Friday, June 22, 2018

RNLA to Host Florida Election Law CLE Training Amidst Key State Races

Maybe never in American history has the integrity of the electoral process and upholding the rule of law been more important than in 2018. Just in the past few months there has been significant evidence of voter fraud and allegations of corruption plaguing high level polling officials.

On June 28th, the Republican National Lawyers Association will be hosting an election law CLE presentation in Kissimmee, Florida. A major goal of the RNLA event will be to restore the high standard of honesty, integrity, and transparency in American elections. Panelists at the event will include some of the most respected and high-profile attorneys and officials in the state of Florida. Topics for the esteemed panelists will range from legal ethics, First Amendment issues on college campuses, and election law in general.

In addition to the electoral related discussion, the RNLA’s CLE presentation at the ‘Sunshine Summit’ will break down two key races in the state. First, the two major candidates for the Republican nominee for Attorney General will be speaking and sharing their vision for the position that is the most powerful attorney in the state. Speaking first will be Judge Ashley Moody who will then be followed by Representative Frank White. Judge Moody was the youngest judge in the history of Florida when she was appointed to the Circuit Court at the age of 31 in 2006. Representative White is an attorney who has represented the 2nd district in the state house since 2016.

The presentation will also include Jessica Furst Johnson hosting a discussion breaking down the key senate race in the Sunshine State. Governor Rick Scott looks to build on the success he has had as governor and unseat incumbent Democrat Senator Bill Nelson. Not only will attendees hear about the candidates and the races, they will also learn how they can get involved.  The event will take place at the Gaylord Palms Resort in Kissimmee, Florida starting at 10 am on Thursday, June 28. For more information on the event, visit the RNLA event page or RSVP here.

Thursday, June 21, 2018

Supreme Court Strikes Blow to Unaccountable Bureaucracy in Lucia v. SEC

This morning, the Supreme Court issued a decision in Lucia v. Securities and Exchange Commission, holding that the SEC's administrative law judges are "officers of the United States" subject to the Appointments Clause of the Constitution.  (We covered this topic and case in a breakout panel at our National Policy Conference in April.)  Justice Kagan wrote for the Court (citations omitted):
The sole question here is whether the Commission’s ALJs are “Officers of the United States” or simply employees of the Federal Government. The Appointments Clause prescribes the exclusive means of appointing “Officers.” Only the President, a court of law, or a head of department can do so.  And as all parties agree, none of those actors appointed Judge Elliot before he heard Lucia’s case; instead, SEC staff members gave him an ALJ slot. So if the Commission’s ALJs are constitutional officers, Lucia raises a valid Appointments Clause claim. The only way to defeat his position is to show that those ALJs are not officers at all, but instead non-officer employees—part of the broad swath of “lesser functionaries” in the Government’s workforce. For if that is true, the Appointments Clause cares not a whit about who named them. . . . 
For all the reasons we have given, and all those Freytag gave before, the Commission’s ALJs are “Officers of the United States,” subject to the Appointments Clause.
This decision will help SEC ALJs be more accountable, as they will need to be appointed by a politically accountable person instead of just agency staff.  Justices Thomas and Gorsuch concurred to analyze the original public meaning of "officer" (citations omitted):
The Appointments Clause provides the exclusive process for appointing “Officers of the United States.” While principal officers must be nominated by the President and confirmed by the Senate, Congress can authorize the appointment of “inferior Officers” by “the President alone,” “the Courts of Law,” or “the Heads of Departments.”  
This alternative process for appointing inferior officers strikes a balance between efficiency and accountability. Given the sheer number of inferior officers, it would be too burdensome to require each of them to run the gauntlet of Senate confirmation. But, by specifying only a limited number of actors who can appoint inferior officers without Senate confirmation, the Appointments Clause maintains clear lines of accountability—encouraging good appointments and giving the public someone to blame for bad ones. 
The Founders likely understood the term “Officers of the United States” to encompass all federal civil officials who perform an ongoing, statutory duty—no matter how important or significant the duty.  “Officers of the United States” was probably not a term of art that the Constitution used to signify some special type of official. . . . The Founders considered individuals to be officers even if they performed only ministerial statutory duties—including recordkeepers, clerks, and tidewaiters (individuals who watched goods land at a customhouse).  Early congressional practice reflected this understanding. With exceptions not relevant here, Congress required all federal officials with ongoing statutory duties to be appointed in compliance with the Appointments Clause. 
Applying the original meaning here, the administrative law judges of the Securities and Exchange Commission easily qualify as “Officers of the United States.” These judges exercise many of the agency’s statutory duties, including issuing initial decisions in adversarial proceedings. As explained, the importance or significance of these statutory duties is irrelevant. All that matters is that the judges are continuously responsible for performing them.
Also worth noting is Justice Gorsuch's concurrence in today's South Dakota v. Wayfair decision:
My agreement with the Court’s discussion of the history of our dormant commerce clause jurisprudence, however, should not be mistaken for agreement with all aspects of the doctrine. The Commerce Clause is found in Article I and authorizes Congress to regulate interstate commerce. Meanwhile our dormant commerce cases suggest Article III courts may invalidate state laws that offend no congressional statute. Whether and how much of this can be squared with the text of the Commerce Clause, justified by stare decisis, or defended as misbranded products of federalism or antidiscrimination imperatives flowing from Article IV’s Privileges and Immunities Clause are questions for another day.
Justice Gorsuch consistently compares court decisions and doctrines to the Constitution, with an eye to the appropriate role of the courts, to determine whether they are correct.  Justices Thomas and Gorsuch are constantly pointing the Supreme Court to the text of the Constitution, its original meaning, and the proper role of the courts in our system of federalism and the separation of powers.

Wednesday, June 20, 2018

ICYMI: Wash. Post: Democrats Delaying in Senate But Trump Still Very Successful with Appellate Nominees

Last Thursday, the Washington Post looked into the general misconception that President Trump is "rush[ing] to fill the courts" and the Senate is confirming judicial nominees at a record pace. The short answer is they are not--except for appellate judgeships. The article had three key takeaways:

Overall, [President] Trump isn't filling judgeships as fast as many think:

Trump may seem like the rabbit in this story — quick out of the gate. But that’s only compared to Obama’s slower pace. Below, we show the total number of federal judges confirmed by the Senate through the first 17 months of a president’s term in office. . . As of May 31, 2018, the GOP-led Senate had confirmed 39 of Trump’s judicial nominations, including one Supreme Court justice. This places him second to last compared to the number of confirmed judges at this point in the term for presidents dating back to Ronald Reagan in 1981-82; only Obama comes in behind him. . .  
But [President Trump is] doing well on appeals court judges:

Where Trump and Senate Republicans stand out is in confirming appellate court judges. The GOP Senate has confirmed 21 of Trump’s nominations for judges to the courts of appeals — far outstripping others presidents’ records at this point in their terms, dating back to Reagan. 
Some believe that this focus on the appellate courts is a Trump administration strategy because these courts have a more powerful effect on policy and legal change. The courts of appeals hear all appeals from the federal trial courts and the federal bureaucracy. They hold authority over large regions of the nation. Their cases, like almost all of the U.S. Supreme Court’s cases, deal exclusively with how to interpret federal laws, executive orders, bureaucratic regulations and rules and the Constitution. . .
The Senate is moving more slowly than in the past:
In 2013, the Democrats were in charge of the Senate — and banned filibusters of judicial nominations on the lower federal courts. That means today’s Republican Senate can confirm nominees with a simple majority vote. . . . Yet eliminating the filibuster has not appreciably sped up confirmation of federal judges. On average, it has taken almost 190 days for the Senate to confirm each of Trump’s appellate and trial court judges. That is appreciably longer than previous presidents’ records. . . .

Also note, administration nominees are also being relentlessly delayed and obstructed by Senate Democrats in a manner previously unseen, which is resulting in the cancellation of the Senate's August Recess (recently discussed here).

Despite Senate Democrat obstruction tactics (discussed at lengthed here) to delay many nominees, Chairman Grassley and Senate Majority Leader McConnell are keeping up the pressure and working get President Trump's qualified judges and administration nominees confirmed by the Senate. The RNLA thanks them for their hard, important work.

Tuesday, June 19, 2018

Draining the Swamp: Federal Judge Exposes Anti-Republican Bias at the FEC

As the agency that regulates and enforces campaign finance law, the Federal Election Commission (FEC) is a remarkably powerful entity. For this reason, instances of bias against one political party by the FEC should not be taken lightly. Thankfully, one recently appointed federal judge is doing his part in exposing this corruption. The Washington Examiner reports:

A federal judge has blown the whistle on a secret Federal Election Commission scheme to punish some Republican groups and their donors, the latest sign of an anti-GOP bias at the elections watchdog.

In a newly released decision, Trump-appointed District Court Judge Trevor N. McFadden shined a spotlight on the FEC’s general counsel who recommended action against four Republican groups but dismissal of similar charges against supporters of a Democratic group, “Black Men Vote.”
This bombshell report is not even the first piece evidence of anti-GOP bias at the FEC. The article goes on to say:
The decision follows an amazing admission by a former Democratic FEC chairwoman and frequent critic of Republicans and President Trump that the agency is biased against the GOP.
Asked if the cases before the FEC are biased, Ann Ravel said, “Absolutely. The cases have come primarily from watchdog groups, and most of those groups are on the liberal side.”
She was one of the Democratic commissioners who led the effort to target conservative media, like the Drudge Report.
Thankfully, there are checks and balances to the FEC. In order to find a violation, the agency must have bipartisan support with a minimum of four of six commissioner votes. While left-wing groups like Citizens for Responsibility and Ethics in Washington (CREW) have tried to get around this government check by suing the FEC for any decision they don’t like, the D.C. Circuit Court recently struck down this political tactic.
Agency enforcement decisions, to the extent they are committed to agency discretion, are not subject to judicial review for abuse of discretion. It follows that CREW is not entitled to have the court evaluate for abuse of discretion the individual considerations the controlling Commissioners gave in support of their vote not to initiate enforcement proceedings.
The Court made the right decision in blocking politically-calculated lawsuits in an attempt to circumvent the FEC process. The Executive branch and the Senate have the duty of appointing and confirming qualified individuals to the FEC, and their decisions should not face constant litigation from politically charged organizations.

Judge McFadden is commended for having the courage to stand up and expose these abuses of the system, which otherwise corrupts the process as set up by Congress with the clear goal of undermining the FEC. 

Monday, June 18, 2018

Supreme Court Stays Out of Partisan Gerrymandering Cases - For Now

In a victory - at least for now - for courts staying out of partisan gerrymandering disputes, the Supreme Court today decided two of the three redistricting cases pending before it.

In Gill v. Whitford, a challenge to Wisconsin's congressional district map, the Court unanimously dismissed the case for lack of standing (citations omitted):
Certain of the plaintiffs before us alleged that they had such a personal stake in this case, but never followed up with the requisite proof. The District Court and this Court therefore lack the power to resolve their claims. We vacate the judgment and remand the case for further proceedings, in the course of which those plaintiffs may attempt to demonstrate standing in accord with the analysis in this opinion. . . . 
Regarding standing, the court held that the plaintiffs had a “cognizable equal protection right against stateimposed barriers on [their] ability to vote effectively for the party of [their] choice.” It concluded that Act 43 “prevent[ed] Wisconsin Democrats from being able to translate their votes into seats as effectively as Wisconsin Republicans,” and that “Wisconsin Democrats, therefore, have suffered a personal injury to their Equal Protection rights.” The court turned away the defendants’ argument that the plaintiffs’ injury was not sufficiently particularized by finding that “[t]he harm that the plaintiffs have experienced . . . is one shared by Democratic voters in the State of Wisconsin. The dilution of their votes is both personal and acute.” . . . 
In cases where a plaintiff fails to demonstrate Article III standing, we usually direct the dismissal of the plaintiff ’s claims. This is not the usual case. It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved. Under the circumstances, and in light of the plaintiffs’ allegations that Donohue, Johnson, Mitchell, and Wallace live in districts where Democrats like them have been packed or cracked, we decline to direct dismissal.  
We therefore remand the case to the District Court so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence—unlike the bulk of the evidence presented thus far—that would tend to demonstrate a burden on their individual votes. We express no view on the merits of the plaintiffs’ case. We caution, however, that “standing is not dispensed in gross”: A plaintiff ’s remedy must be tailored to redress the plaintiff ’s particular injury. 
While this may seem like the Court side-stepped the issues in the case, the standing decision was integral to the court's deciding in favor of the plaintiffs below.  By reversing the court's questionable conclusions on standing being shown through statewide partisan voting results, the Court today made it more difficult for future claimants to bring claims under such novel legal theories by properly placing the evidentiary burden on map challengers to show concrete and particularized injury.  (It is also worth noting that the length of Justice Roberts' opinion for the Court demonstrates how complicated standing doctrine and the law in general are in the area of redistricting.)  This is clear in the liberal justices' concurrence.

Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, lamented that the plaintiffs did not argue the case appropriately to let the Court decide questions of proper district lines on political grounds, which liberals are desperate to do (citations omitted):
Partisan gerrymandering, as this Court has recognized, is “incompatible with democratic principles.” More effectively every day, that practice enables politicians to entrench themselves in power against the people’s will. And only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches. None of those facts gives judges any excuse to disregard Article III’s demands. The Court is right to say they were not met here. But partisan gerrymandering injures enough individuals and organizations in enough concrete ways to ensure that standing requirements, properly applied, will not often or long prevent courts from reaching the merits of cases like this one. Or from insisting, when they do, that partisan officials stop degrading the nation’s democracy. . . .
Courts have a critical role to play in curbing partisan gerrymandering. Over fifty years ago, we committed to providing judicial review in the redistricting arena, because we understood that “a denial of constitutionally protected rights demands judicial protection.” Indeed, the need for judicial review is at its most urgent in these cases. For here, politicians’ incentives conflict with voters’ interests, leaving citizens without any political remedy for their constitutional harms. Of course, their dire need provides no warrant for courts to disregard Article III. Because of the way this suit was litigated, I agree that the plaintiffs have so far failed to establish their standing to sue, and I fully concur in the Court’s opinion. But of one thing we may unfortunately be sure. Courts—and in particular this Court—will again be called on to redress extreme partisan gerrymanders. I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law.  
Justices Thomas and Gorsuch concurred but would have dismissed the case without allowing the plaintiffs another attempt at proving standing.

In a per curiam decision in Benisek v. Lamone, the Court affirmed a district court decision not to issue a preliminary injunction on a First Amendment retaliation partisan gerrymandering challenge to a single district in Maryland (citations omitted):
In addition, the District Court emphasized that it was concerned about “measuring the legality and constitutionality of any redistricting plan in Maryland . . . according to the proper legal standard.” In the District Court’s view, it would be “better equipped to make that legal determination and to chart a wise course for further proceedings” after this Court issued a decision in Gill. Plaintiffs ask this Court to vacate the District Court’s order and remand for further consideration of whether a preliminary injunction is appropriate. . . .
Even if we assume—contrary to the findings of the District Court— that plaintiffs were likely to succeed on the merits of their claims, the balance of equities and the public interest tilted against their request for a preliminary injunction. . . .  
On top of this time constraint was the legal uncertainty surrounding any potential remedy for the plaintiffs’ asserted injury. At the time the District Court made its decision, the appeal in Gill was pending before this Court. The District Court recognized that our decision in Gill had the potential to “shed light on critical questions in this case” and to set forth a “framework” by which plaintiffs’ claims could be decided and, potentially, remedied. . . . In these particular circumstances, we conclude that the District Court’s decision denying a preliminary injunction cannot be regarded as an abuse of discretion.
One line in Benisek regards the fact that the plaintiffs did not challenge the 2011 district map until 2016 (emphasis added):
In considering the balance of equities among the parties, we think that plaintiffs’ unnecessary, years-long delay in asking for preliminary injunctive relief weighed against their request.
This may prove to be extremely important in future litigation, as Democrats and liberals are still filing new cases challenging the maps enacted after the 2010 census.

But for now, the Supreme Court has decided to stay out of partisan gerrymandering claims, against the wishes of its liberal members to use the Court to judge the wisdom of political balances of power in the states.  That is a temporary victory for the proper role of the courts, temporary only because the liberals and Democrats will continue to bring these claims until the Court issues a decision explicitly barring courts from deciding them.  But today's decisions in Gill and Benisek have established justiciability standards that raise the bar for bringing those claims.

Friday, June 15, 2018

Democrats Oppose Necessary Citizenship Question on 2020 Census

The purpose of a census is for a nation to count and survey its population, as prescribed in the U.S. Constitution. It would seem obvious then that asking whether an individual is a citizen of said country would be an appropriate and necessary question. However, most Democrats and the left-leaning American Civil Liberties Union (ACLU) do not value an accurate census. Prof. John Baker wrote in The Hill:

This past week the American Civil Liberties Union filed yet another desperate lawsuit challenging the secretary of Commerce’s decision to reinstate a citizenship question on the 2020 decennial census. The ACLU filed suit two months after the sanctuary state of California first asked the federal courts to prevent the 2020 census from asking who is and is not a citizen.
Many elected officials in California and other Democrat-led states, assisted by left-wing, legal groups, seem more concerned about advancing the interests of illegal aliens than those of U.S. citizens.
It has become abundantly clear the ACLU and other liberal politicians and organizations have little concern with protecting American citizens or ensuring fair, open, and honest elections. In fact, California Attorney General Xavier Becerra’s recent lawsuit proves the left’s opposition to a citizenship question in the census is primarily an attempt to undermine the value of American citizenship, by granting illegal immigrants equal status. Pew Research points out:
A lawsuit by California Attorney General Xavier Becerra contends that if the census undercounted immigrants, it would be an incomplete population count that violates its constitutional purpose, which is to divide up seats in the U.S. House of Representatives based on the total U.S. population. (Census numbers also are used to allocate billions of dollars in federal funds.) 

A proper census is critical in establishing fair, open, and honest elections. Without it, the already difficult job of election officials to conduct a legitimate election that includes only legal citizens participating becomes next to impossible. The Federation for American Immigration Reform reports:
There is evidence that both foreign nationals who are lawfully present in the United States and illegal aliens have voted in recent elections. During this election cycle, non-citizens have been discovered on voter registration rolls in both Virginia and Pennsylvania. And the Office of the U.S. Attorney for the Western District of New York recently announced that it charged a Canadian woman with making a false claim to citizenship after she registered and voted in more than 20 elections.
With non-citizens routinely voting illegally, this is becoming a critical issue for our nation; it is important that our states have the necessary information to ensure an honest election. For this reason, a number of states requested a citizenship question on the 2020 census. As Prof. Baker described in The Hill:
States including Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Nebraska, Oklahoma, South Carolina, Tennessee, and Texas have requested that the Census Bureau include a question regarding citizenship on the 2020 Census questionnaire. 
A reliable calculation of the citizen, voting-age population is needed in order for states to meet their obligations. The decennial census questionnaire is the constitutional vehicle for collecting that information.
One of the RNLA’s principal missions is to stand for fair, open, and honest elections. We will continue to highlight those issues that can and would corrupt our election process.

The RNLA’s National Election Law Seminar in St. Louis, Missouri on August 3rd and 4th is an annual, nationwide event where our members can learn more about the citizenship census question, election law and administration, and recent developments in this field, all while earning CLE credits. For more information, visit the event page here.

Thursday, June 14, 2018

Supreme Court Strikes Down MN Law: Victory for 1st Amendment & Election Administration

This morning, the Supreme Court struck down Minnesota's ban on political apparel at the polls in Minnesota Voters Alliance v. Mansky.  We have covered this important case extensively.  

Chief Justice Roberts, writing for the seven-justice majority, first concluded that because the polling place is a non-public forum, Minnesota could indeed "choose to prohibit certain apparel there because of the message it conveys, so that voters may focus on the important decisions immediately at hand."  

But the Chief Justice described how broad Minnesota's ban is (citations omitted):
But the State must draw a reasonable line. Although there is no requirement of narrow tailoring in a nonpublic forum, the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out.  Here, the unmoored use of the term “political” in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail even this forgiving test. 
Again, the statute prohibits wearing a “political badge, political button, or other political insignia.” It does not define the term “political.” And the word can be expansive. It can encompass anything “of or relating to government, a government, or the conduct of governmental affairs,” or anything “[o]f, relating to, or dealing with the structure or affairs of government, politics, or the state.” Under a literal reading of those definitions, a button or T-shirt merely imploring others to “Vote!” could qualify.
As was made abundantly clear by the state's counsel during oral argument, Chief Justice Roberts then described how Minnesota could not even define or consistently describe what apparel would and would not be banned by the law, noting that the law "poses riddles that even the State’s top lawyers struggle to solve." (citations omitted):
“[P]erfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.”  But the State’s difficulties with its restriction go beyond close calls on borderline or fanciful cases. And that is a serious matter when the whole point of the exercise is to prohibit the expression of political views. 
It is “self-evident” that an indeterminate prohibition carries with it “[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.”  Election judges “have the authority to decide what is political” when screening individuals at the entrance to the polls.  We do not doubt that the vast majority of election judges strive to enforce the statute in an evenhanded manner, nor that some degree of discretion in this setting is necessary. But that discretion must be guided by objective, workable standards. Without them, an election judge’s own politics may shape his views on what counts as “political.” And if voters experience or witness episodes of unfair or inconsistent enforcement of the ban, the State’s interest in maintaining a polling place free of distraction and disruption would be undermined by the very measure intended to further it.  
The Chief Justice concludes by noting that other states have bans on apparel and insignia at the polling place that are much more clearly defined (citations omitted):
We do not suggest that such provisions set the outer limit of what a State may proscribe, and do not pass on the constitutionality of laws that are not before us.  But we do hold that if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach than the one Minnesota has offered here. 
Cases like this “present[] us with a particularly difficult reconciliation: the accommodation of the right to engage in political discourse with the right to vote.”  Minnesota, like other States, has sought to strike the balance in a way that affords the voter the opportunity to exercise his civic duty in a setting removed from the clamor and din of electioneering. While that choice is generally worthy of our respect, Minnesota has not supported its good intentions with a law capable of reasoned application.
As the opinion notes, not only did this law burden voters and leave them vulnerable to unequal enforcement, it also placed burdens on hardworking poll workers (who have many other tasks on Election Day) to both interpret and enforce an unclear law.  This decision is a victory both for the First Amendment rights of voters but also for good election administration, as states do their local election officials and poll workers an immense disservice and cause disruptions when they provide unclear guidelines for procedures at the polling place.