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.
The Supreme Court on Monday heard oral arguments in Heien, the case asking whether the Fourth Amendment permits an officer to make a car stop based on a mistake of law. (Our argument preview is here.) The petitioner put the Fourth Amendment--and only the Fourth Amendment--in front of the Court. But based on questions yesterday, the Court seemed to look for ways to wiggle around that framing--and possibly rule on something more, or less.
The petitioner worked mightily at argument and in briefing to distinguish between the underlying Fourth Amendment right and the remedy (exclusion of the evidence). That's because North Carolina automatically excludes evidence if the search violated the Fourth Amendment (without a good-faith exception)--a rule favorable to the petitioner, assuming a Fourth Amendment violation. (The state also interprets its own state constitutional provision in lock-step with the Fourth Amendment.) So the petitioner argued that if the Supreme Court ruled in his favor on the Fourth Amendment (alone), the Court should remand the case for a state-court ruling on the remedy (exclusion of the evidence, under North Carolina law). This, of course, hinged on the Supreme Court ruling on the Fourth Amendment alone.
The Court seemed skeptical. Led by Justice Scalia, questions pressed the petitioner on why it should separate the rights analysis from the remedy, when usually the two go hand-in-hand. Moreover, it wasn't clear why the petitioner should be able to take advantage of a federal Fourth Amendment ruling plus a state exclusionary rule in order to get the evidence excluded. The petitioner had answers (including the fact that the parties only barely briefed the remedy question), but it was clear that this was a sticking point.
On the other hand, some on the Court wondered whether the Court needed to get to the presented Fourth Amendment issue at all. That's because this was a consensual search (after the officer stopped the car). Justice Ginsburg led this line of questioning, but others joined in. Again, the petitioner had answers (fruit of the poisoning tree--the tree being the initial stop based on a mistake of law), but this, too, may be a sticking point.
In all, there were relatively few questions (and few indications one way or the other) on the presented question, whether the Fourth Amendment permits an officer to make a stop based on a mistake of law.
Monday, October 6, 2014
Wendy R. Weiser of the Brennan Center writes in The American Prospect that "[f]or the first time in decades, voters in nearly half the country will find it harder to cast a ballot in the upcoming elections." Weiser goes on to detail vote restrictions--and the court battles challenging them--in the run-up to the fall elections. Her conclusion:
These changes are the product of a concerted push to restrict voting by legislative majorities that swept into office in 2010. They represent a sharp reversal for a country whose historic trajectory has been to expand voting rights and make the process more convenient and accessible.
Weiser shows how these restrictions fall most heavily on racial minorities.
At the same time, Eric Garcia writes in The New Republic on the financial costs of voter ID. Garcia cites a report from Harvard Law School's Charles Hamilton Houston Institute for Race and Justice that puts the total cost of obtaining voter ID anywhere between $75 to $400 per person and the costs for states administering voter ID in the millions, even tens and scores of millions for larger states.
Friday, October 3, 2014
The Supreme Court will consider that question on First Monday, when it hears oral arguments in Heien v. North Carolina. Here's my oral argument preview, from the ABA Preview of United States Supreme Court Cases (with permission):
An officer in the Surry County Sheriff’s Department stopped the petitioner’s vehicle along an interstate highway because it had a broken right brake light. (The left brake light worked.) Upon a subsequent consensual search of the vehicle, the officer found cocaine, and the petitioner was charged with trafficking. The petitioner moved to suppress the evidence, arguing that the officer’s stop violated the Fourth Amendment. In particular, he argued that state law required only one operable brake light (an interpretation that the State does not dispute), that the officer based his stop on the mistaken belief that the petitioner violated state law, and that the officer therefore did not have reasonable suspicion that the petitioner broke the law.
Early one morning in April 2009, Nicholas Heien and Maynor Javier Vasquez were traveling on Interstate 77 through Surry County, North Carolina, in Heien’s Ford Escort. Vasquez was driving, and Heien was sleeping in the back seat.
Officer Matt Darisse of the Surry County Sheriff’s Department was patrolling the interstate. He noticed the car and followed it. As the Escort approached a slower-moving vehicle, Darisse saw that the car’s left brake light functioned properly, but that the car’s right brake light was out. Darisse pulled the car over and told Vasquez and Heien that he stopped them “for a nonfunctioning brake light.”
North Carolina law requires all vehicles to have “a stop lamp.” More particularly, the law says that “[n]o person shall . . . operate on the highways of the State any motor vehicle . . . manufactured after December 31, 1955, unless it shall be equipped with a stop lamp on the rear of the vehicle.” (Emphasis added.) No North Carolina appellate court had ever construed this statute to require two working stop lights. But a different statute requires that “[e]very motor vehicle . . . shall have all originally equipped rear lamps . . . in good working order[.]” (Emphasis added.) And yet another provision permits brake lighting systems to be “incorporated into a unit with one or more other rear lamps.” (Emphasis added.)
Darisse issued Vasquez a warning citation for the malfunctioning brake light. He then told Vasquez to step out of the car and asked him questions about where he was going. At the same time, another officer, who arrived sometime after the initial stop, walked to the back window of the car and asked Heien similar questions. Vasquez and Heien gave different answers. Darisse then asked Vasquez if he would “mind if we made a quick check to make sure you don’t have any drugs or guns or anything like that” in the car. Vasquez told Darisse that he would have to ask Heien, because the car belonged to Heien. Heien consented.
The officers then searched Heien’s car and found a plastic sandwich baggie containing cocaine.
The State charged Heien with trafficking in cocaine. (The State also charged Vasquez. He pleaded guilty to attempted cocaine trafficking.) Heien filed a motion to suppress the evidence that the officers found in his car, arguing that the search violated the Fourth Amendment. In particular, Heien claimed that Darisse lacked “reasonable articulable suspicion that criminal activity had been committed or was being committed, or that a motor vehicle traffic offense or infraction had occurred” when Darisse stopped Heien’s car. (If the stop was illegal, then the subsequent search was illegal, and the court would have to suppress the evidence.) Heien also argued that his consent to the search was invalid. The trial court denied these motions.
Heien pleaded guilty to two variations of drug trafficking and was sentenced to two consecutive prison terms of ten to twelve months. But he reserved the right to appeal the denial of his motion to suppress the evidence.
On appeal of Heien’s motion to suppress, the North Carolina Court of Appeals reversed the trial court, but a sharply divided North Carolina Supreme Court reserved the Court of Appeals (and affirmed the denial of Heien’s motion to suppress). Importantly, the State did not argue to the North Carolina Supreme Court that the state law required more than one working brake light, and the North Carolina Supreme Court did not rule on that question. Instead, the state high court assumed that the law required just one working brake light.
The North Carolina Court of Appeals and Supreme Court both later rejected Heien’s challenge to the validity of his consent and upheld his conviction and sentence. This appeal followed.
Under the Fourth Amendment, an officer may stop a vehicle based only on reasonable suspicion that a crime has been committed. The Supreme Court has held that “reasonable suspicion” includes a reasonable mistake of fact. This means that an officer may stop a vehicle based on reasonable suspicion, even when that reasonable suspicion is, in turn, based on an officer’s mistake of fact. This rule is designed to balance the intrusion on an individual’s privacy in a car stop, on the one hand, and the state’s interest in allowing officers to stop a vehicle when there is a chance of illegal behavior, on the other. In short, the rule gives officers some leeway to make a quick factual judgment, under conditions of uncertainty, that a law has been broken.
This case tests whether this rule extends to an officer’s reasonable mistake of law. If so, then an officer could stop a vehicle based on a reasonable mistake of law that a crime has been committed, just as the officer could stop a vehicle based on a reasonable mistake of fact that a crime has been committed.
Heien argues that an officer’s reasonable suspicion must be measured against a correct interpretation (and not a misinterpretation) of the law. He says that the purpose of the reasonable suspicion standard is to constrain the discretion of an officer and to avoid arbitrary stops, and that a stop based on any misinterpretation of the law (including a reasonable misinterpretation) undermines that core purpose. He claims that our tradition supports this—that the common law has long held officers liable for mistakes of law—and that familiar legal precepts support this, too (for example, the precept that “ignorance of the law is no excuse”). He contends that various canons of statutory construction “reinforce the principle that government should not benefit from mistaken interpretations of ambiguous or otherwise confusing criminal laws.”
Heien acknowledges that the Fourth Amendment tolerates stops based on reasonable mistakes of fact. But he says that the reasons for this rule do not carry over to reasonable mistakes of law. In particular, he claims that the Fourth Amendment recognizes that officers often have to make quick factual assessments under conditions of uncertainty, and that the doctrine gives officers the flexibility to make good-faith mistakes of fact. He says that an officer’s legal judgment is different, however, because knowledge of the law does not require ad hoc, case-by-case assessment; instead, it is fixed and determinate and susceptible to ex ante analysis by the courts.
Next, Heien argues next that an officer’s mistake of law is sometimes relevant, but only to the remedy, and not to the underlying Fourth Amendment right. He means that an officer’s mistake of law is relevant in determining whether the evidence obtained should be excluded, or whether an officer enjoys qualified immunity for the Fourth Amendment violation, that is, to questions of remedy for Fourth Amendment violations. But he says that the same mistake of law is not relevant in determining whether the officer violated the underlying Fourth Amendment right—the issue in this case. He says that a long line of Supreme Court cases supports this interpretation, and shoe-horning the mistake-of-law inquiry into the Fourth Amendment question would be difficult to administer, lead to varying results (and thus varying versions of the Fourth Amendment), and undermine our very system of individual rights protection.
Finally, Heien argues that even if the Court considers Darisse’s mistake of law on the question of the underlying right, the Court should still rule that Darisse violated the Fourth Amendment. Heien claims that Darisse’s mistake was not based on his reasonable reliance on assurances from courts or legislatures (as in other cases), but instead on “his own overly aggressive interpretation of the law.” Moreover, Heien contends that other problems could arise if the Court concluded that Darisse did not violate the Fourth Amendment because of his mistake. In particular, Heien says that police departments would be discouraged from educating officers on the law, that they would be discouraged from asking legislatures to clarify ambiguous laws (because that would shrink officer discretion), and that motorists could be subject to stops for nearly any reason—so long as the officer made a reasonable mistake. Heien claims that it is the legislature’s job, not the officers’ job, to determine what traffic laws are necessary to promote safety; but allowing an officer to dodge the Fourth Amendment by making a mistake of law would, in essence, put the law solely in the officer’s hands.
The State argues that reasonable mistakes of law, just like reasonable mistakes of fact, can support an officer’s reasonable suspicion to make a traffic stop. The State says that the reason for allowing mistakes of law to support an officer’s reasonable suspicion—to give officers some room, given the often ambiguous situations in which they execute their duties—applies equally to mistakes of law. It also claims that the law has recognized that mistakes of law can be objectively reasonable, and that the Supreme Court has upheld officer actions based on mistakes of law. And it contends that any effort to distinguish between mistakes of fact and mistakes of law would be fruitless, because mistakes of fact and mistakes of law are often difficult to distinguish.
Next, the State argues that an officer’s mistake of law is not only relevant to the question of remedy, but also the question of right. In particular, the State claims that the exclusionary rule doctrine does not limit the consideration of an officer’s mistake of law to the remedy (exclusion of evidence). And it says that under the qualified immunity doctrine, reasonableness for the purpose of officer immunity is different than reasonableness for the purpose of the Fourth Amendment violation itself. Therefore, the State contends, contrary to Heien, that the qualified immunity doctrine says nothing about whether a mistake of law might support the question of the right itself. The State claims that even if an officer’s mistake of law does not support an investigatory stop, the good-faith exception to the exclusionary rule would apply, and the evidence would come in. (Note that the good-faith exception to the exclusionary rule is not part of the Question Presented in the case, and Heien does not argue it.)
Finally, the State argues upholding stops based on reasonable mistakes of law advances the interests underlying the Terry doctrine. In particular, the State says that the Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968), recognized that officers often had to take “swift action predicated upon on-the-spot observations,” and therefore allowed investigatory stops based on mere reasonable suspicion (and not the higher standard, probable cause). The State claims that those same considerations support the use of an officer’s reasonable mistakes of law in making a stop. The State says that an officer may make a mistake of fact for any number of perfectly reasonable reasons. The State claims that this is a case in point: “The unsettled question of law here involved the interpretation of a statute that had been on the books for more than fifty years. No one had ever challenged the interpretation that all brake lights were required to be in working order.” The State says that there is no reason to believe that Darisse would have received any different advice if he could have asked for an interpretation of law in the field. In other words, the State claims that Darisse’s interpretation of the law was reasonable.
The government, as amicus curiae on the side of the State, argues first that the Fourth Amendment, where the ultimate touchstone is reasonableness, allows an officer to perform a car search when the officer reasonably believes that conduct violates the law, even if the officer’s belief turns out to be mistaken. The government says that this rule properly balances the suspect’s right to liberty and the state’s duty to control crime. The government claims that this only allows an officer to “start the judicial process,” and the courts can sort out the legality of the stop later. The government contends that a different rule would hamper law enforcement by discouraging officers from “starting the judicial process” in the first place.
Next, the government argues that courts since the Founding have held that officers could make a brief seizure when they acted on reasonable interpretations of the law, even when those interpretations turned out to be wrong. The government claims that courts since the Founding have even allowed mistakes of law in determining probable cause (a higher bar than the reasonable suspicion applicable here). The government says that more recent Supreme Court decisions similarly hold that an officer does not violate the Fourth Amendment when the officer acts on a reasonable mistake of law, and that those cases do not distinguish between the remedy question and the rights question, as Heien contends.
The government argues further that the same justifications that allow an officer to stop a vehicle upon a mistake of fact also allow an officer to stop a vehicle upon a mistake of law, that is, that mistakes of law should be treated the same as mistakes of fact for Fourth Amendment purposes. In particular, the government contends that “the strong public interest in bringing suspects into court when criminal conduct is probable but not certain” should justify allowing an officer’s mistakes of law as well as mistakes of fact to support a stop. The government claims that Heien’s attempts at distinguishing between mistakes of fact and mistakes of law are unavailing. It also says that the Court should not draw on the legal maxims or other rules from other areas of the law, as Heien argues, and that the good-faith exception to the exclusionary rule only reaffirms the fact that reasonable suspicion allows for reasonable mistakes.
Finally, the government argues that Darisse’s stop was supported by reasonable suspicion. The government claims that Darisse’s interpretation of North Carolina law was reasonable—that he reasonably interpreted the statutes to outlaw a broken brake light—and that he therefore had the requisite reasonable suspicion to make the stop.
This case will determine who should get the benefit of the doubt—a police officer, or a suspect—with regard to any evidence obtained when an officer makes a reasonable mistake of law leading to a traffic stop. That’s because an officer’s reasonable mistake of law necessarily means that the suspect did not actually engage in illegal activity justifying a stop. If the benefit goes to the suspect, then, the stop was invalid, and any evidence obtained in a subsequent search must be excluded. If the benefit goes to the officer, the stop was valid (even if based on a mistake of law), and the evidence can be used against the suspect.
But this benefit of the doubt could have other serious implications. For example, Heien and amici supporting him claim that giving the benefit of the doubt to the officer will lead to all sorts of public policy problems. These include decreased incentives for officer education; decreased incentives for clarifying uncertain law; increased incentives for stops for lawful conduct (so long as the state can gin up a reasonable post-hoc statutory rationalization for the stop); and even officer credibility in the community. One amicus points out that traffic stops disproportionately affect racial minorities. Another amicus points out that a ruling for the State would mean that police officers would be required to know less about the law than the general public (because, as Heien argues, “ignorance of the law is no excuse” for the general public).
On the other side, the State and its amici, including Wisconsin, eighteen other states, and the District of Columbia, say that giving the benefit of the doubt to a suspect would discourage valid stops and hamper law enforcement. They say that giving the benefit to the officer strikes the right balance between individual privacy and law enforcement. And the government suggests that if there are problems with a stop (for example, when a stop is based on an unreasonable interpretation of the law), the courts can sort them out later.
The case is also important because it will resolve a split in the federal and state courts. According to Heien’s Petition for Writ of Certiorari, the majority of federal courts of appeals and state high courts have concluded that a mistake of law cannot provide the reasonable suspicion necessary to justify a traffic stop. The North Carolina Supreme Court’s ruling is in the minority.
Thursday, October 2, 2014
A divided panel of the Fourth Circuit affirmed in part and reversed in part a district court ruling that declined to enjoin North Carolina's voting law under Section 2 of the Voting Rights Act. We posted on the district court case, with more background and links, here. (Recall that North Carolina moved swiftly to put this law into place after the Supreme Court struck the coverage formula for Section 5 of the Voting Rights Act in Shelby County. The move suggested that North Carolina itself thought that the law, or portions of it, wouldn't pass muster under Section 5, but that it would pass a Section 2 challenge.)
The ruling means that the state's elimination of same day registration and prohibition on counting out-of-precinct ballots are preliminarily enjoined during the pendancy of the case, but that the other portions of the law are not. Thus, the following provisions will go into effect pending the outcome of the merits case: (1) the state's reduction of early voting days; (2) expansion of allowable voter challengers; (3) elimination of discretion of county boards of election to keep polls open an additional hour on election day; (4) the elimination of pre-registration of 16- and 17-year-olds; (5) and the "soft" roll-out of voter identification requirements.
Unless the full Fourth Circuit or the Supreme Court steps in (and quick), that'll be the situation for the fall election. (The North Carolina AG reportedly said he'd appeal.)
The majority was quick to remind us that this is is not a final ruling on the merits, and does not speak to the underlying merits challenge. That case is still plugging forward in the district court.
The majority pulled no punches when it wrote that "the district court got the law plainly wrong in several crucial respects." It went on to identify, point by point, eight seperate ways the lower court misinterpreted and misapplied Section 2 of the Voting Rights Act. Perhaps most importantly, the court said that the district court misinterpreted the Section 2 standard in relation to Section 5:
First, the district court bluntly held that "Section 2 does not incorporate a 'retrogression' standard" and that the court therefore was "not concerned with whether the elimination of [same-day registration and other features] will worsen the position of minority voters in comparison to the preexisting voting standard, practice or procedure--a Section 5 inquiry."
Contrary to the district court's statement, Section 2, on its face, requires a broad "totality of the circumstances" review. Clearly, an eye toward past practices is part and parcel of the totality of the circumstances
Further, as the Supreme Court noted, "some parts of the [Section] 2 analysis may overlap with the [Section] 5 inquiry. . . .
The issue goes to the relevant baseline: Should the court measure a voting change with reference to the state's immediately preceding practice, or with reference to some other, lower baseline? (The issue came up recently in the Ohio early voting case, too.) The Fourth Circuit said that Section 2's totality-of-the-circumstances analysis requires a court to judge a voting change with reference to the state's prior practice. That, along with the rest of the totality of the circumstances, meant that the plaintiffs were likely to succeed on their challenges to the two portions of the North Carolina law that the court enjoined.
The Supreme Court will consider its first Section 2 case after Shelby County this Term--the Alabama redistricting cases. We'll likely get a better sense from that case how the current Court will analyze a Section 2 challenge--and how (and whether) it overlaps with the Section 5 standard.
Judge Motz dissented, emphasizing the high standard for a preliminary injunction, the timing of the case (right before the election), and the problems with implementation and potential confusion.
Wednesday, October 1, 2014
The Ninth Circuit ruled in PRMA v. County of Alameda that the County's drug disposal ordinance--which requires any prescription drug producer who sells, offers for sale, or distributes drugs in Alameda County to collect and dispose of the County's unwanted drugs--did not violate the Dormant Commerce Clause. The ruling ends the plaintiffs' challenge to the ordinance, with little chance of a rehearing en banc or Supreme Court review.
The case involves Alameda County's Safe Drug Disposal Ordinance, which requires any prescription drug producer who sells, offers for sale, or distributes drugs in the County to operate and finance a Product Stewardship Program. That means that the producer has to provide for the collection, transportation, and disposal of any unwanted prescription drug in the County, no matter which manufacturer made the drug. The plaintiffs, industry organizations, including a non-profit trade organization representing manufacturers and distributors of pharmaceutical products, challenged the Ordinance under the Dormant Commerce Clause.
The Ninth Circuit affirmed a lower court's grant of summary judgment in favor of the County. The court said that the Ordinance did not discriminate on its face or in application against out-of-state manufacturers--that it applied equally to all manufacturers, both in and out of the County. The court noted that three of PRMA's members had their headquarters or principal place of business, and two others had facilities, in Alameda County and so were effected equally by the Ordinance. This means that all the costs of the Ordinance weren't shifted outside the County (as the plaintiffs argued) and that at least some of those affected had a political remedy (and thus were not "restrained politically," as in United Haulers.)
The court then applied the balancing test in Pike v. Bruce Church, Inc., and concluded that the Ordinance's benefits (environmental, health, and safety benefits that were not contested on the cross-motions for summary judgment) outweighed any burden on interstate commerce (the plaintiffs provided no evidence of a burden on the interstate flow of goods).
This is almost certainly the end of the plaintiffs' challenge: the ruling is unlikely to get the attention of the en banc Ninth Circuit or the Supreme Court, if the plaintiffs seek rehearing or cert.
Tuesday, September 30, 2014
Judge Ronald A. White (E.D. Okla.) ruled today in Oklahoma v. Burwell that the IRS rule providing subsidies for individual purchasers of health insurance on an exchange established by the federal government (and not a state government) ran afoul of the plain language of the Affordable Care Act. Judge White stayed his ruling pending appeal, however, so it has no immediate impact on subsidies in Oklahoma.
Judge White's ruling aligns with the D.C. Circuit panel decision in Halbig and stands opposite the Fourth Circuit ruling in King. (Recall that the full D.C. Circuit vacated the panel ruling and agreed to rehear the case en banc. That argument is set for December.) All this means that there is currently no circuit split on the issue; instead, the Fourth Circuit upheld the tax subsidies, the full D.C. Circuit will reconsider them in December, and the Tenth Circuit will consider them soon (on the inevitable appeal from Judge White's ruling).
Judge White wrote that the plain language of the ACA resolved the case. That language allows a tax subsidy for a purchaser of health insurance who is "covered by a qualified health plan . . . enrolled in through an Exchange established by the State under section 1311 of the [ACA]." 26 U.S.C. Sec. 36B(c)(2)(A)(i) (emphasis added). Like the panel in Halbig, Judge White said that the language was clear, and that the IRS rule extending credits to purchasers of health insurance on exchanges established by the federal government (and not a state) violated it.
Judge White downplayed the effect of striking the IRS rule, saying that "apocalyptic" claims about the challenges tot he IRS rule are overstated. In any event, he wrote, Congress could re-write the law to specifically authorize the subsidies.
Judge White also ruled that Oklahoma had standing to challenge the IRS rule, because the state, as a large employer, would have been subject to federal penalties for some of its employees who might purchase health insurance on the federal exchange and qualify for a subsidy under the IRS rule.
Judge White's ruling probably doesn't make this case any more (or less) likely to go to the Supreme Court soon. With just two circuits weighing in so far--and one of them vacating the panel ruling and rehearing the case en banc--the Court will likely wait to see what the full D.C. Circuit, and now the Tenth Circuit, do with it. Still, the challengers in the Fourth Circuit case have asked the Supreme Court to review it.
Monday, September 29, 2014
An equally divided en banc Seventh Circuit on Friday denied review of a three-judge panel decision that stayed an earlier district court ruling and injunction against Wisconsin's voter ID law. The upshot is that Wisconsin's voter ID law will be in effect this election.
The court's decision was brief, but said that "[i]n coming days, members of the court may file opinions explaining their votes."
Chief Judge Wood and Judges Posner, Rovner, Williams, and Hamilton voted to hear the matter en banc. Judges Flaum, Easterbrook, Kanne, Sykes, and Tinder voted against.
The court hasn't yet issued a ruling on the merits.
Wednesday, September 24, 2014
President Obama sent two letters to Congress yesterday pursuant to the War Powers Resolution notifying it of U.S. military efforts in Iraq and Syria against ISIS and the Khorasan Group.
The first letter outlines "a series of strikes in Syria against elements of al-Qa'ida known as the Khorasan Group." It says that "[t]hese strikes are necessary to defend the United States and our partners and allies against the threat posed by these elements." The letter cites as authority the constitutional Commander-in-Chief, Chief Executive, and foreign relations powers of the presidency, and authority under the 2001 AUMF, the authorization for use of force against those who planned the attacks of September 11 and anyone who helped or harbored them.
The second letter reviews previous military efforts against ISIS in Iraq and outlines the deployment of 475 additional troops to Iraq and the use of U.S. forces "to conduct coordination with Iraqi forces and to provide training, communications support, intelligence support, and other support to select elements of the Iraqi security forces, including Kurdish Peshmerga forces." The letter also says that the President "ordered the U.S. Armed Forces to conduct a systematic campaign of airstrikes and other necessary actions against [ISIS] in Iraq and Syria . . . in coordination with and at the request of the Government of Iraq and in conjuntion with coalition partners." The letter cites the same authority as the first letter, above, along with the 2002 AUMF, the authorization for use of military force against Iraq.
The President has faced plenty of criticism for relying on his inherent constitutional authority and these two AUMFs in authorizing recent strikes. Congress is considering new AUMFs that would specifically authorize his actions. The Hill reports that Senator Levin, chairman of the Armed Services Committee, thinks that Congress will take up the measures after the mid-terms.
Friday, September 19, 2014
The Eleventh Circuit ruled this week in Taylor v. City of Gadsden that a city's increase in the mandatory contribution paid by public employees to the city's pension fund did not violate the Contract Clause of the U.S. or Alabama Constitutions.
The case arose when the City of Gadsden increased the mandatory contribution rate to the city pension fund by city firefighters from 6 percent of their salary to 8.5 percent of their salary in order to cover some of the city's pension shortfall. The city took the action pursuant to a state law that allowed, but did not require, cities to increase the mandatory contributions of public employees to their pension funds. Firefighters sued, claiming that the increase violated the Contract Clause of the U.S. Constitution and the parallel provision in the Alabama Constitution (interpreted in lock-step with the federal constitutional provision).
The Eleventh Circuit ruled that the Contract Clause didn't even apply to the city, because the city's act was not "an exercise of legislative power"; instead, it was merely a "particular item of business coming within [its] official cognizance . . . relating to the administrative business of the municipality," a "creature of state statute," but not exercising the legislative power of the state. Because Gadsden wasn't "passing any 'law,'" it "was, at bottom, 'doing nothing different than what a private party does,'" and was not subject to the Contract Clause.
The court said that even if Gadsden was subject to the Contract Clause, there was no violation here. That's because there was no contract, and relevant statutory provisions did not create an obligation not to raise the contribution rate. (Any statutory obligation went to the benefits under the pension plan, not the contributions to it.) Finally, the court said that "at most . . . the City has breached a contract, not impaired one." And "[b]ecause no state action has denied plaintiffs the possibility of a damages remedy, 'it would be absurd to turn [the] breach of contract . . . into a violation of the federal Constitution.'"
Norm Ornstein reviews Second Circuit Chief Judge Robert Katzmann's new book, Judging Statutes, over at The Atlantic. Along the way, Ornstein says why courts should use legislative intent in interpreting ambiguous statutory language--like the Affordable Care Act's language that led to Halbig v. Burwell.
According to Ornstein, Judge Katzmann is "the clearest heir to both Corwin and Hand" because of his "judicial temperament, keen mind, and respect for the law and politics." In his new book, Judge Katzmann sets out a case for using legislative intent in statutory interpretation. He draws on some of his own cases to illustrate "the ways in which dutiful judges can come to opposite conclusions." Still, as Ornstein writes, "in most controversial cases, there are clear ways to look at legislative history, the words of a bill's architects or managers, and the overall body of the law to divine the plain purpose."
As to Halbig, recall that a three-judge panel of the D.C. Circuit ruled that the IRS exceeded its authority under the Affordable Care Act in extending tax credits to individuals who purchased health insurance on a federally operated exchange. According to the court, that was because the ACA provides for tax credits for purchasers on state exchanges, but not federally operated exchanges. The Fourth Circuit issued a ruling the same day upholding the credits.
The D.C. Circuit used a narrow textualist approach; the Fourth Circuit used a broader textual approach and legislative intent. The D.C. Circuit case is now going en banc.
Wednesday, September 17, 2014
A three-judge panel of the Seventh Circuit last week threw a wrench into the November election in Wisconsin by staying an earlier district court ruling and injunction against the state's voter ID law, thus allowing the law to take effect immediately. The problem: some people have already cast absentee ballots without providing ID. More: some 11,800 voters requested absentee ballots before the panel's ruling, and thus under the assumption that they wouldn't have to provide ID. According to the Milwaukee Journal Sentinel, the director of the state Government Accountability Board is directing clerks to contact voters who requested an absentee ballot and tell them they need to provide an ID. He said that absentee ballots from voters who do not provide IDs won't be counted.
And this says nothing about the inevitable confusion at the polls.
There's another problem, the original one that sparked the litigation in the first place. That is, some 300,000 registered voters in Wisconsin, mostly poor and disproportionately racial minorities, lack a qualifying ID for voting, according to U.S. District Court Judge Lynn Adelman, who ruled in an exhaustive opinion last April that the law was unconstitutional and enjoined its enforcement.
The Seventh Circuit panel order undoes Judge Adelman's injunction. The panel wrote that
[a]fter [Judge Adelman's] decision, the Supreme Court of Wisconsin revised the procedures to make it easier for persons who have difficulty affording any fees to obtain the birth certificates or other documentation needed under the law, or to have the need for documentation waived. This reduces the likelihood of irreparable injury . . . . The panel has concluded that the state's probability of success on the merits of this appeal is sufficiently great that the state should be allowed to implement its law, pending further order of this court.
While the panel's brief, one-page order is not a final ruling on the merits (that will come "in due course"), it presages the likely final merits ruling.
But the most recent move by the plaintiffs may preempt that. The plaintiffs asked the full en banc Seventh Circuit to review the panel's decision. The full bench would have to act quickly, because the absentee election is already underway.
The Seventh Circuit is the same court that upheld Indiana's voter ID law, later also upheld by the Supreme Court in Crawford v. Marion County. (That law, according to the panel last week, is "materially identical" to Wisconsin's law). But Judge Posner (who was on the panel in the Indiana case, but not on the panel in the Wisconsin case) wrote last year that Indiana's voter ID law is "now widely regarded as a means of voter suppression rather than fraud prevention," suggesting that his opinion on voter ID changed. We may find out, if the full Seventh Circuit takes up the case.
This year's MacArthur Fellowships included some well known advocates for social justices whose work involves constitutional law.
Mary Bonauto (pictured below) is one of the 21 people selected as a 2014 MacArthur Fellow for her work as a "civil rights lawyer."
Here's the beginning of the announcement:
Mary L. Bonauto is a civil rights lawyer whose powerful arguments and long-term legal strategies have led to historic strides in the effort to achieve marriage equality for same-sex couples across the United States. The Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD) since 1990, much of her early work focused on adoption and parenting, censorship, hate crimes, and discrimination in jobs and public accommodations.
More description as well as a video on the MacArthur site here.
LawProf Sarah Deer (pictured below) is another of the 21 recepients.
Here's the beginning of the announcement:
Sarah Deer is a legal scholar and advocate leveraging her deep understanding of tribal and federal law to develop policies and legislation that empower tribal nations to protect Native American women from the pervasive and intractable problem of sexual and domestic violence.
More description as well as a video on the MacArthur site here.
Tuesday, September 16, 2014
Senior Judge David Sam (C.D. Utah) ruled last week that the Religious Freedom Restoration Act prevented the court from compelling a FLDS Church member from answering questions related to a Labor Department investigation into child labor violations.
The ruling does not necessarily end the Labor Department investigation, though. Indeed, as Judge Sam wrote, DOL may be able to get the information from other sources.
The case arose when DOL sought an order compelling a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints, or FLDS, to answer questions in the course of an investigation over the use of child labor in harvest activities at a pecan ranch in Hurricane, Utah. The FLDS member, Vernon Steed, invoked the First Amendment (free exercise), objecting to DOL's questions about the internal affairs of the FLDS Church. Judge Sam wrote that the claim sounded more like a Religious Freedom Restoration Act claim, and applied the higher level of scrutiny under the RFRA.
Judge Sam wrote first that a court order would substantially burden Steed's religious beliefs, because Steed said that he made a vow "not to discuss matters related to the internal affairs or organization of the [FLDS]," and that giving testimony would violate that vow. DOL challenged the sincerity of this belief, but Judge Sam, citing Hobby Lobby, didn't question it.
Judge Sam then wrote that DOL failed to satisfy the RFRA standard (again citing Hobby Lobby) because it had other ways to get the information it sought. For example, DOL could get information from the corporation or individuals who contracted to manage the ranch.
The ruling may not shut down the investigation, because DOL may, indeed, be able to get the information it needs from these other sources. But even if it can, the ruling underscores the heightened, strict scrutiny standard under the RFRA (over the lower, rational basis standard in Smith) , and illustrates its reach.
Friday, September 12, 2014
Senate Republicans unanimously blocked the campaign finance constitutional amendment proposed by Democrats. The measure, S.J. Res. 19, failed 54 to 42, short of the 60 votes necessary to close debate and move to a vote on the merits.
The proposed amendment would have overturned Citizens United and allowed Congress and state legislatures to regulate campaign contributions and spending. It read:
Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.
Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.
Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.
Republicans argued that the measure infringed on free speech. Senator Ted Cruz captured the point when he said that SNL producer "Lorne Michaels could be put in jail under this amendment for making fun of any politician." That seems pretty unlikely, but still possible under the language. Politifact gave it a "half-true," based on interviews with several ConLawProfs.
Tuesday, September 9, 2014
According to The Hill, President Obama told congressional leaders today that he doesn't need congressional approval for his campaign against ISIS, details to be announced tomorrow night.
While he told the congressional leaders he would welcome congressional action that demonstrated a unified front, the president told the bicameral, bipartisan group "he has the authority he needs to take action against [ISIS] in accordance with the mission he will lay out in his address," according to the White House.
Participants in the meeting--the House Speaker and Minority Leader, and the Senate Majority and Minority Leaders--didn't say anything about the need for congressional approval afterward.