Constitutional Law Prof Blog

Check it Out: ACS Supreme Court Review

Check out the American Constitution Society's Supreme Court Review, OT 2017.

 

Ninth Circuit Upholds Alaska's Contribution Limits, Except its Nonresident Aggregate Contribution Limit

The Ninth Circuit ruled in Thompson v. Hebdon that Alaska's person-to-candidate, person-to-non-political-party-group, and political-party-to-candidate contribution limits were valid. But at the same time the court struck the state's nonresident aggregate contribution limit as a violation of free speech.

The case tested four separate provisions of Alaska's campaign finance law.

The first provision limits individual contribution to candidates to $500. Based on trial court evidence, the Ninth Circuit held that the limit was "narrowly focused" to address actual and potential quid pro quo corruption in the state. As to the amount, the court noted that $500 was low, but not unreasonably so, and still allowed candidates plenty of opportunities to fund their campaigns. The court rejected the plaintiffs' argument that the cap should be measured in comparison to the prior limit, $1,000, and that the state should justify the drop.

The second provision limits individual contributions to non-party organizations to $500. The court upheld this limit as a measure designed to avoid circumvention of the individual contribution limit, above. "We conclude that Alaska has demonstrated the same interest here where the risk of circumvention of the individual-to-candidate limit is apparent: under Alaska law, any two individuals could form a 'group,' which could then funnel money to a candidate. Such groups could easily become pass-through entities for, say, a couple that wants to contribute more than the $500 individual-to-candidate limit."

The third provision limits political party contributions to candidates to $5,000. The court rejected the plaintiffs' argument that this amounts to discriminatory treatment (in comparison to labor-union PACs), but noted that its ruling doesn't foreclose a challenge to the dollar amount.

Finally, the fourth provision limits nonresident aggregate contributions to $3,000. Here's why:

Alaska fails to show why an out-of-state individual's early contribution is not corrupting, whereas a later individual's contribution--i.e., a contribution made after the candidate has already amassed $3,000 in out-of-state funds--is corrupting. Nor does Alaska show that an out-of-state contribution of $500 is inherently more corrupting than a like in-state contribution--only the former of which is curbed under Alaska's nonresident limit. Alaska fails to demonstrate that the risk of quid pro quo corruption turns on a particular donor's geography. Accordingly, while we do not foreclose the possibility that a state could limit out-of-state contributions in furtherance of an anti-corruption interest, Alaska's aggregate limit on what a candidate may receive is a poor fit.

Chief Judge Thomas concurred on the first three provisions, but dissented on this last one. Judge Thomas argued that the limit furthered the state's interests in actual quid pro quo corruption and its appearance and its interest in preserving "self-governance."

SCOTUS Hears Oral Argument in Excessive Fines and Forefeiture Case

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court heard oral arguments in Timbs v. Indiana, raising the issue of whether the Eighth Amendment's prohibition of "excessive fines" is incorporated as against the States and how this relates to forfeitures. The underlying facts in the case involve the forfeiture of a Land Rover.  Recall that the Indiana Supreme Court rejected an excessive fines challenge under the Eighth Amendment concluding that "the Excessive Fines Clause does not bar the State from forfeiting Defendant's vehicle because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment." 

As to the incorporation argument, some Justices seemed skeptical that there was any plausible argument that the Excessive Fines Clause should not be incorporated. Justice Gorsuch quickly intervened in the Indiana Solicitor General's argument: "can we just get one thing off the table? We all agree that the Excessive Fines Clause is incorporated against the states." 

The Indiana Solicitor General did not concede this point, even after being pressed. Instead, the Indiana Solicitor General argued that the question of incorporation — including the test of whether the right is so deeply rooted in this nation's history and traditions and whether the right is implicit in the concept of ordered liberty as to be fundamental — rests on the articulation of the right as including forfeiture as the Court held in Austin v. United States (1993). Indeed, the Indiana Solicitor General suggested that the Court should overrule Austin.

The relationship between the incorporation of the right and the scope of the right permeated the argument. As Justice Kagan observed to the Indiana Solicitor General, there were two questions:

And one question is incorporating the right, and the other question is the scope of the right to be incorporated.

And, really, what you're arguing is about the scope of the right.

On the other hand, Chief Justice Roberts, responding to the argument of Wesley Hottot on behalf of the petitioner Tyson Timbs, stated that the collapse of the two questions was to ask the Court to "buy a pig in a poke," to just hold that the right is incorporated and later figure out what it means.

In his rebuttal, Mr. Hottot argued that the case was about "constitutional housekeeping," adding that while the Court had "remarked" five times over the last 30 years that the "freedom from excessive economic sanctions should be applied to the states," it had never explicitly so held. 

If the oral argument is any indication, the Court seems poised to rule that the Excessive Fines Clause is incorporated through the Fourteenth Amendment's Due Process Clause.

[image via]

SCOTUS Oral Argument Preview: Excessive Fines and Forfeiture

Professor Ruthann Robson, City University of New York (CUNY) School of Law

On November 28, 2018, the United States Supreme Court will hear oral arguments in Timbs v. Indiana, raising the issue of whether the Eighth Amendment's prohibition of "excessive fines" is incorporated as against the States and arguably whether this includes forfeitures.

The Indiana Supreme Court's brief opinion clearly concluded that "the Excessive Fines Clause does not bar the State from forfeiting Defendant's vehicle because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment." The Indiana Supreme Court cited footnote 13 of McDonald v. City of Chicago, in which a majority of the Court found that the Second Amendment was incorporated to the states through the Fourteenth Amendment (with a plurality relying on the Due Process Clause).  Recall that in footnote 12, Justice Alito's plurality opinion in McDonald listed the provisions of the Bill of Rights that had been incorporated with citations, while in footnote 13, Justice Alito listed the few remaining provisions not incorporated, also with citations.

Justice Alito's citation in footnote 14 of McDonald is to "Browning-Ferris Industries of Vt. v. Kelco Disposal (1989) (declining to decide whether the excessive-fines protection applies to the states)."  Yet as the Indiana Supreme Court notes, in its 2001 opinion in Cooper Industries, Inc. v. Leatherman Tool Group, Inc., the Court stated that the Fourteenth Amendment  made the "Eighth Amendment's prohibition against excessive fines and cruel and unusual punishments applicable to the States." The Indiana Supreme Court decided that the Cooper Industries statement was dicta and that the McDonald footnote omission of Cooper supported that conclusion ("we will not conclude lightly that the Supreme Court whiffed on the existence or meaning of its precedent").

Whatever the status of precedent, however, the Court is poised to resolve the question of the incorporation of the Excessive Fines Clause to the States.  The amicus briefs tilt heavily in this direction.  One possible wrinkle is the relationship between forfeiture and excessive fines, with the State of Indiana arguing that the issue is whether there is a right to proportionality in forfeiture proceedings that is sufficiently fundamental to meet the incorporation test (whether the right is deeply rooted in this nation's history and traditions and whether the right is implicit in the concept of ordered liberty).

 

New York State Judge Denies Trump Foundation Motion to Dismiss Complaint by State Attorney General

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In her Decision and Order in People of State of New York v. Donald Trump (and three of the Trump children and the Trump Foundation), Justice Saliann Scarpulla denied Trumps' motion to dismiss the complaint by New York's Attorney General seeking dissolution of the Trump Foundation for violations of New York's Not-for-Profit Corporation Law and New York Estates, Powers, and Trusts Law.

 

The motion to dismiss argued in part that the state court lacked jurisdiction over "Mr. Trump" because pursuant to the Supremacy Clause, Article VI, a "sitting president may not be sued.  As Justice Scarpulla stated, the New York Attorney General noted that Trump "failed to cite a single case in which any court has dismissed a civil action against a sitting president on Supremacy Clause grounds, where, as here, the action is based on the president's unofficial acts." Justice Scarpulla relied the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones holding that then-President Clinton was subject to a civil action, and agreeing with another New York judge in Zervos v. Trump, held that this extended to state courts as well as federal. Justice Scarpulla rejected Trump's arguments that state courts are less fair to federal officials and less able to manage accommodations for a sitting president, pointing out that state courts were equally fair and competent. She also rejected the argument that state courts were less suited to address legal issues against federal officials:  "The dissenting opinion that Respondents cite for this proposition simply noted that federal courts have greater expertise than state courts in applying federal law" and here, "resolution of the petition is governed entirely by New York law, thus a federal court's alleged superior knowledge of federal law is inapposite."

The Trump respondents also argued the petition should be dismissed because of bias by the former Attorney General and the office as a whole.  Justice Scarpulla concluded that there was not a sufficient evidentiary basis for bias, conflict of interest, or abuse of confidence, and that "given the very serious allegations set forth in the petition," there is "no basis for finding that animus and bias were the sole motivating factors" for the petition.

The Trump respondents also raised grounds for dismissal of specific claims, including claims surrounding the misuse of foundation funds during the campaign; Justice Scarpulla rejected all of these.

Justice Scarpulla's order notes that the Foundation has been "attempting to voluntarily dissolve for the past two years" and urges the parties to reach an agreement leading to that dissolution. Justice Scarpulla did dismiss as moot one count of the petition which sought an injunction against continuing operation of the Foundation, stating that the Trumps were attempting to dissolve the foundation and that no injunction was necessary.

This decision by a trial judge — New York's Supreme Courts are trial courts — is not a final order, but if Trump's past litigation strategies are any indication, he will attempt to forestall answering the petition, which Justice Scarpulla ordered be done within 45 days.

 

District Judge Enjoins Mississippi Abortion Law as Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In an opinion in Jackson Women's Health Organization v. Currier, United States District Judge Carlton Reeves enjoined the Mississippi law banning abortions after 15 weeks as unconstitutional.

Judge Reeves had previously entered a temporary restraining order, which this order and opinion makes permanent. Judge Reeves holds that Mississippi's H.B. 1510 is a clearly unconstitutional violation of due process under Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) which makes viability the marker before which states may not ban abortions. Judge Reeves's opinion then asks "So, why are we here?" The opinion answers its own query by explaining that "the State of Mississippi contends that every court who ruled on a case such as this “misinterpreted or misapplied prior Supreme Court abortion precedent," and argues that the bill only "regulates" abortions. Judge Reeves concluded that the State "characterization" of the law as a regulation was incorrect; the law's very title stated it was "to prohibit." Additionally, Judge Reeves concluded:

The State is wrong on the law. The Casey court confirmed that the “State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child” and it may regulate abortions in pursuit of those legitimate interests.Those regulations are constitutional only if they do not place an undue burden on a woman’s right to choose an abortion.But “this ‘undue burden’/‘substantial obstacle’ mode of analysis has no place where, as here, the state is forbidding certain women from choosing pre-viability abortions rather than specifying the conditions under which such abortions are to be allowed.”There is no legitimate state interest strong enough, prior to viability, to justify a ban on abortions.

[footnotes omitted]. 

    Judge Reeves also expressed "frustration" with the Mississippi legislature passing a law it knew was unconstitutional, "aware that this type of litigation costs the taxpayers a tremendous amount of money," to "endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade."  Judge Reeves chastised the Mississippi Legislature for its "disingenuous calculations," augmented with a footnote (n.40) that begins "The Mississippi Legislature has a history of disregarding the constitutional rights of its citizens," and followed by citation and parenthetical explanations of a half-dozen cases.

    Judge Reeves' concluding section to the seventeen page opinion reiterates some of these concerns and adds that "With the recent changes in the membership of the Supreme Court, it may be that the State believes divine providence covered the Capitol when it passed this legislation. Time will tell." Judge Reeves specifically mentions the amicus brief of women in the legal profession regarding their abortions in Whole Woman's Health v. Hellerstedt (2016), and also adds:

The fact that men, myself included, are determining how women may choose to manage their reproductive health is a sad irony not lost on the Court. As Sarah Weddington argued to the nine men on the Supreme Court in 1971 when representing “Jane Roe,” “a pregnancy to a woman is perhaps one of the most determinative aspects of her life.”As a man, who cannot get pregnant or seek an abortion, I can only imagine the anxiety and turmoil a woman might experience when she decides whether to terminate her pregnancy through an abortion. Respecting her autonomy demands that this statute be enjoined.

[footnotes omitted].

District Court Rules Federal Criminal Ban on Female Genital Mutilation Unconstitutional

Steven D. Schwinn, John Marshall Law School

Judge Bernard A. Friedman (E.D. Mich.) ruled that the federal criminal statute banning female genital mutilation exceeded Congress's authority and was therefore invalid. The ruling dismisses those counts in an indictment against Michigan doctors accused of performing the procedure.

The federal criminal ban reads,

Except as provided in subsection (b), whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both.

The government defended the statute under Congress's authority to enforce a treaty and its power to regulate interstate commerce. The court rejected both.

As to the treaty power, the court concluded that the statute wasn't rationally related to applicable provisions in the supporting treaty, the International Covenant on Civil and Political Rights. More, the court ruled that even if it were rationally related to the ICCPR, federalism principles restricted Congress from acting. That's because the U.S. entered the ICCPR with a reservation (valid under international law) that "this Convention shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by state and local governments . . . ." And because intrastate criminal law is a traditional area for the states (and not the federal government), the reservation itself restricts Congress from acting. (Judge Friedman suggested that under Bond Congress might have lacked authority even without the reservation--just because the federal statute intrudes on states' exclusive authority over "local criminal activity.")

As to the Commerce Clause, the court ruled that the statute failed: FGM is not commerce (the government produced no evidence that it's done for money); there's no jurisdictional element in the statute; congressional fact-finding on the commercial connection was sparse; and FGM is a local activity that, without more, has no actual connection to the interstate economy.

Congress could certainly go back and fix any of this (if Judge Friedman is upheld on appeal). For example, it could clarify that the ICCPR bans FGM, and remove its reservation. Or it could incentivize states to criminalize FGM. As to the Commerce Clause, it could add a jurisdictional element and fact-finding--exactly what it did after the Court struck the Gun Free School Zone Act in Lopez. (It's not clear why the jurisdictional element wasn't in the act--enacted after Lopez--in the first place.)

CJ Roberts Defends Independence of Judiciary

Chief Justice Roberts issued an extraordinary statement today defending the independence of the judiciary. The statement came after President Trump attacked Judge Tigar as an "Obama judge" because of Judge Tigar's ruling yesterday halting President Trump's restrictions on asylum claims at the Mexican border.

The statement reads,

We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.

Here's Adam Liptak's report in the NYT.

Court Halts Trump's Restrictions on Asylum

Steven D. Schwinn, John Marshall Law School

Judge Jon S. Tigar (N.D. Cal.) issued a temporary restraining order today against President Trump's move to prevent aliens along the Mexico border from applying for asylum except at ports of entry. The court ruled that government action violated the plain terms of the Immigration and Naturalization Act, and, alternatively, that there were "serious questions" about whether the government could bypass notice-and-comment procedures under the Administrative Procedure Act (as it did).

The order applies nationwide.

The ruling strikes a substantial blow against President Trump's effort to restrict aliens' ability to apply for asylum. The next step is a show-cause hearing on December 19, during which Judge Tigar will hear arguments whether the government "should not be enjoined from taking any action continuing to implement the Rule and ordered to return to the pre-Rule practices for processing asylum applications, pending the final disposition of this action."

DOJ and DHS published a joint interim rule, bypassing notice-and-comment procedures under the APA's "military or foreign affairs function" and "good cause" exemptions, that renders an alien categorically ineligible for asylum "if the alien is subject to a presidential proclamation or other presidential order suspending or limiting the entry of aliens along the southern border with Mexico . . . ." President Trump then issued a presidential proclamation (claiming authority under 8 U.S.C. Secs. 1182(f) and 1185(a)) suspending "[t]he entry of any alien into the United States across the international boundary between the United States and Mexico" for ninety days, but exempts "any alien who enters the United States at a port of entry and properly presents for inspection."

The problem is that this runs headlong into the INA. 8 U.S.C. Sec. 1158(a)(1) (emphasis added) provides:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum . . . .

In short: the government's rule violates the statute. "Basic separation of powers principles dictate that an agency may not promulgate a rule or regulation that renders Congress's words a nullity."

The court rejected the government's argument that its rule is consistent with the statute, because the statute says that an alien can apply for asylum, while the rule uses the port-of-entry requirement to render an alien ineligible for asylum. "The argument strains credulity. To say that one may apply for something that one has no right to receive is to render the right to apply a dead letter. There is simply no way to harmonize the two."

The court went on to say that there were "serious questions" about the government's invocation of the "foreign affairs" and "good cause" exceptions to the APA's notice-and-comment requirements. Although the court didn't have to rule on the exceptions (because it held that the rule violates the plain terms of the INA), it did, for completeness.

Senators Sue Over Whitaker Designation

Steven D. Schwinn, John Marshall Law School

Senators Richard Blumenthal, Sheldon Whitehouse, and Mazie Hirono filed suit yesterday against "purported Acting Attorney General" Matthew Whitaker and President Trump, seeking declaratory and injunctive relief against President Trump's designation of Whitaker as Acting AG.

The complaint contends that the designation (done under the purported authority of the Federal Vacancies Reform Act) violated the Appointments Clause and sidestepped the DOJ succession statute. (These arguments are similar to the points in the filing last week seeking Supreme Court review of the designation.)

The complaint points especially to the Senate's advice-and-consent role in principal officer appointments as a separation-of-powers check. That's partly to establish standing: "By designating Mr. Whitaker to perform the functions and duties of the Attorney General without having been subject to Senate confirmation, President Trump has unlawfully denied the Plaintiffs their right, as sitting U.S. Senators, to vote on whether to consent to his appointment to that role."

But it's also to illustrate why the Senate's role matters. Quoting Federalist 76, the complaint says:

It is precisely so that matters like these can be thoroughly examined by Senators that the Constitution prohibits the appointment of principal federal Officers without the Senate's advice and consent. That safeguard, the Framers recognized, helps prevent the President from appointing Officers with "no other merit than that of . . . possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure." The Framers regarded the advice-and-consent requirement as "an excellent check upon a spirit of favoritism in the President" that "would tend greatly to prevent the appointment of unfit characters from State prejudice, and from family connection, [and] from personal attachment."

Case Seeks SCOTUS Review of Whitaker Appointment

Steven D. Schwinn, John Marshall Law School

Tom Goldstein, frequent Supreme Court litigator and publisher of SCOTUSblog, asked the Supreme Court today to rule on the legality of President Trump's designation of Matthew Whitaker as Acting AG. The issue came up in Goldstein's motion to substitute Rod Rosenstein (and not Matthew Whitaker) in a case against the AG.

The case pits the AG Succession Act (which specifies an automatic line of succession for the office) against the Vacancies Reform Act (which applies more broadly and gives the President more flexibility in naming an acting officer). It also asks whether the President's designation violated the Appointments Clause, because the AG is an "officer" that requires Senate confirmation.

The government's position is set out here, in the OLC memo concluding that President Trump had authority to designate Whitaker. Walter Dellinger and Marty Lederman have an outstanding "initial reactions" here, at Just Security.

Florida District Judge Issues Injunction on Mismatched Signature Ballot Claim

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his opinion in Democratic Executive Committee of Florida v. Detzner, United States District Judge Mark Walker, Chief Judge for the Northern District of Florida, has granted the motion for a preliminary injunction and ordered Florida to "allow voters who have been belatedly notified they have submitted a mismatched-signature ballot to cure their ballots by November 17, 2018, at 5:00 p.m."

After finding that the plaintiffs had standing and were not barred by laches, Judge Walker reached the question of whether the plaintiffs were likely to prevail on their constitutional claims on the infringement of the right to vote. Judge Walker decided that the standard derived from Anderson-Burdick should be applied:

Under Anderson-Burdick, a court considering a challenge to a state election law “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’ ” Burdick. When an election law imposes only reasonable, nondiscriminatory restrictions upon the constitutional rights of voters, the states’ important regulatory interests are generally sufficient to justify the restrictions. Id. But, “[h]owever slight the burden may appear . . . it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitations.” Common Cause/Ga. v. Billups, 554 F.3d 1340, 1352 (11th Cir. 2009). This is not a litmus test, rather the court must balance these factors and make hard judgments. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 190 (2008). Finally, “Anderson/Burdick balancing . . . should not be divorced from reality, and [] both the burden and legitimate regulatory interest should be evaluated in context.”

[some citations omitted]

Judge Walker found that the "injury is the deprivation of the right to vote based on a standardless determination made by laypeople that the signature on a voters’ vote-by-mail or provisional ballot does not match the signature on file with the supervisor of elections." The judge noted that there are  "dozens of reasons a signature mismatch may occur, even when the individual signing is in fact the voter," and concluded that disenfranchisement of "approximately 5,000 voters based on signature mismatch is a substantial burden." While Judge Walker found that Florida's interests "to prevent fraud, to efficiently and quickly report election results, and to promote faith and certainty in election results" were compelling, the "use of signature matching is not reasonable and may lead to unconstitutional disenfranchisement."

Judge Walker extended the period for voters to address a potential signature mismatch by noting that the previous opportunity to cure has "proved illusory."

Provisional ballot voters are provided no opportunity to cure under the law. Without this Court’s intervention, these potential voters have no remedy. Rather, they are simply out of luck and deprived of the right to vote. What is shocking about Florida law is that even though a voter cannot challenge a vote rejected as illegal, any voter or candidate could challenge a vote accepted as legal. The burden on the right to vote, in this case, outweighs the state’s reasons for the practice. Thus, under Anderson-Burdick, this scheme unconstitutionally burdens the fundamental right of Florida citizens to vote and have their votes counted.

Additionally, Judge Walker noted that although the plaintiffs' claims rested on the First Amendment and Equal Protection Clause of the Fourteenth Amendment, he was also troubled by the lack of procedural due process, citing the Georgia mismatch decision in Martin v. Kemp.

Judge Walker's 34 page opinion did not cite Bush v. Gore (2000).

The Florida recount, like the Georgia recount continues, more than a week after election day.

 

SCOTUS Grants Certiorari in Establishment Clause Challenge to Maryland's 40 foot "Latin Cross"

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Court has granted certiorari in Maryland-Capital Park and Planning Commission v. American Humanist Association centered on the constitutionality of a 40 foot "Latin Cross," owned and maintained by the state of Maryland and situated on a traffic island taking up one-third of an acre at the busy intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg, Md. 

Recall our earlier discussion regarding the divided decision in which the Fourth Circuit concluded that the government cross violated the First Amendment's Establishment Clause, reversing the district judge. In essence, the majority found that while there may be a legitimate secular purpose to the cross, considering that it was erected to local soldiers who died in World War I, the cross is specifically Christian and "the sectarian elements easily overwhelm the secular ones" in the display. A "reasonable observer" most likely viewing the 40 foot cross from the highway would fairly understand the Cross to have the primary effect of endorsing religion and entangles the State with religion.

 

 

United States District Judge Issues Injunction in Georgia Vote Challenge

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In an Order in Georgia Coalition for the People's Agenda v. Kemp, United States District Judge Eleanor Ross has found that the challengers would be likely to succeed on the merits of their constitutional claim regarding Georgia's flagging of potential voters as noncitizens ineligible to vote.  Recall that a different district judge recently issued an injunction against Secretary of State Kemp — who is also a candidate for Governor — in a challenge to the "mismatch" of  voter names.

Here, Judge Ross articulated the appropriate framework as:

When deciding whether a state election law violates First and Fourteenth Amendment associational rights, we weigh the character and magnitude of the burden the State’s rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary.

Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).

Judge Ross first found that the burden was "severe for those individuals who have been flagged and placed in pending status due to citizenship." Discussing one particular person, Judge Ross stated that

it was not a nominal effort for him to vote; it was a burdensome process requiring two trips to the polls, his own research, and his hunting down a name and telephone number to give to election officials so that his citizenship status could be verified, all after he had already submitted proof of citizenship with his voter registration application. This is beyond the merely inconvenient.

Relying on Timmons, Judge Ross continued with a strict scrutiny analysis, finding that while the State's interest in ensuring only citizens vote was compelling, the specific means chosen were not narrowly tailored. Here, the focus was on the fact that 4 of the 5 ways in which the State proposed that persons could verify their citizenship required a "deputy registrar," which were derived from a previous settlement. However, Judge Ross declared that the court's hands were not tied as to this matter, and ultimately all 5 of the options "for allowing individuals with flags for citizenship to vote in the upcoming election, sweep broader than necessary to advance the State's interest, creating confusion as Election Day looms."

Judge Ross directed Brian Kemp in his official capacity as Secretary of State to:

1. Allow county election officials to permit eligible voters who registered to vote, but who are inaccurately flagged as non-citizens to vote a regular ballot by furnishing proof of citizenship to poll managers or deputy registrars.

2. Update the “Information for Pending Voters” on the Secretary of State’s website so that it provides (a) clear instructions and guidance to voters in pending status due to citizenship and (b) a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.

3. Direct all county registrars, deputy registrars, and poll managers on how to verify proof of citizenship to ensure that they can properly confirm citizenship status consistent with this order. Issue a press release (a) accurately describing how an individual flagged and placed in pending status due to citizenship may vote in the upcoming election, as set forth herein; and (b) providing a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.

4. Issue a press release (a) accurately describing how an individual flagged and placed in pending status due to citizenship may vote in the upcoming election, as set forth herein; and (b) providing a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.

5. Direct the county boards of elections to post a list of acceptable documentation to prove citizenship, which includes a naturalization certificate, birth certificate issued by a state or territory within the United States, U.S. passport, and other documents or affidavits explicitly identified by Georgia law and listed on the Georgia Secretary of State’s website, at polling places on Election Day.