Category Archives: Voting Rights Act

My New One at Slate with Dahlia Lithwick: There’s Unsettling New Evidence About William Rehnquist’s Views on Segregation

Dahlia Lithwick and I have written this piece for Slate. It begins:

It was impossible to listen to oral arguments this past Supreme Court term without being struck by the way this court’s conservative supermajority views the 14th Amendment. According to these justices, the key Reconstruction-era amendment was intended merely to promote a theory of “color blindness”—in which race is simply ignored—not to actively lift Black people from a previously subjugated status following the end of slavery. Indeed, the newest justice, Ketanji Brown Jackson, made headlines at one of her first oral arguments, when she took pains to debunk this historically dubious theory.

In that voting rights case, Allen v. Milligan, the first Black woman to hold a seat on the Supreme Court explained that the drafters of the amendment intended that its vision be applied “in a race-conscious way” so that freed former slaves “were actually brought equal to everyone else in the society.” She went on to urge “that’s not a race-neutral or race-blind idea.”

Unfortunately, Justice Jackson will likely be raising these points again—this time in dissent—as the Supreme Court is poised to end the term by using the “color blind” formulation to gut affirmative action in higher educationweaken or decimate a key part of the Voting Rights Act, and erode longstanding tribal protections for Native American families and their children. When the court does so, it will be another belated victory for William H. Rehnquist.

The late chief justice, who long sought to turn the 14th Amendment on its head, notoriously drafted a 1952 memo as a Supreme Court clerk that defended racial segregation in the South and the disastrous Plessy v. Ferguson decision on which the institution’s legality was based. While Rehnquist denied during his confirmation hearings that the memo reflected his own views—saying they were meant to reflect those of the justice he was clerking for in 1952, Robert H. Jackson—a newly-released court document, not previously reported, lays bare Rehnquist’s abhorrent true position on segregation as late as 1993.

That year, the then-chief justice was still defending the logic of Plessy in no uncertain terms and using his position as a justice to block the court from acknowledging that the 14th Amendment barred segregation. “The Fourteenth Amendment prohibits discrimination; it does not require integration, and I think it is a mistake to intimate that it does even as a ‘goal,’” Rehnquist wrote in a memo to Justice Sandra Day O’Connor as part of an effort to have her remove a passage from an election  decision. (For good measure, Rehnquist also requested O’Connor remove a suggestion that the Civil War was fought in part to secure voting rights for Black people.)….

The stark evidence of Rehnquist’s true views were found in newly released papers of Justice John Paul Stevens, which include the memo from Rehnquist to Justice O’Connor. The context for Rehnquist’s statement was a response to Justice O’Connor’s early draft of the opinion in the case of Shaw v. Reno. In Shaw, a conservative Supreme Court majority ultimately held that taking race too much into account in drawing lines for congressional, state, or local legislative districts violated the Equal Protection Clause of the 14th Amendment. O’Connor’s final opinion for the majority held that drawing such districts “bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls.”…

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California Supreme Court Will Hear Oral Argument in Santa Monica Voting Rights Case in June After All

Initially I predicted a summer hearing for this important and delayed case under the California Voting Rights Act. Then it appeared my prediction was wrong when the June oral argument calendar came out without the Santa Monica case.

Now, in a potentially unprecedented move, the CA Supreme Court has set a second oral argument calendar for June 27, with the Santa Monica case on it. It will be an all-remote hearing.

Stay tuned!

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Georgia moves to toss United States’ SB 202 suit under the Voting Rights Act after 11th Circuit opinion

Last month, I noted the dispute over whether Section 2 of the Voting Rights Act extends to legislation with a discriminatory purpose or only discriminatory effect. The Eleventh Circuit, in a case out of Florida, held that Section 2 of the Voting Rights Act does not cover intentional discrimination.

Georgia is also in the Eleventh Circuit. And sure enough, it’s moved to dismiss the United States’ Voting Rights Act claim from the SB 202 suit: “Because DOJ’s Complaint pleads only one claim—a non-cognizable discriminatory-purpose or intent claim—that is the end of the line for DOJ’s case.”

There are many (slow-moving) pieces in the Georgia SB 202 litigation, but this will be one to watch.

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Fifth Circuit holds legislative privilege prevents inquiry into legislative process, even for questions of racial discrimination in voting rights suit

The Fifth Circuit this week handed down its decision in La Union Del Pueblo Entero v. Abbott. This was a challenge to Texas’s SB 1 brought by organizations represented by the Elias Law Group. At issue was a discovery dispute inquiring into the motives of the legislature. The district court approved the discovery, and the state officials appealed. The Fifth Circuit reversed. Judge Willett wrote the opinion for the court, joined by Chief Judge Richman and Judge Weiner (lighted edited):

Continue reading Fifth Circuit holds legislative privilege prevents inquiry into legislative process, even for questions of racial discrimination in voting rights suit
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“Federal judge grants injunction in Boston redistricting case: ‘The ball is back in the City Council’s court.’”

Boston Globe: The City of Boston’s new maps for City Council have been enjoined and must be redrawn before the November elections.

“’Plaintiffs have demonstrated a likelihood of success in showing that race played a predominant role in the City Council’s redrawing of Districts 3 and 4 in the enacted map, and Defendants have not demonstrated that the enacted redistricting map is narrowly tailored to achieve a compelling interest,’ wrote [Judge Patti B.] Saris.”

With respect to District 4, the controversy centers around the decision to join a “cluster of majority-white precincts in the southern tip of Dorchester, including some of the most conservative voters who are more likely to turn out” (emphasis added) with voters from Jamaica Plain and Roslindale in order “to avoid ‘packing’ Black voters.” The NAACP and other local progressive groups supported the city’s maps. Very curious to know why it appeared to matter that these voters were both more conservative and more likely to turn out (probably also older).

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“Judicial activist directed fees to Clarence Thomas’s wife, urged ‘no mention of Ginni’”

WaPo reports:

Conservative judicial activist Leonard Leo arranged for the wife of Supreme Court Justice Clarence Thomas to be paid tens of thousands of dollars for consulting work just over a decade ago, specifying that her name be left off billing paperwork, according to documents reviewed by The Washington Post.

In January 2012, Leo instructed the GOP pollster Kellyanne Conway to bill a nonprofit group he advises and use that money to pay Virginia “Ginni” Thomas, the documents show. The same year, the nonprofit, the Judicial Education Project, filed a brief to the Supreme Court in a landmark voting rights case.

That case was Shelby County (here’s the brief).  I’m pretty skeptical that any brief had much of an impact on Justice Thomas’s inclination in Shelby County; if the Judicial Education Project was seeking to buy a vote in that case, Justice Thomas’s vote was already about as guaranteed as it gets. 

Still, it’s not a great look for a group with frequent business before the court to set up a back-channel payment to a Justice’s spouse while understanding that it’s a sufficiently not-great look to take care that the spouse in question isn’t mentioned on the paperwork. And it’s not hard to imagine howls if you replace the names of these particular parties with others.

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11th Circuit, on 2-1 Vote Reverses District Court Order Putting Florida Back Under Federal Voting Supervision Based on Racially Discriminatory Intent; Appeals Court Also Rejects Challenge to Elimination of Ballot Drop Boxes, Most Other Challenged Florida Provisions

You can find the decision authored by Judge William Pryor, and a one-paragraph dissent from Judge Jill Pryor, at this link. (The very short dissent is quite curious.)

From the majority opinion:

This appeal involves four recently enacted provisions of Florida’s election law, including provisions that regulate ballot drop boxes, the solicitation of voters at the polls, and the delivery of voter-registration forms by third-party voter-registration organizations. Several plaintiff organizations sued the Florida Secretary of State, the Florida Attorney General, and several Supervisors of Elections. After a bench trial, the district court enjoined three provisions because it found they were adopted with the intent to discriminate against black voters in violation of the Fourteenth and Fifteenth Amendments as well as section 2 of the Voting Rights Act. And it imposed a preclearance requirement under section 3(c) of the Act. The district court also ruled that the solicitation provision was unconstitutionally vague and overbroad in violation of the First and Fourteenth Amendments. Finally, it enjoined a provision that required third-party voter-registration organizations to provide a disclaimer to voters who use their services to register to vote, but all parties agree that any appeal of the judgment as to that
provision has been rendered moot by the repeal of the provision.

Because we hold that the findings of intentional racial discrimination rest on both legal errors and clearly erroneous findings of fact and that only part of the solicitation provision is unconstitutional, we reverse in part, affirm in part, vacate in part, and remand.

Here is what I wrote about the district court case at the time it was issued:

Quite a blockbuster ruling from the federal district court. The court found that in enacting certain election laws limiting registration outreach and the use of drop boxes, Florida violated the Voting Rights Act. The court also found that Florida acted intentionally discriminating against the state’s black voters. And although the parties hardly briefed it, the Court imposed a very strong remedy of requiring that certain changes in voting rules in Florida be precleared before the court for a period of 10 years under section 3c of the Voting Rights Act.

This is a huge deal, and the district court’s analysis is probably right, but there is good reason to believe that this case could be reversed on appeal by the much more conservative 11th Circuit or the Supreme Court. Indeed, the district court seems to signal that very early in the case that the appellate courts have stopped meaningfully protecting minority voting rights…

And here is what I wrote about the “presumption of good faith” that the motions panel applied when it temporarily stayed this district court order pending appeal. (The merits panel today applied the same reasoning in rejecting the argument that Florida acted with racially discriminatory intent):

Even worse than that, the ruling applies a “presumption of good faith” to defeat the claim of intentional discrimination against Florida. This is another Justice Alito Special, a way to prevent courts from finding intentional racial discrimination when legislatures pass voting laws. I explained how it and related laws insulate states from such claims in The Supreme Court’s Pro-Partisanship Turn, 109 Georgetown Law Journal Online 50 (2020).

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Two federal courts have recently found that states have no sovereign immunity under the Elections Clause

To continue my sovereign immunity discussion from yesterday, a federal court last year found that Congress did not abrogate state sovereign immunity under the Voting Rights Act. Congress must do so with “unmistakable clarity” when enforcing the Reconstruction Amendments, per Supreme Court precedent. You can sue the secretary of state; you cannot sue the state.

But a couple of federal district courts have been looking at the same issue from a different angle, under the National Voter Registration Act of 1993. They look at a different clause of the Constitution, the Elections Clause. Over the last couple of decades, the Supreme Court has increasingly found exceptions to what was once thought to be a stronger presumption that Congress lacked the power to abrogate state sovereign immunity under its Article I authority. But since then, it has decided cases involving bankruptcy, war powers, and eminent domain where states, under the “plan of the [constitutional] convention,” surrenders some of their sovereign immunity. And so, the Elections Clause has been a topic of some discussion in the lower courts.

In Illinois Conservative Union v. Illinois, a federal court issued this brief docket order in 2021: “Under the plan of the Convention doctrine, the Court finds that Plaintiffs may proceed against the State and the Board and denies the State and the Board’s motion to dismiss the NVRA claim 5 based on sovereign immunity.”

A more fulsome evaluation took place in a different federal court in Illinois in Public Interest Legal Foundation v. Sandvoss in 2022 (lightly edited):

Continue reading Two federal courts have recently found that states have no sovereign immunity under the Elections Clause
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