Tuesday, July 23, 2013
In a fifteen page opinion, federal district judge Timothy Black enjoined the application of Ohio's state DOMA provisions - - - both statutory and the state constitutional amendment - - - to a same-sex couple married out of state. In Obergefell v. Kasich, the judge adapted the reasoning of the United States Supreme Court's June opinion in Court's United States v. Windsor, declaring section 3 of the federal Defense of Marriage Act, DOMA unconstitutional. Judge Black's opinion is part of the aftermath of Windsor that we most recently discussed here.
Judge Black's opinion has a succinct discussion of equal protection doctrine and concludes,
Under Supreme Court jurisprudence, states are free to determine conditions for valid marriages, but these restrictions must be supported by legitimate state purposes because they infringe on important liberty interests around marriage and intimate relations.
In derogation of law, the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal.
Judge Black's opinion has a brief explicit mention of "animus," but the concept permeates the opinion. For example, he notes that before the state enacted its DOMA provisions:
Longstanding Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. This legal approach is firmly rooted in the longstanding legal principle of “lex loci contractus” -- i.e., the law of the place of the contracting controls. Ohio has adopted this legal approach from its inception as a State.
Thus, for example, under Ohio law, as declared by the Supreme Court of Ohio in 1958, out-of-state marriages between first cousins are recognized by Ohio, even though Ohio law does not authorize marriages between first cousins.
To be sure, the injunction is a limited one applicable to sympathetic facts. One of the partners is a hospice patient and the relief requested regards the martial status and surviving spouse to be recorded on the death certificate. Yet Judge Black's reasoning is not limited and opens the door to rulings that Ohio's DOMA provisions limiting state recognition of marriages to only opposite-sex marriages fails constitutional scrutiny under the Fourteenth Amendment's equal protection clause.
July 23, 2013 in Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Opinion Analysis, Recent Cases, Sexual Orientation, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)
Friday, July 19, 2013
Justice John Paul Stevens in the New York Review of Books writes a thoughtful "dissent" in the Court's ruling in Shelby County around his review of Gary May's outstanding book Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy (Basic). Justice Stevens's piece is mostly an indictment of Chief Justice Roberts's majority opinion in Shelby County, based on some of May's study of voting discrimination; but he also has quite kind things to say (and justifiably so) about May's excellent history. (Our posts on Shelby County itself are collected here.)
Justice Stevens writes that May takes a longer, more detailed view of the history of voting than Chief Justice Roberts did in Shelby County--a view that Justice Ginsburg also took in her dissent in that case. He notes that Chief Justice Roberts didn't even mention anything before 1890 in his opinion, and glossed over significant details since.
And Justice Stevens takes on Chief Justice Roberts's new-found doctrine of "equal state sovereignty"--a doctrine that drove a good part of the result. Justice Stevens says that unequal treatment of states is woven right in to the fabric of the Constitution itself. In particular, the three-fifths clause gave southern states a "slave bonus" in political power, giving those states disproportionate representation and even leading to the election of Thomas Jefferson over John Adams in 1800. If the original text of the Constitution itself can treat states so dramatically differently, why this new doctrine of equal state sovereignty? (We posted on this new doctrine here.) (It can be no answer that the Reconstruction Amendments abolished the three-fifths counting system, for the Reconstruction Amendments themselves were specifically designed to give Congress power over the states, and led to dramatically different treatment of the states. It similarly can be no answer that the Tenth and Eleventh Amendments protect state sovereignty (even if they do), because the Reconstruction Amendments came after them. As last-in-time, they at least inform the meaning of the earlier amendments, even if they don't do away with them entirely.)
July 19, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Elections and Voting, Federalism, Fifteenth Amendment, History, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Tuesday, July 16, 2013
More on the Aftermath of Windsor (DOMA) and Perry (Prop 8) decisions: California, Pennsylvania, Arkansas, North Carolina Litigation
The Court's decisions in United States v. Windsor, declaring section 3 of DOMA unconstitutional, and Perry v. Hollingsworth, holding that the "proponents" of Proposition 8 lacked standing to appeal a federal judge's declaration of Prop 8's unconstitutionality, have not settled the matter of the unconstitutionality of same-sex marriage restrictions.
In what promises to be a continuing series, here are a few highlights:
In California, the home of Proposition 8, the litigation centers on Prop 8's constitutional status given that the Supreme Court held that the proponents did not have standing to appeal the federal district judge's holding that Prop 8 made a sexual orientation classification that does not satisfy the rational basis standard and thus violates the Equal Protection Clause. The original injunction was stayed, and again stayed by the Ninth Circuit even as it affirmed the district judge, but after Perry, the Ninth Circuit dissolved the stay amid questions about the effect of Perry which we discussed here.
The proponents of Prop 8 have moved (back) to the state courts, filing Hollingsworth v. O'Connell on July 12 seeking a stay from the California Supreme Court. Their basic argument is that a single federal judge should not have the power to declare a law unconstitutional for the entire state and they seek a mandate forbidding county clerks from issuing same-sex marriage licenses. On July 16, the California Supreme Court declared - - - as a docket entry and without opinion - - - "The request for an immediate stay or injunctive relief is denied." It also granted the motions for counsel to proceed pro hac vice, so the case will presumably be moving forward.
In Pennsylvania, a complaint in Whitewood v. Corbett was filed July 9, as a new constitutional challenge to the state's "little DOMA" provisions passed the same year as the federal DOMA, 1996 - - - 23 Pa. Consolidated Statute §1102 (defining marriage as between one man and one woman) and 23 Pa. Consolidated Statutes §1704 (declaring one man-one woman marriage as the strong public policy of state and refusing to recognizing same-sex out of state marriages). The Complaint interestingly quotes and cites language from Windsor several times. For example:
¶10. The exclusion from marriage undermines the plaintiff couples' ability to achieve their life goals and dreams, threatens their mutual economic stability, and denies them "a dignity and status of immense import." United States v.Windsor, No.12-307, Slip Op., at 18 (U.S. June 26, 2013). Moreover, they and their children are stigmatized and relegated to a second class status by being barred from marriage. The exclusion "tells[same-sex couples and all the world- that their relationships are unworthy" of recognition. Id. at 22-23. And it "humiliates the ...children now being raised by same-sex couples" and "makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." Id. at 23.
The Attorney General for Pennsylvania, Kathleen Kane, has reportedly declared she will not defend the constitutionality of the state statutes barring same-sex marriage. The Pennsylvania Governor, Tom Corbett, the named defendant and a Republican, as well as the state legislature, are presumably studying the holding regarding BLAG's standing in Windsor.
In Arkansas, the complaint in Wright v. Arkansas was filed in state court on July 2. Arkansas has both a statute and constitutional amendment DOMA (the belt and suspenders approach). The 29 page complaint does not quote or cite Windsor, but does claim that the Arkansas prohibition of same-sex marriage violates the Due Process and Equal Protection Clauses of both the state and federal constitution, as well as violating the Full Faith and Credit Clause. First reports are that the state will defend the lawsuit.
In addition to new complaints filed post-Windsor (Perry), ongoing litigation will certainly be changed. For example, the North Carolina federal court complaint in Fisher-Borne v. Smith challenging North Carolina's failure to provide so-called second-parent adoption is being amended - - - reportedly with agreement of the state - - - to include a claim challenging the state's prohibition of same-sex marriage.
While one message of Windsor and even Perry could be understood as being that marriage, same-sex or otherwise, is a matter of state law, another message of Windsor is certainly that there are constitutional problems prohibiting same-sex marriage.
With a patchwork of state laws, this is a fertile landscape for continuing litigation.
[all images Wikimedia; final image here]
July 16, 2013 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fifth Amendment, Fourteenth Amendment, Interpretation, News, Recent Cases, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, July 8, 2013
A Fourth Circuit panel issued its opinion in Sons of Confederate Veterans, Virginia Division v. City of Lexington, Virginia holding that Lexington's "flag pole" ordinance limiting flags to that of the nation, state, and city was constitutional under the First Amendment. The Sons of Confederate Veterans argued on appeal that the City was motivated in enacting the ordinance by its desire to bar the Confederate flag from its flagpoles. For the court, even if that were true, it was of no constitutional moment. The flag poles had been a "designated public forum," but the
Ordinance has the effect of closing a designated public forum — the perpetual availability of which was never guaranteed — to all private speakers. The City was entitled to listen to the public and to enact ordinances that are constitutional in text and in operation, and that are supported by the electorate.
The court quickly added, however, that
the Ordinance specifies that it does not “prohibit or curtail individuals from carrying flags in public and/or displaying them on private property.” Lexington City Code § 420-205(C) (2011). As a result, all private groups and individuals remain free to express their flag-bound messages in other ways.
The limitation of the flag poles - - - or flag standards - - - may or may not be operative in a reported plan by a Louisiana legislator to ban the rainbow flag (aka LGBT pride flag) from government property. The prompting incident was reportedly a rainbow flag that was "hoisted" on a government flag pole to less than universal acclaim.
If the Louisiana legislators need some advice about drafting a constitutional ordinance, they might have a look at Sons of Confederate Veterans. A ban on all nongovernmental flags, including the rainbow flag, on government property? Violative of the First Amendment. A ban on all nongovernmental flags on Government-owned flag poles? Likely to survive a First Amendment challenge. And - - - just to be clear - - - a ban on rainbow flags while allowing Confederate flags? Not constitutional.
And a government ban specifically on the "rainbow Confederate flag" ???
Wednesday, July 3, 2013
The Fourth Circuit en banc today issued its opinion in Greater Baltimore Center for Pregnancy Concerns, Incorporated v. Mayor and City Council of Baltimore reversing the district court's granting of a preliminary injunction against the ordinance requiring a limited-service pregnancy center "provide its clients and potential clients with a disclaimer substantially to the effect that the center does not provide or make referral for abortion or birth-control services." Essentially, the city's concern is that certain pregnancy centers can be mistaken (or even masquerade as) reproductive medical centers but only offer specific counseling that women not terminate their pregnancies.
The challengers argued that the ordinance was facially unconstitutional under the First Amendment and the district judge granted summary judgment in their favor. For the en banc majority, however, "the summary judgment decision was laden with error, in that the court denied the defendants essential discovery and otherwise disregarded basic rules of civil procedure."
The majority opinion, authored by Judge King, in which Chief Judge Traxler and Judges Motz, Duncan, Keenan, Wynn, Floyd, and Thacker joined, stressed that its conclusion was procedural and that it did not express a view on the ultimate merits. Nevertheless, as in most cases, the merits and procedural issues are intertwined. For example, one of the crucial issues here is whether the speech being regulated is commercial or not. As the majority stated,
The district court’s denial of discovery and failure to adhere to the summary judgment standard marred its assessment of, inter alia, the City’s contention that the Ordinance targets misleading commercial speech and thus is subject to rational basis (rather than strict) scrutiny. While the strict scrutiny standard generally applies to content-based regulations, including compelled speech, see Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641-42 (1994), less-demanding standards apply where the speech at issue is commercial. Disclosure requirements aimed at misleading commercial speech need only survive rational basis scrutiny, by being “reasonably related to the State’s interest in preventing deception of consumers.” Zauderer v. Office of Disciplinary Counsel of the Supreme Court, 471 U.S. 626, 651 (1985) (explaining that, “because disclosure requirements trench much more narrowly on an advertiser’s interests than do flat prohibitions on speech, warnings or disclaimers might be appropriately required in order to dissipate the possibility of consumer confusion or deception” (alterations and internal quotation marks omitted)); accord Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324, 1339-40 (2010).
There are two dissenting opinions. The first, by Judge Wilkinson, derides the majority for failing to acknowledge "the dangers of state-compelled speech." He notes that the Supreme Court "only recently reiterated" the importance of the doctrine in Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., the prostitution pledge case. Wilkinson accuses the majority of being enchanted with "extended procedures" and argues that it only authorizes a "fishing expedition" against the plaintiffs. The second dissent, authored by Judge Niemeyer, and joined by Judges Shedd, and Agee, as well as Wilkinson, contends that the ordinance governs noncommercial speech, mandates specific speech, and should be subject to strict scrutiny.
The judges did agree - - - amongst themselves and with the district judge - - - that St. Brigid’s Roman Catholic Congregation Incorporated and Archbishop William E. Lori lacked standing to be co-plaintiffs, but this issue is a divisive one. Indeed, there is an overdue Second Circuit panel opinion in the appeal of a district judge's conclusion that NYC's similar Local Law 17 was unconstitutional.
Moreover, the First Amendment challenges to pregnancy center "disclosures" as compelled speech mirror the First Amendment challenges to abortion provider "disclosures" as compelled speech, as in statutes from Kansas and South Dakota. The government's interest in preventing "misleading" speech or in providing full disclosure is exceedingly similar in both situations.
For scholars (including student scholars) looking for a terrific topic combining the First Amendment and reproductive rights, theses cases offer much.
We posted on two state efforts in Texas and North Carolina to enact election laws that would have required federal preclearance before last week's ruling in Shelby County v. Holder. In Texas, the laws were denied preclearance by a three-judge federal court; those rulings, Texas v. Holder and Texas v. United States, were vacated by the Supreme Court two days after Shelby County came down, making way for the laws to go on the books.
I posted at the ACSblog on what this all means, and how it illustrates the stunning impact of Shelby County. In short, the federal courts in the two Texas cases held that Texas's proposed voter-ID law and its redistricting plan for congressional and state legislative districts would likely have a retrogressive effect on the voting rights of racial minorities. (One of those courts also found that Texas drew its redistricting map with a discriminatory purpose.) Now that those cases are vacated, and now that the Texas AG has ordered the laws enforced, we'll soon get a fuller picture of the impact of Shelby County.
Kansas' new abortion law that took effect July 1 - - - running 70 pages and known as Kansas HB 2253 - - - has already been the subject of a constitutional challenge. HB 2253 seeks to restrict abortion and other reproductive services in numerous ways in accord with the legislative finding that "the life of each human being begins at fertilization." The Complaint filed by the local Planned Parenthood organization, Comprehensive Health of Planned Parenthood of Kansas and Mid- Missouri, Inc. (CHPPKM) specifically challenges two provisions of the law on First Amendment grounds.
Planned Parenthood v. Rounds. Even though there was some "uncertainty" as to the reliability of the studies purporting to show a link between abortion and suicide ideation - - - including the very meaning of the word "risk" - - - the majority in Rounds found that the provision survived by giving great deference to South Dakota. One question will be whether the Tenth Circuit will be as deferential as the majority in its sister circuit or be as rigorous as the dissenting judges in Rounds.
Second, the complaint challenges the provision that compels CHPPKM "to place on the homepage of its public website both a hyperlink to a government website that contains the government’s viewpoint on abortion, and a scripted message of endorsement of the content on the government’s website, even where CHPPKM disagrees with the message." In light of last month's decision by the United States Supreme Court in United States Agency for International Development v. Alliance for Open Society International, Inc., - - - the prostitution pledge case - - - invalidating a requirement that organizations that received direct funding could not be compelled to espouse views that were not their own, this claim seems on firm First Amendment footing. The distinction is a factual one - - - the hyperlink - - - although interestingly CHPPKM contends in its complaint this further complicates the matter because it cannot be expected to constantly monitor the government site. Certainly, however, much of the language and reasoning in Chief Justice Roberts' majority opinion for the Court solidifies compelled speech doctrine. And interestingly, compelled speech doctrine is being argued by anti-abortion organizations to challenge laws requiring "pregnancy crisis centers" to disclose the fact that they are not medical facilities. ( For example, a district judge held NYC's Local Law 17 unconstitutional in 2011; an opinion from the Second Circuit has been anticipated since oral argument over a year ago). UPDATE: The Fourth Circuit's en banc opinion July 3 on a Baltimore ordinance.
A popular discussion of the controversy, including some of my own thoughts, is available on "KC Currents" broadcast by KCUR, a local NPR station.
Tuesday, July 2, 2013
North Carolina Republicans wasted little time in introducing legislation to tighten voting rules after the Supreme Court last week struck the coverage formula for preclearance in the Voting Rights Act. North Carolina was partially covered by the preclearance provision in Section 5 of the VRA, before the Court struck the coverage formula in Section 4 last week in Shelby County v. Holder. The LA Times first reported this weekend that state Republicans intended to tighten voting rules under their new-found, unfettered authority to act without federal preclearance. Legislation was introduced Tuesday.
SB 721, "Election Omnibus," introduces a voter ID requirement, tightens felon disenfranchisement rules, and limits early voting days.
(State Democrats introduced a competing measure, S 708, the Ella Baker Voter Empowerment Act, that would open up voting in the state.)
North Carolina was a partially covered jurisdiction under Section 4 (before Shelby County struck Section 4): 40 out of 100 of its counties were covered. That meant that those counties had to gain federal preclearance under Section 5 of the VRA before making any changes to their election laws--and to show that their proposed changes wouldn't produce a racially retrogressive effect.
But now that Section 4 is off the books, those counties don't need to gain federal preclearance. And the state can much more easily change its election laws--and enact bills like SB 721.
Still, North Carolina election laws are subject to Section 2 litigation under the VRA.
Monday, July 1, 2013
The Alabama Constitutional Revision Commission is considering a proposal to rewrite a section of the state constitution that allows racially segregated schools. The provision is an embarrassment (to say the very least), but state voters can't seem to vote it out of the state constitution. (Voters failed to strike it twice in the last 10 years. The latest vote, in 2012, likely failed because some argued that the amendment didn't go far enough--because it wouldn't have repealed the provision saying that there's no constitutional right to a public education.)
This, the week after the Supreme Court struck the coverage formula for the preclearance provision in the Voting Rights Act--a case brought by Alabama's own Shelby County.
The provision, Section 256, as amended by Amendment 111, approved by voters in 1956, reads:
It is the policy of the state of Alabama to foster and promote the education of its citizens in a manner and extent consistent with its available resources, and the willingness and ability of the individual student, but nothing in this Constitution shall be construed as creating or recognizing any right to education or training at public expense . . . .
To avoid confusion and disorder and to promote effective and economical planning for education, the legislature may authorize the parents or guardians of minors, who desire that such minors shall attend schools provided for their own race, to make election to that end, such election to be effective for such period and to such extent as the legislature may provide.
The Commission today considered a new Section 256, deleting the reference to segregated schools and the lack of right to education, and stating simply that "The legislature shall establish, organize and maintain a system of public schools throughout the state for the benefit of children thereof." But the Commission couldn't agree on final language and sent the revision to a subcommittee.
The Commission also rejected a provision that would have provided a stronger veto for the governor. (The legislature can currently override a veto with a bare majority in both houses. The proposal would have required a 3/5 vote in both houses.)
Friday, June 28, 2013
As we reported shortly after the Court released its opinion in Shelby County v. Holder, striking the coverage formula for preclearance under the Voting Rights Act, Chief Justice Roberts's majority opinion relied heavily on the newly minted doctrine of equal state sovereignty. That doctrine, argues Judge Richard Posner (7th Cir.) at Slate, doesn't exist:
Shelby County v. Holder, decided Tuesday, struck down a key part of the Voting Rights Act (the part requiring certain states with a history of racial discrimination in voting to obtain federal permission in advance to change their voting procedures--called "preclearance") as violating the "fundamental principle of equal sovereignty" of the states. This is a principle of constitutional law of which I had never heard--for the excellent reason that . . . there is no such principle.
So where does this principle come from? It comes from Chief Justice Roberts's majority opinion in Northwest Austin Municipal Utility District Number One v. Holder, the 2009 case holding that NAMUDNO can bail out of preclearance and thus dodging the constitutional question whether Congress had authority to reauthorize preclearance in 2006.
In NAMUDNO, as traced in the pieces linked above, Chief Justice Roberts worried about the "federalism costs" of preclearance, including its intrusion on equal state sovereignty. But he failed to mention that the principle of equal state sovereignty previously applied only to the conditions upon which states were admitted to the Union, and not to day-to-day treatment of the states by Congress, much less congressional treatment of the states under the enforcement power in the Reconstruction Amendments. Justices Stevens, Souter, Ginsburg, and Breyer all signed on to that opinion.
Chief Justice Roberts picked up that NAMUDNO language in Shelby County and ran with it. He also poked Justices Ginsburg and Breyer for signing on to NAMUDNO but dissenting in Shelby County (in part because they said that there is no general doctrine of equal state sovereignty).
This is but one example of the way that Chief Justice Roberts has slowly pulled the Court to the right, argues Adam Liptak in today's NYT--an article well worth reading, whether you think the argument is too strong, too weak, or just right. It involves a slow, patient approach to changing the doctrine--by first writing relatively benign opinions (and gaining the votes of the more liberal Justices) but that nevertheless include potentially explosive language (like the reference in NAMUDNO to the doctrine of equal state sovereignty), then later citing that language (and the fact that the more liberal members signed on) in much, much bigger cases (like Shelby County).
In the wake of the Court's decisions in United States v. Windsor, declaring section 3 of DOMA unconstitutional, and Perry v. Hollingsworth, holding that the "proponents" of Proposition 8 lacked standing to appeal a federal judge's declaration of Prop 8's unconstitutionality, many questions remain.
The first question is the status of Proposition 8. Recall that the federal district judge held Prop 8 made a sexual orientation classification that does not satisfy the rational basis standard and thus violates the Equal Protection Clause. The district judge's opinion enjoined the enforcement of Proposition 8, an injunction which he then stayed. Chief Judge Roberts' majority opinion in Perry describes district judge Walker's order as being broad:
"After a 12-day bench trial, the District Court declared Proposition 8 uncon- stitutional, permanently enjoining the California officials named as defendants from enforcing the law, and “direct- ing the official defendants that all persons under their control or supervision” shall not enforce it. Perry v. Schwarzenegger, 704 F.Supp. 2d 921, 1004 (ND Cal. 2010).
Received copy of Supreme Court opinion dated 06/26/2013. The judgment or mandate of this Court will not issue for at least twenty-five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing. Supreme Court No: 12-144.  [10-16696, 11-16577].
One of the best discussions of this issue is by ConLawProf Marty Lederman over at SCOTUSblog. Lederman asks "even if Judge Walker’s injunction should have been limited to the protection of the plaintiffs before him—so what? That injunction nevertheless governs the case, and it will be operative, regardless of whether it should have been more tailored." He concludes that Justice Kennedy, dissenting in Perry will be proven correct that “the Court’s opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed.”
The second question is one that is being voiced less, but is worth considering: Why are there no opinions by Justices Sotomayor, Ginsburg, Kagan, and Breyer? Justice Ginsburg, who made headlines with her "skim milk" comment during oral argument in Windsor, could have effectively written a concurring opinion that might have counter-balanced some of the arguments in Alito's separate dissenting opinion regarding the function of marriage. ConLawProf David Cohen over at FeministLawProfessors ConLawProf argues that the lack of opinions matters:
By remaining silent, not only are the liberal Justices depriving us from learning their particular views, but they are depriving future litigants the opportunity to use their strong reasoning to further their cause. After all, the logic in today’s concurring opinions often becomes the logic in tomorrow’s majority opinion.
It might be added that perhaps one of these Justices could have provided a rigorous equal protection analysis.
There are certainly more questions raised by Windsor and Perry, but these two are central.
June 28, 2013 in Courts and Judging, Current Affairs, Equal Protection, Federalism, Fourteenth Amendment, Interpretation, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Teaching Tips, Theory | Permalink | Comments (1) | TrackBack (0)
Thursday, June 27, 2013
The Texas Attorney General announced today that the state would move forward with its voter ID law and redistricting plan, both of which were denied preclearance by the D.C. District Court. The move comes the same day that the Supreme Court vacated the lower court's denial of preclearance in light of its ruling earlier this week in Shelby County v. Holder, striking Section 4, the coverage formula for preclearance, of the VRA.
Because Shelby County didn't touch Section 2 of the Voting Rights Act, Texas voter ID and redistricting are still subject to Section 2 lawsuits.
Tuesday, June 25, 2013
The Supreme Court today ruled in Shelby County v. Holder that the coverage formula for the preclearance provision of the Voting Rights Act exceeded congressional authority under the Fifteenth Amendment. The ruling means that the preclearance provision of the VRA remains on the books, but sits dormant, as there is no formula specifying its coverage. Congress can re-write the formula, but it seems unlikely that this Congress can do that in a way that would satisfy this Supreme Court. The ruling did not touch Section 2 of the VRA, the section banning race discrimination and allowing individual case-by-case litigation against offending practices.
We posted several times this morning on the ruling; here is our coverage so far:
- Court Strikes Voting Rights Act Preclearance Coverage Formula
- Chief Justice Roberts's Paean to Equal State Sovereignty
- The Core Problem With Preclearance Coverage Under the Voting Rights Act
- What's Next for Voting Rights?
- Justice Thomas's Concurrence on Voting Rights
- Justice Ginsburg's Dissent in Shelby County
June 25, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, News, Opinion Analysis, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Justice Ginsburg wrote the lengthy and detailed dissent in today's ruling striking the coverage formula for the preclearance provision of the Voting Rights Act. She was joined by Justices Breyer, Sotomayor, and Kagan.
Justice Ginsburg made several points:
- Congressional authority under the Reconstruction Amendments is vast, and Congress is the principal enforcer of equal voting rights under the Constitution. The Court should defer to Congress in evaluating its enforcement mechanisms--applying rational basis review, under Chief Justice Marshall's famous formulation in McCulloch v. Maryland--and the Court should apply that test even more deferentially for a re-authorization of an act, like the VRA.
- Congress more than did its job in compiling a legislative record of vote discrimination in the jurisdictions covered by Section 4. Justice Ginsburg carefully recounted this record and some particularly egregious violations in her dissent.
- Shelby County, Alabama, of all jurisdictions, had no business bringing this case. Shelby County lodged a facial challenge to Sections 4 and 5, yet Shelby County itself is a clear violator--and should be in any coverage formula that Congress might devise. That means that the coverage formula has at least one valid application--to Alabama--and cannot be struck in a facial challenge. The VRA's severability provision only buttresses this point.
- "Equal state sovereignty," the backdrop for the Court's ruling, applies only to the conditions on states for admission to the Union, not differential treatment outside that context. Justice Ginsburg understates: "Today's unprecedented extension of the equal sovereignty principle outside its proper domain--the admission of new States--is capable of much mischief."
- Preclearance, with the now-struck coverage formula, itself is responsible for the improvements that the Court cites in voting practices. Without it, we face retrogression--that is, falling back into patterns of racial discrimination in the vote. "In the Court's view, the very success of Section 5 of the Voting Rights Act demands its dormancy."
While the Supreme Court today struck only the coverage formula for the preclearance provision of the Voting Rights Act, Justice Thomas, concurring alone, would have ruled Section 5 preclearance itself unconstitutional. That's because, according to Justice Thomas, "[t]oday, our Nation has changed." He points to voter turnout and registration rates, which "now approach parity," and the "rare" "[b]latantly discriminatory evasions of federal decrees."
Against these improvements, Justice Thomas argues that Section 5 itself exceeded congressional authority, especially after Congress changed and increased the preclearance requirement in reauthorizing the VRA in 2006.
Justice Thomas wrote just for himself; he garnered no other votes. Still, his ominous conclusion rings true, given the likely inability of Congress to re-write a coverage formula that would satisfy this Court:
While the Court claims to "issue no holding on Section 5 itself," its own opinion compellingly demonstrates that Congress has failed to justify "'current burdens'" with a record demonstrating "'current needs.'" By leaving the inevitable conclusion unstated, the Court needlessly prolongs the demise of that provision.
In the wake of today's ruling in Shelby County v. Holder, striking the coverage formula for preclearance under the Voting Rights Act, the ball's in Congress's court. While the Supreme Court held that the coverage formula in Section 4 is outdated and unconstitutional, it did not touch Section 5 preclearance, and it did not touch Section 2's ban on racial discrimination. (Our posts are here, here, and here. Our oral argument review is here.)
So, Section 2 case-by-case litigation remains in play. Litigants can still sue jurisdictions for racial discrimination in voting on a case-by-case basis. But the problem with this case-by-case approach, as Congress recognized when it reauthorized the VRA in 2006, is that case-by-case litigation really can't catch up with the myriad and clever, under-the-radar ways that some states and jurisdictions now discriminate in the vote--the so-called "second generation" practices. (You can sue your state for a discriminatory vote practice in one election, but by the time the courts rule, the election is over.) Some of these were on full display in the 2012 election.
Preclearance always provided a back-stop for this problem--that was its principal value. Preclearance required covered jurisdictions to gain permission before making any changes to their voting laws, thus shifting the usual burden to the states to show a lack of discrimination. It applied, under the now-struck Section 4, to jurisdictions that had a particularly ugly history of race discrimination in the vote.
Today's ruling strikes the coverage formula in Section 4, but it doesn't strike Section 5 preclearance. That means that preclearance remains on the books, even if it lacks a coverage formula--and therefore preclearance now sits dormant.
That puts the ball back in Congress's court to re-write the Section 4 formula, to give life to preclearance again. Whether Congress can actually do that is a different question. While the VRA passed in 2006 by overwhelming numbers, the inertia was behind the coverage formula then. (Remember that the same basic formula had been around, doing its job, in 2006.) Now Congress will have to start from scratch--to write a formula that calls out certain states and jurisdictions and subjects them to the burdensome process of preclearance. It seems unlikely that this Congress will be able and willing to do that.
If Congress doesn't respond with a valid coverage formula, Section 5 preclearance will remain on the books, but dormant. That will leave Section 2 litigation alone to fight discrimination in the vote. As we've seen, and as Congress found, that will almost surely be insufficient.
The five-Justice majority, led by Chief Justice Roberts, today struck the coverage formula for preclearance under the Voting Rights Act. Our earlier posts are here and here; our oral argument review is here.
In short, Chief Justice Roberts wrote that the Section 4 coverage formula was out of date. He took issue with Congress's "reverse engineering"--that is, figuring out which states should be covered, and working backwards to design a formula that covered them--when it reauthorized the VRA in 2006, because, he wrote, that formula was based on data compiled 40 years ago. He wrote that the coverage formula was rational then; it is not now, 40 years later, with substantially changed circumstances.
Chief Justices Roberts acknowledged that Congress compiled voluminous data demonstrating racial discrimination, but he wrote that the coverage formula reauthorized in 2006 wasn't based on that data. Instead, it was based on 40-year-old data, from the time Congress originally enacted the VRA.
Because the Court saw preclearance as such a dramatic action--shifting the usual burden on the plaintiff to show discrimination to a covered state or jurisdiction to show lack of discriminatory effect in a proposed change in their voting laws, and thus infringing on the "equal sovereignty of the states"--it held the coverage formula to a higher standard. The Court said that the formula, based on 40-year-old data, was simply out of date.
Still, the Court said that Congress could rewrite the formula. This seems a far-fetched possibility, given the politics and divisions in Congress. If it doesn't happen, preclearance under Section 5 remains on the books, but it'll have no effect, because there will be no jurisdictions covered.
Without preclearance, the VRA loses its crown jewel. Section 2 case-by-case litigation against offending jurisdictions remains in play, but, as Congress found, case-by-case litigation has a real hard time keeping up with the clever, under-the-radar ways that some states and jurisdictions use their voting laws to discriminate in the vote.
opinion by Justice Alito, a majority of the Court construed the Indian Child Welfare Act, ICWA, as not violated by the adoption of "Baby Veronica" by a white couple although her father is Native American. The majority stated that it assumed that the biological father qualified as a "parent" under ICWA, but that the involuntary termination of his rights, if any, met ICWA. The majority opinion is relatively brief (19 pages), but there are multiple opinions: a concurring opinion by Thomas, a concurring opinion by Breyer, a dissenting opinion by Scalia, and a lengthy dissenting opinion by Sotomayor, joined by Ginsburg and Kagan, and partially by Scalia.
From the perspective of constitutional law, the case is noteworthy for its application of the doctrine of constitutional avoidance and equal protection. At the end of the majority opinion, Justice Alito refers to the problem, noting that ICWA "was enacted to help preserve the cultural identity and heritage of Indian tribes, but" under the interpretation of the South Carolina Supreme Court that is being reversed, ICWA "would put certain vulnerable children at a great disadvantage solely because an ancestor—even a remote one— was an Indian." Thus,
a biological Indian father could abandon his child in utero and refuse any support for the birth mother—perhaps contributing to the mother’s decision to put the child up for adoption—and then could play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests. If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA. Such an interpretation would raise equal protection concerns . . . .
The majority was thus seemingly convinced by the argument on behalf of the adoptive parents that such an interpretation of ICWA would be "basically relegating the child, the child to a piece of property with a sign that says, "Indian, keep off. Do not disturb." "
Sotomayor's opinion for the four dissenting Justices makes clear that the "majority does not rely on the theory pressed by petitioners and the guardian ad litem that the canon of constitutional avoidance compels the conclusion that ICWA is inapplicable here," but observes that the "majority nevertheless offers the suggestion that a contrary result would create an equal protection problem." Sotomayor's opinion also seeks to call the majority to account for the tenor of the opinion:
The majority’s repeated, analytically unnecessary references to the fact that Baby Girl is 3/256 Cherokee by ancestry do nothing to elucidate its intima tion that the statute may violate the Equal Protection Clause as applied here. See ante, at 1, 6; see also ante, at 16 (stating that ICWA “would put certain vulnerablechildren at a great disadvantage solely because an ancestor—even a remote one—was an Indian” (emphasis added)). I see no ground for this Court to second-guess the membership requirements of federally recognized Indian tribes, which are independent political entities.
She later states,
The majority’s treatment of this issue, in the end, does no more than create a lingering mood of disapprobation of the criteria for membership adopted by the Cherokee Nation that, in turn, make Baby Girl an “Indian child” under the statute. Its hints at lurking constitutional problems are, by its own account, irrelevant to its statutory analysis, and accordingly need not detain us any longer.
It is Justice Thomas' concurring opinion, however, that most expansively engages with the doctrine of "constitutional avoidance," but his concern is not equal protection. Instead, Thomas' 12 page opinion is devoted to the question of Congressional power: "The threshold question, then, is whether the Constitution grants Congress power to override state custody law whenever an Indian is involved." For Thomas, ICWA's grounding in the Indian Commerce Clause, Art. I, §8, cl. 3, and “other constitutional authority” that give Congress with “plenary power over Indian affairs,” is constitutionally suspect.
Thomas balances the lack of Congressional authority with federalism concerns, and part of his rationale rests upon family law as being within the province of the states. It will be interesting to see how this concern is articulated in tomorrow's anticipated decision in United States v. Windsor involving the constitutionality of the federal "Defense of Marriage Act."
[image: Badolier bag of the Ojibwa via]
In striking the coverage formula for the preclearance provision in the Voting Rights Act today, Chief Justice Roberts wrote a good three-plus pages on state sovereignty--and particularly the doctrine of "equal sovereignty." According to the Chief, the coverage formula, which the majority held outdated, violated this principle. More: He wrote that this principle applies beyond the admission of states to the Union; it applies here. The Chief planted this time-bomb in Northwest Austin; it's now coming home to roost.
Here's part of what he said:
Not only do States retain sovereignty under the Constitution, there is also a "fundamental principle of equal sovereignty" among the States. [Northwest Austin (citing United States v. Louisiana); Lessee of Pollard v. Hagan; Texas v. White.] Over a hundred years ago, this Court explained that our Nation "was and is a union of States, equal in power, dignity and authority." [Coyle v. Smith.] Indeed, "the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized." Coyle concerned the admission of new States, and Katzenbach rejected the notion that the principle operated as a bar on differential treatment outside that context. At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treeatment of States.
Monday, June 24, 2013
A sharply divided Supreme Court ruled (5-4) today in Mutual Pharmaceutical Co., Inc. v. Bartlett that the Federal Food, Drug, and Cosmetic Act, or FDCA, preempted a state-law design-defect claim against a generic drug manufacturer. Our last post on the case is here.
The ruling means that the plaintiff's state-law design-defect case against the drug manufacturer, in which she received a jury award over $21 million for severe disfigurement and permanent disabilities after taking a generic version of the pain reliever "sulindac," is dismissed--a big victory for Mutual, and a huge victory for generic drug manufacturers in general. It also forecloses another state-law cause of action against a generic drug manufacturer, coming, as it does, just two years after the Court in PLIVA, Inc. v. Mensing (2011) held that the FDCA preempted a state-law failure-to-warn claim against a generic manufacturer. Under these rulings, a state law could only escape preemption by establishing a liability scheme that's not tied to a standard of care that would require changing the composition or label of a drug--perhaps an absolute liability scheme that imposes liability without any showing of breach of duty (as opposed to a strict liability scheme, like this one, according to the Court, that is tied to a breach of duty, even if not negligence). It may be hard to imagine this scheme, however, after today's ruling. The dissenting Justices and Barlett read the state-law claim here as an absolute liability scheme; the majority disagreed.
Of course, Congress could change this result. Congress could simply re-write the FDCA in a way that would explicitly allow state-law claims to complement the FDCA scheme for generic manufacturers, or to otherwise provide for manufacturer-paid compensation for those injured by generic drugs.
According to the majority, Bartlett's claim ran right into PLIVA. That's because the Court today said that (1) the state design-defect law imposed a duty on drug manufacturers to design their drugs reasonably safely, (2) both the FDCA and the drug's simple composition prevented Mutual from changing the design of the drug (to comply with that state-law standard), and (3) therefore the only way for Mutual to satisfy the state-law standard was to strengthen its warning. But a label change for a generic manufacturer is foreclosed by PLIVA. Thus, according to the Court, the state-law design-defect claim conflicts with the FDCA, and it is preempted.
(The Hatch-Waxman Act, part of the FDCA, provides a easy path for generic manufacturers to put their drugs on the market, provided they show that their drugs are identical to branded equivalents and provided that they use equivalent labels. Once approved, generic manufacturers cannot change the composition of their drug or their label without prior FDA approval. The whole purpose of Hatch-Waxman was to ease entry into the market for generics and thus make less expensive drugs more widely available.)
Justice Breyer dissented, joined by Justice Kagan. Justice Breyer wrote that it was not impossible for Mutual to comply with both the FDCA and the state-law design-defect judgment: Mutual could have declined to do business in the state entirely, or it could simply pay the judgment (without altering its drug's composition or label). Moreover, Justice Breyer wrote that there was no sign that the design-defect claim stood as an obstacle to FDCA objectives.
Justice Sotomayor, joined by Justice Ginsburg. Justice Sotomayor wrote that the FDCA allows room for state law to complement federal law and to provide remedies in cases like this. In particular, Justice Sotomayor wrote that the state law at issue did not require Mutual to violate federal law to comply, because state law did not depend on meeting a different state standard, that is, even if it encouraged a different design it didn't require a different design.