Tag Archives: Equal Protection

Supreme Court Preview — October Term 2023 — Part 1

By tmess2 | Published September 10, 2023

We are three weeks away from the First Monday in October which means that the Supreme Court will soon be back in session.  Putting to the side the continued questions about the ethical failings of certain ultra-conservative justices (who unfortunately would never be convicted by the Senate even in the unlikely event that the more ethically-challenged Republican caucus in the House would actually allow articles of impeachment to pass), that means time to look ahead to the politically-significant cases on this year’s docket.

For a brief refresher, during its annual term, the U.S. Supreme Court sits in seven argument sessions.  Each of these argument sessions lasts for two weeks.  After five of these argument sessions, the U.S. Supreme Court takes a two-week break (with longer breaks over the holidays and after the January argument session).   Typically, for ease of convenience, the sessions are referred to as the October, November, December, January, February, March, and April sessions even though some sessions will begin in one month and conclude in another month (like the November session this year which will begin on October 30).  During the argument session, the Supreme Court hears oral arguments on Monday, Tuesday, and Wednesday.  If one of those days is a holiday, that day is skipped.  There is no firm rule (as the Supreme Court will make adjustments if the docket requires it), but a “full” docket will have two arguments in the morning on each day.  Subject to adjustment if a third party (usually the Solicitor General if a case involves a federal statute) is permitted to argue, the party that lost below gets thirty minutes to argue and answer questions followed by thirty minutes for the party that won below followed by a brief rebuttal argument by the party that lost below.

On the Friday before the argument session, the justices meet to review pending petitions for review and to finalize any opinions to be released the following week.  There are similar conferences on the Fridays on the weeks in which there are arguments at which the justices also discuss the arguments that were heard that week and take an initial vote on those cases which is used to assign a justice to write an opinion.  On the Mondays of argument week (and the Monday after the argument week), the Supreme Court releases on order list announcing the decision on pending petitions for review.   In the early part of the term, there might be a separate list announcing the cases accepted for review on Friday to give the parties additional time to start preparing their briefs (the written arguments on the case) as the time schedule gets rather tight for completing the briefs before the oral argument.  Because of those time limits on the written briefs, the January argument session is effectively the cut-off date for a case being heard during the term.  If review is granted after January, the case is held for the following term.  Thus, the cases that we are about to discuss are those that the Supreme Court granted review on between February and June.  (On rare occasions, as it did for one case this year, the Supreme Court may add a case during its summer recess, but the norm is that — other than emergency matters — the period between July 1 and October 1 is quiet.)  The cases that they will accept (some of which may be discussed in Part III of this preview) in the next several weeks will be argued in the second half of this term. Continue Reading...

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Sound and Fury Signifying ? — The Partisan Gerrymander Cases

By tmess2 | Published June 23, 2018

Ever since Trump was elected, I have almost been expecting some cheeky director to do a revival of Evita, the Andrew Lloyd Webber & Tim Rice musical from the late 70’s about Eva Peron with one not so subtle change to the wardrobe of the cast — specifically having the Peronists wearing t-shirts saying “Make Argentina Great Again.”  At times, our current president seems almost a parody version of the musical with Juan and Eva Peron merged into one person.

Now what does Evita have to do with the Supreme Court cases from this term on partisan gerrymandering (and other election law cases).  Kindly turn your attention to the closing number of Act One, “A New Argentina.”  Amidst many Trump-like pledges to restore Argentina and place the workers first, we have this wonderful verse from Che, commenting on the Peronist tactics:  “How annoying that they have to fight elections for their cause.  The inconvenience, having to get a majority.  If normal methods of persuasion fail to win them applause, there are other ways of establishing authority.”

In the post-2010 era, a combination of voter suppression tactics (see the many disputes about purging the voter rolls and requiring ID and proof of citizenship to vote) and the modern form of gerrymandering create a situation in which one party can have the support of the majority of adult citizens but the other party can steal maintain control of the government.  If the concepts of a democracy and a “republican form of government” mean anything, it means that a simple majority should be enough to determine who wins control of a state legislative house or the U.S. House of Representatives. Continue Reading...

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Partisan Gerrymanders and the Supreme Court

By tmess2 | Published April 7, 2018

Earlier this year, the United States Supreme Court heard oral argument (transcript here) in Gill vs. Whitford, a case in which a three-judge panel found that the legislative district lines drawn by Wisconsin after the 2010 Census was an unconstitutional partisan gerrymander in violation of the Equal Protection Clause.  Last week, the United States Supreme Court held oral argument (transcript here) in Benisek vs. Lamone, a case in which a three-judge panel rejected a request for a preliminary injunction involving a claim that Maryland’s Sixth District was an unconstitutional partisan gerrymander in violation of the Free Speech Clause (and other parts of the First Amendment).

It is unusual for the United States Supreme Court to set a second case on the same issue for hearing while the first case is under submission (i.e. already argued).  What is more typical is granting multiple cases at the same time and having all argued at the same time.  As such,  for those who try to look for tea leaves in oral argument, one area of speculation was whether the questions from the justices might indicate where they were on the issues raised in Gill.  In theory, at least, there are some drafts being circulated on Gill.  At the very least, there was a tentative vote immediately after Gill. 

Two initial points before going into the merits.  First, redistricting and the rules for it are important.  We spent a lot of time in 2011 discussing what might happen when the new maps are drawn.  After three congressional elections (and state legislative elections) and two presidential elections, we have a pretty good understanding of the results of the 2011 line-drawing.  The bottom line (according to the Cook Partisan Vote Index) is that, in an election in which both parties get 50% of the two-party vote, the Republicans will emerge with something around a 240-195 advantage in Congress, exactly where we ended up after 2016.  To win a majority, the Democrats need to get around 53% or 54% of the total vote.   In many states, you have similar results on the state level. Continue Reading...

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Birth Citizenship — Supreme Court sends issue back to Congress

By tmess2 | Published June 13, 2017

There are two ways that a person can be a natural born U.S. citizen.  First, under the Fourteenth Amendment, they can be born in the U.S.  Second, they can be born to U.S. citizens.  For this second category, Congress has established some conditions that must be met related to how long the U.S. citizen parent has resided in the U.S.

Looking at this second categories, there are eight possible combinations of three crucial factors — is the mother a U.S. citizen; is the father a U.S. citizen; and are the parents married.  (Actually, there are six, if neither parent is a U.S. citizen, the child can’t inherit citizenship from her parents.)  Having six different combinations in which at least one parent is a U.S. citizen, Congress has enacted different rules based on which parent is a U.S. citizen.  In particular, an unwed U.S. citizen mother has to spend less time in the U.S. than an unwed citizen father or married couples in which one member is a U.S. citizen.  Earlier this week, the Supreme Court issued an opinion on the constitutionality of these rules.

The case involved a man facing deportation.  That man’s father was a U.S. citizen but had left the U.S. twenty days before meeting the statutory requirements for conveying citizenship to his children.  As such, even though the father had returned to the U.S. with his family (including the person seeking citizenship in this case), the man was not entitled to automatic citizenship and — because he had not sought naturalization — could be deported. Continue Reading...

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Redistricting Advanced Course

By tmess2 | Published May 27, 2017

We are four years away from the next full round of redistricting.  The redistricting process is a combination of federal law, state law, and local politics.  The fact that there are legal rules governing the process means that individuals who do not like one of the many maps (congressional, state senate, state house, county commission, city council) can bring a court challenge to that map.  When discussing federal law, there are two crucial provisions — the Fourteenth Amendment and Section 2 of the Voting Rights Act.  (Additionally, there is some suggestion that the First Amendment may have an impact on certain types of gerrymanders.)  This week the Supreme Court issued an opinion on North Carolina’s congressional districts that attempted to reconcile the Fourteenth Amendment and the Voting Rights Acts.

The background of this case is that, two decades ago, the Supreme Court (in a case involving North Carolina) held that a racial gerrymander — one in which race played a significant role in the drawing of the lines — would be subject to strict scrutiny (the most state unfriendly form of review — requiring showing of both a “compelling interest” justifying the use of race and that the use of race was “narrowly tailored” to meet that compelling interest).  Over the years, the Supreme Court has clarified that, to trigger state scrutiny, race must be the predominate factor in drawing the lines.  The Supreme Court has also clarified that Section 2 of the Voting Rights Act can be a compelling interest.

North Carolina currently has three Democratic representatives in Congress — from the 1st district, the 4th district, and the 12th district.  Before the last round of redistricting, African-Americans represented around 48% of the voting age population (BVAP in election law jargon) of the 1st district and 43% of voting age population of the 12th.  That BVAP was enough to make African-Americans into a very significant segment of the Democratic primary vote in those districts and there are enough white Democrats in those districts that — even in bad years nationally, the Democratic candidate gets well over 60% of the vote in those districts.  In short, African-Americans could get their preferred candidate selected in those districts even though they did not have 50% of the vote.  In the trial court, North Carolina conceded that they did take race into account in drawing the 1st district but claimed that they did so to meet Section 2 (that is by making the 1st district into a majority-minority district),  On the 12th district, North Carolina claimed that they did not draw that district to pack it with African-Americans but rather to pack it with Democrats.  However, there was some evidence that — at least for one county in the district — they did expressly consider race and, also, that they used race as a proxy for partisanship.  Additionally, the 12th was already compliant with “one man, one vote” even if North Carolina had kept the old district lines and the changes added mostly African-Americans while removing mostly whites. Continue Reading...

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The Never-ending Battle — Redistricting 2011

By tmess2 | Published March 5, 2017

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. Continue Reading...

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The Supreme Court and Same-Sex Marriage

By tmess2 | Published April 25, 2015

This upcoming week is the last week of arguments for the current Supreme Court Term.  The highlight of this week’s arguments is Tuesday’s arguments in the same-sex marriage cases.  Ahead of the argument, a brief preview in the form of frequently asked questions.

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