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Monthly Archives: June 2013


Voting Wrongs

While the American public eagerly waits to see if the Supreme Court will reach for the rainbow this week, the Court did something very nasty to a signature piece of civil rights legislation, the Voting Rights Act of 1965. More specifically, it gutted a provision that has been central to enforcement of the act in communities whose history of restricting voting rights inspired the act’s passage. For those of you who aren’t experts on voting rights, I’ll promise to try to minimize the wonkiness of the next two paragraphs. (I’d also highly recommend Amy Howe’s “In Plain English” recap at SCOTUSBlog.)

When civil rights activists sought to challenge Jim Crow-era restrictions on voting rights in the South, their task was made more difficult by the fact that disfranchisement did not come in the form of a single enactment denying suffrage to African-Americans. Rather, states maintained an intricate web of overlapping laws and informal practices, such that judicial invalidation of any one measure would leave many others in place. Attacking disfranchisement thus took on a Whack-a-Mole quality; fight one restrictive practice successfully, and others would soon pop up. And the entire system left significant discretion in the hands of officials to obstruct African-American would-be voters for any or no reason at all. (I still remember vividly hearing my graduate advisor, Lucius Barker, tell his civil rights/civil liberties classes about his experience, as a newly minted Ph.D., trying to register to vote in Jim Crow Louisiana. I share the account with students in my Supreme Court classes, though I’m sure I can’t quite capture the experience fully.) 

The Voting Rights Act provided a wide range of protections, but perhaps its most significant came in its attempt to keep states with dirty hands from enacting new restrictive measures. Under Section 5, “covered” jurisdictions would have to receive “preclearance” from either the Justice Department or a three-judge panel before they could change their electoral laws, practices, or procedures. Preclearance was required for matters as large as redistricting plans, and as small as proposals to relocate polling places. (Moving polling places without prior notice was one effective way to discourage African-American voters from showing up.) Section 4 of the act determined which jurisdictions were covered, and the key indicators were the presence of restrictive devices and of low voter turnout that reflected a history of discrimination. (Here’s a list of covered jurisdictions; note the skew toward the old Confederacy.) What made the preclearance requirement so effective was its inversion of the burden of proof: Instead of requiring the Justice Department to demonstrate that proposed changes were discriminatory, covered jurisdictions would now be required to demonstrate that these changes would not adversely affect minority voting rights.

Here’s the quick-and-dirty version of how the Court justified its decision to strike down Section 4:

1. The coverage requirement was once an appropriate response to extraordinary circumstances. Even though some states lost some of their traditional prerogative to control their own elections, the need to overcome Jim Crow in voting overrode state sovereignty. 

2. Those extraordinary circumstances no longer exist. Literacy tests and other restrictive devices are a thing of the past. Minority voter registration and turnout are roughly on par with white registration and turnout, and minority candidates for office have attained some measure of success.

3. It is unfair to single out particular jurisdictions for extra scrutiny, given current conditions. If Congress wishes to impose greater demands on certain states, then those demands must reflect prevailing conditions, not those of 1964.

Here’s what’s missing from the majority opinion:

1. Any recognition that the improvements which, to the majority, justify abandoning the coverage formula did not arise out of nowhere. Rather, they were in large measure the result of having to conduct one’s election-related business in the shadow of Section 5. Will bad behavior return now that the Voting Rights Act’s toughest deterrent has been neutralized? Based on the wave of state voter ID laws over the several years (one of which the Court upheld), as well as the continuation of felon disfranchisement laws dating back to Jim Crow (and enacted for racially illicit purposes), I would expect no less. Outreach toward groups you’ve treated hostilely is hard and requires a certain amount of self-reflection and, perhaps, penance. Much easier to keep them from voting. (And, as if on cue, within hours of the ruling Texas announced its plan to implement a voter ID law that had been blocked by Section 5.)

2. Any recognition that Congress, when it reauthorized the Voting Rights Act in 2006 with massive majorities in each chamber (390-33 in the House, 98-0 in the Senate), did not consider the coverage formula obsolete or the preclearance requirement onerous. The reauthorization was not done in a fit of absent-mindedness; rather, it reflected the product of 21 hearings and was bolstered by a legislative record exceeding 15,000 pages, as Justice Ruth Bader Ginsburg noted in her dissenting opinion. Maybe the coverage formula could benefit from an update, but that decision would appear to fall to Congress, which is expressly empowered by the Fifteenth Amendment to enforce the amendment through appropriate legislation. Instead, a five-justice majority has arrogated to itself the power to determine what is “appropriate.” Perhaps now we can dispense with the pretense that judicial activism, however one defines it, is somehow exclusively the province of liberals?

3. Any recognition that covered jurisdictions could escape Section 5 coverage by demonstrating to the Justice Department that they had clean hands on voting rights for the past decade. Indeed, dozens of jurisdictions have successfully availed themselves of the Voting Rights Act’s bailout provision. Shelby County, Alabama, the petitioner in the case announced today, did not have anything approaching clean hands, which explains why the county, instead of seeking a bailout, sought to have the Supreme Court change the rules of  the game.

4. An explanation of why, if the preclearance requirement is such an affront to the dignity of sovereign states, Section 5 was left standing. Chief Justice Roberts invited Congress to enact a new coverage formula that could take current conditions into account, but the House is more likely to vote to repeal the 22nd Amendment so that President Obama can run for a third term. Justice Thomas’s concurring opinion advocated striking down Section 5 too, and while I disagree with him on the merits of the move, I agree that once you’ve taken out Section 4 and utilized the reasoning that you did, there’s not much reason to prop up Section 5.

I should note that the Court’s decision does not portend a return to 1964. Literacy tests and white primaries will not be returning. And Section 2 of the Voting Rights Act, which has nationwide effect, “prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups” specified elsewhere in the act. But while Section 2 has considerable utility in protecting voting rights, it has certain disadvantages compared with Section 5. Most notably, Section 5’s preclearance requirement can block restrictive policies and actions before they can take effect. In contrast, Section 2 lawsuits come after the policies have taken effect, place the burden of proof on challengers, and might offer remedies of limited value to successful challengers, given that the actors who enacted the restrictive policies might already have profited from their actions. What’s clear is that barring a congressional response, the voting rights landscape suddenly became much bleaker for those who rely on Washington to protect them from state and local governments seeking to rig the electoral deck.


Affirmative Inaction at the Supreme Court

Ten years ago, when the Supreme Court ruled on two University of Michigan affirmative action programs, Justice Sandra Day O’Connor included this dictum: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Many Court observers saw the decision to hear another university affirmative action challenge as an opportunity for the Court’s conservative majority to abandon that timetable. Justice O’Connor, the author of the ruling upholding Michigan Law School’s program (Grutter v. Bollinger), had been replaced by Samuel Alito, who was widely viewed as less hospitable to race-consciousness in public policy than his predecessor. And nothing had happened in the political or cultural arena to make affirmative action less controversial or easier to sell to skeptics.

So it was surprising to see the Court, in Fisher v. University of Texas at Austin, decline to issue a sweeping ban on affirmative action in public higher education, and instead opt for a distinctly more minimalist ruling based on the failure of the Court of Appeals for the Fifth Circuit to apply the appropriate standard of review to Abigail Fisher’s equal protection claim. (Fisher is a white woman who claimed that the University of Texas at Austin’s decision not to admit her for undergraduate study was the product of the state’s impermissible use of race in its admissions decisions.) Earlier rulings had held that affirmative action programs would be constitutionally acceptable only if they were narrowly tailored to serve a compelling government interest. While seven of the eight participating justices (Justice Kagan recused herself because she was Solicitor General while the case was in the lower courts) were willing to defer to the University of Texas’s claim that the benefits of attracting a diverse student body constituted a compelling interest, it was less willing to accept at face value the claim that the university’s program provided individualized assessments of each applicant, or that the university could not have achieved its aims without using race-conscious means. Because the Fifth Circuit did not closely scrutinize the university’s program when it upheld a district court’s summary judgment in the university’s favor, the Court sent the case back to the Fifth Circuit with instructions to apply the more demanding standard of review. 

For progressives, this ruling is about as good as one could have hoped for. (The presence of Justices Sotomayor and Breyer in the majority coalition signals as much.) It left the existing program in place, and it relied on precedents that an adverse ruling in Fisher could easily have overturned. But the ruling had something to offer conservatives as well. There’s a good chance that the Fifth Circuit, having been instructed to put its back into its application of strict scrutiny, might strike down the Texas program. The ruling also signals other lower courts facing similar claims that they should view affirmative with a skeptical eye. Perhaps most important, the Court has already scheduled for review next term a challenge to a Michigan ballot initiative that banned race- and sex-based preferences in public university admissions decisions. That case could provide the vehicle for a broader gauged attack on affirmative action, and nothing in Fisher precludes the Court from taking an approach that is more stringent in its insistence on color-blindness.

I am puzzled that it took the Court so long to reach its conclusion, though. Fisher was argued in October, and much of the speculation surrounding the delay proffered the theory that a sweeping ruling was coming, and that the delay was prompted by the writing of one or more lengthy dissents, which would then prompt the majority opinion writer to edit his or her work in response. But that didn’t happen here. Why did the Court need nine months if it was just going to punt the case back to the Fifth Circuit? That seems like a decision one could make during an extended happy hour. Here’s my speculation as to what happened:

As a occasional procrastinator who has taught more than my share of procrastinators, I’d like to think I know a few things about procrastination. People procrastinate for many reasons, but one is the desire to delay an unpleasant reckoning. My sense is that Justice Kennedy, author of the majority opinion, needed time to reckon with how to extricate himself from a bind of his own making–namely, his votes in the Michigan affirmative action cases. Chief justices often assign majority opinions to their colleagues in the middle as a way of cementing their loyalty to the majority coalition’s position, and there’s a good chance that Chief Justice Roberts had something like this in mind when he assigned the opinion to Justice Kennedy. If, in the course of writing an opinion to invalidate the program, Justice Kennedy had developed cold feet, he would have faced great difficulty in reconciling his decision with his earlier votes against affirmative action, given that the challenged element of the Texas program didn’t differ significantly from the Michigan program he had voted to invalidate. Voting to vacate and remand allowed him to reiterate the Court’s concerns about race-consciousness in public policy while not producing any immediate public policy consequences. Justices Scalia and Thomas might eventually achieve their goal of invalidating all affirmative action, but for now they will have to bide their time. 


The Supreme Court, DNA testing, and the Innocence Project

As I reviewed the Supreme Court’s ruling last week, in Maryland v. King, on the permissibility of taking DNA samples from individuals arrested under suspicion of having committed “serious” crimes, I wondered how folks at the Innocence Project would view the ruling. On one hand, the Innocence Project relies heavily on DNA evidence to exonerate death-row inmates who did not commit the crimes for which they were to have been executed. On the other hand, the Court’s prosecution-friendly ruling might not sit well with a group devoted to protecting defendants’ rights. My curiosity grew when I saw that the Innocence Project did not file an amicus curiae (3rd-party) brief in King.

Adam Liptak’s article in Monday’s Times indicates that the group’s leadership was less than thrilled with the majority opinion, or at least with Justice Kennedy’s use of a 2000 book, Actual Innocence, whose authors include Innocence Project co-founders Barry Scheck and Peter Neufeld. In particular, Neufeld and Actual Innocence co-author Jim Dwyer objected on two levels.

First, part of Justice Kennedy’s opinion defended Maryland’s use of DNA samples in a way seemingly designed to appeal to protectors of defendants’ rights: “In the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense.” For Neufeld, this claim might have been more persuasive had the Court not ruled in a 2009 case, District Attorney’s Office v. Osborne, that prisoners did not have a constitutional right to access the state’s evidence for the purpose of DNA testing that might exonerate them. So non-consensual testing, in the Court’s view, was permissible in a situation where the individual is still presumed innocent, but voluntary testing designed to support one’s actual innocence can be denied by a state without triggering a due process violation.

Second, the co-authors of Actual Innocence objected to the way in which Kennedy quoted their book. Here’s what Kennedy wrote (brackets and ellipses are the justice’s):  “[P]rompt [DNA] testing … would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of … innocent people.” As Liptak notes, the first ellipses span over six sentences and imply that the quoted source supports prompt DNA testing for purposes of connecting arrestees to cold cases, a position the authors had never backed, when the original passage referred instead to collecting and testing evidence from crime scenes. Moreover, the ellipses between “grotesque detention of” and “innocent people” excludes the phrase “thousands of,” which drastically downplays the amount of error that the authors believe permeates the criminal justice system. In short, the quotation misleadingly conscripts the Innocence Project in support of an opinion its founders do not back. It’s not quite as bad in a sense as the PR person who takes a review that describes a film as “a creative failure on so many levels” and turns it into a blurb that says “creative…on so many levels.” But I expect better from a Supreme Court justice.


At long last, some nominees to the DC Circuit

For several months now, the Obama administration has been promising that while it had been slow to nominate judges during Obama’s first term in office, the second term would be different. Well, today the president nominated three individuals to fill the existing vacancies on the Court of Appeals for the DC Circuit. The nominees–Cornelia T. L. Pillard, Patricia Ann Millett, and Robert L. Wilkins–offer diversity in the way that so many people have to come to define diversity. More specifically, they would add two women and an African-American man to what is widely considered the second most powerful court in the country. But they also bring some much-needed diversity in a less appreciated sense: their prior work experience. Pillard, for one, has a strong track record of litigating against gender discrimination in the workplace. And Wilkins, who currently serves as a federal trial judge, brings twelve years of experience as a public defender, a less common route to the bench than serving as a prosecutor.

The search for some disqualifying datum on each of these nominees has barely begun in earnest, but the sin of being appointed by a Democratic president should suffice for many Senate Republicans. The recent proposal, spearheaded by Iowa’s Charles Grassley, to shrink the DC Circuit from its current eleven seats to eight reflects this kind of thinking. The previously uncontroversial act of nominating people to fill existing vacancies has become, in the Age of Obama, “court-packing,” a term formerly reserved for attempts to manipulate the size of courts for nakedly partisan purposes–kind of like what Grassley’s proposing. And given the willingness of Senate Republicans, Grassley included, to vote for George W. Bush’s nominees for the tenth and eleventh spots on the Court of Appeals, it’s hard to take seriously the claim that workload considerations are driving the proposal when there’s been little evidence that the workload has grown in size or difficulty over the past four years. Grassley’s proposal is quixotic in the sense that it has no prayer of clearing the Senate, but it does signal a new level of bullheaded obstructionism on the part of Senate Republicans.

Whether Senate Democrats will be able to overcome this obstructionism remains unclear. On one hand, Obama’s public appearance with his nominees at the announcement this morning signals a certain urgency about filling these positions, an urgency that progressives have been demanding for years. And Senate Majority Leader Harry Reid is too shrewd (others will disagree with my assessment, I’m sure) to threaten to end the filibuster for judicial and executive branch appointments unless he has some willingness to pull the trigger. Indeed, the threat of the “nuclear option” could serve to prod Republicans into some grudging amount of compromise. At the same time, however, the president and Senate Democrats are wary of escalating partisan rancor at a time when the top legislative priority, immigration reform, is advancing because of rare bipartisan cooperation. And Republicans who vote for immigration reform, contrary to the desires of much of their base, might feel compelled to oppose Obama’s nominees as a way of showing that they haven’t gone soft in their opposition to all things Obama. The problem the White House faces is twofold: (1) voters care much more about immigration than they do about sub-Supreme Court judicial appointments; and (2) some Senate Democrats, fearing powerlessness should their party become a minority, have been reluctant to support filibuster reform. Stay tuned….