Friday, July 29, 2016

Fourth Circuit Court of Appeals Strikes Down North Carolina Voting Law

I have a few thoughts on the Fourth Circuit's decision today, which struck down NC's omnibus voting rights law.  North Carolina's law required voters to show a a photo ID when voting at the polls; it eliminated same date registration; it reduced the number of early voting days; it eliminated pre-registration, among its more notorious accomplishments. The Court concluded that the State enacted the law with a racially discriminatory intent.  After finding discriminatory intent, the Court shifted the burden to the State to show that the law would have been enacted in the absence of a racially discriminatory purpose.  The Court concluded that NC could not meet that burden and it struck down the law as unconstitutional. 

First, the most compelling part of the Fourth Circuit's opinion is its argument that the legislature requested racial data on how voters used various election procedures; after receiving the data the legislature decided which voting procedures they were going to change; the voting procedures that they changed "target[ed] African Americans with almost surgical precision." For example, the legislature requested racial data on voter ID and excluded many of the types of photo IDs used by African Americans but permitted the types of photo IDs used by whites.  The legislature requested racial data on early voting.   The data revealed that African Americans disproportionately used the first seven days of early voting.  The Court noted that "[a]fter receipt of this racial data, the General Assembly amended the bill to eliminate the first week of early voting, shortening the total early voting period from seventeen to ten days." This was also true for same-day registration and provisional voting.  For the race and law nerds, the Fourth Circuit's analysis here is similar to the Supreme Court's analysis in Gomillion v. Lightfoot: the way that the voting restrictions affected African Americans is only explainable if African Americans were being intentionally targeted.  The Fourth Circuit concluded: "In sum, relying on this racial data, the General Assembly enacted legislation restricting all--and only--practices disproportionately used by African Americans.  When juxtaposed against the unpersuasive non-racial explanations the State proffered for the specific choices  it made . . . we cannot ignore the choices the General assembly made with this data in hand."

Second, the Fourth Circuit also made clear that partisan discrimination is not a compelling defense or justification to a charge of vote denial or franchise restriction.  But as importantly, the Court made an important link between partisan discrimination and racial discrimination.  The Court said, "intentionally targeting a particular race's access to the franchise because its members vote for a particular party" is racial discrimination.  See also pages 40 and 56 where the Court is explicit that "targeting voters who, based on race, were unlikely to vote for the majority party[,] [e]ven if done for partisan ends, . . . constitute[] racial discrimination." This line of reasoning essentially eliminates the "it was not race it was party" defense.  This is very interesting and a potentially powerful development.

Third, this opinion is a repudiation of Shelby County.  The opinion is clear that just as "African American registration and turnout rates had finally reached near-parity with white registration" and that "African Americans were poised to act as a major force," the State tried to curtail the voting power of African Americans. The opinion strongly intimated that the State was able to do so only because of the Supreme Court's decision in Shelby County.  On page 32 of the opinion the Fourth Circuit take's Shelby County head-on and essentially refutes Shelby's claim that "history did not end in 1965."  From the perspective of the Fourth Circuit, NC has not stopped discriminating ("state officials continued in their efforts to restrict or dilute African American voting strength well after 1980 and up to the present day"). Moreover, they would have been more successful in their discriminatory attempts were it not for "the robust precautions of section 5 and suits by private plaintiffs under section 2 of the Voting Rights Act [which] prevented those efforts from succeeding." Shelby County removed that protection.  The Fourth Circuit restored it. 

Fourth and relatedly, the Court's analysis essentially shifts the burden on to the state to prove that it was not discriminating where there is a strong discriminatory impact.  The Court is explicit about its burden-shifting framework, but says it applies only where there is discriminatory intent.  But discriminatory intent here is basically shown with discriminatory impact. Yes, the Court uses NC's history of discrimination and some other factors to infer intent.  But the biggest factor is discriminatory impact.  If other courts follow this opinion, plaintiffs can get the burden shifted to the state where there is a strong discriminatory impact and a history of discrimination.  This process goes a long way toward restoring section 5's burden-shifting framework.

Fifth, I don't think this opinion would have been written the same way and I'm not sure if it would have come out the same way if Justice Scalia were still on the Court.  It is easily conceivable that this panel, given its makeup, might have struck down the most vulnerable provisions of the law but maybe not the whole thing.  Moreover, they would probably have done a disparate impact analysis instead of a discriminatory intent analysis.  The discriminatory intent finding allowed the Fourth Circuit to avoid sending the case (specifically the voter ID portion of the case) back down to the district court, which had upheld the law in its entirety. 

With a 4-4 split on contentious issues, Court of Appeals are functionally courts of last resort.  NC can cry as much as it wants, but its omnibus law is now dead.  It will be buried after the appeals have been exhausted.

Lastly, big win for the plaintiffs.  Total victory.

Fourth Circuit Court of Appeals Strikes Down North Carolina Voting Law

I have a few thoughts on the Fourth Circuit's decision today, which struck down NC's omnibus voting rights law.  North Carolina's law required voters to show a a photo ID when voting at the polls; it eliminated same date registration; it reduced the number of early voting days; it eliminated pre-registration, among its more notorious accomplishments. The Court concluded that the State enacted the law with a racially discriminatory intent.  After finding discriminatory intent, the Court shifted the burden to the State to show that the law would have been enacted in the absence of a racially discriminatory purpose.  The Court concluded that NC could not meet that burden and it struck down the law as unconstitutional. 

First, the most compelling part of the Fourth Circuit's opinion is its argument that the legislature requested racial data on how voters used various election procedures; after receiving the data the legislature decided which voting procedures they were going to change; the voting procedures that they changed "target[ed] African Americans with almost surgical precision." For example, the legislature requested racial data on voter ID and excluded many of the types of photo IDs used by African Americans but permitted the types of photo IDs used by whites.  The legislature requested racial data on early voting.   The data revealed that African Americans disproportionately used the first seven days of early voting.  The Court noted that "[a]fter receipt of this racial data, the General Assembly amended the bill to eliminate the first week of early voting, shortening the total early voting period from seventeen to ten days." This was also true for same-day registration and provisional voting.  For the race and law nerds, the Fourth Circuit's analysis here is similar to the Supreme Court's analysis in Gomillion v. Lightfoot: the way that the voting restrictions affected African Americans is only explainable if African Americans were being intentionally targeted.  The Fourth Circuit concluded: "In sum, relying on this racial data, the General Assembly enacted legislation restricting all--and only--practices disproportionately used by African Americans.  When juxtaposed against the unpersuasive non-racial explanations the State proffered for the specific choices  it made . . . we cannot ignore the choices the General assembly made with this data in hand."

Second, the Fourth Circuit also made clear that partisan discrimination is not a compelling defense or justification to a charge of vote denial or franchise restriction.  But as importantly, the Court made an important link between partisan discrimination and racial discrimination.  The Court said, "intentionally targeting a particular race's access to the franchise because its members vote for a particular party" is racial discrimination.  See also pages 40 and 56 where the Court is explicit that "targeting voters who, based on race, were unlikely to vote for the majority party[,] [e]ven if done for partisan ends, . . . constitute[] racial discrimination." This line of reasoning essentially eliminates the "it was not race it was party" defense.  This is very interesting and a potentially powerful development.

Third, this opinion is a repudiation of Shelby County.  The opinion is clear that just as "African American registration and turnout rates had finally reached near-parity with white registration" and that "African Americans were poised to act as a major force," the State tried to curtail the voting power of African Americans. The opinion strongly intimated that the State was able to do so only because of the Supreme Court's decision in Shelby County.  On page 32 of the opinion the Fourth Circuit take's Shelby County head-on and essentially refutes Shelby's claim that "history did not end in 1965."  From the perspective of the Fourth Circuit, NC has not stopped discriminating ("state officials continued in their efforts to restrict or dilute African American voting strength well after 1980 and up to the present day"). Moreover, they would have been more successful in their discriminatory attempts were it not for "the robust precautions of section 5 and suits by private plaintiffs under section 2 of the Voting Rights Act [which] prevented those efforts from succeeding." Shelby County removed that protection.  The Fourth Circuit restored it. 

Fourth and relatedly, the Court's analysis essentially shifts the burden on to the state to prove that it was not discriminating where there is a strong discriminatory impact.  The Court is explicit about its burden-shifting framework, but says it applies only where there is discriminatory intent.  But discriminatory intent here is basically shown with discriminatory impact. Yes, the Court uses NC's history of discrimination and some other factors to infer intent.  But the biggest factor is discriminatory impact.  If other courts follow this opinion, plaintiffs can get the burden shifted to the state where there is a strong discriminatory impact and a history of discrimination.  This process goes a long way toward restoring section 5's burden-shifting framework.

Fifth, I don't think this opinion would have been written the same way and I'm not sure if it would have come out the same way if Justice Scalia were still on the Court.  It is easily conceivable that this panel, given its makeup, might have struck down the most vulnerable provisions of the law but maybe not the whole thing.  Moreover, they would probably have done a disparate impact analysis instead of a discriminatory intent analysis.  The discriminatory intent finding allowed the Fourth Circuit to avoid sending the case (specifically the voter ID portion of the case) back down to the district court, which had upheld the law in its entirety. 

With a 4-4 split on contentious issues, Court of Appeals are functionally courts of last resort.  NC can cry as much as it wants, but its omnibus law is now dead.  It will be buried after the appeals have been exhausted.

Lastly, big win for the plaintiffs.  Total victory.

Fourth Circuit Court of Appeals Strikes Down North Carolina Voting Law

I have a few thoughts on the Fourth Circuit's decision today, which struck down NC's omnibus voting rights law.  North Carolina's law required voters to show a a photo ID when voting at the polls; it eliminated same date registration; it reduced the number of early voting days; it eliminated pre-registration, among its more notorious accomplishments. The Court concluded that the State enacted the law with a racially discriminatory intent.  After finding discriminatory intent, the Court shifted the burden to the State to show that the law would have been enacted in the absence of a racially discriminatory purpose.  The Court concluded that NC could not meet that burden and it struck down the law as unconstitutional. 

First, the most compelling part of the Fourth Circuit's opinion is its argument that the legislature requested racial data on how voters used various election procedures; after receiving the data the legislature decided which voting procedures they were going to change; the voting procedures that they changed "target[ed] African Americans with almost surgical precision." For example, the legislature requested racial data on voter ID and excluded many of the types of photo IDs used by African Americans but permitted the types of photo IDs used by whites.  The legislature requested racial data on early voting.   The data revealed that African Americans disproportionately used the first seven days of early voting.  The Court noted that "[a]fter receipt of this racial data, the General Assembly amended the bill to eliminate the first week of early voting, shortening the total early voting period from seventeen to ten days." This was also true for same-day registration and provisional voting.  For the race and law nerds, the Fourth Circuit's analysis here is similar to the Supreme Court's analysis in Gomillion v. Lightfoot: the way that the voting restrictions affected African Americans is only explainable if African Americans were being intentionally targeted.  The Fourth Circuit concluded: "In sum, relying on this racial data, the General Assembly enacted legislation restricting all--and only--practices disproportionately used by African Americans.  When juxtaposed against the unpersuasive non-racial explanations the State proffered for the specific choices  it made . . . we cannot ignore the choices the General assembly made with this data in hand."

Second, the Fourth Circuit also made clear that partisan discrimination is not a compelling defense or justification to a charge of vote denial or franchise restriction.  But as importantly, the Court made an important link between partisan discrimination and racial discrimination.  The Court said, "intentionally targeting a particular race's access to the franchise because its members vote for a particular party" is racial discrimination.  See also pages 40 and 56 where the Court is explicit that "targeting voters who, based on race, were unlikely to vote for the majority party[,] [e]ven if done for partisan ends, . . . constitute[] racial discrimination." This line of reasoning essentially eliminates the "it was not race it was party" defense.  This is very interesting and a potentially powerful development.

Third, this opinion is a repudiation of Shelby County.  The opinion is clear that just as "African American registration and turnout rates had finally reached near-parity with white registration" and that "African Americans were poised to act as a major force," the State tried to curtail the voting power of African Americans. The opinion strongly intimated that the State was able to do so only because of the Supreme Court's decision in Shelby County.  On page 32 of the opinion the Fourth Circuit take's Shelby County head-on and essentially refutes Shelby's claim that "history did not end in 1965."  From the perspective of the Fourth Circuit, NC has not stopped discriminating ("state officials continued in their efforts to restrict or dilute African American voting strength well after 1980 and up to the present day"). Moreover, they would have been more successful in their discriminatory attempts were it not for "the robust precautions of section 5 and suits by private plaintiffs under section 2 of the Voting Rights Act [which] prevented those efforts from succeeding." Shelby County removed that protection.  The Fourth Circuit restored it. 

Fourth and relatedly, the Court's analysis essentially shifts the burden on to the state to prove that it was not discriminating where there is a strong discriminatory impact.  The Court is explicit about its burden-shifting framework, but says it applies only where there is discriminatory intent.  But discriminatory intent here is basically shown with discriminatory impact. Yes, the Court uses NC's history of discrimination and some other factors to infer intent.  But the biggest factor is discriminatory impact.  If other courts follow this opinion, plaintiffs can get the burden shifted to the state where there is a strong discriminatory impact and a history of discrimination.  This process goes a long way toward restoring section 5's burden-shifting framework.

Fifth, I don't think this opinion would have been written the same way and I'm not sure if it would have come out the same way if Justice Scalia were still on the Court.  It is easily conceivable that this panel, given its makeup, might have struck down the most vulnerable provisions of the law but maybe not the whole thing.  Moreover, they would probably have done a disparate impact analysis instead of a discriminatory intent analysis.  The discriminatory intent finding allowed the Fourth Circuit to avoid sending the case (specifically the voter ID portion of the case) back down to the district court, which had upheld the law in its entirety. 

With a 4-4 split on contentious issues, Court of Appeals are functionally courts of last resort.  NC can cry as much as it wants, but its omnibus law is now dead.  It will be buried after the appeals have been exhausted.

Lastly, big win for the plaintiffs.  Total victory.

Monday, July 25, 2016

What's happened to us (or, what explains the allure of a Donald Trump candidacy)?

The candidacy of Donald Trump takes me back to law school.  I will never forget the day we discussed Shaw v. Reno -- the North Carolina racial gerrymandering case -- and the professor called on the guy in the back.  The guy in the back had not done the reading.  And upon every question, his answer was the same: "I don't know."  But there was something about the way the guy in the back answered the questions.  He must have seemed convincing enough.  And the case must have been confusing enough.  The professor liked those answers just fine.  

I bet the guy in the back must be a successful litigator somewhere.

This is the way I think about the Trump candidacy.  How could any of this happen? I don't know.  How could a person with no political experience get this far?  I don't know.  How could a person with such a checkered past get this far?  I don't know.  How could a person with as many bankruptcies and divorces speak for the "moral majority"?  I don't know.  How could a person recently labeled a racist by an influential columnist get this far?  I don't know. 

I could go on.

These are the questions that journalists and political scientists are now asking.  They are interesting questions.  As I think about the Trump candidacy, however, my mind goes back to the founding of the United States and the many fears and concerns that occupied the minds of the founding generation.  They feared precisely this, populism and what might amount to mob rule.  They feared direct democracy.  They feared the union of citizens "actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community."  This is where checks and balances came in, and federalism, and separation of powers, and the Senate, and the Electoral College.  You can add to this list the rise of the party system and its disciplining influence on the impulses and passions of the masses.  

You can read many accounts of what has happened to the Republican party to get us to where we are today. I am more interested in a separate question: isn't Trump's the very candidacy that our constitutional structure is designed to avoid?  It is tempting to go back through time and compare the 2016 election cycle  with prior cycles (1964 is a popular example, and the Goldwater candidacy).  But I agree with those who argue that Trump is sui generis. His candidacy is unique.  And it raises the question:  What has happened to us?  Is this who "We the People" are, at out core?  Is the Trump candidacy a reflection of our basest instincts?  

Unlike the guy in the back, we know the answers to these questions.  

Tuesday, July 19, 2016

What the reaction to Justice Ginsburg's words teach us about judicial supremacy and critiques of the Court

In recent days, Justice Ruth Bader Ginsburg offered some very candid remarks about the presumptive Republican nominee Donald Trump.  She noted, quite correctly, that she could not imagine what the country would be with Trump as president.  She called him inconsistent, “a faker,” and egotistical.  She joked that her late husband would have wanted to move to New Zealand if Trump were elected.

Nothing about the substance of these comments should strike us as odd or misconceived.  Yes, Trump is inconsistent.  Yes, he is a “faker.”  And yes, he has an outsized ego.  Further, few of us can imagine what the country would be like under a Trump presidency.  And many of us might consider moving to New Zealand after the election.  But what rankled so many people was the source of these comments.  Justice Ginsburg was out of line, or so the reaction goes.  Her comments were “understandable but injudicious.”  As a Supreme Court Justice, she must not enter political debates, nor may she compromise our perception of justices as constitutional animals who reside outside the world of politics.  Justice Ginsburg caved by the end of last week, and offered a half-hearted apology.

For the life of me, I cannot understand why she would have to do that.

There is something intriguing (and even interesting) about Ginsburg’s comments and the immediate reaction that ensued.  To be sure, we could say that Justice Ginsburg violated no laws or rules of ethics.  We could also say that she is on the side of history and John Stuart Mill: this is not new, as justices have campaigned before, and more speech is always better.  We could even say that she wouldn’t have to recuse herself in a future hypothetical case involving Trump.  We could go even further: Trump is no ordinary candidate; these are not ordinary times; and Ginsburg did a very courageous thing.

All these arguments remain at the margins of a much more important debate.  How did we end up in a place where the Supreme Court can decide presidential elections on purely political grounds, thrust itself into the most pressing questions of our day, take sides in policy debates and issue opinions that need not make any sense whatsoever (I am looking at you, Shelby County v. Holder) and yet we stand back and defend a myth of the justices as apolitical creatures?  In other words, how did we arrive at a place in our constitutional history where the Court can neuter the Voting Rights Act on specious legal grounds, take up continuous challenges to the Affordable Care Act, and  deadlock over President Obama’s immigration directive on ideological grounds, yet suffer no apparent damage, constitutional, political or otherwise?

In this vein, I cannot help but ask, whatever happened to the countermajoritarian critique that so attracted conservatives scholars and pundits in the 1960’s?  The difficulty was not as difficult as it once appeared, is it?

What we need, instead of opprobrium against Justice Ginsburg, is an argument for why this is a Court worth defending.  And no, vacuous rhetoric about the value of judicial independence will not do.

It is much harder than it sounds.

Thursday, July 14, 2016

The Wisdom of Eight


In the recent Zubik v. Burwell, the “Little Sisters” contraceptive mandate case, the U.S. Supreme Court took the unusual step of the sending the lawsuit back to the lower federal courts and instructed them to try to “arrive at an approach going forward that accommodates the petitioners’ religious exercise while at the same time ensuring that women covered by petitioners' health plans “receive full and equal health coverage, including contraceptive coverage.” Reactions to the Court’s order have been mixed, though largely negative. Critics generally complain that the Court must be able to provide definitive and final answers to legal questions. According to these critics, the ability to resolve legal differences and lend clarity to the law is central to the Court’s role. This is something that an 8-member Court is not able to do. More damningly, an 8-member Court is “Not So Much Deadlocked as Diminished. The obvious solution is for the Senate to confirm a ninth justice.
This is puzzling on many fronts. As a question of constitutional history: the Court hasn’t always had an odd number of justices. Under the Judiciary Act of 1789, in fact, the Court would have one chief justice and five associate justices. The Court also had an even number of justices (ten) during the Civil War. This history suggests that a focus on mere numbers misses the larger story. The focus should not be on the need for a new justice to break all ties when the Court is closely divided, but on why there is a need for such a justice at all. In other words, the focus should be on the rise and fall of the norm of consensus and its lessons about the Court, constitutional law, and judicial behavior. What does the need for a tie-breaking justice tell us about the institution, the justices, and constitutional interpretation? These are not idle questions.
As a question of constitutional law: The Court is not the final constitutional arbiter that critics of Zubik wish it to be. This is largely a myth fostered by the legal culture and the Court itself. The justices are keenly aware of the impact of their decisions on the relevant publics and acts accordingly. This is true across the Court's history, from the time of Marbury to Brown and the present day. Think about the last time the Court valiantly took on democratic majorities in the name of constitutional law.
I can't think of many either.
Whether we like it or not, the Supreme Court is generally in line with public moods and trends. This is particularly true for the notable cases that occupy the public’s attention, and about which the justices care deeply. These are the politico-moral issues, which are perceived as having right/wrong answers and thus have the potential to polarize a nation. These are the issues that opinion polls track, the issues that the public follows and understands, the issues about which most of us care deeply, including the justices. These are the classic “litmus test” issues, such as abortion and affirmative action, which Senators are sure to ask about during confirmation hearings, and which the public wants to know about prior to confirmation. These are the issues that define judicial eras. For the issues that matter, then, constitutional meaning is deeply influenced by public opinion. As a result, the Court is only as final as the public wants it to be.
As a question of constitutional theory: think about the amount of ink spilled in the last generation over the proper role of the Court in a democratic society. The debate has been deafening. To date, the critics might have the upper hand. It is difficult to reconcile judicial review with democratic theory. This is why the end of this Term offers a simple yet brilliant answer to Bickel’s famed difficulty: a diminished Court. And yet, critics of Zubik take the opposite view, and wish for a muscular and aggressive Court to take on existing majorities. What lies behind these arguments? Is constitutional theory no more than a question of whose ox is being gored?






Thursday, December 11, 2014

What do Affirmative Action and the Recent College Football Playoff Selection Have in Common?

Three days ago, the college football selection committee finalized its final four choices to take part in the first annual playoff to determine the sports national champion.  The University of Oregon and and the University of Alabama were certain to make it, but the other two choices were a bit more controversial.  Critics of Florida State University argued that, though undefeated, FSU played a soft schedule and escaped from defeat myriad times this season.  The fourth choice, Ohio State University, was even more surprising.  Never in the time I have watched college football do I remember a time when a team jumps those above it in any type of ranking, whether traditional polls or BCS rankings, after all the relevant teams win their final games.  Ohio State destroyed Wisconsin, to be sure, but Baylor and TCU similarly won their games.  And yet Ohio State made it into the playoffs.  And the debates began.

I watched these developments with great amusement.  I wondered whether anybody else could see the connection between this so very public debate and the use of race in employment, college admissions, and elsewhere.

The similarities are astounding. And it makes clear that the affirmative action debate should be more like the college football selection process.  But there is no chance of that.  When it comes to race, reason and judgment leave us, and stupid sets in.