Tuesday, November 08, 2016

Lawsuits on Keeping Polls Open Late

One story of election law tonight will be requests to courts to keep the polls open late because of some mishap today.  We already have one lawsuit filed in Durham, NC, and another one is brewing in Colorado.  I've written an Op-Ed for CNN suggesting that courts, in general, should grant these requests.  Here is the intro:

Long lines are a routine part of Election Day in many places. So too are requests that courts order polls to stay open late. When in doubt, judges should grant these requests.

Florida Democrats already won an order to keep polls open late in one Miami polling site during early voting on Sunday night due to road closures earlier in the day. The judge wrote that extending the polling hours was necessary "to avoid abuse and to protect and preserve the Constitutional and statutory voting rights of Miami-Dade County citizens."
 
In previous elections, however, some courts have not been so welcoming of requests to keep the polls open past the statutory closing time. During the 2000 election, a Missouri court of appeals reversed a trial court decision that had ordered the polls open late in some St. Louis precincts. The court wrote that "commendable zeal to protect voting rights must be tempered by the corresponding duty to protect the integrity of the voting process."
 
Similarly, in 2002, the Arkansas Supreme Court reversed a lower court decision that had extended the closing time for an hour and a half in one county because that county did not have enough voting booths or supplies. The state supreme court ruled that the closing hour under the state's election law was "clear," failing to recognize that the decision would have a tangible effect in disenfranchising some people who had come to the polls earlier but had not been able to cast a ballot.
 
This formulation is backward.
 
Read the full piece here.

Posted by Josh Douglas on November 8, 2016 at 06:03 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (0)

New RegBlog Essay: "Expanding the Right to Vote"

Looking for some mid-Election Day reading?  RegBlog at the University of Pennsylvania Law School has just published my essay, Expanding the Right to Vote.  Here is the intro:

A common storyline on voting rights is that conservative legislatures, like those in North Carolina, Texas, and Wisconsin, are attempting to pass strict laws that make it harder for some people to vote—all in the name of curbing so-called “voter fraud.” Yet in the face of these unfortunate new rules, a positive trend is developing in other places: states are enfranchising more people and making voting easier. As voters head to the polls today, we should take note of and learn from these successes so that we can replicate them nationwide, extending them far beyond Election Day 2016.

From expanding the electorate, to adopting online voter registration or automatic voter registration, to making the voting process itself easier and more convenient, states and localities are actively engaged in democracy-enhancing efforts.

Read the whole thing here.

Posted by Josh Douglas on November 8, 2016 at 01:15 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (0)

Monday, November 07, 2016

Mickey Mouse for President? The Law of Write-In Voting

Many voters this year have expressed dissatisfaction with both major party candidates. My own politically precocious 12-year-old has grilled me about the viability of several third-party candidates (to which questions I replied with Socratic questions of my own until he gave up and did his own research that, incidentally, led to an article in his school paper giving a thumbnail sketch on Clinton, Trump, Johnson, Stein, and McMullin).  But even he did not profile the ubiquitous write-in protest vote (for a voter's favorite defeated primary candidate or a voter's mother or, as in one case, a voter's deceased dog).  Apparently, a few poll workers in Kansas were instructed to tell voters that "write-in votes don't count," but the actual rule varies by state.  It is worth considering the applicable rule before you write in anyone, however, because it very well may be that writing in a random name is, literally, throwing away your vote (meaning, it is actually thrown out).  There is a lot of misinformation about this out there, so I did a little bit of research this morning and here's what I came up with (this from a non-election law expert, so please be gentle).

States can (and many do) prohibit or limit a voter's ability to write in a candidate on the ballot. Kansas, for example, is one of the states that seems to limit one's ability to vote, restricting your choices to (a) the enumerated candidates or (b) those write-in candidates that have filed with the KS secretary of state an "affidavit of write-in candidacy for the offices of president and vice-president" before "12:00 noon on the 2nd Monday preceding the general election for those offices." For this election, that means that in order for a vote for a particular write-in candidate to be considered (and count) in Kansas, that write-in candidate must have filed this affidavit before October 24th. Kan. Stat. Ann. § 25-305 (West). This statute has been tested and upheld by the 10th circuit on the basis of a state's interest in voter education (Hagelin for President Comm. of Kansas v. Graves, 25 F.3d 956, 960 (10th Cir. 1994)). 

Limits on a voter's ability to write-in a candidate may seem unconstitutional to you (and to me), but it has been upheld by the Supreme Court (Burdick v. Takushi, 504 U.S. 428, 441 (1992)). The Supreme Court case upheld Hawai'i's ban on write-ins. Oklahoma's complete ban on write-in votes for presidential and vice-presidential elections was deemed constitutional in Coalition for Free and Open Elections, Prohibition Party v. McElderry, 48 F.3d 493 (10th Cir. 1995). The Supreme Court denied certiorari in that case. Other states have now and in the past completely banned write-ins as well, but the more common approach seems to be to require registration or to state that ballots that are not printed legibly won't be counted (well, duh!).

In Kansas, voters are not completely barred from writing in candidates in a presidential election, but only votes for registered candidates will count. (FYI, Kansans are also barred from writing in to indicate affiliation with a non-enumerated party in their voter registration. This rule was upheld by a federal court in 2011 and affirmed by the 10th circuit. Constitution Party of Kansas v. Biggs, 813 F. Supp. 2d 1274, 1276 (D. Kan. 2011), aff'd sub nom. Constitution Party of Kansas v. Kobach, 695 F.3d 1140 (10th Cir. 2012)).  

People are often confused about write-in rules, particularly since states apparently change them periodically and since they vary widely among jurisdictions. It doesn't help when poll workers are told that "write-ins are illegal," which of course they are not (what, are you going to be fined because you write a candidate in? I can't believe that ever would be the case!).   

All this raises a good question that a friend of mine articulated - Why on earth would anyone write in an unregistered candidate at all? Someone who hasn't announced he or she is running for President and who likely will get all of ONE vote (yours)? Well, in cases that have considered the question of legality of write-in bans from the point of view of the voter, rather than the candidate, the right to write-in is equated, once again, to a type of free speech.  The idea is, of course, that a vote for "Mickey Mouse" is a protest vote, a "none-of-the-above" vote, and that casting this sort of vote should have some sort of speech-related impact, something beyond staying home on Election Day.  This sort of speech could only have any actual effect if write-in protest votes were to be aggregated, tabulated, and announced.  If 10% of voters wrote in some random protest name at the polls, say, perhaps that fact in itself could be newsworthy and suggest a high level of dissatisfaction with the process and candidates.  If you have a write-in ban or limitation to registered (or real, live) people, however, then you lose the ability to be part of this sort of collaborative, grassroots protest voting speech.

Thus, even though I really, really want to write in Lin Manuel Miranda for President (because how awesome would that be!?), I guess I will have to restrain myself tomorrow. 

Happy Voting, everyone!

 

Posted by Andrea Boyack on November 7, 2016 at 04:41 PM in Constitutional thoughts, Current Affairs, Deliberation and voices, First Amendment, Law and Politics | Permalink | Comments (4)

How Would a Disputed Presidential Election Proceed?

It is the scenario virtually no one wants to face: a presidential election that goes into overtime.  Yet over the past week I have received a steady stream of questions on how a post-election dispute would proceed.  Each of the fifty states has its own, detailed procedure for resolving an election contest over its presidential electors (or any other election).  

As I write in a new piece for CNN:

As polls tighten and Donald Trump has cast doubt on the reliability of the election system, talk inevitably has turned to whether we might be in for another postelection dispute.

In addition to the possibility of federal court litigation, each of the 50 states has its own, detailed mechanism for handling a disputed presidential election. Although the procedures vary by state, they all generally suffer from the same destabilizing mechanism: a lack of safeguards to root out the appearance of partisanship.
 
The CNN Op-Ed further notes that although many states send an election contest to their state courts like a regular lawsuit, other states have different procedures: sending a case directly to the state supreme court, using a specially-constituted court, creating a non-judicial tribunal, sending it to the legislature, and in one state even having the governor decide!
 
My article Procedural Fairness in Election Contests includes an Appendix with a 50-state chart of the election contest procedures in every state, describing the procedural mechanisms for election contests for every type of election (president, congress, governor, state legislature, etc.).  It's a good resource, I think, but let's hope we don't need it tomorrow night!

Posted by Josh Douglas on November 7, 2016 at 10:33 AM in Civil Procedure, Constitutional thoughts, Law and Politics | Permalink | Comments (0)

Sunday, November 06, 2016

How Voter Intimidation, in a State with a Strict Voter ID Law (Texas), Happens on the Ground

A Facebook post from a woman in College Station, Texas is going viral regarding her experiences voting under Texas's strict voter ID law.  Earlier this year a federal court expanded the law to allow voters who show a "reasonable impediment" to having the required ID fill out an affidavit and then vote.  Here is how this person described her experience invoking that rule:

As I’m writing this down, what happened doesn’t sound as bad as it felt at the time; but I felt threatened and I still feel very upset and I want to share my story. This morning, I excitedly took the bus to my university polling center to cast my vote. I was armed with my Utah driver’s license, ready to sign a declaration stating my reasons for not having a Texas ID. I was met by a kind older woman, who asked to see my ID, and then asked to see my supporting document (my utility bill). In comes our guy, let’s call him Jim, “Excuse me, you must have an acceptable photo ID.” I explained that I looked up the rules, and that I brought with me two forms of ID. Jim, “Do you have a passport?” I said I did not. Jim, “Well why not? Are you registered to vote in this county?” Yes, sir, I am. Jim, “Well if you were able to register to vote you should have one of the acceptable forms.” He was being extremely rude and physically in my face. Unfortunately, as a minority female, it’s not the first time an older white man has attempted to patronize or intimidate me. The girl behind me leaned forward and whispered, “He did the same thing to me yesterday, and wouldn’t let me vote.” I decided to just be nice about it and say, “Jim, I’m just here to vote. Please don’t make me cry,” because at this point the adrenaline was flowing a bit and I was on the verge of tears. “Well you’ll need to sign an affidavit.” As he walked me over to the table of forms, he felt the need to say, “You know there’s lot of people are coming in here trying to vote illegally… a federal judge made an exception for this election allowing some people to vote…” And I was so upset at this point, I said, “I’m sorry sir, but I don’t really need to hear your opinions this morning. I just need your help voting.” How many people have been intimidated by this guy, and left without voting? I almost left in tears and if I do say so myself, I’m not easily intimidated. He stood over my shoulder and watched me check the boxes “work schedule” and “family responsibilities” because the man doesn’t know me, he doesn’t know my life, and it’s not up to him to decide who gets to vote. His job is to give me the form and watch me sign it. Then I voted. I got my sticker. Then I turned around and said, “What was your name again?” He said, “Jim.” I said, “No, your full name.” He looked surprised and told me his full name. He knows I’m filing a complaint and so does everyone in that room. The woman behind the desk winked at me.

Those who follow politics may be tempted to think that because I live in Texas, which is not a toss-up state, a few voters turned away by this guy won’t make a big difference. I think it makes a huge difference. Whether it’s because I’m a woman, because I’m brown, because I’ve never needed a passport because I don’t have the money to travel, because I haven’t found the time to get a Texas DL (because, you know, I’m only a wife, mother, and graduate student) or just because I’m from Oregon and not Texas, my vote counts. And like it or not, Texas is getting browner. And one day some people might wake up to find themselves in a new political climate of all kinds of diversity. That’s the America I believe in.

For reference: If you do not possess a form of acceptable photo identification and you cannot obtain one due to a reasonable impediment, you may present one of the supporting forms of identification and execute a Reasonable Impediment Declaration. “Your reason may not be questioned.” www.votetexas.gov

Yes, this stuff actually matters on the ground to individual voters.

Posted by Josh Douglas on November 6, 2016 at 11:39 AM in Constitutional thoughts, Law and Politics | Permalink | Comments (3)

Thursday, November 03, 2016

10th Circuit: Kansas' Documentary Proof of Citizenship Voter Registration Requirement Will Not Be Enforced

In Kansas, voters cannot simply wake up on election day and decide to vote.  There is no spur-of-the moment voting (and no mail-in ballots other than absentees).  Voting in Kansas requires forethought and planning through advance registration, and it takes showing up at the polls with a valid ID and having one's photo and signature confirmed to be a match to those on the registration -- but at least, thanks to the 10th Circuit's opinion on October 21st, it will not take documentary evidence of U.S. citizenship.

The terms of Kansas'  Secure and Fair Elections (SAFE) Act requires that "an applicant shall not be registered [to vote] until the applicant has provided satisfactory evidence of United States citizenship" according to enumerated documentation, such as a U.S. passport or a birth certificate.  Earlier this year, the League of Women Voters of Kansas, with the help of the ACLU, challenged this law as running afoul of the the National Voter Registration Act.  The District of Kansas granted a preliminary injunction against enforcement of the policy back in May, and this allowed 18,000 Kansans to vote in the state's presidential primary on August 2nd.  On appeal, the 10th Circuit, through Judge Jerome Holmes, held that the Kansas proof of citizenship voter registration law violated  the NVRA.  The NVRA protects American voters' right to vote with only supplying the "minimum amount of information necessary."  The 10th Circuit found that the minimum amount necessary does not include proof of citizenship. The court's opinion, issued on October 21, 2016, addressed the preliminary injunction only, not the merits of the case (although, of course, likelihood of success on the merits is a component of preliminary injunction oversight). (AP story on the case is here).

The court held that the Kansas government had been unable to show any significant problems with non-citizens attempting to vote, and that "it cannot be that, while intending to create a simplified form of registration for federal elections, Congress adopted such a malleable statutory principle (i.e., minimum information) that the states could effectively become the final arbiters of what is required under the NVRA by the simple expedient of claiming that one noncitizen managed to register to vote."

The 10th Circuit found adequate threat of irreparable harm (if the SAFE Act was enforced) because "over 18,000 Kansans stood to lose the right to vote in the coming general elections—elections that are less than one month away."  Of course, these 18,000 Kansas were those who had already registered to vote using the "federal form" rather than following the statutorily required proof of citizenship method.  Who knows how many people were dissuaded by the SAFE Act requirements from even attempting to register. The October 21st ruling came too late for anyone not already registered to vote: The Kansas voter registration deadline for the November 8th election was on October 18th.

The state voter information site now contains a statement (at the very bottom) explaining that "due to recent court rulings, if you have applied to register to vote at a Kansas Division of Motor Vehicles office or if you have applied to register to vote using the “Federal Form” voter registration application (as opposed to the standard ‘state form’) and have not yet provided proof of citizenship, you are registered to vote for the November 8, 2016, general election. Your name will appear on the poll book for your voting location and you will be given a standard ballot."  The online voter registration site, however, contains no reference to the 10th Circuit opinion (but, of course, it is too late for anyone not registered to become able to vote in Kansas anyway). 

(Toto, I think we're not in Washington state anymore!)

For more on this case and voting in Kansas, see here (local news story about the ruling), here (news story about one man's struggle to vote), and here (criticizing the 10th Circuit for "flipping state powers on its head and bastardizing a statute").    

Posted by Andrea Boyack on November 3, 2016 at 06:58 PM in Constitutional thoughts, Current Affairs | Permalink | Comments (0)

Wednesday, November 02, 2016

"Protecting the Right to Vote in Missouri"

All 50 state constitutions explicitly confer the right to vote.  This is in contrast to the U.S. Constitution, which protects the right to vote merely implicitly through the Equal Protection Clause as well as through passive language in various amendments ("The right of citizens of the United States to vote shall not be denied or abridged...").  Moreover, in Article I, Section 2 and the Seventeenth Amendment, the U.S. Constitution contemplates that federal voter qualifications are subject to state control, saying that those who may vote for Congress are those who may vote for the state legislature (subject, of course, to the constitutional floor within the various voting amendments).  Thus, our constitutional structure recognizes a broad role for states to determine the scope of the constitutional right to vote.

Understanding this broader state constitutional grant of voting rights, several state supreme courts, including the Missouri Supreme Court in 2006, have held that strict voter ID laws infringe on that right by, in essence, adding an additional "qualification" to vote that goes beyond what the state constitution allows.  Given that the U.S. Supreme Court refused to strike down Indiana's voter ID law under the Equal Protection Clause in Crawford v. Marion County Election Board in 2008, this state constitutional protection is significant.

But Missouri voters will decide next week whether to overrule this precedent and amend the state constitution to allow the legislature to adopt a restrictive voter ID requirement.  This is a bad idea, and voters should reject Amendment 6.  I explain why in a new Op-Ed for the St. Louis Post-Dispatch:  

As the nation debates so-called election rigging and voter fraud, one bright spot in our democracy is the robust protection for the right to vote in the Missouri Constitution.

Missouri was among the first states on the right side of history in the debate over voter ID laws. In 2006, the Missouri Supreme Court ruled that the state constitution vigorously protects the right to vote and that the state’s photo ID law infringed that fundamental right.

Yet this year Missouri will decide whether to amend the state constitution to allow voter ID requirements. Voters in Missouri, and elsewhere, should continue to allow the state constitution to provide robust protection for voting rights and reject Amendment 6, the proposed state constitutional amendment that would denigrate the right to vote.

 The piece concludes:

By amending the state constitution, then, Missouri would be courting significant harms. It would disenfranchise valid voters for no good reason. It would turn back 10 years of admirable jurisprudence on robust protection for the right to vote under the state constitution. It would invite additional federal court litigation on the potential discriminatory aspect of the new rule. And it would — dangerously — greatly weaken a recognized fundamental right within the state constitution.

Missouri elections do not suffer from in-person voter fraud — the only kind of fraud that a photo ID provision would prevent. Missouri elections do, however, enjoy a positive attribute: a state constitution that vigorously protects the right to vote and a state Supreme Court that recognizes the significance of this state constitutional safeguard. Amending the state constitution to overrule this precedent will only harm the state’s elections.

If there has been a positive story of the right to vote over the past several years, it is that state courts, at least in some places, have gone beyond the U.S. Constitution to protect the right to vote under state constitutions.  We should continue that tradition.

 

Posted by Josh Douglas on November 2, 2016 at 09:26 AM in Constitutional thoughts, Law and Politics | Permalink | Comments (0)

But first, let me take a ballot selfie!

Social Media has been playing a huge (or is that “yuuuge”?) role in Election 2016: Twitter attacks, Facebook op-eds, youtube campaign videos, and now, Instagram and Snapchat ballot selfies. And although both candidates and constituents have and continue to use social media to express themselves, state law in nearly half of the country criminalizes this last type of “Freedom of Speech” – namely, taking a photograph of your completed ballot and posting it online.

Purported Risk of "Vote Buying" Schemes

Prevention of vote buying is the cited rationale behind ballot selfie bans. The concept being that exhibiting a photograph of a completed ballot would be the only method to cash-in on an offer to sell one's vote.   I don't find this reasoning very compelling. It seems that if someone really wanted to take a photograph of a completed ballot for a secret reason such as an illegal vote-buying transaction, it would be ridiculously easy to do so, even with the “no photographing” rule on the books. Cameras aren’t the awkward and obvious contraptions that they were in prior generations. Cameras today can be part of your phone, your watch, and, who knows, maybe even disguised as a flash drive or pen (the possibilities are limitless).  Furthermore, if the vote being bought was cast as a mail-in ballot, as are absentee votes and basically all voting in the Pacific Northwest, then ballot selfies are even easier to do. The one thing that you would probably not do - if you were taking a photograph simply in order to cash in on an illegal vote-buying scheme - would be to post that incriminating evidence on social media.

Freedom of Speech (er... Freedom to Snap & Post)

Even if there is a remote possibility that such photographs could be part of nefarious vote-purchasing schemes, ballot selfie bans also raise serious free-speech issues, and upon examination, federal courts in two jurisdictions have already declared such bans unconstitutional. An Indiana law that banned ballot selfies was struck down last year when Federal Judge Sarah Evans Barker of the state's Southern District found that the law could not survive strict scrutiny because the state "entirely failed to identify any such problem in Indiana relating to or evidencing vote buying, voter fraud, voter coercion, involuntary ballot disclosures, or an existing threat to the integrity of the electoral process" (Indiana Civil Liberties Union v. Indiana Sec'y of State, 2015 WL 12030168).  On September 28, 2016, the 1st Circuit ruled that a similar ban in New Hampshire also impermissibly impinged on freedom of speech. The 1st Circuit went so far as to call ballot selfie bans “antithetical to democratic values.” (Rideout v. Gardner, 2016 WL 5403593).

On Friday (October 28, 2016), the 6th Circuit bucked the trend by reversing the district court-issued injunction that prevented the enforcement of Michigan’s ballot selfie ban with respect to the coming election. (Crookston v. Johnson, 2016 WL 6311623.) Judge Jeffrey Sutton, writing for a divided court, held that although the “interesting First Amendment issues” would eventually be adjudicated, for the purposes of November 8th, the Michigan ban on ballot selfies would stand.  The Michigan ballot selfie ban operates to disqualify a ballot that has been photographed. The plaintiff in this case, Joel Crookston, actually had his vote invalidated in 2012 after he snapped and posted a photo of his completed ballot. The majority of the 6th Circuit seemed insufficiently concerned that Crookston’s free speech would be impermissibly curtailed in the coming week by virtue of a ballot selfie ban. “A picture may be worth a thousand words,” wrote the court, “but social media users can (and do) post thousands of words about whom they vote for and why.” Although admitting that “lingering issues remain” with respect to the First Amendment effects of the selfie ban, the 6th Circuit concluded that “there will be time for due deliberation” after the election. 

Chief Judge Cole dissented, holding that because the penalty for taking and posting a ballot selfie was nullification of the vote, the majority had effectively caused voters to choose “between their freedom of expression and their right to vote.” Cole explained that restrictions on speech must serve a significant government interest and be narrowly tailored, and the Michigan ballot selfie ban fails to meet either requirement. Judge Cole was not convinced by the three alleged “important government interests,” namely (1) discouraging vote-buying and coercion,” (2) ensuring “that the polling place is a sanctuary for all,” and (3) preventing delays. “While all of these may be government interests in the abstract, there is disproportionality between the interests stated and the ballot selfie prohibition created by these laws and instructions,” wrote Judge Cole. Yesterday (October 31, 2016), citing the dissent, Crookston’s attorney filed an emergency motion for rehearing in the hopes that the issue can, in fact be definitively addressed prior to the election.

Ballot Selfie Bans - A Constitutional Open Question

The law regarding ballot selfie bans is inconsistent and in flux. On October 23, the Associated Press reported on the state of the law, state-by-state, but this listing is already outdated because of the recent Michigan ruling.  A brief glimpse at the AP's 50-state survey shows how widely varying state laws on this issue. Some states (like Hawaii, Utah, and Nebraska) have laws specifically protecting a voter’s right to take a ballot selfie. Many states neither prohibit nor explicitly allow photographs of ballots. Some states have recently repealed laws that prohibited ballot selfies (for example, California – although this change will not take effect until January), and similar legislative measures are pending in other jurisdictions (for example, New Jersey).  A few states allow photographs of mail-in ballots, but do not allow photographs at polling places in general (for example, Iowa, Maryland, Texas, and Tennessee).  

At least 18 states, however, explicitly outlaw the practice of photographing and showing one’s own ballot, whether at the polling place or (for a mail-in ballot) at home. Although a few state spokesmen (Alaka, Massachusetts) have stated that a state law ban on ballot selfies could not be practically enforced, other states lay out clear penalties for violation of the rule. In Michigan, a ballot selfie will lead to invalidation of the ballot. In several states, a ballot selfie is a misdemeanor that could carry a fine. In Illinois, knowingly showing your completed ballot to another person is a felony that carries a prison sentence of one to three years.

Infographic from NBC News:

50 state ballot selfie ban

 

 

It will be interesting to see if a national consensus develops over the next several months as the ACLU, Snapchat, and various individuals continue to challenge these laws. The next expected opinion pertains to the New York law, and Judge Castel (S.D.N.Y.) says he’ll issue his opinion by the end of this week.  

Meanwhile, the ACLU just sued in Northern California seeking a restraining order that would prohibit enforcement of the selfie ban law, even though a bill repealing that ban has already been signed into law.   The ACLU points out, however, that the new law’s effective date in early 2017 comes too late to matter for Election 2016. “This is an incredibly contentious election. Thousands of our members want to engage in this core political speech, and not just show people how they are voting but try to encourage others to vote the same way," Michael Risher, an attorney with the ACLU of Northern California, said in a statement. "On November 9, it will be too late for them to do that.” Risher called ballot selfies "core political speech at the heart of the First Amendment," however the sought-after injunction seems more symbolic than pragmatic.  “In its 125-year history, California's ban on sharing one's marked ballot has not been enforced.” The California hearing is set for November 2nd.  On that same date a thousand miles to the east, another federal judge will hear near-identical arguments in a federal case challenging the Colorado ballot selfie ban.   

Outdated or Necessary Protections?

Are ballot photograph bans anachronisms? Or is do these laws serve a valid purpose? Colorado Deputy Secretary of State Suzanne Staiert argues that selfie bans are still needed. “We believe the current law protects the integrity of the election and protects voters from intimidation or inducement,” said Staiert. “In fact, given Colorado’s unique election system and rise of social networking, the prohibition may be more important in Colorado than in other states and may be more timely today than ever.” 

Another argument against repealing the bans is that prohibitions on ballot selfies do not really stifle free speech in any substantive way. The lawyer representing New Hampshire in the 1st Circuit case argued that that under that state’s law (pre-invalidation), “You're free to go out into the community and scream at the top of your lungs how you voted and who you support in the election. You just can't use your marked ballot to do so."  

I suppose that those who are concerned with the practice of taking and posting ballot selfies worry about the social pressure involved and are concerned that the expectation of proving your vote publicly can create peer pressure to vote a particular way.  If ballot selfies become socially expected, it could remove the protection from retribution (social as well as political) that complete anonymity offers. For Snapchat-happy millenials, the social pressure to post a ballot might make it difficult to vote one’s conscience rather than what is most acceptable in one’s social circle. I’m not too worried about vote buying being enabled by photos of ballots posted on social media, but perhaps there are other legitimate reasons to step back from free speech in the name of protecting the right to anonymously cast one’s vote.

Posted by Andrea Boyack on November 2, 2016 at 12:48 AM in Constitutional thoughts, Culture, Current Affairs, Deliberation and voices, First Amendment, Law and Politics | Permalink | Comments (12)

Tuesday, November 01, 2016

Only Republican justices need apply?

With comments from Sen. Richard Burr about doing everything to prevent President Clinton from making any SCOTUS appointments, the question of the Republican endgame with respect to the Court is coming into stark relief. First it was "the next President should appoint." Now it is "the next President should appoint, unless it is a Democrat replacing a conservative such as Justice Scalia." None of this was ever a principled stand. But the absence of a meaningful principle now means that this is a moving line that Republicans are moving (and likely will continue to move) with impunity and without political repercussion and without logical (beyond pure politics) end.

So imagining that we have President Clinton/Republican Senate:

  • A Democratic President should not replace the "swing vote" (Justice Kennedy) because that shifts the balance of the Court when a Republican eventually appoints Scalia's successor.

  • A Democratic President should not replace a Democratic appointee (Ginsburg/Breyer) because that reifies the balance of the Court for another two generations. So the Dem seat should remain open.

   • If the Court can survive with 8, it is better off with 7 (assuming the lost Justice is not Kennedy), because that is an odd number that will avoid ties.

   • Hey, the original Court had 6 Justices. What was good for the Jay Court is good for the Roberts Court.

The caricature of the Republican position is that only Republican Presidents should be able to appoint to SCOTUS. That is looking less like a caricature. Especially since all of these arguments will be ignored (and forgotten) under President Rubio in 2021.

Two final points: First, this new rhetoric nothing to do with the argument that Eric Segall (Georgia State) has been making in favor of an evenly divided Court with seats permanently identified with one party. No one is expressing (or going to express) any reservations about having President Trump replace Justice Ginsburg. Second, while the Carrington Plan for the Court (a new Justice appointed every two years, with the 9 juniormost justices constituting the Court for all cases, except in the event of recusal) was designed to create term limits, the feature of regular and automatic biennial appointments also would ease some of the political controversy. Given the current climate, that is looking like the more significant piece of the proposal.

Next Wednesday, I am scheduled to do a talk for a Northwestern Alumni Association event on the election and the future of the Court. I have not begun to prepare the talk because I genuinely have no clue what is going to happen and thus no clue what I am going to say. Except that the center cannot hold and something--Segall's plan, the Carrington Plan, something else--is necessary.

Posted by Howard Wasserman on November 1, 2016 at 12:14 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (13)

Wednesday, October 26, 2016

DNC motion to enforce and the rigged election

The DNC has filed a motion to enforce the consent decree against the RNC for supporting and collaborating in Donald Trump's "ballot security" measures that sound like intimidation of minority voters in places such as Philadelphia. The motion seeks enforcement, sanctions, and further preliminary injunctive relief prohibiting RNC funds and personnel from being used  in such efforts in concert with the Trump Campaign. The motion does not go all the way to pinning the Trump Campaign's activities on the RNC because Trump is the party's nominee, but it does highlight its "coordination, encouragement, and support" of such activities.

Posted by Howard Wasserman on October 26, 2016 at 11:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Random items (Updated)

• Last term in Heffernan v. City of Patterson, SCOTUS held that a public employee can state a First Amendment retaliation claim where he suffers adverse job action because the employer believes he engaged in protected expression, even if he did not actually do so. Heffernan now has settled the action for $ 1.6 million, including attorney's fees.

• Senate Republicans are beginning to make noise about not confirming any Hillary Clinton nominees to SCOTUS, apparently for the whole of her Term. Clearly, no one is even pretending anymore that this is some principled stand in the name of democratic values (it never was, but at least some pretended). In pushing this position in a radio interview on Wednesday, Ted Cruz pointed for support to comments by Justice Breyer that the Court is doing just fine with eight Justices. It is impossible to know whether Breyer believes that or whether, as Dahlia Lithwick has argued, this is the Justices putting on a brave face to keep themselves out of the political thicket. If the latter, it is ironic that Cruz is using those efforts to pull the Justices even more into the mire.

Perhaps this is all posturing, in light of recent polls. It does hint that a lame-duck confirmation of Merrick Garland is not in the offing.

Update: I agree with several points Dahlia Lithwick makes here: 1) The Chief must play a role as an advocate for the institution, something Taft did well and which is entirely appropriate where the Court's structure is implicated; 2) This should play as FDR's court-packing plan redux--one party trying to manipulate the size of the Court for partisan gain. That it is not says much about the current partisan divide--FDR's plan failed because Democrats (who held the Senate majority) bailed on it; 3) Justice Breyer is at odds with others who have spoken out about this stonewalling. And that ups the irony of Cruz seizing on Breyer's attempts at optimism to draw out the dispute.

Posted by Howard Wasserman on October 26, 2016 at 09:19 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

Wednesday, October 12, 2016

Your Honor, and May It Please Mitch McConnell

The race is tight for control of the Senate. According to the statisticians at 538, six states are experiencing (to use the technical term) “super close” elections, and those same races very well may determine which party exercises the exceedingly important powers wielded by this body of government. If the vote totals on Election Day are tight enough to invite disputes over the true winner of a Senate race, the question becomes: who should adjudicate those contests? If you thought to yourself “Mitch McConnell, Bernie Sanders, Elizabeth Warren, Ted Cruz, and their colleagues in the Senate; they should do it,” then you are in good company: the Founders agree with you

As Article I, Section 5 of the United States Constitution reads, “[e]ach House shall be the judge of the elections, returns and qualifications of its own members.” What this means is that the Senators are charged with judging election contests over disputed Senate seats, while the Representatives are charged with judging election contests over disputed House seats. And judge they do: in this context, each House examines witnesses, manages discovery, and inspects ballots, among other tasks, all pursuant to a set of procedures (informal in the case of the Senate, and set by statute for the House). At the conclusion of the proceedings, each House publishes, through a committee, something that looks much like a judicial opinion. This report recommends a particular resolution of the claims, and if the full House agrees with that recommendation, it passes a resolution so ordering. As I explain in Judging Congressional Elections, the Houses of Congress already have resolved hundreds of contested elections in this fashion.

The arrangement may seem strange, but it has a long historical pedigree, and nearly every state has adopted a similar approach (that is, nearly every state also has vested power to judge state legislative elections in the legislative body itself). Still, a host of difficult questions remains. Among them is whether—and how—courts may also adjudicate these same disputes. Let’s take Pennsylvania, where the race between challenger Katie McGinty and incumbent Pat Toomey appears exceedingly close. Can the Supreme Court of Pennsylvania weigh in if either candidate disputes the results on Election Day? Or what about in Nevada, where the candidates are locked in a tight race over Harry Reid’s seat—can the state courts offer guidance if November 8 produces no clear winner? The answers largely depend on constitutional questions surrounding Article I, Section 5, and the resolution of those questions is, to put it lightly, unsettled.

As I explain in my article, which is forthcoming in the Georgia Law Review, a combination of factors has produced an interpretative vacuum in response to the Article I, Section 5 mandate. Although we have authorities that normally are able to clarify questions of federal law—including federal court decisions and congressional legislation—such authorities are almost entirely absent in this area. The result is a chaotic set of ad hoc, state-based interpretations of the mandate that vary drastically by jurisdiction. As an example, take the hypotheticals above. The Pennsylvania courts likely could adjudicate a dispute between McGinty and Toomey. In Nevada, however, the state courts almost certainly could not adjudicate a dispute between Joe Heck and Catherine Cortez Masto. The legal reasoning behind each conclusion is complicated (and addressed at length in my article), but the upshot is simple. Due to deep uncertainty surrounding the law of Article I, Section 5, states like Nevada and Pennsylvania have reached different conclusions about its meaning, and those competing interpretations are what govern in the respective jurisdictions.

This uncertainty matters for many reasons. At the outset, even the appearance of manipulation of the rules can undermine an election’s legitimacy, and nothing triggers the appearance (and perhaps, at times, the reality) of manipulation quite like legal uncertainty. The uncertainty also matters because it has resulted in suboptimal forms of procedure governing contested elections. This is particularly problematic in states that have concluded that Article I, Section 5 flatly prohibits judicial proceedings of any sort. In these jurisdictions, it’s the Senate (or House), or bust.

This area of the law is one of the most complicated I’ve encountered, and there remains a lot to unpack. Ultimately, however, I think Congress owes it to the electorate to take the first step toward reform by clarifying its own position on the principal set of questions: that is, whether, and in what circumstances, courts may hear these disputes. Each House has the power to make these procedural decisions precisely because it is the “judge” of its own elections—or, at least, that’s my conclusion regarding how best to understand the Article I, Section 5 mandate. In any event, hopefully more eyes will turn toward this underanalyzed provision of the Constitution. It’s interesting; it’s important; and, like so much in election law, it’s best analyzed and addressed before a close election turns each point of uncertainty into a partisan battle.

Posted by Lisa Manheim on October 12, 2016 at 10:40 PM in Civil Procedure, Constitutional thoughts, Law and Politics | Permalink | Comments (0)

Tuesday, October 11, 2016

Early Voting and Voting Updates

I concur with many of Steve Huefner's sentiments concerning the pros and cons of early voting.  Early voting offers a way of increasing voter turnout by making voting more convenient.  It also may facilitate efficient election administration by reducing the number of voters on Election Day itself.  On the other hand, lengthy early voting periods can place those who choose to vote at the very beginning of the period at something of a disadvantage.  Subsequent events may cause such voters to change their minds and wish to cast their votes for someone else, instead.  Most dramatically, the withdrawal or death of a candidate can effectively nullify the votes of those who cast their ballots early.    

A period of one week to ten days seems like an early voting period of reasonable length that balances these competing concerns.  For states that adopt longer periods, one possibility to consider is the notion of "vote updating."  Vote updating is easiest to understand and implement in the related area of absentee ballots.  If a person casts an absentee ballot a few weeks before Election Day, and something happens that causes them to shift their support to a different candidate, it should be possible to allow them to cast a replacement ballot, which would be counted instead of their earlier one.  Absentee ballots are typically enclosed within outer envelopes containing a voter's identifying information and are not opened for counting until Election Day itself or a few days before (depending on the jurisdiction).  Thus, if election records show that a voter submitted two absentee ballots, election officials would be able to identify the original ballot that should not be counted and set it aside.  Only the later-received ballot would count. 

This proposal raises several questions.  First, should voters be permitted to cast an unlimited number of replacement ballots (since only the last one would be counted), or should it be limited to just one or two per election?  Second, would the logistical burdens for election officials make this proposal impracticable?  It's unclear that many people would take advantage of it, and it seem like a reform that could fairly easily be worked into the current procedures governing absentee ballot verification and counting.  Third, it's not clear whether this would enhance opportunities for fraud.  It may provide a way for unscrupulous activists, parties, or candidates to replace legitimate absentee votes with fraudulent ones. 

Applying such a system to actual early voting in most jurisdictions would require more substantial reform.  In most places, an early vote is treated just like a vote on Election Day: once the punch card is submitted, the lever is pulled, or the ballot is approved on the electronic voting machine, there is no longer a way of tracing any particular early vote back to a specific voter.  Thus, early votes tend to be different from absentee votes, since an absentee ballot remains in the outer envelope containing the voter's information until nearly the end of the process. 

In order to allow people to change their early votes, a jurisdiction would have to give early voters the option of casting their early vote on a provisional ballot.  A provisional ballot is usually used when some potential concern exists over a voter's registration, identity, or eligibility to vote.  As with absentee ballots, provisional ballots usually are submitted on paper and enclosed in an outer envelope bearing the voter's identifying information.  Thus, if an early voter chooses to cast a provisional ballot, he would retain the option of returning later to cast another, replacement vote (either on another provisional ballot or a voting machine).  Voting officials would then know to discard the original provisional ballot.  If a voter does not submit any replacement votes, then the original provisional ballot is counted without any further action on the voter's part.  The ballot can either be counted on Election Day itself (since there is no need to wait for the voter to correct any deficiencies), or later on, at the same time as the other provisional ballots.

The system may unnecessarily introduce additional opportunities for error or fraud to enter into the process; it would certainly add an additional layer of complexity to a process that already poses challenges for election officials.  On the other hand, this proposal is one way of mitigating the effects of lengthy early voting and absentee voting periods.  Even if early voting is limited to a period of 7-10 days before Election Day, the period for returning absentee ballots (particularly for military and overseas voters) is invariably longer.  In an era of cell phone videos and hacks, the possibility for last-minute gamechanging developments in campaigns seems quite real.   

Posted by Michael T. Morley on October 11, 2016 at 02:26 AM in Constitutional thoughts, Law and Politics | Permalink | Comments (0)

Monday, October 10, 2016

Florida Democrats win TRO extending voter registration

A federal judge in the Northern District of Florida has issued a TRO requiring Florida to extend the deadline for voter registration in the wake of Hurricane Matthew and the evacuation of thousands of would-be registrants. The court found that the refusal to extend the deadline violated the right to vote, applying strict scrutiny because the non-extension worked a complete denial of the right to vote. The TRO extends the deadline to Wednesday, when there will be a hearing on the motion for preliminary injunction. The court also quickly disposed of some preliminary standing issues. Best of all, the opinion uses the word "poppycock."

I would be curious to hear from a panel of election-law experts whether the constitutional analysis here is correct.

Posted by Howard Wasserman on October 10, 2016 at 08:34 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, October 09, 2016

Trump Sunlight Campaign

Now on GoFundMe (gotta love the picture of Justice Brandeis), to raise money to cover the legal fees and judgment for anyone leaking Apprentice footage showing Trump making further sexist, racist, etc. statements. Producers and staffers on the show signed non-disclosure agreements, apparently with a liquidated damages clause of $ 5 million for breach (any guesses on whether that might be deemed unconscionable?). Apprentice Exec Produce Mark Burnett, who is a Trump supporter, has vowed to sue anyone who leaks footage.

During the Kim Davis insanity in Kentucky, people attempted a similar campaign to pay Davis's contempt fines; the site shut it down, given the obvious moral hazard concerns. It will be interesting to see what GoFundMe does with this one, as raising money to pay someone's legal judgment would seem to raise the same moral-hazard concerns. (The likelihood political-viewpoint bias here is high). It might be different if the campaign was only to pay attorney's fees and costs or to provide a bounty for the leaker. But that would not make a difference as an incentive--the disincentive is not the cost of the lawsuit, it is the judgment at the end.

Anyway, the site had raised a little under $ 2000 in two hours. So I do not expect this to be a big money-maker or game-changer.

Posted by Howard Wasserman on October 9, 2016 at 07:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Sunday, October 02, 2016

Newby and the Duty to Defend Indepedent Agencies and Commissions in Court

I am delighted to have the opportunity to participate in the Prawfsblawg election symposium! For my first contribution, I want to discuss an important issue implicated by a recent election-related case that extends far beyond election law.

In League of Women Voters of the United States v. Newby, the D.C. Circuit (in a 2-1 ruling) overturned the decision of the U.S. Election Assistance Commission's ("EAC") Executive Director, Brian Newby, to revise the state-specific instructions accompanying the federal voter registration form. The revisions would have required applicants from Georgia, Kansas, and Alabama to provide documentary proof of citizenship, such as a copy of a birth certificate, passport, or naturalization papers, to use the federal form to register to vote. Those states had requested changes to the instructions because their laws limit the right to vote to U.S. citizens and generally require people to provide such proof of citizenship to register.

I will discuss the merits of the D.C. Circuit's ruling--with which I disagree--in a separate post later this week. Here, I want to discuss a remarkable aspect of the case: the Obama Administration's Justice Department ("DOJ") completely refused to defend Newby's actions in court.  Although DOJ purported to represent both the Commission -- which is an independent, bipartisan agency -- and Newby in his official capacity and was filing briefs on behalf of both parties, it expressly disavowed the legality of Newby's actions and joined in the plaintiffs' request for a preliminary injunction to prevent the changes to the instructions he approved on the EAC's behalf from taking effect.

It's not as if the Commission itself subsequently took any action to disapprove or nullify Newby's actions. To the contrary, at least one of the three subsequently appointed Commissioners agreed with his decision to update the instructions. Nevertheless, despite the fact that nonfrivolous, colorable arguments could be made in defense of Newby's actions--indeed, some strong arguments may be made in support of them--DOJ completely refused to assert them in the briefs it filed for Newby and the Commission. It sought to nullify an official final action of an independent agency without any adversarial presentation of the issues, presentation of contrary authorities, or consideration of alternate remedies.

The district court allowed Kansas Secretary of State Kris Kobach and the Public Interest Legal Foundation to intervene to defend the revised instructions. But DOJ's actions nevertheless remain troubling. As an initial matter, there is something disturbing about allowing DOJ to file briefs on someone's behalf--even if they are party to a case solely in an "official capacity"--without that person's consent, especially when those briefs expressly advocate against that person's legal interests and affirmatively seek relief against that person.

Putting aside that issue (which arises largely as a function of which defendants a plaintiff chooses to name), DOJ's authority to refuse to defend against federal lawsuits is perhaps at its apex with regard to purely executive action by executive agencies under the current administration. If the President or his delegates determine that a member of the Executive Branch engaged in wrongdoing, the Government surely is not required to take that person's side and defend him or her. This power is likely just as broad with regard to executive actions that occurred in earlier administrations, though special care must be taken to ensure that Presidents and agency heads do not use essentially collusive litigation with ideologically aligned groups to nullify the actions of their predecessors when they would be unable to do so through the usual legislative or administrative process. See generally Michael T. Morley, Consent of the Governed or Consent of the Government? The Problems with Consent Decrees in Government-Defendant Cases, 16 U. Pa. J. Const. L. 637 (2014).

More complex problems arise when DOJ is required to defend the legal interests of entities outside the Executive Branch, which may conflict with those of the President. For example, Congress may enact laws that the President believes are unconstitutional, particularly on the grounds that they infringe upon purported Executive prerogatives. This summer, in Helman v. Department of Veterans Affairs, Attorney General Loretta Lynch notified the Speaker of the House and the U.S. Court of Appeals for the Federal Circuit that DOJ would not defend the constitutionality of provisions of the Veterans Access, Choice, and Accountability Act ("VACAA") that Congress had enacted two years earlier to limit appellate rights of senior career executives who are fired from the Department of Veterans Affairs. (Full disclosure: I represent a coalition of 12 military and veterans groups, including the VFW, AMVETS, Reserve Officers Association, and Marine Corps League that were permitted to intervene to defend the law's validity and advocate more narrowly tailored remedies for any constitutional concerns that may exist). In cases where DOJ refuses to defend a statute's validity out of concern for the President's Executive power, it is not really representing the interests of the Government as a whole, but rather the Executive Branch in particular, potentially at the expense of the independent legal interests and prerogatives of the Legislative Branch.  

Cases such as Newby present similar concerns.  A President may disagree with the desirability, legality, or even constitutionality of an independent agency's or commission's actions or determinations.  If the President can undermine or even nullify those actions by simply preventing DOJ from defending them in court, then the agency or commission is independent in name only.  To be truly independent, an entity must have independent litigating authority.  While DOJ has tremendous litigation experiences and resources for an independent agency or commission to call upon if it so chooses, it should not be compelled to be represented in court by attorneys acting under an institutional conflict of interest.  One solution is to allow the entity to either represent itself or retain outside counsel of its choice.  Another possibility is to be flexible in allowing outside intervention and applying Article III's rules concerning standing.  Finally, Congress could authorize the creation of a small entity, akin to either an Office of Independent Counsel or a public defender's office, to represent the interests of governmental agencies or officials outside the Executive Branch whose legal (or potentially even political) interests clash with those of the President.  In any event, if DOJ is going to undertake to represent the Government or an independent agency in a case, it reasonably should be expected to present the court with colorable, nonfrivolous arguments in favor of congressional or independent agency actions or enactments. 

Posted by Michael T. Morley on October 2, 2016 at 02:07 AM in Civil Procedure, Constitutional thoughts, Current Affairs | Permalink | Comments (4)

Friday, September 30, 2016

Roy Moore suspended for remainder of term

The Alabama Court of the Judiciary suspended Chief Justice Roy Moore for the remainder of his term in office. The focus of the charges was a January 2016 administrative order, in which Moore advised the state's probate judges that the court's March 2015 (pre-Obergefell) mandamus order prohibiting issuance of marriage licenses to same-sex couples remained in effect. In part, Moore stated that the judgment in Obergefell bound only the parties and only declared unconstitutional the marriage-equality bans in four states, thus it did not undermine SCoAL's earlier orders.

The judiciary court rejected those arguments, relying on long quotations from Cooper v. Aaron and the view that a SCOTUS declaration of constitutional meaning is, without more, binding on everyone everywhere. So Moore's order/advice regarding conduct by probate judges in conflict with the holding of Obergefell violates various judicial canons. The court's analysis of Cooper is inconsistent with the model of judicial departmentalism I have been urging--holdings judicial opinions do not formally bind anyone beyond the parties, including lawyers and public officials, until they are reduced to judgments against those individuals, which they will be because the holdings bind lower courts. The decision also overreads Cooper by forgetting what the Court really was upholding against state resistance--not Brown, but a Brown-based lower-court injunction. Plus, it was unnecessary in this case--Moore's real violation here was ordering/advising probate judges to violate not Obergefell, but a federal district-court order to which every probate judge was party and unquestionably bound that was made enforceable in light of Obergefell. That judgment gets passing reference, but the real focus was how Moore disregarded Obergefell.

Oh well. It is tempting to say Moore's judicial career is over. But I have no doubt he could win reelection to the court if he tried.

Further Update: This is among the most inaccurate things I have read by someone with a law degree. Writing about Moore trial:

This is the heart of the issue. According to Moore and Staver, the decisions of Alabama’s highest court are not subservient to those of a federal district judge. This goes against 200-plus years of constitutional interpretation that does put state courts below federal ones, of course.

“The state courts and the federal courts have co-equal authority,” Staver argued in a phone interview before the trial. “And one does not have to follow the other if they are making a decision on the U.S. Constitution.” This is not how the Supremacy Clause of the U.S. Constitution works, though.

Just, no. State courts are not "below" lower federal courts; they are co-equal courts that are all inferior tribunals to SCOTUS. Lower-federal court precedent is not binding on state courts or state judges (unless the state court chooses to be bound by that precedent). State courts and lower federal courts do have co-equal authority as to federal law. Congress was not obligated to even create lower federal courts; had it not done so, state courts would have been the only courts interpreting federal law other than SCOTUS.

We can debate departmentalism and the binding effect of SCOTUS precedent (as opposed to judgments) on non-judicial actors. But to say that state courts are inferior to lower federal courts reflects a complete misunderstanding of the judicial structure in the United States.

Posted by Howard Wasserman on September 30, 2016 at 02:31 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Friday, September 16, 2016

The New Constitutional Right to Post-Conviction Habeas

For decades, the dominant working assumptions of the Supreme Court's post-conviction habeas corpus jurisprudence have been that (1) federal post-conviction remedies are generally a matter of legislative grace; and (2) as Justice Alito reiterated last Term in his concurrence in Foster v. Chatman, "[s]tates are under no obligation to permit collateral attacks on convictions that have become final, and if they allow such attacks, they are free to limit the circumstances in which claims may be relitigated." In a new paper we've just posted to SSRN, Carlos Vázquez and I argue that, in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court directly rejected the first assumption, and, in the process, indirectly but necessarily undermined the second. 

To make a long story short, although Montgomery looked like a fairly typical habeas retroactivity case under Teague v. Lane (asking whether Miller v. Alabama fit into an exception to Teague's general bar on retroactive enforcement via habeas of "new rules" of constitutional law), it had a jurisdictional wrinkle--to wit, why the Supreme Court had appellate jurisdiction over the Louisiana state court's holding that Miller was not retroactive under Teague. Although the parties defended the Court's jurisdiction on the ground that the state court's analysis of Miller was "interwoven" with federal law (and thus not independent thereof), Justice Kennedy's majority opinion based the Court's jurisdiction on a much broader conclusion--that the exception to Teague for new "substantive" rules of constitutional law is constitutionally grounded, and thus directly binds the states (as a matter of federal law) in their post-conviction proceedings. Thus, Montgomery recognized for the first time at least some circumstances in which the Constitution (and not just the federal habeas statute) confers a right to a post-conviction remedy--at bottom, to enforce new "substantive" rules of constitutional law handed down by the Supreme Court after the petitioner's conviction became final.

The much more interesting question (to which we turn in Part II of our paper) is the forum in which such a remedy is constitutionally required. As we argue (in some detail), the Supreme Court’s Supremacy Clause jurisprudence, especially the 2009 decision in Haywood v. Drown, establishes that the constitutionally required collateral remedy recognized in Montgomery must be available, in the first instance, in state courts—even if the state has not chosen to provide collateral post-conviction relief for comparable state-law claims. Indeed, as we explain, the state courts also have the constitutional power and duty to afford such relief to federal prisoners, but Congress has the power to withdraw such cases from the state courts by giving the federal courts exclusive jurisdiction (even implicitly) over such claims. Thus, we conclude that the state courts are constitutionally obligated to afford collateral post-conviction review to state prisoners in the circumstances covered by Montgomery, and that the federal courts should be presumed to have the statutory obligation to afford such review to federal prisoners. 

Needless to say, this analysis calls into question at least some features of contemporary post-conviction habeas jurisprudence (especially for second-or-successive federal petitioners), and raises a bunch of questions about how far beyond Teague's substantive exception this newfound right to collateral post-conviction review extends. We try to sketch out some thoughts on these issues in Part III, but if we're right about the importance of Montgomery (especially in light of Haywood), then we hope our paper is the beginning of a much broader academic and judicial reassessment of the scope and shape of contemporary collateral post-conviction remedies, not the end. 

And, although it should go without saying, we'd surely welcome comments, suggestions, and feedback...

Posted by Steve Vladeck on September 16, 2016 at 10:11 AM in Article Spotlight, Constitutional thoughts, Steve Vladeck | Permalink | Comments (12)

Friday, September 02, 2016

Which Part of the Constitution Prohibits Wrongful Detention?

If a cop fabricates evidence against you, and you’re held in jail for 47 days, have you suffered a constitutional violation?   Believe it or not, that’s an open question—or as I’ll explain, a partially-open question.  And it’s also a question that the Supreme Court will answer in Manuel v. City of Joliet, which will be argued at the outset of the Court’s term in October.

A quick squib on the facts: Elijah Manuel was a passenger in a car driven by his brother in Joliet, Illinois.  The cops pulled the car over, pulled Manuel out of the car and seized a bottle of pills in his pocket. (The cops also allegedly used excessive force during the stop, but that’s not at issue in the S.Ct. appeal.) The officers field tested the pills and said that they contained ecstasy.  The thing was, the pills did not contain ecstasy; the field test came back negative for a controlled substance.  The officers arrested him anyway and stuck to their story that the pills contained ecstasy.  When they got back to the station, the officers gave the pills to a technician who tested them again. Like the field test, this test showed nothing unlawful about the pills.  And also like the first test, the technician lied about the results.  So Manuel sat in jail.  Forty seven days later, after his attorney requested a copy of the lab report and the fraud was discovered, Manuel was released.

Manuel brought a § 1983 suit against the officers.  Sounds like a good suit, right?  I mean, there’s gotta be claim in there somewhere, doesn’t there?  Maybe not. 

Part of the problem with his case owes not to constitutional law but with the applicable statute of limitations. Wallace v. Kato holds that false imprisonment begins at the moment of wrongful detention and ends at the moment when legal process is provided (usually pursuant to a initial appearance or something akin to that).  Unfortunately, Manuel filed suit more than 2 years after his initial appearance.

But he was in jail long after his initial appearance.  Does he have a claim for that?  That’s the issue the Supreme Court will decide.  Constitutionally speaking, one can imagine three types of claims: (1) a substantive due process claim, (2) a procedural due process claim, and (3) a Fourth Amendment claim.  The first possibility—substantive due process—is off the table under Albright v. Oliver.  So that leaves procedural due process and the Fourth Amendment. 

Manuel thinks he has a Fourth Amendment claim.  The Fourth Amendment says, in effect, don’t seize people unless you have probable cause.  Manuel was seized for 47 days (though his claim for some of those days is time barred under Wallace v. Kato).  So he should have a claim, right?  The City of Joliet argues, to simplify it greatly, that the Fourth Amendment is aimed at cops, not prosecutors.  Once you are arrested and enter the justice system, the Fourth Amendment falls away and your right to be free from unlawful detention is basically procedural due process right.  Fair enough, but why doesn’t Manuel just bring a procedural due process claim?  The reason is that, under Parratt v. Taylor, a procedural due process claim does not accrue unless the claimant lacks a post-deprivation remedy.  And Manuel had a post-deprivation remedy here—a state law malicious prosecution claim (which, unfortunately, is probably time-barred now).  Thus, Joliet’s position is that no constitutional violation occurred (at least for the period of detention following his initial appearance). 

Thus, at its heart, Manuel is about where the Fourth Amendment drops off and procedural due process picks up.  My own view is that instead of talking about when the Fourth Amendment drops out of the picture as a matter of criminal procedure, why don’t we talk about it in terms of proximate cause? (Courts deciding Section 1983 cases routinely borrow tort law principles and proximate cause issues come up all the time.)  That is, why not ask whether the officers’ Fourth Amendment violation proximately caused Manuel’s detention? In this case, it’s clear that it did. Moreover, proximate cause principles also help sort out what should happen as the case proceeds through the system.  For example, suppose that the cops came clean to the prosecutor in this case but the prosecutor continued with the prosecution.  The officers would have a good argument that the prosecutor’s actions amounted to an intervening cause that cut off their liability. 

Finally, proximate causation solves one of the more difficult problems in these cases.  In some cases, the defendants don’t just spend 47 days in jail as a pretrial detainee, they spend years in jail as a prisoner.  If we look at this in terms of Fourth Amendment v. Due Process Clause, it’s hard to see how the Fourth Amendment should apply to a prisoner who’s sitting in jail 20 years after his arrest and trial. But if we look at it in terms of proximate cause, we don’t have to engage in some parlor game about whether the Fourth Amendment “applies” to people in jail.  

Don’t look for the Court to take a proximate cause approach.  The Court has gone far enough down a different road that it would be too difficult to back up and use a proximate causation rule.  If I had to make a prediction, I’d expect Manuel to win—mainly because there’s a 10-1 circuit split in his favor and because the SG filed a brief on his behalf.  Cutting against him is that the case will probably be heard by 8 justices and Kennedy wrote a concurring opinion in 1994 stating that wrongful detention after an initial appearance would state a procedural due process claim. 

 

Posted by Jack Preis on September 2, 2016 at 09:58 AM in Constitutional thoughts, Judicial Process | Permalink | Comments (18)

Tuesday, August 30, 2016

Now we know where John Roberts got the umpire analogy

Go to the 2:15 mark (start of the second chorus)

 

Posted by Howard Wasserman on August 30, 2016 at 11:35 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Thursday, August 11, 2016

IP, The Constitution, and the Courts - IPSC 2016

IPSC 2016 - Breakout Session III - IP, The Constitution, and the Courts

Lexmark and the Holding Dicta Distinction – Andrew Michaels

A Problem of Subject Matter: Patent Demand Letters and the Federal Circuit’s Jurisdiction – Charles Duan & Kerry Sheehan

Established Rights, the Takings Clause, and Patent Law – Jason Rantanen

A Free Speech Right to Trademark Protection? – Lisa Ramsey 

Lexmark and the Holding Dicta Distinction – Andrew Michaels

How do we distinguish dicta from holding? This project uses the Federal Circuit's dispute in Lexmark (on remand) over the breadth of the holding in Quanta. As Paul Gugliuzza summarized it for me (I was a late arriver), Michael's argument is that, rather than treating holding/dicta as a binary distinction, we should envision a spectrum of the types of things that courts say in their opinions. 

A spectrum approach to holding v. dicta might helpfully restrict courts. If a holding says "No red convertibles in the park", we might worry about a case where a subsequent court says the opinion requires a holding of no vehicles in the park. They are not unrelated, but perhaps still dicta. Broader statements should have less capacity to bind than narrower holdings.

Jason Rantanen: This is interesting. We often see doctrinal pronouncement in Federal Circuit's case, much broader than necessary to decide the case. We also see language from earlier court opinions that are clearly dicta. Panels in the Federal Circuit nevertheless use it later. I wonder, however, whether we should take into account how the court is using the language. For example, do we bind the court to holding language only, or might they be appealing to the persuasiveness of early reasoning. Your spectrum focuses on text as it appears in the early opinion, but is that too narrow? Can dicta apply? 

Andrew - Sometimes dicta is well considered. But if the court pretends it's a holding, and acts as if it is bound, then they are failing to adjudicate the dispute, and that's a problem.

Paul Gugliuzza - I think the Federal Circuit may engage in some over-use of dicta. Is there a prescriptive payoff to this spectrum? How does the court determine whether to follow the statement or not?

Andrew - The payoff is to require courts to deal more directly with the question of dicta.

Pam Samuelson - I think it's interesting when dicta becomes a holding, over time, and solves a problem. For example, the 3rd Circuit (Whelan) case had a lot of broad dicta that led to a lot of litigation. But the 2d Circuit also included a lot of dicta in Computer Assocs. v. Altai, and the dicta from the that case seems to have knocked out Whelan, and been followed, correctly from Pam's view, in many other circuits.

A subsequent observation from Paul: I think the spectrum provides an interesting descriptive contribution, but I wonder whether, instead of arguing whether a statement is holding or dicta, we'd just end up arguing about (1) where on the spectrum a particular statement falls and (2) whether, given its location on the spectrum, it's binding law or not.

 

A Problem of Subject Matter: Patent Demand Letters and the Federal Circuit’s Jurisdiction – Charles Duan & Kerry Sheehan

States are passing laws designed to cabin patent demand letters. We might presume that the Federal Circuit has primacy, but this paper argues the question isn't so cut and dried. The Supreme Court, in a case about attorney malpractice, held that there should be a balance struck between the interests of the federal courts and the state's consumer protection laws.

In a demand letter case, we could ask whether 1) this raises a sufficient issue of federal patent law, and 2) is the law unconstitutional or improper. To understand the second question, look to the Federal Circuit's Globetrotter case. The patent holder threatened to send letters to the defendant's clients. The defendants sued for tortious interference, and Fed. Cir. held that the Patent Act preempted acts that prevent sending demand letters.

We argue there is an odd disconnect in the Federal Circuit's analysis. It's a mistake that makes the Federal Circuit's jurisdiction appear larger than it is.

What is the right policy outcome? Should the Federal Circuit have primacy here? The uniformity issues that inspired the creation of the Federal Circuit doesn't necessarily reach every case that touches on patent law, and perhaps these demand letter cases are outside the needs of the uniformity requirement.

Jake Linford: I'm unclear on where the line is between the stuff the Federal Circuit controls and the stuff it doesn't. It sounds circular to me. Help me understand.

Charles: The Supreme Court doesn't take the view that the Federal Circuit is the final arbiter of all patent issues. The Christensen and Gund cases are examples where the Supreme Court put the responsibility with the Seventh Circuit and Texas courts respectively. Questions of validity of the patent may go to the Federal Circuit, but not claims about a clearly invalid patent.

Lisa Ramsey: One of the reasons this is so important is because people will get different results before a state court than the Federal Circuit. Is that right?

Charles: It's unclear. If we sort some cases for the Federal Circuit and others for the states, we might get divergent outcomes.

Pam Samuelson: How does the issue of validity of the patent get to the Federal Circuit if the case starts in state courts? 

Charles: Removal is the mechanism. 

Pam: If so, then how do we take the ability of the Federal Circuit away? If the Federal Circuit decides whether it has jurisdiction...

Charles: Perhaps the Supreme Court takes cert?

Paul Gugliuzza: What triggers the arising under jurisdiction of the patent clause? Isn't this a matter of patent jurisdiction?

Charles: I'm not sure this meets the Constitutional language...

Paul: The Federal Circuit may rely on Globetrotter, even if I disagree with them. 

 

Paul Gugliuzza sent me the following summary of the Duan - Sheehan paper, which I find much better than my own:

The paper focuses on state law tort/unfair competition claims against patent holders, such those brought under the new anti-troll statutes adopted in over half the states.  As a substantive matter, Duan and Sheehan criticize the Federal Circuit for giving patent holders nearly absolute immunity from civil claims based on their enforcement behavior, an issue I’ve written about here:  http://ssrn.com/abstract=2539280.  As a matter of institutional policy, they argue that the Federal Circuit is poorly suited to assess the constitutionality of laws regulating patent assertions because the court has embodied various problems theorized to be associated with specialized courts, such as rule-orientedness, a detachment from broad policy concerns, and, perhaps most importantly, capture.  The Federal Circuit’s orientation toward patent holders, they seem to be arguing, would make the court too suspicious of government efforts to regulate patent holders.  Accordingly, they make a doctrinal argument that a challenge to the constitutionality of an anti-troll statute does not “arise under” patent law, as is required for the Federal Circuit to have appellate jurisdiction.  
 
I’m not sure about this.  I agree that, after the Supreme Court’s 2013 decision in Gunn v. Minton, a civil case challenging patent enforcement behavior does not “arise under” patent law.  The embedded patent law issues would be about the validity or infringement of a particular patent—the sort of case-specific issues that are not sufficient to create “arising under” jurisdiction.  But, in my mind, there’s a distinction between those case-specific issues and those that would be raised by a counterclaim seeking a declaratory judgment that a state anti-troll law is unconstitutional.  I suspect the Federal Circuit would say that THAT claim DOES “arise under” patent law, as it raises the issue of whether federal patent law “preempts” state law.  After the AIA’s so-called Holmes Group fix, that counterclaim would be sufficient to confer jurisdiction on the Federal Circuit.  Perhaps a better argument against Federal Circuit jurisdiction is that the federal issue is not preemption by the Patent Act, but the constitutionality of the statute under the First Amendment.  In that circumstance, the case would arise under federal law, but perhaps not federal PATENT LAW, meaning that the Federal Circuit would NOT have jurisdiction.  (In the article linked above, I argue that the Federal Circuit has erroneously stated that immunity for patent holders is about “preemption” of state law when, in fact, the court is actually drawing on the First Amendment right to petition to the government.)  In any event, this is an interesting and provocative project.  And if you’re still reading at this point, cheers to you for your commendable enthusiasm about patents and procedure!

 

Established Rights, the Takings Clause, and Patent Law – Jason Rantanen

Recent arguments have suggested that when patent laws change, the takings clause may be implicated. I wanted to understand the analytical reasoning behind the takings claim. Takings case law is a deep, Alice-in-Wonderland rabbit hole.  How does it actually apply to patent law?

1) Jason agrees that patents are property subject to takings clause. (The Federal Circuit said no, in Zoltec, when the government infringes the patent. The Supreme Court, instead, suggested in dicta in the raisin takings case, that patents are the type of property subject to the takings clause)

2) But it's inappropriate to cut and paste takings case law to patent cases. Patents aren't like rights in real property. We know what a takings of a coal mind looks like. Patents aren't the same. In addition, one key right "taken" is the right to use, and the patent holder doesn't lose the right to use, only the right to exclude or alienate. So application of standard takings cases is difficult.

3) The question is instead whether the new law changes or destroys an "established property right" in the patent. That's the taking, if there is one. What's an established property right? The type associated with property, established with a high degree of legal certainty. See, for example, the Penn Central case, where the Supreme Court is looking for certain rights. If we are looking for high degree of legal certainty, many aspects of patent law has changed significantly and frequently over time. Patent has replaced the entire statutory framework at least four times, with only very minor exceptions. For example, when Congress passed the 1836 Patent Act, it replaced the prior act, and also applied the new act to pending litigation. There are many similarities, but this is a new draft. Same with the 1952 Act: "It shall apply to unexpired patents." Damages changed dramatically, as summarized in Halo v. Pulse. Patent owners used to get treble damages automatically, and they don't anymore. Patent holders in 1836 lost that right while claims were pending.

Lisa Ramsey: One argument against cancellation in the Redskins case is takings. 

Jason Rantanen: The Redskins case considers whether the right was valid in the first place, which falls outside of standard takings analysis.

Camilla Hrdy: You may want to consider why the Supreme Court has held a trade secret can be taken. If so, why not a patent?

 

A Free Speech Right to Trademark Protection? – Lisa Ramsey 

The Federal Circuit recently held that the 2(a) bar against registering disparaging trademarks is unconstitutional. Lisa's paper aims to make two unique contributions to literature on disparaging trademarks and the First Amendment:

  1. Is there a right under international treaties to be able to register a disparaging or scandalous trademark? The answer is no.
  2. A framework of six elements that should be applied in deciding whether laws against offensive trademarks run afoul of free speech rights.

The U.S. is not the only country that bans registration of scandalous marks. Canada even bans use. 

We are members of the Paris Convention, which gives signees the discretion to decide whether to deny a registration on the grounds that a mark is contrary to morality or public order.

Lisa's framework (and 2(a) seems to meet most of these conditions):

  1. Is there government action? Who regulates the expression?
  2. Suppression, punishment, or harm: How does the regulation harm expression? Are there unconstitutional conditions imposed on speakers by denying the benefit? Lisa says no, because the benefit being denied is the right to restrict the speech of others.
  3. Expression. What is being regulated?
  4. Is this individual or government speech? Whose expression is regulated?
  5. No categorical exclusion for the expression: Is the regulation justified because of a categorical exclusion, like obscenity or misleading commercial expression?
  6. Does the regulation fail constitutional scrutiny? Is it content-neutral or content-based? That triggers different levels of scrutiny in the U.S.

What could the Court do if it wants to uphold 2(a)? 1) Say it's not suppression or punishment, and the unconditional conditions doctrine does not apply, under factor 2. 2) It satisfies the scrutiny under 6. 3) Make a "traditional contours" argument like in Eldred and Golan. 

Saurabh Vishnubhakat: Pushing on Lisa's state action analysis, if we apply Shelly v. Kramer broadly (where the Supreme Court refused to allow the enforcement of racially restrictive covenants in court, and which may be limited to its fact), that may suggest everything is potentially a state action?

Rebecca Tushnet: If the Court is taking a "hands off" approach to conflicts between trademarks and the First Amendment, then doesn't hands off mean no registration? Isn't that state action?

Lisa: It is state action.

Rebecca: Then isn't everything state action.

Lisa: There are real benefits to registration that impacts the first amendment. Demand letters work better when backed by a registration. And when you have a registration, it's easier to push claims that some see as questionable, like dilution and merchandising cases.

Charles Duan: When it comes to disparaging marks, those have particularly strong expression value - used to express feelings, and therefore even worse to restrict than other registrations.

Lisa: Exactly!

Pam: Is there an international standard?

Lisa: No, as I read the law, each country has discretion to set up the system it prefers.

Posted by Jake Linford on August 11, 2016 at 08:45 PM in Blogging, Civil Procedure, Constitutional thoughts, First Amendment, Information and Technology, Intellectual Property, International Law, Judicial Process, Property, Science | Permalink | Comments (0)

Thursday, August 04, 2016

What type of voter fraud?

In setting up his pre-narrative of a stolen election, Donald Trump has decried recent lower-court decisions declaring invalid voting laws in North Carolina, Wisconsin, Kansas, Texas, and North Dakota, including voter ID requirements. These laws were designed to prevent impersonation fraud--someone voting as John Smith who is not, in fact, John Smith.

But note that Trump has not been complaining about impersonation fraud, but about repeat-voter fraud--"If you don’t have voter ID, you can just keep voting and voting and voting." (Chicago's old "Vote early, vote often"). But voter ID laws do nothing to eliminate repeat-voter fraud and do not seem designed to do so. The defense against that practice is the voter list; the poll worker  does not allow someone to vote  if she is not on the list (or allows only a provisional ballot) and she crosses the voter's name off the list once that person appears. Repeat voting is possible only if: 1) the poll worker fails to cross the name off or 2) the voter goes to other precincts, where she is not on the list, to vote. But requiring ID does not stop that practice. If the poll workers are not vigilant, I can repeat-vote to me heart's content with an ID, just as I could without an ID. That is, if I show an ID proving I am John Smith but the poll worker does not cross my name off the first time, I can come back again and again and vote as John Smith, showing my ID each time. Similarly, if I then drive to the wrong precinct with an ID proving I am John Smith but the poll worker allows me to vote despite my name not being on the list, I can cast that repeat vote as John Smith, showing my ID.

Unfortunately, most of the news reports of Trump's comments have repeated the (true) line that there is virtually no evidence of in-person voter fraud, without specifying that the fraud Trump is talking about is not even the type that ID laws are designed to redress. Which, also unfortunately, means the news reports are missing the fact that Trump is not aware enough to understand his own conspiracy theories.

Posted by Howard Wasserman on August 4, 2016 at 03:05 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Monday, August 01, 2016

Federalism Planks in Democratic Party Platforms

At this point in our quadrennial election cycle, thoughts turn to party platforms.  In doing my research on a 1937 federal death penalty case in Michigan (the only case I have found before 2002 in which the federal government succeeded in securing a death sentence for a crime committed in a State that did not authorize the death penalty for the same offense), I wanted to look at the Democratic Party platforms over time, to see how much emphasis was paid to “states rights” at various times. Fortunately, I found a great website (http://www.presidency.ucsb.edu/platforms.php) that catalogs the platforms of the major parties going back to 1840.

I found that inclusion of a federalism plank in the Democratic Platform in the early part of the twentieth century was erratic.  In 1900 and 1904, there was none.  Then, in 1908, the sixth plank, entitled “The Rights of the States,” proclaimed:

Believing, with Jefferson, in "the support of the State governments in all their rights as the most competent administrations for our domestic concerns, and the surest bulwarks against anti-republican tendencies," and in "the preservation of the General Government in its whole constitutional vigor, as the sheet anchor of our peace at home and safety abroad," we are opposed to the centralization implied in the suggestion, now frequently made, that the powers of the General Government should be extended by judicial construction.

A similar plank was included four years later as the platform’s fourth.  In 1916 and 1920, there was no federalism plank in the Democratic Party platform.  Such a plank reappeared in 1924, but it was buried near the middle – the 26th of forty-four planks.  Then, amazingly, “The Rights of the States” appeared as the very first plank in the 1928 platform.  It read: 

We demand that the constitutional rights and powers of the states shall be preserved in their full vigor and virtue. These constitute a bulwark against centralization and the destructive tendencies of the Republican Party.

We oppose bureaucracy and the multiplication of offices and officeholders.

We demand a revival of the spirit of local self-government, without which free institutions cannot be preserved.

In 1932, the federalism plank disappeared from the Democratic Party platform, for pretty obvious reasons.

Most of my historical research has been on the founding period.  Now, I have some general knowledge of the fact that there was a strong states’ rights faction in the Democratic Party prior to 1932, when the election of FDR marked the birth of the modern Democratic Party as the party of big federal government.  I also know that this faction lingered on until the Republican Party’s “southern strategy” began the process of eliminating virtually all vestiges of that faction by transforming southern Democrats into Republicans.  But I wonder if someone with more knowledge than I can chime in and help explain in more detail what was going on from 1900-32.  Specifically, why was there such a dramatic push in 1928 to put federalism front and center when the party was only four years away from nominating FDR?

Posted by Michael J.Z. Mannheimer on August 1, 2016 at 02:31 PM in Constitutional thoughts | Permalink | Comments (1)

Monday, July 25, 2016

Thoughts on Reason-Based Regulation of Reproductive Decision-Making: Part II

In an earlier post, I blogged about the rise of reason-based bans on abortion (such as laws banning abortion for sex selection, or because of fetal anomaly), and I hypothesized that there is the constitutional privacy right includes a right to make a constitutionally protected decision for whatever reasons one chooses. In this post, I want to consider another type of law that arguably implicates this privacy right, and also places it in conflict with other individuals’ religious freedom–specifically, laws that require employers to provide insurance coverage for contraceptives when they are needed for particular reasons.

About half of the states currently require insurers in the state to provide coverage for contraceptives. These state-law contraceptive coverage mandates are separate from the regulation requiring contraceptive coverage under the Affordable Care Act and apply independently of it. Because these mandates are enforced by state governments rather than the federal government, the federal RFRA—construed in Hobby Lobby to require an accommodation for employers that object on religious grounds—does not apply directly to them. Nonetheless, in many of these states, religious employers may still be able to access insurance plans without contraceptive coverage, either because the state contraceptive coverage laws also have religious exemptions written into them, or because those exceptions are available via state RFRA analogs.

In a handful of states, employers may opt out of providing insurance coverage of contraceptives for contraceptive purposes but not for therapeutic purposes. For example, Arizona law, which requires insurers to provide contraceptive coverage if they cover other prescription drugs, also provides that “a religiously affiliated employer may require that the corporation provide a contract without coverage for” contraceptives. However, it goes on to specify that the insurance policy cannot exclude coverage for prescription contraceptive methods prescribed "for medical indications other than for contraceptive, abortifacient, abortion or sterilization purposes.” Similarly, North Carolina law allows religious employers to offer plans without contraceptive coverage but does not exempt them from covering prescription contraceptives "for reasons other than contraceptive purposes, or ... that is necessary to preserve the life or health of a person covered under the plan.” Presumably, these sorts of provisos would cover women who seek contraceptive drugs for purposes of avoiding or curing particular medical conditions (such as certain skin conditions or menstrual disorders) as well as women who need contraception because pregnancy would be life-threatening or harmful to their health. At least in the latter scenario, it seems clear that such provisos distinguish between valid and valid reasons for the same reproductive conduct.

These sorts of laws set up a potential conflict between a woman’s right to privacy with respect to the deliberative process and an employer’s right to act based on religious motivations. Because the right to autonomous decision-making has constitutional stature (as I argue in Part I) and the right to act based on religious motivations does not (as explained below), it seems clear that the woman’s right to access contraception for any reason whatsoever should prevail.

These state laws, while presumably intended to ensure that women’s physical health is protected while safeguarding the religious freedom of employers, nonetheless have the effect of regulating the reasons for which women may engage in constitutionally protected conduct. Women who work for religious employers taking advantage of these exceptions may access covered contraception if it is necessary to avoid harm to their health but not for family-planning purposes. According to the framework outlined in Part I, laws that distinguish between acceptable and unacceptable reasons for choosing contraception would be unconstitutional. Similarly to the selective abortion bans discussed in Part I, they allow the employer to dictate the terms of the woman’s reproductive decision, interfering with the woman’s deliberative process as clearly as if the law itself denied women contraceptive access for certain reasons and not others. By empowering employers to privilege certain grounds of decision over others, the government picks and chooses among the reasons a woman may or may not have access to contraception.

The privacy right related to contraceptives is constitutionally protected. However, there is no constitutional free exercise right to be exempt from a generally applicable health insurance mandate because of one’s religious beliefs. The right claimed by Hobby Lobby was based on RFRA, not the Constitution, and the Supreme Court made clear in Employment Division v. Smith that there was no general free exercise right to an exemption from a neutral and generally applicable law. Thus, the woman’s right to choose contraception without regard to the reason should trump.

Ironically, however, one consequence of this analysis is that laws providing blanket exemptions from contraceptive coverage are on firmer constitutional ground than more carefully tailored exemptions. A blanket exemption allowing religious employers to opt out from covering contraceptives would not unconstitutionally privilege certain reasons over others and therefore would not burden the constitutional right to deliberate autonomously, because it would not distinguish between valid and invalid reasons. Is this result a correct one, or a desirable one?

Although this result seems counter-intuitive, it may nonetheless be the correct one based on existing constitutional doctrine. Once the government begins carefully tailoring exemptions, problems can ensue. For example, a statute with a narrowly drafted religious exemption that excludes certain religious groups while protecting others would likely be more problematic than one with no exemption.

Moreover, it may be worth considering the political implications of a decision requiring states to exempt all religious employers from covering contraception in all circumstances, even when it is needed to protect the woman’s health, or none at all. It is possible that the result would be that the practice of covering oral contraceptives for non-family-planning purposes would continue but without the sanction of law; employers and insurers could continue to make the distinction between therapeutic and non-therapeutic contraception, but through private, internal policies. (For example, Catholic employers generally do not have a problem with covering contraception for “therapeutic,” as opposed to family planning purposes.) Since no law would be implicated, there would be no state action and no constitutional problem. On the other hand, there might be value in highlighting the conflict between religious beliefs and private reproductive decision-making in this context. It is worth considering, perhaps in a more public way, whether the distinction between therapeutic and non-therapeutic contraception is one that the government should make and whether the government should be deciding which uses of contraception are sufficient to outweigh an employer’s religious claims. Currently, this debate is submerged by Hobby Lobby and the post-Hobby Lobby discourse, which treats religious exemptions from contraceptives coverage as an all-or-nothing issue.

Posted by Jessie Hill on July 25, 2016 at 05:22 AM in Constitutional thoughts, Religion | Permalink | Comments (0)

Friday, July 22, 2016

The Meaning of Sex Discrimination

In response to a number of questions from school districts about how to serve transgender students under Title IX, the Departments of Justice and Education issued joint guidance in May explaining how they interpreted the prohibition on sex discrimination contained in Title IX and its implementing regulations. In bringing clarity to the issue, the guidance explains that the prohibition on sex discrimination “encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” Pursuant to the guidance, “[t]he Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” The guidance then details that transgender students should be permitted to use restrooms and locker rooms consistent with their gender identity.

A number of states have filed lawsuits challenging the guidance, arguing that the Administration is “foisting its new version of federal law” on schools. But the Departments’ interpretation is not drawn from whole cloth. In fact, courts have recognized that sex discrimination under federal civil rights statutes includes discrimination based on someone’s transgender status for some time, authority that is noted in the Departments’ guidance, and is collected here and here. And of course, in Price Waterhouse v. Hopkins, the Supreme Court adopted a capacious understanding of what constitutes “sex” discrimination, prohibiting sex stereotyping or treating people differently because of their perceived failure to conform to gender norms.

The states also argue that the Departments are attempting to “redefine the unambiguous term ‘sex.’” But the statutory and regulatory meaning of the prohibition on sex discrimination as it relates to transgender individuals is far from clear, as the Fourth Circuit recently concluded in G.G. v. Gloucester County School Board, the lawsuit by a Virginia transgender boy challenging his exclusion from the boys bathroom. Indeed, as one of the lawsuits challenging the Departments’ guidance concedes, “[n]othing in Title IX’s text, structure, legislative history, or accompanying regulations address gender identity,” suggesting—at most—that the statute doesn’t speak, one way or another, to whether transgender individuals are protected by the statute. As the Fourth Circuit held in G.G., because the law is “silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms,” there is an ambiguity which the Departments are permitted to clarify.

As an alternative interpretation, those challenging the Departments’ guidance suggest that “sex” means what they call “biological sex.” But neither the statutory language or the legislative history quoted by those challenging the guidance appear to reference so-called “biological sex” at all. As discussed in a prior post, medical experts have established that the factors contributing to one’s sex are multifaceted, including “external genitalia, internal reproductive organs, gender identity, chromosomes, secondary sex characteristics and genes.” Thus, even if one focused purely on the physical characteristics of sex, reliance on “biological sex” creates more ambiguity than it resolves. Again, as the Fourth Circuit reasoned: “For example, which restroom would a transgender individual who had undergone sex-reassignment surgery use? What about an intersex individual? What about an individual born with X-X-Y sex chromosomes? What about an individual who lost external genitalia in an accident? The Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.”

When one combines the statutory and regulatory ambiguity with the medical reality, defining “sex” with reference to one’s gender identity is far from radical,  is certainly reasonable, and is probably the best interpretation of the relevant language.

The reasonableness of that interpretation is heightened when one considers that, at least with regard to public schools, the Equal Protection Clause overlays any analysis. And, without diving into a detailed discussion, the Supreme Court’s Obergefell decision makes clear that “[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity” (emphasis added). Given Obergefell’s context, this is powerful language suggesting that we possess constitutional rights over our sexual and gender identity.

Posted by Scott Skinner-Thompson on July 22, 2016 at 02:42 PM in Constitutional thoughts, Culture, Employment and Labor Law, Gender | Permalink | Comments (0)

Thursday, July 21, 2016

Athlete speech and team dynamics

Last week, NBA stars Carmelo Anthony, Chris Paul, LeBron James, and and Dwyane Wade kicked off the ESPY Award telecast with a call for athletes to become politically engaged, particularly around the issues of violence by and against police. Players on the Minnesota Lynx wore black warmup shirts with white lettering commemorating Alton Sterling, Philando Castile, and Dallas shootings, which prompted four off-duty police officers to walk-off their security jobs there. Several other teams followed suit by wearing plain black warmup shirts, which prompted the league to fine each team $ 5000 and each player $ 500, citing its uniform policy. The league president praising and expressed pride in the players' "engagement and passionate advocacy for non-violent solutions to difficult social issues," while demanding that they "comply with the league's uniform guidelines." This, of course, is a classic example of how neutral policies can be used to restrain speech, while allowing those doing the restraining to claim to support the speech. Players responded today with a media blackout, refusing to answer basketball-related questions and only talking about the political issues at the heart of their protests. Since the league no doubt has rules about speaking with the media, expect the WNBA to follow with more praise for the players' political courage, more citation to "neutral" rules, and more fines for that political courage.

This is playing out on a smaller stage than if it were male athletes in football, basketball, and baseball. But this story illustrates important issues about athlete speech for team, as opposed to individual, sports. The athletes we remember as being most politically engaged played individual sports--Muhammad Ali, Arthur Ashe, John Carlos, Billie Jean King, Jesse Owens, Tommie Smith. A lot of the activism from Jackie Robinson and Jim Brown came after each had retired and, in any event, rarely came out on the field (except to the extent Robinson's very presence on the field was political). All athletes risk their standing with the public and fans who may object to their speech (recall Michael Jordan's apocryphal "Republicans buy shoes, too"). But team-sport athletes face another hurdle--their expression implicates the financial, business, and other concerns of teams and leagues, who have their own incentives to limit this speech. Neutral rules designed to promote the sport (speaking to the media) or to promote team unity (uniform rules) provide the perfect weapon of control, allowing leagues or teams to shut the players down without appearing to be stopping them because of their message.

The question then becomes the extent to which "athlete speech" includes (or should include) the liberty to speak through the game itself and the platform the game provides. In other words, the extent to which LeBron James not only should be able to rely on his fame to get his message out, but also the platform of the game itself to do so.

Posted by Howard Wasserman on July 21, 2016 at 06:25 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Trump, Turkey, and the "problem" of civil liberties

Donald Trump's interview with The New York Times would be the story of the day, but for Ted Cruz's act of political courage/political suicide. Trump was asked about the situation in Turkey, where President Recep Endrogan survived a coup attempt and is consolidating power, declaring a three-month state of emergency, purging political rivals, and imposing restrictions on speech and press. Trump's short answer was that the US has too many problems at home and has no right to lecture other countries about civil liberties.

Some have read that as Trump saying that we have issues with limits on civil liberties here, so we cannot speak to anyone else about their own limits. That is what people usually mean by "no right to X"--we don't have the right to lecture anyone about X, because we do X ourselves. It is an argument about hypocrisy and inconsistency between word and deed.

But a closer look at Trump's remarks reveals the opposite. Trump is arguing that we have anarchy here, implicitly because we have too many civil liberties. So we need to restore order (which fits with his new Nixonian Law-and-Order theme) before worrying about urging other countries to be less repressive on their own people. It is an odd use of the "no right to" argument, but it better fits with his views of dissent and speech he does not like.

Here is the exchange (from the transcript, which The Times released when--stop me if you heard this one before--the campaign denied Trump had said what the newspaper reported).

SANGER: Erdogan put nearly 50,000 people in jail or suspend them, suspended thousands of teachers, he imprisoned many in the military and the police, he dismissed a lot of the judiciary. Does this worry you? And would you rather deal with a strongman who’s also been a strong ally, or with somebody that’s got a greater appreciation of civil liberties than Mr. Erdogan has? Would you press him to make sure the rule of law applies?

TRUMP: I think right now when it comes to civil liberties, our country has a lot of problems, and I think it’s very hard for us to get involved in other countries when we don’t know what we are doing and we can’t see straight in our own country. We have tremendous problems when you have policemen being shot in the streets, when you have riots, when you have Ferguson. When you have Baltimore. When you have all of the things that are happening in this country — we have other problems, and I think we have to focus on those problems. When the world looks at how bad the United States is, and then we go and talk about civil liberties, I don’t think we’re a very good messenger.

SANGER: So that suggests that you would not, as, say, President Bush did, the last President Bush, make the spread of democracy and liberty sort of a core of your foreign policy. You would say, “We need allies, we’re not going to lecture them about what they do inside their borders.”

TRUMP: We need allies.

SANGER: And lecture inside their borders?

TRUMP: I don’t know that we have a right to lecture. Just look about what’s happening with our country. How are we going to lecture when people are shooting our policemen in cold blood. How are we going to lecture when you see the riots and the horror going on in our own country. We have so many difficulties in our country right now that I don’t think we should be, and there may be a time when we can get much more aggressive on that subject, and it will be a wonderful thing to be more aggressive. We’re not in a position to be more aggressive. We have to fix our own mess.

His point is that we should not be worried about civil liberties elsewhere. But implicitly he is arguing that we also should not be worried about civil liberties at home, but instead about the government gaining control against the "riots and the horror"and "our own mess."*

[*] The party flip between optimism and pessimism and how great America is right now is fascinating. It will be interesting to see how and if the Democrats strike at this theme next week.

Also interesting is Trump's reference to "Ferguson" as a single word with an understood meaning. But what is that meaning? To Trump, Ferguson means riots and destruction of property.  To others, however, Ferguson means a police officer shooting an unarmed Black person with impunity, generally abusive police practices,  and a massive overreaction to peaceful-if-angry public assembly speech, and protest. Trump obviously hopes that substantial numbers of people adopt his meaning of the single word. On the other hand, there is a consent decree in the Eastern District of Missouri--explicitly requiring changes in policy and training with respect to responding to public expression, handling of encounters with suspects, and the operation of fine offensives in municipal courts--that suggests the former may be the better narrative. So is the problem of Ferguson too much speech (or at least too much speech critical of police)?

Similarly, what does Trump understand "Baltimore" to represent? Wrongfully prosecuted police officers? Is outrage at the death of a person in policy custody part of the riots, horror, and mess in this country?

Posted by Howard Wasserman on July 21, 2016 at 03:58 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, July 18, 2016

Decentralizing the Exclusionary Rule

One strand of my research in the last few years has focused on exploring what I see as a federalism component of the Fourth Amendment.  In The Contingent Fourth Amendment, 64 Emory L.J. 1229 (2015), I looked at the law of search and seizure from 1765 to 1795, with particular focus on the Justice of the Peace manuals used at the time, and what the Anti-Federalists said and wrote about search and seizure during the ratification period.  I concluded that the best way of viewing the Reasonableness Clause of the Fourth Amendment was as a constraint that federal officers follow state law when searching and seizing.  In a piece I am currently finishing up, “The Local-Control Model of the Fourth Amendment,” http://ssrn.com/abstract=2721014, I provide more evidence in support of that claim and I contrast this “local-control model” to the two dominant models of viewing the Fourth Amendment, the “warrant model” and the “reasonableness model.”  And in “Decentralizing Fourth Amendment Search Doctrine,” which I just began in earnest, I am exploring the claim that the “what is a search” question should be decentralized so that the answer might differ by State, or even by locality.

Something I so far have not looked at, but hope to in the coming years, is the exclusionary rule, and how a decentralized approach to the rule might make sense.

That’s why I was intrigued when listening to the oral argument in Utah v. Strieff.  Early on, Justices Sotomayor and Kagan express a concern that when a high percentage of people have outstanding warrants, the police might have every incentive to conduct illegal stops if – as the Court ultimately ruled – the evidence found as a result of the ensuing arrest is not generally subject to the exclusionary rule.  But, of course, the percentage of residents with outstanding warrants is going to vary widely from place to place.  As Justice Sotomayor put it:  “[I]f you have a town like Ferguson [Missouri], where 80 percent of the residents have minor traffic warrants out, there may be a very good incentive for just standing on the street corner in Ferguson and asking every citizen, give me your ID . . . .”  Justice Kagan almost immediately followed up with

if you're policing a community where there is some significant percentage of people who have arrest warrants out on them, it really does increase your incentive to . . . make that stop on the chance that there will be a warrant that will allow you to search and admit whatever evidence you gained in that search. * * *  [I]t does change your incentives quite dramatically, it seems to me, if you're policing a community where there is some significant percentage of people who have arrest warrants.

So that led me to wonder why we think about the exclusionary rule in gross, rather than at the retail level.  The Court has posited that the only justification for the exclusionary rule is the deterrence of police misconduct.  The Court has also said that whether the rule deters police misconduct must be evaluated on a context-by-context basis.  Excluding evidence from anything but a criminal trial, the Court has told us, is not worth the price we pay in the currency of lost evidence.  Fair enough.  The deterrent value of excluding evidence is also not worth the cost where the arresting officer reasonably relied on an invalid warrant, an unconstitutional statute, an erroneous report of the existence of an outstanding warrant, or binding case law that was later reversed.  Again, fair enough.  But if we are going to apply the exclusionary rule in such a context-sensitive way, why not also vary it by locality?  If the figures set forth by Justice Sotomayor are accurate, the incentives for police in some communities are going to be very different than in other communities.  The entire concept of deterrence hinges on a prediction based on empirical evidence about how people will act under certain conditions.  If one of the variables that might change the prediction is the locality, because of the percentage of people who are subject to outstanding warrants, then it seems to me that if the defendant shows that this percentage is high, the prediction about police behavior ought to change accordingly

Indeed, the majority opinion in Strieff seems to leave open the possibility of a more localized application of the exclusionary rule.  The Court acknowledged the argument that a large number of outstanding warrants within a local population might motivate the police to conduct illegal stops in the hopes of hitting upon a person with such a warrant.  It did not outright reject this argument; it wrote simply that this was not a problem in the locality where the stop took place:

Strieff argues that, because of the prevalence of outstanding arrest warrants in many jurisdictions, police will engage in dragnet searches if the exclusionary rule is not applied. We think that this outcome is unlikely. Such wanton conduct would expose police to civil liability. And in any event, the Brown factors take account of the purpose and flagrancy of police misconduct. Were evidence of a dragnet search presented here, the application of the Brown factors could be different. But there is no evidence that the concerns that Strieff raises with the criminal justice system are present in South Salt Lake City, Utah.

(citations omitted) (emphasis added).  Thus, the Court folded the perverse incentives argument into the third Brown factor, the purpose and flagrancy of the police misconduct.  My argument is somewhat different.  The Court seems to be willing to take into account idiosyncratic characteristics of the locality but only to the extent that they might produce flagrant, systemic flouting of the Fourth Amendment.  My approach would not require evidence of misconduct that stark, which might be nigh impossible for a defendant to produce.  I would simply allow local judges to take into account local conditions in determining what the likely incentives are for police within those localities.  If the community has a very high number of people with outstanding warrants, the incentive is there for police to take advantage of that, regardless of whether there is hard proof that they do so on a systemic basis.  One can presume that, as rational actors, at least some police will do so.  The exclusionary rule should be applied to counteract that incentive.

Posted by Michael J.Z. Mannheimer on July 18, 2016 at 05:56 PM in Constitutional thoughts | Permalink | Comments (0)

Friday, July 15, 2016

Old Man Yells at Cloud, First Installment

I wanted to use some of my blog posts this month to discuss some of the mechanical and organizational errors that I see authors make in their legal scholarship.  This is real nitty-gritty stuff, small mistakes that may not seem to matter much but which can really detract from a piece.  I was going to call this “Pet Peeves” but I think that that diminishes the importance of these points:  these are not peevish predilections for a certain style of writing over others; they are things that are simply incorrect and should be fixed.  On the other hand, I try not to take myself too seriously, so I have settled on “Old Man Yells at Cloud” (if you don’t know the origin, Google it).

For the first installment, I wanted to focus on a glaring error that I see more and more:  Many times authors will describe an opinion as “concurring” when it really should be “concurring in the judgment.”  It is as if those last three words don’t really matter, so they can be cut out.  I used to think this was solely the fault of student law review editors, and in turn, perhaps, the people who are supposed to be teaching them proper citation form.  I myself have had more than one set of editors “fix” my citations by changing “concurring in the judgment” to simply “concurring,” and have had to change them back.  But then I saw more and more first drafts of papers, before they even hit the law reviews, that contain the same error, by people who should know better.

The difference between a concurring opinion and one concurring merely in the judgment is an important one.  For one thing, a concurrence in the judgment is often more like a dissent than a straight concurrence.  Take, for example, the recent case of United States v. Jones, 132 S.Ct. 945 (2012), which addressed whether government officials conduct a “search” for purposes of the Fourth Amendment when they attach a GPS device to a vehicle and track its movements for 28 days.  The Justices were unanimous that this was a search but split 5-4 over the reasoning.  The Court held this to be a search because the government physically intruded upon a private space, by placing an object onto personal property, for the purpose of gathering information.  Justice Alito, joined by three of his colleagues, sharply disagreed with this “trespass theory” of the Fourth Amendment but concluded that tracking the suspect’s movements with a GPS device for so long infringed upon his reasonable expectation of privacy in his movements.  Justice Alito spends the bulk of his separate opinion criticizing the Court’s return to the old “trespass” doctrine, with much less space devoted to why the government’s conduct violated Jones’s reasonable expectation of privacy.  The opinion is much more dissent than concurrence but, of course, because he and his three colleagues would have come to the same result as the Court, it is a concurrence in the judgment.  To mischaracterize it as a “concurrence” is to make much more than a simple technical error; it is to mislead the reader into thinking that Justice Alito essentially agreed with the majority and simply wanted to add his two cents or try his hand at explaining what the majority was really saying.

By contrast, Justice Sotomayor wrote a true concurrence in Jones.  She joined the majority and agreed with its reasoning but wrote separately to indicate her agreement with much of what Justice Alito wrote in his separate opinion and to call into question some more general aspects of Fourth Amendment search doctrine.  Thus to call both what Justice Alito wrote and what Justice Sotomayor wrote “concurrences” conveys a false impression about the two opinions and their relationship to the majority.

Another context in which the distinction really matters is where there is no majority opinion.  Take, for example, Missouri v. Seibert, 542 U.S. 600 (2004), in which the Court addressed whether, where the police deliberately first obtained un-Mirandized statements from a suspect during custodial interrogation, later adherence to the Miranda warnings-and-waiver protocol rendered admissible a suspect’s subsequent statements.  A plurality of the Court said that the subsequent statements were inadmissible, even though they followed Miranda warnings and waiver, because the initial statements had been un-Mirandized.  However, the plurality looked to a number of factors – “the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first” – to determine when such mid-stream warnings and waiver would render subsequent statements admissible.

Justice Kennedy wrote a separate opinion concurring in the judgment, agreeing with the outcome, but relying on only one factor: that the police deliberately obtained the first set of statements without adhering to Miranda in order to “soften up” the suspect into waiving her rights on the second go-round.  Had the same police conduct occurred inadvertently, Justice Kennedy presumably would have come out the other way.

Here, the distinction between a concurrence and a concurrence in the judgment is critical.  Had Justice Kennedy written a straight concurrence, presumably he would have joined the plurality, making it a majority.  Anything he wrote in such a concurrence would be important inasmuch as it explains the majority opinion from the perspective of the necessary fifth vote, but it would not have the force of law.  By stark contrast, the opinion as a concurrence in the judgment takes on much more significance.  Pursuant to the Court’s Marks rule, where there is no majority opinion, one must discern the narrowest point on which five Justices agree.  In many cases, this means that a concurrence in the judgment is the law because it represents that narrowest point.  In Seibert, that conclusion is more questionable, given that Justice Kennedy’s focus on the good or bad faith of the police seems to have been rejected by seven other Justices.  Lawyers, judges, law students, and academics have struggled to figure out what, if anything, is the holding of Seibert.  Mischaracterizing Justice Kennedy’s separate opinion in that case as a “concurrence” misleads the reader into thinking that she need not engage in that struggle because Justice Kennedy agreed with and joined his colleagues’ multi-factor analysis.  But he didn’t.  A mere concurrence might be enlightening but it is rarely as critical as a concurrence in the judgment when there is no majority opinion.

So “concurring in the judgment” does not mean “concurring.”  Authors and editors need to stop pretending that it does.

Posted by Michael J.Z. Mannheimer on July 15, 2016 at 12:38 PM in Constitutional thoughts, Things You Oughta Know if You Teach X | Permalink | Comments (8)

Thursday, July 14, 2016

Privacy and Transgender Bathroom Access

In the litigation and public debate surrounding transgender people’s rights to use the bathroom, two of the principal issues are the meaning of “sex” and the privacy rights of everyone using restrooms or locker rooms. In this post, I’ll address the privacy claims because doing so highlights, to me, that separate and apart from the merits of any interpretive debate on the statutory meaning of “sex,” the underlying real world concerns of all involved are, in fact, not in conflict. Transgender bathroom access does not harm or implicate the privacy concerns of anyone else. Conversely, excluding trans people from bathrooms consonant with their gender identity publicly outs them every time they use the facilities.

Opponents of permitting trans people to use the bathroom corresponding to their gender identity seem concerned that a person’s genitalia will be seen by someone with different genitalia, or that a person may see genitalia different than their own. In terms of both logistics and law, these concerns seem overstated.

First, bathrooms provide private spaces—stalls. This is true even in men’s rooms. So, if someone has a concern about who sees their genitalia, or if one prefers not to view another person’s, one can use the stall and avoid the urinals. Even in locker rooms, practical solutions such as privacy curtains can be affordably installed to provide greater privacy to those who desire it. Such curtains have been endorsed by the Department of Education.  

Second, to the extent there is concern over someone’s prurient interest, those supporting bathroom bans overlook issues of sexual orientation. Transgender people—like cisgender people—can be straight, gay, or bi. Our gender does not dictate our sexuality. That’s to say, a straight transgender woman will have no sexual interest in other women in the restroom. But even if she did, we obviously permit gay men and lesbians to use public restrooms and changing facilities, so why should trans people be treated differently?

Third, the myth that transgender bathroom access somehow represents a risk of sexual violence has already been empirically refuted by government officials in jurisdictions that have trans-inclusive policies. Existing laws prohibit voyeurism and violence and transgender bathroom access doesn’t change that.

Although privacy is not endangered by the presence of transgender people, excluding trans people does endanger their privacy and safety. Forcing transgender individuals to use a bathroom that does not correspond with their gender identity and outward gender expression outs that person as transgender each time they use the public restroom.

Of course, transgender people should feel no shame over their identity or their bodies—quite the opposite. But unfortunately, misunderstanding and, at times, animus toward transgender individuals is not uncommon. As discussed in my previous post, transgender people are subject to high levels of violence, poverty, incarceration, and employment discrimination. And because comprehensive nondiscrimination protections for transgender people are lacking, maintaining privacy over one’s trans status may be critical to a range of activities from obtaining a job to keeping safe.

As such, to the extent this debate is about privacy, the real world harms seem to tilt in favor of access for transgender individuals, not exclusion.  

The same holds true for privacy law.

While in broad strokes case law supports constitutional limits on the government’s ability to disseminate our private, intimate information, the cases relied on by proponents of transgender exclusion do not support their argument here.

For example, proponents of trans exclusion have relied on cases involving a female police officer being videotaped partially nude by a male colleague after taking a decontamination shower, schools installing video cameras in student locker rooms, strip searches of students, and the forceful removing of an inmate’s underclothes. These are, of course, horrific privacy invasions. But they are quite distinct from the mere presence of transgender people using facilities corresponding to their gender identity. As the Fourth Circuit Court of Appeals acknowledged in its recent decision in G.G. v. Gloucester County School Board, it is doubtful that a trans student’s “use of the communal restroom of his choice threatens the type of constitutional abuses present” in such appalling privacy cases.

Instead, to the extent that the law recognizes limits on the government’s ability to disseminate personal information (and it does), courts enforce those limits most rigorously when information regarding a stigmatized characteristic is disclosed—for example, one’s HIV status, minority sexual orientation, or transgender identity. This is because disclosure of that information can result in further harm to the individual, including discrimination. And certain courts have specifically held that laws that out a person’s transgender status implicate this right to informational privacy.

In other words, the right to informational privacy—the right to limit disclosure of one’s information—appears to be at its zenith when dealing with information that might expose someone to stigmatization, discrimination, or some other concrete downstream harm.

As noted, in a world with continued misunderstanding and hostility towards trans people, there can be little doubt that outing of a person’s transgender status can lead to very real harms. The constitutional right to privacy restricts such outing.

*Parts of this post draw on articles of mine first appearing in Slate and Salon.

Posted by Scott Skinner-Thompson on July 14, 2016 at 11:20 AM in Constitutional thoughts, Gender, Law and Politics | Permalink | Comments (7)

Tuesday, July 05, 2016

Some thoughts about Whole Woman's Health v. Hellerstedt

Cross-posted at Casetext

I'm delighted to be back blogging at Prawfs! Thanks to Howard and the rest of the regulars for inviting me.

I wanted to start off with some thoughts about the Supreme Court's momentous decision in Whole Woman's Heath v. Hellerstedt -- more thoughts on the case may follow as they develop.

In Whole Woman’s Health v. Hellerstedt, the most important abortion case in over two decades, the Supreme Court handed the plaintiffs as sweeping a victory as they could have hoped for. In doing so, the Court also saved the “undue burden” standard and quite possibly the right to abortion itself.

Since the Supreme Court’s joint opinion in Planned Parenthood v. Casey, which was co-authored by Justices O’Connor, Kennedy, and Souter, the constitutionality of an abortion restriction depended on whether it imposed an “undue burden” on the ability of a “large fraction” of women to obtain an abortion. This standard was not only less protective of abortion rights than the strict scrutiny standard that the Court had set out in Roe v. Wade, it was also so indefinite and malleable that it opened the door to greater and greater envelope-pushing by states adopting increasingly onerous anti-abortion laws.

In Whole Woman’s Health, the Supreme Court was confronted with one such anti-abortion law—Texas’s H.B. 2. The Texas law required abortion clinics to meet the standards of ambulatory surgical centers (essentially, mini-hospitals) and abortion providers to have admitting privileges at a local hospital. The ambulatory surgical center requirements were prohibitively expensive for existing clinics to meet, and admitting privileges can be impossible for certain abortion providers to obtain for reasons totally unrelated to clinical competence, such as opposition to abortion (for example, by a Catholic hospital). Thus, the combined effect of the two restrictions—restrictions extant in numerous other states as well—would be to shut down approximately three quarters of Texas’s abortion providers, forcing many women—especially those outside the major metropolitan areas—to travel long distances and undergo long delays in order to obtain safe and legal abortion services.

In a 5-3 majority opinion by Justice Stephen Breyer, the Court held the Texas abortion restrictions to be an unconstitutional undue burden on abortion rights. In some ways, this holding was not surprising. After all, even Justice Kennedy, the most conservative member of that 5-Justice majority, would have to admit that if anything is a substantial obstacle to abortion access, H.B. 2 is. The bigger surprise was the way the Court went about it. In finding an undue burden, the Court held that the actual health and safety benefits of the law had to be balanced against the impact of the law on abortion access. Given that the two Texas requirements were found to have essentially no meaningful benefits to women, the massive burden on abortion access was unwarranted (or “undue”).

It is hard to overstate how important this particular approach was.

By focusing on the health benefits of the law in relation to the burdens, the Court made sense of, and breathed new life into, the undue burden standard. No longer is the undue burden standard a numbers game, in which the exact formula to be applied is unclear. Nor did the Court issue a narrow but ultimately unhelpful ruling identifying an undue burden in Texas without telling us what an undue burden actually is. Instead, the Court issued a sensible opinion giving real meaning to the word “undue,” and putting at risk dozens of abortion restrictions across the country that are passed in the name of protecting women, without any evidence to back them up.

Other elements of the decision were remarkable. For one thing, the opinion made it clear that courts are not to defer to legislatures on the medical or scientific issues that underlie abortion restrictions; instead, they should examine the evidence independently and critically. Justice Kennedy in Gonzales v. Carhart, the Court’s most recent major abortion case, had worried over the “traditional rule” of deferring to legislatures in the face of medical and scientific uncertainty, before ultimately choosing not defer to Congress’s demonstrably mistaken findings. In Whole Woman’s Health, by contrast, the Court asserted, “The statement that legislatures, and not courts, must resolve questions of medical uncertainty is … inconsistent with this Court’s case law. Instead, the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings.” The opinion thus affirmed the courts’ duty to review facts independently when constitutional rights are at stake.

The Court broadened its focus in other ways, as well. In Casey, the joint opinion had dismissed the district court’s concerns about the impact of a 24-hour waiting period, requiring two trips to the clinic, on women with fewer resources and those who had to travel long distances. Casey stated “[t]hese findings are troubling in some respects, but they do not demonstrate that the waiting period constitutes an undue burden.” In Whole Woman’s Health, by contrast, the Court specifically cited the trial court’s finding that the Texas laws would “erect a particularly high barrier for poor, rural, or disadvantaged women” in its finding of undue burden. Finally, the Court declined to split hairs on the issues of remedy and of facial versus as-applied challenges, as it had done in Planned Parenthood v. Ayotte and Gonzales v. Carhart.

Looking forward, there is reason to be optimistic about the impact of Whole Woman’s Health on abortion rights. Having now denied certiorari in admitting-privileges cases from Mississippi and Wisconsin (in which the plaintiffs won below), the Court has sent a fairly clear signal to any state legislatures considering admitting-privileges requirements in the future. And numerous states have ambulatory surgical center-type requirements, though admittedly the Court was less categorical in striking those down. Given that ambulatory surgical center requirements vary greatly from state to state in their details and onerousness, it is necessary to look more closely at the specific nature of the requirements and their impact. Reading the opinion to require states generally to justify burdens on abortion with evidence supporting an actual benefit for the law, it’s possible that the Whole Woman’s Health decision will also be used to strike down 20-week abortion bans, which are often justified based on junk evidence pertaining to fetal pain. Bans on using telemedicine to provide medication abortion, currently in effect in 18 states, are also now vulnerable.

Perhaps the most important aspect of Whole Woman’s Health, however, is that the Court treated the right to choose abortion like the fundamental right that it is. As with other constitutional rights, infringements on the right to choose abortion must be viewed with scrutiny rising above the level of deferential rational-basis review.

Posted by Jessie Hill on July 5, 2016 at 10:18 AM in Constitutional thoughts, Current Affairs | Permalink | Comments (2)

Thursday, June 30, 2016

Overview of ABF Research (Part III): Law & Globalization and Legal History

In this last post on ABF research, let me describe two parts of our research portfolio that reflect both our sense of the past and our transnational perspective on the present.  From its founding in the 1950s through today, the ABF has been focused on studying how law, legal institutions, and legal processes operate across place and time.  Our scholarship and programming on law & globalization and our work in legal history reflect these enduring commitments.

Let me start with a brief description of our research on law & globalization.

Law & Globalization

Globalization, to be sure, is not a new phenomenon, but it has taken on a greater sense of urgency in recent decades.  Like many academic and research organizations, the ABF has become increasingly interested in the causes and consequences of globalization and its relation to law.  For many years, we have had numerous international faculty members conducting research throughout the world. 

Most recently, our legal sociologists Terry Halliday and Sida Liu have been collaborating on a long-term project about Chinese criminal defense lawyers and their role in political mobilization.  As I’m sure many Prawf readers know the Chinese state in recent years has been intimidating and persecuting Chinese lawyers because of their political activism.  Terry and Sida have conducted hundreds of interviews with Chinese lawyers to learn more about how the everyday work of criminal defense lawyers has become a political project. Drawing on a long line of scholarship about lawyers and political liberalism (much of it written by Terry), their forthcoming book will one of the first to examine empirically how the seemingly ordinary work of criminal defense lawyers in China can have far reaching transnational political and social implications.  Although the book won’t be out for another year or so, this fascinating research has already garnered significant media attention across the globe.

Another area of ABF research on globalization focuses on comparative constitutions.  Our joint-appointee Tom Ginsburg (U. of Chicago Law & ABF) has been at the forefront of research about the origins and international diffusion of rights in national constitutions.  For many years, Tom and his collaborators have been collecting data on the countless constitutions that have been in existence since 1789 to the present (you can learn more about their Comparative Constitutions Project here).  This project has documented the important role of domestic political factors and country characteristics in understanding the development and diffusion of constitutional rights.

While Tom Ginsburg’s research focuses on the material aspects of the rule of law, one of our other colleagues working on globalization, Jothie Rajah, explores the more theoretical underpinnings of rule of law discourse.  Following up on her first book about rule of law in Singapore, Jothie’s latest project analyses the different ways in which global institutional actors (the UN, the World Bank, the International Commission of Jurists, the World Justice Project) define “rule of law.”  Through a close reading of the texts and practices of these institutions, Jothie analyzes the development of global norms and the efficacy of rule of law indicators.

ABF research on globalization also examines the diffusion of legal rules across nation-states.  Our joint-appointee Carol Heimer (ABF/Northwestern Sociology) is studying how laws, regulations and other rules are actually used in HIV research and treatment in the United States, Uganda, South Africa, and Thailand.  Her book project investigates what happens when laws, regulations, and guidelines, admittedly created with the best of intentions, are transported to new sites where they confront the realities of medical care, clinical research, and healthcare administration in developing countries.  Carol is currently finishing up a fellowship year at Stanford’s Center on Advanced Study in Behavioral Sciences, where she is completing her book manuscript.

Legal History

In addition to our work on Law & Globalization, the ABF has also had a long tradition of research on legal history, writ large.  Many years ago, the ABF had a Legal History Society of some kind that hosted regular events advancing scholarship in legal history.  Although the formal society doesn’t exist anymore, the ABF continues to play an important role in supporting and promoting legal history.  From our faculty members like Vicky Woeste, whose recent research focuses on hate speech (here’s a link to her latest book on Henry Ford and Hate Speech), to our regular Chicago-area seminar on legal history, to our recent support for a junior scholars conference on Law in Capitalism, the ABF remains committed to supporting innovative and influential research on how law and legal institutions have operated in the past, and on how these historical legacies continue to influence the present.

Indeed, our recent conference, which was co-hosted by the University of Chicago Law School, and supported by a consortium of schools and the American Society for Legal History, brought together a stellar group of junior scholars working at the intersection of law and the new histories of capitalism.  These advanced grad students and junior faculty members had a chance to share their work and receive feedback from senior scholars in the field.  We were delighted to host this group at our Chicago location, and we look forward to having more ABF events on legal history.

Like the other categories I’ve discussed earlier, these two ABF research streams are just examples of a much deeper body of scholarship.  To learn more about our research, please visit our website.

Now that I’ve given readers a sense of the type of empirical and interdisciplinary research the ABF conducts, perhaps in my last post (if I haven’t already over stayed my welcome as a guest blogger) I can address a couple of pragmatic issues about ABF funding and the role that legal academics play in both supporting and helping disseminate ABF research.

Posted by Ajay K. Mehrotra on June 30, 2016 at 06:37 PM in Books, Constitutional thoughts, Criminal Law, Law and Politics | Permalink | Comments (0)

Same-sex marriage, religious opt-outs, and constitutional procedure

On Monday, Judge Reeves of the Southern District of Mississippi declared that Mississippi cannot statutorily authorize county clerks to opt-out of issuing marriage licenses to same-sex couples based on religious objections to same-sex marriage (the law was enacted soon after, and in response to, Obergefell). But the order was entirely bound-up in the procedure of constitutional litigation, particularly with respect to marriage. Refreshingly, Judge Reeves took his time on the process and got it right.

The plaintiffs challenged the Mississippi law through a motion to amend the existing permanent injunction prohibiting enforcement of the state's ban on same-sex marriage. Before the court could reach the constitutionality of the new state law it had to determine:

1) It still had jurisdiction to enforce and expand the injunction, because the same issue--the constitutionality under the Fourteenth Amendment of a state law seeking to treat same-sex couples differently than opposite couples with respect to marriage licenses--was involved in both the original injunction and the new challenge.

2) The plaintiffs have standing to expand the injunction. This one is trickier, because the named couples have, presumably, gotten their marriage licenses, so they are not injured by the new law. And this is not a class action. The court relied on basic principles that plaintiffs always have a right to protect their final judgment, although the new law does not threaten the injunction as to them. Any uncertainty was resolve by the court's third point--the Campaign for Southern Equality is a plaintiff and it has associational standing to represent any members who want a license in the future and may have it denied pursuant to the new law.

3) The named plaintiffs, and the enjoined persons, are the governor, the AG, and the clerk of one county. The plaintiffs were trying to get the clerks for the other 81 counties in the state to comply with Obergefell. The court recognized that these 81 clerks are not parties and not bound by the injunction. Instead, the court ordered the parties to ensure that these other parties have notice of the injunction and that they are subject to it, presumably by adding them as defendants and/or certifying a defendant class, to whom the injunction can be extended.

4) The injunction would be extended to state that everyone bound by the injunction must issue marriage licenses to same-sex couples on the "same terms and conditions as opposite-sex couples." The court took this language from Obergefell to ensure that the Supreme Court decision, which is the law of the land and the law of the circuit, will be enforced. The judiciary, he added, should "remain vigilant whenever a named party to an injunction is accused of circumventing that injunction, directly or indirectly." Without saying so, Judge Reeves capture the departmentalist point--the injunction against specific individuals is necessary to formally bind them to Obergefell. The key is to ensure that all appropriate people are named parties subject to an injunction.

5) The court left it to the parties to figure out how to get notice to the other clerks and to agree on language for the amended permanent injunction.

Posted by Howard Wasserman on June 30, 2016 at 02:38 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4)

Monday, June 27, 2016

Veep, S5E10

Sunday's season finale played out the constitutional election/selection/succession contingencies to the last, producing what, in reality, would be a genuine constitutional  and political crisis. And it leaves the show in the position of a genuine reboot when it comes back next season, which presents some interesting possibilities.

We begin before the Senate vote for Vice President, which Tom James expects to win. He and Meyer are negotiating her role in his administration--she wants to be Secretary of State, he presents VP as take-it-or-leave-it. She initially leaves it by telling James she would not be his vice president if there were "a grassy knoll full of Jodie Foster fans" in the front row at the Inauguration (a great line). She relents because she believes it is the only way to continue working with China on freeing Tibet (a possibility set up two weeks ago). The scene where Meyer agrees and James cannot help laughing when he promises her that she will be an involved part of his team is a good commentary on how the vice presidency is perceived.*

[*] Although vice-presidential historian Joel Goldstein (SLU) has argued that this has not been true of the modern vice presidency, at least since Walter Mondale.

The show had been building to this since the end of last season, but, as I argued then, it gets it wrong. Under the 20th Amendment, when the House has not chosen a President, the VP elected by the Senate  "shall act as President until a President shall have qualified." That may happen in two days, when the House holds a new vote and selects a President. Or it may happen in four years, when a new election and Electoral College vote selects a President in the scheduled quadrennial election. But this VP never becomes President, although she exercises the powers of the presidency.** She remains Vice President and cannot appoint a new VP because the vice presidency is not, in fact, vacant. As I said in a comment to last week's post, this person would not be Ford after Nixon resigned, but GHW Bush when Reagan had polyps removed. And no one believed Bush could have appointed a new VP.

[**] With perhaps some informal limits on Supreme Court appointments, as Rob Kar and Jason Mazzone suggest.

The twist in the episode is that James loses the Senate election. Vice President Doyle, mad at Meyer for reneging on her promise to make him Secretary of State, orchestrates a tie in the Senate vote (by appealing to various Senators whom James had angered over the years over judicial holds, earmarks, etc.), which he then breaks to give the Vice Presidency to Laura Montez, O'Brien's running mate. And with it, the acting--not actual--presidency. This was a twist that I certainly did not see coming. Montez then is sworn in, with a huge inauguration attended by two million people. Again, this would not happen because Montez is not, in fact, the 45th President;*** formally, the presidency remains vacant.

[***] A poll discussed in the episode rates Meyer the 43d best President, just behind James Buchanan, who is "credited with causing the Civil War."

I kept waiting for some further twist back, but it never happened. My first thought was that James would go back to the Speaker to hold a new House vote**** (since that was the plot that started all this) and James would try to whip-up votes to get Meyer the win. Of course, O'Brien came closer to winning that Meyer, so it would have required not only moving the three "abstaining" states, but also one other. Then, during a discussion of Montez's Mexican-born husband, I thought it might be revealed that Montez was not a natural-born citizen, and that might blow everything up. But nothing. And that is the plan. Showrunner David Mandel has said that Season Six will focus on Selina's life after the White House, perhaps Catherine, Gary, and Amy, who are with her at the end. No word on whether other regulars from her staff will be back. Meanwhile, the agreement with China on Tibet that Meyer had negotiated is announced during Montez's address and credited to her, with talk of her getting the Nobel Peace Prize that Meyer had been craving (shades of the freeing of the Iranian hostages on January 20, 1981).

[****] A TV in the background at the White House shows a CNN chyron that the Speaker had said he would not hold a new vote. I thought that might be Chekhov's Chyron, but it turned out to be a reminder of the House role in this and a way to stop that piece of the story.

So how did the season "stick the landing" on the constitutional stuff? Not well in the details, although fun in the story. It seriously understates the political and constitutional crisis that would be involved here, producing an unrealistic result. The Twelfth Amendment was intended to prevent this "inversion" of president and vice-president. No way would O'Brien or Meyer accept the result so easily; they would be fighting like crazy for a new House vote. No way would their supporters in the House accept the result so easily. O"Brien's supporters wanted O'Brien as president; Meyer's supporters wanted Meyer; and the ones who broke were willing to go along with James's plan because they liked him better than Meyer, but would not want Montez in the White House. The Speaker could not refuse to hold a new vote if both sides demanded it; the body might remove the Speaker if he were that obstinate.

Finally, no way would the public accept this, certainly not to the tune of two million people wildly celebrating Montez's inauguration (a law the 2009 Obama inauguration)--no Meyer voter would be happy and an O'Brien voter, while perhaps happy that their party was in the White House, voted for O'Brien, not Montez. They, too, would be pushing the House for a new vote. This is exacerbated by the show suggesting that Montez is callow and ill-prepared. So was Meyer. But Montez is thrust into office because of behind-the-scenes political dealings and the refusal of the Speaker of the House to do his job.

And consider some future problems. What happens if there is a Senate tie? Montez remains the vice-president***** who should break the tie, but she is also acting as president, in which role she would sign the bill. [Correction: A commenter points to Art. I, § 3, cl.5, which provides that the President Pro Tempore presides over the Senate "in the Absence of the Vice President, or when he shall exercise the Office of President of the United States," which seems to capture this situation. So one problem resolved]

[*****] She cannot resign the vice-presidency, since that is the source of her power to act as president.

She presumably will decline to break the tie, as a matter of prudence. But having four years of this strange arrangement is bound to create problems. And what happens in the new House after the mid-Term elections? Might a new Speaker hold a new vote on O'Brien-Meyer, resulting in Meyer coming back to office for two more years, as President, with Montez serving as her VP? That would be a neat plot twist, which the show closed off by talking about Montez as the President; it would take too much exposition to walk it back. Anyway, it is a moot point, since Mandel's plan is to focus on Selina Meyer outside the White House.

All-in-all, I enjoyed the season. And most of the broad strokes of the story worked. They got the details wrong, which is frustrating just because it would have been so easy to correct. Put Jonah in Connecticut instead of New Hampshire and that story works. Talk about divided states rather than abstaining states and that piece works. Have the House holding multiple votes and unable to break the impasse, with no Alexander Hamilton in sight, and that piece works.

Posted by Howard Wasserman on June 27, 2016 at 05:09 PM in Constitutional thoughts, Culture, Howard Wasserman | Permalink | Comments (5)

Thursday, June 23, 2016

What now on DAPA?

Today's 4-4 affirmance of the injunction against DAPA leaves things in obvious flux. There are several considerations affecting might happen now--legal, procedural, and political.

Procedurally, the next move is a trial on the merits and, as the trial judge has tipped his hand, likely entry of a permanent injunction. Then we go back up the ladder, presumably back to SCOTUS, by which point it will be back up to a full roster. I have heard suggestions that the government might seek a quick permanent injunction (if a defendant has no new evidence, the court can  convert a preliminary injunction into a permanent injunction without a trial or further hearing) and expedited review to SCOTUS. Given my long-standing position that there will not be a ninth Justice until the start of OT 2017*, I am not sure this will achieve anything, until the hope is that SCOTUS would stay the permanent injunction pending review (which, of course, does nothing about the preliminary injunction that remains in place until final judgment).

[*] Assuming, of course, that a Republican Senate does not continue to refuse to allow an appointment because, even though the people have spoken, the real governing principle is that Democratic presidents do not get to make Supreme Court appointments.

Legally, the United States could attempt to apply DAPA outside of the eight states that brought this suit. Although the district court purported to issue a nationwide injunction, I do not believe a district court has that power. The United States is enjoined from enforcing DAPA only as to the plaintiff states, and no one else is protected by the injunction;** this was not a class action and there is nothing that legally makes this relief indivisible. The precedential force of the constitutional analysis supporting the injunction is limited to the Fifth Circuit. And SCOTUS's affirmance of that analysis does not create binding precedent. So nothing in the Constitution or any court order prohibits the United States from enforcing DAPA in, for example, California, especially if California does not object.

[**] For much the same reason that Obergefell did not, of its own force, require Texas to issue marriage licenses, a position Texas happily adopted a year ago.

Politically, I do not see this happening.  It would take too long to explain to the public concepts such as scope of an injunction, regional precedent, and non-precedential SCOTUS affirmances. Instead, this would play in the public as the administration ignoring a court order, one seemingly emanating (or at least endorsed by) SCOTUS. [Update: I imagine the government also wants to avoid a situation in which it enforces the immigration laws differently in 42 states than it does in the other eight.]

Posted by Howard Wasserman on June 23, 2016 at 02:17 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Monday, June 20, 2016

12 years a President?

Following up on my discussion of Veep's penultimate episode and Tom James occupying the White House for twelve years: I asked Brian Kalt (MSU), who wrote the book Constitutional Cliffhangers, which explored various gaps in the constitutional provisions on presidential selection. He wrote the following (reposted here with his permission):

On the question of whether acting as president for four years should count, it does seem right textually. As such, I think it provides one of the strongest tests I can imagine of a person’s commitment to textualism, because it is so much at odds with the purpose of the 22nd Amendment. As with the question of whether there is a distinction between being eligible to be elected president and being eligible to serve at all, the legislative history tells us that the drafters intentionally sacrificed precision and broad coverage on the altar of supposedly simple language.

Following the path I take in my book, I would dodge the question somewhat by focusing on the practical side—positing that it is very unlikely that such a person would be able to get the people to elect him two more times. Conversely, if he did manage to get the people to elect him two more times, it would be hard for the courts or Congress to deny him his prize.

Brian described evolution of the language of the 22d Amendment, where a desire for simplicity of language collided with a desire to count at least some portion of another person's term toward the term, leading to a an unintended hole.

First, the version introduced in the House said that no one: “shall be chosen or serve as President of the United States for any term, or be eligible to hold the office of President during any term, if such person shall have heretofore served as President during the whole or any part of each of any two separate terms.”

The version that passed the House had the same effect, but was more concise: “Any person who has served as President of the United States during all, or portions, of any two terms, shall thereafter be ineligible to hold the office of President.”

The Senate Judiciary Committee loosened the restraints a bit in terms of timing (one day would not count; it had to be a year) but still did not limit it to terms to which someone else had been elected: “A person who has held the office of President, or acted as President, on three hundred and sixty-five calendar days or more in each of two terms shall not be eligible to hold the office of President, or to act as President, for any part of another term.”

Senator Magnuson was the great advocate of simplicity. He also did not want to count any partial terms. To him, then, the Veep character’s position would be just fine. His language was: “No person shall be elected to the office of President more than twice.”

The Senate’s final text (to which the House agreed) accepted Magnuson’s simplification of the “eliminated from what?” language, which was the basis of the discussion here a little while back on whether two-termers can serve as President even though they cannot be elected. But on the other part of the amendment, the “eliminated based on what?” language, the Senate was not willing to fail to count unelected service. When they restored language to count unelected service, though, they used the infelicitous phrasing that we are now discussing: “or acted as President, for more than two years of a term to which some other person was elected President.” They could have just eliminated everything after “term” and avoided our current dilemma.

Posted by Howard Wasserman on June 20, 2016 at 09:34 AM in Constitutional thoughts, Culture, Howard Wasserman | Permalink | Comments (0)

Veep, S5E9

We finally get to the House election, but the episode is shown through the documentary (Kissing Your Sister: The Story of a Tie) that Selina's daughter, Catherine, has been working on all season. It is a nice change of pace. It gives us scenes we already have seen in real time during the season, but from the different perspective of Catherine's hand-held camera. It also shows the background events for things we have seen on the show. For humor, we see the background shots of Jonah (unsuccessfully) chopping wood for his campaign commercial. We see into the personal lives of the staffers--Amy's attempts to get together with Dan, Kent's membership in a Spanish-speaking motorcycle gang, Mike's shifting preparations for the coming babies. And we see Selina's verbal revenge against Amy for her outburst last season.

For plot, Catherine catches the lobbyist and Speaker of the House walking into Tom James' office announcing "future calling;" this lead to the dinner at the Mongolian Barbecue that we saw live a few weeks ago. We also see Catherine's interview with Bill Ericsson, the former staffer who took the fall and went to jail last season for the Meyer Campaign's illegal activities; he says that if he were James, he would try to get three states to abstain to send it to the Senate. We know Ericsson got his conviction overturned on appeal (he was running the Widow Sherman's campaign in New Hampshire), so now we can wonder if James or the lobbyist helped Ericsson to get out of jail.

The show went with Ericsson's plan, hinted at the end of last season--the final House vote is O'Brien 25, Meyer 22, 3 abstentions (Missouri, Vermont, and a third state we never saw). The Speaker adjourns the House. And the implication is that the Senate will elect James as VP and he will become President next week, because "a President shall not have been chosen."

Selina made one Hail Mary, trying to get Jonah to switch New Hampshire's vote to O'Brien. If O'Brien won, she could run against him in four years, but if James won, she would have to wait eight years, at which point she would be too old. Unfortunately, Jonah did not get the word in time (he was late for the vote because he spent the night with a high school senior/congressional groupie, then could not find the House chamber). After the session ends, he tries to change his vote, announcing "The Gentleman from New Hampshire puts forth on the floor a do-over."

So how did the show do on the Constitution and the electoral process? Not well--yes, I know it is a TV show and a great one; it just does not pass the Con Law exam).

• They got the dates wrong. The House election is taking place on January 3d and we see a flashback to Jonah's swearing in the day before (right before hooking up with the groupie). But under § 2 of the Twentieth Amendment, the new House convenes on January 3. And under 3 U.S.C. § 15, the House does not open and count the Electoral College votes until 1 p.m. on January 6. And the House cannot hold an election until it actually counts the electoral votes and determines that there is, in fact, a tie (what if there had been that faithless elector?).

• I am trying to figure out why three was the magic number of abstentions for denying a majority. There does not seem anything significant about that number. Also, no states had evenly divided delegations, which seems unlikely as a practical matter, given the number of states with even-numbered House caucuses (including New Hampshire, more on that below).

• On that point: I cannot find the answer to this question and do not feel like researching it at midnight: Are abstentions treated the same as divided caucuses? Or is divided caucus a vote for neither candidate, while an abstention is a non-vote? And does the Twelfth Amendment require a majority of all states or all states that case votes, with abstentions being non-votes that reduce the denominator? History is ambiguous. In 1800, all the representatives in Delaware (1) and South Carolina (4) abstained on the 36th ballot. Jefferson already had won 10 states, so he had the election anyway. But it is not clear whether his majority was out of 16 (total states) or 14 (states casting votes, since Delaware and South Carolina abstained because each of their members abstained)? Were the abstentions from those two states the same as, say, Maryland's earlier non-committal vote when the caucus split between Burr and Jefferson?

In the Veep-iverse, this matters for two reasons. If they are the same, James did not have to necessarily plot to get states to abstain, he could have just counted the votes and seen that there were a sufficient number of evenly divided even-numbered caucuses. If they are different, then O'Brien won the election, because the three abstention reduce the denominator to 47 (states voting), so O'Brien's 25 votes constituted a majority of that.

[Update: A participant in the Con Law Prof listserv offers the right way of looking at this: If every member of the caucus abstains, then the vote from the state is 0-0-X; this is an evenly divided caucus, just as much as a 1-1-1 caucus would be. So there are no non-votes, which means the denominator must be 50. But then we go back to James not needing states to abstain, but simply be divided, whether through true division or through strategic abstentions by individual members in a state that create a tie (we thought that is what he was doing two weeks ago in getting the seventh member of Colorado's caucus to abstain, producing a 3-3-1 division). So the show seems to err again, confusing abstentions by states with abstention by individual members that tilt the balance one way or another.]

• The House adjourns with no announcement or plans for another vote. Of course, in 1801 the House immediately dove into additional votes over the course of that day and the following days and weeks. Catherine's movie catches a snippet of a conversation in which Selina and one of her staffers mention that James likely got the Speaker to agree not to hold additional votes once the first produced no winner. But would the members of the House, especially those who support O'Brien (and thus are politically opposed to James), tolerate that? Would the public? Yes, James is popular and competent. But it seems too pat.

• Jonah, of course, makes a fool of himself. But the problem of placing him in New Hampshire arose again. New Hampshire has two representatives, so Jonah does not exclusively control the caucus vote. New Hampshire only voted for Meyer because the other New Hampshire representative also voted for Meyer.  So, again, Jonah was not necessary. More importantly, Jonah could not unilaterally switch the state's vote; switching his vote, assuming his colleague did not switch (and Jonah never had a chance to talk to him), would only render New Hampshire a split caucus going for no one, denying both candidates the possibility of a majority (unless abstentions do not count as votes).

• The show got its numbers wrong, at least for purposes of season-long consistency. The idea was that Jonah would cast the vote that would give Selina New Hampshire and the presidency. Put aside that NH could not play that role. It only works if NH would be the 26th state for Meyer. But the final vote with NH going for Selina, was 25-22-3. Even if all three abstentions would have been Meyer states, that still would not produce a victory for her.

• The show is setting up a Tom James presidency, continuing to ignore that James is not becoming President, he is only becoming acting President. Put differently, he does not hold the office of President, he only exercises those powers. The 22d Amendment expressly draws that distinction, as does the presidential succession statute. Even if it lasts four years, he still only acts as president during a period in which no President has been chosen. Neither the Constitution nor § 19 places a limit on the period in which someone can act as president or a limit on how long the period of non-qualification can last.

What the Speaker is allowing to happen is inconsistent with the purpose of the Twelfth Amendment. The amendment was motivated, in part, by the risk of "inversion," in which a party's preferred candidate for Vice President would win the House election and become President, against the preferences of the party and perhaps the public. The Federalists who voted for Burr did so because they hated Jefferson, but also because they knew it would mess with the Democratic-Republican plans to have Jefferson as President and Burr as VP. The Speaker is allowing the very inversion the amendment was designed to prohibit. Again, because James is so popular and so competent, the public in the Veep-iverse is okay with it, as he will get things done. Thinking about it, however, it starts to sound like a coup--the VP is conspiring with the Speaker to prevent a vote for the presidency, allowing him to exercise those powers for an entire four-year term. I think there would be strong opposition. And I also would expect both Meyer and O'Brien to lobby House members from their respective parties to force a vote--perhaps on bipartisan threat of removing the Speaker if he does not continue holding elections. Again, too pat.

Since the show is coming back for another season, it must be setting up what it hinted at in last season's finale--James nominating Meyer as his vice president, so next season she will be back where she started--doing nothing and waiting for the President to call.  Too bad that is a constitutional impossibility.

• And now for the big mistake (ed: Maybe). Selina explains to Amy her plan to have Jonah switch so she could run against O'Brien in four years, whereas if James is made (acting) President, he would serve for eight years. Amy corrects her--"Twelve, ma'am. Tom's first term won't count because technically he'll be an elevated Vice President." My initial reaction was this is unforgivably wrong and I cannot believe they missed that badly, even if only as a piece of exposition. The Twenty-second Amendment makes clear that someone who has acted as president for more than two years of someone else's term can only be elected President once. Since James will act as president  for four years (we presume, because the Speaker is blocking a vote), he could be elected once for four more years, but not a second time.

But then someone pointed out that the 22d Amendment says "held the office of President, or acted as President, for more than two years of a term to which some other person was elected President." (emphasis mine). The argument is that James is not acting in a term to which someone else was elected; he is acting because no one was elected. Textually that seems right. And it cannot be excused as drafting for an unforeseen situation, since the 12th and 20th Amendments both contemplated a VP acting as president for some period of time if the House failed to elect a President. So if they intended to include that in the 10-year limit, the drafters of the 22d should have accounted for that. Amy's exposition ("he'll be an elevated Vice President") is still wrong, but the substance is right.

But this reading is so inconsistent with the purpose of all three amendments related to a House election and presidential succession that it cannot be right. The 22d was intended to limit the number of years anyone can exercise executive power. And it would incentivize the very manipulations we see here, both in the Electoral College and in any House contingency election. And those incentives would not be limited to the VP-elect. If the House cannot pick a President and the Senate cannot pick a VP, the Speaker would act as president under § 19(a). So imagine the plots that could be hatched.

• The process the show followed for the House election is interesting. One member from each state, in alphabetical order, cast the entire state's vote publicly, presumably with individual votes having been taken in secret and within each caucus. In both 1800 and 1824, however, individual votes were recorded and each state's ballot was written and sealed. The procedures for the House vote are left to the House and changeable for each election, so nothing is set in stone. Lawrence Tribe wrote a nice essay on the process prior to the 1980 election, when it seemed possible that independent John Anderson might win some electoral votes, perhaps enough to deprive Reagan or Carter of a majority and throw the election into the House (spoiler: He didn't).

Posted by Howard Wasserman on June 20, 2016 at 08:19 AM in Constitutional thoughts, Culture, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, June 09, 2016

Permanent injunctions and no mootness in marriage equality litigation

I missed this yesterday, but Judge Granade entered a permanent injunction in Strawser v. Strange. She rejected the state's argument that the case was moot in light of Obergefell, pointing to the suspended Roy Moore and the Supreme Court of Alabama's refusal to vacate its March 2015 Mandamus and that court's continued criticism of Obergefell as demonstrating that the state officials cannot show that enforcement of the marriage ban is certain not to occur. That the court (including whoever is Chief and serving as the administrative supervisor of the state judiciary ) is especially salient in Alabama, where judicial-branch officials are charged with issuing marriage licenses.

Judge Granade's order follows on the heels (and relies on) a similar permanent injunction in Brenner v. Scott in Florida back in March (sorry to have missed it at the time). The court in Brenner was even more dismissive of the state's mootness arguments. The court pointed to the state's refusal to immediately comply with earlier orders, the legislature's failure to repeal or amend the ban on same-sex marriages and other laws affected by that ban, and requests of state officials to "clarify" the scope of the injunction on other issues that turn on recognition of same-sex marriage. For example, the State Surgeon General asked for clarification whether, under Obergefell and the injunction, they must identify a female non-biological parent on a birth certificate, even though the document says "father;" the judge insisted the answer should be easy (same-sex couples must be treated the same as opposite couples in all respects) and the request itself showed that the defendants have not "unambiguously terminated their illegal practices." These courts join the Eighth Circuit in rejecting the argument that officials' agreement to comply with Obergefell, without more, moots unrelated cases involving different parties and different laws.

There is a procedural morass here that makes this a lot more complicated and that I need to think through further.

On the one hand, SCOTUS precedent should not moot an unrelated case, given the general rule that voluntary cessation does not moot and especially given my departmentalist model in which state officials have no constitutional obligation to follow SCOTUS (or any other) precedent outside of a judgment against them as to particular parties. That keeps the controversy alive, since every new request for a license is a new controversy beyond the scope of any existing court order. That state officials are not rushing to apply Obergefell to new settings is a product of Obergefell not extending that far.

On the other hand, the limited scope of most injunctions (including the injunction in Brenner, although not Strawser, given the class certification) should make a permanent injunction inappropriate once the named plaintiffs received their marriage licenses on the strength of the preliminary injunction. The plaintiffs got what they wanted and the defendants gave the plaintiffs what they were entitled to, so there is nothing more for the court order to do as to these parties. Everything else is for further state compliance with respect to people and issues not before the court and, if necessary, further litigation and a new injunction involving those new parties and new issues. For example, Brenner recognized that the birth-certificate issue is "not well presented in this case," since none of the plaintiffs seeks a birth certificate; there are two separate lawsuits by unrelated parties against the Surgeon General for refusal to issue such certificates. And if those statutes are constitutionally invalid (as they assuredly are under Obergefell), then state officials will be enjoined from enforcing those laws as to those plaintiffs. But that should not provide a basis for the type of free-standing injunction against taking any "steps to enforce or apply" Florida's prohibition on same-sex marriage, unconnected to context or party, in a case in which the plaintiffs only sought marriage licenses.

Finally, an interesting side note: I found the Strawser order on the website for Americans United for Separate of Church and States, which is undertaking representation of couples seeking marriage licenses in Alabama (and presumably elsewhere), since the refusals are now grounded in officials' religious objections to performing this function. It is interesting how the constitutional valance of marriage equality, and thus of the advocacy groups involved, has shifted.

Posted by Howard Wasserman on June 9, 2016 at 09:35 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, June 08, 2016

Stern on liberals, sexual violence, and the justice system

I was going to write something about the misguided effort by California voters to attempt to recall Judge Aaron Persky in response to his  light sentence on convicted sexual assaulter Brock Turner, arguing that anyone supporting such efforts cannot complain when state judges are removed or non-retained in response to, for example, pro-LGBTQ rulings (e.g., three members of the Supreme Court of Iowa in 2010). But Mark Joseph Stern at Slate (whose work I generally do not like), beat me to it. He ties the recall petition to a host of issues in which progressive commitment to due process, basic defendant rights, and judicial independence have run aground in cases of sexual violence, with the ordinarily progressive position abandoned; these include victim-impact statements, propensity evidence in sexual-violence cases,  the right to confront witnesses, and general abandonment of due process in campus sexual assault.

To further illustrate the shifting locus: During lunch when I was interviewing at one law school, the subject turned to summer public-interest scholarships (small-money grants for students working public-interest summer jobs). The faculty member at the table said the grants were available for students working at the public defender's, but not to students in prosecutors' offices, which did not qualify as "public interest." That is, unless they were prosecuting domestic violence and sexual assault.

Posted by Howard Wasserman on June 8, 2016 at 04:38 PM in Constitutional thoughts, Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Saturday, June 04, 2016

Muhammad Ali and the Law

Some law-related thoughts following the death of Muhammad Ali.

Ali's direct contribution to U.S. law is the Supreme Court decision (in a case captioned Cassius Marsellus CLAY, Jr. also known as Muhammad Ali) reversing his conviction for refusing Army induction. It was a per curiam opinion, decided on fairly narrow grounds, so nothing that would become canon or significant precedent. Ali had sought a conscientious-objection exemption, which at the time required that the person have a sincere, religiously grounded objection to war in any form. Although a hearing officer found all three elements satisfied and recommended to the Appeal Board that his status be recognized, the Department of Justice wrote a letter to the Board recommending rejection of status, based on DOJ's purported findings that Ali failed to satisfy any of the three elements. The Appeal Board denied c/o status, disregarding the hearing officer's recommendation and without explanation, although the only other available basis was the DOJ letter. Before the Court, however, the government conceded that Ali's objection was sincere and religiously based. That brought the case within precedent holding that when the basis for a selection-service (or any other government) decision is uncertain but some possible bases are unlawful or erroneous, the entire decision must be vitiated. Rather than speculating whether the Board might have relied on the one remaining basis (the objection not being to war in any form), the Court rejected the Board's decision in toto and reversed the conviction. Justice Douglas concurred; he argued that the evidence showed Ali objected to all but Islamic war against nonbelievers, a "matter of conscience protected by the First Amendment which Congress has no power to qualify or dilute" by limiting c/o status only to those who object to all war in all forms. Justice Harlan concurred in the result, concluding that the DOJ letter could be read as claiming that Ali's assertion of C/O status was untimely, an error that called for reversal under the same line of cases as the majority relied on. The inside-the-Court workings leading to the decision were the subject of the otherwise-silly Muhammad Ali's Greatest Fight.

Ali is lionized for this stand, often through the modern laments about professional athletes refusing to take political stands or become politically involved the way Muhammad Ali did. But this has always seemed unfair. Ali was not lionized at the time. His actions were unpopular with the press and much of "mainstream" America (which did not like Ali to begin with, regarding him as an uppity loudmouth). The exception was African-Americans and young anti-war activists on college campuses. He was stripped of the heavyweight title and denied a license to fight in any state, most importantly New York (Madison Square Garden remained the center of the boxing world), costing him 3 1/2 years at the prime of his career. Although ultimately vindicated by SCOTUS, it came at tremendous cost to his career. Modern athletes asked to take political stands almost certainly do not face similar exile from their sports. But to normalize Ali* as the expectation for high-profile athletes seems unfair, a burden we do not place on other people, even other famous people, anywhere else in society.

[*] The other person forwarded as the aspiration is Jackie Robinson. But Robinson was somewhat forced to take a stand by circumstance--being the first African-American player in modern baseball made him inherently political. And the abuse Robinson took no doubt took a psychological and physical toll that contributed to him dying at age 53.

Update: Case in point from the Daily News, extolling Ali for "offer[ing] a roadmap for today’s athlete to be an activist," while 1) eliding that in 1967, this columnist almost certainly would have been lining up to excoriate Ali for talking to much and dodging the draft, and 2) perpetuating the idea that the only true activist is the one who sacrifices millions of dollars and the prime of his career, something we ask of no one else.  The Big Lead provides a good critique. At the same time, it understates the point in saying "[t]here are few, if any, athletes who can match Ali’s legacy fighting for social issues. That’s what made him such an important figure." Ali's legacy is, in part, a unique product of circumstances and initially unlawful action by the United States. That is why no one can match it.

Further Update: This Slate piece goes into detail on a lot of these themes, including more background on DOJ's efforts to influence the Appeal Board and on the prosecution, which were influenced by congressional and administration pressure.

Posted by Howard Wasserman on June 4, 2016 at 06:16 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Saturday, May 28, 2016

Thiel, settlement, and third-party funding

Following up my previous post on Peter Thiel and Gawker, this TNR post is so wrong about so many issues with civil litigation.

First, it derides the ACLU/NAACP analogy (also offered by Eugene Kontorovich) as "ridiculous." That is correct to the extent the ACLU or NAACP are not motivated by private vendettas. But the comparison works at the broader level of someone with an agenda (whether personal or ideological) helping someone else litigate their claims. And the fact that the agenda is personal rather than ideological should not matter. Public-interest organizations are no more consistent than individuals in their positions, as will no doubt be demonstrated when various political groups go silent about President Trump's executive actions.

Second, it argues that Thiel 's "Ahab-like mission" prevented the case from settling, which would have been the better solution to properly balance free speech and privacy concerns. But the prevailing view is that too many cases settle too easily, often under pressure from judges pushing settlement, and often confidentially, thereby depriving the public of knowledge of the case or its outcome and making it harder for repeat-player defendants (such as Gawker) to be held accountable. Moreover, to the extent Thiel's funding hand created a conflict between his interests and a settlement that would have been best for Hogan, this case starts to look quite a bit like NAACP-run impact litigation, where a settlement that might be best for the individual client is not consistent with the funder's long-term ideological or institutional needs and goals. So the non-settlement undermines the supposed ridiculousness of the NAACP/ACLU analogy--the potential for party-funder conflict looms in both.

Third, the focus on settlement as the means to balance speech and privacy and serve the public interest (by making Gawker pay for a violation while not being put out of business) is nonsense. We do not strike the balance by settling individual cases, although the parties themselves might. We strike the balance in the legal rules themselves, protecting speech against civil liability for invasion-of-privacy until the speaker crosses some line (the location of which will be the issue on appeal in this case). If Gawker crossed that line, there is no balance to be struck; it should be on the hook for all the harm it legally caused by violating Hogan's rights. And if that harm is so great that it forces Gawker out of business, so be it.

Finally, the post argues that Thiel's supposed deterrence goal is undermined by the fact that he financed the lawsuit in secret, because deterrence only works if the punishment is publicly known. But this makes no sense. It is not Thiel's funding efforts that punishes Gawker, it is the $ 140 million judgment that Hogan achieved through litigation funded by Thiel. And that judgment is publicly known. And that judgment (if it stands, which I do not believe it will) will have a pretty strong deterrent effect. Thiel's identity is not necessary for deterrence. Although, to the extent we are concerned about anonymous funding, Simona Grossi's argument about transparency in funding offers a solution.

Posted by Howard Wasserman on May 28, 2016 at 05:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Friday, May 27, 2016

Litigation financing and the First Amendment

I wanted to share two takes on the news that tech billionaire Peter Thiel has been funding Hulk Hogan's lawsuit against Gawker Media. Simona Grossi (Loyola-LA) argues there is nothing inherently wrong with Thiel financing someone else's litigation, which represents a different type of third-party litigation financing, although she suggests that due process may require transparency in such funding arrangements.* Slate's Mark Joseph Stern argues that the problem is not Thiel funding the litigation, but that the litigation is possible because of elected state judges and state privacy torts that may not sufficiently leave room for free speech.

[*] In discussing litigation financing, Grossi mentions  public-interest organizations providing free/reduced-fee representation. But she does not mention the role of attorneys' fees for many of these organizations, which affects how that financing model operates. Of course, the court knows when attorneys' fees are potentially in play, so any transparency concerns are addressed.

Both argue that Thiel's funding activities are protected by the First Amendment, although for different reasons. Stern finds support from NAACP v. Button and constitutional protection for ideological litigation, while Grossi finds support in an analogy to campaign finance. The answer, I think, is a combination of these.

Button does not do it alone, because the case was less about the NAACP financing litigation than about it soliciting clients to bring litigation (financed, obviously, by the NAACP, but that was not the focus in the case). Plus, the NAACP was, in some sense, seeking to vindicate its organizational rights (or those of its members) through litigation. It is harder to conceptualize Thiel as vindicating his own rights. While he benefits from destroying Gawker, it is only in the way that everyone benefits from the deterrent effects of tort liability (either because Gawker stops publishing mean things or because Gawker stops publishing at all). This seems different than the NAACP desegregating the schools, where the precedential and remedial benefits of a judicial declaration of the unconstitutionality of segregated schools are more direct. That distinction also may relate to the litigation financed--challenges to the constitutional validity of state laws of general applicability as opposed to individual tort suits for damages against a private entity.

But Button does some work for the campaign-finance analogy. Money is not speech. But speech costs money, so restricting the money that can be spent on speech necessarily limits speech.** Under Button, litigation is First Amendment activity.*** It follows that spending money on litigation also must enjoy constitutional protection. That does not get us all the way there, obviously. But it at least forces Thiel's critics to identify what makes this financing model different and uniquely harmful and to show why any harms cannot be addressed in other ways (such as through the disclosure that Grossi suggests).

[**] As a general proposition, even critics of Citizens United and current campaign-finance doctrine would recognize that, for example, government could not limit the amount of money a company can spend on (truthful non-misleading) advertising or on printing its newspaper or magazine.

[***] The Court does not specify whether it is speech or petition activity, although it should not matter. Petition activity costs money, just as speech does.

Lost in much of the hand-wringing is that Thiel's efforts, at least with respect to Hogan, will likely fail. It seems unlikely that the judgment against Gawker will stand (in light of both First Amendment considerations and the trial court's evidentiary rulings), certainly not in the ridiculous amounts imposed. Of course, Thiel's goal may have been simply to force Gawker to spend millions of dollars on its defense, which it has done, even if Gawker does not also have to pay millions in damages. If so, the answer may lie in fee-shifting, although drafting a fee-shifting rule without it turning into "loser pays" will pose its own challenges.

Posted by Howard Wasserman on May 27, 2016 at 10:44 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, May 25, 2016

Frank Easterbrook, the First Amendment, and the Chicago Cubs

My colleague calls this case the trifecta. Interestingly, news reports (BNA, NLJ, etc.) have focused on the court of appeals affirming the denial of the preliminary injunction and rejecting the argument that the flat ban on sales on the adjacent sidewalks violates the First Amendment. But the court spent a lot of time on possible First Amendment defects in a related ordinance requiring all peddlers to be individually licenses, except those selling newspapers. The court questioned both the exception for newspapers under Reed v. Gilbert and the licensing requirement as a whole, to the extent it disadvantages a small publication that relies on individual part-time sellers. The opinion offers the plaintiffs arguments to make in moving for a permanent injunction on remand.

And Easterbrook could not resist starting with this line: "The 2016 season is under way, and the Cubs are doing well on the field. Left Field hopes to do as well on appeal."

Posted by Howard Wasserman on May 25, 2016 at 04:10 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 24, 2016

Trusts, religious paraphenalia, and freedom of the church

I am a week late to this decision from Judge McConnell of the District of Connecticut, resolving a dispute between two congregations over ownership of a pair of historic rimonim (the deocorative bells that adorn a dressed Torah). The opinion spends 40+ pages lovingly tracing the long story of Touro Synagogue and the Jews of Newport, R.I., including the 1790 letter exchange with George Washington and with several divergences into the Iberian Inquisition and differences between Sephardic and Ashkenazi practices. The opinion is a wonderful read as a judicial summary of a piece of American-Jewish history. The central legal issue was the relationship between the current Newport congregation and a congregation in New York that formed in the early 1800s, when most of the Newport Jewish community left for New York.

My question, for those who know such things (looking at you, Rick and Chris Lund) is whether the court successfully avoided any freedom-of-the-church problems. Because the structure of Jewish congregations is not religiously compelled, the questions (what corporations were formed, trust relationships, trustee conduct, existence of a bailment) could be resolved on purely secular grounds. I caught one point in which the court drew an inference (that the rimonim were received at the same time as some torahs, because the items travel together) that is based on some religious idea. But mostly the court seemed able to focus on general legal principles, without touching on any point of obvious Jewish law.

Are there First Amendment problems in this decision? Is this case so different from deciding which of two competing groups is the "real church" arguing over property, the type of cases courts are not permitted to hear?

Posted by Howard Wasserman on May 24, 2016 at 04:54 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Monday, May 23, 2016

Veep, S5E5

The show takes place during Thanksgiving weekend, in an episode that has a lot of House-election stuff in the air.

Selina begins making phone calls to whip votes for the coming House election. But the show approaches that election in a way that is, at least on the surface, sloppy--the correct understanding may be in the background, but the details to come out in the way characters discuss the mater.

Details (and spoilers) after the jump.

First, no one has yet acknowledged that we do not know for sure that there is an Electoral College tie. The electors have not yet voted (that happens on the first Monday after the second Wednesday in December, so about three weeks from the current action), not every state has a faithless-elector law (and for the states that do, their constitutionality is not settled), and in the show's universe of less-rigid partisanship, an elector defecting to the other party (to say nothing of the hypothesized rogue Tom James vote) is not outside the realm. We will not know that the vote is tied until January 6, when the House meets to count the votes. There is a presumptive tie, given how the College now works, but it remains just that.

Second, it seems odd that Selina seems to be whipping current members of the House, since it is the new House, beginning January 5, that will count the electoral votes and, if there is no majority, select the President. The show could at least mine some scenes from Selina lobbying some new House-members-elect who have not yet taken office.

Third, she is making calls as if individual votes matter, rather than the partisan make-up of the state delegation. Thus, when Rep. Harry Sherman of New Hampshire (an 89-year-old man from the other party) dies, Selina's reaction is that this is one less vote for O'Brien, rather than talking in terms of how it affects the New Hampshire delegation as a whole. New Hampshire has two representatives. If the other representative is from Sherman's party, the state still goes for O'Brien; if she is from the other party, it turns a split delegation into a vote for Selina. That should be the discussion.

That last point leads to the other narrative development over replacing Sherman The state announces it will hold a special election "before Christmas." Sherman's  widow (perhaps also-octogenarian, although it would not surprise me if the show trotted out a much-younger woman and played that for laughs) is running to replace him and Selina's party recruits Jonah to oppose her.* But the show is not clear about what vacancy is being filled. Is it the current term, that ends on January 4? Would a state bother to hold an election so someone can serve for 15 days? Or is it for the next term (the one for which Sherman was re-elected) that begins on January 5? But that seat is not yet vacant, since the term of Congress has not begun. Would a state hold a special election before the beginning of the new Congress to fill a vacancy that will occur when the new Congress is seated, but not before and that thus does not exist? It does not appear to be constitutionally obligated to do so. Perhaps it would do so here, given the extraordinary and historic circumstances. In any event, the show is being non-specific on this point.

[*] The decision to have Jonah as the candidate is discussed inconsistently. At times, he is spoken of as cannon fodder, thrown in to lose to the grieving widow. At other times, it is discussed as Jonah likely winning the election (because his uncle is king-maker in the state), but only as a short-time placeholder until his more-favored cousin returns from a tour of duty in the Middle East.

Finally, the show throws out a little Twenty-fifth Amendment action. Selina wants to disappear for the weekend to have minor cosmetic surgery to remove the bags from under her eyes, which leaves both eyes with rings of blood for a few days. Naturally, she is needed to speak to the public, first to calm concerns over a salmonella outbreak and then to address Rep. Sherman's death. She asks both Tom James** and current VP Doyle to take the lead. Doyle agrees once, then balks a second time until he is told why Selina cannot do it. When Mike lies that she just had some minor oral surgery that renders her unable to speak in public, Doyle demands to know why the amendment was not invoked for the President's incapacity or why, if not incapacitated, Selina does not do this herself; Mike's response--"she's not not incapacitated"--is classic Veep.

[**] James is shown working some scheme through his public statements, in which he appears to be shilling for companies represented by a lobbying firm. Is he setting up that one faithless elector to get him into the House vote? Dan, who has been assigned as James' bag man, catches on, but no one in Selina's camp believes him.

Posted by Howard Wasserman on May 23, 2016 at 11:53 AM in Constitutional thoughts, Culture, Howard Wasserman, Television | Permalink | Comments (3)

Friday, May 20, 2016

Money and departmentalism

Pending legislation in Oklahaom would prohibit doctors from performing abortions (it would be a felony and would result in loss of medical license). This Slate story and this letter from the Center for Reproductive Rights  describes the controversy in what I would argue are the appropriate departmentalist terms. It is about time and money: The time and taxpayer money the state is going to waste defending a law that will pretty obviously lose in the courts because the courts are bound to follow SCOTUS and other binding precedent (under which this law is, as  the CRR says, blatantly unconstitutional). And, we can add to the bill the plaintiffs' attorneys' fees, which are going to be quite high, if the marriage litigation and other recent examples are an indicator. And they situate this amid all of Oklahoma's economic problems and the money it is not spending on education, social services, and the health and welfare of women and children. Nowhere does the author or the CRR suggest that anyone in the state legislature or the governor is acting contrary to the Constitution or to their oaths by voting on or signing this bill. Instead, it's that this is making it impossible for you to govern the state well.

[*] I want to explore more about the deterrent value of attorney's fees. While that was not the original purpose of § 1988, fees increasingly play that role, especially in non-monetary cases such as this one.

And that is the larger point I am searching for. Political-branch officials do not act "unconstitutionally" when they act contrary to judicial precedent, only when they fail to follow a judgment rendered against them. And if they want to keep forcing new litigation beyond that judgment, even as against precedent, that is consistent with their constitutional vision. But if the cost of this move becomes so great, and starts to distract or draw from other priorities, the hope is that the  public will rise up at the ballot box when this becomes wasteful enough. That, in turn, provides a political check on similar behavior.

But to return to the question of legal and judicial ethics in this realm. Some of the legislators are likely attorneys and have attorneys working for them; Fallin likely has attorneys working for her. Are they violating their ethical obligations by voting for this law or advising that they can vote for it?

Update: Gov. Fallin veoted the bill, arguing that the absence of a definition of "necessary to preserve the life of the mother" (the one situation in which an abortion would not be illegal) rendered the law vague, likely to fail in a constitutional challenge, and thus not an appropriate vehicle for challenging Roe.

Posted by Howard Wasserman on May 20, 2016 at 11:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (6)

Monday, May 16, 2016

Zubik, shadow dockets, and dispute resolution

It is easy to conclude that the anti-climactic resolution in Zubik v. Burwell is simply a consequence of the Court being down a Justice. What would have been a 5-4 win for the plaintiffs (with Justice Scalia in the majority) became a 4-4 affirmance (of disparate lower-court outcomes), necessitating the Court to order supplemental briefing and then to remand when, in light of that supplemental briefing, it was no longer necessary for this Court, as opposed to a lower court, to be involved.

And all of that may be true. But I want to try to situate this case, given its actual resolution, in two broader concerns.

First is the connection to William Baude's Shadow Docket. Perhaps this case demonstrates how cases can move back and forth between the "real" docket, in which merits decisions are made and explanations given, and the shadow docket, in which reasons are not given, but hints are dropped and cases are knocked out of the Court for non-merits reasons. The Court functionally DIGed the case, but in a way that gave specific marching orders to the lower courts to start over and, hopefully, put together the compromise resolution that the parties suggested in the supplemental briefing. But the end result plays much like what we saw in the lead-up to Obergefell.

Second, this type of resolution is not necessarily a bad thing. District courts (as do courts of appeals, although not quite as often) do this all the time--it is an aspect of "managerial judging," especially in cases involving institutional reform. While the Court is partially tasked with resolving significant disputes over constitutional (and in this case statutory) meaning and application, it also is the top of a judicial system whose primary function is to resolve discrete disputes between discrete parties. And if the Court can do that with a "work-it-out" mandate without passing on the legal question, there is no structural reason--no reason grounded in the "purposes" of SCOTUS or the federal courts--for it not to do so. Especially if it provides a solution that protects everyone's rights.

Posted by Howard Wasserman on May 16, 2016 at 12:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Saturday, May 07, 2016

Roy Moore suspended, facing removal

The Judicial Inquiry Commission of Alabama has filed a Complaint against Chief Justice Roy Moore with the Alabama Court of the Judiciary, which will hold trial to determine whether Moore should be removed from the bench. Moore is suspended with pay while the proceedings play out.

The focus of the charges was Moore's administrative order of January 2016, ordering all probate judges in the state that they had a ministerial duty not to issue marriage licenses to same-sex couples pending resolution of the mandamus action in the Supreme Court. This order was contrary to the statewide defendant class injunction in Strawser, the Eleventh Circuit's effective affirmance of that injunction (the Court rejected a challenge to the injunction as being inconsistent with the SCoA mandamus ruling, insisting that the SCoA ruling was abrogated by Obergefell), and Obergefell itself.

I know nothing about judicial ethics, particularly in Alabama. But it seems to me the first charge--that Moore ordered the probate judges to ignore a federal court's injunction--is fair game (although the fact that the Eleventh Circuit had weighed in on the issue seems beside the point). The rest--that Moore decided substantive legal issues, including in ways that conflicted with his role deciding cases as a member of the Court--seem a bit shakier, at least to the extent they suggest an ethical conflict between the Chief Justice's role as administrative head of the state judiciary and as a member of the courts. The last five charges assume that SCOTUS's decision in Obergefell is the last constitutional word and a state judge, even one acting in an administrative capacity, cannot second-guess or disagree with that.

I welcome comments from this with a background in Alabama judicial ethics.

Posted by Howard Wasserman on May 7, 2016 at 04:34 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Tuesday, May 03, 2016

"And a question everyone here should ask . . . " "Are you Canadian?"

I'm making this brief return to Prawfs (thanks Howard!) to plug an article by Christopher Schmidt and me on the issue of Senator Ted Cruz's eligibility to be president.  The issue got a lot of play earlier in the primary season when Donald Trump said that Cruz's Canadian birth was a problem for the Senator's campaign, and numerous constitutional law profs weighed in on the issue.  (See, e.g., Larry Tribe, Akhil Amar, Einer Elhauge, Eric Posner, Michael Ramsey.)  The debate centered around originalism: would Cruz be eligible under an originalist understanding of the natural-born citizen clause?  Tribe, Elhauge and Posner said no, while Ramsey said yes.  Commentators debated the original understandings of the Constitutional language, as well as certain 18th Century English and American statutes -- but they also asked whether originalism was the appropriate constitutional interpretive method.  Tribe, for example, argued that Cruz was ineligible under originalism but perfectly eligible under a "living constitutionalist" approach.

In our article "The Natural-Born Citizen Clause, Popular Constitutionalism, and Ted Cruz's Eligibility Question," Chris and I focus on the role of popular constitutionalism in the modern conservative movement and discuss the ramifications of a popular constitutionalist approach to the natural-born citizen clause.  Drawing on Chris's terrific earlier work on the Tea Party and popular constitutionalism, the article makes the case that the popular understanding of "natural-born" would likely exclude Cruz from eligibility, as the common understanding has been that a candidate must have been born in the United States.  However, Cruz's campaign has emphasized that this question is "settled law," and has looked to elite constitutional opinion to nail down the issue.  In particular, an article by Neal Katyal and Paul Clement -- published in the Harvard Law Review Forum, and timed to come out just before Cruz's presidential announcement -- claims that Cruz is eligible, and that any other conclusion is "specious" and "spurious."  Cruz has not left the clause's meaning open to voters, and he has not asked them to draw upon their "conservative constitutional principles" to decide whether he is eligible.  On other matters, however, Cruz has been very much a popular constitutionalist -- to an underappreciated extent.  Cruz's political campaign consistently refers to the people's role in defending the Constitution, and he has been a Tea Party constitutionalist since at least 2012, when he brought Sarah Palin and other Tea Partiers on board for his senate campaign.  In fact, Cruz has even advocated for amending the Constitution to allow for retention elections for Supreme Court justices

Although the national media has largely moved on from the question of Cruz's eligibility, the issue still burbles below the surface.  The snappy comeback from a Trump supporter yesterday shows that Cruz's Canadian birth still matters to some.  If Cruz fails to get the Republican nomination, there are myriad reasons why voters might have settled on a different candidate.  But popular constitutionalism in action might be one reason that voters cast their ballot for someone else.

Posted by Matt Bodie on May 3, 2016 at 11:23 AM in Constitutional thoughts, Current Affairs | Permalink | Comments (1)

Monday, May 02, 2016

Veep, S5E2

Nothing new on the federal constitutional or succession front. The story is settling in for a recount under Nevada law--although I welcome election-law folks to offer thoughts about the state process, under which a sample of votes are recounted and if it is closer than a certain margin--Meyer needed t0 pick-up 512 votes--there would be a statewide recount.

The great lawyerly moment was over the effect of a comma on a ballot on which the voter had scrawled "Fuck Selina Meyer." The O'Brien people insist it is an O'Brien vote, the voter expressing disdain for Meyer; the Meyer people insist it is a Meyer vote because there is a comma in there ("Fuck, Selina Meyer"), the voter expressing "earthy but unambiguous enthusiasm for Selina Meyer." The election official counts it for Meyer. [Update: Courtesy of one of my students]:

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Actually, I read it a third way--indicating resignation ("Fuck, nothing better, [throwing up hands], might as well vote for Meyer"), which still would have produced the same result of a vote for Meyer.

Posted by Howard Wasserman on May 2, 2016 at 12:22 PM in Constitutional thoughts, Culture, Howard Wasserman | Permalink | Comments (1)