Monday, October 31, 2022

Fifth Circuit to Reconsider Whether Officers are Immune for Arresting Journalist for, well, Doing Journalism

The full Fifth Circuit on Friday agreed to rehear a ruling by a three-judge panel that rejected qualified immunity for officers enforcing a Texas law that criminalizes solicitation of information from a public servant with intent "to obtain a benefit." The full court also vacated the panel ruling.

In other words, it's now not clearly unconstitutional to arrest and charge a person for doing journalism in the Fifth Circuit.

The full court's move is just the latest in this long-running case. It started when Priscilla Villarreal, a Facebook journalist, posted a story about a man who committed suicide and another story with the last name of a family involved in a fatal car accident. Villarreal confirmed the names with local authorities. After she posted, she was arrested.

Authorities charged Villarreal with violating Texas law that criminalizes the solicitation of non-public information from a public servant with intent "to obtain a benefit." (Villarreal's "benefit" was gaining more Facebook followers.) The state trial court quite predictably tossed the case, ruling that the Texas law was unconstitutionally vague.

Villarreal then sued authorities in federal court for various violations of her constitutional rights, including First Amendment rights. The district court dismissed the case, but a three-judge panel of the Fifth Circuit reversed. Noting that "[i]t is not a crime to be a journalist," the court said that authorities violated Villarreal's clearly established constitutional rights.

Then on Friday the full Fifth Circuit vacated the panel ruling and agreed to rehear the case. The Friday ruling included no opinions, so we don't really know where the Fifth Circuit's ultimately going with this.

But in the meantime, if you're a journalist in Texas, beware. You apparently have no clearly established constitutional right to do your job.

October 31, 2022 in Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Saturday, October 29, 2022

Drop-Box Monitoring: Voter Intimidation, or Free Speech?

A federal district court declined to stop an organization from "monitoring" and photographing voters at Arizona voting drop-box locations, in part because the court said that the organization's activities are protected under the First Amendment. The ruling means that Clean Elections USA and its "monitors" can continue watch voters at the drop-boxes and photograph voters.

The case, Arizona Alliance for Retired Americans v. Clean Elections USA, tests Clean Elections' practice of posting volunteers at voting drop-box locations to monitor voters and take pictures of them and their license plates. According to the court, "[m]any voters have filed official complaints . . . and have even sought out law enforcement assistance." Plaintiffs sued, arguing that the practice violated the Voting Rights Act and the Ku Klux Klan Act. They sought a temporary restraining order to stop the practice.

The court declined. The court held that Clean Elections' practices were not sufficiently intimidating to violate the VRA, despite the fact "that Plaintiffs and many voters are legitimately alarmed by the observers filming at the . . . early voting drop boxes." Alternatively, the court held that it couldn't stop Clean Elections "without violating the First Amendment." (How? Several ways, according to the court. For one, "the Court finds that a reasonable observer could interpret the conduct as conveying some sort of message, regardless of whether the message has any objective merit." For another, there's a "First Amendment right to film matters of public interest." For a third, there's "a right to gather news." And for a fourth, there's a "right to receive information.")

As to the Ku Klux Klan Act, the court held that the plaintiffs failed to show that Clean Elections intended to intimidate or threaten voters (intent being a requirement under the Act).

October 29, 2022 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Supreme Court to Take Up Affirmative Action Monday

The Supreme Court will hear oral arguments in the affirmative action cases on Monday. The Court's expected to overturn its rulings allowing race-based affirmative action in higher education, or at least to limit them sharply.

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


This case involves two different university admissions policies, but they are very similar. Both policies assess each applicant based on a variety of factors, including race, as part of a holistic and individualized review in order to achieve the educational benefits that come from student-body diversity. Neither policy uses racial quotas or points or otherwise assigns a rigid or categorical benefit based on an applicant’s race. Both institutions continue to use race as one of many factors in admissions only after they examined whether they could achieve their desired student-body diversity without race, and determined that they could not. And both institutions engage in ongoing efforts to assess their affirmative-action programs and to determine whether race-neutral alternatives might achieve the broad diversity they seek.

That said, let’s look at each policy more carefully.

Under Harvard’s policy, the school first compiles an application file for each candidate that includes a transcript, standardized test scores, and recommendation letters; an overview of the applicant’s high school; information about the applicant’s extracurricular activities, athletic participation, honors, and prizes; the applicant’s essays; the applicant’s intended field of study; the applicant’s family and demographic information; and reports from alumni or staff interviews.

A “first reader” then makes a tentative assessment of each applicant in four areas: academic, extracurricular, athletic, and personal. These numerical ratings provide a “preliminary” “starting point” for the Admissions Committee’s later assessment. The school does not admit or deny students based on these ratings. And first readers do not consider race in assigning an initial rating.

Next, first readers assign a “school support rating” and an “overall” rating. In assigning the overall rating, first readers may give “tips” to qualities such as unusual intellectual ability; strong personal qualities; outstanding creative or athletic abilities; or backgrounds that expand the socioeconomic, geographic, racial, or ethnic diversity of the class. First readers can also give tips to recruited athletes, legacy applicants, applications on the Dean’s or Admissions Director’s interest lists, and children of faculty and staff.

First readers send the applications of competitive candidates to subcommittee chairs, who also assign preliminary ratings. Regional subcommittees meet to decide which candidates to recommend to the full Admissions Committee.

The full 40-member Admissions Committee then meets over several weeks to discuss candidates and make admissions decisions based on all the information in the applicants’ files. (At the full Committee stage, the earlier preliminary ratings “fade into the background” and the Committee focuses on the whole files.) During this process, the Dean and Director of Admissions periodically review one-page summaries of the applicant pool and the tentatively admitted class. These “one-pagers” include academic interests, geographic region, citizenship status, socioeconomic circumstances, gender, race, and legacy and recruited-athlete status. This information is used to forecast yield rates (which can vary across characteristics), “to evaluate the effectiveness of efforts to recruit diverse students,” and to “identify anomalies in the representation of students with certain characteristics, including race.” Based on this information, the Admissions Committee may “give additional attention to applicants” from an underrepresented racial group in order “to ensure any significant decline is not ‘due to inadvertence or lack of care.’” If the expected yield exceeds the available class slots (around 1,600), the Committee can reduce the admitted class based on one or more characteristics of each applicant, including race.

Harvard also uses several race-neutral programs to achieve diversity. For example, it engages in targeted outreach to encourage racial minority students to apply, and it offers generous financial support to make the costs of attendance more affordable for all students. In 2017, Harvard established a committee to evaluate race-neutral alternatives. But after considering 13 separate alternatives, “the committee concluded that none would currently allow Harvard to achieve the educational benefits of diversity while maintaining its standards of excellence.” The school now started a process to reevaluate that conclusion.

Under UNC’s policy, the school compiles an application file for each candidate, usually from the Common Application, a standard application used by hundreds of institutions. Students may indicate a range of characteristics and background information, including military service, foreign-language proficiency, career interests, and race.

Readers in UNC’s admissions office then read each file guided by a non-exhaustive list of more than forty criteria, including academic performance, athletic or artistic talents, and personal background. Readers then make a provisional decision. A second reader reviews a majority of the files. Senior admissions office personnel review a sample of files. And finally, a committee of veteran readers reviews provisional decisions from each high school.

UNC’s individualized, holistic review “considers all aspects of an applicant’s background and values many kinds of diversity.” For example, UNC considers veteran status, geographic diversity, community service, socioeconomic status, work history, creativity, capacity for leadership, and more. When the school considers race, it does so alongside these other factors. “[A]n applicant’s race may occasionally tip the balance toward admission in an individual case, but almost always does not.”

Since 2004, UNC has also implemented several race-neutral efforts to achieve diversity. For example, the school provides resources to make the cost of attending affordable to all students. It “engages in significant recruiting efforts to encourage diverse students to apply and enroll.” It partners with underserved high schools in the state to increase applications from low-income, first-generation, and underrepresented applicants. And it “recruit[s] high-achieving community-college students.” More recently, UNC formed a working group and, separately, a committee on race-neutral alternatives in admissions. While the committee continues to study and analyze race-neutral alternatives (including expert analysis and the district court’s findings in this case), UNC has “not yet identified a workable race-neutral alternative,” although it “remains steadfastly committed to doing so.”

Students for Fair Admissions, Inc. (SFFA), a membership organization that spearheads challenges to affirmative-action programs, sued Harvard, arguing that the school impermissibly used race in its admissions decisions, to the detriment of Asian Americans. The district court rejected SFFA’s claim and upheld Harvard’s admissions program; the United States Court of Appeals affirmed; and the Court granted certiorari.

SFFA also sued UNC. The district court similarly rejected SFFA’s claims. Given that the Court had agreed to hear the Harvard case, SFFA asked the Court to bypass an appeal to the circuit court and grant “certiorari before judgment.” The Court agreed and consolidated the UNC case with the Harvard case.  


Under Court precedent, a college or university can use race in its admissions policy so long as the use of race is narrowly tailored and necessary to achieve a compelling government interest. (This test, “strict scrutiny,” is the same test that the Court applies whenever the government uses race in whole or in part to identify individuals for any purpose.) This means that a college or university can use race as one factor among many in a holistic, individualized review of each applicant in order to achieve the educational benefits that come from student-body diversity. Grutter v. Bollinger, 539 U.S. 306 (2003); Fisher v. University of Texas, 136 S. Ct. 2198 (2016). But an institution cannot use racial quotas, assign points for race in the admissions process, or assign any other rigid, categorical benefit according to an applicant’s race. (The Court adopted these standards for public college and universities, like UNC, under the Equal Protection Clause. But they apply exactly the same to private institutions that receive federal funds, like Harvard, under Title VI.)

In challenging the Harvard and UNC policies, SFFA argues first that the Court should overturn Grutter and categorically prohibit any use of race in university admissions. It argues that under Brown v. Board of Education and its progeny, schools cannot use race “as a factor in affording educational opportunities.” And “[b]ecause Brown is our law, Grutter cannot be.” Moreover, SFFA says that the use of race in university admissions is based only on “stereotyping” (that applicants can contribute to ideological diversity because of their race), not evidence, and that Grutter wrongly gives universities more deference than other institutions (like the military) in their use of race. It claims that Grutter has led to all kinds of problems, including “anti-Asian stereotyping, race-obsessed campuses, declines in ideological diversity, and more.” And finally, SFFA contends that “Grutter cannot generate serious reliance interests,” because the ruling itself predicts that universities will no longer need affirmative-action programs by 2028.

SFFA argues next that even if the Court retains Grutter, both Harvard and UNC violate its standards. It says that both schools “award mammoth racial preferences to African Americans and Hispanics.” SFFA claims that neither institution plans to stop using race in its admissions policy. It contends that neither school seriously considered race-neutral alternatives to achieving diversity, at least “[u]ntil they were sued.” And SFFA says that Harvard actively uses race against Asian Americans.

The schools counter (separately, but raising similar arguments) that the Court should not overturn Grutter. They claim that the original understanding of the Fourteenth Amendment (and by extension Title VI) allows the government to use race far more expansively than Grutter in order to address racial inequalities, and that generations of legislators have done just that. They say, contrary to SFFA, that Grutter is true to Brown, because, unlike Brown, affirmative action doesn’t categorically exclude anyone, because affirmative action draws on Brown’s acknowledgment of the importance of education, and because affirmative action is designed to achieve broad diversity that benefits all students. They contend that affirmative action does not stereotype, as SFFA claims. Instead, they say that race indisputably informs perspectives and contributes to ideological diversity. And they assert that Grutter itself prohibits exactly the kind of harms that SFFA describes, like discrimination against Asian Americans.

The schools argue next that their admissions policies easily satisfy Grutter’s standards. They claim that their policies use race as one of many factors in a holistic, individualized review of each candidate in order to achieve the educational benefits that come from broad diversity. They contend that they have considered and used race-neutral alternatives, but that these are insufficient, and that they engage in ongoing efforts to assess their use of race and explore alternatives. They say that the lower courts in both cases came to these same conclusions, and that SFFA badly distorts the record by claiming otherwise.

The government weighs in as amicus in support of the schools, making largely the same arguments. The government adds that it benefits from diversity in higher education in its many institutions and functions. (Notably, the government’s brief is signed by the general counsels for the Department of Defense, the Department of homeland Security, the Department of Education, the Department of Health and Human Services, the Department of Commerce, and the Department of Labor, in addition to the Department of Justice.)



This case tests the continuing vitality of Grutter and the Court’s approach to race-based affirmative action in higher education. The lower courts in both cases ruled, after exhaustive reviews, that both schools’ affirmative-action policies satisfied Grutter’s demands. They also ruled that both schools adequately explored race-neutral alternatives to achieve the kind of broad diversity they sought, but that the schools ultimately determined that race-neutral alternatives alone would not work. Finally, they found that the schools engage in ongoing efforts to assess their use of race and explore race-neutral alterantives. Given these comprehensive rulings that these policies so comfortably satisfy Grutter’s standards, there’s really no reason the Court would agree to hear these cases except to overturn Grutter, or at least to sharply limit affirmative action in higher education.

The impact could be dramatic. In those states that ban the use of race in higher-education admissions, racial minority enrollment in competitive institutions has plummeted, even when schools engage in aggressive race-neutral efforts to diversify. The University of Michigan and the President and Chancellors of the University of California drive this point home in their separate amicus briefs in support of the schools. These experiences tell us that if schools can’t use race at all, enrollment by racial minorities could similarly plummet across the board. This would obviously harm racial minorities. According to many amici, it would also harm the workforce, government operations at all levels, and society generally, as we’d all lose the benefits of diversity in our higher-education institutions.

In determining whether to overturn Grutter, look for the Court to wrestle with the meaning of Brown v. Board of Education. By one reckoning, Brown means that the government can’t use race to segregate schools, because, given systemic racism, racial segregation inevitably results in inequalities, even for otherwise “equal” schools. (“Separate is inherently unequal.”) In other words, the government can’t use race to harm children. This view supports affirmative action, because the purpose isn’t to harm applicants, but rather to benefit all students through broad diversity.

But by another reckoning, Brown means that the government can’t use race at all, for any purpose. In other words, Brown prohibits any racial labelling, irrespective of the purpose or effect, and irrespective of broader systemic racism that might result in racial inequalities even under race-neutral government actions. Chief Justice Roberts captured this reading of Brown when he wrote that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007). This view opposes affirmative action merely because affirmative action uses race at all, for any purpose.

This Court has already adopted the latter view of Brown in other contexts. It’s likely to adopt it here, too, to overrule Grutter or to sharply limit the use of race in university admissions.

Look, too, for the Court to wrestle with the original understanding of the Fourteenth Amendment. As Justice Ketanji Brown Jackson reminded us at oral argument earlier this month in Merrill v. Milligan, the Voting Rights Act case, the original understanding allowed the government to use race in order to redress racial inequalities. In other words, the Fourteenth Amendment wasn’t designed to ban racial labelling; instead, it was designed to remedy racial inequalities, and it allowed the government to use race to do so. This original understanding tends to support race-based affirmative action. (But remember: under Grutter, the purpose of affirmative action in higher education is to achieve the educational benefits that come from broad student-body diversity, not (necessarily) to remedy racial inequalities.)

Nevertheless, this is a Court that is not at all shy about overturning long-standing precedent, history notwithstanding. And all indications point to the Court overturning Grutter here.

October 29, 2022 in Affirmative Action, Cases and Case Materials, Equal Protection, News | Permalink | Comments (0)

Thursday, October 27, 2022

Fulton DA Fires Back Against Graham's Emergency Application for Stay

The Fulton County DA filed her Response in Opposition to Senator Lindsey Graham's emergency petition to Justice Thomas (as Eleventh Circuit justice) to stay the lower courts' rulings ordering him to testify before the special grand jury investigating possible criminal activity surrounding the 2020 general elections in Georgia.

Justice Thomas could rule on Senator Graham's petition himself, or he could refer it to the whole Court. Given the sensitivities, look for him to refer it to the whole Court. Either way, a ruling could come any time.

We previously posted on the Eleventh Circuit's ruling, Senator Graham's emergency petition, and Justice Thomas's temporary stay here.

DA Fani Willis argues that the lower courts got it right on Senator Graham's claim of immunity under the Speech and Debate Clause. She wrote that the lower courts properly concluded that Senator Graham's calls to Georgia Secretary of State Brad Raffensperger were not "manifestly legislative." She said that the courts' solution--that Senator Graham could be asked about aspects of his calls that did not relate to his legislative activities, but not aspects of the calls that did--was sound.

As to Senator Graham's claim of sovereign immunity, DA Willis said he simply has no support.

While the Senator states that the subpoena was issued to "Senator Graham" rather than "citizen Graham," that is simply not true. The Grand Jury is aware that it cannot question "Senator Graham" about his indisputably legislative actions, and a great deal of time and effort has been expended to determine precisely the safest way to question the Senator and avoid improper questioning. Any questions will be addressed to topics outside legislative duties as defined by this Court. Because the Senator's arguments do not have a foundation in the law, as the district court repeatedly held, sovereign immunity does not afford him a basis for success on the merits of his arguments.

October 27, 2022 in Cases and Case Materials, Congressional Authority, News | Permalink | Comments (0)

Full D.C. Circuit Allows Committee To Get Trump Tax Returns

The full D.C. Circuit, with no noted dissent, declined to review a panel ruling that held that the House Committee on Ways and Means could obtain former President Trump's tax returns from Treasury. This isn't really a surprise: the panel ruling in favor of the Committee was thorough and sound.

But this doesn't mean that the Committee will actually get the returns anytime soon. That's because Trump is sure to seek review at the Supreme Court. Even if the Court declines review quickly, Trump'll certainly drag this out until the next Congress moves in. If Republicans take the House, the whole thing'll become moot.

October 27, 2022 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, October 26, 2022

Check Out This Explainer on Gov. DeSantis's Efforts To Curtail Voting Rights

Over at Just Security:

As Americans across the country start the early voting process and prepare to return to the polls for the midterms, election officials should do everything possible to encourage one thing: voting. Instead, Florida’s new “election police” appear to be suppressing it by illegally targeting good faith voting mistakes. Fortunately, the Florida justice system is pushing back, and rightly so.

This is an important test case for American democracy in the newfound battles over voter suppression.

October 26, 2022 in Elections and Voting, News | Permalink | Comments (0)

A Little Different for Us: Tire Chalking Doesn't Violate the Fourth Amendment

The Fourth Amendment isn't part of the usual fare for ConLaw courses in law school. But we thought this one deserved some attention (especially if you drive--and park--in the Ninth Circuit):

The Ninth Circuit ruled that tire-chalking for enforcing time-limits on city parking lots is NOT a Fourth Amendment violation. The court said that even if it's a "search," it falls within the administrative search exception, and that it's reasonable in scope and manner. Judge Bumatay argued in dissent that neither the original understanding nor Court precedent allows "a policy of indiscriminate searches for such an ordinary government enterprise."

The ruling splits with the Sixth Circuit, which held that tire chalking isn't an administrative search, but didn't say whether it might fall under some other exception to the warrant requirement.

October 26, 2022 in Cases and Case Materials, News | Permalink | Comments (0)

You Might Find This Interesting: The Dueling First Amendment Claims in the Ninth Circuit's Cancer-Warning Case

A Ninth Circuit case over California's cancer-warning requirement raises interesting competing First Amendment claims. In particular, the case tests free-speech rights of businesses against government compelled warnings versus the right-to-access rights of private litigants who sue to enforce those warnings. In the latest chapter, the full Ninth Circuit today leaned in favor of the businesses.

The case, California Chamber of Commerce v. Council for Education and Research on Toxics, tests California's Prop 65, which requires "clear and reasonable warning" on any "chemical known to the state to cause cancer or reproductive toxicity." The law authorizes government officials and private litigants to sue to enforce it.

The California Chamber sought a preliminary injunction to stop the state AG and CERT, a private organization, from suing to enforce Prop 65 as applied to foods and drinks that contain acrylamide. The district court granted the injunction, and a three-judge panel of the Ninth Circuit affirmed. The court affirmed the district court findings that there's a "robust disagreement by reputable scientific sources over whether acrylamide in food causes cancer in humans," that the warning for acrylamide was misleading, and that defendants who used an alternative warning system faced a "heavy litigation burden" in Prop. 65 lawsuits. For these reasons, the court held that Prop. 65 likely violated the commercial-speech rule under Zauderer v. Office of Disciplinary Counsel.

Today the full Ninth Circuit declined to review the ruling. The dissent argued that the panel ruling violated a different, competing First Amendment right, CERT's right to access to justice under the Petition Clause. The dissent claimed that the panel impermissibly expanded the "illegal objective" exception to the right to access to justice. That exception, from a footnote in Bill Johnson's Restaurants, Inc. v. NLRB, says that the NLRB could enjoin suits that have "an objective that is illegal under federal law." For example, the NLRB could halt lawsuits by unions for enforcement of fines that could not lawfully be imposed under the National Labor Relations Act. Today's dissent argued that the earlier panel impermissibly expanded the exception in two ways: (1) it expanded the exception to non-labor cases, beyond how any other circuit court has ruled; and (2) it expanded the exception based only on a prediction (not a final merits determination) that the underlying lawsuit pursued an "illegal objective" (here, a violation of the Zauderer rule, because the earlier panel ruling only held that Prop. 65 was likely to violate free speech).

Well, anyway, I thought this was kinda interesting, and I thought you might, too.

October 26, 2022 in Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

UPDATE: AZ GOP Chair Asks SCOTUS To Block January 6 Committee Subpoena for Cell Phone Records

Arizona GOP Chair Kelli Ward filed an Emergency Application for Stay with Justice Kagan (as Ninth Circuit Justice), seeking to halt a subpoena by the January 6 Commission for her cell-phone records.

UPDATE: Justice Kagan issued a stay and ordered the Committee to respond by Friday.

After the Committee subpoenaed Ward's cell-phone provider, Ward filed for an injunction. The district court dismissed her case, and rejected her motion for an injunction pending appeal. A divided panel of the Ninth Circuit affirmed. The two rulings meant that Ward's cell-phone provider would have to comply with the subpoena pending her appeal on the merits.

Ward argued that the subpoena violates her First Amendment associational rights. Here's what the district court said about that, in its denial of Ward's motion for an injunction pending appeal:

[T]he Court finds Plaintiffs have not presented a serious legal question regarding the merits of Plaintiffs' First Amendment claims. Although Plaintiffs discuss at length the application of the exacting scrutiny standard in their briefing and how this case mirrors Republican National Committee v. Pelosi, the Court already found Plaintiffs failed to raise a viable First Amendment claim because of the speculative nature of their alleged harm. Indeed, the Court noted that Plaintiffs "provided no evidence to support their contention that producing the phone numbers associated with this account will chill the associational rights of Plaintffs or the Arizona GOP" and that "'absent objective and articulable facts' otherwise, the Court finds Plaintiffs' arguments constitute 'a subjective fear of future reprisal' that the Ninth Circuit has held as insufficient to show an infringement of associational rights."

Ward contends that the lower courts didn't properly account for Americans for Prosperity v. Bonta. (Bonta struck a state law requiring charitable organizations to disclose their "major donors.") In short, she says that under Bonta, disclosure requirements are subject to heightened scrutiny even if a plaintiff demonstrates no burden. According to Ward, that means that a majority of justices would likely vote to reverse the lower courts. And she says that she meets the other requirements for emergency relief, too.

Justice Kagan could order the Committee to respond, and she could rule on the motion herself, or she could refer it to the entire Court. A ruling could come sooner, or later.

October 26, 2022 in Association, Cases and Case Materials, First Amendment, News | Permalink | Comments (0)

January 6 Committee Serves Subpoena on Trump

Not unexpected. But just because you don't see it everyday. More in our earlier post, here.

October 26, 2022 | Permalink | Comments (0)

First Circuit Rejects Defamation Claim by Conspiracy Theorist and January 6 Attendee

The First Circuit flatly rejected a defamation case filed by a conspiracy theorist and attendee at the January 6 insurrection against an online media outlet. The reason: the defendant's claims about the plaintiff were true, according to her own statements.

The case, Cheng v. Neumann, arose when the online media outlet Beacon published a piece that identified Dana Cheng as "a far-right media personality and conspiracy theorist who has said she was among the supporters of former President Donald Trump who were present at the riot at the U.S. Capitol on Jan. 6." The Beacon piece also referenced related statements by Cheng and linked to a podcast where she said them. Cheng and her own media group sued for defamation.

The First Circuit flatly rejected the claim. Without even considering "First Amendment principles concerning public figures and the pleading requirements for actual malice," the court held that Cheng had no claim, because the Beacon piece was accurate. The court said that the piece simply placed Cheng at the insurrection, where she in fact was (as she herself said). Contrary to Cheng's claims, the Beacon piece simply did not imply that she was a "full, enthusiastic, and partisan participant in the violence of January 6, 2021" and that she "was present as a violent participant in the January 6 violent assault on the Capitol." The court wrote, "A complaint cannot plausibly allege falsity where, as here, materials incorporated into the complaint refute that very assertion." (Pro tip: If you're going to sue for defamation, try not to admit the truth of the alleged defamatory statements in your own complaint.)

The court also held that other Beacon statements that Cheng's media company "has promoted anti-vaccine misinformation and . . . QAnon" were non-actionable opinions.

October 26, 2022 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Tuesday, October 25, 2022

Originalist Scholars Explain Why Independent State Legislature Theory Isn't a Thing

Check out the smack-down, no-holds-barred explanation why ISL isn't a thing, at least by an original understanding, in this amicus brief by none other than Akhil Amar, Vikram Amar, and Steven Calabresi.

The trio filed the brief in Moore v. Harper, the case testing whether a North Carolina Supreme Court ruling that struck an extreme partisan gerrymander under the state constitution violated the Elections Clause. (Appellants in the case argue that it did, because "the legislature" has plenary power over elections, under an ISL reading of the Elections Clause, and that no one--not even the state supreme court, applying judicial review under the state constitution--can intrude on that power.)

The Court'll hear the case on December 7. We'll have a preview before then.

October 25, 2022 in Cases and Case Materials, Elections and Voting, News | Permalink | Comments (0)

Ninth Circuit Says Planned Parenthood Can Collect Damages for Surreptitious Recordings

The Ninth Circuit last week ruled that Planned Parenthood could collect compensatory damages from an organization that used illegal means to infiltrate conferences and record Planned Parenthood staff without their consent. The ruling rebuffs the organization's argument that free speech protects against such damages, and reminds under the First Amendment, journalists are just like the rest of us.

The case, Planned Parenthood v. Newman, arose out of anti-choice activists' efforts to infiltrate conferences that Planned Parenthood attended or hosted and to surreptitiously record conversations with Planned Parenthood staff. Planned Parenthood sued for trespass, fraud, conspiracy, breach of contract, unlawful and fraudulent business practices, civil RICO, and various state and federal wiretapping laws. The district court ruled for Planned Parenthood and awarded statutory, compensatory, and punitive damages. The defendants appealed, arguing that compensatory damages violated the First Amendment.

The Ninth Circuit rejected the claim. The court said that even if the defendants were acting as journalists, they're bound by facially constitutional statutes that apply to everyone. In other words, the First Amendment applies the same to journalists; they don't get a free pass just because they're journalists.

[W]e repeat today that journalists must obey laws of general applicability. Invoking journalism and the First Amendment does not shield individuals from liability for violations of laws applicable to all members of society. None of the laws Appellants violated was aimed specifically at journalists or those holding a particular viewpoint. The two categories of compensatory damages permitted by the district court, infiltration damages and security damages, were awarded by the jury to reimburse Planned Parenthood for losses caused by Appellants' violations of generally applicable laws.

October 25, 2022 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Monday, October 24, 2022

Why Did the Eighth Circuit Halt Educational Debt Cancellation (after Justice Barrett allowed it)?

Justice Barrett last week denied an emergency request by a Wisconsin taxpayer association to halt the Biden Administration's program to cancel qualifying student debt. The ruling meant that the Administration could continue to operate the program pending the association's appeal.

Then the Eighth Circuit granted the same emergency relief to Missouri in a parallel case. This ruling halted the program pending appeal.

The two cases raise the same legal claims. District courts in both cases dismissed the cases because the plaintiffs lacked standing. (The Seventh Circuit refused to halt the program while the Wisconsin group appealed.)

So why the difference? Neither Justice Barrett's order nor the Eighth Circuit order contains any legal analysis. So we don't know for sure. But here's a take:

In order to establish standing, a plaintiff has to plausibly allege that they've suffered, or will imminently suffer, a concrete and personal harm, caused by the defendant's actions, and redressible in federal court. Because the harm must be concrete and personal (to the plaintiff), a person or organization cannot establish standing simply because they don't like the way the government is using their taxes. This kind of "generalized taxpayer" harm is too diffuse, and the Court has rejected it as a basis for standing.

The plaintiff in the Wisconsin case is a taxpayer association that unashamedly pleads generalized taxpayer standing. The district court easily rejected standing in that case, and the Seventh Circuit easily declined to halt the Administration's program pending the plaintiff's appeal. Justice Barrett then easily denied the plaintiff's request for emergency relief.

The plaintiff in the Missouri case, in contrast, is the state itself. It asserted standing on behalf of an organization that the state established to service federal loans. The district court ruled that the state didn't have authority to sue on the organization's behalf, and therefore lacked standing. While this seems right (or at least not obviously wrong), it's a closer case than the Wisconsin plaintiff.

That difference may explain the difference in the two preliminary rulings. The Eighth Circuit might've thought that Missouri could establish standing, where Justice Barrett might've seen that the Wisconsin organization couldn't.

But the key word there is "preliminary." No court has yet ruled on the merits. The Administration justifies the debt-cancellation program under the Higher Education Relief Opportunities for Students Act of 2003, which authorizes the Secretary of Education to "waive or modify" terms of federal student loans in an emergency, here COVID-19. The plaintiffs claim in short that the Administration's debt cancellation exceeds the statutory authority, or, if it doesn't, that the statute grants too much discretion in violation of the recently discovered major questions doctrine. Here's the Office of Legal Counsel's opinion on the issue.

October 24, 2022 in Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0)

Fifth Circuit Says CFPB Funding Violates Appropriations Clause, Separation of Powers

The Fifth Circuit ruled last week that funding mechanism for the Consumer Financial Protection Bureau violates the Appropriations Clause and the separation of powers. While the ruling itself only strikes the CFPB's Payday Lending Rule, the logic of the opinion threatens all CFPB actions and the CFPB itself.

The case is just the latest attack on the CFPB under separation-of-powers principles (and, more generally, attacks on all agencies with any independence under separation-of-powers principles). The Court previously ruled in Seila Law v. CFPB that the for-cause tenure protection for the Director impermissibly intruded on the President's Article II authority over the executive branch, in violation of the separation of powers. This case tests agency independence under a different principle, though, the Appropriations Clause and Congress's power of the purse. The argument--and the court's ruling--says that the CFPB's funding mechanism is unconstitutional, because the CFPB doesn't get its funds through the ordinary congressional appropriations process, as required by the Appropriations Clause; instead, it gets its funds from the Federal Reserve, which, in turn, gets its funds from bank assessments.

While the ruling only applies to the Payday Lending Rule, its logic extends to all things CFPB. Indeed, the ruling will invite other cases challenging all manner of CFPB actions. If the ruling gains traction in other circuits or sticks on appeal, it'll likely ultimately end the agency as we know it.

The case, Community Financial Services Association of America v. CFPB, arose out of a challenge to the CFPB's Payday Lending Rule. That Rule prohibits lenders from making covered loans "without reasonably determining that consumers have the ability to repay the loans according to their terms," and limits a lender's ability to obtain loan repayments by pre-authorized account access. Community Financial Services argued that the Rule was invalid because (1) the Director enjoyed unconstitutional insulation from removal at the time of its adoption, (2) the Rule violated the non-delegation doctrine, and (3) the CFPB, in issuing the rule, violated the Appropriations Clause and the separation of powers.

The Fifth Circuit rejected the first two arguments, but accepted the third. The court noted that the CFPB gets its funding from the Federal Reserve, which gets its own funding from bank assessments (and not congressional appropriations). The CFPB then holds its funds in a separate account maintained by the Fed, and not an account at Treasury (like other agencies). This allows the CFPB to roll-over funding from year to year (unlike most other agencies). 

The court said that this structure "double-insulated" the CFPB from the ordinary congressional appropriations process, and that the structure therefore violated the Appropriations Clause and the separation of powers. "An expansive executive agency insulated (no, double-insulated) from Congress's purse strings, expressly exempt from budgetary review, and headed by a single Director removable at the President's pleasure is the epitome of the unification of the purse and the sword in the executive . . . ."

The court was unconcerned that Congress itself created the CFPB's funding structure. It said that Congress created the funding structure through ordinary legislation, not "in consequence of appropriations made by law," as required by the Appropriations Clause. Moreover, it said that Congress can't cede away its authority in violation of the separation of powers.

The court acknowledged that several other courts upheld the CFPB's funding structure. But it disagreed as to the reasoning. The court said that these other courts focused on the fact that some other federal agencies are self-funded, but that in contrast to these agencies the CFPB is "double-insulated" because it receives its funding from the Fed.

The court "vacate[d] the Payday Lending Rule as the product of the Bureau's unconstitutional funding scheme."

October 24, 2022 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

UPDATE: Senator Graham Asks SCOTUS to Block Subpoena Pending Appeal in GA Election Investigation

Senator Lindsey Graham on Friday asked Justice Thomas (as Eleventh Circuit Justice) and the Supreme Court to stay a district court order requiring him to comply with a subpoena issued by Fulton County Prosecutor Fani Willis to testify before a special grand jury in the investigation into attempts to disrupt the 2020 elections in Georgia.

Senator Graham argues that the subpoena violates the Speech and Debate Clause and sovereign immunity.

UPDATE: Justice Thomas stayed the district court order without referring the matter to the full Court, "pending further order of the undersigned or of the Court." The ruling means that Senator Graham won't have to testify, at least yet, while his appeal of the district court order moves forward.

The case started when Senator Graham called Georgia election officials after the 2020 elections. Willis subpoenaed Graham to testify before the special grand jury about the calls, and Graham sought to quash the subpoena in federal court, arguing that the subpoena violated the Speech and Debate Clause. (That Clause says that members of Congress "shall not be questioned in any other place" for "any Speech or Debate in either House.") After some back and forth, the district court partially quashed the subpoena: it ruled that the Clause protected Graham against compelled testimony over legitimate inquiries he made about the election related to his decision "to certify the results of the 2020 presidential election," but that the Clause did not protect him from testimony over any non-investigatory conduct. (In so ruling, the court said that Graham's investigations into the election were part of his "Speech or Debate in either House," that is, part of his job as a senator, but that his non-investigatory conduct was not.) The Eleventh Circuit denied Graham's emergency application to halt the district court's order.

Graham then filed for emergency relief at the Supreme Court. As to the Speech and Debate Clause, Graham argues that his phone calls were protected, because they were part of his investigation as a senator to determine whether to certify the 2020 election. He also says that the calls led to his co-sponsoring legislation to amend the Electoral Count Act. He argues that the district court's order requires courts to assess his motives in making the calls in order to determine whether they're protected by the Speech and Debate Clause, but that the Clause "forbids inquiry into acts which are purportedly or apparently legislative, even to determine if they are legislative in fact."

In other words, he says that the courts have to take his word for it that his "apparently legislative" acts are, in fact, legislative acts. (He claims that there's a circuit split on the question, and that the D.C. Circuit most recently ruled that courts lack authority to inquire into a member's motives.)

(For more on the Speech and Debate Clause, check out this Congressional Research Service report.)

As to sovereign immunity, Graham argues that he is immune because the subpoena was issued to him as a senator (and representative of the U.S. government), not a citizen.

Graham contends that if the Court doesn't stay the district court order pending appeal, he'll be forced to testify in violation of the Speech and Debate Clause and sovereign immunity--an irreparable harm.

Justice Thomas asked for a response by Thursday. The Court's ruling should follow shortly.

October 24, 2022 in Cases and Case Materials, Congressional Authority, News, Separation of Powers | Permalink | Comments (0)

January 6 Committee Subpoenas Trump

The January 6 Committee last week issued a subpoena for documents and testimony to former President Donald Trump. The move was expected (after an earlier Committee vote in support of a subpoena), although the Committee itself recognized that it was "significant and historic." (Compelled testimony by a former president could raise separation-of-powers issues, because the threat of future compelled testimony could chill a current president's exercise of authority under Article II. The Committee was careful to sidestep this concern, however, by requesting documents and testimony related to former President Trump's behavior outside of Article II (that is, trying to reverse a valid election, which, of course, is the exact opposite of executing Article II authority).) But at the same time, this isn't the first congressional subpoena directed at a former president, or the first time a former president testified before Congress. (For more on this, see the Senate's page on testimony by former presidents before congressional committees and this Congressional Research Service report on Congress's Contempt Power and the Enforcement of Congressional Subpoenas.)

In support of the subpoena, the Committee wrote:

Because of your central role in [various efforts to overturn the 2020 presidential election], the Select Committee unanimously directed the issuance of a subpoena seeking your testimony and relevant documents in your possession on these and related topics. This subpoena calls for testimony regarding your dealings with multiple individuals who have now themselves invoked their Fifth Amendment privilege against self-incrimination regarding their communications with you, including Roger Stone, Lt. Gen. Michael Flynn, U.S. Army (Retired), John Eastman, Jeffrey Clark, and Kelli Ward. These Fifth Amendment assertions--made by persons with whom you interacted--related directly to you and your conduct. They provide specific examples where your truthful testimony under oath will be important.

In addition, as is likely obvious from the topics identified in the bullets above, we are considering multiple legislative recommendations intended to provide further assistance that no future President could succeed at anything even remotely similar to the unlawful steps you took to overturn the election. Your testimony and documentary evidence would further inform the Select Committee's ongoing work.

This last paragraph is designed to short-circuit former President Trump's inevitable argument that the Committee's subpoena lacks a legitimate legislative purpose, and is therefore invalid. Former President Trump and his supporters have lodged this claim against most every congressional inquiry into significant actions of former President Trump and his administration. The claims are spurious and designed only to delay compliance, force litigation on the question, and run the clock.

Still, look for former President Trump to make this claim, among others, in response to the Committee's subpoena. If Republicans win the House in November (and shut down the Committee when they take their seats next year), this kind of foot-dragging will pay off for him.

October 24, 2022 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Wednesday, October 5, 2022

Eleventh Circuit Rebuffs Challenge to Georgia's Voter-List Distribution Practices

The Eleventh Circuit rejected a challenge to Georgia's process of distributing voter lists to precincts, reversing a district court order that the state adjust the timing of the distribution in order to cut down on lengthy wait-times at polling places.

The ruling is a win for the state and a blow to the Coalition for Good Governance, which lodged (and is lodging) multi-prong efforts to challenge and reform Georgia's voting practices.

The case shows how state voting practices that we often don't even think about can frustrate voters and even distort elections, and still evade judicial scrutiny.

The case, Curling v. Raffensperger, grows out of Georgia's practice of reporting eligible voters to precincts before election day. Georgia compiles and distributes lists of eligible voters electronically before election day. But the electronic system sometimes fails, so the state offers a paper backup. But the state prints the paper lists before the close of early voting and before the close of absentee voting in the state. This means that the paper lists aren't up to date. This, in turn, requires poll workers to take time to verify the eligibility of more voters, and to force those voters to use provisional ballots.

All this leads to longer wait-times on election day, causing frustrated voters to leave, according to the plaintiffs. Moreover, provisional ballots might not get counted.

The district court held that this system violated the right to vote and ordered the state to print its backup lists only after the close of early voting--so that the backup print lists exactly matched the electronic data on election day.

The Eleventh Circuit reversed. The court applied the Anderson-Burdick balancing test, which says that a voting practice violates the right to vote when the burdens on the right to vote outweigh the state's interests in the voting practice. But the court said that the plaintiffs couldn't connect the burden on the right to vote--the long lines and wait-times at polling places--to the state's reporting practices. In other words: there may have been a harm, even a significant one, but it wasn't caused by the state's reporting practices. Without a harm caused by the challenged practice, the court said that it didn't even have to weigh the state's interests in its reporting practices.

October 5, 2022 in Cases and Case Materials, Elections and Voting, News | Permalink | Comments (0)

Tuesday, October 4, 2022

KBJ Goes Originalist on the Fourteenth

Justice Ketanji Brown Jackson went originalist on the Fourteenth Amendment (and on Alabama's solicitor general) today at oral arguments in Merrill v. Milligan, the VRA Section 2 to challenge to Alabama's congressional district map.

Justice Jackson explained that the Framers of the Fourteenth Amendment intended to allow Congress to use race-based means to overcome racial inequalities . . . and that Congress actually used race-based means in the Civil Rights Act of 1866. (The point came up in response to Alabama's argument that Section 2 plaintiffs can make their case only with a comparator map that itself is race neutral. Justice Jackson pointed out that an original understanding of the Fourteenth Amendment allows Congress to use race-based methods (like a race-based comparator map) to achieve racial equality (like fair congressional districts).)

Originalism is a constitutional interpretive technique that purports to interpret and apply the Constitution based on its original meaning (or understanding, or intent, depending on your brand). It's usually associated with a politically conservative view of the Constitution. (That's why Justice Jackson's progressive invocation today has gotten some attention.)

For more on this, check out the Constitutional Accountability Center's amicus briefs in Merrill and Students for Fair Admissions v. Harvard and UNC (the affirmative action cases). For that matter, check out CAC's work on progressive originalism generally.

October 4, 2022 in Cases and Case Materials, Congressional Authority, Elections and Voting, News | Permalink | Comments (0)

Monday, October 3, 2022

Court to Hear Voting Rights Act Redistricting Challenge

The Supreme Court will hear oral arguments tomorrow in Merrill v. Milligan, a challenge to Alabama's congressional map under Section 2 of the VRA. The ruling could have major implications for redistricting challenges, and for any continued vitality of the VRA. Here's my oral argument preview, from the ABA's Preview of United States Supreme Court Cases, with permission:


On November 4, 2021, Alabama adopted a map of the state’s seven congressional districts based on the 2020 census. The map, also called “HB 1” or “the Plan,” included just one district with a majority of black of voters (a “majority-minority district”), even though black Alabamians constitute 27 percent of the state’s voting-age population. That district, District 7, includes a high concentration of black voters in a portion of the state’s Black Belt region. (The Black Belt region is an area of the state named for its fertile black soil. The region contains a large portion of the state’s black population. It encompasses the two “anchor” cities of Montgomery and Mobile.) This high concentration allows black voters in District 7 to elect a candidate of their choice. But at the same time, HB 1 divides, or “cracks,” the rest of the Black Belt region across three other districts with a majority of white voters. Given the racial politics and voting patterns in Alabama, this prevents black voters from electing a candidate of their choice in those districts and in any other districts in the state.

HB 1’s single majority-black congressional district is nothing new. District 7 was the state’s only majority-minority district when the state adopted maps after the 2000 and 2010 censuses, too. (Before that, after the 1970 and 1980 censuses, Alabama adopted maps that resulted in all-white congressional delegations. Then, in response to a Voting Rights Act claim after the 1990 census, a federal court ordered a map that created District 7 as the state’s sole majority-minority district. As a result of the court’s map, Alabama elected its first black congressmember since Reconstruction.) In every election since District 7 became a majority-minority district, black voters have elected a candidate of their choice with increasing majorities.

Plaintiffs challenged HB 1 in three different cases in federal court. As part of their arguments, the plaintiffs offered eleven illustrative maps that created a second majority-minority district in the state while also comporting with Alabama’s districting guidelines at least as well as HB 1. After a thorough evidentiary hearing, a three-judge district court issued a lengthy and comprehensive ruling that Alabama’s map likely violated Section 2 of the VRA—indeed, that the question was not even “a close one.” (The ruling covered two of the cases, and the judge in the third case adopted it. The court applied the Section 2 framework, described below.) The court issued a preliminary injunction and ordered Alabama to draw a map that remedied the likely Section 2 violation. The court did not require the state to adopt any of the plaintiffs’ illustrative maps.

On February 22, 2022, the Supreme Court stayed the district court’s injunction and noted probable jurisdiction.


Let’s start with a little background. Section 2 of the VRA originally prohibited government voting practices or procedures that “deny or abridge the right of any citizen of the United States to vote on account of race or color.” In 1980, the Court interpreted Section 2 to prohibit only “purposefully discriminatory” government actions. City of Mobile v. Bolden, 446 U.S. 55 (1980). This interpretation required plaintiffs to demonstrate government intent to discriminate—a high bar, given that state and local governments had long figured out how to conceal intentional discrimination and nevertheless achieve discriminatory results.

In response to the Court’s interpretation, Congress amended Section 2 to prohibit government voting practices that produced a discriminatory result. Section 2 now prohibits government voting practices and procedures that “result[] in a denial or abridgment of the right . . . to vote on account of race or color.” 52 U.S.C. § 10301(a). Moreover, Congress specified how to determine when a discriminatory result violated Section 2. Under the amendment, a voting practice violates Section 2 “if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in [a] State or political subdivision are not equally open to participation by members of a class of citizens protected by” Section 2, “in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 52 U.S.C. § 10301(b). But Congress also specified that while “[t]he extent to which members of a protected class have been elected to office” is “one circumstance which may be considered,” Section 2 does not “establish[] a right to” proportional representation by race.

The Court construed the amended Section 2 and adopted a framework for its application in districting cases in Thornburg v. Gingles. 478 U.S. 30 (1986). The Court ruled that a Section 2 plaintiff must first establish three “preconditions” for a Section 2 violation. First, “the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.” Second, “the minority group must be able to show that it is politically cohesive.” Third, “the minority [group] must be able to demonstrate that the white majority votes sufficiently as a bloc” to allow it “usually to defeat the minority’s preferred candidate.”

The Court held that if a plaintiff satisfies the three Gingles preconditions, then a court must determine whether, in “the totality of the circumstances,” a districting scheme leaves racial minority voters with “less opportunity than white voters to elect representatives of their choice.” In conducting this analysis, the Court said that courts could consider the several factors identified in the Senate Report that accompanied the 1982 amendments, sometimes called “the Senate factors.” These include considerations like “the history of voting-related discrimination in the” jurisdiction, “the extent to which voting in the” jurisdiction “is racially polarized,” the “extent to which minority group members bear the effects of past discrimination,” the “extent to which members of the minority group have been elected to public office,” and whether the “policy underlying” the contested voting scheme “is tenuous.”

The Court and lower courts have consistently applied the Gingles framework to vote-dilution cases, including cases challenging single-member districting schemes. The three-judge district court applied this framework in this case.

Against this backdrop, Alabama argues that HB 1 does not violate Section 2. It says that Section 2 of the VRA only requires that political processes are “equally open” to all voters, and that Section 2 only prohibits discrimination “on account of race.” According to the state, this “concept of equal openness is not measured simply by disparate impact or lack of proportionality to a statewide minority population.” Instead, “districts are ‘equally open’ when they resemble neutrally drawn districting plans, consistent with the State’s naturally occurring demographics and longstanding districting principles.”

Moreover, Alabama argues that the Gingles preconditions serve to protect these principles. According to the state, this means that any illustrative maps that plaintiffs provide in Section 2 cases to demonstrate that a state could create more majority-minority districts (as in this case) themselves must be drawn with race-neutral criteria. The state contends that race cannot predominate in drawing illustrative maps, or else “Gingles is a useless tool for determining whether race-conscious remedies are appropriate in the first place.” Put yet another way, Section 2 “operates as a prohibition against redistricting plans that discriminate ‘on account of race,’ not as an affirmative obligation for race-based redistricting to maximize or make proportional the number of majority-minority districts.” In practice, this means that Section 2 never requires a state to add a majority-minority district just because it could.

Applying these principles, Alabama argues that HB 1 does not violate Section 2, and that the plaintiffs’ illustrative maps only prove that. The state says that the plaintiffs’ own witnesses said that the state, using traditional districting criteria, could have drawn “millions of possible race-neutral plans” that, like HB 1, contained only one majority-minority district. At the same time, it claims that because the plaintiffs’ illustrative maps in this case “themselves discriminate in favor of one racial group,” the maps “shed no light on whether the State’s plan discriminates against that group.” Moreover, the state claims that the plaintiffs could only produce a map with a second majority-minority district by impermissibly “starting with a ‘nonnegotiable’ racial target and backfilling with other districting criteria after that target had been met.”

Finally, Alabama argues that if the district court properly applied Section 2, then Section 2 must be unconstitutional as applied to single-member districts. According to the state, that’s because Congress would have exceeded its authority in enacting Section 2 under the Fourteenth and Fifteenth Amendments if, as the state says the district court ruled, Section 2 requires racial discrimination in order to enforce its mandate against racial discrimination. Alabama contends that the Court “can avoid this constitutionally dubious outcome” by affirming that Section 2 requires only that states draw their districts neutrally.

The two sets of plaintiffs argue (in two separate briefs) that the district courts did not err in finding that HB 1 likely violates Section 2. They claim that HB 1 divides black voters in the Black Belt across several districts. They say that the state’s “racialized political system” prevents black voters from electing a candidate of their choice in those districts. They contend that this is exactly what Section 2 forbids.

The plaintiffs argue that Alabama is wrong in arguing otherwise. As to the state’s attacks on the plaintiffs’ illustrative maps, the plaintiffs say that they used these maps to satisfy the first Gingles precondition, and that the state attacks the illustrative maps based on districting criteria that are not supported by its own districting guidelines. And as to Alabama’s attacks on the district courts’ ultimate totality-of-the-circumstances conclusion, the plaintiffs contend that the state fails to challenge any particular finding. The plaintiffs assert that the state instead mischaracterizes the district courts’ ruling by claiming that the courts found a Section 2 violation because HB 1 lacks proportionality and by suggesting that the courts’ ruling “hinged on Plaintiffs’ satisfaction of the first precondition alone.”

The plaintiffs argue next that the Court should reject Alabama’s efforts to rewrite Section 2 and alter the time-tested Section 2 framework. The plaintiffs say that Gingles and its progeny are entitled to “enhanced” stare decisis protection, and that the state cannot overcome this. They claim that the state’s interpretation of Section 2 would reinstate the intent test that Congress specifically disavowed in the 1982 amendments. They assert that under Alabama’s approach, states could easily dodge Section 2 liability by providing any “race neutral” justifications, no matter how spurious, effectively rendering Section 2 meaningless. They contend that the state’s interpretation would only continue to submerge long-oppressed racial minority groups into districts where they will be outvoted by the majority. And they say that Alabama has not provided any good reason to alter or abandon the established Section 2 framework in the context of single-member districts.

Contrary to the state, the plaintiffs argue that the established Section 2 framework does not violate the Constitution. The plaintiffs point out that under the framework, plaintiffs (and not the state) must demonstrate that a racial minority group can constitute more than half of the voting-age population in a district. Because this requirement applies to plaintiffs (and not the state), there’s no constitutional violation. (The Fourteenth and Fifteenth Amendments only apply against state actors.) Moreover, the plaintiffs contend that any remedy for a Section 2 violation does not entail a “predetermined, ‘non-negotiable’ racial target.” Instead, a Section 2 remedy must only provide racial minority voters the opportunity to elect a candidate of their choice. The plaintiffs say that this requires at most “an awareness” of race, not racial predominance. Such “an awareness” does not violate the Constitution.

Finally, the plaintiffs argue Section 2 fits comfortably within Congress’s authority to enforce the Fourteenth and Fifteenth Amendments. They say that while Section 2 does not require plaintiffs to prove intent to discriminate by race, it does require them to “establish various indicia of a racially exclusionary political system.” The plaintiffs contend that Section 2 is thus closely tied to the anti-discrimination provisions in the Fourteenth and Fifteenth Amendments.

(The government weighed in on the side of the plaintiffs and offered substantially similar arguments.)


This is the Court’s third major case in recent years that tests the metes and bounds of the Voting Rights Act. In the first two cases, the Court sharply limited the VRA. If the Court follows this trend, look for the Court to rule for Alabama, and to limit the application of Section 2 to redistricting plans.

In the first case, Shelby County v. Holder, 570 U.S. 529 (2013), the Court held that Congress exceeded its authority under the Fourteenth Amendment when it set a coverage formula for states and jurisdictions that had to obtain permission from the federal government or a three-judge court before they made any changes to their election laws. (Congress designed this “preclearance” requirement to detect and halt putatively “neutral” changes in state and local laws that would lead to a retrogressive effect on the voting rights of racial minorities.) The ruling effectively eliminated the preclearance requirement from the VRA and allowed previously covered jurisdictions more easily to enact “neutral” voting restrictions that disparately impact racial minority voters.

In the second case, Brnovich v. Democratic National Committee, 141 S. Ct. 2321 (2021), the Court ruled that Arizona’s bans on ballot collection and out-of-precinct voting did not violate Section 2 of the VRA. In so ruling, the Court adopted a new approach to Section 2 claims in the context of voting practices (but not districting). This new approach sharply curtails Section 2’s impact and ability to remedy putatively “neutral” voting laws that disparately impact racial minority voters.

In this third case, Alabama calls on the Court to significantly change, or even overturn, the long-applied Section 2 framework from Gingles. In particular, the state calls on the Court to focus more on discriminatory intent, and less on discriminatory impact, in judging Section 2 claims, and to limit Section 2 plaintiffs and courts in using racial considerations in order to address racial discrimination. Like the Court’s approaches in Shelby County and Brnovich, Alabama’s approach would sharply limit the reach of the VRA and make it substantially harder for plaintiffs to establish a violation. If the Court follows its trendline, look for this result.

In addition to the Court’s trendline, there’s another critical event that likely predicts an Alabama victory. Remember that the Court stayed the district court injunction. While the Court said nothing on the merits of the case, the stay alone suggests that the Court is likely to rule for Alabama.

That said, there’s still the question of how the Court is likely to rule. On one end of the spectrum, the Court could simply rule that the district courts erred in applying the established Section 2 framework—that the lower courts misapplied the established law to the facts. In the middle, the Court could substantially alter, or even overturn, the established Section 2 framework and replace it with a new approach for all redistricting challenges. At the far end, the Court could rule Section 2 unconstitutional, because its prohibition on discriminatory impact exceeds Congress’s authority to enforce the Fourteenth and Fifteenth Amendments’ ban on discriminatory intent. Such a far-end ruling would effectively render the VRA toothless, and could have wide-ranging implications for antidiscrimination law well beyond voting rights.

Still, any result will almost surely limit Section 2’s reach in the context of redistricting. And along with Shelby County’s effective elimination of preclearance and Brnovich’s sharp limit on Section 2’s application to voting practices, these three cases could decimate the VRA.

October 3, 2022 in Cases and Case Materials, Elections and Voting, News | Permalink | Comments (0)