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U.S. Supreme Court Shows Unjustified Hostility to the Voting Rights Act of 2006

March 18, 2013

On February 27, 2013, the U.S. Supreme Court heard oral arguments in Shelby County, Alabama v. Holder, No. 12-96, which raises the following issue:

”Whether Congress’ decision in 2006 to reauthorize [for 25 years] Section 5 of the Voting Rights Act [of 1965] under the pre-existing coverage formula of Section 4(b) of [that] Act [requiring certain states to obtain preclearance from the U.S. Department of Justice or a special federal court for any changes in their election laws] exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.”[1]

As has been frequently reported, during the argument Chief Justice John Roberts and Associate Justices Antonin Scalia, Samuel Alito and Anthony Kennedy asked questions and made comments strongly suggesting that they were prepared to invalidate this statutory provision,[2] a conclusion that already had been reached by Associate Justice Clarence Thomas in a prior case. If this is a correct reading of the recent argument, then there would be at least a 5-4 majority on the Court to declare the provision unconstitutional.

According to Linda Greenhouse, a leading Supreme Court follower, the “goal of [the petitioner] Shelby County and [apparently a majority] . . . on the Supreme Court is to depict Section 5 as an anachronism, a needless cudgel held by the big bad federal government over the head of a transformed South.“

Here are just a couple of examples of that attitude from the argument.

Chief Justice John Roberts

Chief Justice Roberts asked or, as Greenhouse put it, “taunted” the U.S. Government’s lawyer (Solicitor General Donald Verrilli) with the following questions (and Roberts’ own answers) apparently to express Roberts’ belief that Mississippi has a better record than Massachusetts on black voter registration and turnout and that the Voting Rights Act provision at issue is no longer needed and, therefore, unconstitutional:

“Do you know how many submissions there were for preclearance to the Attorney General in 2005?” (Roberts: “3700.”)
“Do you know how many objections the Attorney General lodged?” (Verrilli: “There was one in that year.”)
“[D]o you know which State has the worst ratio of white voter turnout to African American voter turnout?” (Roberts: “Massachusetts.”)
“[W]hat [state] has the best, where African American turnout actually exceeds white turnout?” (Roberts: “Mississippi.”)
“Which State has the greatest disparity in registration between white and African American?” (Roberts: “Massachusetts. Third is Mississippi, where again the African American registration rate is higher than the white registration rate.”)
”[I]s it the government’s submission that the citizens in the South are more racist than citizens in the North?” (Verrilli: “It is not.”)

Roberts did not identify the source of his statistics, but afterwards the Massachusetts Secretary of State, William F. Galvin, and political scientists speculated that Roberts drew his conclusions from the U.S. Census Bureau’s “The Current Population Survey,” which collects information on voting and registration every other year. This data, however, should not be used in the way that Roberts did because of their large margins of error, as reported by Nina Totenberg of National Public Radio.

Indeed, Secretary Galvin said that Roberts’ assertion about Massachusetts and Mississippi is just plain wrong and that the only way that the Census Bureau source supports Roberts’ assertion is by including Massachusetts’ non-citizen blacks who are not entitled to vote. To do what Roberts did, according to Galvin, is “deceptive” and “a slur on black voters in Massachusetts.”

Nate Silver, the statistician, also criticizes Roberts’ trumpeting these figures about Mississippi and Massachusetts apparently to justify a conclusion that the Voting Rights Act provisions in question are no longer needed and, therefore, unconstitutional.

According to Silver, “If [Roberts] . . . meant to suggest that states covered by Section 5 consistently have better black turnout rates than those that aren’t covered by the statute, then his claim is especially dubious.” Moreover, says Silver, it is outright fallacious to conclude from this simple comparison of two states, however flawed the data, that the provisions of section 5 of the Voting Rights Act and the formula in section 4(b) are no longer needed. For example, such data say nothing about whether whatever gains have been made in racial minority voting “might be lost if the Section 5 requirements were dropped now.”

I also fault the Chief Justice for focusing on only one small piece of evidence, however flawed or subject to qualification. Instead, he should be focusing on fundamental principles of judicial restraint as repeatedly proclaimed by the U.S. Supreme Court itself and as cited by the D.C. Circuit in its opinion in this case.

These precedents emphasize that “Congress’s laws are entitled to a ‘presumption of validity’” and that “when Congress acts pursuant to its enforcement authority under the Reconstruction Amendments [including the Fifteenth Amendment], its judgments about ‘what legislation is needed . . . are entitled to much deference.‘“ Such deference is paid “‘out of respect for [Congress’] . . . authority to exercise the legislative power,’” and in recognition that Congress “is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.” (Citations omitted.)[3]

Justice Antonin Scalia

Associate Justice Scalia also interrupted Solicitor General Verrilli to make this long statement:

“This Court doesn’t like to get involved . . . in racial questions such as this one. It’s something that can be . . . left to Congress.
“The problem here, however, is . . . that the initial enactment of this legislation in a time when the need for it was so much more abundantly clear . . . in the Senate, . . . it was double-digits against it. And that was only a 5-year term. Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it.
“And this last enactment [in 2006], not a single vote in the Senate against it. And the House is pretty much the same.
“Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is . . . very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity . . . unless a court can say it does not comport with the Constitution.
“You have to show, when you are treating different States differently, that there’s a good reason for it. That’s . . . the concern that those of us . . . who have some questions about this statute have. It’s . . . a concern that this is not the kind of a question you can leave to Congress.
“There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose . . . votes if they do not reenact the Voting Rights Act.
“Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?”

These remarks are shocking and totally inconsistent with the Court’s long-established principles of judicial restraint mentioned above and with Justice Scalia’s persistently stated views about judicial interpretation of statutes.

Indeed, Scalia’s remarks provoked the Washington Post’s Editorial Board to proclaim that Scalia was in “contempt of Congress.” The editorial concluded with these words, “Congress, after careful review, came to an overwhelming conclusion that protection of the franchise in America is much improved but not guaranteed, especially in certain areas. We heard in . . . [the Supreme Court] argument no grounds for the court to claim superior wisdom on that question.”

Conclusion

What is your opinion on how the Voting Rights Act issue should be resolved? Some argue for holding that provision unconstitutional.[4] Others agree with me that the provision should be upheld.[5]

I went to the University of Chicago Law School before Mr. Scalia was on the faculty, and I have never met him. By all reports, he is a brilliant man who is gracious and funny in social settings. But his comments in this and other Court arguments along with some of his opinions lead me to believe that life tenure for Supreme Court Justices and perhaps other federal judges causes at least some of them to believe that they are omniscient.

A possible solution to such arrogance, as I suggested in a comment to a prior post, is to amend the U.S. Constitution to impose a term limit on U.S. Supreme Court Justices and perhaps other federal judges. All 50 states in the U.S. and all major nations have age or term limits for high-court judges. The International Criminal Court limits its judges to one term of nine years. Such limits are not seen as restrictions on the necessary independence of the judiciary.

The U.S. Constitution does not specifically grant life tenure to the justices or other federal judges. The Constitution merely says, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . . .” Paul Carrington, a Duke University law professor, has suggested that the “good Behaviour” provision was not intended to provide life-time appointments and that term limits could be imposed by statute.

[1] This issue was phrased by the Supreme Court itself in granting review of the case. Previous posts have reviewed the Voting Rights Act of 1965; the Voting Rights Act of 2006; the prior Supreme Court case regarding the latter statute (Northwest Austin Municipal Utility District No. One v. Holder); and the decision of the U.S. Court of Appeals for the District of Columbia Circuit in the Shelby County case. The transcript of the recent Supreme Court arguments in Shelby County is available online as are the petitioner’s brief, the respondent’s brief for the U.S. Government and the reply brief for the petitioner in the case. Other briefs in the case for three intervenors, 19 amici curiae (friends of the court) supporting the petitioner and 28 amici curiae supporting the U.S. Government can also be found on the web. Excellent commentaries about the case are available on the respected scotusblog.

[2] E.g., Liptak, Voting Rights Law Draws Skepticism from Justices, N.Y. Times (Feb. 27, 2013); Gerstein, 5 Takeaways from the Voting Rights Act arguments, Politico (Feb. 27, 2013).

[3] Roberts’ hostility to the Voting Rights Act apparently goes back to 1981 when as a young lawyer in the Department of Justice he was working on Reagan Administration efforts to weaken the Voting Rights Act.

[4] E.g., Blum, The Supreme Court Can Update the Obsolete Voting Rights Act, W.S.J. (Feb. 24, 2013); Room for Debate: Is the Voting Rights Act Still Needed?, N.Y. Times (Feb. 27, 2013) (Shapiro; Pilder); Savage, Decision on Voting Law Could Limit Oversight, N.Y. Times (Feb. 28, 2013); Will, The Voting Rights Act stuck in the past, Wash. Post (Mar. 1, 2013).

[5] E.g., Room for Debate: Is the Voting Rights Act Still Needed?, N.Y. Times (Feb. 27, 2013) (Wydra; Charles & Fuentes-Rohwer; Garza; Smith), supra; Savage, Decision on Voting Law Could Limit Oversight, N.Y. Times (Feb. 28, 2013), supra.

Tags:Anthony Kennedy, Antonin Scalia, Clarence Thomas, Donald Verrilli, John Roberts, Linda Greenhouse, Massachusetts, Mississippi, Nate Silver, Paul Carrington, Samuel Alito, Shelby County Alabama v. Holder, U.S. Census Bureau, U.S. Constitution, U.S. Court of Appeals for the D.C. Circuit, U.S. Supreme Court, University of Chicago Law School, Voting Rights Act of 1965, Voting Rights Act of 2006, Washington Post, William F. Galvin
Posted in History, Law, Politics | Leave a Comment »

The D.C. Circuit’s Decision Upholding the Validity of the Voting Rights Act of 2006

March 11, 2013

On February 27, 2013, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of an important provision in the Voting Rights Act of 2006. That provision imposes a requirement in section 5 for certain states to obtain pre-clearance from a special federal court or the U.S. Attorney General for any changes in their election laws.

Before we discuss that argument, we will review the decision that was the subject of that argument: the U.S. Court of Appeals for the D.C. Circuit’s decision in Shelby County, Alabama v. Holder upholding, 2 to 1, the constitutionality of that statute and, therefore, affirming the trial court’s judgment to the same effect.[1]

Judge David S. Tatel

Judge Thomas B. Griffith

Judge Stephen F. Williams

The opinion for the majority in the Circuit Court was written by Judge David S. Tatel, a President Clinton appointee in 1994 and a University of Chicago Law School classmate and friend of mine. He was joined by Circuit Judge Thomas B. Griffith, an appointee of President George W. Bush in 2005, while the dissenter was Circuit Judge Stephen F. Williams, an appointee in 1994 by President Reagan.

Opinion of the Circuit Court

The D.C. Circuit stressed that it was “bound by fundamental principles of judicial restraint” as repeatedly proclaimed by the U.S. Supreme Court. These precedents emphasize that “Congress’s laws are entitled to a ‘presumption of validity’” and that “when Congress acts pursuant to its enforcement authority under the Reconstruction Amendments [including the Fifteenth Amendment], its judgments about ‘what legislation is needed . . . are entitled to much deference.‘“ Such deference is paid “‘out of respect for [Congress’] . . . authority to exercise the legislative power,’”and in recognition that Congress ”‘is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.’” (Citations omitted.)

Indeed, the Circuit Court quoted the Supreme Court’s opinion in deciding a prior case about this very statute when that Court emphasized that “judging the constitutionality of an Act of Congress is `the gravest and most delicate duty that [a court] is called on to perform,’’” and that “[t]he Fifteenth Amendment empowers `Congress,’ not the Court, to determine in the first instance what legislation is needed to enforce it.”

These long-standing principles of judicial restraint, I believe, are even more relevant and important, when Congress adds congressional findings of fact to the statute itself, as it did in the Voting Rights Act of 2006.

The D.C. Circuit then addressed the two concerns or questions about the Voting Rights Act of 2006 that the Supreme Court had raised in the Northwest Austin case.

First, are the current burdens imposed by section 5 “justified by current needs”?

Even though there has been significant progress in combatting racial discrimination in voting, the D.C. Circuit stressed that “Congress [had] found that this progress did not tell the whole story.

It documented ‘continued registration and turnout disparities’ in both Virginia and South Carolina.” In addition, “although the number of African Americans holding elected office had increased significantly, they continued to face barriers to election for statewide positions. Congress found that not one African American had yet been elected to statewide office in Mississippi, Louisiana, or South Carolina. In other covered states, “`often it is only after blacks have been first appointed to a vacancy that they are able to win statewide office as incumbents.’”

The D.C. Circuit also noted that “Congress considered other types of evidence that, in its judgment, ‘show[ed] that attempts to discriminate persist and evolve, such that Section 5 is still needed to protect minority voters in the future.’ It heard accounts of specific instances of racial discrimination in voting. It heard analysis and opinions by experts on all sides of the issue.”

Congress considered six distinct categories of evidence, according to the D.C. Circuit: “(1) [U.S.] Attorney General objections issued to block proposed voting changes that would, in the Attorney General’s judgment, have the purpose or effect of discriminating against minorities; (2) ‘more information requests’ issued when the Attorney General believes that the information submitted by a covered jurisdiction is insufficient to allow a preclearance determination; (3) successful lawsuits brought under section 2 of the Act; (4) federal observers dispatched to monitor elections under section 8 of the Act; (5) successful section 5 enforcement actions filed against covered jurisdictions for failing to submit voting changes for preclearance, as well as requests for preclearance denied by the United States District Court for the District of Columbia; and (6) evidence that the mere existence of section 5 deters officials from even proposing discriminatory voting changes.”

Finally, said the D.C. Circuit, “Congress heard evidence that case-by-case section 2 litigation was inadequate to remedy the racial discrimination in voting that persisted in covered jurisdictions.”

The Circuit court then carefully reviewed the legislative record and concluded that it contained “sufficient probative evidence from which Congress could reasonably conclude that racial discrimination in voting in covered jurisdictions is so serious and pervasive that section 2 litigation remains an inadequate remedy.”

Second, does the congressional record support the requisite ‘showing that the statute’s disparate geographic coverage is sufficiently related to the problem that it targets?

In addressing this issue, the Circuit court emphasized that the statute’s disparate geographic coverage depended not only on section 4(b)’s formula, but on the statute as a whole, including its mechanisms for bail-in and bailout. Therefore, for this court the question was whether the statute as a whole, not just the section 4(b) formula, ensures that jurisdictions subject to section 5 are those in which unconstitutional voting discrimination is concentrated.

After reviewing in detail the congressional record on this issue and the total structure of the statute, including bailout and bail-in, the D.C. Circuit concluded that the statute “continues to single out the jurisdictions in which discrimination is concentrated.”

Dissenting Opinion

The dissenting opinion of Judge Williams concluded that the formula in section 4(b) of the statute was unconstitutional because the significant burdens it imposed on “covered jurisdictions” were not “congruent and proportional” to the problems of racially discriminatory voting laws that it targeted.

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[1] Prior posts examined the original Voting Rights Act of 1965, the Voting Rights Act of 2006 and the prior U.S. Supreme Court case regarding the latter statute.

Tags:David S. Tatel, Northwest Austin Municipal Utility District No. One v. Holder, Shelby County Alabama v. Holder, Stephen F. Williams, Thomas B. Griffith, U.S. Constitution Fifteenth Amendment, U.S. Court of Appeals for the D.C. Circuit, U.S. Supreme Court, Voting Rights Act of 1965, Voting Rights Act of 2006
Posted in History, Law, Politics | 2 Comments »

Prior U.S. Supreme Court Case Regarding the Voting Rights Act of 2006

March 8, 2013

On February 27, 2013, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of an important provision of the Voting Rights Act of 2006. [1] That provision imposes a requirement in section 5 for certain states to obtain pre-clearance from a special federal court or the U.S. Department of Justice for any changes in their election laws.

Prior posts have reviewed the original Voting Rights Act of 1965 and its extension in the Voting Rights Act of 2006. Before we discuss the recent Supreme court argument, we now look at another of its predicates: the previous Supreme Court decision regarding the Voting Rights Act of 2006: Northwest Austin Municipal Utility District No. One v. Holder. [2]

Opinion of the Court

Chief Justice John Roberts

The opinion for the Court was written by Chief Justice John Roberts, who was joined by seven Associate Justices (Stevens, Scalia, Kennedy, Souter, Ginsburg, Breyer and Alito).

The Roberts opinion interpreted the statute as reauthorized in 2006 to allow any covered jurisdiction, including the utility district bringing suit in that case, to seek bailout, thus avoiding the need to resolve whether the 25-year reauthorization in 2006 was constitutional.

As a result, the rest of the opinion’s extensive discussion of constitutional concerns over the 2006 statute technically are dicta, but the Supreme court’s dicta are obviously important for the lower federal courts and legal observers to see which way the winds are blowing.

The opinion paid at least verbal homage to the longstanding legal principles that “judging the constitutionality of an Act of Congress is ‘the gravest and most delicate duty that this Court is called on to perform’” and that “Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States.’” Moreover, Roberts emphasized that “the Fifteenth Amendment empowers ‘Congress,’ not the Court, to determine in the first instance what legislation is needed to enforce it.”

Roberts acknowledged that in 1965 when the original statute was passed, “unconstitutional discrimination was rampant and the ‘registration of voting-age whites ran roughly 50 percentage points or more ahead’ of black registration in many covered States” and that the Court had upheld the constitutionality of the original statute and its extensions through 2006.

However, Roberts left the distinct impression that at least he thought that since 2006 the work of abolishing racial discrimination in voting was over.

He said, “Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Moreover, “many of the first generation barriers to minority voter registration and voter turnout that were in place prior to the [original Voting Rights Act] have been eliminated.” The “registration gap between white and black voters is in single digits in the covered States; in some of those States, blacks now register and vote at higher rates than whites. Similar dramatic improvements have occurred for other racial minorities.”

“These improvements are no doubt due,” the opinion stated, “in significant part to the [original] Voting Rights Act itself [as extended through 2006] , and stand as a monument to its success.”

Almost offhandedly the opinion conceded, “It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act.”

And the opinion did say that “Congress amassed a sizable record in support of its decision to extend the preclearance requirements, a record the District Court determined ‘document[ed] contemporary racial discrimination in covered states.’ The District Court also found that the record “demonstrat[ed] that section 5 prevents discriminatory voting changes’ by ‘quietly but effectively deterring discriminatory changes.’”

But Roberts did not refer to, quote or discuss the extensive congressional findings in the Voting Rights Act itself that fighting voter racial discrimination was not finished.

The Court’s opinion identified two “serious . . . questions” about section 5′s continued constitutionality, namely, whether the “current burdens” it imposes are “justified by current needs,” and whether its “disparate geographic coverage is sufficiently related to the problem that it targets.”

These burdens, said the opinion, were the “federal intrusion into sensitive areas of state and local policymaking.” Section 5, it continued, “goes beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law—however innocuous—until they have been precleared by federal authorities in Washington, D. C. The preclearance requirement applies broadly, and in particular to every political subdivision in a covered State, no matter how small.”

The second problem identified by Roberts stemmed from the statue’s differentiation “between the States, despite our historic tradition that all the States enjoy “equal sovereignty.” Such “distinctions can be justified in some cases. But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.”

Opinion of Justice Clarence Thomas

Associate Justice Clarence Thomas

Associate Justice Clarence Thomas filed a separate opinion in this case, concurring in the judgment in part and dissenting in part.

Thomas said, “the Court’s statutory decision does not provide appellant with full relief” and, therefore, he concludes, “it is inappropriate to apply the constitutional avoidance doctrine in this case. I would therefore decide the constitutional issue presented and hold that §5 exceeds Congress’ power to enforce the Fifteenth Amendment.” The latter conclusion was based upon his assertion that there was a “lack of current evidence of intentional discrimination with respect to voting.”

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[1] The 2006 statute’s correct title is the Fannie Lou Hamer, Rosa Parks, Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006.

[2] Another predicate to the recent Supreme court argument will be discussed in a future post: the 2012 decision of the U.S. Court of Appeals for the D.C. Circuit that is the subject of the recent argument in the Supreme Court (Shelby County, Alabama v. Holder).

Tags:John Roberts, Northwest Austin Municipal Utility District No. One v. Holder, Shelby County Alabama v. Holder, U.S. Congress, U.S. Constitution Fifteenth Amendment, U.S. Supreme Court, Voting Rights Act of 1965, Voting Rights Act of 2006
Posted in History, Law, Politics | 2 Comments »

The Voting Rights Act of 2006

March 6, 2013

On February 27, 2013, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of an important provision of the Voting Rights Act of 2006. [1] This provision extended for 25 years a requirement in section 5 for certain states to obtain pre-clearance from a special federal court or the U.S. Department of Justice for any changes in their election laws.[2]

Before we discuss that argument, we will look at the Voting Rights Act of 2006.[3]

Its stated Purpose in Section 2(a) was “to ensure that the right of all citizens to vote, including the right to register to vote and cast meaningful votes, is preserved and protected as guaranteed by the Constitution.” The last reference, of course, included the Constitution’s Fifteenth Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

The 2006 statute did that by reauthorizing and extending for 25 years (until 2032) the following essential provisions of the original Voting Rights Act of 1965:

Section 2 forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” Applicable nationwide, section 2 enables individuals to bring suit against any state or jurisdiction to challenge voting practices that have a discriminatory purpose or result.
Section 5 (the focus of the current case before the Supreme Court) only applies to certain “covered jurisdictions” and “prescribes remedies . . . which go into effect without any need for prior adjudication.” Section 5 suspends “all changes in state election procedure until they [are] submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the [U.S.] Attorney General.”
Such approval or preclearance may be granted only if the jurisdiction demonstrates that the proposed change to its voting law neither “has the purpose nor . . . the effect of denying or abridging the right to vote on account of race or color.”
The “covered jurisdictions” subject to section 5 were identified in section 4(b), as subsequently modified, as any state or political subdivision of a state that “maintained a voting test or device as of November 1, 1972, and had less than 50% voter registration or turnout in the 1972 presidential election.”
Upon satisfying certain criteria a state or other jurisdiction could obtain “bailout” from section 5 or be subject to “bail-in” to such coverage.

The Voting Rights Act of 2006 was overwhelmingly adopted by the Congress: 98 to 0 in the Senate and 390 to 33 (with 9 not voting) in the House. In doing so, the Congress acted on the basis of a legislative record over 15,000 pages in length, including statistics, findings by courts and the Justice Department, and first-hand accounts of discrimination.[4]

Given this extensive record before Congress, Section 2(b) of the Voting Rights Act of 2006 contains the following extensive congressional Findings:

“(1) Significant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices. This progress is the direct result of the Voting Rights Act of 1965.

“(2) However, vestiges of discrimination in voting continue to exist as demonstrated by second generation barriers constructed to prevent minority voters from fully participating in the electoral process.

“(3) The continued evidence of racially polarized voting in each of the jurisdictions covered by the expiring provisions of the Voting Rights Act of 1965 demonstrates that racial and language minorities remain politically vulnerable, warranting the continued protection of the Voting Rights Act of 1965.

“(4) Evidence of continued discrimination includes—

“(A) the hundreds of objections interposed, requests for more information submitted followed by voting changes withdrawn from consideration by jurisdictions covered by the Voting Rights Act of 1965, and section 5 enforcement actions undertaken by the Department of Justice in covered jurisdictions since 1982 that prevented election practices,such as annexation, at-large voting, and the use of multimember districts, from being enacted to dilute minority voting strength;

“ (B) the number of requests for declaratory judgments denied by the United States District Court for the District of Columbia;

“(C) the continued filing of section 2 cases that originated in covered jurisdictions; and

“(D) the litigation pursued by the Department of Justice since 1982 to enforce sections 4(e), 4(f)(4), and 203 of such Act to ensure that all language minority citizens have full access to the political process.

“(5) The evidence clearly shows the continued need for Federal oversight in jurisdictions covered by the Voting Rights Act of 1965 since 1982, as demonstrated in the counties certified by the Attorney General for Federal examiner and observer coverage and the tens of thousands of Federal observers that have been dispatched to observe elections in covered jurisdictions.

“(6) The effectiveness of the Voting Rights Act of 1965 has been significantly weakened by the United States Supreme Court decisions in Reno v. Bossier Parish II and Georgia v. Ashcroft, which have misconstrued Congress’ original intent in enacting the Voting Rights Act of 1965 and narrowed the protections afforded by section 5 of such Act.

“(7) Despite the progress made by minorities under the Voting Rights Act of 1965, the evidence before Congress reveals that 40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.

“(8) Present day discrimination experienced by racial and language minority voters is contained in evidence, including the objections interposed by the Department of Justice in covered jurisdictions; the section 2 litigation filed to prevent dilutive techniques from adversely affecting minority voters; the enforcement actions filed to protect language minorities; and the tens of thousands of Federal observers dispatched to monitor polls in jurisdictions covered by the Voting Rights Act of 1965.

“(9) The record compiled by Congress demonstrates that, without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.”

On July 27, 2006, President George W. Bush signed this statute in a ceremony on the South Lawn of the White House (as shown in the photo to the left). Attending the event were Attorney General Alberto Gonzalez and other members of the Cabinet, the leaders of the United States Senate and House of Representatives, representatives of the Fannie Lou Hamer family, representatives of the Rosa and Raymond Parks Institute, members of the Martin Luther King, Jr. family and civil rights leaders, including Dr. Dorothy Height, Julian Bond (the Chairman of the NAACP), Bruce Gordon, Reverend Lowery, Marc Morial, Juanita Abernathy, Jesse Jackson, Al Sharpton and Dr. Benjamin and Frances Hooks.

On that occasion President Bush said, “By reauthorizing this act, Congress has reaffirmed its belief that all men are created equal; its belief that the new founding started by the signing of the [Voting Rights Act of 1965] . . . by President Johnson is worthy of our great nation to continue.”

That original statute, President Bush continued, “rose from the courage shown on a Selma bridge one Sunday afternoon in March of 1965 . . . [when] African Americans . . . marched across the Edmund Pettus Bridge in a protest intended to highlight the unfair practices that kept them off the voter rolls.The brutal response [to the marchers that day] . . . stung the conscience of a slumbering America. . . . One week after Selma, President Lyndon Johnson took to the airwaves to announce that he planned to submit legislation that would bring African Americans into the civic life of our nation. Five months after Selma, he signed the Voting Rights Act [of 1965] into law in the Rotunda of our nation’s capitol.”

President Bush recognized that in the “four decades since the Voting Rights Act was first passed, we’ve made progress toward equality, yet the work for a more perfect union is never ending.” By signing the Voting rights Act of 2006, President Bush concluded, we “renew a bill that helped bring a community on the margins into the life of American democracy. My administration will vigorously enforce the provisions of this law, and we will defend it in court.”

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[1] The 2006 statute’s correct title is the Fannie Lou Hamer, Rosa Parks, Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. 109-246, 120 Stat. 577 (2006).

[2] The states now subject to section 5 are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.

[3] A prior post discussed the original Voting Rights Act of 1965. Other posts will discuss two other predicates for the recent Supreme Court argument: the previous Supreme Court case regarding the 2006 statute (Northwest Austin Municipal Utility District No. One v. Holder) and the 2012 decision of the U.S. Court of Appeals for the D.C. Circuit that is the subject of the that argument (Shelby County, Alabama v. Holder).

[4] The 2006 Act also overruled two Supreme Court decisions interpreting the statute.

Tags:Al Sharpton, Alberto Gonzalez, Bruce Gordon, Dr. Benjamin Hooks, Dr. Dorothy Height, Edmund Pettus Bridge, Frances Hooks, George W. Bush, Jesse Jackson, Juanita Abernathy, Julian Bond (the Chairman of the NAACP), Lyndon B. Johnson, Marc Morial, Northwest Austin Municipal Utility District No. One v. Holder, Reverend Lowery, Selma Alabama, Shelby County Alabama v. Holder, U.S. Constitution Fifteenth Amendment, U.S. Supreme Court, Voting Rights Act of 1965, Voting Rights Act of 2006
Posted in History, Law, Politics | 2 Comments »

The Voting Rights Act of 1965

March 4, 2013

On February 27, 2013, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of an important provision of the Voting Rights Act of 2006.[1] This provision extended for 25 years a requirement in section 5 of the original Voting Rights Act of 1965 for certain states to obtain pre-clearance from a special federal court or the U.S. Attorney General for any changes in their election laws.[2]

Before we review that oral argument, we will examine in separate posts four predicates for that argument.[3] This post will discuss the first of these predicates–the relevant substance of the original Voting Rights Act of 1965.[4]

This 1965 statute (as well as the 2006 statute) was enacted pursuant to Section 2 of the Fifteenth Amendment to the U.S. Constitution that provides, “The Congress shall have power to enforce this article by appropriate legislation.” That amendment, which was ratified after the Civil War in 1870, states in Section 1: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude”

The Voting Rights Act of 1965 is seen as a major accomplishment of the Congress and President Lyndon B. Johnson. (The photo to the left shows President Johnson signing the statute; immediately behind him is Rev. Dr. Martin Luther King, Jr.) It was adopted as a result of congressional recognition that case-by-case litigation over racial voting discrimination was slow, expensive and ineffective and that a stature was needed “to cure the problem of voting discrimination” and “rid the country of racial discrimination in voting,” (South Carolina v. Katzenbach, 383 U.S. 301, 313, 315 (1966).)

The 1965 Act combined a permanent, case-by-case enforcement mechanism with a set of more stringent, temporary remedies designed to target those areas of the country where racial discrimination in voting was concentrated.

Section 2, the Act’s main permanent provision, forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” (42 U.S.C. § 1973(a).) Applicable nationwide, section 2 enables individuals to bring suit against any state or jurisdiction to challenge voting practices that have a discriminatory purpose or result. (See Thornburg v. Gingles, 478 U.S. 30, 35 (1986).)

Section 5 of the statute and the focus of the current case before the Supreme Court only applies to certain “covered jurisdictions” and “prescribes remedies . . . which go into effect without any need for prior adjudication.” (Katzenbach, 383 U.S. at 327-28.) Section 5 suspends “all changes in state election procedure until they [are] submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the [U.S.] Attorney General.” (Northwest Austin Municipal Utility District No. One v. Holder, 129 S. Ct. 2504, 2509 (2009),

A “covered jurisdiction” seeking to change its voting laws or procedures must either submit the change to the Attorney General or seek preclearance directly from the three-judge court. If such a jurisdiction opts for the former and if the Attorney General lodges no objection within 60 days, the proposed law can take effect.(42 U.S.C. § 1973c(a).) But if the Attorney General lodges an objection, the submitting jurisdiction may either request reconsideration, (28 C.F.R. § 51.45(a)), or seek a de novo determination from the three-judge district court. (42 U.S.C. § 1973c(a).)

Either way, preclearance may be granted only if the jurisdiction demonstrates that the proposed change to its voting law neither “has the purpose nor . . . the effect of denying or abridging the right to vote on account of race or color.” (Id.) This provision “preempted the most powerful tools of black disenfranchisement ,” resulting in “undeniable” improvements in the protection of minority voting rights. (Northwest Austin, 129 S. Ct. at 2509. 2511.)

The “covered jurisdictions” subject to section 5 were identified in section 4(b), as originally enacted, as any state or political subdivision of a state that “maintained a voting test or device as of November 1, 1964, and had less than 50% voter registration or turnout in the 1964 presidential election.” (Voting Rights Act of 1965, Pub. L. No. 89-110, § 4(b), 79 Stat. 437, 438.) Congress chose these criteria carefully because it knew precisely which states it sought to cover, those six southern states with the worst historical records of racial discrimination in voting: Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia.

In so doing, Congress recognized that these criteria for determining “covered jurisdictions” might have to be adjusted over time.

First, as it existed in 1965, section 4(a) allowed jurisdictions to earn exemption from coverage by obtaining from a three-judge district court a declaratory judgment that in the previous five years (i.e., before they became subject to the Act) they had used no test or device “for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” (1965 Act § 4(a).) This so-called “bailout” provision, as subsequently amended, addresses potential over-inclusiveness of section 5, allowing jurisdictions with clean records to terminate their section 5 pre-clearance obligations.
Second, section 3(c) authorizes federal courts to require pre-clearance by any non-covered state or political subdivision found to have violated the Fourteenth or Fifteenth Amendments. (42 U.S.C. § 1973a(c).) Specifically, courts presiding over voting discrimination suits may “retain jurisdiction for such period as [they] may deem appropriate” and order that during that time no voting change take effect unless either approved by the court or unopposed by the Attorney General. (Id.) This judicial “bail-in” provision addresses the formula’s potential under-inclusiveness.

In South Carolina v. Katzenbach, the Supreme Court sustained the constitutionality of section 5, holding that its provisions “are a valid means for carrying out the commands of the Fifteenth Amendment.” As originally enacted in 1965, section 5 was to remain in effect for five years. Congress subsequently renewed these temporary provisions, including sections 4(b) and 5, in 1970 (for five years), in 1975 (for seven years), and in 1982 (for twenty-five years).[5] The Supreme Court also sustained the constitutionality of each extension through 2007. (Georgia v. United States, 411 U.S. 526 (1973); City of Rome v. United States, 446 U.S. 156 (1980); Lopez v. Monterey County, 525 U.S. 266 (1999).)

——————————

[1] The 2006 statute’s correct title is the Fannie Lou Hamer, Rosa Parks, Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006.

[2] The states now subject to section 5 are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.

[3] The other predicates to be examined in separate posts are the Voting Rights Act of 2006; the 2009 Supreme Court decision regarding the 2006 statute (Northwest Austin Municipal Utility District No. One v. Holder); and the 2012 decision of the U.S. Court of Appeals for the D.C. Circuit, 2 to 1, upholding the constitutionality of the 2006 statute in the case now pending in the Supreme Court. (Shelby County, Alabama v. Holder.)

[5] The 1982 extension also made the provision for “bailout” from section 5 restrictions substantially more permissive.

Tags:Fifteenth Amendment to U.S. Constitution, President Lyndon B. Johnson, Rev. Dr. Martin Luther King Jr., U.S. Congress, U.S. Constitution, U.S. Supreme Court, Voting Rights Act of 1965, Voting Rights Act of 2006
Posted in History, Law, Politics | 4 Comments »

Update on Changing the U.S. Senate Filibuster Rule

December 18, 2012

Prior posts have discussed the internal Senate movement for reforming its filibuster rule that now requires 60 of the 100 Senators to agree to vote on the merits of most proposed legislation and confirmation of presidential appointments. Other posts have covered the pending federal lawsuit challenging the constitutionality of that rule.

There have been further developments on both fronts.

Internal Senate Efforts

Jeff Merkley, Democratic Senator from the State of Washington and the leader of the filibuster reform effort, is building a simple majority (at least 51 votes) for reforming the filibuster rule on January 3, 2013, when the new session of Congress opens. His basic proposal is the so-called “talking filibuster” with these major points according to his December 12, 2012 memo to fellow Senators:

If at least 41 Senators voted for additional debate on a legislative proposal, there would be additional debate.
Such additional debate would require at least one Senator to be on the floor presenting arguments on the proposal.
If there were no Senator present to speak to the proposal, the presiding officer would rule that extended debate was over, and the Majority Leader would schedule a simple-majority cloture vote to end all debate after an additional 30 hours of debate,

Approving such a change by a simple majority vote has been called “the nuclear option” or “the constitutional option.”

In response to a simple majority coalescing to support such a reform, some of the leading Senate Republicans (John McCain, Lamar Alexander, Jon Kyle and Lindsay Graham) are trying to convince Democratic Senators (Mark Pryor, Carl Levin and Chuck Schumer) who are reluctant to use the “nuclear” or “constitutional” option to embrace a more limited reform that could be supported by 67 Senators (the number required by the existing Senate rules). The exact nature of such a more limited reform has not been disclosed. Nor has the likelihood of enlisting 67 Senators to support such a more limited reform been assessed.

Moreover, many observers are skeptical about the ability of the “talking filibuster” proposal put forward on December 12th by Senator Markley to stop the dysfunctionality of the Senate. They point out that the proposal does nothing to prevent “holds” by individual Senators that prevent Senate action or to prevent the offering of amendments during a debate. Nor does this proposal ban filibusters on motions to proceed with consideration of a bill or nomination or require any Senator’s remarks to be germane to the matter at hand. Moreover, who doubts the willingness of the Republican Senators to talk and talk?

As we come closer to January 3rd, a failure to resolve the “fiscal cliff” stalemate may preempt attention to filibuster reform that day and politically eliminate the possibility of changing the filibuster rule by a simple majority.

Litigation over the Filibuster Rule

In May 2012 Common Cause, four members of the U.S. House of Representatives and three private citizens sued certain Senate officers. The complaint alleged that the filibuster rule was unconstitutional, and the defendants moved to dismiss the complaint on various grounds.

On December 5th the U.S. District Court for the District of Columbia issued an order asking that at the upcoming hearing on the dismissal motion the parties should be prepared to discuss all arguments set forth in the briefs and in particular to address Plaintiffs’ vote nullification theory of standing for the plaintiffs who are members of the House of Representatives.[1] The following are the parties’ arguments on that theory from their previously filed briefs:

According to the plaintiffs, the House member plaintiffs were in the majority when the House passed the Development, Relief and Education for Alien Minors Act (the DREAM Act) on December 8, 2010, only to have it die in the Senate when it subsequently failed to invoke cloture of the debate 55-41. So too the House member plaintiffs were in the majority when the House passed The Democracy Is Strengthened by Casting Light On Spending in Elections Act (the DISCLOSE Act), 219 to 206, on June 24, 2010 only to have it die in the Senate when a vote for cloture of the debate failed, 59-39 on September 23, 2010. As a result, it is contended, these plaintiffs’ legislative votes were nullified by the Senate’s filibuster rule, and they have standing to sue under Raines v. Byrd, 521 U.S. 811 (1997); Coleman v. Miller, 307 U.S. 433, 438 (1939); and D.C. Circuit cases.
The defendants, on the other hand, assert that the House members lack standing under Raines because they have not been individually deprived of something they are personally entitled to and because their votes would not have been sufficient by themselves to defeat or enact a bill if they had not been nullified.

The December 10th two-hour hearing itself apparently focused on the issue of whether the plaintiffs had standing to bring the lawsuit. Judge Emmit G. Sullivan said the case raised difficult issues and at the end of the hearing asked defense counsel to submit a short brief on certain questions. Later that same day, however, the court limited the request for an additional brief to whether the court could address the political question doctrine without reaching the issue of standing.

The defendants’ supplemental brief of December 11th cited precedents from the U.S. Supreme Court and the U.S. Court of Appeals for the District of Columbia Circuit holding that a federal court may address the issue of lack of justiciability under the political question doctrine without first addressing the issue of the plaintiffs’ standing to bring the lawsuit.

The next day the plaintiffs filed their supplemental brief agreeing with that legal proposition. However, they argued, the case was justiciable on the grounds of U.S. Supreme Court cases holding that rules of the Senate or the House are subject to judicial review. In short, said the plaintiffs, there was no “political question” foreclosing the courts from considering this case.

We now await the court’s ruling on the dismissal motion.

[1] Perhaps related to the standing of the Congressmen in the filibuster case is the U.S. Supreme Court’s recent decision to review a case challenging the constitutionality of the Defense of Marriage Act in which a so-called “Bipartisan Legal Advisory Group” of Congressmen intervened to defend that statute, and the Supreme Court’s order for the parties in that case to address whether or not this Group has Article III [constitutional] standing in this case.”

Tags:U.S. Constitution, U.S. Senate, U.S. Supreme Court, Lamar Alexander, Carl Levin, filibuster, U.S. District Court for District of Columbia, Jeff Merkley, DREAM Act, DISCLOSE Act, John McCain, Jon Kyle, Lindsay Graham, Mark Pryor, Check Schumer, fiscal cliff, Emmit G. Sullivan, Defense of Marriage Act
Posted in Politics, Law, History | 2 Comments »

Personal Reflections on the U.S.-Dakota War of 1862

December 10, 2012

When I moved to Minnesota at age 30 in 1970, I had no knowledge of the U.S.-Dakota War of 1862 or the execution by hanging of some of the Indian leaders of that war. I had not grown up in the State and had not been exposed to its history, and although I had majored in history in college and had studied U.S. history, the War was not covered.

By the time I went to church on October 7, 2012, I was aware that during the U.S. Civil War there had been a short war with the Indians in Minnesota and that subsequently some of the Indian leaders were hanged in Mankato, Minnesota. That was the sum total of my knowledge of these events.

Westminster Presbyterian Church

The moving worship service that day at Minneapolis’ Westminster Presbyterian Church was devoted to remembering that War and its aftermath, especially its impact on the Dakota people. The beautiful Indian music and the sermons by Westminster’s Senior Minister, Rev. Dr. Timothy Hart-Andersen, and by Jim Bear Jacobs made me realize that the War and the executions of the Indian leaders were important events that had lasting effects to this day at least upon the Dakota people and Native Americans more generally.

I immediately wanted to share this moving and beautiful worship service with others by writing a blog post about it. I soon realized that there was so much to say about the service itself that I would have to break it up into three posts. I also realized that I needed to know more about the War and about the commemoration this year of the 150^th anniversary of the War. This lead to my researching and writing separate posts on these subjects and another about the contemporaneous reaction to the War by my second great-grandfather, Rev. Charles E. Brown.

Minnesota Governor Alexander Ramsey

General John Pope

The additional research turned up the September 1862 exhortation by Minnesota Governor Alexander Ramsey for “extermination” of the Dakota Indians. The same disgusting clamor also was made that year by U.S. General John Pope, who was in charge of ending the uprising. Pope said his purpose was “to utterly exterminate the Sioux [Dakota]. They are to be treated as maniacs and wild beasts.” The next year the federal government offered a bounty of $25 per scalp for every Dakota Indian found in Minnesota.

The evident anger and fear of the white settlers perhaps are akin to that experienced by the American people after the attacks of September 11, 2001. Nevertheless, as noted in a prior post, these public incitements, if made today, would constitute one form of the crime of genocide under international law.

The impact of the War on Native Americans is only one of the many ways in which what has become the dominant culture of the U.S. has denigrated Native Americans. The result is high incidences of public school drop-outs, alcoholism and suicide among Native Americans. All of this reminded me of the testimony in the Minneapolis school desegregation case by a Native American educator who said he was a “well-balanced schizophrenic,” i.e., he had one foot in Native culture and the other in the dominant culture.

Louise Erdrich

Another insight into Native culture was provided by my recent reading of Louise Erdrich’s The Round House, which was awarded the 2012 National Book Prize for fiction. One of the central events in the novel is the violent rape of a Native woman by a white man on an Indian reservation in North Dakota in 1988, and the resulting legal problem as to whether the federal or Native American courts had jurisdiction to investigate and prosecute the crime.

In an Afterword, Erdrich, who lives in Minneapolis not far from my home, cites a 2009 Amnesty International report that points out that 1 in 3 Native women will be raped in her lifetime, that 86% of such rapes and sexual assaults are by non-Native men and that few are ever prosecuted.

The novel also discusses something I never learned in law school or in 35 years of practicing law. In Johnson v. McIntosh, 21 U.S. 543 (1823), the U.S. Supreme Court, in an opinion by Chief Justice John Marshall, stated that radical title to U.S. land was obtained by European powers upon their “discovery” of the land and that the U.S. government inherited such title upon the adoption of the Declaration of Independence in 1776. In this context, “tribes of Indians inhabiting this country were fierce savages.”

Two other U.S. Supreme Court cases were also mentioned in the novel as bearing on the jurisdictional issue presented by the fictional rape. In Worcester v. Georgia, 31 U.S. 515 (1832), Chief Justice John Marshall for the Court decided that the federal government had the sole right of dealing with the Indian nations in North America. Nearly 1.5 centuries later the Supreme Court in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), determined that Indian tribal courts did not have inherent criminal jurisdiction to try and to punish non-Indians and hence may not assume such jurisdiction unless specifically authorized to do so by Congress.

This research, thinking and writing prompted further reflection on the subject of memory and the October 7^th Scripture—Numbers 15: 37-41:

“The Lord said to Moses: Speak to the Israelites, and tell them to make fringes on the corners of their garments throughout their generations and to put a blue cord on the fringe at each corner. You have the fringe so that, when you see it, you will remember all the commandments of the Lord and do them, and not follow the lust of your own heart and your own eyes. So you shall remember and do all my commandments, and you shall be holy to your God. I am the Lord your God, who brought you out of the land of Egypt, to be your God: I am the Lord your God.”

God understands that we humans are forgetful and that individuals and especially groups of people need reminders of important things. Indeed, constant, physical reminders like fringes on the corners of your garments are useful because of our forgetfulness and our sinfulness. Similarly many Christians wear necklaces and pins with crosses for the same reason and to proclaim that they are Christians.

Such practices and the re-telling of important stories also help educate the omnipresent newcomers to the faith or the history. They help to keep the faith or history alive. That certainly happened at the October 7^th worship service and at the Minnesota History Center’s exhibit about the War and the other events to commemorate the 150^th anniversary of the War.

For the same reasons the various ways in which Salvadoran Archbishop Oscar Romero is remembered are important. So too the Holocaust museums in Washington, D.C. and around the world help us remember the horrors of the Nazi persecution of the Jews.

At the same time, my reaction to the October 7^th Westminster worship service suggests another phenomenon. Memory can be asymmetrical. Most white Anglo-Saxons like myself have or had no memory or understanding of the U.S.-Dakota War. For the Dakota people and Native Americans generally, on the other hand, the War and the executions of the Dakota 38 is an ever-present, painful memory. Thus, this worship service and the events commemorating the War are especially important ways of trying to break through the ignorance of the dominant culture.[1]

My reactions to this worship service also help me understand that the third-part of the Westminster worship service—Responding to the Word—does not end when you leave the sanctuary after the service. It should continue in how you live your life and how you continue to think about and probe the meaning of the Word that day. My contemplation of this worship service and the Word will continue beyond this posting.

[1] A recent article discussed this asymmetrical phenomenon in the context of an individual’s new love for another person. It said that human beings are prone to “hedonic adaptation, a measurable and innate capacity to become habituated or inured to most life changes” and that “[h]edonic adaptation is most likely when positive experiences are involved . . . . We’re inclined–psychologically and physiologically–to take positive experiences for granted.”

Tags:"The Round House", Alexander Ramsey, Amnesty International, Bible, Christianity, General John Pope, Genocide, Holocaust, Jim Bear Jacobs, Johnson v. McIntosh, Judaism, Louise Erdrich, Numbers 15:37-41, Oliphant v. Suquamish Indian Tribe, Oscar Romero, Rev. Charles E. Brown, Rev. Dr. Timothy Hart-Andersen, school desegregation, U.S. Supreme Court, U.S.-Dakota War 1862, Westminster Presbyterian Church, Worcester v. Georgia
Posted in History, Law, Personal, Politics, Religion | 4 Comments »

Improving U.S. Voting Procedures

November 22, 2012

The New York Times has called the U.S. voting system “broken” and made a number of suggestions for improving the system.

First on its agenda is making it easier to vote.

Congress should establish a nonpartisan federal elections board “to maintain a national registration database, mandate the choice of voting machines and set standards for counting provisional ballots” Another desirable federal law would “require a clear early-voting period, removing the issue as a political football in states like Florida and Ohio, and standards for absentee voting.”

Yet another federal legislative proposal would “give grants to states that make registration easy, including allowing same-day registration; allow early voting; require no excuses for voting absentee; properly train poll workers; and provide sufficient polling places”.

States on their own could follow the lead of 17 states that already send electronic registration data from motor vehicle departments to election agencies, and of 10 states that allow people to register online.

Second on its agenda is removing barriers to voting.

In this year’s election Republicans in some states attempted to keep Democratic-leaning groups from voting, through methods like voter ID requirements. Republicans should abandon “this misguided and offensive effort.” Legislative action may be necessary to ban such measures.

Third on its agenda is diluting the power of money.

Ultimately this would require a constitutional amendment to countermand the U.S. Supreme Court’s Citizens United decision that the Constitution´s First Amendment Free Speech clause protects corporations’ monetary expenditures in political campaigns.

In the meantime legislation should be adopted to require disclosure of the corporate sources of such financial contributions and eliminate secret contributions. Another proposed law would offer federal money to match individuals´political contributions.

Conclusion

I concur in these recommendations as discussed in a prior posts about maximizing U.S. voting, the excesses of false allegations of voter fraud and the urgent need for reforming the election system.

Tags:Citizens United, U.S. Constitution, U.S. elections, U.S. Supreme Court
Posted in History, Law, Personal, Politics | Leave a Comment »

Re-argument of Important Human Rights Case in U.S. Supreme Court

October 4, 2012

On October 1, 2012, the U.S. Supreme Court heard re-arguments in an important human rights case, Kiobel v. Royal Dutch Petroleum Co. (Sup. Ct. No. 10-1491).[1]

This case involves claims by a putative class of Nigerians against Netherlands/United Kingdom corporations (Royal Dutch Petroleum Co. and Shell Transport and Trading Company PLC (Shell)) for allegedly assisting in certain human rights violations in Nigeria in 1993-1995.

The claims in this case were asserted under the Alien Tort Statute (ATS) that provides that U.S. federal district courts have “jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”[2]

The order for rehearing asked the parties to address the following issue:

Whether and under what circumstances the [ATS] . . . allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

This issue was addressed in the Petitioners’ Supplemental Opening Brief; the Supplemental Brief for Respondents; the Supplemental Reply Brief for Petitioners; 31 amici curiae briefs supporting the petitioners; 14 amici curiae briefs supporting respondents; and 7 amici curiae briefs supporting neither party. One of those not supporting either party was the U.S. Government.[3]

During the hour-long hearing the Court heard from lawyers representing the plaintiffs-petitioners, the defendants-respondents and the U.S. Government. They all were actively questioned by eight of the Justices with only Justice Thomas not participating. Those eight Justices all seemed to be searching for a way to limit the reach of the ATS, especially when such cases adversely affected U.S. foreign policy.[4]

I will not attempt to predict how the Court will resolve the case. Instead I will set forth how I think the Court should do so.

First, Corporations are not immune from lawsuits under the ATS.

Second, As the Court held in Sosa v. Alverez-Machain in 2004, the ATS is a jurisdictional statute.[5] The Court’s presumption against extraterritorial application of U.S. statutes (unless Congress specifically states otherwise), applies to statutes that impose substantive U.S. regulatory measures, not to jurisdictional statutes.[6] Therefore, there is no issue of extraterritoriality with respect to the ATS.

Third, there are various existing legal doctrines and jurisprudence that federal courts have used and should use, in appropriate cases, to dismiss ATS cases at the outset upon a motion by the defendant asserting such affirmative defenses. They include the following:

The court lacks personal jurisdiction over the defendant because it does not have sufficient contacts with the forum to make litigation consistent with U.S. notions of fair play and substantial justice as guaranteed by the Fifth and Fourteenth Amendments’ due process clauses.[7]

The case is not brought within 10 years after the acts in question under the statute of limitations borrowed from the Torture Victims Protection Act unless under established principles of equity the statute of limitations should be tolled or stayed.[8]

The plaintiff has failed to exhaust remedies in the country where the acts occurred unless those remedies are unavailable or futile.[9]

A foreign court is the more appropriate and convenient forum than an U.S. courts under the established principles of forum non conveniens.[10]

An individual defendant is entitled to official immunity according to the U.S. Department of State.[11]

A non-individual defendant is entitled to immunity under the Foreign Sovereign Immunities Act.[12]

The “act of state” doctrine protects the conduct in question.[13]

The case presents a “political question” that is inappropriate for judicial resolution.[14]

The case should be rejected because of concerns about its impact on U.S. foreign relations or because of “international comity.”[15]

The case presents an issue of U.S. state secrets that prevent adjudication of the case.[16]

Fourth, the affirmative defenses just mentioned were not raised by the defendants-respondents in their appeal to the U.S. Court of Appeals for the Second Circuit and, therefore, are not before the Supreme Court for decision.

Fifth, the Second Circuit is reversed, and the case is remanded to the District Court for further proceedings in accordance with this opinion.

Within the next four months the Court should issue its opinion(s) in this case.

[1] Prior posts reviewed the procedural background of this case, the Second Circuit decision rejecting such liability, the initial Supreme Court argument in this case regarding whether corporations could be held liable under the ATS, and the Supreme Court’s order for rehearing in this case.

[2] Earlier posts have reviewed the history of the ATS for the periods 1789-1979, 1980 (Filartigacase), 1980-2004, 2004 (Sosa case) and 2004-present .

[3] All of the briefs in Kiobel are available on the website of the Center for Justice and Accountability, a human rights organization, along with its summary of 18 of the 52 amici curiae briefs.

[4] The transcript of that hearing is available online. Reports about the hearing are available in the New York Times, the Washington Post, the Wall Street Journal and the widely followed U.S. Supreme Court blog. In an editorial the New York Times supported sustaining the ATS in this case; the Wall Street Journal did not.

[5] Sosa v. Alvarez-Machain, 542 U.S.692, 713 (2004).

[6] Morrison v. Australia Nat’l Bank, 130 S. Ct. 2869, 2877 (2010).

[7] In one of the most recent Supreme Court cases on personal jurisdiction in another context, the Court unanimously determined, in an opinion by Justice Ginsburg, that the South Carolina courts did not have personal jurisdiction over three corporations that were organized and operating in France, Luxembourg and Turkey, but were not registered to do business in South Carolina, had no place of business, employees or bank accounts in the state, did not design, manufacture or advertise its products in the state and did not solicit business in the state or sell or ship products to customers in the state. (Goodyear Dunlop Tires Operations, S.A. v. Brown, No. 10-76 (Sup. Ct. June 27, 2011). This defense has ended ATS cases for some foreign corporate defendants. (E.g., Doe v. Unocal Corp., 248 F.3d 915, 930-31 (9th Cir. 2001) (French corporation).) However, Shell and the other defendants in the Kiobel case did not raise this defense and thereby waived it under Fed. R. Civ. Pro. 12 (h)(1); another defendant (a Nigerian subsidiary) was dismissed from this case on this ground.

[8] E.g., Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 462 (D.N.J. 1999); Doe v. Saravia, 348 F. Supp. 2d 1112, 1146-48 (E.D.. Cal. 2005)(10-year period tolled or stayed because plaintiff could not have obtained justice due to legitimate fear of being killed for making a claim).

[9] This defense was suggested by the Supreme Court in Sosa, 542 U.S. at 733 n.21, and the lower courts are split as to whether it is appropriate in ATS cases. (E.g., Lizarbe v. Rondon, 642 F. Supp. 2d 473 (D. Md. 2009)(civil remedy in Peru inadequate because it is contingent on conclusion of criminal charges that can take years and because civil damages are ineffective).)

[10] Here are two examples of dismissal of ATS cases on the forum non conveniens ground. (Aldana v. Del Monte Fresh Produce N.A., 578 F.3d 1283 (11th Cir. 2009), cert.denied, 549 U.S. 1032 (2010) (litigation in Guatemala, but with the proviso that the motion would be reconsidered if plaintiffs had to return to Guatemala where they feared for their safety); Turedi v. Coca-Cola Co., 343 Fed. Appx. 623 (2d Cir. 2009) (litigation in Turkey).) But such a dismissal was rejected in Licea v. Curacao Drydock Co., 537 F. Supp. 2d 1270, 1274 (S.D. Fla. 2008) (Cuban plaintiffs would be in danger if forced to litigate in Curaco where they had been subjected to slavery-like conditions). In Kiobel, Shell did not assert the forum non conveniens defense and, therefore, waived it. Shell did do so in a parallel case, but the court rejected the defense. (Wiwa v. Royal Dutch Pet. Co., 226 F.3d 88, 108 (2d Cir. 2000), cert. denied, 532 U.S. 941 (2001).)

[11] For example, the issue of official immunity for former government officials of Somalia and Mexico has been examined in prior posts.

[12] A prior post looked at some of the basic provisions of the Foreign Sovereign Immunities Act while another post discussed the Supreme Court case that decided that his statute did not protect former foreign government officials.

[13] This defense was suggested by the Supreme Court in Sosa, 542 U.S. at 733 n.21, and it has been used in ATS cases. E.g., Doe v. Israel, 400 F. Supp. 2d 86, 114 (D.D.C. 2005) (acts of Israeli government).

[14] This defense was suggested by the Supreme Court in Sosa, 542 U.S. at 733 n.21, and it has been used in ATS cases. E.g., Corrie v. Caterpiller, 503 f. 3d 974 (9th Cir. 2007) (dismissal of ATS claim for selling bulldozers to Israeli Defense Force); Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005), cert. denied, 547 U.S. 1069 (2006) (dismissal on political question ground of ATS case against former U.S. National Security Advisor over killing of Chilean general in 1970 coup d’etat).

[15] E.g., Ungaro-Benages v. Dresdner Bank AG, 379 F. 3d 1227, 1237-39 (11th Cir. 2004).

[16] Foreigners sued an U.S. corporation under the ATS and TVPA for allegedly aiding and abetting the CIA’s extraordinary rendition of five foreign nationals to other countries for torture and interrogation when the corporation provided flight training and logistical and support services to the aircraft and crew. Before the defendant answered the complaint, the U.S. Government intervened and moved to dismiss the complaint under the state secrets doctrine. The district court granted the motion, which the Ninth Circuit, en banc, ultimately affirmed, 6 to 5. The court held that the state secret privilege established by United States v. Reynolds, 348 U.S. 1 (1953), required dismissal because “there is no feasible way to litigate [the defendant's] alleged liability without creating un unjustifiable risk of divulging state secrets.” (Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc).)

Tags:human rights, U.S. Constitution, Nigeria, U.S. Supreme Court, Torture Victims Protection Act (TVPA), Alien Tort Statute (ATS), Royal Dutch Petroleum Co., U.S. Court of Appeals for the Second Circuit, Kiobel, Foreign Sovereign Immunities Act (FSIA), Sosa v. Alverez-Machain, forum non conveniens, political question, act of state, international comity
Posted in Politics, Law, History, Other countries | 1 Comment »

U.S. District Court Decides that Former Somali Government Official Is Not Entitled to Common Law Immunity and Is Liable for $21 Million of Compensatory and Punitive Damages

September 15, 2012

Mohamed Ali Samantar

As discussed in a prior post, the U.S. Supreme Court in 2010 decided that former Somali General Mohamed Ali Samantar was not covered by the immunity provisions of the Foreign Sovereign Immunities Act (FSIA) and remanded the case to the U.S. District Court for the Eastern District of Virginia to determine if he was entitled to common law immunity.

This was in a case brought by four Somalis against Samantar for money damages under two U.S. statutes–the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA). The complaint alleged that Samantar aided and abetted, and had command responsibility for, extrajudicial killing; arbitrary detention; torture; cruel, inhuman or degrading treatment; crimes against humanity; and war crimes in Somalia from 1969 through 1991.[1]

U.S. District Court, Alexandria, VA

After remand, U.S. District Judge Leonie Brinkema of the Eastern District of Virginia in Alexandria [2] first decided that Samantar was not entitled to any common law immunity. She then decided that $21 million of compensatory and punitive damages were appropriate. Those decisions will now be reviewed.

No Common Law Immunity

On February 14, 2011, the U.S. Government provided the court with a letter from Harold Koh, the State Department’s Legal Adviser, stating that the Department had determined that Samantar did not enjoy immunity from this lawsuit. The key reason for this decision was the lack of any recognized Somali government that could assert or waive any immunity he might enjoy.

The formal U.S. filing with the court provided the relevant common law of immunity for former foreign government officials or what the filing called “Foreign Official Immunity Doctrine.” Here are the key points of that common law or doctrine without the filing’s citations of legal authority:

Under the law and practice of nations, a foreign sovereign is generally immune from lawsuits in the territory of another sovereign.
Until the 1976 enactment of the Foreign Sovereign Immunities Act (FSIA), U.S. federal courts routinely “‘surrendered’ jurisdiction over suits against foreign sovereigns ‘on recognition, allowance and certification of the asserted immunity by the political branch of the government charged with the conduct of foreign affairs when its certificate to that effect was presented to the court.’”
“This deferential judicial posture was not merely discretionary [for the courts], but was rooted in the separation of powers.” Under the Constitution, the executive branch of the federal government had the responsibility for foreign affairs.
“The immunity of a foreign state was, early on, generally understood to extend not only to the state, heads of state, and diplomatic officials, but also to other officials in an official capacity.”
Any immunity protecting foreign officials for their official acts ultimately belongs to the sovereign, not the official. Thus, the foreign state must claim or waive any such immunity for the official. Where there is no recognized government, there is no one that can assert such a claim or make such a waiver.
When a former foreign official becomes a resident of the U.S., as Samantar had since 1997, the U.S. has a right to exercise jurisdiction over that individual.
The U.S. Supreme Court in this case agreed with the government’s position that FSIA did not apply to the issue of immunity for current or former foreign government officials. Instead, that issue was left to the State Department, whose decisions should be accepted by the courts.

Judge Leonie Brinkema

On February 15, 2011 (the day after the above government filing), Judge Brinkema issued a one-page order. It stated, “The government has determined that the defendant does not have foreign official immunity. Accordingly, defendant’s common law sovereign immunity defense is no longer before the Court . . . .” The court then directed the parties to agree upon a date to argue the remaining issues in the defendant’s dismissal motion.

Samantar’s motions for reconsideration of this order and for a stay pending appeal were denied. Nevertheless, he appealed to the Fourth Circuit (No. 11-1479), and on May 16, 2012, the appeal was argued to the appellate court, which as of September 13th had not yet issued its decision. In my opinion, he has virtually no chance of success on this appeal.

The Court’s Determination of Damages

The district court on August 28, 2012, determined that each of the seven plaintiffs was entitled to $1 million of compensatory damages plus $2 million of punitive damages for a total judgment of $21 million. How the court came to this determination is a fascinating story.

After the court’s rejection of his immunity defense, Samantar moved for summary judgment on the grounds that the latest complaint failed to state a claim for his secondary liability, that the TVPA did not retroactively apply to acts before 1991 and that the claims were untimely and nonjusticiable. That motion was denied on December 22, 2011.

Two days before the scheduled start of a jury trial on February 21, 2012, Samantar advised the court that he had filed for bankruptcy in the Eastern District of Virginia (1-12-bk-11085). The automatic stay of this case by the bankruptcy filing was soon lifted, and the start of the jury trial in the main case was rescheduled for February 23rd.

On February 23rd Samantar’s attorney informed the court that Samantar intended to take a default rather than contest liability and damages. The court then asked the defendant questions about this decision and was satisfied that he knowingly and voluntarily had conceded liability.

On August 28th the court filed its Memorandum Opinion that made extensive findings and legal conclusions regarding Samantar’s liability under theories of aiding and abetting and command responsibility.

After noting that compensatory damages were recoverable for physical and psychological injuries, the court found that the plaintiffs had provided the following “credible and compelling testimony of cognizable injuries stemming from the alleged violations:”

Plaintiff Yousuf had endured torture and seven years of imprisonment, largely in solitary confinement that had affected his memory and emotional health. He suffers from depression and nightmares and still relives the five-step length of his cell.
Plaintiff Baralle was tortured and barely escaped execution. He continues to experience pain and occasional shaking on the left side of his body as well as flashbacks. His two brothers were executed, and Baralle and his family have taken responsibility for raising his brothers’ children.
Plaintiff Gulaid went before a firing squad, but escaped death. He continues to suffer nightmares, flashbacks and anxiety, memory loss, high-blood pressure and poor vision.
Plaintiff Aziz and his sister testified about the extrajudicial executions of their father, who was the family’s breadwinner, and their brother.

The court then found that each of the three plaintiffs suing in their own capacity and each of the four decedents’ estates would be awarded compensatory damages of $1 million.

After finding that there was evidence of Samantar’s conduct having been intentional, malicious, wanton and reckless and that ATC and TVPA cases commonly awarding punitive damages, the court determined that $2 million of such damages for each of the seven claimants was appropriate. Such amount, said the court, reflected the “seriousness of [his] . . . uncontested conduct;” [eased] . . . any burden on plaintiffs in having to bring this case;” and recognized the award of substantial compensatory damages, the lack of any financial gain by Samantar and his prospective bankruptcy.

The execution of the judgment was stayed pending resolution of the bankruptcy case.

Conclusion

The ability of the plaintiffs to collect any significant amount of their $21million judgment is highly questionable. On April 3, 2012, the Chapter 7 Bankruptcy Trustee reported Samantar had no assets available for distribution to creditors, but for unknown reasons that report was withdrawn on June 11th.

On August 23rd the plaintiffs commenced an adversary proceeding against Samantar in the bankruptcy court to have his judgment debt to them determined to be a non-dischargeable debt for willful and malicious injury under Bankruptcy Code § 727 (1:12-ap-01356). If the bankruptcy court agrees, this merely keeps open the possibility of future collections on the judgment if Samantar obtains any future assets or income.Judge L:

[1] This case was supported by the Center for Justice and Accountability, an human rights NGO based in San Francisco, California.

[2] Judge Brinkema presided over the criminal trial of Zacarias Moussaoui, who was convicted for conspiring to kill U.S. citizens in the 9/11 attacks. I appeared before her in another case, one involving Scientology.

Tags:Alien Tort Statute (ATS), Center for Justice and Accountability (CJA), Foreign Sovereign Immunities Act (FSIA), Harold Koh, human rights, immunity, Judge Leonie Brinkema, Mohamed Ali Samantar, Somalia, Torture Victims Protection Act (TVPA), U.S. Department of State, U.S. District Court for Eastern District of Virginia, U.S. Supreme Court
Posted in History, Law, Other countries, Politics | 5 Comments »

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U.S. District Court Decides that Former Somali Government Official Is Not Entitled to Common Law Immunity and Is Liable for $21 Million of Compensatory and Punitive Damages

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