treatment than non‐transgender students, in violation of Title IX. Providing a gender‐neutral alternative is not sufficient to relieve the School District from liability, as it is the policy itself which violates the Act. Further, based on the record here, these gender‐neutral alternatives were not true alternatives because of their distant location to Ash’s classrooms and the increased stigmatization they caused Ash. Rather, the School District only continued to treat Ash differently when it provided him with access to these gender‐neutral bathrooms because he was the only student given access.

And, while the School District repeatedly asserts that Ash may not “unilaterally declare” his gender, this argument misrepresents Ash’s claims and dismisses his transgender status. This is not a case where a student has merely announced that he is a different gender. Rather, Ash has a medically diagnosed and documented condition. Since his diagnosis, he has consistently lived in accordance with his gender identity. This law suit demonstrates that the decision to do so was not without cost or pain.

On the Equal Protection Clause claim, the court found that "the School District's policy cannot be stated without referencing sex" and thus the correct level of scrutiny should be the heightened one for sex classifications, citing United States v. Virginia (VMI) (1996).  The court rejected the District's asserted interest of protecting the "privacy rights" of all the other students as too abstract and conjectural to be genuine.  Moreover, the court faulted the representation at oral argument regarding the necessity for a birth certificate by first noting that this was not in the policy itself, and later returning to the issue regarding passports. Perhaps more importantly, the court also critiqued the notion of documents to prove sex designations:

Further, it is unclear that the sex marker on a birth certificate can even be used as a true proxy for an individual’s biological sex. The marker does not take into account an individual’s chromosomal makeup, which is also a key component of one’s biological sex. Therefore, one’s birth certificate could reflect a male sex, while the individual’s chromosomal makeup reflects another. It is also unclear what would happen if an individual is born with the external genitalia of two sexes, or genitalia that is ambiguous in nature. In those cases, it is clear that the marker on the birth certificate would not adequately account for or reflect one’s biological sex, which would have to be determined by considering more than what was listed on the paper.

 Thus, court found the School District did not satisfy the equal protection standard of United States v. Virginia. 

Recall that the district judge in Evancho v. Pine-Richland School District reached a similar conclusion on the Equal Protection Clause in February, and the constitutional claim seems to have more traction given the Title IX claim's uncertainty after the Court's dismissal and remand of  G.G. v. Glouster County School Board.

 

May 30, 2017 in Cases and Case Materials, Equal Protection, Fourteenth Amendment, Gender, Sexuality, Supreme Court (US) | Permalink | Comments (0)

Monday, May 22, 2017

SCOTUS Finds Racial Gerrymander in North Carolina Violates Equal Protection Clause

In its opinion in Cooper v. Harris, formerly McCrory v. Harris, the Court affirmed the findings of a three-judge District Court that North Carolina officials violated the Equal Protection Clause in the 2011 redistricting with regard to two districts: District 1 and District 12.

Recall that in Bethune-Hill v. Virginia State Board of Elections (argued the same day as Cooper v. Harris), the Court clarified the analysis for reviewing racial gerrymandering claims and remanded the matter back to the three judge District Court to determine 11 out of the 12 districts at issue. 

Justice Elana Kagan, writing for majority in Cooper v. Harris, provides the analytic structure for assessing challenges to racial gerrymandering under the Equal Protection Clause:

  • First, the plaintiff must prove that “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district,” quoting Miller v. Johnson (1995).  This means that the legislature "subordinated other factors," including geographic ones, partisan advantage, and "what have you" to racial considerations.
  • Second, if racial considerations predominated over others, the design of the district must withstand strict scrutiny, requiring a compelling governmental interest achieved by narrowly tailored means. 
    • A recognized compelling governmental interest is compliance with the Voting Rights Act (VRA) is a compelling governmental interest. "This Court has long assumed that one compelling interest is complying with operative provisions of the Voting Rights Act of 1965."
    • To satisfy the narrow-tailoring requirement, the state must show that it had “a strong basis in evidence” for concluding that the VRA required its action. "Or said otherwise, the State must establish that it had “good reasons” to think that it would transgress the Act if it did not draw race-based district lines," a standard which "gives States “breathing room” to adopt reasonable compliance measures that may prove, in perfect hindsight, not to have been needed."

The Court unanimously agrees that District 1 fails this standard.  The racial intent in redistricting was clear.  As to the means chosen, the Court rejected North Carolina's argument that it redesigned the district to comply with the VRA because in fact District 1 had historically been a "cross-over" district in which "members of the majority help a large enough minority to elect a candidate of its choice.  In other words, there was no 'White Bloc' operating in District 1.  The Court rejected North Carolina's argument that this could occur in the future, especially since the entire state was being redrawn.  The Court notes that the officials seemed to believe - - - incorrectly - - - that they were required to draw a majority Black district, despite any evidence of "cross-over."

Appendix 1

image: Appendix 1 to Court's opinion;
note District 1 in yellow and District 12 in orange.

 The Court divided on the constitutionality of District 12, however.  The only issue was whether or not the redistricting was racial; North Carolina did not argue it could satisfy strict scrutiny if race predominated.  Writing for the Court, Justice Kagan, joined by Justices Thomas, Ginsburg, Breyer, and Sotomayor, affirmed the findings of the three judge district court that District 12 was redrawn with reference to race.  North Carolina contended that the officials redrew the district only with reference to political affiliation (which would not violate the Equal Protection Clause), arguing that the goal was to "pack" District 12 with Democrats (and thereby render other districts more Republican).  Justice Kagan noted that the determination of whether an act was racially-motivated or politically-motivated involved a "sensitive inquiry" and that racial identification is "highly correlated" with political affiliation. But for the majority, the District Court's finding of racial predominance must be affirmed:

The evidence offered at trial, including live witness testimony subject to credibility determinations, adequately supports the conclusion that race, not politics, accounted for the district’s reconfiguration. And no error of law infected that judgment: Contrary to North Carolina’s view,the District Court had no call to dismiss this challenge just because the plaintiffs did not proffer an alternative design for District 12 as circumstantial evidence of the legislature’s intent.

Writing the dissenting opinion, Justice Alito, joined by Chief Justice Roberts and Justice Kennedy (who authored Bethune-Hill), vigorously contested the finding of racial intent.  Alito faults the majority as well as the District Court as being obtuse:  "The majority’s analysis is like Hamlet without the prince."  This bit of snark in the body of the dissent, earns a rebuke from the majority in a footnote to its statement that this district is back before the Court for the sixth time, criticizing the dissent for simply adopting North Carolina's version: "Imagine (to update the dissent’s theatrical reference) Inherit the Wind retold solely from the perspective of William Jennings Bryan, with nary a thought given to the competing viewpoint of Clarence Darrow."  In a counter footnote, Alito defends the opinion from merely accepting North Carolina's explanation. 

The alternative map argument is also a point of contention.  For the majority, it is one way of demonstrating that the redistricting officials acting on the basis of race:

If you were really sorting by political behavior instead of skin color (so the argument goes) you would have done—or, at least, could just as well have done—this.  Such would-have, could-have, and (to round out the set) should-have arguments are a familiar means of undermining a claim that an action was based on a permissible,rather than a prohibited, ground.

But, the majority emphasizes, such strategies are "hardly the only way."  For the dissent, a passage from Easley v. Cromartie, (2001) (Cromartie II), involving essentially the same district, is determinative: plaintiffs must show that the officials could have achieved their political goals in a manner with more racial balance.

Interestingly, in his brief concurring opinion, Justice Thomas references Cromartie II, in which he dissented.  Thomas contends that Cromartie II misapplied the "deferential standard for reviewing factual findings," an error which the present decision "does not repeat."

May 22, 2017 in Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Opinion Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0)

Saturday, March 25, 2017

Virginia District Judge Upholds Muslim Travel Ban 2.0

In his opinion in Sarsour v. Trump, United States District Judge for the Eastern District of Virginia Anthony Trenga denied the Plaintiffs' motion for Temporary Restraining Order or Preliminary Injunction.

At issue is the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0." 

Recall that the original EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," was enjoined by the Ninth Circuit in Washington v. Trump,; our backgrounder on the issues is here.  The President withdrew the initial EO and the Ninth Circuit denied the sua sponte motion for en banc review, but in a somewhat unusual step there was a substantive dissenting opinion authored by Judge Jay Bybee.

Recall also that regarding the March 6, 2017 EO ("Muslim Travel Ban 2.0"), two other federal district judges issued injunctions before the EO became effective.  In Hawai'i v. Trump, United States District Judge Derrick Watson issued a TRO of sections 2 and 6 of the EO based on the likelihood of plaintiffs to prevail on their Establishment Clause challenge.  In International Refugee Assistance Project (IRAP) v. Trump, Maryland District Judge Theodore Chuang issued a preliminary injunction of section 2(e) of the EO based on the likelihood of plaintiffs to prevail on their statutory claim under the Immigration and Nationality Act and their constitutional claim under the Establishment Clause.Judge Trenga disagrees with both Hawai'i v. Trump and IRAP v. Trump, although the opinion does not engage in a substantial dialogue with these opinions. 

Linda Sarsour
Linda Sarsour, plaintiff via

For example, on the statutory claim in Sarsour v. Trump, Judge Trenga concludes after reviewing "the text and structure of the INA as a whole, and specifically, the practical, operational relationships" of the provisions, that the nondiscrimination restrictions of §1152 do not "apply to the issuance or denial of non-immigrant visas or entry under §1182(f).  In a footnote, Judge Trenga acknowledges that the judge in IRAP v. Trump "attempted to reconcile these seemingly contradictory provisions," and simply adds, "There, the court concluded that Section 1152 bars the President from discriminating on the basis of nationality in the issuance of immigrant visas only." (footnote 12).  Judge Trenga characterized the Immigration and Nationality Act (INA) as a "legislative rabbit warren that is not easily navigated," but his ultimate conclusion seems to be based on a broad view of Executive authority. Judge Trenga writes that the he "also has substantial doubts that Section 1152 can be reasonably read to impose any restrictions on the President’s exercise of his authority under Sections 1182(f) or 1185(a)."

Similarly, on the Establishment Clause claim Judge Trenga accorded the Executive broad deference.  Unlike the judges in both Hawai'i v. Trump and IRAP v. Trump, Judge Trenga found that the facial neutrality of "EO-2" was determinative.  Judge Trenga held that past statements - - - or the EO-2 statements (described in a footnote as including the President's statement that EO-2 was a "watered-down version" of EO-1, and Presidential Advisor Stephen Miller's statements) - - - have not "effectively disqualified him from exercising his lawful presidential authority":

In other words, the substantive revisions reflected in EO-2 have reduced the probative value of the President’s statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose. To proceed otherwise would thrust this Court into the realm of “‘look[ing] behind’ the president’s national security judgments . . . result[ing] in a trial de novo of the president’s national security determinations,” Aziz, 2017 WL 580855, at *8, and would require “a psychoanalysis of a drafter’s heart of hearts,” all within the context of extending Establishment Clause jurisprudence to national security judgments in an unprecedented way.

Likewise, on the Equal Protection claim, Judge Trenga concluded that although the EO would have a differential impact on Muslims, it was facially neutral.  The Judge relied on an earlier Fourth Circuit case, Rajah v. Mukasy (2008) and articulated the standard as requiring merely a rational national security basis for an immigration measure to survive an Equal Protection Clause challenge.  And again, Judge Trenga accorded the Executive wide discretion: "These are judgments committed to the political branches - - - not to the courts."

In sum, Judge Trenga's opinion aligns with the Ninth Circuit dissent from en banc review by Judge Bybee and is in opposition to the other district judges who have rendered opinions on the second EO which have enjoined its enforcement.  

March 25, 2017 in Courts and Judging, Current Affairs, Equal Protection, Establishment Clause, Executive Authority, Fifth Amendment, First Amendment, Opinion Analysis, Race, Religion, Standing, Travel | Permalink | Comments (0)

Monday, March 6, 2017

President Issues Revised "Travel Ban"

The President's revised Executive Order (March 6, 2017), entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," has substantial changes from the previous EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," and now enjoined by the Ninth Circuit in Washington v. Trump, as well as subject to an injunction in Virginia in Aziz v. Trump (note that the state of Virginia intervened). Our backgrounder on the issues is here.

This new EO, signed without the fanfare of the previous one, acknowledges that the previous EO "has been delayed by litigation" and does seek to remedy some of the problems with the EO.  For example, the scope is much narrower and the suspension of entry excludes "any lawful permanent resident" as well as some other categories. This will make the applicability of constitutional protections less clear.  While the Constitution protects non-citizens, it does not have global applicability.

The new EO avers that the previous EO was not a "Muslim Ban":

Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion.  While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion.  That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities -- whoever they are and wherever they reside -- to avail themselves of the USRAP [US Refugee Admissions Program] in light of their particular challenges and circumstances.

Nevertheless, this new EO does not mention otherwise religion. Of course, omitting references to "religion" or stating that an act is not motivated by animus does not end the inquiry.  Instead, there will most certainly be arguments that courts can consider the new EO as religiously-motivated under either First Amendment or Equal Protection Clause doctrine.

The new EO also changes the seven nations to six - - - omitting Iraq as a "special case."  This could also give rise to a national origin classification - - - is Iraq, with its "active combat zones" so different from Libya and Yemen which are described similarly?  The omission of Iraq is also problematical because the new EO recites as part of its justification this specific incident: "For example, in January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses." 

That relatively brief paragraph, §1(h), ends by stating that "The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation."  Issues with the Attorney General and counterterrorism aside, the objections of other government officials regarding the efficacy of the travel ban would certainly figure in any judicial measurement of the fit between the travel ban and the government purposes.

In terms of litigation and constitutional challenges, the first order of business will be procedural questions regarding whether the new EO can be substituted for the previous EO through amended complaints and other pleadings or will there need to be new cases.

 

 

 

March 6, 2017 in Equal Protection, Executive Authority, Fifth Amendment, First Amendment, Fundamental Rights, News, Race, Religion | Permalink | Comments (0)

Wednesday, March 1, 2017

Court Decides Bethune-Hill on Racial Gerrymandering: New Equal Protection Standard on Remand

In its opinion in Bethune-Hill v. Virginia State Board of Elections, the Court clarified the standard for deciding whether racial considerations in reapportionment violate the Equal Protection Clause. It affirmed the three-judge court's decision as to one of the districts as constitutionally considering race, but remanded the determination of the constitutional status of the other eleven districts.

Recall that the challenge was to the three-judge court’s decision and order holding that a number of Virginia House of Delegates districts did not constitute unlawful racial gerrymanders in violation of the Equal Protection Clause. Virginia did consider race in the redistricting, but the question was whether race was the predominant (and thus unconstitutional) consideration. The three-judge lower court required an “actual” conflict between the traditional redistricting criteria and race.

Va Districts

In the opinion authored by Justice Kennedy, and joined by Chief Justice Roberts, as well as Justices Ginsburg, Breyer, Sotomayor, and Kagan, the Court clarified the relationship between traditional redistricting principles and unconstitutional racial gerrymandering:

The Equal Protection Clause does not prohibit misshapen districts. It prohibits unjustified racial classifications.

More precisely, although there is a racial classification if "redistricting legislation that is so bizarre on its face that it is unexplainable on grounds other than race," as in Shaw v. Reno, (1993), this "inconsistency between the enacted plan and traditional redistricting criteria is not a threshold requirement or a mandatory precondition in order for a challenger to establish a claim of racial gerrymandering."  The Court admitted that "to date " it had not affirmed a racial predominance finding, or remanded a case for a determination of predominance, "without evi­dence that some district lines deviated from traditional principles." Nevertheless, "there may be cases where challengers will be able to establish racial predominance in the absence of an actual conflict by presenting direct evidence of the legislative purpose and intent or other compelling circumstantial evidence." 

Given this articulation of the standard, the three-judge court's analysis of whether there was racial gerrymandering applied only to the portions of the districts that deviated from traditional requirements was clearly problematical.  Indeed,

the basic unit of analysis for racial gerrymander­ing claims in general, and for the racial predominance inquiry in particular, is the district.

The ultimate object of the inquiry, however, is the legis­lature’s predominant motive for the design of the district as a whole. A court faced with a racial gerrymandering claim therefore must consider all of the lines of the district at issue; any explanation for a particular portion of the lines, moreover, must take account of the district wide context. Concentrating on particular portions in isolation may obscure the significance of relevant district wide evidence, such as stark splits in the racial composition of populations moved into and out of disparate parts of the district, or the use of an express racial target. A holistic analysis is necessary to give that kind of evidence its proper weight.

The Court declined the parties' request to apply this standard and remanded the matter of eleven districts. 

As to the twelfth district (district 75), the Court affirmed the three-judge court's finding that race predominated but also that the redistricting satisfied strict scrutiny.  The Court found that not violating §5 of the Voting Rights Act - - - operative then despite the VRA's subsequent erosion in Shelby County v. Holder - - - was a compelling government interest and that the district was narrowly tailored to serve that interest. In his partial dissent, Justice Thomas insisted that this very analysis "is fundamentally at odds with our “color-blind” Constitution, which “neither knows nor tolerates classes among citizens,” citing Plessy v. Ferguson (1896) (Harlan, J., dissenting). Justice Thomas then argued that this "contradiction illustrates the perversity of the Court’s jurisprudence in this area as well as the uncomfortable position in which the State might find itself."

Despite the articulation of a somewhat new standard, Bethune-Hill does not seem to be a major opinion and the Court states its "holding in this case is controlled by precedent." Interestingly, the Court did not issue its opinion on the other racial gerrymandering case, McCrory v. Harris, arising in North Carolina and argued on the same day.

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March 1, 2017 in Elections and Voting, Equal Protection, Opinion Analysis, Race, Supreme Court (US) | Permalink | Comments (0)