Monday, June 17, 2019

SCOTUS Finds Virginia House Lacks Standing to Appeal Racial Gerrymandering

In its divided opinion in Virginia House of Delegates v. Bethune-Hill, the Court concluded that the Virginia House of Delegates, one of two chambers in the state legislature, did not have standing to appeal the judgment of the three judge district court that eleven districts in its 2011 redistricting plan were racially gerrymandered and violated the Equal Protection Clause.

Recall that in its previous appearance before the United States Supreme Court, Virginia's 2011 redistricting plan caused the Court to clarify the standard for deciding whether racial considerations in reapportionment violate the Equal Protection Clause. In Bethune-Hill v. Virginia State Board of Elections (2017), the Court affirmed the three-judge court's decision as to one of the districts as constitutionally considering race, but remanded the determination of the constitutional status of the other eleven districts.  It was on this remand that the three-judge court found that these other eleven districts also violated the Equal Protection Clause. 

Recall also that at oral argument, the questions of standing to appeal were intermixed with the factually-intense merits, so that details about the processes leading to the actual redistricting map and its impacts complexified the arguments.

The Court did not reach the merits, but decided the case on lack of standing to appeal. As Justice Ginsburg, writing for the majority, phrased it, after the 2018 three-judge court decision, Virginia decided it "would rather stop than fight on," and Virginia did not appeal. However, the Virginia House of Delegates did pursue an appeal.  Ginsburg — joined by Justices Thomas, Sotomayor, Kagan, and Gorsuch — held that the House of Delegates did not have standing to appeal.

The majority held that the House of Delegates had no standing to represent the interests of the State of Virginia. A State has the authority to designate the entities to represent it and in the case of Virginia it has given this authority exclusively to the state Attorney General.

Further, the majority held that the Virginia House of Delegates did not have standing in its own right, as it did not have a distinct injury. "Just as individual members of Congress do not have standing to assert the institutional interests of the legislature, "a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole." The Court also rejected specific injury to the House of Delegates because redrawing district lines would harm it.

Justice Alito, writing the dissenting opinion joined by Chief Justice Roberts, and Justices Breyer and Kavanaugh, argued that the House of delegates did experience specific injury in fact, given that a representative represents a specific set of constituents with specific interests and this would be changed by redistricting. 

The contentious redistricting in Virginia (as well as other states) is not brought any closer to resolution by the Court's decision, but it does mean that Virginia's choice to end this round of the litigation must be a unitary one. 

Virginia_1612_map

image: map of Virginia circa 1612 via

June 17, 2019 in Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Opinion Analysis, Standing, Supreme Court (US) | Permalink | Comments (0)

SCOTUS: No State Action in First Amendment Challenge to Public Access Channel

In its divided opinion in Manhattan Community Access Corporation v. Halleck, a majority of the United States Supreme Court held that the actions of a private nonprofit corporation operating a public access television channel did not constitute sufficient state action warranting application of the First Amendment.

Recall that in the Second Circuit's divided opinion (2018), the majority concluded that the "public access TV channels in Manhattan are public forums and the MCAC's employees were sufficiently alleged to be state actors taking action barred by the First Amendment to prevent dismissal" of the complaint, thus reversing the district judge. Importantly, the public access channels are part of  Time Warner's cable system and Time Warner is a private company.  At the heart of the First Amendment claim are allegations that the Manhattan Community Access Corporation, known as Manhattan Neighborhood Network, MNN, suspended the plaintiffs, Halleck and Melendez, from airing programs over the MNN public access channels because of disapproval of the content.  During oral argument the Justices grappled with the question of doctrines: whether general constitutional state action doctrine applied or whether public forum doctrine under the First Amendment applied or whether there is a convergence of the two doctrines. 

Writing for the majority, Justice Kavanaugh, joined by C.J. Roberts, and Justices Thomas, Alito, and Gorsuch, concluded that general constitutional state action doctrine was the threshold — and determinative — issue.  The Court rearticulated the applicable state action doctrine governing when a private entity can qualify as a state actor as limited to a few circumstances:

(i) when the private entity performs a traditional, exclusive public function (citing Jackson v. Metropolitan Edison Co. (1982));

(ii) when the government compels the private entity to take a particular action (citing Blum v. Yarestsky (1982);

(iii) when the government acts jointly with the private entity (citing Lugar v. Edmondson Oil Co. (1982)).

Interestingly, neither the majority nor dissenting opinion cited Edmonson v. Leesville Concrete Co. (1991), in which a six-Justice majority articulated a test for meeting the state action threshold when there was a private actor involved. 

Justice Kavanaugh's opinion focused on the first circumstance, and stressed that the requirement means that the government must have traditionally and exclusively performed the function.  Given that the relevant function was defined as the "operation of public access channels on a cable system," the Court had little difficulty in concluding that the requirement was not met under a "commonsense principle":

Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights.

The majority further rejected the plaintiffs' argument that state action was present because New York City designated MNN to operate the public access channels and New York state heavily regulates public access channels. The majority stated, however, that even where there is a contract or monopoly, the private actor is not converted into a private actor into a state actor "unless the private entity is performing a traditional, exclusive government function."

The majority also rejected the plaintiffs' argument that the public access channels are the "property" of the state of New York rather than the property of the cable network (Time Warner) or of MNN itself. The majority found, however, that "nothing in the franchise agreements" suggests that the city "possesses any property interest" in Time Warner's cable system or in the public access channels operated by Time Warner.  The government could have decided to operate the public access channels itself, in which case that might be different, but that did not happen here.

Dissenting, Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, argued that the majority misconstrued the case before the Court and this case is actually "about an organization appointed to administer a constitutional public forum" and not simply "about a private property owner that simply opened up its property to others." For the dissenting Justices, when MNN accepted the contractual agency relationship, it "stepped into the City's shoes and thus qualifies as a state actor, subject to the First Amendment like any other."  The dissent argued that MNN was not simply a private actor that "simply sets up shop against a regulatory backdrop," but that it occupies its role because it was asked by New York City to do so, and was deputized by the city to administer the public access channels.  The dissent also argued that the requirement that the private actor be performing a traditional and exclusive function only applies when the "private actor ventures of its own accord into territory shared (or regulated) by the government." Otherwise, the doctor hired to provide medical care to state prisoners would not be a state actor, unlike the Court's unanimous holding in West v. Atkins (1988), because "Nobody thinks that orthopedics is a function 'traditionally exclusively reserved to the State.'"

The Court's divided opinion reveals an established political rift in state action doctrine and theory.  In the penultimate paragraph in Justice Kavanaugh's opinion for the majority, he writes:

It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. We decline to do so in this case.

On the other hand, Justice Sotomayor for the four dissenting Justices concludes:

This is not a case about bigger governments and smaller individuals; it is a case about principals and agents. New York City opened up a public forum on public- access channels in which it has a property interest. It asked MNN to run that public forum, and MNN accepted the job. That makes MNN subject to the First Amendment, just as if the City had decided to run the public forum itself.

While the majority emphasizes that its decision is narrow and factbound, that does not make it any less misguided. It is crucial that the Court does not continue to ignore the reality, fully recognized by our precedents, that private actors who have been delegated constitutional responsibilities like this one should be accountable to the Constitution’s demands. I respectfully dissent.

Thus, while the decision seems narrow, it could be a harbinger of a narrowing of state action doctrine to release private entities that contract with the state from constitutional constraints unless the entities are performing a traditional and exclusive function of the government, even if the entities are "in the shoes" of the state.

June 17, 2019 in Federalism, First Amendment, Fourteenth Amendment, Opinion Analysis, State Action Doctrine, Supreme Court (US) | Permalink | Comments (0)

Friday, June 7, 2019

Washington Supreme Court on Remand in Arlene's Flowers: No First Amendment Violation

In its unanimous opinion in State of Washington v. Arlene's Flowers, the Washington Supreme Court concluded there was no First Amendment infringement when the state found Arlene's Flowers violated the Washington Law Against Discrimination (WLAD), by refusing to sell wedding flowers to a same-sex couple.

Recall that in June 2018, the United States Supreme Court without opinion, in Arlene's Flowers v. Washington, granted the petition for writ of certiorari, vacated the judgment of the Washington Supreme Court, and remanded the case for consideration in light of its decision earlier than month in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n. Given the holding in Masterpiece Cakeshop that the Colorado Civil Rights Commission, or one specific commissioner, exhibited "hostility" to the cakemaker in that case, the Washington Supreme Court was now tasked with determining whether there was a similar hostility towards the religion of the florist in Arlene's Flowers, Baronnelle Stutzman, and if so, applying strict scrutiny.

Van_Gogh_-_Zwölf_Sonnenblumen_in_einer_Vase1The Washington Supreme Court, on page 2 of its 76 page opinion, proclaimed: "We now hold that the answer to the Supreme Court's question is no; the adjudicatory bodies that considered this case did not act with religious animus when they ruled that the florist and her corporation violated the Washington Law Against Discrimination . . . ." 

The Washington Supreme Court's lengthy opinion admittedly includes passages from its 2017 opinion which thoroughly discussed and applied the First Amendment standards, but it also carefully delves into the question of government hostility toward religion.  The court found irrelevant one contested incident involving the Attorney General of Washington which occurred after the Washington Supreme Court's 2017 opinion, noting that the issue was one of adjudicatory animus and not executive branch animus; any claim that there was selective prosecution lacked merit. The Washington Supreme Court also rejected Stutzman's claim that the scope of the injunction in the 2017 opinion mandated that Stutzman "personally attend and participate in same-sex weddings."

The Washington Supreme Court's opinion concludes that "After careful review on remand, we are confident that the courts resolved this dispute with tolerance, and we therefore find no reason to change our original judgment in light of Masterpiece Cakeshop. We again affirm the trial court's rulings."

It is a solid well-reasoned unanimous opinion, but given this hard-fought and well-financed litigation, it's likely that Arlene's Flowers will again petition the United States Supreme Court for certiorari.

image: Vincent Van Gogh, Twelve Sunflowers in a Vase, circa 1887, via.

June 7, 2019 in Courts and Judging, Family, Federalism, First Amendment, Fourteenth Amendment, Gender, Opinion Analysis, Recent Cases, Religion, Sexual Orientation, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0)

Seventh Circuit Upholds Ballot Access Requirement

The Seventh Circuit this week upheld a signatures requirement to get on the ballot in the Cook County sheriff's race.

The case, Acevedo v. Cook County Officers Electoral Board, arose when Acevedo, a would-be candidate for Cook County sheriff, failed to obtain the necessary signatures of 0.5% of qualified voters in Cook County. Acevedo noted that the signatures formula for Cook County sheriff required him to obtain more signatures (0.5% of qualified voters equals 8,236 signatures) than candidates for statewide offices (who must get only 5,000 signatures). He claimed that the signatures requirement for Cook County therefore violated strict scrutiny (because the lower signatures requirement for statewide offices showed that the government could meet its interest in a less burdensome way).

The Seventh Circuit rejected the claim. Applying the Anderson-Burdick balancing test, the court said that strict scrutiny was far too high a standard, and that the government easily met it:

We have stressed before that "[w]hat is ultimately important is not the absolute or relative number of signatures required by whether a 'reasonably diligent candidate could be expected to be able to meet the requirements and gain a place on the ballot.'" If the burden imposed is slight, Anderson and Burdick make clear that no justification beyond the state's interest in orderly and fair elections is necessary--even if less burdensome alternatives are available.

The ruling ends this challenge and upholds the signatures requirement for Cook County sheriff.

June 7, 2019 in Cases and Case Materials, Elections and Voting, First Amendment, Fourteenth Amendment, News, Opinion Analysis | Permalink | Comments (0)

Friday, April 26, 2019

Kansas Supreme Court Finds Fundamental Right to Abortion Under State Constitution

In its extensive opinion in Hodes & Nauser v. Schmidt, the Supreme Court of Kansas held that the right to abortion in protected under its state constitution and regulations of the fundamental right should be subject to strict scrutiny.

The per curiam opinion is exceedingly clear that the opinion rests on independent state constitutional grounds and that it is interpreting §1 of the Kansas state Constitution, adopted in 1859:  "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." The court specifically finds that this provision creates judicially enforceable "natural rights" such as the right to "personal autonomy" to make decisions regarding our bodies, health care, family formation, and family life, including a woman's right to decide whether to continue a pregnancy.

Having held that the right to an abortion is encompassed within the fundamental right bodily autonomy, the Kansas Supreme Court held that strict scrutiny should apply, which the court articulated as prohibited the state from restricting that right unless it can show it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest.

At issue in the case is Kansas S.B. 95, passed in 2015, now K.S.A. 65-6741 through 65-6749, which prohibits physicians from performing a specific abortion method referred to in medical terms as Dilation and Evacuation (D & E) except when "necessary to preserve the life of the pregnant woman" or to prevent a "substantial and irreversible physical impairment of a major bodily function of the pregnant woman."

The trial court had issued a preliminary injunction, which the Kansas Supreme Court upheld, but remanded the case for a fuller evidentiary hearing applying strict scrutiny.

Supreme-court

via & caption: Kansas Supreme Court
Seated left to right: Hon. Marla J. Luckert, Hon. Lawton R. Nuss, Chief Justice; Hon. Carol A. Beier.
Standing left to right: Hon. Dan Biles, Hon. Eric S. Rosen, Hon. Lee A. Johnson, and Hon. Caleb Stegall. 

In a concurring opinion, Justice Dan Biles argued that the majority should be more explicit in articulating how strict scrutiny should be applied in the abortion context, suggesting what "our state test should look like using an evidence-based analytical model taken from Whole Woman's Health v. Hellerstedt" (2016).  Justice Biles provided a very detailed roadmap that would be attractive to the trial court. Justice Biles also placed the decision within developments in state constitutional law on abortion:

It is also worth mentioning our court has not gone rogue today. By my count, appellate courts in 17 states have addressed whether their state constitutions independently protect a pregnant woman's decisions regarding her pregnancy from unjustifiable government interference. Of those, 13 have plainly held they do. [citations omitted].

The sole dissenting Justice of the seven Justices of the Kansas Supreme Court (pictured above) was Justice Caleb Stegall, who relied on numerous dissenting opinions in both the United States Supreme Court and Kansas Supreme Court. He began his opinion by stating "This case is not only about abortion policy—the most divisive social issue of our day—it is more elementally about the structure of our republican form of government." In essence, he considers the majority to be taking an activist stance. The majority opinion does devote more than a little attention to refuting and engaging with the dissent's arguments.

Because the case cannot be reviewed by the United States Supreme Court (given that the state's highest court decided it on the independent ground of its state constitution, unless it is argued it infringes on another constitutional right), subsequent constitutional law issues will be concentrated on what happens in the trial court and what might happen in other states. 

April 26, 2019 in Abortion, Courts and Judging, Due Process (Substantive), Family, Federalism, Fourteenth Amendment, Jurisdiction of Federal Courts, Opinion Analysis, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0)

Tuesday, April 23, 2019

Third Circuit Upholds Philadelphia's Refusal to Refer Foster Children to Organizations that Discriminates on Basis of Sexual Orientation

In its opinion in Fulton v. City of Philadelphia, a unanimous panel of the Third Circuit affirmed the district court's denial of a preliminary injunction against Philadelphia for stopping its referral of foster children to organizations that discriminate on the basis of sexual orientation in their certification of foster parents.

Much of the litigation centers on Catholic Social Services (CSS) which will not certify same-sex couples, even those who are legally married to each other, as foster parents.  Once Philadelphia became aware of the CSS policy, through investigative reporting, the city eventually suspended foster care referrals to CSS in accordance with the city's nondiscrimination policy which includes sexual orientation.  The plaintiffs, including individuals about whom the Third Circuit had standing doubts, sued for a preliminary injunction, which the district judge denied after a three day hearing.  On appeal, the Third Circuit agreed that the plaintiffs had not demonstrated a likelihood of success on their First Amendment claims under the Free Exercise Clause, as well as the Establishment Clause and the Speech Clause.

Writing for the panel, Judge Thomas Ambro wrote that the Free Exercise Clause does not relieve one from compliance with a neutral law of general applicability, which the court found the nondiscrimination law to be.  Unlike Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission  and Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), there was no hostility towards religion evinced in the case.  As the court stated:

CSS’s theme devolves to this: the City is targeting CSS because it discriminates against same-sex couples; CSS is discriminating against same-sex couples because of its religious beliefs; therefore the City is targeting CSS for its religious beliefs. But this syllogism is as flawed as it is dangerous. It runs directly counter to the premise of  [Employment Division v. ] Smith that, while religious belief is always protected, religiously motivated conduct enjoys no special protections or exemption from general, neutrally applied legal requirements. That CSS’s conduct springs from sincerely held and strongly felt religious beliefs does not imply that the City’s desire to regulate that conduct springs from antipathy to those beliefs. If all comment on religiously motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against the religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well. As the Intervenors rightly state, the “fact that CSS’s non- compliance with the City’s non-discrimination requirements is based on its religious beliefs does not mean that the City’s enforcement of its requirements constitutes anti-religious hostility.”

On the Establishment Clause, Judge Ambro briefly concluded that there was no evidence that Philadelphia was attempting to impose its preferred version of Catholic teaching on CSS.

And in a similarly brief discussion of the free speech claim, Judge Ambro's opinion found there was no viable compelled speech claim or retaliation claim.

Finally, the Third Circuit opinion considered whether there was a possibly successful claim under Pennsylvania's RFRA statute and found that there was little chance of success on the merits, even given the higher standard of review.

This litigation has attracted much interest, with intervenors and amici, and the plaintiffs filed an emergency application to the Supreme Court for an injunction pending appeal or an immediate grant of certiorari in 2018, which was denied.  Another certiorari petition is almost sure to follow the Third Circuit's decision.

 

 

April 23, 2019 in Establishment Clause, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Speech, Supreme Court (US) | Permalink | Comments (0)

Saturday, March 30, 2019

Federal Judge Finds Charter School's Gendered Dress Code Violates Equal Protection

In his opinion in Peltier v. Charter Day School, Inc., Senior United States District Judge Malcolm J. Howard in the Eastern District of North Carolina held that the dress code of the Charter Day School corporation mandating that girl students wear skirts violated the Equal Protection Clause.

The bulk of Judge Howard's 36 page opinion concerned the threshold matter of state action given that Charter Day School (CDS) is a private nonprofit corporation. CDS described itself as a "traditional values" charter school and operated under North Carolina statutes allowing and regulating charter schools. Judge Howard determined that CDS had responsibility for the dress code (unlike another defendant), was viewed as a public school under state law, was performing an historical, exclusive, and traditional state function, and was subject to pervasive regulation including regarding suspensions for dress code violations.

On the Equal Protection Clause issue, Judge Howard noted that grooming and dress codes did not fit neatly into the doctrine of sex discrimination articulated in United States v. Virginia (VMI) (1996), noting that the CDS argued that intermediate scrutiny should not apply, but rather a "comparable burden" analysis. However, Judge Howard determined that even under a "comparative burden" analysis, the skirts requirement for girls did not "pass muster." Judge Howard stated that the skirts requirement was not consistent with community norms: women and girls have worn both pants and skirts in school and professional settings since the 1970s.

In considering the interests CDS asserted, including that the skirts requirement "helps the students act appropriately toward the opposite sex," Judge Howard found that there was no evidence to substantiate this, including a comparison to the days when there were exceptions to the only-skirts requirement. Moreover, the CDS board members could not explain when deposed how the skirts requirement furthered the goal. And while CDS stressed their students' good performance, there was no link between the performance and the skirts policy.

As Judge Howard implied, mandating girl students wear skirts has become anachronistic. However, as Judge Howard also noted, this does not mean that all gender-specific dress codes violate equal protection.  For more about school dress codes and enforcing gender norms, see Dressing Constitutionally.

Girls_in_pants_on_Franklin_Avenue _Minneapolis._(4419465360)

image: girls in pants in Minneapolis, 1929, via

March 30, 2019 in Equal Protection, Fourteenth Amendment, Gender, Opinion Analysis, State Action Doctrine | Permalink | Comments (0)

Monday, March 18, 2019

SCOTUS Hears Oral Argument on Virginia Racial Gerrymandering, Bethune-Hill Redux

The United States Supreme Court heard oral argument in Virginia House of Delegates v. Bethune-Hill involving the ultimate issue of whether the redistricting plan of Virginia is racial gerrymandering in violation of the Equal Protection Clause of the Fourteenth Amendment.  Like many states, the redistricting legal landscape in Virginia is complex; a good explainer from Loyola-Los Angeles Law School is here.

Recall that two years ago, in March 2017, the Court in Bethune-Hill v. Virginia State Board of Elections, the Court clarified the standard for deciding whether racial considerations in reapportionment violate the Equal Protection Clause. It affirmed the three-judge court's decision as to one of the districts as constitutionally considering race, but remanded the determination of the constitutional status of the other eleven districts. 

On remand, the three-judge court divided, with the detailed and extensive opinion authored by Judge Barbara Milano Keenan for the majority ultimately concluding that the "Commonwealth of Virginia's House of Delegates  Districts numbers 63, 69, 70, 71, 74, 77, 80, 89, 90, 92, and 95 as drawn under the 2011 Redistricting Plan, Va. Code Ann. § 24.2—3o4.03, violate the Equal Protection Clause. "

Speaker_Bill_Howell_opens_session_at_Virginia_House_of_DelegatesDuring that proceeding, the Virginia House of Delegates — one house of the Virginia legislature — was allowed to intervene, but a question on appeal to the United States Supreme Court is whether the House of Delegates, represented by Paul Clement, has standing to appeal, especially given that the Virginia Board of Elections, represented by Toby Heytens, the appellate the first time the case reached the United States Supreme Court, is now the appellee in agreement with Bethune-Hill, represented by Marc Elias. Morgan Ratner, an assistant Solicitor General, appeared on behalf of the United States and fully supported neither party, but did argue that the House of Delegates lacked standing, because "the House as an institution isn't harmed by changes to individual district lines, and while states can authorize legislatures to represent them in court, Virginia hasn't done so."  While Justice Alito seemed to take the position that all the House of Delegates needed to establish was some injury on fact, such as  the cost of publishing a new map showing the new districts, with Justice Sotomayor labeling Clement's statement that Virginia had "forfeited" the ability to object to the appeal as an "extreme" view.  There was seemingly some sympathy to Toby Heytens' view that the Court was essentially being asked to referee a dispute between branches of the Virginia state government, with Justice Alito also asking whether or not the question of which entity may represent the state is not a question that should be certified to the Virginia Supreme Court.  The precedential value and applicability of Minnesota State Senate v. Beens (1972), which Justice Ginsburg pointed out has not been cited in 30 years and was from an era in which standing was more "relaxed" and which others distinguished in terms of the impact on the legislative body.

On the merits, one issue was credibility of witnesses and deference to the court's factual determinations, especially given that the first three judge court had reached some opposite conclusions, including in some districts whether or not racial considerations predominated (and thus strict scrutiny would apply). This might seemingly be explained by the different standard articulated by the Court's previous decision in Bethune-Hill before remand, but this did not seem to be addressed. As typical, the precise facts in the map-making and the interplay between the Voting Rights Act and the Equal Protection Clause made the argument exceedingly detailed. For example, there are particular questions about the BVAP [Black Voting Age Population] in specific districts and what percentage is acceptable in each district as individualized or as comparative to other districts.

If the Court does not resolve the case on lack of standing, one can expect another highly specific opinion regarding racial gerrymandering in the continuing difficult saga of racial equality in voting.

[image: Virginia House of Delegates 2012 via]

March 18, 2019 in Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Race, Standing | Permalink | Comments (0)

SCOTUS Agrees to Hear Unanimous Jury Incorporation Challenge

The United States Supreme Court granted the petition for certiorari in Ramos v. Louisiana posing the question whether the right to a unanimous jury verdict is incorporated as against the states through the Fourteenth Amendment.

Recall that in McDonald v. City of Chicago (2010), in which a 5-4 Court held that the Second Amendment is incorporated as against the states through the Fourteenth Amendment (with four Justices finding this occurred through the Due Process Clause and Justice Thomas stating the proper vehicle was the Privileges or Immunities Clause), Justice Alito writing for the plurality discussed the state of incorporation doctrine in some detail.  In footnote 12, Alito's opinion discussed the provisions of the amendments in the Bill of Rights that had been incorporated, providing citations, and in footnote 13, the opinion discussed the provisions that had not yet been incorporated, other than the Second Amendment then under consideration:

  • the Third Amendment’s protection against quartering of soldiers;
  • the Fifth Amendment’s grand jury indictment requirement;
  • the Seventh Amendment right to a jury trial in civil cases; and
  • the Eighth Amendment’s prohibition on excessive fines.

Just this term in February, the Court whittled this small list down to three, deciding unanimously in Timbs v. Indiana that the Eighth Amendment's prohibition on excessive fines is incorporated through the Fourteenth Amendment, following an oral argument in which some Justices expressed wonderment that the issue of incorporation was even arguable in 2018.

But embedded in Timbs was a dispute about whether the "right" and the "substance of the right" must be similar, a question that the Court did not address.  That dispute is at the heart of the incorporation doctrine surrounding the right to have a unanimous jury verdict.  Justice Alito explained the problem in footnote 14 of McDonald, after stating in the text that the general rule is that rights "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”

There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U. S. 404 (1972); see also Johnson v. Louisiana, 406 U. S. 356 (1972) (holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials). But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca, eight Justices agreed that the Sixth Amendment applies identically to both theFederal Government and the States. See Johnson, supra, at 395 (Brennan, J., dissenting). Nonetheless, among those eight, four Justices took the view that the Sixth Amendment does not require unanimous jury verdicts in either federal or state criminal trials, Apodaca, 406 U. S., at 406 (plurality opinion), and four other Justices took the view that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials, id., at 414–415 (Stewart, J., dissenting); Johnson, supra, at 381–382 (Douglas, J., dissenting). Justice Powell’s concurrence in the judgment broke the tie, and he concluded that the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government. See Johnson, supra, at 395–396 (Brennan, J., dissenting) (footnote omitted) (“In any event, the affirmance must not obscure that the majority of the Court remains of the view that, as in the case of every specific of the Bill of Rights that extends to the States, the Sixth Amendment’s jury trialguarantee, however it is to be construed, has identical application against both State and Federal governments.")

Thus, in Ramos v. Louisiana, the Court is set to address this "exception to the general rule" and decide whether jury unanimity is required in a criminal case in state court to the same extent as in federal court pursuant to the Fourteenth Amendment.

Lady-justice-jury[image via]

March 18, 2019 in Criminal Procedure, Due Process (Substantive), Federalism, Fourteenth Amendment, Fundamental Rights, Privileges or Immunities: Fourteenth Amendment , Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Tuesday, March 12, 2019

Sixth Circuit En Banc Majority Upholds Ohio's Ban on Funding Planned Parenthood

In its en banc opinion in Planned Parenthood of Greater Ohio v. Hodges, the Sixth Circuit reversed a permanent injunction by the district judge against Ohio Rev. Code §3701.034 which bars any state funding —  including government-sponsored health and education programs that target sexually transmitted diseases, breast cancer and cervical cancer, teen pregnancy, infant mortality, and sexual violence — to any organization that performs or promotes abortion. 

In less than 12 pages, Judge Jeffrey Sutton, writing for the 11 judge majority, rejected the claim that the Ohio statute was an unconstitutional condition on the due process right encompassing the right to abortion by stating that Planned Parenthood had no substantive due process right to provide abortions: "The Supreme Court has never identified a freestanding right to perform abortions."  Moreover, Sutton's opinion rejected the argument that

the Ohio law will deprive Ohio women of their constitutional right of access to abortion services without undue burden, because it will lead Planned Parenthood and perhaps other abortion providers to stop providing them. Maybe; maybe not. More to the point, the conclusion is premature and unsupported by the record.

In this way, the majority distinguished the United States Supreme Court's most recent abortion case, Whole Woman's Health v. Hellerstedt (2016), albeit briefly (with one "cf." citation and one "see" citation).

In the dissenting opinion, Judge Helene White writing for 6 judges, criticizes the majority for not mentioning "much less" applying, 

the test the Supreme Court has recently articulated governing the unconstitutional-conditions doctrine. That doctrine prohibits the government from conditioning the grant of funds under a government program if: (1) the challenged conditions would violate the Constitution if they were instead enacted as a direct regulation; and (2) the conditions affect protected conduct outside the scope of the government program.

citing Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (2013) [the "prostitution pledge" case].
The dissent concludes that because "(1) the funding conditions in this case would result in an undue burden on a woman’s right to obtain nontherapeutic abortions if imposed directly, and (2) the six federal programs have nothing to do with Plaintiffs’ performing abortions, advocating for abortion rights, or affiliating with organizations that engage in such activity, all on their own 'time and dime,' " the Ohio statute should be unconstitutional.

The dissenting opinion also discusses the First Amendment argument, which the district court judge had credited but which the majority discounted because to prevail Ohio need only show that one limitation satisfied the Constitution and because "the conduct component of the Ohio law does not impose an unconstitutional condition in violation of due process, we need not reach the free speech claim." For the dissent, the free speech claim was not mooted and should be successful as in Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (2013).

 

 

March 12, 2019 in Abortion, Courts and Judging, Due Process (Substantive), First Amendment, Fourteenth Amendment, Gender, Opinion Analysis, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)

Monday, February 25, 2019

SCOTUS Hears Oral Argument in Public Access Television and State Action Case

The Court heard oral arguments in Manhattan Community Access Corporation v. Halleck, presenting the question of when (if ever) the actions of a private nonprofit corporation operating a public access television channel constitute sufficient state action warranting application of the First Amendment.  As we discussed in our preview, the doctrinal question revolves around whether it is general constitutional state action doctrine or public forum doctrine under the First Amendment or whether there is a convergence of the two doctrines. The Second Circuit held that there were sufficient allegations of state action and First Amendment violations to prevent dismissal of the complaint.

Recall that the case involves a claim that Manhattan Community Access Corporation, known as Manhattan Neighborhood Network, MNN, suspended the plaintiffs, Halleck and Melendez, from airing programs over the MNN public access channels because of disapproval of the content in violation of the First Amendment, which requires state action.

OTVbelweder-front
In oral argument, Michael DeLeeuw, arguing for MNN, began by stating that MNN could not be deemed a state actor under any of the Court's state action tests.  On the other hand, in the conclusion to his argument on behalf of the original plaintiffs, Paul Hughes stated that his "argument is limited to the context of public forums and the administration of public forums being state action" and "goes no further than that."

In between, the Justices probed factual questions regarding the composition of the MNN board, MNN's ability to curate content (or whether it must adhere to first-come-first-served), the practice with other public access channels, the agreement scheme between the city and MNN as well as regulations, and searched for analogies in railroads, "private prisons," and schools opening their facilities.  Early in the argument, Chief Justice Roberts asked whether facts about MNN's ability to curate content was disputed, with counsel for MNN responding that they were, and Chief Justice Roberts responding that the case was before the Court on the pleadings.  At several points, Justice Breyer focused on specific facts, noting that certain facts tended toward or against there being state action or the creation of a public forum.

On the whole, the argument seemed to favor a very particularized analysis.  So while the Court could certainly articulate a broad new standard for state action, it seems more likely that the Court's decision will be a narrow one focused on the rather unique circumstances of this public access arrangement.

February 25, 2019 in First Amendment, Fourteenth Amendment, Oral Argument Analysis, State Action Doctrine, Television | Permalink | Comments (0)

Wednesday, February 20, 2019

SCOTUS Declares Excessive Fines Prohibition Incorporated As Against the States

In its unanimous opinion in Timbs v. Indiana, the United States Supreme Court held that the Excessive Fines Clause of the Eighth Amendment is applicable to the states through the Fourteenth Amendment. 

Recall that the oral argument heavily pointed toward this outcome. While there was some discussion during oral argument about the relationship between excessive fines and civil in rem forfeiture, the Court's opinion, authored by Justice Ginsburg, rejected Indiana's attempt to  "reformulate the question" to one focused on civil asset forfeitures. This was not the argument that the Indiana Supreme Court ruled upon. Moreover, the question of incorporation is not dependent on whether "each and every particular application" of a right passes the incorporation test, using as an example the Court's unanimous opinion in Packingham v. North Carolina (2017), in which the Court did not ask whether the First Amendment's "application to social media websites was fundamental or deeply rooted."

Magna_Carta_StampInstead, the Court clearly held that the "safeguard" of the Excessive Fines Clause of the Eighth Amendment is "fundamental to our scheme of ordered liberty" with "deep roots in [our] history and tradition," citing McDonald v. Chicago (2010), the Court's most recent incorporation case.  In an opinion of less that ten pages, Ginsburg discusses the Magna Carta, the English Bill of Rights after the Glorious Revolution, the inclusion of the Clause in colonial constitutions and in state constitutions at the time of the Fourteenth Amendment, the misuse of excessive fines in Black Codes, and the current inclusion of the provision in the constitutions of all 50 states.

Justice Thomas, in a concurring opinion longer than the Court's opinion, reiterates the position he articulated in McDonald v. Chicago that it should not be the Due Process Clause of the Fourteenth Amendment that is the vehicle for incorporation but the Privileges or Immunities Clause.  Justice Gorsuch writes a separate and very brief concurring opinion acknowledging that the appropriate vehicle for incorporation "may well be" the Fourteenth Amendment's Privileges or Immunities Clause, but "nothing in this case turns on that question." 

Given that this is a unanimous opinion, unlike McDonald in which Justice Thomas was necessary to the five Justice majority regarding the incorporation of the Second Amendment, the attempt to resurrect the Privileges or Immunities Clause carries little precedential weight.

Thus, now the only rights enumerated in the Bill of Rights that are not incorporated through the Fourteenth Amendment to the states are: the Third Amendment prohibiting quartering of soldiers, Fifth Amendment right to a grand jury indictment in a criminal case; and the Seventh Amendment right to a jury trial in civil cases.

February 20, 2019 in Due Process (Substantive), Federalism, Fourteenth Amendment, Opinion Analysis, Privileges or Immunities: Fourteenth Amendment , Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Wednesday, February 13, 2019

Daily Read: Plessy v. Ferguson Revisited

In his essay review of the new book Separate: The Story of Plessy v. Ferguson, and America's Journey from Slavery to Segregation by Steve Luxenberg, critic Louis Menand retells the history of the Plessy v. Ferguson decision: infamous in hindsight but unnoticed in its time. Menand remarks, “even when principal figures in the case died, years later, their obituaries made no mention of it.” Menand contextualizes the case within the post-Reconstruction Jim Crow south and examines Plessy’s role in enshrining white supremacy.

9780393239379_198
Menand provides a rich discussion of Luxenberg’s hefty book (at 624 pages) which focuses its narrative on three key players in Plessy v. Ferguson: “Albion Tourgée, one of Plessy’s lawyers; Henry Billings Brown, the Justice who wrote the majority opinion; and John Marshall Harlan, who filed the lone dissent.” Menand’s assessment of the book is mixed. For example, Menand writes that the book is

deeply researched, and it wears its learning lightly. It’s a storytelling kind of book, the kind of book that refers to Albion Tourgée as Albion and John Harlan as John, and that paints the scene for us (“On a bright and beautiful night in late October 1858 . . . ”). Luxenberg does not engage in psychological interpretation. He doesn’t mention, for instance, that [Justice Henry Billings] Brown’s Yale classmates called him Henrietta because they thought he was effeminate—which might have contributed to Brown’s eagerness not to appear like a man who didn’t belong. And he dismisses in a footnote speculation that Robert Harlan, a man of mixed race who grew up as a member of John Harlan’s family, might have been a half brother. Even if he wasn’t in fact related to John, however, it might have mattered if John believed otherwise.

In short, Menand concludes that while the book is a "different way to tell the story,"  it "does not give us a new story," and observes that it "does seem a misjudgment to tell the story of an important civil-rights case as the story of three white men."

But while Menand argues that the book doesn't ultimately help with "the big historical questions," it is clear from Menand's review that the book offers deep insights into the case that constitutionalized racial segregation as equality.  In Plessy, the United States Supreme Court betrayed the promise — and meaning — of the the Fourteenth and Thirteenth Amendments to the Constitution.  By focusing at the legal actors who participated in the case, including Tourgée who argued for Plessy, Luxenberg's book is sure to attract attention from constitutional scholars and students.  I look forward to reading it.

 

February 13, 2019 in Current Affairs, Fourteenth Amendment, Fundamental Rights, Race, Reconstruction Era Amendments, Thirteenth Amendment | Permalink | Comments (0)

Tuesday, February 5, 2019

United States District Judge Finds Exclusion of Puerto Rican Resident from Benefits Violates Equal Protection

In his opinion in United States v. Vaello-Madero, United States District Judge for the District of Puerto Rico, Gustavo Gelpí, entered summary judgment for the defendant in a suit by the United States seeking to recoup SSI disability payments. Mr. Vaello-Madero had been receiving SSI benefits while living in New York and the federal government continued to deposit the monthly payment into his checking account even after he relocated to Puerto Rico.  The SSI statute defines persons eligible for SSI as living in the "United States," and by definition Puerto Rico from the United States, 42 U.S.C. §1382c(e).

Judge Gelpí rejected the government's contention that this exclusion was supported by the Territorial Clause, Article IV §3 cl. 2, which although it gives Congress a "wide latitude of powers" is not a "blank check" to "dictate when and where the Constitution applies to its citizens," citing Boumediene v. Bush (2008).

1600px-1903_map_of_Porto_Rico_(Puerto_Rico)However, Judge Gelpí credited Vaello-Madero's argument that the exclusion of citizens of Puerto Rico from SSI benefits violated the equal protection component of the Due Process Clause of the Fifth Amendment. Judge Gelpí relied on United States v. Windsor (2013) in which the United States Supreme Court found DOMA unconstitutional, stating that as in Windsor the SSI statute was based on animus. Judge Gelpi gestured toward the possible applicability of a higher level of scrutiny - mentioning that US citizens residing in Puerto Rico are "very essence of a politically powerless group, with no Presidential nor Congressional vote, and with only a non-voting Resident Commissioner representing their interests in Congress" and noting that a "de facto classification based on Hispanic origin is constitutionally impermissible" - but held that, as in Windsor, rational basis was not satisfied.

Importantly, Judge Gelpí found that the government's interests advanced to support the exclusion of Puerto Rico in the statute, cost and nonpayment of federal income tax by Puerto Rican residents, were "belied by the fact that United States citizens in the Commonwealth of the Northern Mariana Islands receive SSI disability benefits."

Judge Gelpí's opinion ends with strong language:

federal legislation that creates a citizenship apartheid based on historical and social ethnicity within United States soil goes against this very concept [of Equal Protection and Due Process].  It is in the Court’s responsibility to protect these rights if the other branches do not. Allowing a United States citizen in Puerto Rico that is poor and disabled to be denied SSI disability payments creates an impermissible second rate citizenship akin to that premised on race and amounts to Congress switching off the Constitution. All United States citizens must trust that their fundamental constitutional rights will be safeguarded everywhere within the Nation, be in a State or Territory.

However, the opinion stops short of declaring 42 U.S.C. §1382c(e) facially unconstitutional and enjoining its enforcement.  Judge Gelpí does issue summary judgment in favor of Vaello-Madero in an opinion sure to be used as precedent in other similar proceedings if the United States does not appeal.

February 5, 2019 in Courts and Judging, Due Process (Substantive), Equal Protection, Fifth Amendment, Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0)

Friday, January 4, 2019

SCOTUS to hear Partisan Gerrymandering Cases (Again)

The Court has ordered oral arguments set for March on the merits of two cases involving the recurring issue of the constitutionality of partisan gerrymandering, Rucho v. Common Cause and Lamone v. Benisek.

Both cases have extensive histories including previous appearances before the Supreme Court.

From North Carolina is Rucho v. Common Cause. In January 2018, a three-judge Court's extensive opinion found North Carolina's 2016 redistricting plan was unconstitutional partisan gerrymandering under the Equal Protection Clause, the First Amendment, and Article I §§ 2, 4.  The United States Supreme Court stayed the judgment shortly thereafter,  and then vacated the opinion in light of  Gill v. Whitford (2018). In July 2018, the three judge court entered an even more extensive opinion - 300 pages - finding that standing regarding an equal protection challenge was satisfied under the Gill standard. The Court also reiterated its conclusions of the unconstitutionality of partisan gerrymandering, and enjoined the State from conducting any elections using the 2016 Plan in any election after the November 6, 2018, election.

From Maryland is Lamone v. Benisek.  In June 2018, the United States Supreme Court issued a brief per curiam opinion declining to disturb the three judge court's decision not to grant to a preliminary injunction, at the same time the Court rendered its Gill v. Whitford opinion, and essentially reserved the issue of partisan gerrymandering for another day.

It seems that day has come — or will soon — but whether or not the Court will actually grapple with the constitutionality of the problem of partisan gerrymandering is as yet uncertain.

1600px-Gerrymandering_032624

[image: Anti-gerrymandering event at Supreme Court, October 2017, via]

 

January 4, 2019 in Courts and Judging, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Recent Cases, Speech, Supreme Court (US) | Permalink | Comments (0)

Wednesday, November 28, 2018

SCOTUS Hears Oral Argument in Excessive Fines and Forefeiture Case

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

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

1600px-Bill_of_Rights_CarThe Indiana Solicitor General did not concede this point, even after being pressed. Instead, the Indiana Solicitor General argued that the question of incorporation — including the test of whether the right is so deeply rooted in this nation's history and traditions and whether the right is implicit in the concept of ordered liberty as to be fundamental — rests on the articulation of the right as including forfeiture as the Court held in Austin v. United States (1993). Indeed, the Indiana Solicitor General suggested that the Court should overrule Austin.

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

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

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

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

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

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

[image via]

November 28, 2018 in Courts and Judging, Fourteenth Amendment, Fundamental Rights, Supreme Court (US) | Permalink | Comments (1)

Monday, November 26, 2018

SCOTUS Oral Argument Preview: Excessive Fines and Forfeiture

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

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

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

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

 

November 26, 2018 in Current Affairs, Due Process (Substantive), Fourteenth Amendment, Fundamental Rights, Supreme Court (US) | Permalink | Comments (0)

Friday, November 23, 2018

District Judge Enjoins Mississippi Abortion Law as Unconstitutional

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

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

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

[footnotes omitted]. 

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

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

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

[footnotes omitted].

November 23, 2018 in Abortion, Due Process (Substantive), Family, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Reproductive Rights | Permalink | Comments (0)

Friday, November 2, 2018

United States District Judge Issues Injunction in Georgia Vote Challenge

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

Here, Judge Ross articulated the appropriate framework as:

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

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

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

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

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

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

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

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

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

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

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

1200px-Flag_of_Georgia_(U.S._state).svg

November 2, 2018 in Elections and Voting, Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Opinion Analysis, Race | Permalink | Comments (0)

Tuesday, October 30, 2018

Daily Read: Proposal to End Birthright Citizenship Unconstitutional

In an opinion piece in the Washington Post, Neal Katayl and George Conway III argue that the president's publicized plan to end "birthright citizenship" by Executive Order would be unconstitutional.

1024px-Plaque_on_Dred_Scott_Case_-_Outside_Old_Courthouse_-_St._Louis_-_Missouri_-_USA_(41040335655)They argue that the EO's content contradicts the plain language of the first sentence of the Fourteenth Amendment, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."  In addition to the text, they argue that any originalist understanding of this sentence — which "sprang from the ashes of the worst Supreme Court decision in U.S. history, Dred Scott v. Sandford,the 1857 decision that said that slaves, and the children of slaves, could not be citizens of the United States" — must support birthright citizenship except in the most narrow of circumstances.

Further, they argue that any EO by the president would exceed the scope of his authority, given that it is Congress  that is in the "driver’s seat" on issues of immigration, and they quote candidate Trump having recognized that at one time.

The op-ed seeks to bridge factions on this issue by touting its own authorship and the neutrality of the Constitution:

The fact that the two of us, one a conservative and the other a liberal, agree on this much despite our sharp policy differences underscores something it is critically important to remember during a time marked by so much rancor and uncivil discourse: Our Constitution is a bipartisan document, designed to endure for ages. Its words have meaning that cannot be wished away.

October 30, 2018 in Current Affairs, Fourteenth Amendment | Permalink | Comments (1)