Constitutional Law Prof Blog

Florida Federal Judge Grants Preliminary Injunction Against Law Regulating Voter Registration

In his opinion today in League of Women Voters of Florida v. Browning, Northern District of Florida Judge Robert Hinkle held that the plaintiffs had a likelihood of prevailing on the merits of their claim that Florida Statutes § 97.0575, as amended in 2011, and its  implementing rule, Florida Administrative Code Rule 1S-2.042, violate the First Amendment. 

Judge Hinkle found that the "statute and rule impose a harsh and impractical 48-hour deadline for an organization to deliver applications to a voter- registration office and effectively prohibit an organization from mailing applications in. And the statute and rule impose burdensome record-keeping and reporting requirements that serve little if any purpose, thus rendering them unconstitutional."

The judge applied a relatively low standard, finding that "an election-code provision of this kind must serve a legitimate purpose that is sufficient to warrant the burden it imposes on the right to vote."  And perhaps a well-crafted law could survive such judicial review.  But Judge Hinkle stated:

This statute and this rule are not well crafted. To the contrary, they are virtually unintelligible, close to the point, if not past the point, at which a statute—especially one that regulates First Amendment rights and is accompanied by substantial penalties— becomes void for vagueness.

Rejecting Florida's argument that certain issues in the statute's application "will need to be worked out,"  Judge Hinkle was dismissive.  Not only would a voter-registration organization be "ill advised to risk significant fines—and the attendant damage to the organization’s reputation—that would result from failing to comply with provisions this difficult to parse,"  but it is also " not too much to ask the state to work out the issues in advance," when "rights of this magnitude are at stake."  

Judge Hinkle's opinion provided several different practical scenarios.  For example,

Another substantial flaw in the statute and rule—and a clearer violation of controlling law—is their disregard of a voter-registration organization’s interest in mailing in completed voter-registration applications rather than hand delivering them. The statute makes no provision for mailing at all. If the statute means what it says—that an application must be received in the voter-registration office within 48 hours after the applicant signs it—a prudent voter-registration organization can never mail in an application. This is so because even if the organization delivers the application to the Postal Service immediately after the applicant signs it—and this in itself would be virtually impossible—the organization cannot be assured that the Postal Service will deliver it within 48 hours.

Judge Hinkle found the constitutional arguments more pertinent that those under the National Voting Rights Act, and did sustain a few of the Florida provisions.  But this is certainly a substantial set back for the controversial Florida statute and administrative rule that severely curtailed voter registration activities.

RR

CFP: AALS ConLaw Section

Section on Constitutional Law
Call for Papers for January 2013 AALS Annual Meeting Program:
“Forty Years after Rodriguez, 35 Years after Bakke:
Education, Equality and Fundamental Rights”
 
The Section on Constitutional Law and the Section on Education Law will be holding a joint program at the January 2013 AALS annual meeting. The program topic is “Forty Years after Rodriguez, 35 Years after Bakke: Education, Equality and Fundamental Rights.” The program will be held on Friday, January 4, from 2:00-5:00pm.

The panel organized by the Education Law Section will emphasize school financing, forty years after the Supreme Court held in Rodriguez that there is no fundamental right to education under the U.S. Constitution and that public school funding disparities are not subject to close scrutiny.
 
The Section on Constitutional Law panel will deal primarily with the constitutionality of racial affirmative action in higher education admissions. Among other matters, it will consider the implications of the Court’s grant of review in Fisher v. University of Texas, involving an undergraduate affirmative-action admissions program.

The Section on Constitutional Law invites submission of abstracts (of no more than five pages) for purposes of choosing one speaker for this panel. The speaker who is chosen will be expected to produce a paper that can be posted on the AALS web site prior to the annual meeting and that will be published in the Loyola Law Review.
 
Deadline Date for Submission: August 1, 2012
 
For more information and submission of abstracts, contact Professor Mark S. Scarberry, Pepperdine University School of Law, mark.scarberry AT pepperdine.edu.

RR 

D.C. Circuit Upholds Key Provisions in Voting Rights Act

A divided three-judge panel of the D.C. Circuit today affirmed a lower court decision and upheld key provisions in the Voting Rights Act.  The majority in Shelby County v. Holder held that Section 5, the so-called pre-clearance provision, and Section 4(b), the section that designates covered jurisdictions under Section 5, fell within congressional authority under the Fifteenth Amendment and thus were constitutional.  We covered the case in the lower court here and here; those posts contain more thorough background.

The ruling tees up the case for Supreme Court review.  The high Court has strongly suggested that it was just waiting for a good case to take on the constitutionality of these key provisions of the VRA.  It dodged the constitutional question three years ago in Northwest Austin Municipal Utility District v. Holder.  This case gives it a second crack, with the constitutional question unavoidably front-and-center.

When the case goes to the Supreme Court--and it's all but certain a "when," not "if"--it'll turn on how the Court treats and scrutinizes congressional findings (as it did in the D.C. Circuit).  In particular: Do congressional findings adequately support Sections 5 and 4(b)?  If we want a preview of those arguments, we can simply look to the arguments over methodology and congressional conclusions in this case--most or all of which are thoroughly vetted in the 100-page opinions.  

But there's another question to watch for: By what measure will the Court scrutinize congressional findings?  In other words: How much leeway will the Court give to Congress, if congressional findings don't exactly line up with Section 5 and 4(b).  This Court has suggested that it won't give much.

Congress had a thorough record when it reauthorized the VRA in 2006.  The question is whether it was thorough and precise enough for this Court.  Based on what we've seen from this Supreme Court, the answer is probably no; and we should brace ourselves for a sharply divided ruling that the VRA exceeds congressional authority.

In the D.C. Circuit, Judge Tatel started the majority opinion with a hat-tip to Northwest Austin and the Court's statement there that there were serious constitutional questions with the VRA--showing the court's full recognition of the importance of this case.  The ruling then uses the framework in Northwest Austin to analyze the constitutionality of Section 5:

First, emphasizing that section 5 "authorizes federal intrusion into sensitive areas of state and local policymaking that imposes substantial federalism costs," the Court made clear that "[p]ast success alone . . . is not adequate justification to retain the preclearance requirements." . . .  Second, the Act, through section 4(b)'s coverage formula, "differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty."

Op. at 14.

In a ruling that claimed deference to congressional judgments--but nevertheless included scores of pages of scrutiny of those judgments--the court held that Congress had satisfied both questions in reauthorizing the VRA in 2006.  (Along the way,the court held that the Fourteenth Amendment's "proportional and congruent" test is also the appropriate one for the Fifteenth Amendment.)

Judge Williams dissented, writing that Section 4(b), the section setting criteria for designation as a covered jurisdiction, was too rough a cut to meet the demands of the Fifteenth Amendment.  This illustration summarizes the point:

Why should voter ID laws from South Carolina and Texas be judged by different criteria (at a minimum, a different burden of persuasion, which is often critical in cases involving competing predictions of effect) from those governing Indiana?  A glimpse at the charts shows that Indiana ranks "worse" than South Carolina and Texas in registration and voting areas, as well as in black elected officials . . . .  As to federal observers, Indiana appears clearly "better"--it received none . . . .  As to successful Section 2 suits South Carolina and Texas are "worse" than Indiana, but all three are below the top ten offenders, which include five uncovered states . . . .  This distinction in evaluating the different states' policies is rational?

Dissent, at 32.

SDS

MLK Day 2012

President Obama's Presidential Proclamation on Martin Luther King Day, 2012, includes these words:

At a time when our Nation was sharply divided, Dr. King called on a generation of Americans to be "voices of reason, sanity, and understanding amid the voices of violence, hatred, and emotion."  His example stirred men and women of all backgrounds to become foot soldiers for justice, and his leadership gave them the courage to refuse the limitations of the day and fight for the prospect of tomorrow.  Because these individuals showed the resilience to stand firm in the face of the fiercest resistance, we are the benefactors of an extraordinary legacy of progress.

Today, Dr. King is memorialized on the National Mall where he once spoke, a symbol of how far our Nation has come and a testament to the quiet heroes whose names may never appear in history books, but whose selflessness brought about change few thought possible.  Dr. King's memorial reminds us that while the work of realizing his remarkable dream is unending, with persistence, progress is within our reach.

On the MLK memorial itself, the "drum major" quote has been the subject of controversy and is being "corrected."  The government sponsored MLK Day of Service continues to include the Drum Major for Service Award, as well as the correct/full "drum major" quote:   "Yes, if you want to say that I was a drum major, say that I was a drum major for justice; say that I was a drum major for peace; I was a drum major for righteousness… We all have the drum major instinct.”  Excerpt from The Reverend Dr. Martin Luther King, Jr.'s "Drum Major Instinct" sermon, given on February 4, 1968.

For ConLaw scholars, it might also be a good day to (re)read Randall Kennedy's "Martin Luther King's Constitution: A Legal History of the Montgomery Bus Boycott," 98 Yale Law Journal 999 (1989) (available on JSTOR) or Camille Nelson's " The Radical King: Perspectives of One Born in the Shadow of a King," 32 New York University Review of Law & Social Change, 485(2008) (available on ssrn), or view MLK's last speech.

RR
[image: personal collection]

Bill of Rights Day 2011

Today is Bill of Rights Day, marking the 220th anniversary of the adoption of the United States Constitution's Bill of Rights.

In his Presidential Proclamation last week, Obama stated:

On December 15, 1791, the United States adopted the Bill of Rights, enshrining in our Constitution the protection of our inalienable freedoms, from the right to speak our minds and worship as we please to the guarantee of equal justice under the law. For 220 years, these fundamental liberties have shaped our national character and stirred the souls of all who dream of a freer, more just world. As we mark this milestone, we renew our commitment to preserving our universal rights and perfecting our Union.

Introduced in the First Congress in 1789, the Bill of Rights was born out of compromise. The promise of enumerated rights enabled the ratification of the Constitution without fear that a more centralized government would encroach on American freedoms. In adopting the first ten Amendments, our Founders put forth an ideal that continues to define our Nation -- that we can have both liberty and security, that we need not sacrifice the rights of man for the rule of law.

Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.

Some would argue, however, that the Bill of Rights does not enshrine "the guarantee of equal justice under the law" in the Constitution, given that the concept of individual equality does not appear in the Constitution until the Fourteenth Amendment passed after the Civil War. The Fourteenth Amendment also introduced the word "male" into the Constitution, in section 2 regarding voting, although section 1 uses the word "persons."

The "Bill of Rights" as ratified does primarily focus on "rights," but the original Resolution of Congress consisting of twelve amendments did not concern rights.  Instead, they concerned Congress itself:

Article the first . . . After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second . . . No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

The latter became the 27th Amendment, ratified more than two centuries later in 1992.

Still, it's a good day to reflect on the "Bll of Rights":

• Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
• Amendment 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
• Amendment 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
• Amendment 4.  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
• Amendment 5.  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
• Amendment 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
• Amendment 7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
• Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
• Amendment 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
• Amendment 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

 

RR
[image from National Archives via] 

Acension Parish School Board, Redistricting, and Equal Protection: The Fifth Circuit Remands

In Lewis v. Acension Parish School Board, the Fifth Circuit's three judge panel issued as many opinions as there were judges, and remanded the case for further evidence development regarding whether the School Board intended to use racial classifications and whether its actions had a discriminatory effect, citing Washington v. Davis.

The factual background is a complicated one, but essentially the school district sought to both attain enrollment maximums and maintain unitary status, hiring a demographics application specialist who developed various options, conducting public hearings, and doing statistical analysis which included current and projected "enrollment, percentage of African-American students, and percentage of at-risk students at each school in the district" under the options.  The board ultimately adopted the option known as "2f."

The plaintiff Lewis, according to the per curiam opinion, "does not suggest that at-risk students are a suspect class for equal protection purposes. His claim is that minority students are being discriminated against based upon their race by a disproportionate influx of at-risk students into their schools."  The trial court found the adopted plan facially race-neutral, and that Lewis had not presented competent evidence of discriminatory motive by the School Board or disparate impact resulting from Option 2f.  Applying a rational basis test, the trial court found there was  a legitimate government interest in alleviating school overcrowding.  The trial court presumably also found that the means chosen were rationally related, although the Fifth Circuit does not highlight this portion of the necessary analysis.

The per curiam Fifth Circuit opinion reverses this conclusion:

We find the court's analysis troubling for two reasons. First, it is unclear how, on the record before us, the court could make a factual finding as a matter of law about the Board's lack of discriminatory purpose. Second, the court's assumption that it might be justifiable to use racially-based decisions for the "benign" purpose of maintaining post-unitary "racial balance" among the schools in the system is at least in tension with the Supreme Court's decision in Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1 (2007).

The per curiam opinion also noted that the question of whether the plaintiff Lewis had standing as to one of the two plaintiff children could be cured on remand.

Concurring, Chief Judge Edith Jones stressed that "race-based student assignments undertaken "to preserve unitary status," like other racially motivated government actions, presumptively violate the equal protection clause." 

Concurring in part and dissenting in part Judge Carolyn King wrote at length after first reasserting that Lewis' claim concerned the effect on minority students of the transfer of at-risk students, quoting from the oral argument.  Judge King agreed with the trial court that Option 2f is race-neutral and that there was no evidence of discriminatory intent.   Judge King then noted that plaintiff Lewis presented no evidence or argument regarding a lack of rational basis and the judge's own "review of the record indicates that Option 2f may have in fact been the most practical option."  Judge King then distinguished the factual scenerio from the one in Parents Involved.

While the judges did disagree about the applicable legal standard and its application, much of the disagreement amongst the judges concerned plaintiff Lewis' precise legal claim.  Thus, it seems that remand is the most appropriate course.  Although it also seems that this case may engender extensive litigation.

RR
[image from the Ascension Parish School Board website via]

 

Bork’s “75 page” Memo to Goldwater on the 1964 Civil Rights Act’s Unconstitutionality?

Did Robert Bork, as a law professor, write a “75 page” brief to Presidential Candidate Barry Goldwater arguing that the bill that would become the 1964 Civil Rights Act was unconstitutional?

Bork (pictured left) the controversial conservative and rejected Supreme Court nominee, has reappeared on the political scene as the co-chair of the legal advisory team of potential GOP Presidential candidate Mitt Romney.   He has recently also made news for opining that women are no longer discriminated against and do not need constitutional attention.

Bork has also long been famous for his argument that the 1964 Civil Rights Act, including Title VII, is unconstitutional.  Rand Paul has also made this argument, although at least one commentator distinguishes Rand Paul’s position from Goldwater’s based upon Goldwater’s “constitutional concerns” rooted in the “75 page brief” Bork sent to Goldwater as well as future Chief Justice William Rehnquist’s concerns.

When internet references to the “75 page” memo or brief mention a source, they cite to Richard Perlstein’s Before the Storm: Barry Goldwater.   Speaking on C-Span (written transcript provided), Perlstein in 2001 discussed Goldwater’s agonizing over the 1964 Civil Rights Bill which was resolved by the influence of Rehnquist’s statements and Bork’s 75 page memo against the Act.   In Perlstein’s book, he sources the Bork brief to James Perry, [A Report in Depth on] Barry Goldwater: A New Look at A Presidential Candidate.   Perry’s “Report in Depth” is a “Newsbook” peppered with photographs, published by the National Observer in 1964.   In the chapter “Men Around Goldwater,” the author names Bork as a “Goldwater favorite” and one of a number of law professors to whom “the Goldwater idea men went for advice” on the 1964 Civil Rights Bill.  Perry wrote:

The Goldwater staff asked for an objective, legal analysis by Professor Bork of the civil-rights bill.  They received a 75-page critique, which was used (along with other analyses) in preparing Mr. Goldwater’s statement against the bill.

 (at 25).

Scholars wishing to read the “75-page critique” by Bork sent to Goldwater - - - or to Goldwater’s staff - - - will have a difficult time obtaining it, as I learned when I asked faculty law librarians.  The memo is not in the seven volumes of Bork nomination materials compiled by Roy Mersky and J. Myron Jacobstein in their series of Supreme Court Nominees.  The Mersky and Jacobstein Volume 14-F, however, does include Bork’s notorious piece for The New Republic, “Civil Rights—A Challenge,” (August 31, 1963), arguing that the Act would be a “loss of liberty,” as well as the New Republic Editors’ reply and Bork’s rejoinder (here).  It is apparently not in the Goldwater papers at the Arizona Historical Foundation at Arizona State University or in the papers of Dean Burch, also at ASU, the Chair of the RNC in 1964.   As for the papers of Robert Bork, there may be some at the Library of Congress, although apparently Bork retains the authority to grant access.

Does the “75 page” memo still exist - - - perhaps a Xerox of a carbon copy - - - in someone’s files?  Did it ever?     

Almost a half-century has passed.  It is not that a missing document is nefarious (indeed, it sometimes seems a wonder that anything is preserved) or that Bork should be assumed not to have changed his opinions (indeed, he has recently stated that the “transition to a non-discriminatory society was much easier” than he thought it would be).  But page-number precise references to a document that is not available is intriguing. 

So, if you have a copy or have read a copy of that "75 page" memo, I’d love to hear from you.

RR
[image: Robert Bork, 2007, via]

Juneteenth

June 19th, celebrated as a commemoration of the end of chattel slavery in the United States, is not the date of the Emancipation Proclamation, issued by Lincoln on January 1, 1863, but the date that it was read aloud in Texas more than two years later accompanied by an announcement of the end of the Civil War.   The Thirteenth Amendment would be adopted by the Reconstruction Congress later that year, in December  1865.

Jim Chen, now Dean at University of Louisville Brandeis School of Law, in his article Mayteenth, 89 Minn. L. Rev. 203 (2004), available on ssrn, explained the significance of June 19, 1865:

On that day, a Union regiment led by Major General Gordon Granger landed at Galveston, Texas. The Granger regiment not only reported the two-month-old news that the Civil War had ended with Robert E. Lee's surrender at Appomattox Courthouse on April 9, 1865, but also enforced (nearly two and a half years after the fact) the Emancipation Proclamation of January 1, 1863. . . . Juneteenth is, as it were, Martin Luther King, Jr.'s birthday without the tragedy.

As an epochal event, Juneteenth managed rather remarkably to arrive both too late and too early. The two-month delay in reporting the news of the Confederacy's defeat and the two-year delay in the enforcement of the Emancipation Proclamation would prove to be trivial in comparison with the glacial pace of legal reform after the Civil War. The nominal end of slavery foreshadowed the bitter disappointment of Reconstruction and the strange career of Jim Crow. A full lifetime after the end of Reconstruction, William Faulkner described all too perfectly the grip of slavery's dead hand: “The past is never dead. It's not even past.”  Most of the slaves emancipated in 1865 never enjoyed some of the simplest and most essential civil rights. Meaningful protection of the right to vote without regard to race or color, to name merely one example, would wait more than a century. Exactly 100 years and 48 days elapsed between Juneteenth and the passage of the Voting Rights Act of 1965.

To celebrate Juneteenth, in other words, is to acknowledge unfinished business. Neither Union victory in the Civil War nor Reconstruction came close to discharging America's debt to its black citizens. Indeed, Reconstruction effectively enabled the South to win the Civil War.  Yet Juneteenth remains worth remembering and celebrating. Rail as we might (and should) against the persistence of racism in America, the preservation of the Union and the abolition of slavery define much of what is good and heroic in American history. To borrow a key word from the civil rights jurisprudence of Chief Justice Earl Warren, a negotiated peace with the Confederacy would have been “unthinkable.” At a certain level of abstraction, quibbling over the precise terms of either victory seems downright ungrateful.

Juneteenth acknowledges a fundamental truth: no matter how long it is delayed, and no matter how imperfectly it is implemented, emancipation beats the pants off enslavement. What separates Juneteenth from other commemorations of wartime victory is its sense of irony and its humility. Because of these traits, and not in spite of them, Juneteenth's celebrants understand the crucial point. However awkwardly accomplished, the outlawing of slavery is a monumental achievement worth commemorating as long as the Republic endures.

 

In his article Apology Lite: Truths, Doubts, and Reconciliations in the Senate's Guarded Apology for Slavery, 42 Connecticut Law Review CONNtemplations 1 (2009), available on ssrn, LawProf Kaimipono David Wegner argues that the United States Senate should "formally commemorate Juneteenth" to help show the sincerity of its apology for slavery and further restorative justice goals including reparations.

Among those campaigning for Juneteenth as a national holiday is US Congressperson from Texas Sheila Jackson (pictured above in 2003 via).

RR

 

Attorney's Fees for Frivolous Claims

The Supreme Court ruled today in Fox v. Vice that defendants in civil rights actions are entitled to attorney's fees under 42 U.S.C. Sec. 1988 only for costs that the defendant would not have incurred but for any frivolous claims--those costs incurred because of, but only because of, a frivolous claim.

The case involved a suit in state court by a former candidate for chief of police against the then-incumbent and the town for state-law claims, including defamation, and federal civil rights claims under 42 U.S.C. Sec. 1983, including interference with the right to seek public office.  The defendants removed the case to federal court and, after discovery, sought and won summary judgment on the federal claims.  (The federal court sent the state claims back to state court, where they remain.)  Both parties agreed that the federal claims were "no[t] valid." 

The defendants moved for attorney's fees under Section 1988 (authorizing a court to award reasonable attorney's fees to the prevailing party, plaintiff or defendant, in certain civil rights cases).  The district court granted attorney's fees on the basis that the federal claims were frivolous.  The court awarded fees covering all of the defendants' attorneys' work, not just the work associated only with the federal claims, because the "various claims arose out of the same transaction and were so interrelated that their prosecution or defense entailed proof or denial of essentially the same facts."  A divided Court of Appeals affirmed, deepening a split among the circuits on the question of how to calculate attorney's fees for a defendant when some claims are frivolous and some claims are non-frivolous.

A unanimous Supreme Court gave this answer:

Section 1988 allows a defendant to recover reasonable attorney's fees incurred because of, but only because of, a frivolous claim.  Or what is the same thing stated as a but-for test: Section 1988 permits the defendant to receive only the portion of his fees that he would not have paid but for the frivolous claim.

Op. at 8.  In this case, the defendants were not entitled to fees for attorney work on non-frivolous claims that overlapped with attorney work on frivolous claims:

In a suit of this kind, involving both frivolous and non-frivolous claims, a defendant may recover the reasonable attorney's fees he expended solely because of the frivolous allegations.  And that is all.  Consistent with the policy underlying Section 1988, the defendant may not receive compensation for any fees that he would have paid in the absence of the frivolous claims.

Op. at 13.

The result means that civil rights plaintiffs who assert both frivolous and non-frivolous claims may have to pay attorney's fees only when the defendant can segregate out attorney work on the non-frivolous claims--where there's no overlap between the work on the two types of claims.  This is a relatively plaintiff-friendly result, considering that some lower courts, including the lower courts here, would charge plaintiffs for attorney's fees for all defendant work on frivolous claims (including that work that the defendants' attorneys would have done to advance interrelated non-frivolous claims).

Justice Kagan wrote the plain-spoken, easy-to-read opinion, rife with hypothetical illustrations to show how the Court's rule will work.  She emphasized the discretion that trial courts have in determining attorney's fee awards, and underscored the deference that appellate courts owe to those determinations, concluding with this hat-tip to the judge-as-umpire analogy:  "A trial court has wide discretion when, but only when, it calls the game by the right rules."

SDS

Court to Hear Right to Counsel Case

The Supreme Court today granted cert. in Turner v. Price, a case from the South Carolina Supreme Court rejecting petitioner's claim that he had a constitutional right to counsel in a civil contempt proceeding.

Petitioner Michael Turner appeared in South Carolina family court in 2008 on a rule to show cause why he should not be held in contempt for failure to pay child support.  (He owed nearly $6,000 and hadn't made a payment in 18 months.)  He was not represented by counsel.  The court found him in willful contempt of the child support order and sentenced him to twelve months in a detention center, "which sentence he could purge himself of and avoid by full payment of his child support arrearage."

The South Carolina Supreme Court rejected Turner's argument for court-appointed counsel under the Sixth and Fourteenth Amendments.  The decision turned on Turner's ability to avoid the sentence altogether:

Here, the family court judge found Appellant in willful contempt of the support order and sentenced him to twelve months in a detention facility, stating, "He may purge himself of the contempt and avoid the sentence by having a zero balance on or before his release."  This conditional sentence is a classic civil contempt sanction.  Therefore, Appellant is not constitutionally entitled to appointment of counsel.

. . .

Because Appellant may avoid the sentence altogether by complying with the court's previous support order, he holds the keys to his cell door and is not subject to a permanent or unconditional loss of liberty.

The court acknowledged that it was adopting the minority position on the issue.

Remarkably, especially considering the federal constitutional claims, the court did not cite a single U.S. Supreme Court case.  (It cited precious few cases at all, and no federal cases outside the footnotes.) 

The U.S. Supreme Court directed the parties to brief a second issue in the case: whether the Court has jurisdiction to review the decision at all.  (Turner served out his contempt sentence, and it's not clear that the state courts ruled on all his claims now before the Supreme Court.)

SDS

Facial Challenge to VRA to be Decided on Summary Judgment

Judge Bates of the Federal District Court for the District of Columbia today ruled that a facial challenge to the Voting Rights Act may be decided on the pleadings and ordered the government to respond to the plaintiff's motion for summary judgment.

The case, Shelby County v. Holder involves a facial challenge to Sections 4(b) and 5 (preclearance) of the VRA.  Soon after filing the complaint, Shelby County moved for summary judgment.  The government asked the court to deny the motion as premature or to order discovery.  Judge Bates declined and ordered the government instead to respond to Shelby County's motion.

In so ruling, Judges Bates concluded that the only relevant evidence in the case is the 2006 legislative record--the actual evidence of contemporary discrimination in voting that Congress considered when it reauthorized Section 5 preclearance for another 25 years.  Judge Bates:

[A]t oral argument, the Court asked if any counsel--who collectively have a very broad experience--could identify a case in which the Supreme Court decided the facial constitutionality of an act of Congress based on facts unique to the specific plaintiff bringing the lawsuit.  None could.  Yet that is the discovery the government and defendant-intervenors seek here. . . .  [T]he constitutionality of the VRA must rise or fall on the record that Congress created when it extended that act in 2006.

The government had argued that it needed discovery to determine whether to challenge the plaintiff's standing, whether the plaintiff might bail out of the Section 5 preclearance requirement, and whether the VRA was unconstitutional.  Judge Bates ruled that none of these reasons required discovery.

Shelby County is one of the facial challenges to VRA preclearance in the wake of the Supreme Court's 2009 ruling in Northwest Austin Municipal Utility District v. Holder.  In that case, the Court declined to reach the constitutional question (although it was quite skeptical of that current conditions could justify preclearance); instead it ruled that the District qualified for bailout under the VRA.

Judge Bates ordered the government to file its response to Shelby County's motion for summary judgment by November 15.

SDS

Victor Goode on Birthright Citizenship and the Fourteenth Amendment

Explaining the birthright citizenship debate in constitutional and political terms clearly and without rancor is no small feat.  Victor Goode's commentary for Colorlines argues

the tension between America’s democratic ideals and its long history of racism on  the question of citizenship lurks behind any discussion of the 14th Amendment. Until its ratification, immigration and naturalization were limited to white persons. Even after its passage, Native American children, though subject to U.S. jurisdiction, were typically declared members of a separate racial and national group and therefore not eligible for citizenship. Asians were for years denied the opportunity to seek citizenship and for a period were barred from even entering the country. Although African Americans gained citizenship through the 14th Amendment, the same Supreme Court that decided Wong Kim Ark limited their rights with the “separate but equal” doctrine of Plessy v Ferguson.

Goode discusses the roots of the Fourteenth Amendment citizenship clause in the common law principle of jus soli as well as the subsequent birthright citizenship discussions in the Civil Rights Act.

This is an article worth reading, even if you think you understand the debate, and even if you think you don't.

RR

Civil Rights Chief: State Courts Must Provide Access

Assistant Attorney General Tom Perez this week reminded state court chief justices and administrators of their obligation to provide "meaningful access" for individuals with limited English language proficiency.

The obligation comes from the conditional spending measures in Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000d et seq., and the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. Sec. 3789d(c), both of which prohibit national origin discrimination by federal fund recipients, and E.O. 13166 (2000), which requires federal agencies to "work to ensure that recipients of Federal financial assistance . . . provide meaningful access to their [applicants with limited English proficiency]."  The Supreme Court ruled in Lau v. Nichols in 1974 that failure to take measures to provide access to individuals with limited English proficiency is a form of national origin discrimination banned by Title VI.

Perez also delineated some of the ways in which state courts are failing to meet their obligations: limiting the types of proceedings for which interpreter services are provided; charging interpreter costs to a party; and restricting language services to the courtroom (and not court offices and other court personnel).

Congress and the president effectively banned all discrimination against individuals with limited English proficiency in state courts through conditional spending (because all state courts receive some federal funding and thus accept the non-discriminatory condition).  Because state courts "contractually agreed" (quoting Lau v. Nichols) to the non-discrimination provisions as a condition of receiving federal funds, they are bound by them, notwithstanding state law to the contrary.  (As Perez writes, "The federal requirement to provide language assistance . . . applies notwithstanding conflicting state or local laws or court rules.")  As a conditional spending requirement, there is no Tenth Amendment problem.  See South Dakota v. Dole (stating the requirements for federal conditional spending programs).

But Congress could also almost certainly achieve this result directly if it wished--by outlawing discrimination in state courts under its Fourteenth Amendment, Section 5, authority.  The Supreme Court upheld just such a law in Tennessee v. Lane in 2004--Title II of the Americans with Disabilities Act, which outlawed discrimination against individuals with disabilities in access to the state courts.

SDS

District Judge Finds Proposition 8 Unconstitutional: Opinion and Brief Analysis

The anticipated Proposition 8 opinion has just been issued: Judge Vaughn Walker has concluded that Proposition 8 as enacted is unconstitutional under the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment in a 138 page opinion here.

Approximately one hundred pages of the opinion discuss the witnesses and make findings of fact.  The Judge's opinion is exceedingly detailed and makes specific credibility determinations about witnesses and testimony.   Our recap of the trial, linking to daily posts of the trial and witnesses is here.

Judge Walker finds that there is a "fundamental right to marry" which Proposition 8 burdens in violation of the Due Process Clause.   He also finds that the sexual orientation classification does not satisfy the rational basis standard and thus violates the Equal Protection Clause.

Again, with great detail and reference to specific testimony, Walker examines each of the state's interests (or more accurately, the interests advanced on behalf of the Proposition 8 Proponents at trial), and finds that they do not satisfy the standard.

Judge Walker's conclusion is short:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.  Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis,the court concludes that Proposition 8 is unconstitutional.

Walker thus enjoined the enforcement of Proposition 8.

Perhaps anticipating this conclusion, proponents of Proposition 8 reportedly filed a motion to stay the Judge's ruling the evening before it was issued.  

UPDATE: JUDGE WALKER HAS ISSUED A STAY:

Defendant-intervenors (“proponents”) have moved to stay the court’s judgment pending appeal. Doc #705. They noticed the motion for October 21, 2010 and moved to shorten time. Doc #706.

The motion to shorten time is GRANTED.

Plaintiffs, plaintiff-intervenor and defendants are DIRECTED to submit their responses to the motion to stay on or before August 6, 2010, at which time the motion will stand submitted without a hearing unless otherwise ordered.

The clerk shall STAY entry of judgment herein until the motion to stay pending appeal, Doc #705, has been decided.

via

[see also comment]

[update stay order here]

The Proponents of Proposition 8 will undoubtedly appeal to the Ninth Circuit. 

RR

Birthright Citizenship, Fourteenth Amendment, and Constitutional Interpretations

The Fourteenth Amendment begins, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

Some Senators want Congress to “reconsider” this provision which confers what has come to be called "birthright citizenship."   In the words of Arizona Senator Jon Kyl:

“There is a constitutional provision in the 14th Amendment that has been interpreted to provide that, if you are born in the United States, you are a citizen no matter what. … And so the question is, if both parents are here illegally, should there be a reward for their illegal behavior?”

Kyl has suggested to fellow Senators that  “we should hold some hearings and hear first from the constitutional experts to at least tell us what the state of the law on that proposition is.”

A good place to start might not be with a "constitutional expert," but with Brook Thomas’ new article in Law and Literature, entitled The Legal And Literary Complexities of U.S. Citizenship Around 1900.  (It is available on westlaw and lexis, and in print, Law and Literature Jul 2010, Vol. 22, No. 2: 307–324).

Thomas (pictured above), an English professor, has long been considering citizenship in historical and literary contexts and is the author of several books on related subjects, but this essay is refreshingly brief.  Thomas writes:

One year before he argued Homer Plessy's case before the Supreme Court, Albion W. Tourgée wrote, "Citizenship in the abstract is the most comprehensive, complex, difficult and important of human relations, and American citizenship is especially complex in its character and relations." This essay explores those complexities by cross-examining three Supreme Court cases decided within five years of one another--Plessy v. Ferguson (1836), U.S. v. Wong Kim Ark (1898), and Downes v. Bidwell (1901).   

Thomas also turns to several novels from the period to illuminate the contexts of the cases.

Thomas notes that the politics of the debates of 1900 are very different from the politics of the debates of 2010, including those surrounding birthright citizenship, an issue “supposedly resolved by Wong Kim Ark.”  Nevertheless, he argues

we cannot properly understand the complexities of our present debates without understanding the complexities of those in the past. I also suspect that our understanding would be enhanced if we turned to some recent works of literature.

Perhaps Professor Brook Thomas might be attempting to elucidate some of the complexities of the present debate by answering questions from Senator Kyl in a future hearing

RR

Christian Legal Society v. Martinez Opinion Analysis: "All Comers Policy" for Student Groups Withstands First Amendment Challenge

In a 5-4 opinion today, the Court upheld the Hastings Law School's policy of non-recognition of the Christian legal Society (CLS) student group against a First Amendment challenge. 

This high profile case revealed itself to be in a bit of "procedural disarray" during oral arguments as we previously noted.

Writing for the Court, Justice Ginsburg framed the issue as: "May a public law school condition its official recognition of a student group—and the attendant use of school funds and facilities—on the organization’s agree­ment to open eligibility for membership and leadership to all students?"  This is the so-called "all-comers policy."  The Court rejected the CLS contention that the policy was not actually an "all-comers" policy but one that targeted certain groups based on religion,  noting that "CLS’s assertion runs headlong into the stipulation of facts it jointly submitted with Hastings at the summary­ judgment stage." (Opinion at 8).  Ginsburg briefly discusses the importance of stipulated facts, and harshly criticized the dissent:

Time and again, the dissent races away from the facts to which CLS stipulated.  See, e.g., post, at 2, 3, 5, 6, 7, 8, 11,24. [footnote omitted]  But factual stipulations are “formal concessions . . . that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. [citation omitted].

Opinion at 11.  As for CLS's argument that the all-comers policy was a pretext, the Court was again highly critical of the dissent's interpretation:

The dissent’s pretext discussion presents a one-sided summary of the record evidence, post, at 31–34, an account depending in large part on impugning the veracity of a distinguished legal scholar and a well respected school administrator, post, at 3, 5, 6, 7, 8, 9, 11, 24, 32, 34.

(Opinion at 32, n.29).  However, Ginsburg did note that the Ninth Circuit might address the pretext argument on remand "if, and to the extent it is, preserved."

The Court concluded "that our limited-public-forum precedents supply the appropriate framework for assessing both CLS’s speech and associa­tion rights."   In support, the Court noted that at issue is CLS's ability to access a state subsidy and that thus CLS "faces only indirect pressure to mod­ify its membership policies; CLS may exclude any person for any reason if it forgoes the benefits of official recogni­tion."  (Opinion at 15).  The Court distinguished the precedents on which CLS was relying (such as Boy Scouts of America v. Dale) as forcing organizations to accept members. 

Instead, Ginsburg applied limited public forum doctrine and stressed the "educational context" in which the situation arose.  Additionally, Ginsburg noted that CLS had other avenues of expression: "Hastings offered CLS access to school facili­ties to conduct meetings and the use of chalkboards and generally available bulletin boards to advertise events," and although "CLS could not take advantage of" specific recognized student organization methods of communication, "the advent of electronic media and social-networking sites reduces the importance of those channels." (Opinion at 24). 

Alito's dissenting opinion agrees that limited public forum doctrine applies, although doubts that the "all-comers" policy is view-point and content neutral.  The dissent concludes with strong rhetoric:

I do not think it is an exaggeration to say that today’s decision is a serious setback for freedom of expression in this country.  Our First Amendment reflects a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide- open.” [citation omitted] Even if the United States is the only Nation that shares this commitment to the same extent, I would not change our law to conform to the international norm. I fear that the Court’s decision marks a turn in that direction. Even those who find CLS’s views objectionable should be concerned about the way the group has been treated—by Hastings, the Court of Appeals, and now this Court. I can only hope that this decision will turn out to be an aberration.

RR

McDonald v. Chicago Opinion Analysis: Second Amendment Incorporated Against States

By a vote of 5-4, the Court in McDonald v. Chicago today incorporated the Second Amendment right to  individual gun ownership it recently recognized in District of Columbia v. Heller against the states through the Fourteenth Amendment.  Our analysis of the March oral arguments is here.

The 214 pages of opinions (including a 4 page appendix) will provide much fodder for scholars and litigators.  There are not only dissenting opinions by Justice Stevens and by Breyer (joined by Ginsburg and Sotomayor), but the majority opinion provides the fractured decision-making that can frustrate law students and other readers of Supreme Court opinions.  Here are the alignments:

JUSTICE ALITO announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which THE CHIEF JUSTICE, JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS join, and an opinion with respect to Parts II–C, IV, and V, in which THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY join.

SCALIA, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion.
BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., join.

The plurality - - - Alito, Roberts, Scalia, and Kennedy - - - conclude the due process clause of the Fourteenth Amendment incorporates the Second Amendment.  Scalia writes separately, noting "I join the Court’s opinion. Despite my misgivings about  Substantive Due Process as an original matter, I have acquiesced in the Court’s incorporation of certain guaran­tees in the Bill of Rights 'because it is both long estab­lished and narrowly limited.' [citation omitted].   This case does not require me to reconsider that view, since straightfor­ward application of settled doctrine suffices to decide it."

Only Justice Thomas, concurring (and vital to the Court's majority under the Fourteenth Amendment incorporation conclusion), rejected substantive due process:

Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” [citation omitted] and “‘deeply rooted in this Nation’s history and tradition,’” [citation omitted].  I agree with that description of the right.  But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.”  Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities
Clause.

Our discussions of the Privileges or Immunities Clause arguments are here, here, here, here, and here.  Although initially an attractive option, most scholars and court-watchers came to believe that the Court would ultimately not reverse The Slaughterhouse Cases and "resurrect" the Privileges or Immunities Clause.

Dissenting, Breyer considers the criticisms by scholars of Heller and asks:

At the least, where Heller’s historical foundations are so uncertain, why extend its applicability? My aim in referring to this history is to illustrate the reefs and shoals that lie in wait for those nonexpert judges who place virtually determinative weight upon historical considerations. In my own view, the Court should not look to history alone but to other factors as well—above all, in cases where the history is so unclear that the experts themselves strongly disagree.  It should, for example, consider the basic values that underlie a constitutional provision and their contemporary significance.  And it should examine as well the relevant consequences and practical justifications that might, or might not, warrant removing an important question from the democratic decisionmaking process.

Justice Stevens' 60 page dissenting opinion argues for judicial restraint, and while he does not explicitly chastise the majority for judicial activism, that is certainly the implication.

We will have additional discussion of the decision in the near future.

RR

Rand Paul and Federal Civil Rights

Rand Paul, the Republican nominee for U.S. Senate from Kentucky, seems to have reconsidered his distinction between public discrimination and private discrimination in taking on the Civil Rights Act of 1964.  (In this clip from the Rachel Maddow show, Paul argued against federal the federal anti-discrimination law insofar as it applies to places of private accommodation.)

 

But his constitutional claims may nevertheless be worth considering.  He makes three:

1.  The Civil Rights Act of 1964 Violates Property Rights.  Paul's claim is that a federal prohibition on private discrimination amounts to a violation of private property rights--a Due Process or regulatory takings claim.  But the Supreme Court in 1964 rejected precisely this kind of challenge to the Civil Rights Act of 1964 in Heart of Atlanta Motel v. U.S.  In just four or five paragraphs, the Court wrote that it had repeatedly rejected property rights claims against civil rights legislation, going back to The Civil Rights Cases, that anti-discriminatory legislation was common among the states, and that the federal law posed no particular threat to property or liberty.  (The Court mentioned a rational basis test, but barely applied it, instead deferring to Congress's judgments in passing the Civil Rights Act of 1964.)  The Court also flatly rejected a challenge based on the Thirteenth Amendment, that the private anti-discrimination provisions of the Civil Rights Act of 1964 amounted to involuntary servitude.

2.  The Civil Rights Act of 1964 Violates the First Amendment.  Paul's claim here is that Congress can't prohibit individuals from advancing discriminatory or racist views without violating the First Amendment's Speech Clause.  But his First Amendment claim is perhaps better thought of as an argument against forced inclusion of an unwanted person in a group that engages in "expressive association," as in Boy Scouts of America v. Dale.  In that case, the Court ruled that New Jersey's Law Against Discrimination, which prohibited discrimination against gays and lesbians, violated the First Amendment as applied against the Boy Scouts.  But there's no indication that most private corporations engage in expressive association under the Boy Scouts test; it's simply inapplicable to an organization that doesn't, as an organization, engage in "expressive activity" with a purpose of excluding or discriminating.  (Your local grocery, favorite restaurant, and book store probably don't fit this description.)

3.  Congressional Authority Could Be Used in Other Ways.  Paul argues that a Commerce Clause that would support federal anti-discrimination legislation against private actors could also support federal gun-rights legislation against private actors--a result, he claims, that some supporters of the Civil Rights Act of 1964 may not favor.  For example, there are now several bills before Congress that would provide reciprocity for legal concealed weapons carriers and thus allow them to carry their weapons in states without a concealed weapon law.  See, e.g., H.R. 197.  But this is no constitutional argument.  It simply shows that an expansive federal Commerce Clause can support a wide range of federal action.  As the Court in Katzenbach v. McClung wrote:

The power of Congress [under the Commerce Clause] is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitations it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere.  The Civil Rights Act of 1964, as here applied, we find to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude.  We find in it no violation of any express limitations of the Constitution and we therefore declare it valid.

SDS

Constitutional Challenges to Arizona Immigration Law SB 1070

Two more complaints have been filed in federal courts challenging the constitutionality of Arizona Immigration Law SB 1070.   In addition to the complaint filed by the Tucson police officer Martin Escobar we discussed previously, Phoenix police officer David Salgado has filed a complaint with similar allegations and arguments.

The more lengthy complaint filed by National Coalition of Latino Clergy and Christian Leaders (CONLAMIC) is filed as a class action of "all persons who currently reside in Arizona and find themselves to be negatively affected by the proposed unconstitutional law." (para 51).   The claims of unconstitutionality include substantive due process under the Fourteenth Amendment, violations of the Supremacy Clause; First Amendment; and violations of the Fourth Amendment and procedural due process. 

Other constitutional arguments are being put forward in a nonjudicial forum, spearheaded by Professor Ediberto Roman:

 Immigration and Constitutional Law Experts Against SB 1070

The undersigned law professors, immigration experts, and interested organizations write this petition requesting the Governor and the Legislature of the State of Arizona to repeal SB 1070, or in the alternative, calling upon Congress to conduct hearings on Arizona’s ultra vires act of authorizing local police to enforce federal immigration laws without an express delegation from Congress. The petitioners also urge President Obama to direct the Justice Department Civil Rights Division to mobilize quickly to educate the public how to report civil rights violations associated with SB 1070. With the passage of SB 1070, the state of Arizona has ignored legal precedent striking down similar state encroachments on federal supremacy relating to immigration. Moreover, courts have held similar encroachments to be violative of Due Process and Equal Protection.

  [remainder of statement and more information here]

{Update: Arizona immigration statute partially enjoined; here}

RR

DOJ to Defend VRA Section 5 "Vigorously"

AAG Tom Perez told the Senate Judiciary Committee this morning that the Civil Rights Division is gearing up for the increased Voting Rights Act workload after the Census and is prepared to defend Section 5, the preclearance provision, "vigorously" against a suit filed earlier this month.

That case grows out of DOJ's denial of preclearance to the City of Kinston, North Carolina, to its requested change from partisan to non-partisan elections for mayor and city council.  Kinston is comprised of about 60% black residents, but black persons constituted a minority of voters in three recent city elections and a bare majority in a fourth recent election.  Sixty-four percent of Kinston voters approved the change from partisan to non-partisan voting; the referendum passed in 5 of the 7 precincts where blacks are a majority.

The DOJ denied preclearance, and the City declined to appeal.  The case was filed by the Center for Individual Rights on behalf of several voters and local politicians.

DOJ denied preclearance because of the likely impact on black persons' ability to elect candidates of their choice:

Black voters have had limited success in electing candidates of choice during recent municipal elections.  The success that they have achieved has resulted from cohesive support for candidates during the Democratic primary (where black voters represent a larger percentage of the electorate), combined with crossover voting by whites in the general election.  It is the partisan makeup of the general electorate that results in enough white cross-over to allow the black community to elect a candidate of choice.

This small, but critical, amount of white crossover votes results from the party affiliation of black-preferred candidates, most if not all of whom have been black.  Numerous elected municipal and county officials confirm the results of our statistical analyses that a majority of white Democrats support white Republicans over black Democrats in Kinston city elections.  At the same time, they also acknowledged that a small group of white Democrats maintain strong party allegiance and will continue to vote along party lines, regardless of the race of the candidate.  Many of these white crossover voters are simply using straight-ticket voting.  As a result, while the racial identity of the candidate greatly diminishes the supportive effect of the partisan cue, it does not totally eliminate it.

It follows, therefore, that the elimination of party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice. . . .

The change to nonpartisan elections would also likely eliminate the party's campaign support and other assistance that is provided to black candidates because it eliminates the party's role in the election. . . .

Plaintiffs in the case argue that Section 5 is unconstitutional and that it violates equal protection principles.  From the complaint:

21. In July 2006, Congress reauthorized Section 5, extending it for twenty-five years (until 2031).  It relied on generalized findings which do not specifically identify evidence of continuing intentional discrimination in covered jurisdictions.  Nor did it have evidence that adequately distinguished conditions in covered jurisdictions from those in non-covered jurisdictions in a way that would justify the continuing difference in treatment for another 25 years.

22. The conditions of 1964 that caused Lenoir County [the home of Kinston] to be covered by Section 5 have long been remedied. . . .

The case puts the constitutionality of Section 5 squarely before the court.  It avoids Section 5 bailout, which allowed the Supreme Court last term in Northwest Austin to dodge the constitutional question and rule on statutory grounds that the municipal utility district qualified for bailout.  The complaint also draws on dicta from Northwest Austin critical of Section 5, anticipating the arguments should the case reach the high court.

SDS