Tuesday, November 11, 2014
The Supreme Court will hear oral arguments tomorrow in the case challenging Alabama's re-drawing of its state legislative districts after the 2010 census. The case pits a claim under Section 2 of the Voting Rights Act against a defense under Section 5, although the constitutionality of those provisions is not (directly) at issue in the case.
Alabama redrew its state legislative districts after the 2010 census in order to maintain equal population across districts (within 2 percent), to maintain the existing number of majority-minority districts, and to maintain the existing percentage of black voters in those majority-minority districts. But the state's demographics shifted so that in order to achieve those goals the state had to pack black voters into existing majority-minority districts. The net result was to consolidate minority voting power in these majority-minority districts, but to enhance Republicans' power in the rest of the state.
Democrats and black legislators and groups sued, arguing that the re-districting plans violated Section 2 of the Voting Rights Act and amounted to racial and political gerrymanders. The state countered that it was compelled to draw the districts this way under Section 5 of the VRA in order to preserve majority-minority districts and to avoid retrogression. (The irony of Alabama using Section 5 as a shield after it so vigorously attacked Section 5 in Shelby County has escaped no one.)
The three-judge district court divided along party lines--the two judges appointed by a Republican president ruling for the state, and the lone judge appointed by a Democrat dissenting.
The case pits the plaintiffs' Section 2 claim against the state's Section 5-based reason for the districts. The state's position--that Section 5 made them do it--is part of a larger trend of states applying "not the Voting Rights Act, but a hamhanded cartoon of the Voting Rights Act--substituting blunt numerical demographic targets for the searching examination of local political conditions that the statute actually demands," according to Loyola's (Los Angeles) Justin Levitt. The state's position also potentially puts the constitutionality of Section 5 before the Court: If Section 5 requires race-based decisions like this, isn't it unconstitutional? That question isn't squarely before the Court, but it's certainly lingering behind the curtains.
The Supreme Court will hear oral arguments tomorrow in Comptroller v. Wynne, the case testing the scope of a state's authority to tax the out-of-state income of its residents. In particular, the case asks whether a state can provide a credit for income tax paid to other states against a resident's state income tax without also providing a credit against that resident's county income tax. Here's an exerpt from my preview of the case for the ABA's Preview of United States Supreme Court Cases:
Maryland imposes a “state income tax” and a “county income tax” on all of the income earned by a Maryland resident, even income earned out of state. (For those subject to the state income tax but not the county income tax, because they live out of state but earn income in Maryland, the state imposes a “Special Non-Resident Tax,” or “SNRT.”) That means that a Maryland resident who earns income out of state pays the Maryland “state income tax,” the Maryland “county income tax,” and the state income tax of the other state on that income. Maryland allows an off-setting credit for income tax on out-of-state income tax paid in another state, but only as to the Maryland state income tax, not as to the Maryland county income tax. (Maryland used to allow the off-setting credit as to the state income tax and the county income tax. But in 1975, the legislature amended the state tax code to eliminate the credit as to the county income tax.)
An example may help. (This comes from the Maryland Court of Appeals ruling in this case.) Suppose that Maryland imposes a state income tax of 4.75 percent on all income earned by its residents, a county income tax of 3.2 percent on all income earned by its residents, and an SNRT of 1.25 percent on the income earned by non-residents in Maryland. Suppose that Pennsylvania imposes the exact same taxes at the exact same rates.
Suppose that John lives in Maryland and earns $100,000 per year. Suppose he earns half of his income from activities in Maryland and half of his income from activities in Pennsylvania. If so, John owes $4,750 (or .0475 x $100,000) in Maryland state income tax and $3,200 (or .032 x $100,000) in Maryland county income tax, for a total of $7,950 for all Maryland taxes.
At the same time, John also owes $2,375 (or .0475 x $50,000) in Pennsylvania state income tax and $625 (or .0125 x $50,000) in Pennsylvania SNRT tax for a total of $3,000 for all Pennsylvania taxes.
Based on John’s tax owed to Pennsylvania, John qualifies for a Maryland state tax credit in the amount of $2,375 (the maximum allowable credit under the Maryland tax code, given the assumptions in this example). That means that John owes a total Maryland tax of $5,575, and John’s total state income tax burden is $8,575 (or $5,575 for all Maryland state taxes plus $3,000 for all Pennsylvania state taxes).
(Note that John’s total state tax burden is $625 more than the total state income tax burden for an individual, let’s call her Mary, who earned the same amount of income, but only in Maryland. Mary would only owe $7,950 in Maryland state taxes—the same as John’s Maryland state tax burden without the credit for taxes paid to Pennsylvania.)
In the 2006 tax year, Brian and Karen Wynne found themselves in a position like John’s—that is, paying state income taxes in other states, but not receiving a credit toward their Maryland county tax. Brian and Karen Wynne are a married couple living in Howard County, Maryland. Brian Wynne was one of seven owners of Maxim Healthcare Services, Inc., a company that does a national business providing healthcare services. Maxim is an S-corporation under the Internal Revenue Code, which means that Maxim’s income is imputed (or “passed through”) to its owners for federal income tax purposes. Maryland also accords pass-through treatment to the income of an S-corporation. In 2006, Maxim earned income in 39 states and, as an S-corporation, allocated to each owner a pro rata share of the taxes paid in each state.
The Wynnes reported Brian Wynne’s income from Maxim on their 2006 Maryland state tax return. The Wynnes claimed a credit based on Brian’s pro rata share of state and local income taxes paid to other states.
The Maryland Comptroller made a change in the computation of the local tax owed by the Wynnes and revised the credit for taxes paid to other states. This resulted in a deficiency in the Maryland taxes paid by the Wynnes, and they appealed. After exhausting their administrative appeals, the Wynnes appealed to the Maryland Tax Court, where they argued that the limitation on the credit to the Maryland state tax (which did not extend to the Maryland county tax) for tax payments made to other states discriminated against interstate commerce in violation of the Dormant Commerce Clause of the United States Constitution. The Tax Court rejected the argument, and the Wynnes appealed, until the Maryland Court of Appeals, the state high court, agreed. This appeal followed.
While the Commerce Clause gives Congress authority to regulate interstate commerce, the so-called Dormant Commerce Clause restricts the states from discriminating against interstate commerce. (The Dormant Commerce Clause is not in the Constitution as such. Instead, the Court infers it from the Commerce Clause and federalism principles.) One way that a state might discriminate against interstate commerce is through its tax scheme. When this happens, the Court uses a four-part test first articulated in Complete Auto Transit, Inc. v. Brady. 430 U.S. 274 (1977). Under that test, a state tax does not violate the Commerce Clause if
- [the tax] is applied to an activity with a substantial nexus to the taxing state;
- it is fairly apportioned so as to tax only the activities connected to the taxing state;
- it does not discriminate against out-of-staters; and
- it is fairly related to services provided by the state.
The Maryland Court of Appeals held that the Maryland tax scheme violates the second and third prongs of this test. The court ruled that the tax scheme was not fairly apportioned, because it amounted to double-taxation of income. The court ruled that the scheme discriminated against out-of-staters, because it favors individuals who do business only in Maryland over individuals who do business across state lines.
The parties disagree over whether and how the Complete Auto test applies to the Maryland tax scheme for individual income taxes passed through an S-corporation. (That last part is important, because, as described below, different rules may apply to a state tax scheme for corporate income taxes owed by a C-corporation.) They also disagree over the application of the time-honored principle that states can tax all the income of their residents, even income earned in other states.
Maryland argues first that states have authority to tax all income of their residents, including income earned outside the state’s borders. The state says that this authority is based on the taxpayer’s domicile, not the source of his or her income, and it claims that the state’s authority to tax its residents is justified based on the substantial benefits that residents receive from the state. The state contends that it has designed its income tax system to ensure that all Maryland residents contribute to the benefits that the state offers those residents. In particular, the state says that the tax credit for out-of-state income tax is designed to reduce Maryland tax payments for residents earning income outside the state while at the same time requiring those residents to pay some income tax to support state and local government programs.
The state argues that the Maryland Court of Appeals ruling—compelling Maryland to give a credit for tax payments to other states against both the state income tax and the county income tax—would mean that certain Maryland taxpayers could take advantage of state and local benefits “without contributing any income taxes in return.” The state claims that this is particularly unjustified, because Maryland taxpayers can exercise their political power within Maryland to change the state tax system. (In contrast, the state argues, other tax schemes invalidated by the Supreme Court involved disproportionate income taxes on nonresidents, who did not have political power within the taxing state.) The state says that “Maryland’s system simply asks something more of the State’s own citizens,” and that those citizens can work through the political process to change it, if they like.
The state argues next that the Maryland Court of Appeals ruling would undermine the principle that a state can tax all the income of its residents, wherever earned. It says that the ruling effectively means that a state is barred from taxing its residents’ out-of-state income to the extent that another state has already taxed that income. This, in turn, means that a state’s authority to tax its residents’ income is subordinate to another state’s authority to tax that income. The state contends that this does not square with the general rule that a state can tax all its residents’ income. It also says that this is not supported by the Constitution, which treats all states equally for this purpose and does not provide a priority of states’ authority to tax.
The state claims further that no principle of double taxation bars Maryland from denying a credit toward the Maryland county tax. It says that there is no problem with double taxation so long as both sovereigns have valid authority to impose the taxes that result in double taxation. It claims that this rule is consistent with the principle that a state can impose taxes to pay for a fair share of services, and the reality that “states do significantly more for their residents than they do for taxpayers who simply earn income within their territory.”
Finally, the state argues that the Maryland Court of Appeals wrongly applied the standard under Complete Auto Transit, Inc. v. Brady. It says that the court wrongly looked at the taxes that the Wynnes paid to all states, and not the taxes they paid only to Maryland. The state contends that the Maryland scheme, taken on its own, is completely neutral with respect to interstate commerce, and that a higher overall tax burden (as illustrated in the example above) is only due to the accident of two taxing sovereigns simultaneously exercising their valid taxing authorities. Moreover, the state claims that the Maryland Court of Appeals was wrong to conclude that the Maryland tax is not fairly apportioned. It says that the Maryland tax is based on Maryland residency, and that there is no need for it to be apportioned—indeed, that residency cannot be apportioned.
The federal government, weighing in as amicus curiae in support of Maryland, adds that Wynne is wrong to focus on whether the Commerce Clause requires states to offer credits for out-of-state income taxes paid by corporations. (Wynne’s argument on this point is summarized below.) The government says that C-corporations have a different relationship to, and receive different benefits from, the state than individuals (taxed as an S-corporation)—and that corporate income tax is different than personal income tax. The government contends that this means that the Commerce Clause analysis for these different types of taxes might be different. Moreover, the government says that it is an open question whether states must apportion income of resident corporations by providing credits for out-of-state income tax.
Wynne argues first that the Maryland tax scheme violates the Commerce Clause. He says that the scheme results in double taxation of out-of-state income as a result of engaging in interstate commerce. He says that the Court has long invalidated that kind of tax.
Wynne argues next that the state applies the wrong test. Wynne says that the state never applies the Complete Auto test and instead “tries to float above the Commerce Clause jurisprudence” to find an exception to the rule that a state may not double tax interstate commerce. He claims that the state’s reliance on its sovereign authority to tax its residents is misplaced, because the Court has struck state taxes—even taxes on residents—that violate the Commerce Clause. He contends moreover that this reliance is misplaced, because the Court’s jurisprudence has never turned on labels (like “residency”); instead it turns on whether a tax substantially affects interstate commerce. And Wynne says that Maryland’s scheme has a substantial effect on interstate commerce, because, as here, “it discourages interstate activity by a corporation that operates in dozens of States.”
Wynne argues that the state is wrong to say that it can double-tax income in order to ensure that residents pay for state services. He claims that he would still pay substantial state income taxes even with a credit against his county tax, and that he pays all manner of other state taxes that go to support state services. And Wynne contends that Maryland and other states provide extensive services to resident corporations, but that, under Supreme Court precedent, they cannot double-tax them. He says that this shows that Maryland’s argument about paying for services “proves too much.”
Finally, Wynne argues that the state’s position would have a “bizarre result.” He says that the state’s position means that states could not double-tax resident C-corporations, but could double-tax resident S-corporations. He claims that this makes no sense, given that each kind of corporation engages in interstate commerce.
This case could have immediate and important fiscal significance for Maryland and states and municipalities around the country. For Maryland, a ruling affirming the Maryland Court of Appeals could cost the state between $45 and $50 million per year in tax revenue, and as much as $120 million in retroactive tax-refund claims. Around the country, such a ruling could affect more than 2,000 municipal income taxes nationwide that might not provide credits for out-of-state income taxes. States could seek to make up losses by increasing income tax rates (or imposing or increasing other taxes), but that option could be politically difficult.
More generally, the case potentially tests the long-standing principle that a state may tax all the income of its residents, even if earned out of state. But this principle is well established and universally relied upon. The Court is unlikely to rule in a way that threatens it.
Finally, the ruling of the Maryland Court of Appeals is in tension with other state-court rulings on similar (but not exactly the same) issues. This case will settle the matter, and tell us whether a state must provide a credit against all aspects of the state income tax.
Monday, November 10, 2014
The D.C. Circuit today upheld an appointment to the NLRB on the first day of a 17-day intra-session recess of the Senate for a vacancy that existed before the recess. The case is an application of the Supreme Court's ruling last Term in Noel Canning--and it shows why all three parts of that ruling matter.
The case was a challenge to an NLRB decision based on lack of quorum, just like Noel Canning. In particular, the appellants, Stevens Creek Chrysler Jeep Dodge, argued that President Obama's appointment of Gary Becker to the Board violated the Recess Appointment Clause, because President Obama made the appointment to an already-existing vacancy on the first day of an intra-session recess.
The D.C. Circuit said that the recess appointment authority extends to intra-session recesses and to vacancies that already existed at the time of the recess, based on two of the holdings in Noel Canning. The court also said that the 17-day recess here was longer than the 10 days that the Supreme Court identified as enough to constitute a "recess."
Breaking a little new ground, however, the court also said that it didn't matter that Becker's appointment came on the first day of this 17-day recess. That's because, under historical examples that the Court relied upon in Noel Canning, the "lawfulness of a recess appointment depends on the ultimate length of the recess . . . not the number of days from the start of the recess to the appointment."
But don't count on this to shift the balance of power back to the President (by allowing him to recess appoint on the first day of any open-ended recess). Instead, it'll only mean that the Senate, if it wants to foil the use of the recess appointment power, won't have an open-ended recess; it'll define the recess and use pro forma sessions (as it did in the recess leading to Noel Canning).
Friday, November 7, 2014
The Supreme Court today agreed to hear King v. Burwell, the case testing the federal government's authority to issue tax credits to individuals who purchase health insurance on a federal (not state) health-insurance exchange.
The case tests whether the IRS can issue tax credits to low- and moderate-income individuals who purchase health insurance on a federal (not state) health-insurance exchange, in light of the language in the Affordable Care Act that, read in isolation, seems to limit those credits to purchasers on an "[e]xchange established by the State."
The plaintiff-petitioners argue that the this language means exactly what it says: that the government can provide credits only for purchasers on state exchanges, not federal exchanges. The government argues that other provisions in the ACA and the broader purposes of the Act show that Congress clearly intended to offer credits to purchasers on all exchanges.
Under the ACA, the federal government can step in an establish an exchange when a state declines to. Thirty-six states are now covered by a federal exchange; the rest established a state exchange.
If the plaintiff-petitioners ultimately win, the case would strike a serious blow to the universal coverage goal of Obamacare. That's because without the credits (which are significant, $4,700 per person per year, on average), low- and moderate-income individuals may not be able to afford insurance. Given that estimates put the number of individuals who have already received subsidies at nearly 5 million, the lack of subsidies could force large numbers out of the insurance pool and drive up rates for those in the insurance pool.
Today's grant was of the Fourth Circuit decision, which upheld the subsidies. The D.C. Circuit panel decision struck the subsidies, but the en banc D.C. Circuit vacated that ruling and agreed to rehear the case. (Oral argument is set for December 17.) All this means that there was no circut split before the Court (although there were conflicting lower court rulings, at least before the en banc D.C. Circuit stepped in).) This probably says little, if anything, about the likely result in the case. (In particular: the Court didn't necessarily take the case to reverse the Fourth Circuit.)
The Court requires the votes of four Justices to grant review. But this, too, probably says little, if anything, about the likely result in the case. (We don't know which Justices voted for review, which voted against (if any), and why.) All we know is that four or more wanted to hear it.
Wednesday, November 5, 2014
In addition to the candidates, Tuesday's ballots contained a wide variety of proposed state constitutional amendments--from protecting and curtailing fundamental rights, to taxes, to structure and governance issues.
Maybe most notably, Colorado and North Dakota voters rejected a personhood amendment, while Tennessee voters approved an amendment giving lawmakers more power to regulate abortions.
Here's a sampling of other approved amendments:
Alabama voters passed an amendment to ban the use of foreign law in state courts, and another one to strengthen the state's constitutional right to hunt.
Illinois voters passed an amendment banning discrimination in the vote and another one that expands the rights of crime victims in the criminal justice system.
Mississippi voters aproved an amendment creating a right to hunt and fish.
Missouri voters approved an amendment to make it easier to prosecute sex crimes against children, and another one to limit the governor's ability to withhold money from the state budget.
North Carolina voters approved an amendment allowing criminal defendants to choose a judge or a jury trial.
South Carolina voters approved an amendment allowing certain nonprofits to hold raffles and use proceeds for charitable causes, and another allowing the governor to appoint the head of the South Carolina National Guard with consent of the Senate.
Tennessee approved four amendments: one to give lawmakers more power to regulate and restrict abortions; two to give more power to the governor in appointing judges (and to take that power away from a judicial nominating commission); three to forbid a state income tax; and four to allow the legislature to authorize lotteries to certain nonprofits.
Utah voters passed an amendment clarifying the term of an appointed lieutenant governor.
Virginia voters approved an amendment that exempts from local property taxes the home of a surviving spouse of an armed forces member who was killed in action.
Wisconsin voters approved an amendment that prevents governors and legislators from using state transportation funds for other purposes.
Here's a sampling of rejected amendments:
Colorado voters overwhelmingly rejected a personhood amendment.
Florida voters rejected a medical marijuana amendment. (Voters in other states also voted on marijuana initiatives, but Florida's was a proposed constitutional amendment.)
Idaho voters rejected an amendment that would allow the legislature to veto rules put in place by executive branch agencies.
Missouri voters rejected an amendment to evaluate K-12 teachers based on student performance instead of seniority, and another amendment to create a limited early voting period.
North Carolina voters rejected a personhood amendment.
Monday, November 3, 2014
The Supreme Court heard oral arguments on Monday in Zivotofsky v. Kerry, the case testing whether Congress can require the State Department to list "Israel" as the country of birth for a U.S. citizen born in Jerusalem, upon the request of that citizen. The State Department has long declined to list "Israel" (or "Palestinian Territories" or the like) as the country of birth on such a passport, in order to promote its long-standing position of neutrality with regard to sovereignty over Jerusalem. This case tests which branch gets to decide whether Congress, or the executive branch, gets to decide what goes on the passport.
If arguments are any indication, this'll be a 5-4 opinion, along conventional lines (conservatives for Congress; progressives for the President). In short, conservatives didn't seem to think the Act's place-of-birth designation mattered much to recognition or to foreign affairs (or, as Justice Kennedy suggested, that its impact could be mitigated), and therefore that the Act didn't seriously interfere with any exclusive powers of the presidency. Progressives took the opposite view.
Zivotofsky tried to steer the Court toward his argument that the country-of-birth deisgnation on a passport has nothing to do with official recognition of a foreign sovereign. This position could allow the Court to dodge a thorny separation-of-powers problem entirely, by hanging its hat on the idea that the country-of-birth designation serves only an identification purpose, not a sovereign-recognition purpose. If so, the Court could rule for Zivotofsky by saying that Congress can require anything it wants in the place-of-birth line, because it doesn't interfere with the President's recognition power. (Or, as the government argued, the Court could rule for the government, saying that the congressionally required designation in effect requires the President to issue a diplomatic communication that contradicts the President's own recognition and foreign policy. But this would require at least some consideration of constitutional separation of powers--in particular, whether the President's power of recognition is exclusive.)
This approach seemed to get the attention of the conservatives on the Court. In particular, Justices Kennedy and Scalia in different ways seemed to suggest that the country-of-birth designation didn't recognize sovereignty. (If not, however, Justice Kennedy at one point wondered why Congress would have passed it in the first place.) Justice Kennedy returned several times to the ideal of a State Department disclaimer--that State could just write a statement that the place-of-birth designation didn't reflect the policy of the United States. And Chief Justice Roberts wondered later in the arguments whether the President's objections to the Act and the executive's position in litigation amount to a self-fulfilling prophecy--that is, whether designating "Israel" wasn't really all that big of a deal, until the President made it so. (This exchange, with SG Verilli, came up in a line of questions about why President Bush signed the Act in the first place, even with his constitutional reservations in the signing statement.) All these, and Justice Alito, suggested at different times that the country-of-birth designation wasn't all that important, anyway--a corollary to the country-of-birth-designation-as-mere-identification theory.
But Justice Kagan pushed back against the self-identification theory: she called the Act a "very selective vanity plate law," because it allows a passport holder to determine the designation of country of birth. She also underscored the passport-as-diplomatic-note point by asking whether a hypothetical congressional act would be constitutional if it required the State Department to inform all foreign minister that a new American was born in Israel whenever a new American was born in Jerusalem. (Zivotofsky's answer: Yes. Justice Kagan called this "a little bit shocking.") Justice Sotomayor went a step further and said (several times) that Zivotofsky and Act supporters wanted the government to lie--to say that Israel was the place of birth, even though the government doesn't recognize Israel as sovereign over Jerusalem.
Justice Breyer took an institutional competence view of the case, asking if the foreign affairs experts at the State Department declined to recognize Israeli sovereignty over Jerusalem, who was he to question them?
Justice Kagan took the final shot at the it-doesn't-matter-that-much view at the very end of arguments:
Can I say that this seems a particularly unfortunate week to be making this kind of, "oh, it's no big deal" argument. I mean, history suggests that everything is a big deal with respect to the status of Jerusalem. And right now Jerusalem is a tinderbox because of issues about the status of and access to a particularly holy site there. And so sort of everything matters, doesn't it?
It seems doubtful that she'll persuade her conservative colleagues.
Tuesday, October 28, 2014
Judge Reggie B. Walton (D.D.C.) yesterday dismissed an action by True the Vote against the IRS for politicized foot-dragging on its 501(c)(3), not-for-profit application. The ruling ends True the Vote's case against the IRS, with very little chance of a successful appeal.
True the Vote sued the IRS after the agency took a long time with its 501(c)(3) application and requested additional information from the organization before granting not-for-profit status. True the Vote argued that the IRS did this because True the Vote was a politically conservative organization aligned with the Tea Party, in violation of the First Amendment, the IRC, and the APA.
But Judge Walton dismissed the organization's claims for declaratory and injunctive relief as moot, after the IRS ultimately granted 501(c)(3) status, leaving nothing more for the court to order in terms of relief. The court also ruled that the "voluntary cessation" exception didn't apply, because the IRS, by the plaintiff's own reckoning (and the court's judicial notice), "suspended" its "targeting scheme" on June 30, 2013, and wouldn't re-engage in the footdragging.
Judge Walton dismissed the plaintiff's claim for monetary relief, ruling that there's no Bivens remedy, because the IRC already provides a comprehensive statutory remedial scheme. (It didn't matter that the plaintiff didn't like the scheme, only that it existed.)
Finally, Judge Walton dismissed the plaintiff's statutory claim that the IRS requested and inspected more information than necessary from True the Vote, because the IRC allows it to do that.
True the Vote can appeal, but Judge Walton's ruling is likely to be upheld.
Thursday, October 23, 2014
The Constitutional Accountability Center is examining Chief Justice John Roberts's first decade in office in a series of posts and articles called Roberts at 10. Here's the intro.
Brianne Gorod, the CAC's appellate counsel, posted most recently on Chief Justice Roberts and federal power, in particular, NFIB. Here's her conclusion:
[I]t is nonetheless clear that the Chief Justice is concerned about the scope of federal power and, in particular, the breadth of the federal regulatory state . . . . And while Chief Justice Roberts may not have the same appetite to change the law in these areas as Chief Justice Rehnquist had, it also seems clear that Chief Justice John Roberts's views on the Commerce Clause and the Spending Clause aren't exactly what Judge Roberts presented them to be at his confirmation hearing in 2005. Just how different they are . . . remains to be seen. But supporters of the Affordable Care Act shouldn't give Chief Justice Roberts too much credit for his decision in NFIB. It's complicated.
Saturday, October 18, 2014
The Supreme Court today rejected the applications by the Justice Department and civil rights groups to vacate the Fifth Circuit's stay of a district judge's injunction against Texas's voter ID law, SB 14. The ruling means that Texas can implement voter ID under SB 14 in the fall elections.
The brief, unsigned order simply rejected the applications for a stay.
But Justice Ginsburg wrote a dissent, joined by Justices Sotomayor and Kagan. Justice Ginsburg distinguished the Texas case from the North Carolina and Ohio cases, writing that "[n]either application involved, as this case does, a permanent injunction following a full trial and resting on an extensive record from which the District Court found ballot-access discrimination by the State." She also wrote that the Fifth Circuit didn't properly defer to the district court ruling, and that halting SB 14 wouldn't cause disruption or confusion in the election (the Fifth Circuit's principal reason for rejecting the district court's injunction).
Justice Ginsburg also reviewed the district court ruling striking SB 14, and noted that it failed preclearance under Section 5 of the Voting Rights Act (pre-Shelby County). She concluded,
The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters. To prevent that disenfranchisement, I would vacate the Fifth Circuit's stay of the permanent injunction ordered by the District Court.
Thursday, October 16, 2014
The Arkansas Supreme Court yesterday struck the state's voter ID requirement under the state constitution. The unanimous ruling means that Arkansas will not use Act 595's voter ID requirements in the upcoming elections.
The ruling is based on state constitutional law only, and therefore won't and can't be appealed to the United States Supreme Court.
The state high court ruled that Act 595's voter ID requirement added a voter requirement to those set in the state constitution. Arkansas's constitution, art. 3, Section 1, says,
Except as otherwise provided by this Constitution, any person may vote in an election in this state who is:
(1) A citizen of the United States;
(2) A resident of the State of Arkansas;
(3) At least eighteen (18) years of age; and
(4) Lawfully registered to vote in the election.
The court said, "These four qualifications set forth in our state's constitution simply do not include any proof-of-identity requirement." The court struck Act 595 on its face.
The court also rejected the argument that voter ID was simply a procedural method of identifying a voter, and therefore constitutional under a state constitutional provision allowing such methods:
We do not interpret Act 595's proof-of-identity requirement as a procedural means of determining whether an Arkansas voter can 'lawfully register to vote in the election.' Ark. Const. art. 3, Sec. 1(4). Under those circumstances, Act 595 would erroneously necessitate every lawfully registered voter in Arkansas to requalify themselves in each election.
Justice Courtney Hudson Goodson concurred in the result, but because Act 595 failed to get a two-thirds majority vote in both houses of the legislature as required by a 1964 amendment to the constitution that sets the requirements for identification and registration of voters (and does not include photo ID) and allows for legislative amendment of those requirements if the legislature votes by two-thirds in both houses.
The Fifth Circuit this week stayed an earlier district court judgment and injunction against Texas's voter ID law, SB 14. Unless the Supreme Court steps in, this means that SB 14 will apply to November's elections.
The Fifth Circuit action is not a ruling on the merits, however. Instead, it preserves the status quo under SB 14, pending appeal of the district court judgment to the Fifth Circuit.
The court said that changing the rules so close to the election risks too much confusion: "The judgment below substantially disturbs the election process of the State of Texas just nine days before early voting begins. Thus, the value of preserving the status quo here is much higher than in most other contexts." (Early voting starts on Monday in Texas.)
This is just the latest of four cases challenging state elections laws that has gone to the Supreme Court this fall, just before the elections, all on emergency applications related to lower court injunctions, and not on the merits. The Court halted Wisconsin's voter ID law; it allowed restrictions on early voting in Ohio; and it allowed restrictions on same-day voter registration and voting in the wrong precinct in North Carolina.
Tuesday, October 14, 2014
With the release of "Citizen Four," the film by Laura Poitras on Friday, two videos are worth a watch.
First, here is a Q&A session with Laura Poitras at the 52nd New York Film Festival on October 10 after a premier of the film.
Second, here is a "virtual interview" with Edward Snowden from the New Yorker Festival - - - including in the first minute or so the official trailer of the film (also here) and an extended discussion with Snowden:
October 14, 2014 in Current Affairs, Due Process (Substantive), Executive Authority, Film, First Amendment, Foreign Affairs, International, News, Speech, Theory, War Powers, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)
Thursday, October 9, 2014
Judge Nelva Gonzales Ramos (S.D. Tex.) ruled today that Texas's new voter ID law violated the Constitution and entered "a permanent and final injunction against enforcement of the voter identification provisions . . . of SB 14." Judge Ramos concluded that "SB 14 creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose." Judge Ramos also held that "SB 14 constitutes an unconstitutional poll tax."
Judge Ramos ordered Texas to "return to enforcing the voter identification requirements for in-person voting in effect immediately prior to the enactment and implementation of SB 14."
The ruling comes the same day as the Supreme Court vacated an earlier Seventh Circuit stay of a district court injunction against Wisconsin's voter ID law.
The Supreme Court this evening vacated the Seventh Circuit stay of an earlier district court injunction halting Wisconsin's voter ID law. (The Seventh Circuit upheld the state's voter ID law earlier this week.) This latest chapter in this dizzying case means that Wisconsin will almost surely not have voter ID in the upcoming elections. It also means that the Court may once again take up voter ID.
The Supreme Court order was brief, just one page, and said only that "the Seventh Circuit's stay of the district court's permanent injunction injunction is vacated pending the timely filing and disposition of a petition for a writ of certiorari . . . ." The stay will terminate if the Court denies cert.
Justice Alito dissented, joined by Justices Scalia and Thomas. Justice Alito wrote that the Seventh Circuit's ruling wasn't unreasonable, or "demonstrably" erroneous. Justice Alito alluded to the problem of absentee ballots going out without a notice of the voter ID requirement, suggesting that these problems may have driven the Court to intervene.
Judge Colleen Kollar-Kotelly (D.D.C.) this week rejected a non-profit's challenge to the disclosure provisions in the Bipartisan Campaign Reform Act of 2002. The ruling was unsurprising, even if the case may be noteworthy, as it represents a next wave of challenges to campaign finance regulation.
The Independence Institute, a Colorado non-profit, sought declaratory and injunctive relief against FEC enforcement of BCRA's disclosure requirement as applied to a specific radio ad that the Institute planned to run before the fall elections. The Institute argued that the requirement was overbroad as applied, because the planned ad was genuine issue advocacy, and not express advocacy.
Judge Kollar-Kotelly was blunt in rejecting this argument:
This dispute can be distilled to the application of the Supreme Court's clear instructions in Citizens United: in no uncertain terms, the Supreme Court rejected the attempt to limit BCRA's disclosure requirements to express advocacy and its functional equivalent. Plaintiff in this case seeks the same relief that has already been foreclosed by Citizens United.
Judge Kollar-Kotelly then rejected the Institute's attempts to distinguish Citizens United, ruled in favor of the FEC, and upheld the disclosure requirement.
This ruling was hardly surprising: if a court is going to overturn disclosure requirements, it'll have to be the Supreme Court. Still, the case should get our attention as a next-wave challenge to campaign speech regulation--the challenge to disclosure requirements.
Wednesday, October 8, 2014
The Supreme Court today stayed the preliminary injunction ordered by the Fourth Circuit against North Carolina's elimination of same-day voter registration and the state's elimination of voting in an incorrect precinct. The ruling means that North Carolina will not have same-day voter registration or allow voting in an incorrect precinct in the fall elections. Still, the underlying merits case will move forward at the district court.
The case is notable, because North Carolina enacted its restrictions on voting immediately after the Supreme Court struck the coverage formula for preclearance under the Voting Rights Act in Shelby County. The move suggested that the state itself thought that its law wouldn't achieve preclearance. It illustrates the sweep and practical effects of the Shelby County ruling.
Justices Ginsburg and Sotomayor dissented from the stay, arguing that the Fourth Circuit was right to enjoin the provisions, and that North Carolina's evidence comparing African-American turnout in the 2010 primary election (relatively low) with African-American turnout in the 2014 primary (relatively high, and under the changes at issue in the case) was flawed, because primary voting patterns are not representative of general election voting patterns.
A divided three-judge district court in the Eastern District of Virginia ruled that the district lines for Virginia's Third Congressional District violated equal protection. The court left the district in place for the fall elections, but ordered the state legislature to redraw the boundaries in the next legislative session.
The ruling tests whether and when a state's use of race to increase the percentage of racial minority voters in a district above the pre-existing percentage--for the stated reason to avoid retrogression under Section 5 of the Voting Rights Act (pre-Shelby County)--violates equal protection.
In other words: When can a state pack racial minority voters into a district in a way that dillutes their influence elsewhere, in the name of compliance with Section 5 of the VRA?
A similar issue is now before the Supreme Court in the Alabama cases, set for oral argument on November 12. We'll have an argument preview and review.
The legislature drew Virginia's Third in 2012 with an eye toward satisfying the non-retrogression standard in Section 5 of the Voting Rights Act. (At the time, before Shelby County struck the coverage formula for Section 5, Virginia was a covered jurisdiction.) In particular, the legislature used a 55 percent floor for the percentage of persons of voting age who identified as African America (the "BVAP"), so that the district wouldn't fall below a 55 percent BVAP. The legislature then increased the BVAP from 53.1 percent (the BVAP in the old district, the benchmark, under the 2000 census) to 56.3 percent (the BVAP in the redrawn district, based on the 2010 census). DOJ precleared the plan under Section 5 (again, before Shelby County).
Plaintiffs sued, arguing that the plan was a racial gerrymander in violation of the Equal Protection Clause.
The court ruled that legislative history and circumstantial evidence showed that the predominant purpose of the plan was race, and that the plan was subject to strict scrutiny. The court assumed, without deciding, that compliance with Section 5 was a compelling state interest before the Court struck Section 4 in Shelby County, but ruled that the redrawn district wasn't narrowly tailored to meet that interest. In particular, the court, citing Bush, said that the BVAP increase wasn't narrowly tailored "when the district had been a safe majority-minority district for two decades." The court wrote that "[w]hile the BVAP increase here is small than in Bush [where a plurality of the Supreme Court held that a BVAP increase from 35.1 percent to 50.9 percent wasn't narrowly tailored to achieve non-retrogression], the principle is the same." The court also said that the legislature's use of a 55 percent BVAP threshold (as a baseline below which the district could not fall), as opposed to some other analysis of racial voting patterns, wasn't narrowly tailored.
Judge Payne dissented.
Unless and until there's an appeal, Virginia's Third will stay the shape of the 2012 plan for the 2014 elections. But the legislature will have to redraw it next year.
Prof. Lou Sirico (Villanova) turns the counterfactual historical method on its head in his recently posted The Constitutional Convention: Drafting to Charter Future History. The result, argues Sirico: The Founders wrote and ratified the Constitution with an eye toward managing counterfactual futures.
Sirico looks at five areas--the debates surrounding the Ex Post Facto Clause, the authority to define international law, slavery, territorial expansion, and the decision not to include the word "national" in the text--to argue that the drafters sought to achieve, or avoid, certain futures.
For example, in forbidding ex post facto laws, the deputies were forbidding laws that the international community would have deemed illegitimate. Arguably, they attempted to prevent future Congresses from enacting laws that would have marked the new nation as lawless.
Sirico says that the counterfactual-future method suggests certain lessons on how we understand--and interpret and use--the document. Check it out.
Tuesday, October 7, 2014
In the latest, and almost certainly last, chapter of the case challenging Wisconsin's voter ID law, a three-judge panel of the Seventh Circuit upheld the law and reversed a district court permanent injunction against it. Once again, the upshot is that Wisconsin will have voter ID for the fall elections.
The ruling was hardly a surprise, given the Seventh Circuit's history with this case. Recall that the same three-judge panel earlier stayed the district court ruling and injunction, and the full court declined to rehear that decision. This most recent ruling resolves the merits and almost certainly closes the case.
The court ruled that the challenge to Wisconsin's voter ID law was virtually indistinguishable from the challenge to Indiana's voter ID in Crawford v. Marion County. Recall that the Supreme Court in that case upheld Indiana's voter ID law, because the plaintiffs didn't show that it would significantly impede citizens' ability to vote, and because the government had rational reasons for it. The Seventh Circuit said for the very same reasons that Wisconsin's voter ID law did not violate the constitutional right to vote. Indeed, the court noted that this was probably an easier case than Crawford.
The court also rejected the plaintiffs' claim under Section 2 of the Voting Rights Act. The court said that any racial disparity in possessing a voter ID was not due to discriminatory intent or to any factors (like ability to obtain voter ID, or a person's ability to pay for it) that the state had control over. The court also rejected the plaintiffs' disparate impact claim, concluding that the numerical disparity alone (between voter ID for voters of different races) wasn't sufficient to show a violation.
Finally, the court said that the distrinct court injunction--"perpetual and unconditional"--swept far too broadly. But in the end, that didn't matter, because the court upheld voter ID on the merits.
Judge Catherine D. Perry (E.D. Mo.) temporarily enjoined an ad hoc rule that allowed police officers to order peaceful protesters in Ferguson to move along rather than standing still (and threatening them with arrest if they don't). The ruling means that the law enforcement cannot enforce the move-along rule pending the outcome of the case on the merits. But Judge Perry was quick to write that nothing in her ruling stopped the police from enforcing the Missouri refusal-to-disperse statute, lawfully controlling crowds, or otherwise lawfully doing their jobs.
The case, Abdullah v. County of St. Louis, Missouri, challenged the ad hoc rule developed by law enforcement authorities that allowed police officers to order peaceful protesters to move along, instead of standing still, even when they aren't violated any law. The rule is just that, a rule (and not a statutory law), developed by law enforcement in the context of the Ferguson protests.
Judge Perry concluded that the plaintiffs were likely to succeed on the merits that the move-along rule was void for vagueness and violated free speech.