Constitutional Law Prof Blog

Government Seeks Stay of Census Order at Supreme Court

Steven D. Schwinn, University of Illinois Chicago Law School

The Trump Administration yesterday filed a motion at the Supreme Court to stay, pending appeal, a district court's order directing the government to continue census operations until October 31. The filing is just the latest in the ongoing efforts of the Trump Administration to rush census operations amid a pandemic. The Administration says that it needs to speed efforts in order to meet the December 31 statutory deadline for reporting census data to the President.

The case is important, because congressional apportionment, legislative districts, and federal funds are all tied to census data. The numbers that come from the 2020 census will lock these in for the next ten years. Moreover, the Trump Administration seems set on the December 31 deadline so that President Trump (and not a potential President Biden) would certify the census numbers to Congress--and possibly try not to include unauthorized noncitizens in the count.

The case arose when the Trump Administration reversed course on a revised census plan that would extend census data collection through October 31 in light of data-collection delays resulting from Covid-19.

The Census Bureau adopted the plan after it lost 47 days of data-collection efforts, and anticipated additional difficulties in collecting data, due to the Covid-19 pandemic. The plan set the end of collection efforts at October 31, 2020. But this would mean that the Bureau would likely not meet the December 31 statutory deadline for reporting data to the President. 

So on August 3, the Administration abruptly issued a "Replan," which set the end of data-collection efforts at September 30. The Replan condensed the total time to conduct the census to 49.5 weeks--4.5 weeks shy of the pre-Covid schedule of 54 weeks, and 22 weeks shy of the extended Covid schedule. 

A group of organizations, cities, counties, and tribal groups sued to stop the Replan, arguing that it violated the Administrative Procedure Act and the Enumeration Clause. The district court ordered the Replan halted, order data-collection efforts to extend to October 31, and enjoined the Administration from implementing the September 30 and December 31 deadlines. 

The Ninth Circuit denied an administrative stay, and, yesterday, partially stayed the district court's order pending appeal. The Ninth Circuit stayed the district court's order enjoining the Administration from complying with the statutory December 31 deadline--the Ninth Circuit said that a court shouldn't order the government to ignore a statutory deadline--but denied a stay of the order enjoining the September 30 stop date. This meant that the Administration would have to continue census data-collection through October 31.

Soon after the Ninth Circuit ruled, the Administration filed for a stay with the Supreme Court. The Administration argued that the APA didn't apply, that in any event the plaintiffs didn't prove a violation of the APA, and that the Administration couldn't meet the December 31 statutory deadline if data collection extended through October 31.

In other words, the Administration says that it couldn't have been arbitrary and capricious (and therefore in violation of the APA) for the Administration to halt data-collection efforts at an earlier date in order to meet the statutory deadline of December 31.

Second Circuit Rebuffs Trump's Case Against NY Grand Jury Subpoena

Steven D. Schwinn, University of Illinois Chicago Law School

The Second Circuit today flatly rejected President Trump's case challenging the NY grand jury subpoena for his financial records. The ruling follows a summer Supreme Court decision saying that the grand jury was not categorically (and constitutionally) barred from seeking the President's financial records.

The ruling in Trump v. Vance deals a serious blow to President Trump and his efforts to keep his financial records under wraps. (The subpoena goes to far more than President Trump's taxes.) But the President will surely seek to appeal.

The ruling says that President Trump failed even to plausibly plead (under the Iqbal and Twombly pleading standard) that the grand jury subpoena was overbroad or issued in bad faith. At the same time, it noted that going forward the President might need some accommodations in state criminal proceedings in order to avoid intruding on the President's Article II responsibilities. (The President didn't raise categorical constitutional claims in this round--the Supreme Court already rejected those claims in its ruling this summer--and did not specifically claim that complying with this subpoena would interfere with his Article II responsibilities.)

The court's decision was issued per curiam (without naming the judges involved), suggesting that the case was easy and that the ruling was perfunctory. 

Obergefell as Precedent: First Monday in October

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

On the first Monday in October, the United States Supreme Court begins its Term, this time with only eight of the usual nine Justices given Justice Ginsburg's death in September.

In today's Order List of the Term, the Court denied certiorari in Davis v. Ermold to the Sixth Circuit's decision that court clerk Kim Davis did not have immunity from a damages suit. (Recall that in 2017 the Sixth Circuit allowed the damages suit to proceed). Kim Davis achieved notoriety as a clerk who refused to issue a marriage license to a same-sex couple despite the United States Supreme Court's ruling in Obergefell v. Hodges.

Two Justices on the Court who dissented in Obergefell — Thomas joined by Alito — used today's denial of certiorari to issue a "statement" (it is not a dissent as the issue is not "cleanly presented" in this case) to cast doubt on the continued validity of Obergefell:

this petition provides a stark reminder of the consequences of Obergefell. By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have “ruinous consequences for religious liberty.”

Two Justices who joined the slim 5-4 majority in Obergefell  — Ginsburg and Kennedy — are no longer on the Court.  This statement sends a strong message to courts and advocates that the the Court would contemplate overruling or severely limiting Obergefell should the issue be more "cleanly presented."

Supreme Court to Hear First Amendment Challenge to Political Balancing Requirements for State Courts

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court will hear oral arguments tomorrow, the opening day of October Term 2020, in Carney v. Adams. The case tests whether Delaware's "political balancing" requirements for its courts violate the First Amendment. A ruling on the merits could have implications for a variety of state and federal commissions that have similar balancing requirements. But first the Court'll need to address the plaintiff's standing . . . .

Here's my Preview of the case, from the ABA Preview of United States Supreme Court Cases, with permission:

Case at a Glance

Delaware attorney James Adams, a registered Independent, considered applying for a judicial position on the state courts. Despite his interest, however, Adams did not apply, because he believed that, as an Independent, he would not qualify. Adams pointed to a state constitutional provision that capped the number of judges from a political party to no more than a bare majority on the courts (the “bare-majority” requirement) and that, for some courts, required that the other judges come from the other major political party (the “major-party” requirement). Instead of applying for judicial vacancies on these courts, Adams sued, arguing that the provision violated the First Amendment.

INTRODUCTION

According to the Supreme Court, the First Amendment permits the government to use a person’s political affiliation as a qualification for “policymaking” positions, but generally not for lower-level government jobs. This case tests how that principle applies to Delaware’s political balancing provision for judges. But before we get to the merits, the case raises a significant question whether Adams even has standing to sue.

ISSUES

1. Does Adams have standing to sue, given that he declined to apply for judicial vacancies, and given that he would have qualified for vacancies on two of Delaware’s courts?
2. Does the First Amendment prohibit a state from specifying and defining the composition of its courts by reference to the judges’ political parties?
3. Is the provision of Delaware’s constitution that caps the judges from one political party on three of the state’s courts severable from the provision that requires that all judges on those courts are members of a major political party?

FACTS

Delaware’s “Bare Majority” and “Major Party” Political Balancing Requirements

In 1897, delegates to the Delaware constitutional convention sought to reduce the influence of politics on the state’s judiciary. In order to achieve this goal, delegates recommended a political balancing requirement for the state’s principal courts. Under the requirement, these courts could not have more than a single-judge majority from any one political party. The state adopted the bare-majority proposal, and Delaware has had some form of a bare-majority requirement for its principal courts ever since.

In 1951, the state modified the political balancing requirements to exclude third party and unaffiliated voters from applying to serve as judges on the Supreme Court, the Superior Court, and the Chancery Court, the so-called “business courts.” The change retained the existing bare-majority requirement, but it added a major-party requirement that limited service on these courts only to members of a major political party, Republican or Democrat. The major-party requirement helped to ensure that a governor could not side-step the bare-majority requirement by appointing a nominal third-party or independent judge to a seat reserved for the other side. The change stuck through several amendment processes, including in 2005.

Today, Article IV, Section 3, of the Delaware Constitution specifies that these three courts shall include no more than a single-judge majority from one major political party, and that all other judges shall be from the other major political party. (If one of these courts has an even number of judges, the provision specifies that the judges on that court shall be equally divided, Republican and Democrat.)

The same section also specifies that the Family Court and the Court of Common Pleas shall include no more than a single-judge majority of the same political party. (If one of these courts has an even number of judges, the provision specifies that no more than one-half of the judges shall be of the same political party.) But in contrast to the provision for the business courts, the provision for these two courts does not include a major-party requirement. As a result, members of non-major political parties, including independents, may serve on these two courts, so long as these courts satisfy their bare-majority requirement.

Delaware’s Judicial Nominations

Since 1978, Delaware governors have relied on recommendations from a judicial nominating commission to identify candidates to appoint to judicial vacancies. Under this practice, the commission, which is politically balanced and comprised of both lawyers and non-lawyers, recommends three candidates for each judicial vacancy. The governor then selects one of the three nominees for appointment. If the governor is not satisfied with the commission’s recommendations, the commission may generate another list of recommendations.

When a judicial position becomes available, the commission provides public notice of the position, the salary, and the job requirements, including the party membership, in order to comply with the bare-majority and major-party requirements, discussed above.

James Adams’s Non-Application for a Judicial Position

In December 2015, Delaware attorney James Adams retired and went on “emeritus” status with the Delaware state bar. Sometime in late 2016 or early 2017, Adams decided to explore judicial vacancies. He reactivated his full state bar membership and changed his party affiliation from Democrat to Independent. Adams said that he would have considered and applied for any available positions on any of the state’s courts. (Adams said he changed his party affiliation because he grew disenchanted with the Delaware Democratic Party and considered himself “more of a Bernie [Sanders] independent.” The state, in contrast, suggests that he changed his party only to bring this suit. Adams also claims that he declined to apply for judicial vacancies in the past, because he would not have qualified as a Democrat. The state disputes this and says that he would have qualified for at least ten judgeships.)

Rather than applying for any vacancies, however, Adams brought this suit. He claimed that the political balancing requirements rendered him ineligible for available vacancies based on his Independent political status, and argued that the requirements violated the First Amendment. The district court agreed and struck both the bare-majority requirement and the major-party requirement as they applied to all five courts.

The Third Circuit affirmed in part and reversed in part. The court ruled that Adams lacked standing to challenge the bare-majority requirements for the Family Court and the Court of Common Pleas, because the bare-majority requirements did not bar his appointment as an Independent to those courts. The court also accepted that Adams lacked standing to challenge the bare-majority requirement for the business courts for the same reason. On the merits, the court held that the major-party requirement for the business courts violated the First Amendment. It ruled that the bare-majority requirement failed, too, because (notwithstanding Adams’s lack of standing to challenge it) the bare-majority requirement was not severable from the major-party requirement. This appeal followed.

CASE ANALYSIS

There are three issues in this case. Let’s take them one at a time.

Standing

In order to sue in federal court,  plaintiffs must establish that they have suffered, or imminently will suffer, a concrete and particularized injury that was caused by the challenged law. Here, the state argues that Adams failed to establish a sufficient injury to challenge the political balancing requirements. The state says that the bare-majority requirement could not possibly injure Adams, because he does not belong to either political party. Moreover, the state contends that Adams failed to establish that he suffered past injuries based on the bare-majority requirement, because he would have qualified “for at least ten judgeships.” The state asserts that Adams failed to establish that he will suffer future harms based on the major-party requirement, because he cannot say with certainty that the major-party requirement will disqualify him from future consideration. Finally, the state notes that Adam declined to apply for any positions as an Independent, and that any harm he suffered is therefore “self-inflicted” and non-cognizable.

Adams counters that he only has to allege that the political balancing requirements chilled his exercise of his First Amendment right to affiliate (or not) with a political party (and not that the state actually denied his application). He says he easily meets this standard, because he alleged that he would have applied for judicial vacancies but for the balancing requirements’ political discrimination. He claims that the requirements force him “to choose between the right to seek a judgeship and violating his political conscience by re-registering as a Democrat or a Republican in order to be considered.” And he contends that a decision striking the political balancing requirements would allow him to submit an application as an Independent and have it “accepted and considered on its own merit.”

The Political Balancing Requirements

The state argues that it may consider party affiliation of state judges consistent with the First Amendment. It contends that under Supreme Court precedent, the First Amendment only limits a state from considering political affiliation for “low-level public employees,” not for “policymaking” jobs. The state asserts that the “ultimate inquiry” is “whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti v. Finkel, 445 U.S. 508 (1980).

The state says that its use of party affiliation for judges easily meets these tests. It contends that judges occupy “policymaking” positions, because, among other things, they “develop the common law.” And it claims that party affiliation is “an appropriate requirement” for the job, “[b]ecause party affiliation is a proxy for how would-be judges might understand their role,” and because it helps to ensure bipartisan decisionmaking on the bench. The state asserts that the Third Circuit adopted an unduly narrow definition of “policymaking”—one that does not square with Supreme Court precedent.

Finally, the state argues that even if its political balancing requirements are subject to heightened First Amendment scrutiny (because judgeships are not “policymaking” positions), they pass muster. The state says that they are narrowly tailored to ensure a politically balanced judiciary, and that this, in turn, serves its compelling interest of preserving “public confidence in judicial integrity.”

Adams counters that the balancing requirements violate the First Amendment, because “[p]olitical affiliation is not only not necessary for the work of a judge, it also is inconsistent with the role of a judge.” Adams claims that judges only make “policy” insofar as they rule on the immediate cases before them, and so are not policymakers under Supreme Court precedent. Moreover, he says that judges are supposed to render their decisions without consideration of politics, and so their political affiliation is not “an appropriate requirement” for their office. In short, he contends that the state’s balancing requirements run exactly against the state’s own interests in a politically neutral judiciary.

Severability

The state argues that the bare-majority requirement is severable from the major-party requirement, and that the Court can therefore strike the major-party requirement (if it must) without also striking the bare-majority requirement. As an initial matter, the state asserts again that Adams lacks standing to challenge the bare-majority provision, and argues that he cannot use its non-severability from the major-party requirement to create standing to challenge it. Such a rule, the state contends, “would allow parties to obtain sweeping relief against whole statutory schemes even if injured by only part of them.” Moreover, the state claims that the bare-majority requirement can stand alone, independent of the major-party requirement, as it stood for 54 years before the state adopted the major-party requirement, and as it currently stands for the state’s Family Court and Court of Common Pleas. According to the state, “[t]here is simply no evidence that the Delaware Constitution’s framers would have preferred no political balance provisions at all to a system with just the bare majority provision.”

Adams counters that the state failed to raise the severability argument before the lower courts, and so waived it. But if the Court rules on severability, Adams argues that the major-party requirement is not severable from the bare-majority requirement, because the two provisions “are textually intertwined” and necessarily work together. He says that the history of the bare-majority requirement reveals that “the Legislature had only Democrats and Republicans in mind.” Moreover, he claims that the major-party requirement is necessary for the bare-majority requirement to achieve its goals. He contends that the major-party requirement “has no independent justification for its existence,” and so the two are not severable. According to Adams, this means that when the Court strikes the major-party requirement, it must also strike the bare-majority requirement.

SIGNIFICANCE

First and foremost, there is a circuit split on an issue central to the merits question in this case, whether judges are “policymakers.” The Third Circuit said no, but the Second, Sixth, and Seventh Circuits (and, according to the state, “every other court to address the issue”) has said yes. Under Court precedent, if judges are “policymakers,” then the state can use their political affiliation as a qualification without violating the First Amendment. If they are not, then the state must show that its use of political affiliation is necessary to achieve a compelling government interest. This is a high standard, but one that the state argues, in the alternative, that it can satisfy. If the Court reaches the central merits question in this case, it may resolve the circuit split and determine whether judges are “policymakers” that fall under this exception to the First Amendment.

I say “may,” because it’s not entirely obvious that the Court’s precedents establishing the “policymakers” standard apply here. Those precedents deal more directly with the problem of political patronage, that is, when the government doles out jobs to politically friendly allies. But Delaware’s stated interest is very different here, to reduce the influence of politics in the judiciary by mandating a non-partisan, or, in this case, a bi-partisan, process. According to the State and Local Government Associations, as amicus in support of the state, merely applying the Court’s patronage precedents could threaten similar state and local government balancing requirements far beyond the judiciary. According to amicus, this could affect state and local governments’ efforts to reduce the influence of politics in a variety of policy areas.

But all that’s only if the Court reaches the central merits question, whether Delaware’s balancing provision violates the First Amendment. Before the Court can address this issue, it must determine that Adams has standing to sue. Given that Adams declined to apply for several positions for which he apparently qualified (either as a Democrat, in the past, or as an Independent, in the present and future), it seems likely that the Court may simply dismiss the case for lack of standing, vacate the Third Circuit’s ruling, and wait for a more appropriate case to address the hard question of whether Delaware’s political balancing provision violates the First Amendment.

Check it Out: The Voter-Fraud Myth and How it Impacts the Right to Vote

Check out this in-depth story on the history of claims of voter fraud, and how those claims affect the right to vote. From the NYT.