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Tag Archives: Voting Rights
One of Charles Dickens’s lesser known novels is “Bleak House,” dealing with a legal case over an estate that lasted so long and was so expensive that the expenses of the case exceeded the value of the estate. The same is unfortunately true of disputes over the redistricting process. We are now almost six years into the current ten-year cycle of district lines. The run-up to the next cycle begins with elections in several states this year and next that will pick some of the governors and legislators that will be in office in 2021 when the redistricting process begins again. You would think that, by this point of the cycle with three congressional elections and two or three state legislative elections (depending on the state) under the new lines, all court cases about those lines would be over. Unfortunately, we are not at that point yet.
This week, the Supreme Court decided the most recent redistricting case (and it has another one under submission). This week’s decision involved the Virginia House and whether the drawing of its lines represented a “racial gerrymander” that violates the Equal Protection Clause of the Fourteenth Amendment. The key issues in a racial gerrymander case is whether race is the predominate reason for the drawing of the lines of a particular district and (if race is the predominate reason) whether there is a sufficiently compelling reason for the reliance on race. Such a challenge focuses on particular district lines.
In this case, the challenges concerned twelve districts. The original three judge panel found that race was only the predominate reason for one of the twelve districts. In part, this decision relied on the fact that the other eleven districts did not have unusual shapes and the lines could be justified by “traditional” redistrict considerations. While the panel found that race was the predominate explanation for the twelfth district, the panel found that the need to bump up minority votes in that district to survive pre-clearance (as the Virginia lines were drawn before the Supreme Court abolished the pre-clearance requirement of the Voting Rights Act) was a sufficiently compelling reason.
In recent years, the Supreme Court has had its version of an “election rule.” The essence of this rule is that the Supreme Court does not like last second changes to the election process. Regardless of whether the change comes from state election authorities changing the state’s procedure or a court decision resolving a challenge to those procedures, the Supreme Court prefers to “freeze” the status quo far enough in advance of the election so that voters know the rules and can take steps to comply with those rules. Perhaps in response to this implied vague deadline (a little less implied in the case of Texas where the Supreme Court indicated that they would consider intervening in there was not a court decision by the end of July), the last several weeks of have seen court decisions in multiple cases involving multiple states seeking to impose a requirement that voters present photographic ID to vote in-person.
Last week, when I posted information on voting in Pennsylvania on Facebook, someone responded to my line “and it’s too late for an absentee ballot” by saying that Emergency Absentee Ballots are certainly possible.
Turns out that’s not really correct. Difference between de facto and de jure – yeah there’s a process, but if you really need one, it’s going to be tough to get one, and even harder to use that ballot.
My brother was planning on voting on Tuesday, but had a medical emergency Friday night. According to the law, since his heart attack occurred after 5 pm on Friday, he qualified. After the jump, the process and how it doesn’t work.
Today, before taking the next to last recess of the term, the Supreme Court handed down its opinion in Evanwel vs. Abbott. This case involved an attempt by some Texas Republicans to challenge the use of total population in redistricting. Instead, the petitioners wanted the Supreme Court to hold that the Equal Protection Clause required states to use some measure of voting population (a measure that would presumably exclude children, non-citizens, and those ineligible to vote for some other reason).
All eight justices rejected this attempt to change the law, but the three opinions in this case were vastly different. Six justices — in an opinion written by Justice Ginsburg — held that total population was a permissible measure while suggesting that other measures were, at the very least, questionable. Justice Alito (joined in part by Justice Thomas) while acknowledging that a state could choose to use total population questioned any suggestion that total population was a legally preferred measurement. Finally, Justice Thomas (writing only for himself) questioned the last fifty years of case law holding that courts had any right to require states to draw districts in roughly equal size in the absence of evidence of discriminatory intent.
The positive side from this opinion is that the attempt of Texas Republicans to exclude large segments of the minority community from counting in the drawing of district lines failed. The negative side is that there were not five justices to say that the alternative measures proposed by Republicans were not constitutionally permissible. It is almost certain that some Republicans around the country will attempt to amend state laws to allow them to use these alternative measures. Hopefully, by that time, we will have a majority on the Supreme Court willing to enforce all of the provisions of the Voting Rights Act and to look behind this facially race-neutral proposal to see the actual discriminatory intent.
When people think about key dates in the Supreme Court calendar, the day that most comes to mind is the First Monday in October (the official start of the annual term) — probably because it is the only date that is set in stone. The first argument day of each term is always the first Monday in October. There are other key points in the term, but they float a bit. One of those floating dates is the Monday after the last January argument. That date (which was earlier this week) is key because of the effective time table created by the Supreme Court’s rules. Under those rules, barring emergencies required rushed briefing and argument (United States vs. Nixon, Bush vs. Gore), the soonest that a case can be argued is approximately three months after the Supreme Court decides to grant full argument on a case. Because the last argument session is always in late April/Early May, any case accepted for argument after January will not be heard before the next term begins in October. That makes this point of the year the first time that it is possible to say with absolute certainty what cases will be heard and decided by June. With this being an election year, the politically explosive cases on the Supreme Court’s argument calendars are even more explosive.
When the Supreme Court meets on Monday in what is commonly referred to as the “long conference” (because it covers three months worth of petitions that have piled up during the summer), it will begin the process of filling the second half of its argument schedule — cases that will be decided by the end of June. As with the cases already set for argument this fall, there will be a mix of criminal cases, routine matters of statutory interpretation, and the politically explosive. While the criminal cases and the statutory cases are important to practitioners and businesses, it is the politically explosive cases that I will focus on for this blog.
In recent years, the Supreme Court has changed how it grants cases. In the past, the Supreme Court tended to accept or reject a case immediately (at its initial conference). However, after several cases had hidden problems (preliminary issues that had to be addressed before the Supreme Court could reach the issue presented in the petition), the Supreme Court has tended to “relist” (postpone consideration to a later conference) the cases that it is seriously considering granting to take a closer look for such potential problems. In addition, even putting aside the large number of petitions with little or no chance of being granted, there are more cases that raise significant issues than the Supreme Court is inclined to take.
In the current conference, one potentially interesting case involves a criminal prosecution from Puerto Rico. Generally, federal law recognizes a “dual sovereign” exception to the rule against double jeopardy (that you can’t be tried twice for the same offense). Thus, for the same course of conduct, a person can be charged by multiple states or by a state and the federal government. The issue in this case is whether Puerto Rico is a separate sovereign from the federal government. While legally, this case is probably not a close issue, the impact of the Supreme Court explaining Puerto Rico’s current status (essentially a territory of the U.S. with any home rule being by grace of Congress) could crystalize the debate over Puerto Rico’s status.