Monday, June 18, 2018

SCOTUS Dodges Partisan Gerrymandering Challenges in Gill and Benisek

In its opinion in Gill v. Whitford involving a challenge to Wisconsin's alleged partisan gerrymandering the Court, in an opinion by Chief Justice Roberts, with a concurring opinion by Justice Kagan (joined by Justices Ginsburg, Breyer, and Sotomayor), found that the plaintiffs did not prove sufficient Article III standing to sustain the relief granted in the divided decision by the three judge court.  Additionally, in a per curiam opinion in Benisek v. Lamone, involving a challenge to alleged political gerrymandering in Maryland, the Court declined to disturb the three judge court's decision not to grant to a preliminary injunction.

Chief Justice Roberts' opinion for the Court in Gill admits that

Over the past five decades this Court has been repeat­edly asked to decide what judicially enforceable limits, if any, the Constitution sets on the gerrymandering of voters along partisan lines. Our previous attempts at an answer have left few clear landmarks for addressing the question.

The  Chief Justice's Gill opinion does little, if anything, to remedy this lack of "landmarks" in the doctrine. However, the Chief Justice's opinion continues that the Court's "efforts to sort through those considerations have generated conflict­ing views both of how to conceive of the injury arising from partisan gerrymandering and of the appropriate role for the Federal Judiciary in remedying that injury" and it is this set of "conflicting views" that the Chief Justice's opinion sets out to resolve. The 1024px-The_Gerry-Mander_Editresolution seems simple: to the extent that plaintiffs' "alleged harm is the dilution of their votes" in violation of the Equal Protection Clause, "that injury is district specific." In sum, the injury must be an individual one that arises from an individual's vote being diluted by the voter's placement in a "cracked" or "packed" district.  The Chief Justice's opinion concludes that while the individual plaintiffs had "pleaded a particularized burden along such lines," they failed to prove those facts at trial.

Yet this simplicity is less straightforward when combined with Justice Kagan's concurring opinion, which correctly notes that in addition to the Equal Protection Clause claim of vote dilution, "at some points in this litigation, the plaintiffs complained of a different injury — an infringement of their First Amendment right of association." [Indeed, the opinion for the three judge court seems to combine the equal protection and First Amendment claims.] On the First Amendment claim, Kagan writes:

when the harm alleged is not district specific, the proof needed for standing should not be district specific either. And the associational injury flowing from a statewide partisan gerrymander, whether alleged by a party member or the party itself, has nothing to do with the packing or cracking of any single district’s lines. The complaint in such a case is instead that the gerrymander has burdened the ability of like-minded people across the State to affiliate in a political party and carry out that organization’s activities and objects. Because a plaintiff can have that complaint without living in a packed or cracked district, she need not show what the Court demands today for a vote dilution claim. Or said otherwise: Because on this alternative theory, the valued association and the injury to it are statewide, so too is the relevant standing requirement.

Moreover, even on the equal protection vote dilution claim, Kagan's opinion instructs that the Court's determination of remand rather than dismissal means that

the plaintiffs—both the four who initially made those assertions and any others (current or newly joined)—now can introduce evidence that their individual districts were packed or cracked. And if the plaintiffs’ more general charges have a basis in fact, that evidence may well be at hand. Recall that the plaintiffs here al­leged—and the District Court found —that a unified Republican government set out to ensure that Republicans would control as many State Assembly seats as possible over a decade (five consecutive election cycles). To that end, the gov­ernment allegedly packed and cracked Democrats throughout the State, not just in a particular district (see, e.g., Benisek v. Lamone) or region. Assuming that is true, the plaintiffs should have a mass of packing and cracking proof, which they can now also present in district-by-district form to support their standing. In other words, a plaintiff residing in each affected district can show, through an alternative map or other evidence, that packing or cracking indeed occurred there.

 [emphasis added].  The Court remanded and declined to "direct dismissal" given that this "is not the usual case" because the it "concerns an unsettled kind of claim," the "contours and justiciability of which are unresolved." Justice Thomas, joined by Justice Gorsuch, wrote separately to disagree with the remand, arguing there is "nothing unusual" about the case and that the matter should be dismissed.

In the five page per curiam opinion in Benisek v. Lamone, the Court declined to disturb the three judge court's denial of a motion for preliminary injunction. Seemingly without irony, the Court noted that one rationale for the three judge court's denial of a preliminary injunction was its concern about assessing the merits of the partisan gerrymandering claim and its prediction it would be "better equipped to make that legal determination and to chart a wise course" after the United States Supreme Court issued its decision in Gill. However, the per curiam opinion of the Court also reasoned that even if the plaintiffs were likely to succeed on the merits, the  other factors in a preliminary injunction decision including the balance of equities and the public interest "tilted against" the issuance of a preliminary injunction.

In sum, the decisions in Gill and Benisek leave the constitutionality of partisan gerrymandering as unsettled as before.

[image: "the gerrymander" via]

 

June 18, 2018 in Association, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Opinion Analysis, Reconstruction Era Amendments, Standing, Supreme Court (US) | Permalink | Comments (0)

Monday, June 4, 2018

SCOTUS Finds Colorado Civil Rights Commission Hostile to Religion in Masterpiece Cakeshop

In its opinion today authored by Justice Kennedy in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the Court found that the cakeshop owner's First Amendment Free Exercise Clause right was infringed upon by the Colorado Civil Rights Commission. Recall that the Civil Rights Commission had found the cakemaker violated the state equal accommodations statute protection on the basis of sexual orientation when the cakemaker refused to be employed for a same-sex wedding cake.

Justice Kennedy's opinion decides the controversy on the basis of Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), in which the Court found that the City of Hialeah's prohibition of killing animals was aimed at the religion of Santeria, especially given the numerous exceptions in the ordinance. Here, Kennedy's opinion for the Court rejects the ALJ's conclusion that the Colorado anti-discrimination statute was a neutral law of general applicability (and thus should be evaluated under a rational basis test), finding instead that the Colorado Civil Rights Commission in its adjudication of this case was not neutral but expressed hostility:  "The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his [the cakemaker's] objection."

These expressions of hostility surfaced in the oral argument as we noted in a specific statement from Kennedy  quoting one of the civil rights commissioners ( "freedom of religion used to justify discrimination is a despicable piece of rhetoric") which Kennedy asked counsel to disavow. This foreshadowed the opinion's quotation of the commissioner  "Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

The opinion then stated:

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare [cakemaker] Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti- discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.

With the decision based on this, the Court admittedly sidesteps the more contentious issues and widespread issues of the case:

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

Perhaps another limiting factor is that the Court observes that the cakebaker's refusal occurred before Obergefell v. Hodges (2015) when Colorado law did not authorize same-sex marriages. However, the Court also pointed to language in Obergefell that religious objections to same-sex marriage are protected by the First Amendment.

Yet there is also the issue of arguably inconsistent rulings from the civil rights commission.

Justice Kagan, in a brief concurring opinion joined by Justice Breyer, stressed the fault found with the Civil Rights Commission that did not give the cakemaker's religious views “neutral and respectful consideration.” She argued that any "inconsistent" rulings could be explained: the cakemakers in other cases objected to placing words on the cakes that they found offensive; in Masterpiece, the cakemaker objected to the customers who were purchasing sentiments he would provide for others.

In dissent, Justice Ginsburg, joined by Justice Sotomayor, concluded that there was not sufficient evidence of "hostility" neither in the arguably inconsistent rulings nor in the statements.  As to the statements,

Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decisionmaking, of which the Commission was but one.

First, the Division had to find probable cause that Phillips violated CADA. Second, the ALJ entertained the parties’ cross-motions for summary judgment. Third, the Commission heard Phillips’ appeal. Fourth, after the Commission’s ruling, the Colorado Court of Appeals considered the case de novo. What prejudice infected the determinations of the adjudicators in the case before and after the Commission?

For Ginsburg, then, this was "far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council."

Certainly, the Court's opinion rests on narrow grounds, perhaps unique to this case. But it nevertheless represents the Court chipping away at equality on the basis of sexual orientation.

 

 

 

 

June 4, 2018 in Courts and Judging, Equal Protection, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Religion | Permalink | Comments (0)

Tuesday, May 29, 2018

Sixth Circuit: No Equal Protection Problem with Age Limititation for State Judges

The Sixth Circuit's opinion in Theile v. Michigan upheld Michigan Constitution art VI §19(3) which provides that no person "shall be elected or appointed to a judicial office after reaching the age of 70 years." Judge Theile, who must run for reelection in 2020 when he will be 71, argued that the Michigan constitutional provision (and statutes), violated the Equal Protection Clause of the Fourteenth Amendment.

The Sixth Circuit panel found that Judge Theile's argument was foreclosed by Sixth Circuit precedent upholding the very same provision as well as United States Supreme Court's decision in Gregory v. Ashcroft, 501 U.S. 452 (1991) upholding a similar provision in Missouri. The opinion noted that Gregory was decided only twenty-seven years ago, and the Sixth Circuit case a "mere eighteen," and there was no basis to conclude that the reasoning of those cases has "somehow been overtaken by interceding events and rendered invalid."

Mr-justice-bucknillThus, the Sixth Circuit declined to raise the level of scrutiny of the age-based classification to intermediate scrutiny despite Theile's argument that age, like gender, is "immutable." Applying rational basis scrutiny, the Sixth Circuit acknowledged Theile's points that federal judges face no age limits, that eighteen states have no mandatory judicial retirement age, and that many United States Supreme Court justices serve past the age of 70 which is an "archaic" limit.  However, the rational basis standard is exceedingly lenient and the Court in Gregory held that Missouri’s judicial age limitation of 70 was rationally related to such legitimate purposes as avoiding laborious testing of older judges’ physical and mental acuity, promoting orderly attrition of judges, and recognizing that judges’ remoteness from public view makes determination of competency, and removal from office, more difficult than for other office-holders.

Judges looking to change the maximum age limits or mandatory retirement ages may have to look for changes in the underlying laws rather that equal protection.

[image: Vanity Fair circa 1900 via]

May 29, 2018 in Courts and Judging, Equal Protection, Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0)

Wednesday, May 2, 2018

Daily Read: The President and Defamation on Twitter by McKechnie

Apropos of the defamation complaint filed by Stephanie Clifford a/k/a Stormy Daniels which we discussed here, an excellent read is the article @POTUS: Rethinking Presidential Immunity in the Time of Twitter by Professor Douglas McKenchnie  (United States Air Force Academy; pictured) published in the University of Miami Law Review.

Douglas_McKechnieMcKenchie's article, published in 2017, considers the President's use of Twitter.  McKenchie argues that malicious defamation falls outside the “outer perimeter” of official presidential duties and thus presidential immunity is inapplicable. 

This addresses a broader issue than whether a sitting president can be sued, but uses a number of doctrines - - -  presidential immunity; immunity for executive branch officials; the constitutional implications of defamation; and the Fifth and Fourteenth Amendments’ prohibition on government action motivated by animus - - - to support its conclusion.

Worth a read.

May 2, 2018 in Equal Protection, Executive Privilege, First Amendment, Scholarship, Theory | Permalink | Comments (0)

Wednesday, April 25, 2018

Another Federal Judge Enjoins President's DACA Recission

In a 60 page Memorandum Opinion in NAACP v. Trump, United States District Judge for the District of Columbia, Judge John Bates "vacated" the Department of Homeland Security's decision to rescind the DACA program, but stayed its order of vacatur for 90 days "to afford DHS an opportunity to better explain its view that DACA is unlawful."

Recall that in February Judge Nicholas Garaufis of the Eastern District of New York granted a preliminary injunction against the rescission of DACA and also recall that Judge Alsup of the Northern District of California issued a preliminary injunction in January which the government is appealing.

Judge Bates' decision rests on an application of the Administrative Procedure Act (APA), finding that the decision by DHS to rescind 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., was "arbitrary and capricious" because the Department failed adequately to explain its conclusion that the program was unlawful.  Judge Bates stated that "neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program."

Judge Bates held that the "litigation risk" argument, which would would render the decision to rescind presumptively  unreviewable, was not independent of the reality that the "rescission was a general enforcement policy predicated on DHS’s legal determination that the program was invalid when it was adopted." This legal determination is what raises the constitutional issue: DHS determined that DACA lacked constitutional authority. Although, as Judge Bates noted, "it seems that no court has yet passed judgment on DACA’s constitutionality."

Thus, Judge Bates gave DHS more time to makes it arguments that DACA lacked constitutional (and statutory) authority to support its rescission decision, and also deferred ruling on the plaintiffs' constitutional challenges to the rescission as violating due process and equal protection.

 

April 25, 2018 in Courts and Judging, Current Affairs, Equal Protection, Executive Authority, Fifth Amendment, Opinion Analysis, Race, Standing | Permalink | Comments (0)

Tuesday, April 24, 2018

SCOTUS Hears Oral Arguments in Texas Redistricting Case Abbott v. Perez

The United States Supreme Court heard oral arguments in Abbott v. Perez, regarding the constitutionality under the Equal Protection Clause and the validity under the Voting Rights Act of the redistricting plan enacted by the Texas Legislature in 2013.  Recall that in an extensive opinion in August 2017,  the three judge court made detailed findings, one of which was that the Texas legislature engaged on intentional racial discrimination violating the Fourteenth Amendment.

Much of the argument centered on the acts of the Texas legislature in 2013 adopting maps which had previously been found invalid because of racial discrimination. Arguing for Texas, Scott Keller, the Texas Solicitor General, argued that the Texas legislature was entitled to a presumption of good faith and that the "taint" did not carry forward, and Edwin Kneedler, from the United States Solicitor General's Office, likewise stressed that the "taint" should not carry forward. Arguing for various challengers to the redistricting, Max Hicks and Allison Riggs, both stressed the standard of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997), contending that the taint does not end, and stressing the extensive findings by the three judge court.

The question of how long a discriminatory intent taint persists sometimes seemed as if it was a preview of the next oral argument, that in Hawai'i v. Trump.

Map_of_Texas_1718Yet the oral arguments in Abbott v. Perez were also preoccupied with the "jurisdictional" question; Chief Justice Roberts at several points directed the parties to move to the merits.  This jurisdictional question involves the status of the three judge court order and whether it is actually a reviewable order. Recall that the order was not a preliminary injunction, but instead 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." Justice Breyer suggested that the operable "piece of paper" in the case was not a judgment or preliminary injunction, but only a direction to come to court.

While jurisdictional issues are always important to the Court, when the jurisdiction involves appeals as of right from three judge court decisions, the stakes are higher in terms of workload. As Justice Sotomayor asked, what distinguishes this case from the  "millions of others - - - not millions, I'm exaggerating greatly - - - the hundreds of these . . . ." 

 

 

April 24, 2018 in Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Oral Argument Analysis, Race, Recent Cases, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0)

Tuesday, April 17, 2018

Daily Read: Curing the Inequality of Privacy Protections

Whose privacy counts? Whose privacy should count?

While these questions could be asked across many doctrines, one intersection occurs in the origins of privacy, including the tort remedies for its invasion. In his article Privacy's Double Standards, available on ssrn and forthcoming in Washington Law Review, Professor Scott Skinner-Thompson argues for the necessity of equal protection standards in privacy protection torts. Centered on the tort of public disclosure of private facts, Skinner-Thompson rightly observes that it has been applied unevenly, with privileged and celebrity plaintiffs prevailing (think: Hulk Hogan v. Gawker) when more marginalized plaintiffs (such as victims of revenge porn) have not, noting that this is perhaps not surprising given the origins of the tort in "Brahman society." Skinner-Thompson discusses these cases and numerous others to support this observation (and provides a nice appendix of his research methodology).

Edgar_Degas_-_Mrs_Jeantaud_in_the_Mirror_-_Google_Art_ProjectYet rather than simply detail the disparities evinced in the cases, Skinner-Thomson argues that just as the First Amendment has shaped the doctrines of torts, so too should constitutional equality principles be applied to the inequalities in tort remedies for invasions of privacy. He argues that "to better comply with constitutional equality principles, the substance of privacy tort law must be relaxed so as to ensure that individuals in marginalized communities are able to bring claims on the same terms as privileged individuals."

His specific recommendations for reshaping the tort doctrine of public disclosure of private facts:

  • All plaintiffs, and not just well-known ones, should be able to prevail in public disclosure tort claims" even if they have shared the information at issue (for example, their HIV status, sexual orientation, or intimate photographs) within certain confines."
  • All plaintiffs should be able to prevail in public disclosure tort claims even if the defendant has not shared the information with the world at large (for less well-known plaintiffs, the interest of the world can be limited, but, for example, disclosure of one's sexual orientation to one's small community church can be equally devastating).

As Skinner-Thompson makes clear, he is not arguing that a privacy tort plaintiff  " will be able to successfully bring an equal protection challenge to the way the public disclosure tort is operating," but it is to argue that this tort could be  - - - and should be - - - inflected with equal protection concerns.  

[image: Edgar Degas, Mrs Jeantaud in the Mirror, circa 1875 via]

April 17, 2018 in Equal Protection, First Amendment, Privacy, Profiles in Con Law Teaching, Scholarship | Permalink | Comments (0)

Saturday, April 14, 2018

District Judge Holds Transgender Military Ban Subject to Strict Scrutiny

In her opinion and Order in Karnoski v. Trump, United States District Judge Marsha Pechman of the Western District of Washington has reaffirmed her previous preliminary injunction (December 2017) on the basis of the plaintiffs' likelihood to succeed on the merits of their Equal Protection, Due Process, and First Amendment claims in their challenge to the President's ban on transgender troops in the military, and further decided that the military ban is subject to strict scrutiny. (Recall that previous to Judge Pechman's preliminary injunction, United States District Judge for the District of Columbia Colleen Kollar-Kotelly in Doe v. Trump partially enjoined the president's actions and 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).

The government's motion for summary judgment and to dissolve the preliminary injunction relied in large part on the President's new policy promulgated in March 2018. As Judge Pechman phrased it, the 2018 Presidential Memorandum

purports to "revoke" the 2017 Memorandum and “any other directive [he] may have made with respect to military service by transgender individuals,” and directs the Secretaries of Defense and Homeland Security to “exercise their authority to implement any appropriate policies concerning military service by transgender individuals.”

Nypl.digitalcollections.a20151f8-d3cf-5c25-e040-e00a18066189.001.wRejecting the government defendants' argument that the controversy was now moot, Judge Pechman concluded that the 2018 Memorandum and Implementation Plan "do not substantively rescind or revoke the Ban, but instead threaten the very same violations that caused it and other courts to enjoin the Ban in the first place." The judge acknowledged that there were a few differences, but was not persuaded by the government defendants' argument that the 2018 policy did not now mandate a “categorical” prohibition on service by openly transgender people.

Similarly, Judge Pechman found that the individual plaintiffs, the organizational plaintiffs, and the plaintiff State of Washington continued to have standing.

Most crucial in Judge Pechman's order is her decision that transgender people constitute a suspect class and thus the ban will be subject to strict scrutiny. (Recall that in the previous preliminary injunction, Judge Pechman ruled that transgender people were at a minimum a quasi-suspect class). In this opinion, she considers four factors:

  • whether the class has been “[a]s a historical matter . . . subjected to discrimination,”
  • whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,
  • whether the class exhibits “obvious, immutable, or distinguishing characteristics that define [it] as a discrete group,"
  • whether the class is “a minority or politically powerless.”

After a succinct analysis, she concludes that suspect class status is warranted and because the "Ban specifically targets one of the most vulnerable groups in our society," it  "must satisfy strict scrutiny if it is to survive."

However, Judge Pechman did not decide on the level of deference the government defendants should be accorded. Instead, she concluded that

On the present record, the Court cannot determine whether the DoD’s deliberative process—including the timing and thoroughness of its study and the soundness of the medical and other evidence it relied upon—is of the type to which Courts typically should defer.

However, she did agree with the government defendants that President Trump was not subject to injunctive relief, but did remain as a defendant for the purpose of declaratory relief.

Thus, Judge Pechman directed the parties to "proceed with discovery and prepare for trial on the issues of whether, and to what extent, deference is owed to the Ban and whether the Ban violates equal protection, substantive due process, and the First Amendment."

[image, Revolutionary War era soldier, NYPL, via]

 

April 14, 2018 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Executive Authority, Fifth Amendment, First Amendment, Gender, Mootness, Opinion Analysis, Sexuality, Standing | Permalink | Comments (0)

Wednesday, March 28, 2018

SCOTUS Hears Oral Arguments in Challenge to Maryland's Partisan Gerrymandering

In oral arguments in Benisek v. Lamone, the United States Supreme Court again confronted the the constitutionality of gerrymandering on the basis of political party. Recall that the Court heard arguments earlier in this Term in Gill v. Whitford involving the state of Wisconsin and centering on the Equal Protection Clause challenge. In Benisek, involving Maryland, recall that a divided three judge court denied the motion for preliminary injunction, but with Fourth Circuit Judge Paul Niemeyer arguing that the redistricting of Maryland's Sixth District diluted the votes of Republicans in violation of the First Amendment.

The Benisek argument before the Supreme Court did center the First Amendment, but equal protection doctrine did surface in the context of comparing racial gerrymandering which is analyzed under the Equal Protection Clause. Arguing for Maryland, Steve Sullivan sought to distinguish the two doctrines, with Justice Kagan responding:

JUSTICE KAGAN:  But we would be looking at the same things.  We would be looking at the same kind of direct evidence, the same kind of statements.  We would be looking at the same circumstantial evidence that has to do with where the lines were drawn and how they were drawn.  So it's -- it's all the same kind of evidence, isn't it?

Sullivan sought to distinguish the two doctrines and stated that while there may be similar types of evidence, the Court had not applied "the First Amendment retaliation rubric to that analysis," as the challengers suggested. However, Chief Justice Roberts offered another comparison:

CHIEF JUSTICE ROBERTS: Well, one difference between -- one difference between the race and partisanship is that we've always recognized that a certain degree of partisanship is acceptable.  We've never recognized that a certain degree of racial discrimination is acceptable.

2048px-Maryland_regions_map
The earliest moments of the oral argument offered a possible procedural escape hatch. The three judge court had denied the preliminary injunction and the possibility that any remedy could occur before the 2018 election seemed unlikely.  Moreover, the Justices questioned Michael Kimberly, attorney for the plaintiffs-challengers, regarding the lateness of the challenge, with Chief Justice Roberts asking about the elections that have been held in 2012, 2014, and 2016 before the challenge - - - relevant to the preliminary injunction factor of irreparable harm.

Justice Breyer offered a strategy for determining whether there are manageable standards and if so, what the standard should be.  (Recall that Justice Breyer outlined a several-step possible standard in the oral argument in Gill v. Whitford).  Justice Breyer noted that there are three cases - - - Wisconsin (Gill v. Whitford); Maryland (Benisek); and "the one we are holding, I think, is North Carolina" - - - with different variations. He began by asking the attorney for the challengers what he thought of reargument for the three cases:

JUSTICE BREYER:  * * * * What would you think of taking the three cases and setting them for reargument on the question of standard and there we'd have all three variations in front of us and we would enable people who have an interest in this subject generally to file briefs, and we'd see them all together and they could attack each other's standards or they could support each other's standards or they could attack any standard?  But there we'd have right in front of us the possibilities as -- as -- as thought through by lawyers and others who have an interest in this subject.

****
Winslow_Homer_-_Blackboard_(1877)I raise it because I want to think if there's some harm in doing that that I haven't thought of.  Is there some reason - would it be harmful to somebody? Because I do see an advantage.  You could have a blackboard and have everyone's
 theory on it, and then you'd have the pros and cons and then you'd be able to look at them all and then you'd be able see perhaps different ones for different variations and, you know, that's -- maybe there are different parts of gerrymandering that rises in different circumstances, dah-dah-dah. You see the point.

Later, in a colloquy with the attorney for Maryland, Justice Breyer again surfaced his proposal:

That's why I was thinking you've got to get all these standards lined up together, you know, and you have to have people criticizing each one back and forth and see if any of them really will work or some work in some cases and some work in other cases and it depends on the type you have.I -- I mean, that isn't squarely addressed by the lawyers because they're focused on their one case, et cetera.

Will there be a reargument?  It's difficult to tell.  But if there is, one might expect more than one brief that outlines the possible standards, with their advantages, disadvantages, and possible results in different cases, suitable for a "blackboard."

[image: Winslow Homer, Blackboard, 1877, via

March 28, 2018 in Association, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Oral Argument Analysis, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Tuesday, March 27, 2018

Daily Read: Janet Calvo on DACA and State Professional Licensing

Who needs a professional license? In California, anyone wishing to be an accountant, acupuncturist, cosmetologist, court reporter, bedding salesperson, landscape architect, pharmacist, teacher, real estate agent, pest control operator, or teacher, among many others. Yet the type of immigration status that should be a prerequisite for obtaining a state professional license has not been consistent, at least until California did implement a remedy. And in New York, with a different array of immigration regulations for professional licensing, a different type of remedy was eventually decided upon.

Delia_Boccardo_make-upIn her article Professional Licensing and Teacher Certification for Non-Citizens: Federalism, Equal Protection and a State’s Socio-Economic Interests, in Columbia Journal of Race and Law, Professor Janet Calvo analyzes the intersection of Equal Protection doctrine and the Tenth Amendment to argue that states have the constitutional responsibility as well as the constitutional power to remove immigration barriers to state licensing requirements. Distinguishing among categories of immigration status raises equal protection concerns and, as the Second Circuit has held, constitutional violations. Additionally, licensing is a traditional state function which Congress can regulate to some extent but not totally commandeer.

As Calvo argues, California and New York each took a unique path to solving the licensing issue, yet taken together, they offer a map to other states, organizations, and communities seeking to address similar problems.

 

March 27, 2018 in Equal Protection, Federalism, Fourteenth Amendment, Profiles in Con Law Teaching, Tenth Amendment, Theory | Permalink | Comments (0)

Wednesday, March 14, 2018

Federal District Judge: Equal Protection Prohibits Policy Banning Transgender Student from Facilities

In his opinion in M.A.B. v. Board of Education of Talbot County, United States District Judge George Russell, III of the District of Maryland denied the motion to dismiss by the school board of a challenge to its decision to require M.A.B., a transgender boy, to use restrooms and locker rooms for girls.

Judge Russell first found that the school's decision violated Title IX, 20 U.S.C. § 1681(a), entering the murky waters left by the United States Supreme Court's stay and vacation of the Fourth Circuit's decision in G.G. v. Glouster County School Board after the Trump Administration change interpretation of the anti-discrimination policy.

Judge Russell also decided that the school's decision violated the Equal Protection Clause, in an extensive discussion relying upon the developing transgender equal protection doctrine, including the Seventh Circuit's 2017 decision in Whitaker v. Kenosha Unified School District as well as the Eleventh Circuit's decision in Glenn v. Brumby, the only two circuits to have ruled on the issue, and district court cases in the school context such as Evanacho v. Pine-Richland School District and those regarding the transgender military ban such as Doe v. Trump and Stone v. Trump

Judge Russell found that classifications based on transgender status merit intermediate scrutiny for two reasons. First, he found that transgender classifications were tantamount to sex classifications, specifically discussing sex-stereotyping.

Second, he found that "transgender individuals are, at minimum, a quasi-suspect class," under a four-factor test similar to that first articulated in Carolene Products footnote 4:

  • whether the class has been historically “subjected to discrimination;”
  • whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society;"
  • whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;”  and
  • whether the class is “a minority or politically powerless.” 

FootnoteJudge Russell then analyzed each of these factors, with an interesting reference in a footnote, and found them satisfied, concluding that intermediate scrutiny was appropriate, and quoting the standard as that articulated in United States v. Virginia (VMI). 

While Judge Russell's opinion seemed to cast some doubt on whether the school board's proffered privacy rationale could satisfy the "important" prong, especially as described in VMI, he noted that the procedural posture of the decision was a motion to dismiss. However, even assuming privacy was an important interest, he concluded that the means chosen - - - the banning of the transgender male student from male bathrooms and locker rooms - - - was not substantially related to the privacy interest. Again, Judge Russell quoted Whitaker rejecting the school board's attempt to distinguish it on the basis that locker rooms were not at issue in the Seventh Circuit case and stated that Whitaker's "reasoning applies with similar force."Judge Russell then countered the school board's argument that "if M.A.B. changing clothes in the designated restrooms makes him feel humiliated and embarrassed, as well as alienated from his peers, then students who use those restrooms for greater privacy will feel the same way," with four separate reasons why the argument was flawed. For example, Judge Russell wrote that the school board's argument "overlooks the entire context surrounding the Policy:  "It singles M.A.B. out, quite literally because it does not apply to anyone else at the High School, and marks him as different for being transgender."  On the contrary, Judge Russell wrote, "a boy who makes the personal choice to change clothes in a single-use restroom or stall does not experience any such singling out at the hands of his school."

Judge Russell, however, did not grant M.A.B.'s motion for preliminary injunction, given M.A.B.'s status for the current school year, but "aware that the parties likely hope for a resolution to this case before the following school year," directed "the parties to confer and submit to the Court a joint proposed scheduling order." 

March 14, 2018 in Equal Protection, Fourteenth Amendment, Gender, Opinion Analysis, Recent Cases, Sexuality | Permalink | Comments (0)

Monday, February 26, 2018

Yet Another Gerrymandering Case, but with Not-Your-Usual Standing Problem

Judge William Q. Hayes (S.D. Cal.) on Friday dismissed a challenge to a city's new single-member districts for its city council elections for lack of standing. The ruling means that the city's new districting plan stays in place.

The case, Higginson v. Becerra, arose when the City of Poway switched from at at-large system to a single-member-district system of elections for its four-member city council. The City made the change reluctantly, and only in response to threatened litigation by a private attorney, who wrote to the council that its at-large system violated the California Voting Rights Act. (The attorney argued that the at-large system, along with racially polarized voting in the City, effectively prevented Latinos from electing a candidate of their choice.) The council vigorously disagreed that its at-large system violated the CVRA, but agreed to change, anyway, in order to avoid litigation costs.

After the council drew its new single-member districts, Don Higginson, a voter in the new District 2, sued, arguing that the CVRA violated equal protection. His theory was a little unusual: "The CVRA makes race the predominant factor in drawing electoral districts. Indeed, it makes race the only factor given that a political subdivision, such as the City, must abandon its at-large system based on the existence of racially polarized voting and nothing more." (In other words: according to Higgerson, because there was racially polarized voting, any CVRA requirement to undo the effects of that voting in an at-large system violated equal protection.)

Higginson sued AG Becerra for injunctive relief (to stop him from enforcing the CVRA) and the City for injunctive relief (to stop it from using its single-member district map, as required by the CVRA (according to Higgerson)).

The court dismissed the case for lack of standing. The court said that Higginson's harm in not being able to vote for council-members in three of the four districts (because the CVRA required the change to single-member districts)--assuming this was even a cognizable harm--wasn't traceable to AG Becerra or the City. As to AG Becerra, the court said that the AG had not enforced the CVRA against the City, and therefore couldn't have caused Higginson's alleged harm. As to the City, the court said that it acted out of a desire to avoid litigation costs, not because it thought its at-large system violated the CVRA, and therefore it couldn't have caused his alleged harm in the name of CVRA compliance. (For the same reasons, the court said that Higginson failed to demonstrate that his requested relief would redress his alleged harm.)

Without causation and redressability, Higginson lacked standing, and the court dismissed the case.

February 26, 2018 in Cases and Case Materials, Elections and Voting, Equal Protection, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Friday, February 23, 2018

Second Circuit Upholds NYC's Premises Handgun License Restriction

In its opinion in New York State Rifle & Pistol Ass'n v. City of New York, a unanimous panel of the Second Circuit, affirming the district judge, rejected a constitutional challenge to a New York City regulation regarding "premises license" for a handgun. Under 38 RCNY § 5-23, a person having a premises license “may transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately.” The definition of "authorized" range/shooting club, however, includes a limit to facilities located in New York City and is the essence of the plaintiffs' challenge.  The New York State Rifle & Pistol Ass'n, as well as three individual plaintiffs, argued that this limitation is unconstitutional pursuant to the Second Amendment, the dormant commerce clause, the right to travel, and the First Amendment. Their specific arguments centered on the two instances: that one plaintiff was prohibited from taking his handgun to his second home in Hancock, New York; and that all plaintiffs wanted to take their handguns to firing ranges and competitions outside of New York City. 

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On the Second Amendment challenge, the opinion for the panel by Judge Gerald Lynch tracked the analytic structure articulated by the Second Circuit in New York State Rifle & Pistol Ass'n v. Cuomo, decided in 2015. Assuming that the Second Amendment applied, the court concluded that intermediate scrutiny was the appropriate standard based on its analysis of two factors: "(1) ‘how close the law comes to the core of the Second Amendment right’ and (2) ‘the severity of the law’s burden on the right.' "  The court found that the prohibition of a plaintiff from taking the handgun to his second home was not a substantial burden: he could have a handgun at his second home if he applied to that county and noted that the plaintiff did not even estimate the money or time it would cost to obtain a second premises license and handgun. Likewise, the court found that limiting their training opportunities to New York City - - - given that there are at least 7 training facilities in New York and one in each borough - - - was not a substantial burden. Moreover, "nothing in the Rule precludes the Plaintiffs from utilizing gun ranges or attending competitions outside New York City, since guns can be rented or borrowed at most such venues for practice purposes."

In applying intermediate scrutiny, the court found that public safety was an important interest served by the regulation. The court referred to a detailed affidavit by the Commander of the License Division who

explained that premises license holders “are just as susceptible as anyone else to stressful situations,” including driving situations that can lead to road rage, “crowd situations, demonstrations, family disputes,” and other situations “where it would be better to not have the presence of a firearm.” Accordingly, he stated, the City has a legitimate need to control the presence of firearms in public, especially those held by individuals who have only a premises license, and not a carry license.

Additionally, the city had an interest in enforcing the premises license - - - which again is distinct from a carry license - - - and under a prior rule allowing transport to ranges outside the city the Commander's affidavit concluded this had made it “too easy for them to possess a licensed firearm while traveling in public, and then if discovered create an explanation about traveling for target practice or shooting competition.”

After finding the regulations survived the Second Amendment, the court's treatment of the dormant commerce clause, right to travel, and First Amendment issues was more succinct. For both the dormant commerce clause and right to travel arguments, one of the most obvious problems in the plaintiffs' arguments was their failure to convincingly allege issues regarding crossing state lines. Under the commerce clause analysis, there was no showing that the city or state was engaging in protectionist measures and, as in the Second Amendment analysis, the plaintiffs were "free to patronize firing ranges outside of New York City, and outside of New York State; they simply cannot do so with their premises-licensed firearm." Similarly, the plaintiffs could travel, they simply could not bring their handgun licensed for a specific premises with them.

On the First Amendment, the court rejected the argument that being "forced" to join a gun club in New York City or not being allowed to join a gun club outside of the city qualified as expressive association. But even if it did, the rule does not mandate or forbid joining a specific club, again, the New York City rule "only their ability to carry the handgun that is licensed for a specific premises outside of those premises."

Thus, the Second Circuit rejected constitutional challenges that essentially sought to broaden a premises-only license into a carry-license for handguns.

[image via]

February 23, 2018 in Current Affairs, Dormant Commerce Clause, Due Process (Substantive), Equal Protection, First Amendment, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Thursday, February 1, 2018

Federal Judge Declares Florida's Felony Disenfranchisement Restoration Scheme Unconstitutional

 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.

Spanish_Florida_Map_1803While 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.

 

February 1, 2018 in Association, Elections and Voting, Equal Protection, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, January 24, 2018

NAACP Challenges Recission of TPS Status for Haitians As Violating Equal Protection

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.

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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.

 

January 24, 2018 in Current Affairs, Equal Protection, Fifth Amendment, Race, Teaching Tips | Permalink | Comments (0)

Friday, January 19, 2018

SCOTUS Stays North Carolina Redistricting Order

 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. 

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January 19, 2018 in Elections and Voting, Equal Protection, First Amendment, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)

Thursday, January 18, 2018

Seventh Circuit Rules Against Territorial Plaintiffs in Absentee-Voting-Rights Case

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."

January 18, 2018 in Cases and Case Materials, Elections and Voting, Equal Protection, Federalism, News, Opinion Analysis, Travel | Permalink | Comments (0)

Monday, January 15, 2018

Daily Read: MLK and Affirmative Action

For Martin Luther King day, a good read is Professor David B. Oppenheimer's article Dr. King’s Dream of Affirmative Action, available on ssrn

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.")

Martin_Luther_King_Jr_NYWTS_4Yet 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."

 

 

January 15, 2018 in Current Affairs, Equal Protection, First Amendment, Fourteenth Amendment, Race, Reconstruction Era Amendments, Scholarship | Permalink | Comments (0)

Saturday, January 13, 2018

Eighth Circuit Rejects Challenge to Missouri's Onerous Hair-Braiding License Requirements

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.

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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]

January 13, 2018 in Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Opinion Analysis, Race, Teaching Tips | Permalink | Comments (1)

Friday, January 12, 2018

SCOTUS to Hear Texas Redistricting Case

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." 

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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.

 

January 12, 2018 in Elections and Voting, Equal Protection, Fifteenth Amendment, Fourteenth Amendment, Race, Recent Cases, Supreme Court (US) | Permalink | Comments (0)