Friday, January 19, 2018

HHS Established Conscience and Religious Freedom Division

Under President Trump, the Department of Health and Human Services (HHS) has taken steps to respect Americans' rights of religious liberty and conscience, which are protected under the First Amendment.  This is refreshing after, under President Obama, HHS was focused on advancing and defending regulations under Obamacare that infringed on Americans' important rights, including litigating several losing cases all the way to the Supreme Court.

Yesterday, HHS announced the formation of the Conscience and Religious Freedom Division in the HHS Office for Civil Rights:
The Conscience and Religious Freedom Division has been established to restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.  OCR is the law enforcement agency within HHS that enforces federal laws protecting civil rights and conscience in health and human services, and the security and privacy of people’s health information.  The creation of the new division will provide HHS with the focus it needs to more vigorously and effectively enforce existing laws protecting the rights of conscience and religious freedom, the first freedom protected in the Bill of Rights. . . .
OCR Director [Roger] Severino said, “Laws protecting religious freedom and conscience rights are just empty words on paper if they aren’t enforced. No one should be forced to choose between helping sick people and living by one’s deepest moral or religious convictions, and the new division will help guarantee that victims of unlawful discrimination find justice. For too long, governments big and small have treated conscience claims with hostility instead of protection, but change is coming and it begins here and now.” 
Acting HHS Secretary [Eric] Hargan said, “President Trump promised the American people that his administration would vigorously uphold the rights of conscience and religious freedom.  That promise is being kept today. The Founding Fathers knew that a nation that respects conscience rights is more diverse and more free, and OCR’s new division will help make that vision a reality.”
This announcement, coming directly before today's March for Life in Washington, is just the start of fulfilling the promises in President Trump's religious liberty Executive Order from last May.  

Predictably, the left is outraged, and the ACLU in particular has threatened litigation.  But also predictably, the ACLU's understanding of the Constitution is wrong, as attorney Margot Cleveland writes in National Review:
Underlying [ACLU's lawsuits against religious accommodations] is a common thread — and one that threatens the future of religious liberty in this country. . . . The ACLU is wrong: While the Supreme Court has long noted that accommodations can go too far, transforming the government from a protector of religious liberty to an enforcer of religious dogma, the sweeping assertion that accommodations that burden third parties violate the establishment clause simply does not hold true. . . .
Since the government created the onus on religion in the first place, eliminating that burden does not favor religion but rather represents, in the words of the Supreme Court, “benevolent neutrality” — something entirely consistent with the establishment clause. . . .
Throughout its history, the United States has long offered a variety of accommodations to protect citizens’ rights of conscience from the burdens imposed by otherwise just laws. Respect for the diverse tapestry of religious and non-religious beliefs and practices our country so richly enjoys is best achieved when the legislative branch crafts a compromise to protect both sincerely held religious beliefs and the compelling governmental interests at stake — something not possible if the establishment clause is stretched as the ACLU and others suggest.
We thank the Trump Administration for taking Americans' rights of religious liberty seriously and restoring the rule of law and respect for the Constitution in this important area.

Thursday, January 18, 2018

Left Targets Judicial Nominee for Representation of Republicans on Election Matters

Yesterday, Senator Thom Tillis of North Carolina wrote an op-ed in The Hill, describing the Democrats' obstruction of the judicial confirmation process and attempted character assassination against one of President Trump's nominees, Thomas Farr, nominated to the U.S. District Court for the Eastern District of North Carolina:
Senate Democrats have been indignantly sounding the alarm that President Trump represents a threat to the independence of the judicial branch. They are apparently unaware that the real threat to our judiciary – the flagrant politicization of our courts and the confirmation process itself – has been facing them in the mirror this entire time. . . . 
Since the moment Mr. Farr was nominated, he has been the subject of a coordinated and viciously dishonest smear campaign from the far-left designed to tank his confirmation. . . .  It’s important to note that this smear campaign has absolutely nothing to do with Mr. Farr’s actual qualifications. He has tried cases in federal and state courts in North Carolina and has handled appeals at all levels of the North Carolina appellate courts, the Fourth and Sixth Circuit Courts of Appeal, and the Supreme Court. He is highly regarded and deeply respected by his professional colleagues in North Carolina from across the political spectrum. He is rated as “unanimously well-qualified” by the American Bar Association.
What is the basis of the left's special targeting of Mr. Farr for attack?  His representation of Republicans on election-related issues (emphasis added):
Ignoring Mr. Farr’s impressive qualifications, the far-left objects to his role providing legal counsel to Republicans in North Carolina on both voter ID and redistricting cases. This is a break from the bipartisan tradition that we do not hold lawyers accountable for the clients they represent and any animus one may harbor against them. 
Senator Tillis describes how the left and Senate Democrats have repeated misrepresentations about his career in an attempt to destroy Mr. Farr's reputation and character.  He concludes:
It is disappointing that some of my Democratic colleagues on the Senate Judiciary Committee appear willing to use pandering to the left as a stepping stone for their own political ambitions without any regard given to the reputational harm their posturing will cause to an exceptional attorney and an honorable person.
Fortunately, Chairman Chuck Grassley and the other Republicans on the Senate Judiciary Committee are not willing to play the Democrats' political games.  At the Judiciary Committee' executive business meeting today, three circuit judge nominees and fourteen district court nominees, including Mr. Farr, were voted out of committee.  They now move to the Senate floor, where Democrats are employing a different set of delaying tactics, but Majority Leader McConnell has been prioritizing and devoting immense amounts of floor time to confirming judicial nominees.  We thank Senator Tillis, Chairman Grassley, Leader McConnell, and the other Senate Republicans for their commitment to confirming judges who support the rule of law.

Wednesday, January 17, 2018

Redistricting Litigation Update

The past few weeks have been very busy for redistricting litigation.  Here is the status of some of the current cases:
  • The Supreme Court agreed to hear consolidated Voting Rights Act and racial gerrymandering challenges to the state legislative and congressional districts in Texas (Abbott v. Perez), setting aside questions of jurisdiction until after briefing on the merits.  The court declined to hear a partisan gerrymandering claim from Texas for lack of jurisdiction (Texas Democratic Party v. Abbott).
  • A three-judge district court found the re-drawn North Carolina congressional districts to be an impermissible partisan gerrymander and, in a lengthy 191-page opinion, ordered the map re-drawn, again, by January 24 (Common Cause v. Rucho).  This is the first time a court invalidated a congressional map on partisan gerrymandering grounds.  North Carolina appealed to the Supreme Court for a stay, and the original three-judge panel has refused to delay its order.
  • A three-judge court in Pennsylvania dismissed a partisan gerrymandering claim against Pennsylvania’s congressional districts (Agre v. Wolf). 

The consolidated Texas cases now join two partisan gerrymandering claims already pending before the Supreme Court this term, Gill v. Whitford out of Wisconsin (argued in October) and Benisek v. Lamone out of Maryland (oral argument date not scheduled yet).  And there are also pending redistricting cases in Georgia and Virginia. 

With all of this pending litigation, the rules governing redistricting are far from settled.  The maps currently being litigated are ones drawn after the 2010 census, over 7 years old at this point.  And in some cases, such as North Carolina’s congressional districts, the map currently being litigated is one that we re-drawn after the last round of post-2010 litigation. 

As we look forward to the 2020 census and the next round of redistricting, Democrats are making redistricting strategy and litigation, as well as winning majorities in state legislatures, a priority, including attracting the focus of Barack Obama and Eric Holder.  Republicans are just beginning to counter the Democrats’ efforts.  But at this rate, legislatures might not even know what the governing rules are when it is time to draw the new maps in 2021, and even if the rules are set by 2021, Democrats have shown how willing they are to change the rules after the fact through litigation. 

Stay tuned to this blog and RNLA’s Twitter feed for updates on these cases.

Tuesday, January 16, 2018

ICYMI: Federal Judge in Alabama Dismisses Lawsuit Contesting Voter ID Law

Last Wednesday, January 10th, U.S. District Judge L. Scott Coogler of the Northern District of Alabama dismissed a lawsuit brought against the Alabama Secretary of State in an attempt to block a recently passed voter ID law.

Plaintiffs argue the law violated the Equal Protection Clause of the Constitution and the new requirement caused an "undue burden" on minorities in part because the state had curtailed driver's license operations. Meanwhile, Defendants contested that the new voter ID law did not and, in fact, a variety of documents were acceptable forms of identification and the state offered to provide free ID cards to those unable to afford them.

On Wednesday, NPR reported:
[Judge] Coogler agreed with the state's argument that it had important "regulatory interests" in passing the law, and that it was not intended to disenfranchise black voters. . . . The state said the law was part of national trend to combat voter fraud, increase voter confidence and modernize elections. [Alabama Secretary of State John] Merrill maintained the case should be thrown out, arguing the law provided for a wide range of acceptable IDs and procedures for voters to obtain a valid photo voter identification card, including waiving fees for nondriver IDs. Additionally, the state has a mobile ID unit that provides free voter ID cards for people who lack transportation to other state offices to obtain one.
[Judge] Coogler found that "even though Black and Latino registered voters are almost twice as likely as white voters to lack an acceptable photo ID, no one is prevented from voting." He says the state has made it easy to get an ID for voting purposes. [] "The issue is not who has or does not have a photo ID at present," Coogler wrote. "The issue is whether the Photo ID Law denies members of a minority group the opportunity to reasonably get one, assuming they want one." [Judge Coogler] found that "minorities do not have less opportunity to vote under Alabama Photo ID law because everyone has the same opportunity to obtain an ID."
NPR reports that Judge Coogler concludes in the opinion:
"The plaintiffs have simply failed to provide evidence that members of the protected class have less of an opportunity than others to participate in the political process," Coogler wrote. He cited rulings from the U.S. Supreme Court and the 11th U.S. Circuit Court of Appeals that upheld similar voter ID laws in Indiana and Georgia.
Alabama Attorney General Steve Marshall issued the following statement shortly after news of the dismissal was announced:
Today’s decision to dismiss the lawsuit is without a doubt the right decision. . . . Alabama’s voter identification law is one of the broadest in the nation with procedures in place to allow anyone who does not have a photo ID to obtain one. The court order makes this point exceedingly clear: ‘…a person who does not have a photo ID today is not prevented from voting if he or she can easily get one, and it is so easy to get a photo ID in Alabama, no one is prevented from voting.’
This court applied the proper analysis under Crawford v. Marion Co. (the Supreme Court's 2008 Indiana voter ID decision) to respect the will of the people of Alabama and determine that Alabama's voter ID law does not infringe upon the right to vote.  We will keep an eye on this case and will report on any appeals.

Friday, January 12, 2018

At Issue in Husted Case: How Are States Supposed to Keep Clean Voter Rolls?

The Supreme Court heard oral arguments Wednesday in a case on voter registration list maintenance, Husted v. A. Philip Randolph Institute.  At issue is Ohio's procedure for removing voters from the voter registration list:
In that process, in place since 1994, the state regularly identifies those on the voter list who haven’t voted in the previous two years (including at least one federal general election), and sends them a “confirmation notice.” If the voter does not respond to the notice (and the majority do not), the voter is kept on the voter list but moved to “inactive” status, where they can still vote. If such a voter does not vote or engage in any other voter activity during the next four years, they are removed from the voter list. The primary legal question is whether this constitutes “removal … from the official list of voters … by reason of the person’s failure to vote,“ as prohibited by Sec. 8 of the NVRA.
The justices questioned what states would be able to do to maintain the accuracy of their voter registration lists if the plaintiffs were successful.  As David Becker of the Center for Election Innovation and Research explains:
Justice Breyer asked plaintiffs’ counsel, Paul Smith, “what are they [the state] supposed to do? That is, every year a certain number of people die and every year a certain number move…. All right. We don’t want them on the voter roll.” He went on to say: 
“Look, the reason I’m asking these questions is because I don’t believe Congress would have passed a statute that would prevent a state from purging a voting roll of people who have died or have moved out of the state. So I’m trying to reconcile the two. And, therefore, I ask you what the state’s supposed to do for that latter objective.” 
This is really the crux of the whole case, and the challenge with maintaining voter lists. The plaintiffs are quite right in that they don’t want anyone removed from the list who shouldn’t be, if they’re still eligible to vote and have simply chosen not to vote in some previous elections. I don’t know anyone who wants that. But the state is also right, as Justice Breyer recognizes, that accurate voter lists are essential to a functioning democracy, and that the state needs to figure out who’s moved within the state, moved out-of-state, or died, since the last election.
State and local election officials have difficult but important work to do maintaining accurate voter registration lists.  As Mr. Becker points out, interstate voter registration data sharing is one of the best ways for states to identify errors in their lists.  But states also need the ability to use other tools, such as the notice and waiting procedure used in Ohio.  Stay tuned for the release of this opinion, which will have major implications for election administration, later this term.

Thursday, January 11, 2018

FEC Chairman Lee Goodman - A Champion in Protecting the First Amendment

Last spring, the RNLA was thrilled to have Federal Election Commissioner (FEC) Lee Goodman speak on a panel at the 2017 National Policy Conference at the National Press Club.  The panel, titled, "Election Law Update: Vote Fraud Commission and Campaign Finance" featured Commissioner Goodman, Don Palmer, formerly of the Virginia Board of Elections, and Hans von Spakovsky, of the Heritage foundation.

Commissioner Goodman began his presentation by noting the importance of the First Amendment within the FEC:

"This agency was created to regulate in an area permeated in everything it does by the solemn First Amendment rights of American citizens to associate and speak.  So, if I am to be criticized honestly for a restrained approach, my critics should at least acknowledge the profound importance of the First Amendment and what I am trying to do when I am trying to strike a balance between regulation and First Amendment freedoms."
He also went on to discuss the three major First Amendment issues facing the Commission currently.  The first of the First Amendment issues facing the FEC is free speech and the the rise of the internet.  In 2006, the Commission adopted a rule that exempted the internet from their regulation for those individuals and entities using personal, at-home-computers (with and exception being paying a fee on a third party's website, where the Commission would intervene and regulate).   He notes:

"Fast forward to the past two or three years and my Democratic colleagues at the Commission have begun to rethink the breadth of that freedom on the internet.  And in case after case we are splitting our votes 3-3 with the three Republicans observing the exemption - a robust interpretation of the exemption under the 2006 rule-making - and our colleagues voting to find nooks and crannies of regulation on an otherwise broad exemption."
The second point Commissioner Goodman points a lack of sensitivity of free press rights of press publishers.  He pointed to the example to the Fox News debate in 2016 where Fox News added an undercard debate of lower-polling Presidential candidates.  A suit was filed (by a candidate that failed to make either debate) claiming that Fox News made "unlawful corporate contributions to the 17 candidates by changing its criteria."  Goodman states of his colleagues:
"The office of General Counsel at the FEC recommended a finding that Fox News made illegal corporate contributions.  Three Democrat Commissioners concluded that Fox News had violated the law.  Two of my Democrat colleagues voted to punish Fox News, to impose civil penalties on Fox News for violating the law, despite the existence of a press exemption that exempts the press from our regulation altogether - an exemption that has been there since 1974."
The third and final point that Commissioner Goodman makes are associational privacy or what is known as the "dark money" debate.  He states:
"If you read popular press, you'll believe that our nation's federal elections are a wash in dark money flooding the airwaves.  Dark money is spending by groups that do not have the major purpose of being a political committee. 
 We are engaged in an ongoing debate over the of where your associational privacy ends and our regulatory jurisdiction begins.  If my Democratic colleagues have their way, every little political thing you do ... will evidence your political purposes broadly defined and you will be swept into the federal jurisdiction of the federal government and you will surrender your associational privacy."
The RNLA thanks Commissioner Goodman for leading the fight to protect our First Amendment.  On Wednesday, January 17, the RNLA D.C. Young Lawyers Chapter will be hosting an exclusive reception featuring Commissioner Goodman.  To RSVP to this event, please click here.

To view the video of Commissioner Goodman's panel from the 2017 National Policy Conference in its entirety, please click here.

Wednesday, January 10, 2018

President Trump's Superb First Year of Judicial Nominations

Ed Whelan writes about President Trump's superb judicial nominees during his first year in office in the January issue of National Review:
Trump’s most important achievement on the judicial front in 2017 was his appointment of Supreme Court justice Neil Gorsuch to fill the vacancy left by Antonin Scalia’s death in February 2016. That appointment consummated Senate Republican leader Mitch McConnell’s strategy of keeping the vacancy open through the 2016 presidential election, and it resoundingly vindicated the wisdom of that strategy. . . .
In 2017, President Trump also appointed twelve federal appellate judges — a record for a president in his first year in office. . . . Beyond their number, Trump’s appellate appointees have, on the whole, outstanding credentials and are highly regarded in conservative legal circles. Indeed, six of the twelve have already earned their way onto Trump’s list of Supreme Court candidates. The twelve include three women [and] two Asian Americans . . . .
Three factors account for this remarkable success on federal appellate judges. First, the conservative legal movement has grown significantly over the past two decades. . . . Second, thank Harry Reid. In November 2013, the Democratic majority leader pushed to repeal the filibuster for lower-court (and executive-branch) nominees. His success meant that a steadfast minority of 41 or more senators could no longer block a judicial nomination. . . . Third, federal appellate nominations mattered deeply to the key players. Kudos to President Trump and White House counsel Don McGahn for selecting excellent nominees, and to Mitch McConnell and Senate Judiciary Committee chairman Chuck Grassley for placing a high priority on moving them through to confirmation.
But Mr. Whelan notes that, despite last year's successes, much work remains to be done, partly due to the huge number of vacancies that need to be filled and partly due to the obstruction of Senate Democrats at every step of the process:
Two big obstacles — one at the front end of the nomination process, the other at the back end — have caused these impasses and threaten to continue to stymie judicial confirmations. The front-end obstacle is the Senate Judiciary Committee’s so-called blue-slip privilege, which accords individual senators the opportunity to approve or disapprove of judicial nominees in their home states (and which derives its name from the piece of paper that senators once used to register their views). . . . Given the stark divide on judicial philosophy between the White House and Senate Democrats, not to mention the animosity between them, it’s no surprise that the consultations that the White House has undertaken on judicial nominations have yielded little fruit. . . . [The confirmation] line may prove long and slow because of the back-end obstacle that nominees face: the Senate’s arcane and cumbersome “cloture” process.
The entire article is well worth reading for a summary of the current status of federal judicial nominations.  As he notes, White House Counsel Don McGahn, Senate Majority Leader Mitch McConnell, and Senate Judiciary Chairman Chuck Grassley have been instrumental to the success of President Trump's first year, and Americans owe them a debt of gratitude.