Tag Archives: Voting Rights Act

Judicial Roundup

By tmess2 | Published November 26, 2023

November has seen two big developments in the courts that are of political interest which unfortunately can be characterized as the bad and the ugly.

The bad comes to us from the Eighth Circuit.  Traditionally, the Eighth Circuit has been somewhat on the conservative side, but mostly within the mainstream of traditional conservative thought.  It’s current compositions (by appointing president) is one from Daddy Bush, five from Shrub, one from Obama, and four from Trump.  This past week, a panel of the Eighth Circuit issued an opinion in Arkansas State Conference of the NAACP vs. Arkansas Board of Apportionment.  If you could not tell from the title, this case is a challenge to redistricting in Arkansas under the Voting Rights Act.  The trial judge in the case was a Trump appointee, and, based on a theory currently making its way among the far right, the trial judge dismissed the case on the theory that only the Attorney General can bring a case under Section 2.  In an opinion written by one of the Trump appointees, the panel adopted that theory.  The Trump appointee was joined by a Shrub appointee.  The third judge (a Shrub appointee) dissented.

The basis of the theory of the majority is textualism gone amok.  Technically, there is no express provision in the Voting Rights Act saying that private individuals can challenge district lines.  And, if this were a case of first impression involving just Section 2 and Section 2 had been written today, this argument might make sense.  Currently, courts are very reluctant to infer new causes of action. Continue Reading...

Posted in Civil Rights, Judicial | Also tagged , , , Comments Off on Judicial Roundup

Voting Rights Act — A Glimmer of Hope

By tmess2 | Published June 11, 2023

On Thursday, the United Supreme Court issued its opinion in Allen v. Milligan,  a case in which Alabama voters challenged the state’s new congressional district lines under Section 2 of the Voting Rights Act.  As people may remember, due to COVID and the resulting delay in the 2020 census, Alabama completed its redistricting process shortly before filing began.  Although the voters quickly filed their case, and the three-judge panel quickly heard the challenge and issued its decision, a 5-4 majority decided that any change caused by any new lines issued by the judges would be too close to the start of the election process (but that the legislation changing the lines was not) for the judge-drawn lines to be used in the 2022 election.  So the 2022 election was held under the new lines drawn by the legislature while the U.S. Supreme Court decided whether those lines were valid.  In its ruling this week, five justices (with Justice Kavanaugh switching sides and Justice Jackson replacing Justice Breyer) upheld the trial court ruling.

To start with the legal considerations, Section 2 of the Voting Rights Act bars any voting practice or procedure that causes a protected group to “have less opportunity than other” groups “to elect representatives of their choice.”  While Section 2 also contains language disavowing an express requirement of proportionality, previous cases have found that Section 2 applies to redistricting and that it requires those bodies charged with redistricting to consider whether the maps give sufficiently large racial and ethnic groups a fair shot at electing a proportionate number of members.  Basically, this is done by drawing either “minority influence” districts (in which minorities are a large enough percentage of the voters that they can form a majority by aligning with like-minded non-minority voters) and “minority majority” districts. (in which the minority group is over 50% of the likely voters).

The current language in Section 2 was adopted in the early 1980s.  The first major case applying Section 2 to redistricting devised a three-part test.  First, the voters needed to show that minority voters are sufficiently concentrated that there is a reasonable map which would give them an additional minority influence or minority majority district.  In equal protection cases, the Supreme Court has made clear that maps that grossly violate traditional considerations to force geographically dispersed minority enclaves into the same district are forbidden.  Second, the voters must show that the minority group is politically cohesive.  In other words, that a significant majority sees itself as one group and tend to support the same type of candidate.  (For example, it might be harder to show that Asian voters are a group but easier to show that Vietnamese voters are a group.)  Third, the voters must show that the majority group (almost always white voters) will oppose the candidate supported by the minority group.   In other words, the last two parts require showing that racialized voting is still common in the jurisdiction. Continue Reading...

Posted in Civil Rights, Elections, House of Representatives, Identity Politics, Judicial | Also tagged , , , , , , Comments Off on Voting Rights Act — A Glimmer of Hope

Quick Hit — Redistricting and Voting Rights Act

By tmess2 | Published June 8, 2023

Today’s Supreme Court opinions included a 5-4 decision affirming a preliminary judgment invaidating the Alabama Congressional Districts under the Voting Rights Act.  We will have a more detailed analysis of the decision this weekend.  But the quick hit is that this decision will probably result in new lines in Alabama and Louisiana which will include a second African-American majority district in both states.

This decision partially offsets the impact of the weird, blatantly partisan, decision of the North Carolina Supreme Court to revert back to the original map after originally striking that map down, and New York might try to draw a new set of lines.  Thus, the state of play for the House is still up to further legislation action this fall.  But, today was a good day for a more representative House.

Posted in Civil Rights, Judicial | Also tagged , , Comments Off on Quick Hit — Redistricting and Voting Rights Act

Supreme Court — October 2022 Term — First Look at the Remaining Cases

By tmess2 | Published June 4, 2023

It’s the first full week of June.  And that means that the clock is rapidly ticking to the end of this year’s Supreme Court term.  By custom, the Supreme Court tries to issue all of the opinions from the term before the Fourth of July holiday.  (It then spends the last three months of the term handling emergency motions and preparing for the next term.)

As we look ahead, some basics about how the Supreme Court operates.  During the argument portion of the term, the Supreme Court holds seven “monthly” — October through April — argument sessions (not quite as sessions often occur partly in two months but that is the convention used to describe the sessions).  In each session, the court hears arguments on Monday, Tuesday, and Wednesday (with some days skipped for federal and religious holidays).  Then on Friday, they discuss that week’s cases (along with applications for review) and take a tentative vote on each case.  After the vote, the “senior justice in the majority” (either the Chief Justice or the longest serving Associate Justice in the majority if the Chief Justice is the minority) chooses which justice gets to write the first draft of the opinion.  Typically, the justices assigning the opinions try to assure a balanced assignment of cases within the session (i.e., if there were nine cases, each justice would get one opinion to write) and across the term as a whole.   When we reach this point of the term, we have enough opinions from individual argument sessions to try to guess who will have the opinion.

Starting with October, we are down to one outstanding case — the Alabama voting rights case.    The bad news is that there are only two justices without an opinion from October — the Chief Justice and Justice Thomas.  It is slightly more likely that the Chief Justice has the case   He tends to like writing election cases.  While both are very likely to write an opinion that would undermine the Voting Rights Act, Justice Thomas is more likely to want to write an opinion that reverses the decision entirely (with no further proceedings) and the Chief Justice is more likely to send it back to the trial court for further consideration (in light of a standard which allows Alabama to dilute minority votes) so there is a slim chance that the Chief Justice ended up on the wrong side of a 5-4 split.  But my hunch is a 6-3 opinion that ignores the plain language of the Voting Rights Act. Continue Reading...

Posted in Judicial | Also tagged , , , , , , , , Comments Off on Supreme Court — October 2022 Term — First Look at the Remaining Cases

Supreme Court — October Term 2022 Preview (Part 1)

By tmess2 | Published September 24, 2022

It’s that time of year again.  After upending the Constitution at the end of the 2021-22 term in June, the Supreme Court begins its 2022-23 term in just over a week.

A quick refresher.  From October through late April/Early May., the Supreme Court will have seven two-week argument sessions.  With the exception of extended breaks after the “December” and January argument sessions, the typical schedule is two weeks of arguments followed by a two-week recess.  In most of the weeks, the Supreme Court will have arguments on Monday, Tuesday, and Wednesday (except when one of those days is holiday — either legal or religious).  On argument days, the Supreme Court will usually hear two cases in the morning.  (That “usual” is very flexible.  With the declining number of cases granted in recent years, we have been seeing more single argument days.  Additionally, if there is a very complex case, they might give that case extended time and limit themselves to one case.  Rarer is having enough cases that they also schedule an afternoon argument.)  They will then meet in a “conference” on Friday to discuss the cases heard that week and to consider petitions for review (officially called petitions for certiorari).  They also meet in a conference on the Friday before the argument session to consider petitions for review.  Orders on the petitions for review are released on the Monday after the conference.  In discussing the cases heard, the Supreme Court will take a tentative vote and the “senior justice in the majority” (either the Chief Justice or the longest serving Associate Justice) will assign one of the justices to write an opinion. Opinions can be released at any time after the argument.

The October argument session (and the term) officially begins on the first Monday in October (October 3, this year).  They will meet in the “long conference” to kick off the term on September 28.  (It is called the long conference because petitions for review have been piling up since the last conference of the 2021-22 back in late June.) Continue Reading...

Posted in Judicial | Also tagged , , , , , , , , , , Comments Off on Supreme Court — October Term 2022 Preview (Part 1)

The Most Dangerous Branch — End of Term Reflections

By tmess2 | Published July 3, 2022

In the Federalist Papers, the Judiciary was called the “Least Dangerous Branch.”  The thought was that the Supreme Court relied on the other branches to follow through on court orders.  However, in our legal system, court orders are usually obeyed.  And, between gerrymandering, filibusters, and the equality of the states in the Senate, it is very hard to get the types of majorities that allow real change in the “political” branches.  Courts, however, simply require a majority to act.  And the relentless campaign of the far right has left us with a Supreme Court that borders on being as political as any other branch of government.  That is not to say that every decision is political.  There are lots of legal issues that are not partisan in nature.  And there are some issues that split conservatives.  However, on this Court, when there is a clear partisan divide over an issue, the result is a foregone conclusion regardless of what the true facts and precedent dictate.    The last week of the term gave us three cases in which Senator Mitch McConnell’s abuse of Senate rules resulted in rulings that we would not have gotten in 2015.

The first case is Kennedy v. Bremerton School District.  What makes this case significant is that this case is ultimately about what version of the facts one chooses to belief.  The normal rule is that appellate courts take the facts as found by the lower courts or in the light most favorable to the lower court.  In this case, however, a major conflict between the two opinions is their characterization of the facts.  The majority sees the practice of the petitioner — a public high school coach kneeling on the football field at the end or the game — as a private act of worship.  The dissent (and the lower courts) saw the act as a public display by a government employee in the course of his employment.  The normal practice when the case is this fact-dependent and the facts are unclear is to “dismiss as improvidently granted.”  Instead, the majority picks and chooses the disputed evidence that supports the legal rules that it wishes to establish notwithstanding compelling evidence supporting a contrary reading of what happened.  In doing so, the Supreme Court announces that the Lemon test for the Establishment Clause has been discarded (as well as other tests for an Establishment Clause violation) and replaced by (wait for it) a historical analysis of what would have been considered an establishment of religion.  It should shock nobody that this approach means that very little will be a violation of the Establishment Clause.  With the Establishment Clause neutered, that just leaves the Free Exercise Clause and the Free Speech Clause.  Given the fact that the Supreme Court has greatly expanded the impact of these two clauses, the end result for the forces of protecting the rights of Christian Theocrats over the rights of everybody else is a foregone conclusion.

The second case Oklahoma v. Castro=Huerta.  This case involves criminal jurisdiction on tribal lands in Oklahoma.  Several years ago, in a 5-4 decision (with Justice Ginsburg) on the Supreme Court, Justice Gorsuch and the four liberal justices ruled that no treaty or act by Congress ever formally disestablished the native reservations in Eastern Oklahoma even as non-Natives bought the land on the reservation.  As such, the lands were still legally part of those reservations.  Under federal statute, crimes by natives against natives on reservations have to be tried in tribal court or federal court (depending on the offense).  The new case involved crimes against natives by non-natives.  With Justice Barrett instead of Justice Ginsburg, there were five votes against tribal authority and in favor of state authority.  As such, the majority — thanks to a rushed confirmation by Senator McConnell in the fall of 2020 — found that Oklahoma also had the authority to try such cases in state court.   Now, both this decision and the earlier decision are based on statutes.  In theory, Congress could fix the laws related to the relationship between tribal authority and state authority to fix the issues brought out by cases (or actually appropriate the money to hire enough prosecutors, public defenders, and judges to handle a large number of cases on tribal lands in Oklahoma), but the deadlock in Congress makes this highly unlikely. Continue Reading...

Posted in Climate Change, Elections, Judicial | Also tagged , , , , , , , , , , , , , , Comments Off on The Most Dangerous Branch — End of Term Reflections

The Supreme Court and Voting Rights

By tmess2 | Published February 13, 2022

Parties seeking to challenge a new law have to make a choice between filing a case in federal court (assuming that they have a federal constitutional claim) and filing in state court.  Unless you have a favorable state Supreme Court, the usual tendency is to file in federal court.  However, it is becoming very clear that, if you are challenging an illegal redistricting plan, you really have to file in state court as the U.S. Supreme Court will not be give any assistance to plaintiffs.

This week, the U.S. Supreme Court had what should have been a no-brainer.  When faced with a challenge to the Alabama district lines under Section 2 of the Voting Rights Act, the three-judge panel issued a lengthy order which included detailed analysis of the evidence and tracked the governing precedent under Section 2.  Under the existing law (and the plain language of Section 2), the Alabama maps were and are illegal.  Under the legal standards governing a stay (which takes into account the merits and the interests of the parties), there was no basis for a stay.  The Supreme Court should have denied the stay and summarily affirmed the judgment.

But that’s not what the Supreme Court did,   By a 5-4 vote, the Supreme Court issued the stay and put the case on the argument docket for the fall.  Because there is no requirement for opinions on stays, we only know the reasoning of some of the justices.  And what we do know gives a strong hint that the Voting Rights Act is effectively dead. Continue Reading...

Posted in Civil Rights, Elections, Judicial | Also tagged , , , , Comments Off on The Supreme Court and Voting Rights

Redistricting 2022

By tmess2 | Published January 29, 2022

The legislative part of redistricting is almost complete.  Only nine states are still in the process of drafting the “first” set of maps.  (Tw of those nine states are my home state of Missouri and the neighboring state of Kansas.  In both states, the maps are through one house of the legislature and are under consideration in the second house.)  In three states (Connecticut, Pennsylvania, and Wisconsin), the first set of maps defaulted to the courts when the legislatures and the governors were unable to agree on the new maps.

But in the remaining states, the maps have been adopted.  And that means that the battle over the maps has moved to the courts.  At this point, I am aware of three states in which we have rulings about the new maps.  Two of them are no surprise, or, at least, not much of a surprise.  In Ohio, the Ohio Supreme Court found that the map passed by the Ohio legislature violated the Ohio Constitutions rules on redistricting which bars drawing a map which unduly favors one political party or unduly splits political subdivisions.  In North Carolina, the North Carolina Supreme Court has under review an initial decision upholding the maps drawn by the North Carolina legislature.  The North Carolina Supreme Court will hear arguments on February 2.  Right now, it looks more likely than not that the North Carolina Supreme Court will strike down the map in that state.

The surprise on the list might be Alabama.  Alabama was not on the list of states that we looked at last year.  The failure to do so caused us to miss a change in demography within the state.  For the last several cycles, there has been one minority-majority district in western Alabama (the Seventh District).  In previous decades, the consensus was that — even though approximately one-quarter of the state is African-American — the minority population was too dispersed to creeate a second district that would either be a minority-majority district or close enough to qualify as an influence district.   (Part of the theory of the case is that the new districts dilute the influence of African-Americans in violation of Section 2 of the Voting Rights Act or is a racial gerrymander in violation of the Equal Protection Clasue.)  After the last census, however, it appears that by placing Birmingham in one district (the Seventh District) and Montgomery in a separate district in the southern part of the state, you could get two minority-majority districts (or at least two districts that would qualify as influence districts).  For now, the panel of judges hearing the Voting Rights Act case has ordered that Alabama will not be allowed to use the new maps pending a final decision (and has given Alabama thirty days to submit replacement maps or the court will draw maps for this election cycle).  Alabama has asked the Supreme Court to put this ruling on hold, and the Supreme Court has asked the plaintiffs for a response by February 2. Continue Reading...

Posted in Elections, House of Representatives | Also tagged , , , , , , Comments Off on Redistricting 2022

A Republic if You Can Keep It

By tmess2 | Published July 4, 2021

While many American today are celebrating the anniversary of the issuance of the Declaration of Independence, the United States Supreme Court spent this week giving a green light to Republican attempts to cook the ballot box.  Forty years ago, both parties supported the Voting Rights Act.  Democrats wanted to increase minority representation in government, and Republicans realized that compliance with the Voting Rights Act made it easier for them to pack Democrats into “minority” districts and, thereby, make swing districts lean Republicans.

But drawing district lines is merely one way to reduce minority influence.  And, most importantly, district lines play no role in state-wide race.  To reduce minority influence in state-wide races, you need to keep minorities from voting.  And, while the Voting Rights Act clearly bars the blatant techniques like literacy tests which can be directed at minority voting, the question has remained about techniques which merely make it more difficult for minorities to vote.

Unfortunately, we now have a generation of Republican lawyers who have been hostile to the Voting Rights Act in the majority on the Supreme Court.  And we saw the results this week in a decision out of Arizona — Brnovich vs. Democratic National Committee.   This is not the first time that the issue of the meaning of Section 2 and the test that Congress wants the courts to use in analyzing Section 2 claims has been before the Supreme Court.  The original version of Section 2 merely barred practices which states were using to abridge the right of minority groups to vote.  After the Supreme Court interpreted that provision as only barring practices upon proof of a discriminatory intent, Congress amended Section 2 bar practices which “result” in the abridgment of the right of minorities to vote. Continue Reading...

Posted in Civil Rights, Elections, Judicial, Senate | Also tagged Comments Off on A Republic if You Can Keep It

Supreme Court — The Final Week (Updated)

By tmess2 | Published June 26, 2021

This past week was a busy week with the justices issuing eleven opinions which means that there are only five cases left to be decided — two of which are extremely significant.

As discussed in last week’s post, the Supreme Court tries to keep assignments to each justice balanced both within each month and as the term progresses.  That gives us a clue as to which justice could have an opinion.  But within each month, once you have identified the candidates, it is pure speculation as to which justice seems most likely to have the opinion.  And as we have already seen several times this term, trying to guess which justice will get assigned the opinion from the potential candidate will often be wrong.  For example, last week, I guessed that Chief Justice Roberts was most likely to have Brnovich (the voting rights case) from February.  While the Chief Justice did have a February opinion, it ended up being Arthex — a patent case involving the Appointments clause.  Similarly, many had the Chief Justice writing the Obamacare case from November with the Justice Alito writing Fulton, but Justice Breyer got the Obamacare case and the Chief Justice got Fulton.  

The big question is how many opinions each justice will get.   With fifty-four opinions and nine justices, each justice in theory should have six opinions.  But Justice Barrett started one month late.  Currently, Justice Thomas has seven opinions which means that, at least one justice should have five opinions).  So far, Justice Barrett has been one opinion behind the pace for the entire term (one through November, three through February).  As such it seems like Justice Barrett will end up with five opinions for the term with Justice Thomas having the extra opinion and the remaining justices having six opinions each.  The problem with that theory is that Justice Breyer had the extra opinion in October/November and Justice Thomas did not pick up the extra opinion until April.  So does Justice Breyer still have one opinion left (in which case he is due for one in the December-February period and some other justice besides Justice Barrett only has five opinions)? Or did that extra opinion migrate over the course of the term (in which case any justice with only five opinions for the term could be the justice who had the extra opinion at the end of February)? Continue Reading...

Posted in Judicial | Also tagged , Comments Off on Supreme Court — The Final Week (Updated)