Tuesday, January 23, 2018

Dissecting the Pennsylvania Supreme Court's Redistricting Order

Yesterday, the Supreme Court of Pennsylvania handed down a per curiam order regarding a recent redistricting lawsuit that worked its way up through the Pennsylvania Courts: League of Women Voters of PA v. Pennsylvania.

At issue, the congressional district boundaries drawn after the 2010 census. The ruling fell along roughly partisan lines, with 4 justices ruling its congressional map was unconstitutional with another justice concurring in part (the unconstitutionality) and dissenting in part (the remedy put forth by the majority). Meanwhile, the two remaining justices dissented to the order in its entirety (see below).

The crux of the order declared:
[This] Court finds as a matter of law that the Congressional Redistricting Act of 2011 clearly, plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania, and, on that sole basis, we hereby strike it as unconstitutional. Accordingly, its further use in elections for Pennsylvania seats in the United States House of Representatives, commencing with the upcoming May 15, 2018 primary, is hereby enjoined. . . .
The Court's order continues by detailing how a new map will be redrawn in time for Pennsylvania's 2018 Primary, which is less than four months away. The order allows the Republican-majority Pennsylvania General Assembly to redraw the congressional districts within the Commonwealth, but they must submit their proposal by February 9, 2018, which must be approved by the Democratic Governor Tom Wolf--just 19 days. If the Governor and the Pennsylvania General Assembly fail to come to an agreement--which is possible, if not entirely likely--the Supreme Court of Pennsylvania will redraw the congressional districts for Pennsylvania.

The Court ended its order by issuing an exemption for Pennsylvania's 18th Congressional District, which is in the midst of a special congressional election, scheduled for March 13th. However, every other district is subject to be redrawn. The Court stated a full opinion is forthcoming.

Chief Justice Saylor offered a salient dissent:
Consistent with my previous vote disfavoring the assumption of extraordinary jurisdiction, I agree with the Commonwealth Court’s original position that it would have been appropriate to stay this matter pending anticipated guidance from the Supreme Court of the United States in Gill v. Whitford [citations omitted]. Indeed, the Supreme Court has stayed a series of recent federal court directives to state legislatures in cases lodging partisan gerrymandering challenges pending its review, most recently, as of last week [Rucho v. Common Cause] [citations omitted]. I hold the view that restraint is appropriate, particularly in light of the timing of the present challenge to a congressional redistricting plan that was enacted in 2011 and the proximity of the impending 2018 election cycle [citations omitted]. . . The crafting of congressional district boundaries is quintessentially a political endeavor assigned to state legislatures by the United States Constitution. See U.S. CONST. art. I, §4. . . .
Justice Mundy expanded on Chief Justice Saylor's dissent by stating:
I join Chief Justice Saylor’s dissenting statement in full. I write separately to express my concern with the vagueness of the Court’s order. Despite its pronouncement that the 2011 map clearly, plainly, and palpably violates the Pennsylvania Constitution, the Court fails to identify the specific provision it so violates. This vagueness by the Court is problematic because the parties raise several state constitutional claims, including the Speech Clause, the Free Association Clause, the Elections Clause, and the Equal Protection Clause, each of which has a different mode of analysis [citiations omitted].
The Court’s order fails to give essential guidance to the General Assembly and the Governor, or this Court on how to create a constitutional, non-gerrymandered map. I am also troubled by the order striking down the 2011 Congressional map on the eve of our midterm elections, as well as the remedy proposed by the Court. In my view, the implication that this Court may undertake the task of drawing a congressional map on its own raises a serious federal constitutional concern. See U.S. CONST. art. I, § 4, cl. 1 (stating, “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof[]”) (emphasis added) [remaining citations omitted].
Both dissents highlight U.S. Consitution issues, which the Supreme Court of Pennsylvania's per curiam order attempted to carefully avoid. 


Meanwhile, Pennsylvania GOP leaders from the Pennsylvania General Assembly announced that they will seek a stay from the Supreme Court of the United States.  In a joint statement, GOP leaders declared: “It is clear that with this ruling the Court is attempting to bypass the Constitution and the legislative process and legislate themselves, directly from the bench.” GOP leaders hope the U.S. Supreme Court will intervene as they did in North Carolina.

We will keep everyone posted on this story and informed of likely developments over the next couple weeks.

Monday, January 22, 2018

Remember When the IRS Targeted Conservative Organizations?

RNLA member Brad Smith wrote last week in the Washington Examiner to remind us about how the IRS under President Obama targeted conservative organizations, delaying their applications for tax-exempt status and asking harassing and illegal questions as part of the IRS' heightened review process for organizations with names containing such dangerous words as "Patriot":
Finally, last October, the IRS signed a consent decree in federal court in which it admitted to targeting conservative organizations for more than two years, from 2010 through 2013. . . . This IRS targeting of conservative organizations in the run-up to the 2012 election should be one of the major scandals of our time. Researchers from Stockholm University, Harvard’s Kennedy School of Government, and the American Enterprise Institute concluded that a fully mobilized Tea Party, unhindered by IRS harassment, would have brought the Republican Party between 5 and 8.5 million votes. You may recall Obama won the popular vote by just under 5 million votes. 
Yet this issue has quietly gone away without any consequences for the wrongdoers, and the press has already started changing the history books:
Instead, what we are now seeing is an outright attempt to rewrite history so as to whitewash the entire affair. Newsweek has gone so far as to call the scandal “fake news,” with one of its columnists calling it “a lie.” A Dec. 29 editorial by the Washington Post claims that there was “mismanagement … but not deliberate targeting.”
When the left and the media do acknowledge the targeting and harassment, they are quick to point out that liberal organizations were also targeted.  But as Prof. Smith notes, the IRS admitted that 75% of the organizations targeted were conservative-leaning, while less than 5% were progressive-leaning.  Prof. Smith concludes by reminding readers of the source of the targeting scandal:
As we have documented elsewhere, in targeting conservative organizations in the run-up to the 2012 election, the IRS appeared to be acting at the suggestion, though not the direct request, of President Obama and leading Democratic lawmakers. This was not a case of mere “mismanagement,” but a bureaucracy responding to the political demands of the party then in power.
Congress should make sure that this never happens again, and act to get the IRS out of the business of regulating politics. 
The IRS targeting scandal reminds us to be wary of government bureaucracies with the power to regulate political speech, which is why legislation such as the misnamed "Honest Ads Act" and many informal proposals to respond to Russian efforts to interfere in the 2016 election are so dangerous.  

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 was 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.