Wednesday, October 4, 2017

Daily Read: Redistricting and Gerrymandering Primer

 Trying to get up to speed on the law of redistricting and gerrymandering after the oral argument in Gill v. Whitford

A terrific source is the Congressional Research Service Report, Congressional Redistricting Law: Background and Recent Court Rulings, by L. Paige Whitaker, from March 2017. 

Like all CRS reports, this one is relatively brief (23 pages) and written for an intelligent but not necessarily fully conversant audience. The discussion of partisan gerrymandering on pages 13-16 provides an excellent background to Whitford, including a discussion of Vieth v. Jubelirer (2004) and Justice Kennedy's pivotal role:

The deciding vote in Vieth, Justice Kennedy, concluded that while the claims presented in that case were not justiciable, he “would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.” Further, Justice Kennedy observed, that while the appellants in this case had relied on the Equal Protection Clause as the source of their substantive right and basis for relief, the complaint also alleged a violation of their First Amendment rights. According to Justice Kennedy, the First Amendment may be a more relevant constitutional provision in future cases that claim unconstitutional partisan gerrymandering because such claims “involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.” In contrast, Justice Kennedy noted, an analysis under the Equal Protection Clause emphasizes the permissibility of a redistricting plan’s classifications. When race is involved, Justice Kennedy reasoned, examining such classifications is appropriate because classifying by race “is almost never permissible.” However, when the issue before a court is whether a generally permissible classification—political party association—has been used for an impermissible purpose, the question turns on whether the classification imposed an unlawful burden, Justice Kennedy maintained. Therefore, he concluded that an analysis under the First Amendment “may offer a sounder and more prudential basis for intervention” by concentrating on whether a redistricting plan “burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association.”

[footnotes omitted].  The CRS Report also has a great discussion of the three-judge court decision in Gill v. Whitaker.

In general, the report "analyzes key Supreme Court and lower court redistricting decisions addressing four general topics":

(1) the constitutional requirement of population equality among districts;

(2) the intersection between the Voting Rights Act and the Equal Protection Clause; (although the Report was produced before the Court's decision in Cooper v. Harris  it discusses the then-pending case);

(3) the justiciability of partisan gerrymandering; and

(4) the constitutionality of state ballot initiatives providing for redistricting by independent commissions.

An objective and great resource for anyone working on these issues in constitutional law.

 

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

Thursday, September 28, 2017

Federal Judge Upholds New York's Prohibition of Ballot Selfies or Polling Site Photographs Against First Amendment Challenge

 In his opinion in Silberberg v. Board of Elections of New York, Senior District Judge P. Kevin Castel upheld the constitutionality of two New York provisions restricting photographs related to elections.  N.Y. Election Law §17-130(10) makes it a misdemeanor to show one's ballot after it has been prepared for voting to any person and has been interpreted to prohibit the taking and posting on social media of so-called "ballot selfies." Less centrally, the New York City Board of Elections had a policy that prohibits photography at polling sites. The challengers argued that both of these provisions infringed on their First Amendment rights.

Recall that Judge Castel had previously denied a motion for preliminary injunction against the ballot-selfie statute.  However, Castel's main rationale was based on the preliminary injunction standards, and heavily weighed the age of the statute (enacted in 1890) against the timing of the lawsuit (13 days before the election).

In the present opinion, Judge Castel, after a bench trial, more carefully analyzed the First Amendment claims. On the N.Y. Election Law §17-130(10) challenge, he concluded that despite the age of the statute, it plain language, underlying purpose, and likely legislative intent all supported the interpretation that the statute did prohibit ballot-selfies.  He then concluded that the statute did restrict political speech and was thus subject to strict scrutiny.

Judge Castel relied in large part on Burson v. Freeman (1992) in which the Court upheld a prohibition of campaigning within 100 feet of a polling place, noting that the Tennessee statute at issue in Burson was also first enacted in 1890 and "intended to combat the same evils that the 1890 New York statute was intended to combat; vote buying and voter intimidation." Judge Castel found that both of these interests were compelling as well as actual.  Distinguishing the recent First Circuit decision in Rideout v. Gardner, Judge Castel reasoned:

Plaintiffs urge this Court to follow Rideout v. Gardner, where the First Circuit, in upholding the district court’s injunction against the enforcement of a New Hampshire statute updated in 2014 to specifically prohibit the sharing via social media of a digital photograph of a marked ballot, found that the statute did not address an “actual problem in need of solving.”  In that case, decided on summary judgment, virtually no specific evidence was presented regarding vote buying or voter intimidation in New Hampshire. In the present case, ample evidence has been presented regarding vote buying and voter intimidation in New York, both historic and contemporary. And New Hampshire is not New York City. New York elections were bought and sold for decades before the introduction of the Australian ballot reforms. The statute was an appropriate response to the political corruption in New York in 1890 and is a valid measure today to prevent that history from repeating itself.

 [citations omitted]

Miss_E._S._O'Brien_putting_her_vote_into_the_box_at_the_City_Hall_Brisbane_1947_(27895206401)Judge Castel also found the criminalization was narrowly tailored, again relying in large part on Burson. Castel also noted that the challengers had put forth no acceptable alternative and also discussed the issue of "social coercion," reasoning that employers and other organizations could use the ballot selfie to "enforce political orthodoxy."

As an alternative ground, Judge Castel concluded that the election statute was not necessarily subject to strict scrutiny because although it was a content-based restriction, it occurred in a non-public forum. The polling site was not a public forum: the sites are "opened by the government only for the specific purpose of enabling voters to cast ballots and are not historically open for public debate or speech."  Relatedly, the ballot itself is not a public forum, relying on cases such as Burdick v. Takushi (1992). Judge Castel then found that the restrictions were "reasonable."

In a few pages, Judge Castel dispatched the challenge to the City's unwritten policy of prohibiting photography at polling places.  Judge Castel found this 20 year old policy was content-neutral and again relied on the finding that the polling sites were not public fora. However, even if the sites were public fora, there were ample alternative means for political expression.

Judge Castel therefor rendered final judgment for the government defendants, allowing for appeal to the Second Circuit.  Given the First Circuit's opinion in Rideout with a contrary result, this may be the next step to a circuit split on the issue of ballot selfies.

[image via]

September 28, 2017 in Elections and Voting, First Amendment, Fourteenth Amendment, Opinion Analysis, Recent Cases | Permalink | Comments (0)

Friday, September 22, 2017

Court Rebuffs Challenge to New Jersey's Bail Reform Law

Judge Jerome B. Simandle (D.N.J.) today declined to halt New Jersey's bail-reform law. The law provides for alternative, non-monetary pretrial release options in order to give poor defendants (who often can't afford bail) a shot at pretrial release while still serving other criminal justice interests. The plaintiffs in the case argued that the law violated the Eighth Amendment, due process, and the Fourth Amendment.

The preliminary ruling, denying the plaintiffs' motion for a preliminary injunction, leaves the law in place, for now. But today's order isn't a final ruling on the merits.

The plaintiffs lawyered-up big time (Paul Clement appeared pro hac), suggesting that this is just the first step in their aggressive challenge to New Jersey's law. One reason for the attention to the case: Taking money out of the bail system also takes away a stream of revenue from corporations like plaintiff Lexington National Insurance Corporation. As more jurisdictions look to non-monetary bail options to avoid keeping poor, nonviolent defendants behind bars pending trial, bail providers stand to lose even more.

The New Jersey bail-reform law sets up a five-stage, hierarchical process for courts to follow in setting bail. It allows for pretrial release of certain defendants with non-monetary conditions, like remaining in the custody of a particular person, reporting to a designated law enforcement agency, home supervision with a monitoring device, and the like. In order to help navigate the process for any particular defendant, the court gets risk-assessment recommendations from a Pretrial Services Program. According to the court, in less than a year under this system, "[t]his reform has shown great success in placing persons into pretrial release who would previously have been held in jail for failure to meet monetary bail and because pretrial monitoring options were largely unavailable. As a result, many fewer defendants are being detained in jail as they await trial."

Using this system, a New Jersey court ordered plaintiff Brittan Holland released, but subject to home confinement (except for work), with an ankle bracelet for monitoring, weekly reporting, and no contact with the victim. (Holland was charged with second-degree aggravated assault and agreed to these conditions on his release in exchange for the state withdrawing its application for detention.)

Holland argued that the system deprived him of a right to have monetary bail considered as a primary condition of release, and that as a result his conditions amount to an undue restraint on his liberty. (He said that the conditions "severely restricted [his] liberty, disrupted [his] family life, made [him] concerned about [his] job security, and made [him] feel that [his] life is up in the air.") Plaintiff Lexington, a national underwriter of bail bonds, joined, arguing that the system would cause it to lose money.

The court ruled first that Holland had standing, but that Lexington probably did not. Here's how the court explained Holland's standing:

Holland claims that his injury is not simply the restriction on his liberty, but rather the imposition of that restriction after a hearing that violated his rights under the Fourth, Eighth, and Fourteenth Amendments. He claims that such injury will be sufficiently redressed should the Court order that a hearing respecting those constitutional rights (as he understands them) be held, regardless of the ultimate outcome of such a hearing. Should the Court order such a hearing to be held, the relief then would not be speculative. He claims that he was injured by the holding of a hearing that did not afford him his constitutional rights, including the alleged right to have monetary bail considered as a primary condition of release pending trial, and that ordering a new hearing that does afford him those rights will redress that injury.

As to Lexington, the court said that it failed to establish standing for itself (because it could only assert harms of a third party, someone like Holland), and that it likely failed to establish third-party standing (because criminal defendants don't face any obstacles in bringing their own claims--obviously, in light of Holland's participation in the suit). (The state also argued that Lexington lacked prudential standing, because its injury doesn't fall within the zone of interests of the statute. The court said that the state could raise that argument later, as part of a failure-to-state-a-claim argument.)

Next, the court said that Younger abstention was inappropriate, because "[p]laintiffs, here, do not seek to enjoin the state prosecution against Holland; instead, they challenge the procedure by which the conditions of pre-trial release during that prosecution was decided and seek an injunction ordering a different procedure."

As to the merits, the court held that the plaintiffs were unlikely to success on all claims. The court said that the Eighth Amendment doesn't guarantee monetary bail, and that Holland waived his right to it, anyway. It said that Holland received procedural due process, and that he had no right to monetary bail under substantive due process. And it said that conditions were reasonable under the Fourth Amendment, and, again, that Holland agreed to them, anyway.

September 22, 2017 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Procedural Due Process, Standing | Permalink | Comments (1)

Wednesday, September 20, 2017

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

 In its opinion in McLaughlin v. McLaughlin (Jones), the Arizona Supreme Court interpreted the United States Constitution to require that the statutory presumption of parentage applies to a woman in a same-sex marriage in the same way as would to a man in a different-sex marriage.

The Arizona Supreme Court relied on the United States Supreme Court's 2015 decision in Obergefell v. Hodges as well as the Court's per curiam opinion a few months ago in Pavan v. Smithreversing the Arkansas Supreme Court's divided decision to deny a same-sex parent's name be listed on the child's birth certificate.  The Arizona Supreme Court in McLaughlin, echoing Pavan, quoted Obergefell as constitutionally requiring same-sex married couples be afforded the “constellation of benefits the States have linked to marriage.”

The majority opinion of the Arizona Supreme Court, authored by Chief Justice Scott Bales, rejected the interpretation of Obergefell advanced by Kimberly McLaughlin, the biological mother, that "Obergefell does not require extending statutory benefits linked to marriage to include same-sex couples; rather, it only invalidates laws prohibiting same-sex marriage."  Instead, Chief Justice Bales wrote that that such a "constricted reading is precluded by Obergefell itself ad the Supreme Court's recent decision in Pavan v. Smith."  Moreover, as in Pavan, the statute itself did not rest on biology but sought to sideline it.  The marital presumption assigns paternity based on marriage to the birth mother, not biological relationship to the child.  Thus, any differential treatment cannot be justified and the statute was unconstitutional as applied.

As a remedy, Judge Bales' opinion concluded that the extension of the presumption rather than striking the presumption was proper, relying on yet distinguishing the Court's recent decision in Sessions v. Morales-Santana.  It was on this issue that one Justice dissented, contending that the court was rewriting the statute.  Two other Justices wrote separately to concur on the remedy issue, noting that the majority must follow the United States Supreme Court and "circumstances require us to drive a remedial square peg into a statutory round hole," but "nothing in the majority opinion prevents the legislature from fashioning a broader or more suitable solution by amending or revoking" the statute.

Perhaps the Arizona legislature will see fit to abolish the marital presumption for all children?

1600px-Fountain_of_the_Mothers_of_Macedonia

 image via

 

September 20, 2017 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)

Sunday, September 3, 2017

Tenth Circuit Recognizes Substantive Due Process Right for Child Placed in Father's Custody

 In its unanimous panel opinion in D.T. v. Patton (and the Denver Department of Health and Human Services), the Tenth Circuit recognized a claim for substantive due process and rejected qualified immunity based on a social worker's removal of the adolescent child, D.T., from his mother and recommending to the court that D.T. be placed with his father, who sexually abused him.

The court distinguished the landmark case of DeShaney v. Winnebago County Department of Social Services (1989), in which the United States Supreme Court held, in somewhat similar circumstances, that state officials are not liable for private-violence under the Fourteenth Amendment.  The court relied on the "danger-creation" exception to the DeShaney doctrine, which allows liability if  a state actor affirmatively acts to create, or increase a plaintiff’s vulnerability to, danger from private violence." The court cited the Tenth Circuit's 2001 decision in Currier v. Doran, noting that "all circuits" have carved out a similar exception (in addition to the special-relationship exception), although the United States Supreme Court has not ruled on such exceptions.  

Writing for the majority, Judge Scott Matheson extensive opinion discussed both DeShaney and Currier, including the elements developed in Currier:

  • the charged state entity and the charged individual actors created the danger or increased plaintiff’s vulnerability to the danger in some way;
  • plaintiff was a member of a limited and specifically definable group;
  • defendants’ conduct put plaintiff at substantial risk of serious, immediate, and proximate harm;
  • the risk was obvious or known;
  • defendants acted recklessly in conscious disregard of that risk; and
  • such conduct, when viewed in total, is conscience shocking.

Candlelight_Master_Young_Boy_SingingJudge Matheson's opinion then analyzed analyzed each of these.  Of central importance was the fact that the social worker knew of the father's previous conviction of attempted sexual assault on a minor, his step-daughter, as well as the father's violation of probation for contacting her and his failure to fulfill his sex offender treatment with regard to that conviction, in addition to "other charged offenses including misdemeanor wrongs to minors and misdemeanor domestic violence."  The social worker omitted these facts as well as her concerns about them from the court because of her supervisor's comments and her resultant fear she would be terminated from her employment if she shared these facts.  Moreover, she failed to investigate D.T.'s situation once he was placed in his father's home, and recorded her visits to the home that did not actually occur.

On qualified immunity, the court found that Currier clearly established a right that she violated. The court rejected the social worker's arguments attempting to draw lines between her pre-placement and post-placement conduct. The court also rejected the social worker's claims to avoid responsibility by sharing it with her "team" or assigning it to her supervisor.  The court found that she was the major actor and withheld facts from her team.  And while her supervisor might also be liable,

Ms. Patton’s reasons for deleting parts of her initial report to the juvenile court that outlined her concerns about T.D.’s placement with Mr. Duerson (i.e., to avoid being fired) support that she knew of the danger posed to T.D. in Mr. Duerson’s home and that she consciously disregarded that risk.

The court thus affirmed the grant of summary judgment to D.T. by the district judge.

Concurring, Judge Mary Beck Briscoe, who has been on the Tenth Circuit since 1995, expressed her belief that Currier was wrongly decided in 2001 and conflicts with DeShaney. For Judge Briscoe,

As a general matter, I find it hard to conclude that a social worker can be “responsible for” the independent decision of a judge who ultimately orders a change of custody. But, even if we assume such responsibility exists, we cannot transform omissions or failures to act into affirmative conduct merely by considering them “in the general context of” a custody recommendation. The only affirmative act that could be found in Currier is the recommendation itself, which, in my view is no different from the affirmative recommendation in DeShaney that Joshua be returned to his father’s custody. . . . This makes the state the permanent guarantor of a child's safety.

Yet the United States Supreme Court failed to grant certiorari in Currier and there is little here to make it likely that a petition for certiorari would not have the same result.

[image "Young Boy Singing" circa 1650 via]

 

September 3, 2017 in Courts and Judging, Due Process (Substantive), Family, Fourteenth Amendment, Opinion Analysis, Sexuality | Permalink | Comments (0)

Tuesday, August 22, 2017

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

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

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

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

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

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

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

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

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

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


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

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

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

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

Second Circuit Rules Town Ordinance Prohibiting Day Labor Solicitation Unconstitutional

 In its opinion in Centro de La Comunidad Hispana de Locust Valley v. Town of Oyster Bay, a divided panel of the Second Circuit affirmed the district judge's holding that the town's ordinance prohibiting day labor solicitation unconstitutional under the First Amendment.

As the opinion by Judge Barrington Parker states:

We arrive at essentially the same conclusion as the district court. Specifically, we agree that: (i) the Ordinance restricts speech based on its content and is therefore subject to the First Amendment; and (ii) the Ordinance fails the Central Hudson test because it is an overbroad commercial speech prohibition.

Like the district judge, the Second Circuit carefully applied the well-established four prong Central Hudson test, Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York (1980). The court rejected the Town's argument that "each proposed employment transaction by a day laborer whom the Ordinance targets would be an under-the-table illegal employment arrangement, in violation of immigration, tax, and labor laws," and thus concerned illegal activity removing it from Central Hudson's first prong. Instead, the court quoted the district judge's interpretation that the ordinance clearly applied to any person.The court also noted the similar conclusion by the Ninth Circuit in its 2013 decision in Valle Del Sol Inc. v. Whiting that the Arizona day labor solicitation provision in SB1070 was unconstitutional.  

Us-ny)oybIn applying the remainder of the Central Hudson test, while the Second Circuit majority found that there was a substantial interest in traffic safety and that the ordinance sought to directly advance that interest, it concluded that the ordinance was not narrowly drawn: "The Ordinance does not require any connection between the prohibited speech—solicitation of employment—and the asserted interest—traffic and pedestrian safety." Moreover, the court also found

it significant that the Ordinance does not apply to the most common forms of solicitation involving the stopping of vehicles on public rights of way, such as the hailing of a taxi or a public bus. These exemptions strongly suggest that in the great majority of situations, stopping a vehicle on a public right of way creates no inherent safety issue. Entirely prohibiting one speech-based subset of an activity that is not inherently disruptive raises the question whether the Town’s actual motivation was to prevent speech having a particular content, rather than address an actual traffic and pedestrian congestion issue.

Thus, the majority concluded that the ordinance violated the First Amendment.

The majority also affirmed the district judge's conclusion that the plaintiff organizations had standing to challenge the ordinance; dissenting Judge Dennis Jacobs vehemently disagreed.  Judge Jacobs stressed that the Second Circuit disapproves of "representational standing," requiring that the organization have injury as an organization. He characterized plaintiff Centro de la Comunidad Hispana de Locust Valley (“Centro”) as an organization that barely exists except as a "vehicle" for the litigation. (To call it an “unincorporated membership organization” is "a boast.").  He noted that the plaintiff, The Workplace Project, is not in the Town of Oyster Bay but in the Town of Hempstead and that any "supposed interference with the organizational mission of serving day laborers is conjectural, vague, and generalized." Without discussing Central Hudson, dissenting Judge Jacobs also concluded that while the majority's analysis has "persuasive force" as to a portion of the ordinance, its remedy of injunction against the entire ordinance was too broad.

Despite the split in the panel opinion, this may be the end of the litigation for the Oyster Bay ordinance.

 

August 22, 2017 in Cases and Case Materials, First Amendment, Fourteenth Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Tuesday, August 15, 2017

Three Judge Court Finds Fault with Texas Redistricting Plan

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

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

Perhaps one of the more interesting issues in the case involves the court's findings regarding intentional discrimination. The court considered the Shaw v. Reno racial gerrymandering claims elaborating on the strict scrutiny standard if racial classifications could be proven.The court rejected the state's position that the discriminatory intent inquiry was limited to the drawing of district lines in 2013, but relying on Fifth Circuit precedent found that the challengers could demonstrate "either through direct or circumstantial evidence that the government body adopted the electoral scheme with a discriminatory purpose, that the body maintained the scheme with discriminatory purpose, or that the system furthered pre-existing intentional discrimination." The court stated:

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

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

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

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

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

Map

 

UPDATE: Stay

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

Thursday, July 27, 2017

Federal Judge Finds First Amendment Violation by Politician Blocking Constituent on Facebook

 In a well reasoned opinion in Davison v. Loudon County Board of Supervisors, United States District Judge James Cacheris of the Eastern District of Virginia found that a politician who reacted to a constituent's comment on her "official" Facebook post by deleting his comment and banning him from her Facebook page violated the First Amendment.

Phyllis Randall, Chair of the Loudon County Board of Supervisors, maintained a Facebook page, entitled "Chair Phyllis J. Randall." She generally "uses the Facebook page to share information of interest with the County she serves," and Judge Cacheris provided several examples of the types of postings - - - precisely the type of postings one would expect - - - relating to proclamations such as "Loudon Small Business Week" and photographs of herself at conferences or other events. 

As a threshold matter, Judge Cacheris determined that there was state action.  This state action, however, could not be attributed to the defendant County Board of Supervisors, but only as to Phyllis Randall. Although the Facebook page was not the "property" of the county and would not revert to it when Randall left office, Randall "used it as a tool of governance." The judge found that Randall used the page to communicate with her constituents and the page reflects her efforts to "swathe" it with "the trappings of her office." Further, there were other government employees who assisted with the page.  Moreover, the specific act of banning the constituent Davison arose out of public rather than private circumstances.  Davison had apparently complained about the corruption of Randall's colleagues on the Board (the actual post, having been deleted by Randall, was not before the judge). 

Judge Cacheris referenced two of the Supreme Court's decisions last Term - - - Packingham v. North Carolina opinion, noting that Facebook had become a vital platform for speech and the exchange of ideas, and Matal v. Tam, noting that if anything is clear, "it is that speech may not be disfavored by the government simply because it offends." The judge held that it was unnecessary to decide what type of "forum" under the First Amendment the Facebook page might be, given that under no forum is viewpoint discrimination permissible. Here, the judge held, Randall clearly banned Davison because of the opinion he expressed.  There was no neutral policy (such as a ban on profanity) which was being neutrally applied.

Online_Privacy_and_the_Founding_Fathers
The judge observed that Davison was banned only for a short time - - - Randall retracted her ban the next morning - - - and that during this time, Davison had adequate means to communicate his message through other avenues.  Nevertheless, the judge stated that

Indeed, the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards.  By prohibiting Plaintiff from participating in her online forum because she took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment.

The judge issued a declaratory judgment in favor of Davison, who represented himself pro se, on the First Amendment claim, although the judge rejected a procedural due process claim that Davison had also advanced.

This case should serve as a wake-up call for politicians who use their "official" Facebook pages in ways that may violate the First Amendment.  The case may also be a harbinger of decisions to come in the ongoing litigation challenging the President's practice of "blocking" people on Twitter.

[image by Matt Shirk via]

July 27, 2017 in Current Affairs, First Amendment, Fourteenth Amendment, Opinion Analysis, Procedural Due Process, Recent Cases, Speech, Web/Tech | Permalink | Comments (1)

Monday, June 26, 2017

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

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

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

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

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

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

SCOTUS Grants Certiorari in Masterpiece Cake Shop: Pitting First Amendment Against Equality

 The United States Supreme Court, after a longer than usual period, granted certiorari in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,  a case in which a cake-maker seeks the right to refuse to make a cake for a same-sex wedding, essentially asserting an exemption from Colorado's anti-discrimination law on the basis of the First Amendment's Free Exercise and Free Speech Clauses.

Recall the Colorado ALJ firmly rejected the arguments of the cakeshop owners reasoning that to accept its position would be to "allow a business that served all races to nonetheless refuse to serve an interracial couple because of the business owner’s bias against interracial marriage."   The ALJ rejected the contention that "preparing a wedding cake is necessarily a medium of expression amounting to protected 'speech,' " or that compelling the treatment of "same-sex and heterosexual couples equally is the equivalent of forcing" adherence to “an ideological point of view.” The ALJ continued that while there "is no doubt that decorating a wedding cake involves considerable skill and artistry," the "finished product does not necessarily qualify as 'speech.'" On the Free Exercise claim, the ALJ rejected the contention that it merited strict scrutiny, noting that the anti-discrimination statute was a neutral law of general applicability and thus should be evaluated under a rational basis test.  

Pride_roma_2008_torta_nuziale_gay
A Colorado appellate court affirmed in a 66 page opinion.

Interestingly, the Court in 2014 denied certiorari to a similar case, Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer. 

The petitioner argues an intersection of doctrines including compelled speech and free exercise, arguing that the Colorado public accommodations non-discrimination law offers a "stark choice"  to those who "earn a living through artistic means: Either use your talents to create expression that conflicts with your religious beliefs about marriage, or suffer punishment under Colorado’s public accommodation law."  

 

June 26, 2017 in Federalism, First Amendment, Fourteenth Amendment, Religion, Sexual Orientation, Sexuality, Speech, Supreme Court (US) | Permalink | Comments (0)

Monday, June 19, 2017

SCOTUS Rules NC Statute Restricting Internet for Sex Offenders Violates First Amendment

 In the United States Supreme Court unanimous decision in  Packingham v. North Carolina, the Court found that the state statute, NCGS § 14-202.5, making it a felony for registered sex offenders to access commercial social networking sites, violated the First Amendment.  This outcome was predictable given the then-eight Justices' skepticism during the oral arguments in February.  Recall that Packingham was convicted of the North Carolina felony for his Facebook page on which he wrote " Thank you Jesus.  God is good" regarding a result on his parking ticket. 

The Court's majority opinion by Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, is a mere 10 pages.  The Court not only stresses the breadth of the North Carolina statute, but highlights the role of the Internet in "our modern society and culture" as vital to the First Amendment:

Freedom_-NO_2_SOPA
By Fekner - Own work, CC BY-SA 3.0 via

A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. . . .

While in the past there may have been difficulty in identifying the most important places (in a spatial sense)for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997), and social media in particular. Seven in ten American adults use at least one Internet social networking service. . . .
While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and sofar reaching that courts must be conscious that what they say today might be obsolete tomorrow.
This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.

For the Court majority, even assuming the North Carolina statute was content neutral and should be analyzed under intermediate scrutiny, the statute "enacts a prohibition unprecedented in the scope of First Amendment speech it burdens."  The Court noted that the present statute applies to all social networking sites including  Facebook, LinkedIn, and Twitter, and that a state could possibly enact a more specific provision, such as prohibiting contacting a minor on social media. 

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

While Justice Alito's opinion, joined by Chief Justice Roberts and Justice Thomas, agrees with the outcome, Alito criticizes Kennedy's opinion for the Court as not being sufficiently circumspect and cautious, and for engaging in "loose rhetoric."  For Alito, the problem with the North Carolina statute is likewise its breadth: "its wide sweep precludes access to a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child."  Among Alito's examples are Amazon.com, the Washington Post website, and WebMD.  Yet Alito's opinion, just slightly longer than Kennedy's for the Court, found it important to argue that the entirety of the internet or even social media sites are "the 21st century equivalent of public streets and parks." In support of this, Alito argues that the internet offers an "unprecedented degree of anonymity."

Yet Alito's concurring opinion does not essentially disagree with the Court's finding that it would be possible for a state to craft a sufficiently narrow statute.  The disagreement, however, may be in the room for states to maneuver in drafting such a criminal statute. 

 

June 19, 2017 in Courts and Judging, First Amendment, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Sexuality, Supreme Court (US), Web/Tech, Weblogs | Permalink | Comments (0)

Monday, June 12, 2017

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

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

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

Lovings

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

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

[footnotes omitted].

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

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

 


 

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

Tuesday, May 30, 2017

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

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

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

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

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

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

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

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

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

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

 

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

Monday, May 22, 2017

SCOTUS Finds Racial Gerrymander in North Carolina Violates Equal Protection Clause

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

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

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

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

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

Appendix 1

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

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

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

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

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

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

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

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

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

Friday, December 9, 2016

Arkansas Supreme Court Upholds Birth Certificate Denial Listing Both Same-Sex Parents

In a closely divided (4-3) opinion in Smith v. Pavan, the Arkansas Supreme Court concluded that the state statutes governing the issuance of birth certificates to children could deny same-sex parents to be listed as parents. 

Essentially, the majority opinion, authored by Associate Justice Josephine Hart found that the United States Supreme Court's 2015 decision in Obergefell v. Hodges declaring same-sex marriage bans unconstitutional was inapposite:

Obergefell did not address Arkansas’s statutory framework regarding birth certificates, either expressly or impliedly. Rather, the United States Supreme Court stated in Obergefell that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.

Justice Hart noted that the Court in Obergefell did mention birth certificates "only once" and quoted the passage, construing it being related "only" to the Court's observation that states conferred benefits on married couples, which in part demonstrated that “ the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”

Not surprisingly, dissenting justices construed this same passage as providing support for the opposite conclusion.  In a well-wrought dissent by Justice Paul Danielson, he argues:

[T]he United States Supreme Court held in Obergefell that states are not free to deny same-sex couples “the constellation of benefits that the States have linked to marriage.”  Importantly, the Court listed “birth and death certificates” specifically as one of those benefits attached to marital status.  Thus, the majority is clearly wrong in holding that Obergefell has no application here.   Indeed, one of the cases on review in Obergefell, Tanco v. Haslam, 7 F. Supp. 3d 759 (M.D. Tenn. 2014), rev’d sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), involved a same-sex married   couple   who   challenged   the   Tennessee   law   providing   that   their   child’s nonbiological parent would not be recognized as the child’s parent, which affected various legal rights that included the child’s right to Social Security survivor benefits, the nonbiological parent’s right to hospital visitation, and the nonbiological parent’s right to make medical decisions for the child.

Furthermore, one of the four principles discussed by the Court in Obergefell, for purposes of demonstrating that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples, is that the right to marry “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”    The opinion makes clear that the protection of children and the stability of the family unit was a foundation for the Court’s decision.

[citations to Obergefell omitted].

For the majority, biology was the paramount "truth" that vital records should reflect.  Moreover, this "truth" is evinced in dictionary definitions of words such as "husband" and "father," a strategy in cases that Obergefell rejected.  

HeaderBanner

 

However, the relevance of Smith v. Pavan even in Arkansas is unclear.  As Justice Rhonda Wood argued, the case may not have warranted a decision by the court:

Two key circumstances have developed since this litigation started. First, plaintiffs received relief in that the State has issued the appropriate birth certificates to them. Second, the State concedes that the relevant statutes involving determination of parentage must comply with Obergefell, including the statute governing the status of people born via artificial insemination. These developments render the majority’s decision provisional.

Moreover, there were (new) facts in dispute, despite the procedural posture of summary judgment:

First, according to the affidavit of the State Registrar of Vital Records, the Department of Health will issue birth certificates listing both same-sex parents if the hospital submits documentation reflecting that fact. However, the parties disputed at oral argument how the department’s decision is actually being applied. There are no facts in the record to resolve this dispute. Moreover, the State has now conceded that children born of artificial insemination should have both parents deemed the natural parents, whether same-sex or opposite sex, under Ark. Code Ann. § 9-10-201 (Repl. 2015) and asserts that it will place both same-sex parents on the birth certificate under the State’s new interpretation of this statute. This statute provides that “[a]ny child born to a married women by means of artificial insemination shall be deemed the legitimate natural child of the women and the women’s husband [read spouse] if the [spouse] consents in writing to the artificial insemination.” Ark. Code Ann. § 9-10-201(a). It is likely, therefore, that a same-sex couple will now have both spouses’ names listed on the original birth certificate without a court order, so long as the child was conceived via artificial insemination, the same-sex marriage occurred prior to the insemination, and the non-biological parent consented to the insemination. Appellants and appellees both conceded at oral argument this would resolve the challenge by two of the three same-sex marriage couples.

It is possible that Arkansas would revoke its concessions given the state supreme court's ruling, but if the state does, then this seems a clear case for a petition for certiorari to the United States Supreme Court.

  Front of Justice Building (5)

 

[image: Arkansas Supreme Court building]

UPDATE: United States Supreme Court reverses.

December 9, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Opinion Analysis, Recent Cases, Reproductive Rights, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0)

Monday, December 5, 2016

Daily Read: The Equal Protection Argument for Allocation of Votes in the Electoral College

ConLawProf Lawrence Lessig has a terrific post sharing arguments that the present "winner take all" rule (in all but 2 states) for allocating electoral votes violates the Equal Protection Clause.

As an orientation for assessing the argument, Lessig trenchantly reminds us:

In 2000, Republican lawyers, desperately seeking a way to stop the recount in Florida, crafted a brilliant Equal Protection argument against the method by which the Florida courts were recounting votes. Before that election, no sane student of the Constitution would have thought that there was such a claim. When the claim was actually made, every sane lawyer (on Gore’s side at least) thought it was a sure loser. But by a vote of 7 to 2, the Supreme Court recognized the claim, and held that the Equal Protection Clause regulated how Florida could recount its votes. That conclusion led 5 justices to conclude the recount couldn’t continue. George Bush became president.

[emphasis added]. 

Lessig provides some scholarly sources and reveals he is planning a law review article on the applicability of Bush v. Gore and equal protection principles to the "winner take all" electoral college process. 

But he also shares a first take of a legal argument drafted by Jerry Sims, an Atlanta attorney.  Here's Sims's Georgia example:

In Georgia, for example, we have 16 Electors and approximately 44% of all voters cast ballots for Clinton. Yet the Clinton Voters receive no representation within the State’s Electors. They are left with no voice whatsoever in the election of the President by the Electoral College, their votes are for all practical purposes thrown away. If Georgia were electing a single candidate then a winner-take-all result would be proper, but in an election of 16 Electors, the Clinton votes are not being given equal dignity with the Trump votes. Of course the state could argue that there is a single slate of Electors is up for election. But therein lies the rub, the State is not free to disregard the one man one vote rule by arbitrarily framing the election of 16 Electors as though it is an election of a single office holder. That argument would be a pretext designed to deny any voice to the voters for the candidate not winning the plurality of the vote within the State, even though in reality multiple representatives are being selected to vote in a second election for a single candidate. This system leaves minority voters in Georgia with no voice whatsoever in the final real election. Thus, if the election is viewed by the State as a statewide election, then Electors should be allocated proportionately, in order to give every vote equal dignity and weight, thereby electing a delegation of Electors that actually represents all of the voters within the State. Under this methodology every vote counts. Proportional allocation of Electors respects the one man one vote principle while preserving the small state bias. It merely eliminates the likelihood of a President being elected who did not win the popular vote and did not win because of the small State bias embedded in the Constitution.

Sims links to a spread sheet that provides the data for other states.

The equal protection framework relies on Bush v. Gore and Reynolds v. Sims, as well as Williams v. Rhodes (1968).

It's certainly worth considering. 

600px-Electoral_map_2012-2020.svg

 

December 5, 2016 in Elections and Voting, Equal Protection, Federalism, Fourteenth Amendment, News | Permalink | Comments (0)

Wednesday, November 16, 2016

CFP: Loving v Virginia Symposium

CALL FOR SUBMISSIONS

50 YEARS OF LOVING:

SEEKING JUSTICE THROUGH LOVE AND RELATIONSHIPS

Symposium, March 23-24, 2017

Creighton School of Law, Omaha, Nebraska

The Creighton Law Review, Creighton’s 2040 Initiative, and the Werner Institute invite you to contribute to the Law Review’s June 2017 issue and/or to attend the 50 Years of Loving symposium hosted by the 2040 Initiative and the Werner Institute at the Creighton School of Law. The symposium will explore how the 1967 U.S. Supreme Court decision of Loving v. Virginia has influenced U.S society institutionally, demographically, and relationally.

Race in the United States has historically been socially constructed through interlocking cultural narratives, including law, and cultural practice, including institutions. Racism is a social system enacted and perpetuated by the interactions and relationships of individual people. Exploring the disruptive effects of the interracial “mixing” protected by Loving v. Virginia offers an opportunity to deepen understanding of systemic racism and to develop systems-based strategies for continuing the struggle for social justice. At a time when the demographics of the U.S. are shifting away from a white majority, deconstructing systemic racism is an essential project.

Loving v. Virginia, 388 U.S. 1 (1967), ended legal prohibitions against interracial marriage in the U.S. By eliminating of longstanding legal sanctions against “miscegenation,” Loving disrupted the pre-existing social system. Loving rejected racial separation and hierarchy and endorsed relationships across previously uncrossable racial lines. Since Loving, the number of interracial marriages has grown significantly: “Nearly 15 percent, or one in seven, of all new marriages in 2008 were between people of different races or ethnicities.”*

The effects of these marriages extend beyond those who are themselves married. “[M]ore than a third of all adults surveyed reported having a family member whose spouse is of a different race or ethnicity – up from less than a quarter in 2005.”* Since Loving, the proportion of the U.S. population with multiple racial heritages has grown dramatically. Moreover, the children born as a result of Loving also have disrupted the social construction of race itself, with more people self-identifying as of more than one race, biracial, multiracial, or mixed.

The Law Review seeks submissions exploring these issues – to range from reflections (up to 1000 words) and essays (approximately 2500-3000 words) to articles (no more than 7000 words, not including references and footnotes). Draft abstracts of up to one page and queries may be addressed to Research Editor Sean Nakamoto at seannakamoto@creighton.edu no later than January 15, 2017. Final submissions will be March 20, 2017. There will be an opportunity at the symposium for selected authors to discuss their submissions at the 50 Years of Loving symposium at Creighton University in March, 2017.**

Authors are also encouraged to join the moderated online discussion on the effects of the Loving decision on our society hosted by the 2040 Initiative and ADRHub at http://blogs.creighton.edu/creighton2040/50-years-of-loving-moderated-online-discussion. Selected excerpts from this discussion will also be featured in the June 2017 Creighton Law Review edition. Discussion entries should respond to the following question: From the perspective of your academic discipline or professional institution, what are the questions, issues, or tensions that have arisen out of 50 Years of Loving?

 

*john a. powell, Racing to Justice (2012)

** Contact Amanda Guidero at AmandaGuidero  AT  creighton.edu for more information on the symposium and opportunities to present your work.

November 16, 2016 in Conferences, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Race, Scholarship, Theory | Permalink | Comments (0)

Thursday, November 3, 2016

Federal Judge Rejects Republican Challenge to "Poll-Watcher" Limits

In his opinion in Republican Party of Pennsylvania v. Cortes, United States District Judge for the Eastern District of Pennsylvania Gerald Pappert has rejected the Equal Protection, Due Process, and First Amendment constitutional challenges to the state election code provision §2687(b) requiring poll watchers to be qualified electors of the county in which they serve.

The challenge argues that the code provision violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment by hampering poll watchers’ fundamental right to vote.  The "crux of this argument," as Judge Pappert states, is "that if a qualified, registered voter casts a valid ballot in one county and a fraudulent ballot is cast for a different candidate in another county, the fraudulent ballot effectively negates the valid ballot, and the qualified, registered elector’s vote is diluted."  But Judge Pappert rejected any applicability of Reynolds v. Sims's vote-dilution, noting that the vote-dilution theory here is "based on speculation that fraudulent voters may be casting ballots elsewhere in the Commonwealth and the unproven assumption that these alleged instances of voter fraud would be prevented by the affected poll watchers were they not precluded from serving at these locations."  Additionally, the challengers argued that the code provision arbitrarily distinguished between voters by county, a classification which the challengers conceded in the hearing would merit only rational basis scrutiny.  Indeed, Judge Pappert found that the entirety of the Fourteenth Amendment challenge to the code provision was subject to rational basis scrutiny given that the fundamental right to vote was not actually being burdened.

Judge Pappert also rejected the claim that Section 2687(b) infringes on the rights to free speech and association under the First Amendment by narrowing the pool of potential watchers at any polling place to the county level.  The judge noted that plaintiffs cited no authority for the proposition that poll-watching is protected by the First Amendment or that it constitutes "core political speech."  Instead, it is a state-created function and is subject to limitations by the state.  It is distinguished from petition-circulators, for example, because "poll watchers do not discuss or advocate for a political candidate or viewpoint, either explicitly or implicitly."  Instead, poll watchers, whatever their private motivations may be, are "performing a public function delegated by the state."

In addition to finding that the constitutional claims failed to satisfy the likelihood of success on the merits necessary to warrant a preliminary injunction, Judge Pappert also found the other factors for preliminary injunction lacking.  Additionally, Judge Pappert noted that the Plaintiffs "waited until eighteen days before the election to bring the case":  "There was no need for this judicial fire drill and Plaintiffs offer no reasonable explanation or justification for the harried process they created."  Moreover, should the code be enjoined, "poll watchers would be allowed to roam the Commonwealth on election day for the first time in the Election Code’s seventy-nine year history—giving the Commonwealth and county election officials all of five days’ notice to prepare for the change."

'The_Peaceable_Kingdom',_oil_on_canvas_painting_by_Edward_Hicks,_1826,_Philadelphia_Museum_of_Art

Judge Pappert, a former Attorney General of Pennsylvania, has authored a very well-reasoned 28 page opinion likely to withstand any appeal.  And although the opinion does not mention it, election-watchers are well aware of the context of the Pennsylvania situation: As reported, Republican Presidential Candidate Donald Trump has exhorted people in the more rural portions of the state to "Go down to certain areas and watch and study make sure other people don't come in and vote five times."  Meanwhile, the Pennsylvania Democratic Party filed a complaint  against the Pennsylvania Republican Party and the Trump Campaign for voter intimidation violating the Ku Klux Klan Act.

[image via]

November 3, 2016 in Due Process (Substantive), Elections and Voting, Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0)

Tuesday, October 25, 2016

Federal Judge Enjoins Michigan's Ballot-Selfie Ban

In her order in Crookston v. Johnson, Federal District Judge Janet Neff has issued a preliminary injunction regarding Michigan's ban on the so-called ballot-selfie.  Michigan's ban is expressed in two statutes, MICH. COMP. LAWS §§ 168.579, 168.738(2), which require rejection of the ballots for "exposure" and Secretary of State rules prohibiting photographs and use of cell phones by voters in the voting station.

Not surprisingly, Judge Neff relied on the First Circuit's opinion last month in Rideout v. Gardner invalidating New Hampshire's prohibition of the ballot-selfie. Judge Neff assumed that the Michigan scheme was content-based - - - prohibiting only speech about marked ballots - - - and that even if there were compelling government interests such as coercion, the means chosen was not narrowly tailored. However, even if the Michigan scheme was deemed content-neutral, Judge Neff found that it failed intermediate scrutiny.  Again, part of the problem is that there is little if anything to show that the coercion and vote-buying is related to the ballot-selfie, and even if there were a sufficient interest, Michigan's ban is not sufficiently focused.

Camera-Stencil-Graffiti
Image by Andreas Schwarzkopf via

One relatively novel government interest raised by Michigan is protection of  “the rights of other voters in the exercise of their right to vote by causing intimidation, disruption, and long lines at the polls.”  This interest is not extensively discussed Judge Neff, but the specter of long lines caused by "photographers" could be important.  However, in North Carolina where early voting has begun, the lines are reportedly related to the decrease in voting places rather than to voter-conduct.

With the election imminent, Michigan may spend its time seeking review from the Sixth Circuit - - - or it may simply concede that the trend seems to be toward ballot-selfies as protected by the First Amendment.

 

October 25, 2016 in Courts and Judging, Elections and Voting, First Amendment, Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0)