Mid-Term Roundup

With the Corporate Court halfway through its 2011-2012 term, we take this opportunity to look back at the opinions that it has issued so far. The Court’s less tendentious rulings tend to be released before the more closely divided ones, so it is unsurprising that all of these cases were decided 9-0 or 8-1. However, the Corporate Court’s unanimity aside, four of these holdings spell bad news for everyday Americans, while two go against corporate interests, and the implications of a final decision remain to be seen.

First, the bad news.

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Court held 9-0 that a “ministerial exception” shields religious institutions from liability for discriminatory or retaliatory employment actions.  The Court applied a totality of the circumstances test to conclude that the employee in this case – a teacher of primarily secular subjects at a religious school – was a “minister,” and that therefore the ministerial exception applies and her suit is barred. This holding will make it difficult for teachers to speak out against misdeeds within religious institutions for fear of retaliation, and will allow religious institutions to discriminate with impunity.

In Minneci v. Pollard, the Court held 8-1 that employees of a private corporation operating a federal prison may not be held liable under federal law for committing constitutional violations. The plaintiff sued for damages under Bivens v. Six Unknown Federal Narcotics Agents, claiming that his Eighth Amendment right not to be cruelly punished had been violated. The Corporate Court held that there is no reason to imply a Bivens remedy because Pollard has an adequate remedy in state tort law. Pollard would clearly have had a Bivens remedy if he were incarcerated in a prison run by the government. Yet because he was placed in a prison run by a private contractor, he is denied that remedy.

In National Meat Association v. Harris, the Corporate Court decided in favor of an industry trade group, holding 9-0 that a California state law designed to protect consumers from contaminated meat and to ensure humane treatment of animals is preempted by the Federal Meat Inspection Act. As a result of the Court’s decision, it will be easier for potentially contaminated meat to get into California grocery stores, and more difficult for all states to protect public health and humane treatment of animals.

In Perry v. Perez, the Supreme Court rejected a district court’s attempts to draw interim electoral maps for the upcoming elections, ordering it to give greater deference to the legislature’s racially gerrymandered maps. With pending lawsuits challenging the maps, the San Antonio court designed interim maps to be used during the 2012 electoral season. The Supreme Court rejected the court-drawn maps for failing to defer adequately to the legislature’s choices, and remanded with the instruction to modify the legislature’s maps only where there are alleged legal problems that have a likelihood of success on the merits. The Court’s ruling will likely have the effect of diluting minority voting rights in the 2012 elections.

Now, the good news.

In Mims v. Arrow Financial Services, the Court held that the Telephone Consumer Protection Act allows a consumer claiming harassment to sue in federal court, reversing the lower courts’ holding that Congress intended to limit jurisdiction to state courts. By siding with Mims, the Supreme Court has provided consumers with the ability to hold companies accountable for unlawful telephone harassment in federal court, where they might receive greater relief than they would in the courts of states with weaker consumer protections.

In a case with narrower application, the Court held in Pacific Operations Offshore v. Valladolid that the Outer Continental Shelf Lands Act extends workers’ compensation coverage to workers who can show a “substantial nexus” between their injury and their work on the Outer Continental Shelf.  As a result, workers in the offshore extractive industries who are injured or killed while working onshore may still receive benefits under the OCSLA if they can show a “substantial nexus” between their injury and operations on the Outer Continental Shelf.

Finally, in the ambiguous category is United States v. Jones, in which the Court addressed the right of individuals to be free from warrantless government tracking of their vehicles’ locations through GPS technology. Although the Court technically ruled against the government, it delivered only a limited victory for privacy rights, holding that the installation and use of a GPS tracker on an automobile constitutes a “search.” Whether or not a warrant is required for such a search remains an open question, and one that will undoubtedly trouble privacy advocates.

The Court returns from its mid-term recess on Tuesday, February 21, when it will hear oral argument in Freeman v. Quicken Loans.

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The Court Chips Away at the Voting Rights Act

Guest post by Professor Bertrall Ross

The headline from the Texas redistricting cases is that the Texas Republican Party won.  But the true victors from the Supreme Court ruling in the consolidated cases are the jurisdictions covered under Section 5 of the Voting Rights Act – the jurisdictions required to obtain approval for districting changes.

The unanimous holding that the federal court in San Antonio had not given enough deference to the state legislative districting determinations was rather unremarkable and mostly expected.  The federal court had essentially constructed a new districting arrangement out of whole cloth based on considerations that the legislature is ordinarily deemed best suited to make.  It is also rather unremarkable that the Court imported a preliminary injunction standard that requires federal courts to consider the likelihood of success on the merits prior to making districting changes in response to alleged violations of Section 2 of the Voting Rights Act and the Constitution.  As with any attempt to enjoin preliminarily a government act, the burden should be on the parties to show that they will likely succeed on the claim before the court stops the government from acting.  Ultimately, on this matter, the victory of the Texas GOP may be rendered incomplete, as the San Antonio court will probably impose an interim plan that is less favorable to the Republican Party than the state’s plan would be, since the court has indicated that the latter likely contains violations of both Section 2 and the Constitution. 

What is remarkable about the consolidated cases is how the Supreme Court continues to transform, without invalidating, the Section 5 preclearance mechanism into one that is decreasingly burdensome on the states at the expense of minority voters.   The Court starts its discussion of the Section 5 issue presented in the cases by restating the long-standing rule that this provision prevents implementation of a state plan that has not been approved by the United States Attorney General or the District Court for the District of Columbia.  Ordinarily, a situation such as that presented by Texas is an open and shut case under Section 5.  Neither the Attorney General nor the District Court for the District of Columbia have approved the change to the electoral law, therefore the electoral law cannot be changed and the prior law must be kept in place for the upcoming election.  However, the Court acknowledged that redistricting changes present a unique problem.  Since the establishment of the one-person, one-vote requirement, states and local jurisdictions are constitutionally mandated to make changes to districting arrangements after every census to ensure equal population districts.  The usual option of no change to the electoral law is therefore no longer available.  Some districting plan has to be put in place before the first election after every census. 

For districting arrangements such as those in Texas, which have not yet been pre-cleared in the face of an impending election, the Court had essentially two options.  First, it could have allowed the un-precleared state plans to be adopted for this election cycle.  This approach would have severely undermined the pre-clearance mechanism, as covered states would be incentivized to engage in delay tactics when seeking pre-clearance, in hopes that a plan presumably harmful to minority voters be used during the first post-census elections.  The Court fortunately did not go this route. 

However, the Court had only one other option available to it under Section 5, an option only slightly more appealing from the perspective of minority voters.  Since only the District Court for the District of Columbia can adjudicate Section 5 preclearance questions under the Voting Rights Act, the Court instructed lower federal courts responsible for drawing up alternative plans to not “prejudge the merits of preclearance.”  Instead, they must accept the policy judgments reflected in the state plan unless particular aspects “stand a reasonable probability of failing to gain Section 5 preclearance.”  It is not exactly clear what a standard of “reasonable probability” means.  Depending on the court, the standard may result in a great deal of deference given to the state plan or very little to no deference at all.

But irrespective of how lower courts interpret the standard, the requirement that any new districting plan must be precleared before being employed has been loosened.  And ever so slightly, the incentives for covered jurisdictions to take the slowest route toward preclearance has increased based on the possibility, and in some cases the strong possibility, that an un-precleared plan could be employed in at least one election.  One election may not seem like such a big deal, but when one considers that the terms in the Texas state legislature can run up to four years in the election after the decennial reapportionment, the stakes grow.  The burden of delay when covered jurisdictions seek pre-clearance is now firmly on minority voters, as they face the possibility of having to endure an election under a plan that makes them worse off than they were under the prior plan.  The Texas redistricting decision therefore represents a subtle yet important win for the covered jurisdictions and a loss for minority voters.   

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Bertrall Ross teaches Legislation, Election Law, and Constitutional Law at Berkeley Law. In the area of legislation, his current research seeks to address how courts should reconcile legislative supremacy with the vexing problem of interpreting statutes in contexts not foreseen by the enacting legislature. In election law, he is examining the constitutional dimensions and the structural sources of the marginalization of the poor in the American political process.

Prior to joining the Berkeley faculty, Bertrall was a Kellis Parker Academic Fellow at Columbia Law School. He clerked for the Honorable Dorothy Nelson of the Ninth Circuit Court of Appeals and the Honorable Myron Thompson of the Middle District of Alabama. He received his J.D. from Yale Law School and has an M.Sc in the Politics of the World Economy from the London School of Economics, a Masters in Public Affairs from Princeton University Woodrow Wilson School of Public and International Affairs, and a B.A. in International Affairs and History from the University of Colorado, Boulder.

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Supreme Court Sides with Texas in Redistricting Dispute

Last week, the Supreme Court issued a unanimous unsigned opinion (.pdf download) in the cases consolidated as Perry v. Perez, rejecting the interim electoral maps drawn by a three-judge district court panel in San Antonio for failing to defer adequately to the legislature’s choices. The decision is seen as a win for the Texas GOP.

2010 Census data revealed that a population explosion and demographic change in Texas had left the state’s electoral maps in violation of the Constitution’s one-person, one-vote mandate and in need of being redrawn. Under Section 5 of the Voting Rights Act of 1965, Texas is one of a number of jurisdictions that are required to seek “preclearance” for any changes to their electoral system because of past voting discrimination on the basis of race. Accordingly, Texas submitted its redrawn maps to a three-judge district court panel in DC, which has not yet ruled on preclearance.

Advocates suggest that the Republican-dominated Texas legislature redrew the maps in a way that dilutes African-American and Latino voting strength. Thus, voters and advocacy groups filed suit in federal court in San Antonio, alleging that the changes violate Section 2 of the Voting Rights Act, which prohibits any state from adopting electoral procedures that undermine minority voting rights, as well as the Fourteenth Amendment. In view of the impending election season, the San Antonio court drew interim maps to be used until the preclearance issue could be resolved. Texas appealed to the Supreme Court, arguing that the district court had erred in drawing new maps and that the legislatively-drawn maps should be used as interim maps instead.

In its decision, the Supreme Court reiterated that a new electoral map cannot be used until it has been precleared, while also noting that the old electoral map in this case could not be used because it violated the one-person, one-vote constitutional mandate. As a result, the Supreme Court concluded that the district court in San Antonio was correct to create an interim electoral map for the 2012 election.

However, the Supreme Court found that the San Antonio court should have given greater deference to the legislature’s preferences rather than “substitut[ing] its own concept of ‘the collective public good’ for the Texas Legislature’s determination of which policies serve ‘the interests of the citizens of Texas.’” In essence, the district court should not have modified the legislature’s maps except where there are alleged legal problems with those maps that have a likelihood of success on the merits.

With regard to Section 5, the Supreme Court instructed the district court not to prejudge the preclearance proceedings on the merits, instead “taking guidance from a State’s policy judgment unless they reflect aspects of the state plan that stand a reasonable probability of failing to gain § 5 preclearance.”  It remains to be seen how district courts will apply this opaque formulation. In the meantime, it seems likely that the maps the San Antonio court must design on remand for use in 2012 will bear much greater resemblance to the legislature’s maps, vote dilution and all.

Those concerned with voting rights should take note that Justice Thomas penned a concurrence in which he reiterated his belief – previously noted in his dissent in Northwest Austin Municipal Util. Dist. No. One v. Holder (2009) – that Section 5 of the Voting Rights Act is unconstitutional.

By rejecting the court-drawn maps and ordering greater deference to the legislature’s maps, the Court’s ruling will likely have the effect of diluting minority voting rights in the 2012 elections.

Shortly after issuing its decision in this case, the Supreme Court issued a short order (.pdf download) staying the order of a three-judge district court panel in West Virginia pending appeal. The Charleston court had held that “zero variance” in population is required to satisfy the one-person, one-vote constitutional mandate. As a result of the Supreme Court’s stay, West Virginia can proceed with its elections using a legislatively-drawn map. 

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The Preclearance Flaw

Guest post by Professor Bertrall Ross

The consolidated cases of Perry v. Perez, Perry v. Perez, and Perry v. Davis (the Texas redistricting cases) highlight for the first time an important flaw in the preclearance mechanism under Section 5 of the Voting Rights Act that is central to the case.  This flaw arose because Congress in 1965 did not foresee preclearance being applied to the mandatory change of decennial reapportionment. In fact, congressional focus at the time of enactment in 1965 was on deterring jurisdictions with a history of voting discrimination (covered jurisdictions) from making discretionary changes to their voting laws that had the purpose or would have the effect of denying the vote on account of race.  Congressional concerns about vote dilution would only arise later. 

The covered jurisdictions under the preclearance mechanism as applied to discretionary voting changes had the option of maintaining the status quo with respect to their voting laws or seeking preclearance for any electoral changes that they chose to make.  And as originally conceived, when the covered jurisdiction decided to make an electoral change and proceed down the preclearance route, any costs associated with the delay of obtaining preclearance would be borne by the covered jurisdiction because it would have to retain the prior law until the new law was approved.

Faced with this burden of delay, the covered jurisdiction could decide whether to proceed down any of the three routes designated in the law to obtain preclearance. First, it could seek preclearance from the Department of Justice, which proceeds in a more expedited fashion.  Alternatively, it could seek preclearance from the Department of Justice concurrently with a declaratory judgment action in the District Court for the District of Columbia. This would also provide expedited review while the declaratory action wound its way through the more deliberate judicial channels.  Finally, the covered jurisdiction could proceed down the slow route and seek preclearance exclusively through a declaratory judgment action in the District Court for the District of Columbia.  When the voting change was discretionary, minority voters generally did not suffer any consequences from the delay since it could not go into effect until it was approved.

The flaw in the Section 5 pre-clearance mechanism arises from situations, such as reapportionment, where covered jurisdictions are required to make voting changes. The constitutional requirement of one-person, one-vote mandates that states reapportion to create electoral districts of equal population at least every ten years. In addition to the mandatory nature of the change, there are important time constraints associated with it. Covered jurisdictions ordinarily have to reapportion between the time it receives the census numbers and the next election. In the case of Texas, this meant that it had about a year to reapportion and obtain preclearance for the change.

Now, there is a dispute about whether Texas intentionally delayed the process of reapportionment; however, the arguments of the appellees in the case that the state should be penalized for the manner in which it sought preclearance — through the slow route of the declaratory judgment action in the District Court of the District of Columbia — seems a little misguided from a legal perspective. Sure, the State could have gone through the more expedited channels of the Department of Justice — and given the Texas’s history of violations of the Voting Rights Act, it is probable that the decision not to do so is driven in part by its minimal regard for the rights of minority voters — but there is nothing in the statute itself suggesting that it has to. And once it decided to proceed down the path of a judicial declaratory judgment action, it also seems wrong to suggest that they were legally required to forego pre-trial adjudication procedures such as summary judgment, even again recognizing the potentially nefarious motives for this decision that slowed the process.

What this case points to is the fact that the preclearance mechanism did not account for cases, like reapportionment cases, in which the burden of delay does not necessarily fall on the covered jurisdiction.  In these cases, the change has to made –  a new reapportionment plan has to be adopted for the 2012 elections to accord with the constitutional requirement of one person, one vote.  And the fact remains that judicial process takes time and such process often will not be able accommodate the time constraints presented in cases like this one.

If Congress had anticipated the conundrum presented by the need to obtain preclearance for reapportionment in 1965, it would have likely forced covered jurisdictions to proceed down the more expedited path in such cases. And the fault of subsequent Congresses responsible for the re-authorization of the statute in 1970, 1975, 1982, and 2006 was that they simply assumed that covered jurisdictions would continue to proceed, as they had with respect to most other voting changes, through the more expedited channels of DOJ preclearance, even though the covered jurisdictions were not required to do so.

Assuming that the court rejects the court plan and adopts the state plan as the interim plan until preclearance is obtained, as I expect it will, this suggests the need for a congressional fix to the pre-clearance mechanism since the burden of delay will now fall on minority voters who face potential deprivations of their rights. Such a fix would force covered jurisdictions to obtain preclearance for changes necessitated by reapportionment through the more expedited preclearance channel involving the Department of Justice. I don’t see this fix as particularly politically feasible in the current context, but perhaps it could be made prior to the next decennial reapportionment assuming Section 5 is still around.

A version of this entry also appears on SCOTUSblog.
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Bertrall Ross teaches Legislation, Election Law, and Constitutional Law at Berkeley Law. In the area of legislation, his current research seeks to address how courts should reconcile legislative supremacy with the vexing problem of interpreting statutes in contexts not foreseen by the enacting legislature. In election law, he is examining the constitutional dimensions and the structural sources of the marginalization of the poor in the American political process.

Prior to joining the Berkeley faculty, Bertrall was a Kellis Parker Academic Fellow at Columbia Law School. He clerked for the Honorable Dorothy Nelson of the Ninth Circuit Court of Appeals and the Honorable Myron Thompson of the Middle District of Alabama. He received his J.D. from Yale Law School and has an M.Sc in the Politics of the World Economy from the London School of Economics, a Masters in Public Affairs from Princeton University Woodrow Wilson School of Public and International Affairs, and a B.A. in International Affairs and History from the University of Colorado, Boulder.

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Supreme Court to Hear Texas Voting-Rights Case

On Monday, the Supreme Court will hear argument in the consolidated cases of Perry v. Perez, Perry v. Perez, and Perry v. Davis, in which the voting rights of the African-American and Latino citizens of Texas are at stake.

The state of Texas has experienced tremendous population growth and demographic change in recent years. The 2010 Census revealed that the state population had grown by more than one fifth – or 4.2 million – over the previous decade. A majority of that growth came from the Latino population, which increased by 2.8 million. As a result, the state electoral maps required a major overhaul, both to bring the state legislative districts in line with the U.S. Constitution’s one-person, one-vote provision, and to apportion fairly the electoral districts for the U.S. House of Representatives, in which Texas gained 4 seats as a result of the population increase.

Under the Voting Rights Act of 1965, Texas is one of a number of jurisdictions that are required to seek “preclearance” for any changes to their electoral system because of their history of voting discrimination on the basis of race. Under the act a jurisdiction may seek preclearance from the Attorney General, or from a three-judge panel of the District Court for the District of DC. In this case, Texas chose to submit its newly drawn electoral maps to the DC District Court for approval, even though the path through the Attorney General is generally more expeditious.

While Texas’ preclearance application was pending before the federal court in DC, voters and advocacy groups filed a series of suits in federal court, alleging that the changes violate the Fourteenth Amendment, as well as a section of the Voting Rights Act which prohibits any state from adopting electoral procedures that undermine minority voting rights. The federal court found that it was not free to determine the legality of the legislature’s maps, as that issue was pending in the preclearance action before another court. However, the court also found that the legislatively-drawn maps could not go into effect without being precleared by the DC District Court. Accordingly, in view of the impending 2012 election season, the Texas court designed interim maps to be used until the preclearance issue is resolved.

The question before the Supreme Court is whether the federal court erred by creating such interim maps, and whether the court was required to adopt the legislature’s maps as the interim maps, despite the fact that they have not yet received the required preclearance. Additionally, in its reply brief, Texas has raised questions about the constitutionality of a section of the Voting Rights Act for the first time in this litigation.

If the Supreme Court sides with Texas, the voting rights of minority citizens will be significantly impaired. At best, if the Court approves the use of the legislatively-drawn maps while preclearance is pending, the Court will be allowing Texas to dilute minority voting rights during the 2012 elections. Even more devastating to minority rights, the Court could render a final decision that the legislatively-drawn maps are legitimate and do not violate the Voting Rights Act or the Constitution.

However, it is conceivable that the Court could go even further, and invalidate Section 5 of the Voting Rights Act altogether, even though that possibility was never suggested in this litigation until Texas submitted its reply brief. These harms are a matter of degree, but in any of the above scenarios, the voting rights of African-American and Latino citizens will suffer greatly if the Court sides with Texas.

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