Tag Archives: Equal Protection Clause

A Partial Victory for Native Americans

By tmess2 | Published June 17, 2023

The history of the United States is full of broken promises to Native American.  For a rather long period of time (in a pattern repeated in other places like Canada and Australia), part of the attempt of the European settlers to eliminate Native Americans was a practice of, for all intents and purposes, kidnapping children and placing them either in boarding schools or adopting them out to White parents to be raised without any knowledge of their ancestral culture.

During the Civil Rights era, several steps were taken to remedy these past sins.  In part, the federal government strengthened the powers of tribal governments.  Congress also passed the Indian Child Welfare Act to prevent a repeat of the efforts of some groups to break the tribes by stealing their youngest members.  Of course, in the U.S. no law stays the same forever, and interest groups always try to push back against the laws that are on the books.  Ultimately, these disputes end up at the Supreme Court, and recent terms have seen an ever growing number of cases related to Native Americans.  This term was no different, and this week saw the U.S. Supreme Court decide two cases related to Native Americans.

The “minor” case — Lac du Flambeau Band of Lake Suprerior Chipewa Indians vs. Coughlin — involved the intersection between tribal government and bankruptcy law.  Like other governments, sometimes an individual who owes money to a tribal government will enter bankruptcy.  If a person owes money to a private business, that business is only allowed to take further steps to collect its debt through the bankruptcy court.  In this case, the debtor tried to have the bankruptcy court enforce the stay against the tribe.  Normally, governments (including the tribes) have immunity from being sued, but the bankruptcy code contains some exceptions.  By a 7-1-1 vote, the Supreme Court found that tribal governments are inclcuded in the limited waiver of immunity contained in the bankruptcy code.  The two who did not join the majority opinion were Justice Thomas and Justice Gorsuch for very different reasons.  Justice Thomas agreed with the majority that the tribe lacked immunity from being sued because the tribe was engaged in “commerical” rather than “governmental” activity and, therefore, would not have had immunity even without the provision in the bankruptcy code waiving that immunity.  Justice Gorsuch, however, would have found no waiver of immunity.  In this case Justice Gorsuch continued his pattern of being one of the foremost defenders of the tribes on the Supreme Court.  While this case was a “loss” for the tribes, it was a loss because the Supreme Court treated tribal governments as being equal to other governments. Continue Reading...

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Supreme Court — October Term 2022 Preview (Part 1)

By tmess2 | Published September 24, 2022

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

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

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

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Redistricting 2022

By tmess2 | Published January 29, 2022

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

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

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

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Redistricting — Texas

By tmess2 | Published May 9, 2021

Texas is up first on the list of first looks at redistricting.  This look at Texas will feature some issues that are going to be recurring throughout this discussion and one issue that will impact Texas the most but might come into play in some other states.

The first issue is that we do not yet have the actual precinct and block level counts from the 2020 census.  That means that this first look is based on the 2019 estimates.  And, of course, estimates are not necessarily exact (as the state level numbers for 2020 showed).  While the far right is upset about the national numbers and want to raise sinister suggestions that something happened behind the scenes to fudge the real numbers, it is equally likely that the previous administration was fudging the numbers in the estimates.  What is most likely is that certain steps by red state governments and anti-government rhetoric led to an undercount of certain groups in red states in 2020 when the Trump Administration was running the Census.  So, we have to expect that there will be some unexpected deviations within states when we get the numbers in November.

The second issue is the Donald Trump had a big impact on voters.  There are various ways to measure partisan lean in a state.  Most involve taking a composite of recent state-wide elections.  The software that I am using is currently based on the 2012 through 2016 elections.  In Texas, in 2012, both Senator Ted Cruz and Senator Mitt Romney carried the state by around 16%.  In 2014, Senator Cornyn carried the state by about 27% and other Republicans were winning by around a 22% margin.  In 2016, Donald Trump won by around  9%.   In 2018, however, Senator Cruz only won by 2%.  While Governor Greg Abbott won by around 13% with the other state-wide Republicans ranging between 3% and 11%.  Finally, in 2020, President Trump only won by 6% and Senator Cornyn won by around 10%.   In other words, what my software is showing as a 60-40 state based on the 2012-16 results is actually something more like a 54-46 state.  And a good chunk of that swing was in suburban districts which probably went from something like 60-40 to very close to 50-50.  Overall, there were three congressional districts (Fourteenth, Fifteenth, and Sixteenth) in which the Republican House candidate beat the 2012-16 Republican composite numbers in their district, and in some districts the Republican underperformed by around 10%. Continue Reading...

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The Supreme Court and Redistricting — Again.

By tmess2 | Published March 9, 2019

Next Monday, the Supreme Court begins its March argument session.  Over the following two weeks, the Supreme Court will hear three case on redistricting.  These cases represent the fifth consecutive year in which the Supreme Court is looking at the rules for redistricting.  While memory is always a tricky thing, I can’t remember a redistricting cycle in which there were these many cases this late in the cycle.  At this point, these cases are more about setting the ground rules for 2021 than getting valid lines for the 2020 election (as, regardless of the decisions in these cases, the lower courts will not have much time to redraw the lines or have those new lines reviewed before 2020).

The session starts on March 18 with another look at the lines for the Virginia House of Delegates.  Two years ago, the Supreme Court found that the trial court applied the wrong standard in considering whether the Republicans in the legislature had improperly considered race in drawing those lines.  On the reconsideration ordered by the Supreme Court, the trial court changed its earlier decision and found that race improperly predominated in the line drawing decisions.  As with earlier cases this cycle, this latest racial gerrymander case involves the fine balancing of the interests of the Voting Rights Act (requiring the State to create majority-minority districts) and the Equal Protection Clause.  The question in these cases ultimately are two questions.  First, whether in the name of creating winnable districts for minorities, the legislature is actually engaged in packing more minorities into the district than is really necessary to meet the requirements of the Voting Rights Act.  Second, whether the districts created are such a departure from the normal districting principles that the lines are clearly the result of a racial gerrymander. 

In previous cases, the Supreme Court has rejected the concept of a one-size-fits-all approach to how many minorities an individual district must have to give minorities the ability to elect the candidate of their choice.  The last time that these districts were in front of the Supreme Court, the majority found that the record showed that the legislature had used such a mechanical rule, drawing the lines so that each of the twelve minority districts had a voting-age population which was at least 55% African-American.  The question on remand (and the issue on appeal) is whether that percentage was appropriate given the history of voting in these area and, assuming that it was not, whether the lines drawn were still appropriate give the other concerns (compactness, contiguity, incumbent protection, existing community lines, etc.) that traditionally govern the redistricting process. Continue Reading...

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