Thursday, January 23, 2020
The Court heard oral arguments in Espinoza v. Montana Department of Revenue regarding a state tax credit scheme for student scholarships as violating the First Amendment's religion clauses and the equal protection clause.
Under the original Tax Credit Program, the law provided a taxpayer a dollar-for-dollar tax credit based on the taxpayer’s donation to a Student Scholarship Organization. However, Montana has a constitutional provision, Art. X §6, which prohibits aid to sectarian schools, so the department of revenue added "Rule 1" to the state tax credit scheme excluding from the definition of "qualified education provider" eligible under the scheme "a church, school, academy, seminary, college, university, literary or scientific institution, or any other sectarian institution owned or controlled in whole or in part by any church, religious sect, or denomination." Parents challenged the constitutionality of Rule 1, but when the litigation reached the Montana Supreme Court, it held that the Tax Credit Program was unconstitutional under Art. X §6 and therefore it did not need to reach the issue regarding Rule 1:
Having concluded the Tax Credit Program violates Article X, Section 6, it is not necessary to consider federal precedent interpreting the First Amendment’s less-restrictive Establishment Clause. Conversely, however, an overly-broad analysis of Article X, Section 6, could implicate free exercise concerns. Although there may be a case where an indirect payment constitutes “aid” under Article X, Section 6, but where prohibiting the aid would violate the Free Exercise Clause, this is not one of those cases. We recognize we can only close the “room for play” between the joints of the Establishment and Free Exercise Clauses to a certain extent before our interpretation of one violates the other.
In the oral argument, Justice Ginsberg characterized the option exercised by the Montana Supreme Court as leveling down: "When a differential is challenged, the court inspecting the state law can level up or level down. And here it leveled down." (This "leveling down" approach occurred in Justice Ginsburg's opinion for the Court in Sessions v. Santana-Morales (2017)). And here that leveling down effected questions of standing which troubled Justices Ginsburg, Sotomayor, and Kagan in their early questions to the attorney for the petitioners — the parents and original plaintiffs — who are "three levels removed" from any injury as Sotmayor stated.
The Montana Supreme Court assumed center stage at times, with Justice Alito for example questioning not simply whether the court was wrong but whether it was discriminatory:
isn't the crucial question why the state court did what it did?
If it did what it did for an unconstitutionally discriminatory reason, then there's a problem under Village of Arlington Heights.
So I'll give you an example. The state legislature sets up a scholarship fund, and after a while, people look at the – the recipients of the scholarships, and some people say: Wow, these are mostly going to blacks and we don't like that and that's contrary to state law. So the state supreme court says: Okay,that discrimination is -- we're going to strike down the whole thing.
Is that constitutional?
The attorney for Montana, Adam Unikowsky rejected "the race analogy" stating that "we just don't think that race and religion are identical for all constitutional reasons."
Justice Breyer explained, "what he's saying is that, look, the court took the case in the Prince Edward County thing -- " or "the equivalent and said they couldn't do that. They can't shut down all the schools, even though the Constitution they didn't say had a right and so that's the similarity."
This question of the race-religion analogy persisted, with the motivation behind the Montana state constitutional provision, often known as a Blaine Amendment, being "rooted in -- in grotesque religious bigotry against Catholics," as Justice Kavanaugh phrased it. Justice Kagan seemingly rejected the notion that the court's striking down the entire program must be motivated by animus towards religion:
And I can think of many reasons why you would strike down the whole program that have nothing to do with animus toward religion. You might actually think that funding religion imposes costs and burdens on religious institutions themselves. You might think that taxpayers have conscientious objections to funding religion. You might think that funding religion creates divisiveness and conflict within a society, and that for all those reasons, funding religious activity is not a good idea and that you would rather level down and fund no comparable activity, whether religious or otherwise, than fund both. Now, none of those things have anything to do with animus towards religion . . . .
Yet soon after, Chief Justice Roberts returned to the race analogy. Later, Justice Breyer would ask:
can we--can you or could I say this: Yes, race is different from religion. Why? There is no Establishment Clause in regard to race.
The specific doctrinal arguments revolve around the extension of Trinity Lutheran Church of Columbia, Mo. v. Comer, decided in 2017, involving Missouri's state constitutional Blaine Amendment and the denial of funds to a church school playground. And more deeply, the "play in the joints" notion from Locke v. Davey — which was itself divisive in Trinity Lutheran — is implicated. At stake is the possibility that Free Exercise Clause will now overwhelm any anti-Establishment concerns.
January 23, 2020 in Courts and Judging, Equal Protection, Establishment Clause, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Oral Argument Analysis, Race, Religion | Permalink | Comments (0)
Thursday, January 2, 2020
In their article, Reconstituting the Future: The Equality Amendment, well-known feminist theorists Catharine A. MacKinnon & Kimberlé W. Crenshaw have argued that equality needs to be re-envisioned in an intersectional and progressive manner requiring constitutional amendment. In the Yale Journal Law Forum they contend their proposal
centers on rectifying the founding acts and omissions of race and sex, separately and together, and incorporates similar but distinct inequalities. It is informed by prior efforts to integrate equality into the constitutional landscape that have been decimated by political reversals and doctrinal backlash. It aggregates the insights, aspirations, and critiques of many thinkers and actors who have seized this moment to breathe new life into the nation’s reckoning with inequality. It neither looks back to celebrate amendments whose transformative possibilities have been defeated nor participates in contemporary hand-wringing over equality’s jurisprudential limitations. It seeks to make equality real and to matter now. We argue that a new equality paradigm is necessary and present one form it could take.
The article elaborates on the rationales for each section. The entire proposed amendment reads:
The Equality Amendment
Whereas all women, and men of color, were historically excluded as equals, intentionally and functionally, from the Constitution of the United States, subordinating these groups structurally and systemically; and
Whereas prior constitutional amendments have allowed extreme inequalities of race and/or sex and/or like grounds of subordination to continue with-out effective legal remedy, and have even been used to entrench such inequalities; and
Whereas this country aspires to be a democracy of, by, and for all of its people, and to treat all people of the world in accordance with human rights principles;
Therefore be it enacted that—
Section 1. Women in all their diversity shall have equal rights in the United States and every place subject to its jurisdiction.
Section 2. Equality of rights shall not be denied or abridged by the United States or by any State on account of sex (including pregnancy, gender, sexual orientation, or gender identity), and/or race (including ethnicity, national origin, or color), and/or like grounds of subordination (such as disability or faith). No law or its interpretation shall give force to common law disadvantages that exist on the ground(s) enumerated in this Amendment.
Section 3. To fully realize the rights guaranteed under this Amendment, Congress and the several States shall take legislative and other measures to prevent or redress any disadvantage suffered by individuals or groups because of past and/or present inequality as prohibited by this Amendment, and shall take all steps requisite and effective to abolish prior laws, policies, or constitutional provisions that impede equal political representation.
Section 4. Nothing in Section 2 shall invalidate a law, program, or activity that is protected or required under Section 1 or 3.
This just-published relatively brief (22 pages) essay would make a terrific addition to any Constitutional Law syllabus, as well as any course in Feminist Legal Theory or Gender and Law.
pictured: Professors Crenshaw (left) & MacKinnon (right)
January 2, 2020 in Comparative Constitutionalism, Courts and Judging, Equal Protection, Fourteenth Amendment, Gender, Interpretation, Privacy, Race, Recent Cases, Scholarship | Permalink | Comments (0)
Tuesday, December 31, 2019
In her opinion in North Carolina State Conference of the NAACP v. Cooper, Judge Loretta Biggs of the Middle District of North Carolina issued a preliminary injunction against North Carolina’s voter ID-requirements, known as S.B. 824.
Judge Biggs found that plaintiffs’ claim that SB 824 violated the Fourteenth Amendment’s Equal Protection Clause had a likelihood of success. Although the voter-ID law was facially neutral, Judge Biggs found that it enacted a racial classification. As she explained, in Village of Arlington Heights v. Metro. Housing Dev. Corp. (1977),
the Supreme Court set forth a non-exhaustive list of factors to guide this delicate investigation. Reviewing courts should consider: (1) the law’s historical background; (2) the specific sequence of events leading up to the law’s enactment, including any departures from normal legislative procedure; (3) the law’s legislative and administrative history; and (4) whether the law’s effect “bears more heavily on one race than another.” The Court further cautioned that, because legislative bodies are “[r]arely . . . motivated solely by a single concern,” a challenger need only demonstrate that “invidious discriminatory purpose was a motivating factor.” (emphasis added). “[T]he ultimate question,” then, is whether a law was enacted “because of,” and not “in spite of,” the discriminatory effect it would likely produce.
Applying the Arlington Heights factors, Judge Biggs found that the “historical background” of the law “weighs in favor of a finding of discriminatory intent with respect to S.B. 824’s enactment”: “North Carolina has a sordid history of racial discrimination and voter suppression stretching back to the time of slavery, through the era of Jim Crow, and, crucially, continuing up to the present day.”
On the “sequence of events,” Judge Biggs found the record “mixed.” While the “parliamentary requirements” were met, when “viewed with a wider lens, the circumstances surrounding S.B. 824 are unusual.” A majority of the Republican legislators who supported a previous bill on voter-ID declared unconstitutional by the Fourth Circuit “also voted for S.B. 824, and the same legislative leaders spearheaded both bills. "Further,she found it noteworthy that "those legislators were elected, at least in part, by way of district maps which were declared unconstitutional." Additionally, "after voters ratified the voter-ID amendment, S.B. 824 was enacted along (virtually) strict party lines and over the Governor’s veto.”
As to the legislative history, including statements, Judge Biggs considered the statements of legislators after the previous bill was declared unconstitutional as well as changes proposed or adopted, and “the decision not to include public-assistance IDs as an acceptable form of identification,” despite the Fourth Circuit’s criticism.
Finally, Judge Biggs concluded that there was (or was likely to be) a racially disparate impact. Examining the specific provisions of the bill, including what types of identification were accepted and which were not:
the important metric for the Court’s purposes isn’t so much the variety of IDs as how readily they are possessed by North Carolinians of different backgrounds. In this sense, what is most striking about the state’s newly expanded list of IDs is that it continues to primarily include IDs which minority voters disproportionately lack, and leaves out those which minority voters are more likely to have.
One example was federal government identification, which was excluded. For Judge Biggs, these disparate types of identification mean not only that “minority voters will bear this effect more severely than their white counterparts,” but also that “a disproportionate number of African American and Hispanic” North Carolina citizens “could be deterred from voting or registering to vote because they lack, or believe they lack, acceptable identification and remain confused by or uninformed about S.B. 824’s exceptions.”
Thus, Judge Biggs found that the law was racially motivated. She further found that it was not supported by any of the proffered government interests.
Given that the Governor had vetoed this bill and the Fourth Circuit's decision holding a previous similar law unconstitutional, the prospects for an appeal will certainly be closely monitored.
Monday, August 19, 2019
The 1619 Project is a unique and accessible look at slavery in the United States — starting in 1619 — and its aftermath.
The muli-faceted project, developed and curated by Nikole Hannah-Jones, appeared as the Sunday New York Times magazine (download here) and is also available as an interactive magazine website. Moreover, the Pulitzer Center’s education team has created curricula from over 30 visual and written pieces from historians, journalists, playwrights, poets, authors, and artists from the project, and although primarily aimed at secondary education, it nevertheless contains a wealth of ideas that could be useful in law school classrooms and scholarship.
Not suprisingly, the law runs throughout the pieces in the Project. There is an incredible section profiling Howard University School of Law students with their families and ancestors.
Friday, June 21, 2019
In its opinion in Flowers v. Mississippi, the Court reversed the decision of a divided Mississippi Supreme Court that there was not a violation of the Equal Protection Clause in the selection of jurors under Batson v. Kentucky (1986).
The Court's opinion by Justice Kavanaugh, and joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan, stressed the "extraordinary facts" of Flowers and stated the decision sought to simply "enforce and reinforce Batson by applying it" here. Indeed, the jury selection at issue was in the sixth trial of Flowers all prosecuted by the same lead prosecutor. The Mississippi Supreme Court had reversed one conviction for prosecutorial misconduct, had reversed two other convictions for Batson violations, and two other trials had resulted in "hung juries." The Court concluded that four "critical facts, taken together" led to the conclusion:
- First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court.
- Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors.
- Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors.
- Fourth, the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State.
The Court's opinion rehearsed the Equal Protection Clause doctrine that led to Batson, starting as far back as Strauder v. West Virginia (1880). The Court relied on its most recent Batson case, also a capital case, Foster v. Chatman (2016), and outlined the types of evidence relevant in a Batson challenge. It then discussed the evidence in detail as guided by the "critical facts" above. While the Court's opinion repeated that the case was "extraordinary" and that it was the combination of facts, Justice Alito wrote separately to stress the "unique combinations of circumstances present" as his reason for joining the Court's opinion.
Justice Thomas dissented in an opinion joined in large part by Justice Gorsuch. In Parts I-III of Thomas's dissenting opinion, joined by Gorsuch, Thomas starts by recounting the crime alleged and then argues that there was "no evidence whatsoever of purposeful race discrimination by the State in selecting the jury during the trial below." Further: "Each of the five challenged strikes was amply justified on race- neutral grounds timely offered by the State at the Batson hearing. None of the struck black jurors was remotely comparable to the seated white jurors. And nothing else about the State’s conduct at jury selection—whether trivial mistakes of fact or supposed disparate questioning— provides any evidence of purposeful discrimination based on race." As in the Court's opinion, the dissenting opinion then discusses the facts, drawing different conclusion. Yet these conclusions exist in the shade of Part IV of Thomas's dissenting opinion — the portion Gorusch did not join — criticizing Batson as disregarding limitations on standing and "giving a windfall to a convicted criminal" who "suffered no injury." Thomas concludes by stating that the "State is perfectly free to convict Curtis Flowers again" and that while the "Court's opinion might boost its self-esteem, it also needlessly prolongs the suffering of four victims’ families." As the only Black Justice on the Court, Thomas's rejection of Batson is sure to prompt discussion.
Wednesday, June 5, 2019
In an Order in United States v. Rundo, United States District Judge Cormac J. Carney for the Central District of California dismissed an indictment against white supremacists Robert Rundo, Robert Bowman, and Aaron Eason, members of "Rise Above Movement" (RAM), concluding that the Anti-Riot Act, 18 U.S.C. §2101 violates the First Amendment as overbroad.
As Judge Carney explained in his relatively brief opinion, the Anti-Riot Act provides that:
Whoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television, with intent –
(1) to incite a riot; or
(2) to organize, promote, encourage, participate in, or carry on a riot; or
(3) to commit any act of violence in furtherance of a riot; or
(4) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot;
and who either during the course of any such travel or use or thereafter performs or attempts to perform any other overt act for any purpose specified in subparagraph [(1)–(4)] . . . [s]hall be fined under this title, or imprisoned not more than five years, or both.
Moreover, after quoting the statute's definition to riot, Judge Carney explained,
to simplify, the Anti-Riot Act defines “riot” in two ways. A riot is a public disturbance involving acts of violence, committed by at least one person in a group, which results in property damage or personal injury. This first definition coincides with the common understanding of a riot––for instance, a crowd taking to the streets and smashing windows of a business. A riot also includes a public disturbance involving the threat of violence, by persons in a group, so long as at least one person could immediately act upon the threat. This second definition, for example, would apply to a group threatening to break the windows of a business, while the group is outside the business and holding rocks in their hands.
Yet, most troubling for Judge Carney was his interpretation that the statute "also criminalizes acts taken long before any crowd gathers, or acts that have only an attenuated connection to any riot, so long as the individual acts with the required purpose. See 18 U.S.C. § 2101(a). No violence even need to occur. A defendant could be convicted for renting a car with a credit card, posting about a political rally on Facebook, or texting friends about when to meet up."
The problem for Judge Carney was that the statute has "no imminence requirement": "The Anti-Riot does not require that advocacy be directed toward inciting or producing imminent lawless action. It criminalizes advocacy even where violence or lawless action is not imminent." Thus, Judge Carney concluded that the Anti-Riot Act eviscerates the protections of speech in Brandenburg v. Ohio (1969). Further, Judge Carney rejected the government's argument that the Anti-Riot Act did include an imminence requirement, characterizing this as requiring "grammatical gymnastics—and some degree of hand waving–– " which the Judge was not willing to do. Judge Carney pointed out that under the Anti-Riot Act, the statement in Hess v. Indiana (1973) ("we'll take the streets later [or again]") would be criminalized, despite the United States Supreme Court's finding that such a statement did not meet the imminence requirement.
Finally, Judge Carney found that in balancing the "social costs" of upholding the statute or "striking it down," there were other laws— including state statutes — that could protect the public from violence or public disturbances, while enforcing the Anti-Riot Act substantially infringed on the rights of free speech and freedom of assembly. And while Judge Carney explicitly mentioned not condoning the message of the white supremacists and wrote that "one person's protest might be another person's riot," invoking controversial issues today such as "abortion, Black Lives Matter, climate change, or healthcare," his opinion is sure to be discussed as protecting right-wing protest.
Friday, May 31, 2019
Responding to Justice Thomas's concurring opinion from a denial of certiorari in Box v. Planned Parenthood of Indiana, legal commentator Imani Gandy (pictured) writes When It Comes to Birth Control and Eugenics, Clarence Thomas Gets It All Wrong.
Specifically, Gandy takes on the history of Margaret Sanger (1879-1966), who she states is not necessarily a present-day "infallible feminist hero" and certainly had the same abelist views that the Court credited in Buck v. Bell.
But, on the subject of race, Gandy writes:
The framing of Thomas’ concurrence, however, suggests that she [Sanger] did want to reduce the Black population. This framing extends to his description of the Negro Project, which Sanger created in conjunction with some of the most prominent Black civil rights leaders of the time—Franklin Frazier, Walter White, Rev. Adam Clayton Powell, Mary McLeod Bethune, and W.E.B DuBois—in order to bring birth control to the South. Thomas writes as if her mere advocacy for birth control was in and of itself racial eugenics. And he virtually ignores that Black women in the South wanted birth control and had taken their reproduction into their own hands since the days of enslavement, when women would self-induce abortions or even kill their newborns in order to save them from a life of slavery.
Gandy's commentary also provides an interesting critique of Thomas's use of a Sanger quotation by providing larger context. Gandy writes: "What Thomas leaves out is the very next sentence that Sanger wrote . . ." and thus invites the reader to think more deeply about the history of birth control.
Predictably, Thomas's concurring opinion is provoking other commentaries, but Gandy's piece is among the most insightful.
Wednesday, May 29, 2019
In its brief opinion in Box v. Planned Parenthood of Indiana, the United States Supreme Court reversed the Seventh Circuit's conclusion that Indiana's "fetal remains" statute was unconstitutional and denied certiorari to the question of the whether the Seventh Circuit correctly found unconstitutional the limitation on abortion based on sex, race, or disability.
On the "fetal remains" issue, the Court's opinion stated that the Seventh Circuit's conclusion that a rational basis test was satisfied was incorrect. The Court stressed:
in challenging this provision, respondents have never argued that Indiana’s law imposes an undue burden on a woman’s right to obtain an abortion. This case, as litigated, therefore does not implicate our cases applying the undue burden test to abortion regulations.
Justice Ginsburg, in a brief opinion, dissented on this issue, stating that the judgment should not be summarily reversed when "application of the proper standard would likely yield restoration of the judgment." Thus, it can be expected that the statute will be quickly challenged on this basis.
On the denial of certiorari to the second issue, Justice Thomas's concurring opinion is notable. Thomas concludes that the Court's decision to allow the issue to "percolate" should not be mistaken for acceptance:
Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement. In other contexts, the Court has been zealous in vindicating the rights of people even potentially subjected to race, sex, and disability discrimination.
Thomas devotes most of his 20 page concurring opinion to discussing eugenics, singling out for analysis not only the Supreme Court's 1927 opinion in Buck v. Bell but also birth control advocate Margaret Sanger. Thomas's concurrence focuses on abortion but certainly implicates birth control more broadly, and is sure to provoke commentary.
Friday, April 26, 2019
In an opinion in Amawi v. Pflugerville Independent School District, United States District Judge for the Western District of Texas, Judge Robert Pittman, issued a temporary injunction against Texas Gov. Code § 2270.001 et seq., also known as Texas H.B. 89, passed in 2017.
HB 89 prohibits governmental entities from entering into contracts for goods or services unless the contract contains a written verification that the contractor does not and will not "boycott Israel." Texas essentially admitted HB 89 is targeted at participants in the BDS (boycott, divest, and sanction) movement which protests Israel's "occupation of Palestinian territory and its treatment of Palestinian citizens and refugees." The five plaintiffs —a speech pathologist contracting with a school district; a freelance writer, artist, interpreter, and translator contracting with a university; and three university students who would contract with high schools as debate tournament judges — refused to sign the required statement that they did not and would not boycott Israel.
Judge Pittman easily found that the plaintiffs had standing, that their claims were ripe, and that the action was not barred by Eleventh Amendment immunity.
On the merits of the First Amendment claims, Judge Pittman's careful and well reasoned opinion first concluded that the prohibition of a boycott was inherently expressive activity protected by the First Amendment. The parties had raised what Judge Pittman called "dueling precedents": NAACP v. Claiborne Hardware Co. (1992) and Rumsfeld v. FAIR (2006). He concluded:
Claiborne, not FAIR, governs this case. Texas does not dispute that Plaintiffs’ boycotts are political; they support the BDS movement’s “dispute with the Israeli government’s policies.” Claiborne deals with political boycotts; FAIR, in contrast, is not about boycotts at all. The Supreme Court did not treat the FAIR plaintiffs’ conduct as a boycott: the word “boycott” appears nowhere in the opinion, the decision to withhold patronage is not implicated, and Claiborne, the key decision recognizing that the First Amendment protects political boycotts, is not discussed.
Moreover, Judge Pittman stated, even if "it were generally true that boycotts are not inherently expressive, H.B. 89, by its terms, applies only to expressive boycotts," given the statutory definitions. Judge Pittman then rejected the arguments of Texas that exceptions to Claiborne were applicable.
Judge Pittman then found that the H.B. 89 was viewpoint and content discrimination, and was not government speech under Walker v. Texas Div., Sons of Confederate Veterans, Inc. (2015). Applying the applicable standard of strict scrutiny, Judge Walker found that the asserted compelling governmental interests failed. Judge Pittman found two of the interests — prohibiting national-origin discrimination, and prohibiting state contractors from violating anti-discrimination principles — to essentially be not the actual interests underlying H.B. 89. Judge Pittman noted the statute does not refer to the "national origin" or "nationality" of individuals but to "the nation of Israel." Judge Pittman described the statute as being "underinclusive" in this way, providing examples of who would and would not be covered by the statute. As to the third interest asserted by Texas — aligning the state's commercial interests with Israel because it is “one of the few democracies in the Middle East and an ally of the United States and this State" — Judge Pittman essentially found this was not compelling. Texas had argued that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech,” but Judge Pittman found that this was not an "incidental burden" on speech, but targeted specific speech directly.
Judge Pittman then proceeded to an analysis of the means chosen, although clearly stated that because "H.B. 89 is not justified by any compelling state interest, no amount of narrowing application will preserve it from constitutional attack. But even if Texas’s stated interests were the actual interests advanced by the statute—and even if they were compelling—the Court finds that H.B. 89 still sweeps too broadly."
Judge Pittman's extensive and detailed opinion then found that plaintiffs' additional First Amendment arguments — that the statute is an unconstitutional condition, that it was compelled speech, and that it was unconstitutionally vague — all had merit.
The constitutionality of anti-BDS statutes is being vigorously litigated and Judge Pittman's decision is sure to be appealed. The opinion's perspective on the popularity of anti-BDS statutes is quite interesting:
Twenty five states have enacted similar legislation or issued executive orders restricting boycotts of Israel, and Congress has declared its opposition to the BDS movement, see 19 U.S.C. § 4452. In Texas, only five legislators voted against H.B. 89. Texas touts these numbers as the statute’s strength. They are, rather, its weakness. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Bd. of Educ. v. Barnette (1943).
[some citations omitted].
Tuesday, April 23, 2019
The United States Supreme Court heard oral arguments in Department of Commerce v. New York on the issue of whether the decision by Secretary of Commerce Wilbur Ross to include a citizenship question on the main census questionnaire for 2020 is lawful. The constitutional issues in the case include the standing of the challengers and the "actual enumeration" requirements in the Constitution, Art. I, § 2, cl. 3, and Amend. XIV, § 2. The equal protection argument has seemingly receded into the background. Taking center stage are the nonconstitutional issues centering on the Administrative Procedure Act.
Recall that the case was originally before the Court on an order requiring Secretary Wilbur Ross to submit to a deposition. However, Recall that in January in New York v. United States Department of Commerce, United States District Judge Jesse Furman decided the case without the Secretary's evidence, finding that without it there was no proof of discriminatory intent sufficient for an equal protection challenge. Nevertheless, Judge Furman vacated and enjoined the implementation of the decision of Department of Commerce Secretary Wilbur Ross adding a citizenship question to the 2020 census questionnaire, holding that the Secretary's decision violated provisions of the APA, was arbitrary and capricious, and most unusually, pretextual.
Recall also that in March California v. Ross, United States District Judge Richard Seeborg has found the decision of Secretary of Commerce Wilbur Ross to add a citizenship question to the 2020 census unlawful under the Administration Procedure Act and unconstitutional under the Enumeration Clause.
Arguing for the United States Department of Commerce, Solicitor General Noel Francisco was quickly interrupted by Justice Sotomayor in his very first description of the facts — that "Secretary Ross reinstated a citizenship question that has been asked as part of the census in one form or another for nearly 200 years" — when she noted that the citizenship question was not part of the short survey that is at issue in the present case. In short, Solicitor General Francisco's argument was that the Secretary has wide discretion to put whatever questions he'd like on the census for whatever reason. While Justices Kavanaugh, Gorsuch, Alito, and Chief Justice Roberts seemed sympathetic to this wide discretion, especially in their subsequent questioning, Justices Sotomayor and Kagan characterized the Secretary's decision as a "solution in search of a problem."
Justice Kagan: . . . [as] Justice Sotomayor was talking about was that it did really seem like the Secretary was shopping for a need. Goes to the Justice Department. Justice Department says we don't need anything. Goes to DHS. DHS says they don't need anything. Goes back to the Justice Department. Makes it clear that he's going to put in a call to the Attorney General. Finally, the Justice Department comes back to him and says: Okay, we can give you what you want.
So you can't read this record without sensing that this -- this need is a contrived one. Nobody had -- there have been lots of assistant attorney general in the Civil Rights Division that have never made a plea for this kind of data.
The Solicitor General of New York (and former Attorney General of New York) Barbara Underwood argued that there was nothing before the Secretary to support the notion that this would assist in making determinations under the Voting Rights Act. Justice Kavanaugh interestingly asked Underwood about United Nations recommendations for citizenship questions, a topic which Douglas Letter came back to during his argument, representing the United States House of Representatives as amicus curiae in support of New York and the other respondents, stating that other nations may not have an "actual enumeration" Clause in their constitutions, and stressing the importance of accurate census data to the House of Representatives given its purpose in representation.
Dale Ho, arguing for New York Immigration Coalition, discussed the intersection between the Voting Rights Act (VRA) and the census, explaining how the Census Bureau alters and approximates information.
Assuming the Court does not reach the constitutional issues, the heart of the case under the APA will be how much deference the Court is willing to afford to the Secretary. This deference to the Secretary's discretion was interestingly implicated in the argument concerning the question of the Congressional role, with Douglas Letter pointing out that
The Secretary of Commerce has been called before Congress to explain what he did here, and Assistant Attorney General Gore . . . They have been declining to answer. They're not giving Congress the information it requests because they say there's litigation going on. And, I repeat, this is a matter of public record.
Given recent other matters of public record in which government officials are refusing to come before Congress, more may be at stake in this case than the APA, including separation of powers issues.
Monday, April 15, 2019
The United States Supreme Court hear oral arguments in Iancu v. Brunetti, a First Amendment facial challenge to Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), which prohibits the Patent and Trademark Office from registering “immoral” or “scandalous” trademarks.
Recall that Brunetti's apparel line, named "fuct," was denied a trademark and a divided Federal Circuit Court panel held the provision unconstitutional. Recall also that the United States Supreme Court in Matal v. Tam (2017) held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a) violated the First Amendment, but despite the unanimous conclusion there were fractured rationales.
Indeed, whether or not Tam resolved the issue in Brunetti was a centerpiece of the oral argument, with Justice Sotomayor essentially asking the Deputy Solicitor General, Malcolm Stewart, to distinguish Tam within the first few minutes. Moreover, some of the unresolved issues in Tam — including the actual role of trademark registration, how trademark registration differs from direct prohibition, whether there could be any content (or viewpoint) basis on which to deny a trademark, and how the trademark program differs from other programs such as municipal advertising or government grants — reappeared in the Brunetti argument.
The Justices seemed troubled by any argument that the Patent and Trademark Office (PTO) could reject a trademark on the basis that a majority or "substantial segment" of people might find it objectionable, especially given changing morals and issues about which segments of the population (as Justice Ginsburg asked, would this include a composite of 20 year olds).
Justice Breyer was particularly interested in whether the PTO could reject racist trademarks. For Breyer, certain racial slurs are "stored in a different place in the brain. It leads to retention of the word. There are lots of physiological effect with very few words." While Malcolm Stewart stated that he thought racial slurs were taken off the table by Tam, in his rebuttal he stated that " with respect to the single-most offensive racial slur, the PTO is currently holding in abeyance applications that incorporate that word" pending the possibility that the present decision could leave open the possibility that that word might be viewed as scandalous.
While many of the other hypotheticals involved profanity, obscenity, or "dirty words" (FCC v. Pacifica), Justice Breyer's concern will surely be addressed by at least one opinion when the decision is rendered in Brunetti.
Saturday, April 13, 2019
United States District Judge for the Southern District of Mississippi Carlton Reeves in a speech at the University of Virginia School of Law addressed the critiques of the judiciary and the lack of diversity in judicial appointments. Judge Reeves recounts a history of the federal bench and equality, with some progress in diversifying the bench, but naming the present state of affairs as the "third great assault on our judiciary."
The written version of the speech includes footnotes, including references to presidential tweets. In speaking about "this Administration’s judicial nominations, especially those confirmed with the advice and consent of the Senate," Judge Reeves noted:
Of the Article III judges confirmed under the current Administration, 90% have been white. Just one of those judges is black. Just two are Hispanic. It’s not just about racial diversity. Barely 25% of this Administration’s confirmed judges are women. None have been black or Latina. Achieving complete gender equality on the federal bench would require us to confirm only 23 women a year. How hard could that be? . . . . Think: in a country where they make up just 30% of the population, non-Hispanic white men make up nearly 70% of this Administration’s confirmed judicial appointees. That’s not what America looks like. That’s not even what the legal profession looks like.
In addition to commenting on the lack of diversity on the United States Supreme Court ("We have as many justices who have graduated from Georgetown Prep as we have Justices who have lived as a non-white person") and the duty of judges to diversify their own hiring of law clerks, Judge Reeves spoke to access to justice issues:
Courts must do more than denounce and diversify. For the attack on the judiciary aims to close the courthouse doors to those who most need justice by shrinking the size, resources, and jurisdiction of courts. Over the last 30 years,while the U.S. population has increased by over 30%; Congress has increased the number of Article III judges by just 3%. Meanwhile, there are continued attempts to close the doors to our own courtrooms. I think of heightened pleading standards, the rise of mandatory arbitration, and judges who proclaim that “prisoner civil rights cases should be eliminated from federal dockets.” Defending the judiciary requires judges to demand, not diminish, the resources they need to find truth. We must expand the reach and power of our courts, offering justice to all who claim the promise of America.
The speech is worth listening to in full:
Monday, March 18, 2019
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. "
During 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]
Wednesday, March 6, 2019
In his 126 page opinion in California v. Ross, United States District Judge Richard Seeborg has found the decision of Secretary of Commerce Wilbur Ross to add a citizenship question to the 2020 census unlawful under the Administration Procedure Act and unconstitutional under the Enumeration Clause.
Recall that California filed its complaint in March 2018, including a claim that the Constitution requires the “actual Enumeration” of all people in each state every ten years for the sole purpose of apportioning representatives among the states. U.S. Const. art. I, § 2, cl. 3, and amend. XIV, § 2, and that by including the citizenship question on the 2020 Census, Defendants are in violation of the “actual Enumeration” clause of the Constitution because the question will diminish the response rates of non-citizens and their citizen relatives.
Recall also that New York filed a similar complaint, which led to the 277 page decision in New York v. United States Department of Commerce rendered in January 2019, which is now scheduled for oral arguments at the United States Supreme Court on April 23 on the issue of whether the Secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq. An additional issue in the New York litigation — and the issue on which the United States Supreme Court first granted certiorari — involves the refusal of Secretary Ross to be deposed regarding his rationales for adding the citizenship question.
In California v. Ross, Judge Seeborg's opinion concluded that the plaintiff state of California, as well as plaintiff counties and cities in California, and the organization, Black Alliance for Just Immigration, satisfied the requirements for Article III standing. Important to this determination are questions of whether there would be actual injury in fact if a citizenship question were added to the census. Judge Seeborg extensively discussed the affidavits and experts regarding the relationship between the question and people responding to the census, an issue that dovetails with the constitutional Enumeration Clause claim. Judge Seeborg generally concluded there was Article III standing.
The major portion of Judge Seeborg's opinion is devoted to the Administrative Procedure Act. Judge Seeborg's concluded that "one need look no further than the Administrative Record to conclude that the decision to include the citizenship question was arbitrary and capricious, represented an abuse of discretion, and was otherwise not in accordance with law." However, Judge Seeborg's opinion also separately analyzed "extra-record" including
the absence of any effort to test the impact of the addition of the citizenship question to the census, the deviation from the Census Bureau’s usual process for adding new questions to the census, the troubling circumstances under which the DOJ’s request letter was drafted and procured, and Sessions’ order prohibiting DOJ staff from meeting with Census Bureau officials to discuss alternative sources of data that could meet DOJ’s VRA [Voting Rights Act] enforcement needs.
As to the Enumeration Clause, Judge Seeborg wrote:
The analysis of the Enumeration Clause claim similarly involves evidence beyond the four corners of the Administrative Record. As a general proposition, the decision to include a specific question on the census is committed to the discretion of the Commerce Secretary and does not implicate the constitutional command that all persons in each state be counted every ten years. However, if the Secretary’s decision to include a question affirmatively interferes with the actual enumeration and fulfills no reasonable governmental purpose, it may form the basis for a cognizable Enumeration Clause challenge.
Importantly, in finding the Enumeration Clause violation, Judge Seeborg concluded that the inclusion of a citizenship question
will materially harm the accuracy of the census without advancing any legitimate governmental interest. This is no ordinary demographic inquiry. The record reveals that the inclusion of the citizenship question on the upcoming census will have a unique impact on the Census Bureau’s ability to count the public, to the point where the inclusion of this question is akin to a mechanics-of-counting-type issue. In short, Secretary Ross’s decision to add the citizenship question to the 2020 Census undermines the “strong constitutional interest in [the] accuracy” of the census, and does so despite the fact that adding this question does not advance any identifiable government purpose.
[citation omitted]. The remedy for this constitutional violation is not a simple vacatur as it is for the APA injunction, but a nationwide injunction against including the citizenship question on the 2020 Census:
The record in this case has clearly established that including the citizenship question on the 2020 Census is fundamentally counterproductive to the goal of obtaining accurate citizenship data about the public. This question is, however, quite effective at depressing self-response rates among immigrants and noncitizens, and poses a significant risk of distorting the apportionment of congressional representation among the states. In short, the inclusion of the citizenship question on the 2020 Census threatens the very foundation of our democratic system—and does so based on a self-defeating rationale. In light of these findings, Defendants do not get another bite at the apple. Defendants are hereby enjoined from including the citizenship question on the 2020 Census, regardless of any technical compliance with the APA.
Given the nationwide injunction, the fast approaching deadlines for preparation of the 2020 Census, and the already-scheduled April arguments before the United States Supreme Court, the DOJ attorneys will probably act quickly to seek review of this decision.
[image: Los Angeles Census materials, 1920, via]
Monday, February 25, 2019
In a complaint filed in United States District Court for the Middle District of Florida against Donald Trump and the Donald Trump Campaign, former campaign staffer Alva Jones seeks relief on three counts: battery as against Trump in his individual capacity for a forcible kiss; unequal pay based on gender under the Unequal Pay Act against the Campaign organization; and unequal pay based on race under 42 USC §1981 against the Campaign organization.
The 39 page complaint in Jones v. Trump is filled with factual allegations, embedded tweets and photographs, and numerous footnotes. The allegations substantiating the battery claim include recitations regarding previous allegations and statements regarding similar actions.
Like the ongoing suit in New York state courts, Zervos v. Trump, for defamation linked to sexual harassment, one issue that defendant Trump could raise would be presidential immunity. But the argument for any immunity is exceedingly weak given the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones holding that then-President Clinton was subject to suit in federal court. And any immunity does not extend to the campaign organization.
And as Ronan Farrow writes in the New Yorker:
The most legally significant aspect of Johnson’s suit may ultimately be something the complaint does not explicitly address: the pervasive use of nondisclosure agreements by Trump during his campaign and in his Administration. Johnson’s suit is at least the sixth legal case in which Trump campaign or Administration employees have defied their nondisclosure agreements.
This will definitely be a case to watch, even if the constitutional issues are not the primary ones it certainly has constitutional dimensions.
Wednesday, February 13, 2019
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.
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.
Tuesday, January 15, 2019
In its 277 page Opinion in New York v. United States Department of Commerce, United States District Judge Jesse Furman concludes by vacating and enjoining the implementation of the decision of Department of Commerce Secretary Wilbur Ross (pictured below) adding a citizenship question to the 2020 census questionnaire.
Recall that this challenge is one of several to the proposal to add a citizenship question to the 2020 census. Recall also that in July, Judge Furman denied in part motions to dismiss and allowed the case to proceed. Judge Furman also allowed discovery in the form of a deposition of Wilbur Ross, an order which was stayed and is now before the United States Supreme Court: oral argument in Department of Commerce v. USDC Southern District of New York is scheduled for February 19, 2019, with the question presented as under the Administrative Procedure Act.
Here New York joins seventeen other state plaintiffs, the District of Columbia, as well as six cities and the United States Conference of Mayors, and the case is consolidated with New York Immigration Coalition v. United States Department of Commerce, with NGO plaintiffs. The claims involve the "actual enumeration" requirements in the Constitution, Art. I, § 2, cl. 3, and Amend. XIV, § 2, as well as the Administration Procedure Act, with the NGO plaintiffs also raising a Due Process/Equal Protection claim which Judge Furman considered. The case was heard by Judge Furman in an eight day bench trial, despite, as Judge Furman's opinion phrases it the Defendants who have "tried mightily to avoid a ruling on the merits of these claims."
Judge Furman's lengthy opinion helpfully contains a table of contents which serves as an outline for the complicated facts and process involved in the case.
A large portion of Judge Furman's opinion is devoted to the constitutional question of standing. This Article III issue — requiring an injury in fact, fairly traceable to the challenged conduct of the defendant, and that is likely to be redressed by a favorable judicial decision — is in essence a question of the Enumeration Clause problem. In other words, to prove injury in fact, the Plaintiffs must prove that the addition of the citizenship question would impact enumeration in a particular way, or "cause a differential decline" in self-response rates which would not be cured, and which would effect apportionment and other matters. For Judge Furman, these and other claims, including a diversion of resources, harm to the quality of data used in intrastate policies, were sufficient to confer standing to the states. Additionally, Judge Furman addressed and found for the most part associational standing for the NGO plaintiffs.
On the merits, Judge Furman rested his decision on the APA claims, including that the decision violated provisions of the APA, was arbitrary and capricious, and most unusually, pretextual.
The evidence in the Administrative Record and the trial record, considered separately or together, establishes that the sole rationale Secretary Ross articulated for his decision — that a citizenship question is needed to enhance DOJ’s VRA enforcement efforts — was pretextual.
Judge Furman found that the "presumption of regularity" was rebutted here.
However, Judge Furman found that the equal protection claim (as part of Due Process Clause of the Fifth Amendment) as pressed by the NGO plaintiffs could not be sustained. Essentially, Judge Furman found that there was not sufficient proof that the pretextual decision was a pretext for discriminatory intent necessary under equal protection, as had been alleged and survived the motion to dismiss, but which now — without the deposition of Wilbur Ross — was not possible to prove, at least not yet.
Judge Furman justified the remedy of injunction thusly:
Measured against these standards, Secretary Ross’s decision to add a citizenship question to the 2020 census — even if it did not violate the Constitution itself — was unlawful for a multitude of independent reasons and must be set aside. To conclude otherwise and let Secretary Ross’s decision stand would undermine the proposition — central to the rule of law — that ours is a “government of laws, and not of men.” John Adams, Novanglus Papers, No. 7 (1775). And it would do so with respect to what Congress itself has described as “one of the most critical constitutional functions our Federal Government performs.” 1998 Appropriations Act,
§ 209(a)(5), 111 Stat. at 2480-81.
The government is sure to appeal.
Monday, January 14, 2019
Congressman Bobby Rush of Illinois District 1 has introduced a Resolution in the House of Representatives to censure Congressman Steve King of Iowa, listing specific incidents beginning in 2006 and ending with the January 10 remark by Steve King to the New York Times: "White nationalist, White supremacist, Western civilization—how did that language become offensive?’’ Interestingly, the NYT article was profiling King as a precursor of the president's current demand for a "wall" on the southern border of the nation. In a subsequent television interview Steve King stated he rejected white supremacy.
In November, a coalition of civil rights groups wrote a letter to the then-Speaker of the House and the then-House Majority Leader seeking censure of Representative King, detailing some of the same incidents in the Rush Resolution (and providing citations) as well as including others.
Wednesday, January 2, 2019
In a column at The Atlantic, "The Path to Give California 12 Senators, and Vermont Just One," subtitled "Maybe the two-senators-per-state rule isn’t as permanent as it seems," Political Science Professor Eric Orts agrees with many others that the Senate is essentially anti-democratic and that the time has come to change the 2 senators from every state rule.
Orts recognizes that the 2 Senators per state rule is doubly-demanded by the text of the Constitution: Not only does Article I §3 provide that "The Senate of the United States shall be composed of two Senators from each State," but Article V respecting the amendment process specifically provides "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
Orts proposes that a way around these Constitutional commands — at least "arguably"— is through Congressional action. Orts contends that Congress could pass a law restructuring Senate representation like this:
Start with the total U.S. population, then divide by 100, since that’s the size of the current, more deliberative upper chamber. Next, allocate senators to each state according to their share of the total; 2/100 equals two senators, 3/100 equals three, etc. Update the apportionment every decade according to the official census.
Congressional power to do so, he seems to contend, would be grounded most obviously in the Reconstruction Amendments. He cites Equal Protection Clause cases such as Reynolds v. Sims (1964) and Bush v. Gore (2000), and argues that although
the Court trimmed a portion of the Voting Rights Act in Shelby County v. Holder in 2013, Chief Justice John Roberts, in his majority opinion, reaffirmed the authority of Congress to regulate in this field and endorsed a forward-looking orientation. “The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command," he wrote. “The Amendment is not designed to punish for the past; its purpose is to ensure a better future.”
Thus, inherent in Orts's argument is not simply that the Senate does not adequately represent the population of the United States but that this inadequacy is racialized. As he notes, under the current configuration it is states with small predominantly white populations that benefit: "in California, 38 percent of citizens are white. In Texas, that figure is 43 percent," while in the two smallest states, "Vermont is 94 percent white, and Wyoming is 86 percent white."
Indeed, Orts states that his proposal
corrects a heavy, unjustified bias favoring white citizens in the Senate. It doesn’t go too far to describe the current Senate apportionment as a vehicle entrenching white supremacy.
Would the Supreme Court uphold such a statute? Orts suggests that the Court could "stay out of the mix" by deferring to Congress or invoking the political question doctrine.
Would Congress ever pass such a statute? Orts admits that it is unlikely in large part because a more democratic Senate is a more Democratic party Senate. But, he ends, "who knows" what 2020 will bring.
[image: United States Capitol by C. E. Loven after photograph of drawing by Thomas U. Walter, via]
Friday, November 2, 2018
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:
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.
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.
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.
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.
- 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.