Civil Rights Law & Policy Blog

"One Person, One Vote, Eight Justices"

The Atlantic's Matt Ford has this report on yesterday's SCOTUS decision in Evenwel v. Abbott. He begins:

The U.S. Supreme Court unanimously turned back a legal effort to reinterpret the “one person, one vote” constitutional rule Monday, ruling that states may rely on total population when drawing their legislative districts.

 

The case, Evenwel v. Abbott, was brought by two Texas voters, Sue Evenwel and Edward Pfenninger, who challenged the apportionment of Texas Senate districts. With the exception of the U.S. Senate, every American legislative body is apportioned by total population under the “one person, one vote” rule first outlined by the Court in the 1960s.

 

Evenwel and Pfenninger argued that counting non-voters—children, the mentally disabled, disenfranchised prisoners, and non-citizens—broke that rule and diluted their political power in violation of the Fourteenth Amendment’s Equal Protection Cause. Many observers, including my colleague Garrett Epps, noted that Evenwel’s interpretation would redraw the American political map in favor of a whiter, older, and more conservative electorate.

 

“In agreement with Texas and the United States, we reject appellants’ attempt to locate a voter-equality mandate in the Equal Protection Clause,” Justice Ruth Bader Ginsburg wrote for the majority. “As history, precedent, and practice demonstrate, it is plainly permissible for jurisdictions to measure equalization by the total population of state and local legislative districts.”

"Judge strikes down Mississippi ban on adoption by same-sex couples"

Because equal protection clause.

Appeal coming soon, I presume. 

9th Cir. holds federal immigration law unconstitutionally discriminates against "habitual drunkards" on account of "medical condition"

Late last week, the U.S. 9th Cir. Court of Appeals decided that the federal immigration law classifying "habitual drunkards" as immoral, and therefore ineligible for relief from immediate deportation, is unconstitutional under the 14th Amendment. The LATimes's Maura Dolan explains: 

Federal immigration law allows the attorney general to cancel the deportation of a non-citizen or permit the person to depart voluntarily if he or she has good moral character.

 

Among those the law deems immoral are immigrants who participated in genocide or torture, have been convicted of a serious felony or gambling offenses and who are habitual drunkards.

 

Salomon Ledezma-Cosino, a Mexican citizen who entered the U.S. in 1997, was deemed an “habitual drunkard.”

 

Medical records show he drank an average of a liter of tequila a day for 10 years. He also has been diagnosed with acute alcoholic hepatitis, decompensated cirrhosis of the liver and alcoholism, the court said, and he has at least one conviction for driving under the influence.

 

Ledezma-Cosino also has eight children — five of them U.S. citizens — and has supported his family by working in the construction industry, the court said.

 

The majority held that the federal law linking drunkenness with poor moral character violates the equal-protection guarantees of the U.S. Constitution.

The full opinion can be found here.

U.S. Commission on Civil Rights files statement supporting UT-Austin's affirmative action program

Soon, SCOTUS will hear oral arguments in Fisher v . University of Texas at Austin II over whether the University of Texas's admission plan is constitutional. Texas residents who finished in the top 10% of their high school class are admitted automatically. This accounts for 80% of admissions. For the remaining 20% of applicants, the university uses a long list of factors in making a determination, one of which is race. Proponents claim that UT's policy is necessary to achieve the legitimate aim of promoting institutional diversity. Opponents, however, allege that it violates the Equal Protection Clause of the Fourteenth Amendment arguing that the goal of diversity can be achieved without taking race into account, and by using race, UT is unfairly advantaging minority students. 

Today, the U.S. Commission on Civil Rights announced its support for UT's policy. The commission states in part: 

The U.S. Commission on Civil Rights believes that the University’s admissions policy is indeed narrowly tailored to serve the compelling interest of securing the educational benefits of a diverse student body. Accordingly, the 5th Circuit’s determination that the University’s admissions process does not violate the Fourteenth Amendment should be affirmed...

 

Throughout its history, the Commission has expressed its strong belief in the benefits of diversity in educational settings. In our 1975 report Twenty Years After Brown: Equality of Educational Opportunity, the Commission found it appropriate “to provide the equal educational opportunity that segregation inherently denies and to permit all pupils to develop the understanding and appreciation of each other that inevitably will result in a more equitable society for all Americans.”...

 

A ruling further restricting the admissions process or eliminating the consideration of race altogether will diminish the vibrant university learning experience. It will have grave consequences for many schools across the nation and students of all backgrounds. The constitutional validity and educational benefits of the University’s admissions process are clear. The Commission supports the University of Texas in this case and encourages the Supreme Court to uphold the University’s admissions process.

The commission's entire statement can be read here.

SCOTUS will hear oral arguments on December 9, 2015.

"Of Visible Race-Consciousness and Institutional Role: Equal Protection and Disparate Impact after Ricci and Inclusive Communities"

The title of this post comes from this recent paper by Professor Richard Primus, the abstract of which states:

When Ricci v. DeStefano was decided in 2009, I identified three possible reading of that case, one of which would be fatal to statutory disparate impact standards and two of which would not. Inclusive Communities strongly suggests that the fatal reading will not prevail. The two readings that remain viable are the "institutional reading," on which Ricci restricts the freedom of employers to remedy their own disparate-impact problems without similarly restricting the ability of courts to order disparate-impact remedies, and the "visibility reading," on which the key question about any given disparate-impact remedy is the degree to which its race-conscious aspect is publicly visible. Inclusive Communities seems to reinforce the visibility reading and to suggest that visibility will be an important element of the Court's forthcoming decision in Fisher v. Texas.

"Disparate Impact and the Role of Classification and Motivation in Equal Protection Law after Inclusive Communities"

The title of this post comes from this intriguing paper by Professor Samuel Bagenstos, the abstract of which states:

At least since the Supreme Court’s 2009 decision in Ricci v. DeStefano, disparate impact liability has faced a direct constitutional threat. This paper argues that the Court’s decision this past Term in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., which held that disparate impact liability is available under the Fair Housing Act, has resolved that threat, at least for the time being.

 

In particular, this paper argues, Inclusive Communities is best read to adopt the understanding of equal protection that Justice Kennedy previously articulated in his pivotal concurrence in the 2007 Parents Involved case — which argued that state actions that do not classify individuals based on their race are not constitutionally suspect simply because they are motivated by the purpose of integrating the races. Applying that understanding, Inclusive Communities makes clear that disparate impact need not surrender to equal protection, but that the Constitution demands some limitations on disparate impact liability. Although the limitations should make a difference at the margins, they are not nearly as severe as some may have feared. 

 

The broader goal of this piece is to offer an account of how the principle that Justice Kennedy articulated in Parents Involved, and that the Court seems to have adopted in Inclusive Communities, fits into prior equal protection doctrine. The piece argues that this interpretation of equal protection represents the most attractive approach consistent with the decided cases. But although the Inclusive Communities approach to equal protection represented the best path available to the Court in light of prior cases, it has substantial drawbacks. In addition to ignoring key normative considerations, the Court’s formalistic focus on the existence or nonexistence of a classification as a trigger for strict scrutiny is likely to prove unstable.

"Original Meaning and Marriage Equality"

The title of this post comes from this recent paper by Professor William Eskridge, the abstract of which states:

In the 2014 Term, the Supreme Court is hearing challenges to four state exclusions of same-sex couples from their marriage law and other family law protections. Unlike the circuit judges who have evaluated these claims, the Justices find relevant the original meaning of the Fourteenth Amendment. Many opponents of Marriage Equality for lesbians, gay men, bisexuals, and transgender persons assume that original meaning is hostile to such claims. In this article, Professor Eskridge maintains that the original meaning supports the marriage equality claims. While the drafters of the Equal Protection Clause had no “expectations” that states in 1868 would have to issue marriage licenses to same-sex couples, the term they adopted (“equal protection”) had an established meaning: the state cannot create a caste regime arbitrarily marking a whole class of worthy persons as outside the normal protections of the law. This original meaning has bite today that it would not have had in 1868. In the twentieth century, states created a terrifying anti-homosexual caste regime, whose deep norm was that gay persons are anti-family. In the twenty-first century, much of this caste regime has been dismantled, but new and sweeping family law exclusions such as those before the Court are recent expressions of that regime and should be skeptically examined by the Justices.

"No Such Thing as Race: Exploring the Past and Future of Affirmative Action after Schuette"

The title of this post comes from this paper by Professor Mary Ziegler, the abstract of which states:

On the surface, Schuette v. Coalition for Affirmative Action leaves the constitutional law of affirmative action undisturbed. Michigan had amended its state constitution to prevent the use of racial preferences by any university system or school district. Rejecting a fourteenth-amendment challenge, the Court upheld Michigan’s law. The Schuette plurality went to considerable lengths to explain that Schuette in no way touched on the constitutionality or merits of race-based admissions. Just the same, understood in historical context, the Schuette majority lays bare profound new dangers confronting proponents of affirmative action. In addition to praising colorblindness, the Court cast doubt on the very definition of race. 

This Article historicizes Schuette, revealing it to be a turning point in the law and politics of affirmative action. In the past, activists consistently used race to describe the color of one’s skin, but before Schuette, the meaning of race itself had not played a central part in challenges to the constitutional legitimacy of affirmative action. As Schuette shows, anti-affirmative action amici and activists have developed a new argument: a claim that if race is a social construct, race-conscious remedies are arbitrary, unfair, and likely to reinforce existing stereotypes.

As the new anti-affirmative action activism makes plain, the question is how courts can address racial discrimination when racial identities themselves are fluid and complex. The Article looks to employment discrimination law — and to “regarded as” liability — as a framework for judges seeking to address the reality of race discrimination without reifying racial categories. Under the Americans with Disabilities Act (ADA) and the Americans with Disability Act Amendments Act of 2009 (ADAAA), a worker may in certain cases seek relief when she is regarded as disabled — regardless of whether she actually belongs to a protected class. The Article argues that regarded-as reasoning has considerable potential in the context of postsecondary admissions. In complying with existing fourteenth-amendment jurisprudence, admissions officers already rely on proxies for applicants’ race. Doing so checks self-serving behavior and better captures the fluidity of race in modern America.

SCOTUS "decision…to allow Texas' restrictive voter identification law to go into effect is deeply disturbing and simply wrong…"

...according to Professor Erwin Chemerinksy, dean of UC-Irvine School of Law. In this op-ed for The Orange Co. Register, Chemerinsky writes:

The Texas law, as Justice Ruth Bader Ginsburg noted Saturday, is “the strictest regime in the country.” Unlike other states, such as Wisconsin, Texas will not accept student identification from in-state universities or identification cards issued by Native American tribes or photo ID cards issued by the U.S. Department of Veterans’ Affairs. Obtaining the permissible forms of identification requires obtaining a state-issued birth certificate for $22. The Supreme Court long ago ruled that a state cannot charge even a $1 fee for voting.

 

[U.S. District] Judge [Nelva Gonzalez] Ramos concluded that the effect of the Texas law will be that about 600,000 voters, primarily African American and Latino, will be kept from voting. Judge Ramos agreed with the U.S. Justice Department and the challengers that the Texas law violated Section 2 of the Voting Rights Act of 1965 because it was enacted with a racially discriminatory purpose and would yield a prohibited discriminatory result.

 

[...]

 

There are so many things that are troubling about the court’s action. It is the first time in decades that the Supreme Court has allowed an election law to go into effect after a federal trial court found it to be unconstitutional race discrimination. Appellate courts, including the Supreme Court, are supposed to defer to the fact-finding by the trial courts. Here, the district court held a trial, engaged in extensive fact-finding and wrote a very detailed opinion.

 

Also, this continues a trend in recent weeks of the Supreme Court deciding which election systems can go into effect in unsigned orders without written opinions. The court, over four dissents, allowed Ohio to change its election system to limit early voting. In other unsigned orders, the court permitted a North Carolina law and prevented a Wisconsin law from going into effect.

 

A crucial aspect of the judicial process is that judges give reasons for their rulings. This explains the basis of the decisions to the litigants, provides guidance for lower courts and makes the rulings seem more than arbitrary exercises of power. Even though the court needed to act quickly, there is no reason why it could not write at least brief opinions explaining its decisions. Yet, the court decided that the Texas law could go into effect without offering the slightest explanation.

[h/t Election Law Blog]

Chemerinsky: SCOTUS "backing into recognizing a constitutional right to marriage equality."

If you were awake at all yesterday, you likely heard that SCOTUS declined to consider five states' appeals of lower court decisions striking down their same-sex marriage bans. Instantaneously, the fundamental right to marry extended to include same-sex couples in 24 states - which merits excitement and celebration. Nevertheless, SCOTUS's decision is also completely inadequate to address the continued discrimination against same-sex couples in the remaining states. 

UC Irvine School of Law Dean Erwin Chemerinsky sees SCOTUS's decision for what it ultimately is -- pretty weak sauce. Chemerinsky writes:

[I]t is inexplicable why the Supreme Court did not take at least one of these cases and then rule for the entire country that laws prohibiting same sex marriage are unconstitutional. In all likelihood, the court denied review because, so far, there is no disagreement among the federal courts of appeals; all three to rule so far have declared the state laws unconstitutional. It appears that the court will wait until a federal court of appeals decides the other way and upholds a state law prohibiting marriage equality.

 

[...]

 

However, it is hard to understand what the Supreme Court gains by waiting to decide this constitutional issue. It is not a situation where the court will benefit from the wisdom of the lower courts. It is very unlikely that an additional court of appeals will say anything that has not already been expressed.

 

[...]

 

It seems that the court is backing into recognizing a constitutional right to marriage equality. The more that marriage equality exists in the United States – the more states that have same-sex marriage and the more gay and lesbian couples that marry – the harder it will be for the court to deny such a right and invalidate these marriages.

 

But that is not how the court should be making landmark decisions. It now seems inevitable that there will be a right to marriage equality everywhere in the United States. There is no reason for the court to delay this. The court abdicated its responsibility when it denied the marriage cases instead of taking one and clearly and unequivocally holding that laws denying marriage equality violate the Constitution. 

Indeed, just what this issue demands -- more litigation.

Proponents of marriage equality celebrate Arkansas, Idaho decisions while awaiting ruling on Utah, Oklahoma same-sex marriage bans

The success of same-sex marriage proponents continued yesterday as U.S. District Magistrate Judge Candy Dale ruled that Idaho's same-sex marriage ban violated the constitutional rights of same-sex couples. According to the AP:

"The Plaintiffs are entitled to extraordinary remedies because of their extraordinary injuries," Dale wrote, saying same-sex couples in Idaho have been denied the economic, emotional and spiritual benefits of marriage.

 

"Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love," she wrote.

Of course, Idaho governor C.L. "Butch" Otter plans to appeal the decision, although the futility of such efforts appears evident. Judge Dale's decision is just the latest in a series of successful challenges to state laws banning same-sex marriage since the Supreme Court's decision in United States v. Windsor last summer. In Windsor, the Court held the federal government's definition of marriage under the Defense of Marriage Act (DOMA) as between a man and a woman denied equal protection of the laws to same-sex couples. After Arkansas's top court struck down its ban last Friday, 18 states and D.C. now legally recognize same-sex marriages. This number might soon increase, too. The Tenth Circuit is expected to issue its decision on the constitutionality of Utah's and Oklahoma's bans any day now, although uncertainty clouds expectations for the Fourth Circuit's pending decision as to Virginia's ban.

Meanwhile, advocates continue to raise challenges to laws against same-sex marriages. As The Salt Lake City Tribune's Marissa Lang recently reported:

As of late last week, there were 72 lawsuits pending in state and federal courts of 32 states and territories that challenge state laws banning or limiting same-sex marriage...

 

Alaska — which approved a constitutional amendment banning same-sex weddings in a 1998 referendum and then made it illegal for gay and lesbian couples to achieve any form of civil union or domestic partnership in 2007 — is the only state in the country whose law is not being challenged in court.

Even Alaska no longer can distinguish itself as the only state whose same-sex marriage ban remains unchallenged. Five same-sex couples filed suit yesterday to overturn the state's ban as a violation of the fundamental right to marry. 

CRL&P related posts:

• The Trouble with Inclusion
• Windsor as the end of federalist minimalism in LGBT litigation?
• How Marriage Inequality Prompts Gay Partners to Adopt One Another

Arizona, Ohio "religious freedoms" bills not to be

On Wednesday, Arizona Governor Jan Brewer (R) vetoed the "religious freedoms" bill that many claimed would lead to discrimination against LGBT persons; and, in Ohio, the sponsors of bipartisan legislation similar to that in Arizona said they will withdraw it after similar criticisms arose, according to The Cleveland Plain Dealer's Robert Higgs. He wrote:

Opponents in Arizona, and here in Ohio, said the broad language of the pieces of legislation would give business owners a license to discriminate against people who do not match their religious beliefs, especially for people who are gay, lesbian, bisexual and transgender. That group has not been recognized yet as a protected class by U.S. courts.

 

The breadth of the legislation made it ripe for unintended uses, said Susan Becker, a law professor at Cleveland’s Marshall College of Law.

 

The bill would have allowed Ohioans to challenge state or local laws, ordinances and other policies on the grounds their "practice or observance of religion" was burdened. The government would then have to prove, using a standard of strict scrutiny, that the challenged law is necessary or crucial, for the law to be applied.

 

It also would have allowed those sued for discriminatory behavior to cite the law as a defense. Businesses denying services to gay customers could cite their religious beliefs that oppose same sex relationships as a defense, said Becker.

Opposition to such legislation appears quite strong, but The Atlantic's Peter Beinart thinks internal political pressure could be the important factor here. He claims Gov. Brewer vetoed Arizona's "religious freedoms" bill because the Republican power structure is becoming more vertical, writing:

Brewer faced pressure to sign the bill from below: from the local legislators and activists who passed it. But she ultimately succumbed to pressure from above: from national Republican leaders and their corporate allies, who fear looking complicit with homophobia at a time when homophobia is rapidly becoming a political and economic loser.

 

There’s been a lot of this kind of vertical wrangling in recent months. In Congress, House Majority Leader John Boehner has tried to push rank-and-file Republican members of congress to unconditionally raise the debt ceiling and support a path to legalization for illegal immigrants. Republican bigwigs have tried to prevent local Tea Partiers from mounting primary challenges that undermine the GOP’s chances of taking the senate. The Republican National Committee has published an “autopsy” of the 2012 presidential race that proposes giving the national party more control of the 2016 primary calendar and debate schedule so as to avoid another lengthy, nasty nomination fight that leaves the eventual nominee drained of cash and far out on an ideological limb.

Regardless, it will be interesting to see what forms future efforts to "protect religious freedoms" take.

Read Higg's full report here:

CRL&P related posts:

• The Trouble with Inclusion
• Windsor as the end of federalist minimalism in LGBT litigation?
• How Marriage Inequality Prompts Gay Partners to Adopt One Another

Our Nation has a Secret: Felony Disenfranchisement in America

Yesterday, on HuffPost, the NAACP's Jokata L. Eaddy reminded us that many Americans remain disenfranchised. The title of ths post comes from Eaddy's post, in which she writes:

Laws preventing returning prisoners from voting originated prior to the Reconstruction era in an attempt to stem the growth of the black voting bloc and black electorate. Today, the effects are the same. The latest data reveals that nearly six million people cannot vote because of felony disenfranchisement laws practiced in across 48 states and the District of Columbia. More than two million of those disenfranchised are black.

 

Florida, Kentucky, and Iowa practice permanent disenfranchisement, erecting impenetrable barriers for people who are no longer incarcerated. Virginia made some strides after an executive order this summer granted automatic restoration of rights to people with non-violent felony convictions; however, that order's future will rely on the Governor-elect's agenda beginning in 2014. Kentucky and Iowa are slowly embracing change, but until those laws are amended in their state Constitutions, like this year's history-making legislation in Delaware, each state is still behind the curve. 

For decades, the United Nations has recognized that the right to vote and the right to be free from discrimination as integral components of our international system. This is why groups like the NAACP, The Sentencing Project, and the ACLU have made continuous efforts to highlight how felony disenfranchisement laws violate these principles and our country's international obligations. This year the United Nations Human Rights Committee signaled that felony disenfranchisement practices would be a priority during a March 2014 review of the United States' obligations to the International Covenant on Civil and Political Rights.

 

Additionally, a growing number of nations have supported UN resolutions inclusive of language calling on countries to ensure that all citizens are granted the right and opportunity to vote regardless of incarceration status.

While felon disenfranchisement gets comparatively little coverage, I'm not convinced that it's a secret. As I've noted, several potential Republican presidential candidates have stated their support for extending the right to vote to ex-felons. Sen. Rand Paul said so much earlier this year; and, Sen. Rich Santorum and then presidential candidate Mitt Romney exchanged attacks over Santorum's support for such an extension in a 2012 presidential primary in South Carolina. In October, The Atlantic covered felon disenfranchisement and the ways in which it shifts political power away from minority communities; and, The American Prospect recently ran this cover story on the history of felon disenfranchisement. Indeed, because of the commitment of advocates like Eaddy, felon disenfranchisement seems to be of increased interest.

However, Eaddy is certainly correct in suggesting that political progress on the issue has been frustratingly slow. The problem, it seems to me, is that felon disenfranchisement is easily separable from other voting rights issues because of the subjects of the disenfranchisement. Politicians and the media largely ignore issues affecting felons and ex-felons for those that produce political advantages and higher ratings. That is, we know about felon disenfranchisement, but politicians and the media can convince us that the issue is less pressing than others.

For this reason, advocates ought to consider how to align extension of the franchise to felons and ex-felons with ongoing debates over the right to vote more generally. I have made my pitch here. 

Some helpful law review articles:

• Janai S. Nelson, The First Amendment, Equal Protection, and Felon Disenfranchisement: A New Viewpoint, 65 Fla. L. Rev. 111 (2013).
• Gabriel J. Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?, 92 Geo. L. Rev. 259 (2004).
• Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the Debate Over Felon Disenfranchisement, 56 Stan. L. R. 1147 (2004). 
• George Brooks, Felon Disenfranchisement: Law, History, Policy and Politics, 32 Fordham Urb. L.J. 101 (2004).
• Afi S. Johnson-Parris, Felon Disenfranchisement: The Unconscionable Social Contract Breach, 89 Va. L. R. 109 (2003).

CRL&P related reads:

• Felon disenfranchisement, political power, and the First Amendment right to vote
• Could 2016 GOP presidential primary give life to debate over ex-felon disenfranchisement?
• Facebook "like" and First Amendment protection for the right to vote
• A surprising story about unsurprising circumstances: political partisanship burdening the right to vote
• Remembering Tinker: The right to vote as expressive conduct

CRL&P Daily Reads: Dec. 6, 2013

Democratic lawmaker urging Florida to allow online voter registration, same-day registration, and to create more early voting sites; and, Obama expects to see bipartisan improvents to voting access in 2014.

Florida State's Attorney won't press charges against officers facing civil rights lawsuit over harassment allegations.

Gun-rights advocates target the NFL over its policy against ads with guns; gun-control advocates release advertisement as citizens remember Newtown; and, Giffords launches gun-control PAC.

NYC's Fire Commissioner discusses with NPR attempts to close force's racial gap.

The Week claims anti-abortion activists are 'hijacking' the legislative process in Michigan.

 

Democracy and renewed distrust: Equal protection and the evolving judicial conception of politics

The title of this post come from this article arguing that the Court has become less deferential towards legislative efforts to protect the equal protection rights of minorities. According to the author, this change is the result of both shifting views about the political power of minorities and an acceptance of public choice theory. Here's the abstract:

Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway.

What explains these shifts? An easy explanation is that the Supreme Court has simply become more conservative. But what underlies this conservatism? In this Article, I argue that the Court’s own evolving conception of politics underlies the changes in the meaning of equal protection. In the past, the Court saw politics through the lens of pluralist theory, the crucial defect of which was the risk that minorities would be politically marginalized. That understanding has given way to a public choice conception in which the Court presumes these same minorities to be too politically powerful. In essence, one form of judicial distrust of democratic politics has replaced another.

I argue that two primary sources produced this renewed distrust: changing conservative views of the position of minorities in politics and a conservative legal movement that rejected pluralism in favor of public choice theory as the most accurate description of the operation of politics. I conclude by identifying important normative questions that this theory raises for constitutional law scholars and by offering a prescription for civil rights advocates seeking to influence judicial interpretations of the Equal Protection Clause.

If this argument is correct, this shift towards a less deferemtial standard conflicts with its decision in Crawford v. Marion Co. Election Bd., in which the Court demonstrated incredible deference towards a state legislature's authority to enact election laws. 553 U.S. 181 (2008). In Crawford, even though it acknowledged that the state had not shown the existence of voter fraud, the Court accepted the state's explanation that the voter ID law was needed in order to prevent such fraud (even though opponents had argued that the law would negatively impact minorities). ("The only kind of voter fraud that [the law] addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indian at any time in its history."). Indeed, writing for the Court, Justice Stevens claimed that the justifications offered in support of the law were "valid" and "sufficiently strong" to uphold its constitutionality. 

CRL&P related posts:

• Remembering Tinker: The right to vote as expressive conduct
• Facebook "like" and First Amendment protection for the right to vote
• Felon disenfranchisement, political power, and the First Amendment right to vote
• A surprising story about unsurprising circumstances: political partisanship burdening the right to vote
• Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty
• Should elderly judges be forced to retire?

CRL&P Daily Reads: Nov. 25, 2013

Texas officials worry that new voter ID law could cause significant problems in higher-turnout elections; and, county officials in Alabama ask for more workers to deal with new voter ID law.

Ohio officials worry that new gun laws could waste taxpayer dollars; and, threatened boycott by hunters opposing Colorado's new gun laws appears to have been only bluster.

NSA director offered to resign over Snowden leak; and, NSA infected thousands of networks with malware.

Excessive force lawsuit costs Los Angeles County $1.6 milliion.

 

CRL&P Daily Reads: Nov. 24, 2013

NSA director doesn't really want to give the FBI and DEA access to surveillance data.

Abortion clinic owner in Mississippi fights to keep her facility open.

Federal appeals court upholds ruling requiring changes to NYC's stop-and-frisk policy.

Decades-long civil rights dispute over Little Rock schools could be nearing its conclusion.

Federal lawsuit over the use of Tasers by prison guards alleges 'callous and sadistic' constitutional violations.

Atlantic City PD face another civil rights suit alleging excessive force.

 

Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty

The title of this post comes from this intriguing article challenging the current lack of safeguards against discrimination in death penalty proceedings. Here's the abstract:

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional. 

Death is different as a punishment. But does discrimination change from context to context? That is the message courts send when discrimination is judged differently based on the context, despite the United States Supreme Court’s “insistence that capital punishment be imposed fairly, and with reasonable consistency, or not at all.” No equivalent safeguards exist in criminal law outside of jury venire to protect against discrimination as there are in civil law. Congress and state legislatures have tried to pass legislation often called “Racial Justice Acts” to provide additional safeguards with little to no success. With the legislature’s lack of success in addressing the problem, the only opportunity to address discrimination claims may be judicially.

 

CRL&P Daily Reads: Nov. 15, 2013

Ten homeless people file civil rights lawsuit to keep city from evicting them from a local landfill.

NYC's stop-and-frisk policy results in conviction in just 3 percent of cases.*

Disabled man sues city under ADA for right to keep his service dog--a pit bull.

California judge rejects challenge to local ordinance banning the use of 'sign waver' advertisements.

Pennsylvania judge rejects request to block challenge to the state law banning recognition of same-sex marriages; Hawaii judge upholds state's new same-sex marriage law; and, transgender woman's employment discrimination case is tossed.

Victims call for legislation criminalizing revenge porn.

Jimmy Carter says the U.S. should abolish the death penalty.

* Correction: A helpful reader observed that the second link above was incorrect. It previously stated that New York City's stop-and-frisk policy leads to sentences of 30 days or more in just 1.5 percent of the cases, but the rate is actually much lower than that. In fact, the AG's report states on page 3:

Less than one in seventeen SQF arrests, or 0.3% of stops, resulted in sentences of more than 30 days of imprisonment.

 

Should elderly judges be forced to retire?

In a few days, New Yorkers will vote on a referendum to amend the state constitution to raise the mandatory retirement age for some state judges. As The New York Times reports, "[I]t would raise the mandatory retirement age for State Supreme Court justices and Court of Appeals judges to 80. Currently, the State Supreme Court, a trial-level court, requires justices to leave at age 76; the Court of Appeals, the state’s highest court, has a cutoff at 70."

Proponents argue that the mandatory retirement age was adopted at a time when life expectancy was lower, and they note that other state officials are not forced into retirement. Chief Judge Judith Kaye calls the age restriction "bad public policy" because it forces "experienced judges [to] leave the bench when they are at the top of their game." She also says that raising the retirement age will keep skilled judges on the bench, and that these judges can be used to alleviate the pressure on lower courts with considerable backups.

Opponents, however, claim that the measure is flawed because lower court judges are not subject to the increase, and lower courts are under the most stress. "It leaves out lower-court judges," reports The Times, and they "make up about three-quarters of the 1,259 jurists in the state. These judges would still be compelled to step down at 70, yet they are the ones burdened with mountainous caseloads and backlogs."

Gov. Cuomo shares their concern, and his position has put him at odds with much of the state's legal establishment. But, the payoff might be worth it. As The Times observes:

If the amendment fails and he wins re-election next year, Mr. Cuomo will have a chance to replace four Republican judges in his second term, all appointed by Gov. George E. Pataki: Victoria Graffeo, Eugene F. Pigott Jr., Susan P. Read and Robert S. Smith. The amendment would extend the terms of Judge Pigott and Judge Smith.

The governor would also be able to name a new chief judge to replace Judge Lippman, who turns 70 in May 2015 and has butted heads with Mr. Cuomo over the judiciary budget. Passage of the would allow Judge Lippman to serve until 2023. Judge Lippman denied he wanted to extend his own time in office.

The bill he first proposed to the legislature did not include the Court of Appeals for that reason, he said. It was the Senate Republicans, led by Senator Dean G. Skelos, who added the high court to the mix, legislative aides said.

The Supreme Court addressed the constitutionality of mandatory retirement laws in Gregory v. Ashcroft, 501 U.S. 452 (1991), in which it ruled inter alia that state judges are exempted from the Age Discrimination in Employment Act (ADEA). The question was whether state judges fall under the definition of "employee," which the ADEA says "shall not include...an appointee at the policy making level." Justice O'Connor authored the majority opinion, and she concluded:

We will not read the ADEA to cover state judges unless Congress has made it clear that judges are included. This does not mean that the Act must mention judges explicitly, though it does. Rather, it must be plain to anyone reading the Act that it covers judges. In the context of a statute that plainly excludes most important state officials, "appointee on the policy making level" is sufficiently broad that we cannot conclude that the statute plainly covers appointed state judges. Therefore, it does not.

Justice Blackmun, joined by Justice Marshall, dissented by claiming that 1) the "structure and legislative history of the policymaker exclusion" inform the view that Congress did not intend for judges to be excluded; and, 2) that deference should be given to the EEOC's "reasonable construction" of the law.

The Court's decision was particularly interesting for its application of the Tenth Amendment and federalism concerns to invoke the plain statement rule, under which a federal law will be applied to state government activities only if Congress expressed a clear intent that the law have that effect. The Court concluded that Congress did not intend for the ADEA to apply to judges. Thus, states retained the authority to determine the qualifications for state judges.

Today, thirty-two states place mandatory-retirement restrictions upon at least some judges. Next week, New Yorkers will determine whether to amend the current restriction, but they appear unready to take that step. According to one poll from the Siena College Research Institute, New Yorkers oppose the amendment by a wide margin--71 to 27 percent.

While political realities render opposition understandable, New York's age restriction on some judges seems rather outdated. C.J. Kaye's claim that "the age limit has deprived the New York courts of great legal minds in their prime" might go too far, but judges over 70 likely have some good years left. If the amendment were to pass, the former restriction would be forgotten to history as fearful projections are usually mistaken ones.

While we wait for a decision, CRL&P knows of at least one state judge who ought to consider retirement.

CRL&P Daily Reads: Oct. 25, 2013

Gun-rights advocates are planning to start collecting signatures in an attempt to recall California lawmakers who supported proposed gun regulations.

Greensborough police captain's civil rights lawsuit alleging discrimination by PD moved to federal court.

American Prospect argues that the Surpreme Court's reliance on two post-Reconstruction decisions have limited available remedies to victims of sexual assualt.

ACLU files amicus brief on behalf of secure email service provider facing contempt charges for failure to cooperate with U.S. government.

N.C. Attorney General and potential gubernatorial candidate speaks out on new voter ID law.

Homelessness among American K-12 students is growing.

 

Upcoming article draws attention to largely overlooked Supreme Court civil rights decision

In his upcoming article Snubbed Landmar: How United States v. Cruickshank Truncated the Reconsturction Amendments and Racialized Class Politics in America, Professor James Gray Pope argues that traditional narratives about the development of civil rights jurisprudence have failed to account for the precedential case that started it all: United States v. Cruikshank, 92 U.S. 546 (1876). According to Pope, the legal academy has created a "tale of progress" largely by ignoring Cruikshank's restriction on the Fourteenth Amendment's mandate to federal actions; its tailoring of the privileges and immunities clause; and, its limitation o the available protection of the Fourteenth and Fifteenth Amendments to racial minorities. "The results," argues Pope, "have been obfuscation and distortion." In fact, Cruikshank stymied "cross-racial movements" that might have led to a more promising futures. In the end, he urges: "It is long past time for this jurisprudentially inventive, politically pivotal, and socially schismatic case to take its proper place at the heart of the American constitutional narrative and pedagogical canon."

For those interested Supreme Court and civil rights history, this article provides valuable and intruiging insights that are well worth the time.

CRL&P related posts:

• Today in Civil Rights History: Decision in Civil Rights Cases announced
• New research suggests lynched teenager's innocence
• Today in Civil Rights History: Martin Luther King, Jr. wins Nobel Peace Prize

CRL&P Morning Reads: Oct. 25, 2013

Wisconsin woman held in drug treatment center under fetal protection law challenges the law's constitutionality.

NRO's Reihan Salam says political reformers should focus on increasing party power.

Time raises questions about online reporting of sexual abuse.

Ohio Secretary of State says there's a need to cut down early voting hours.

Ohioans could be turning to Michigan abortion clinics as local ones close.

Columnist rejects argument for arming teachers and says its time to start holding partents of schoolhouse killers responsible as well.

And, a North Carolina Republican official resigns following racially-charged comments on Wednesday's The Daily Show.