Judge David Tatel Honored by Chicago Lawyers’ Committee for Civil Rights 

At its 50th Anniversary Gala on October 24, the Chicago Lawyers’ Committee for Civil Rights granted its Legal Champion Award to Judge David S. Tatel. Here we will review the Gala Co-Chair’s introduction of the Judge, the latter’s response and the Judge’s recent opinion for the U.S. Court of Appeals for the D.C. Circuit upholding a House of Representatives committee’s subpoena to an accounting firm for certain financial records of Donald Trump and some of his companies. This post will conclude with some personal remarks by this blogger.

Co-Chair’s Introduction of Judge Tatel

 Nate Eimer, a Chicago attorney and Co-Chair of the Gala, introduced the Judge with these remarks, “Fifty years ago, [David Tatel,] a brilliant, dedicated, courageous University of Chicago of Law graduate working as an associate at Sidley & Austin decided to leave the firm and join the newly formed Chicago Lawyers’ Committee for Civil Rights Under Law as its founding Executive Director.”

“[Before then, David Tatel already had begun] his life of dedicated service to the cause of civil rights immediately upon his arrival at Sidley doing pro bono work for the Chicago Urban League. [And in] his first year as Executive Director of the Lawyers’ Committee [Mr.] Tatel initiated almost 50 projects to advance civil rights in the areas of education, housing, community economic development, employment, and police accountability.”

“In that first year the Committee’s efforts led to the federal investigation and indictment of those responsible for the murder of Black Panthers Fred Hampton and Mark Clark.  Another effort, reminiscent of the recent school closings in Chicago, was the Committee’s member firms’ successful representation of a group of parents on the South Side whose cooperative school was abruptly closed by the City of Chicago.”

“On leaving the Chicago Lawyers’ Committee, . . . [Mr. Tatel] moved to Washington DC where he joined Sidley’s DC office and then served as the  Executive Director of the National Lawyers’ Committee for Civil Rights and later as the Director of the Office for Civil Rights of HEW.”

“In 1994, . . .[David] Tatel was nominated by President Bill Clinton to assume the seat held by Justice Ruth Bader Ginsburg on the United States Court of Appeals for the D. C. Circuit.  This is Judge Tatel’s 25th year on the bench.  His recent opinion in Trump v. Mazar – which upheld the House Oversight Committee’s subpoena for records relating to President, candidate, and private citizen Trump’s financial records – was widely recognized as ‘meticulous and scholarly.’”

The printed Gala program added these words about the Judge’s background: “Judge Tatel earned his undergraduate degree from the University of Michigan and his J.D. degree from the University of Chicago. [After HEW, he returned to private practice in 1979 to join]. . .  Hogan & Hartson, where he founded and headed the firm’s education practice until his appointment by President Clinton to the D.C. Circuit. Judge Tatel currently co-chairs the National Academy of Sciences’ Committee on Science, Technology and Law, and serves on the boards of Associated Universities , Inc. and the Federal Judicial Center. Judge Tatel is a member of the American Philosophical Society and the American Academy of Arts and Sciences. Judge Tatel and his wife, Edith, have four children and eight grandchildren.”

 Judge Tatel’s Acceptance Speech

For me, serving as the Chicago Lawyers’ Committee’s first executive director was one of the most formative experiences of my career. I was only twenty-seven years old, yet through the Lawyers’ Committee, I met and worked with some of the most dedicated and gifted members of the Chicago bar. Two of those lawyers, Dick Babcock, of Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, now part of McGuire Woods, and Bill Haddad, of Bell, Boyd, Lloyd, Haddad & Burns, now part of K&L Gates, were the true founders of the Chicago Lawyers’ Committee. It was they who took the baton from the National Committee and laid the foundation for the success you celebrate today.”

“Like the founders of the National Lawyers’ Committee six years earlier, Babcock and Haddad were not civil rights lawyers—far from it. Bill was a tax lawyer and Dick specialized in municipal zoning, but they were community leaders, ‘lawyer-statesmen,’ as it were, committed to the Constitution and the rule of law.”

“Joined by twelve other lawyers, all senior partners in the city’s major law firms, Babcock and Haddad formed the Chicago Lawyers’ Committee to bring the skills, energy, and prestige of the legal profession to bear on the serious civil rights problems facing this city—problems dramatically highlighted just one year earlier during the devastating riots that swept through the south and west sides in the wake of the assassination of Dr. Martin Luther King, Jr.”

“The Committee began its work in a small office on the 19th floor of the old Monadnock Building at 53 West Jackson—just me, a secretary, and a used Xerox machine. Member firms quickly took on representations involving education, employment, housing, and community development.”

“And then, on a dark, cold December morning just a few months after the Committee opened its doors, fourteen heavily-armed police officers assigned to a special unit of the Cook County State’s Attorney raided an apartment at 2337 West Monroe. When the raid was over, two leaders of the Black Panther Party lay dead, cut down in a hail of bullets. The State’s Attorney called the raid ‘a fierce gun battle’ and congratulated his officers on their ‘bravery and restraint in the face of the vicious Black Panther attack,’ yet a subsequent investigation found that the apartment’s occupants had fired but two shots. In response, Dick Babcock, Bill Haddad, and ten other members of the Lawyers’ Committee sent a telegram to the Attorney General of the United States calling for the appointment of a special grand jury. They warned that the incident had ‘exacerbated to a critically dangerous level the already tense relations between the black community and the police.’ The telegram concluded with these simple but powerful words that Dick added in his own handwriting just before calling Western Union: ‘None of us is accustomed to petitioning government. That we now do is a measure of the depth of our concern.’”

“In calling for a federal investigation, these prominent attorneys were fulfilling the vision President John F. Kennedy articulated in June 1963 when he called on the nation’s lawyers to play a more active role in the fight for racial equality. Deeply troubled about the South’s violent response to the civil rights movement, especially the assassination of Medgar Evers and the firehosing of demonstrators in Birmingham, and having just federalized the Alabama National Guard to enforce court-ordered desegregation at the University of Alabama, the president told 250 leaders of the bar assembled in the East Room that lawyers have a special responsibility to ensure that civil rights issues are resolved ‘in the courts, not the streets.’ Thus was born the Lawyers’ Committee for Civil Rights Under Law.”

“Like the lawyers who heeded Kennedy’s call, Babcock, Haddad, and the others who signed the telegram to the Attorney General were acting in the very best tradition of the legal profession. Even though they were committing their names and reputations to defending an organization whose tactics they and most Chicagoans deplored, they demanded, as lawyers and officers of the court, that the city confront the Black Panther Party through the legal system, and that it hold accountable those officials who had taken the law into their own hands. The lawyers who signed the telegram to the Attorney General, like the 250 lawyers listening to President Kennedy in the East Room, were Democrats and Republicans, liberals and conservatives. But they had no disagreement about the fundamental proposition that in a nation based on the rule of law, civil rights conflicts must be resolved through the legal process.”

“This bipartisan commitment to the rule of law is the key to the Lawyers’ Committee for Civil Rights Under Law. It is what makes the Lawyers’ Committee unique, and now more than ever, it is this precious bipartisan commitment to civil rights that the Chicago Lawyers’ Committee must seek to preserve.”

Judge Tatel’s Opinion in Trump v. Mazars USA LLP [1]

On October 11, just two weeks before this award, Judge Tatel wrote the 2-1 opinion for a panel of the D.C. Circuit upholding the subpoena by the House Committee on Oversight and Reform to the accounting firm Mazars, USA LLP for “records related to work performed for President Trump and several of his business entities both before and after he took office.” The opinion started with its conclusion that was explicated in the balance of the opinion: “the Committee possesses authority both under the House Rules and the Constitution to issue the subpoena, and Mazars must comply.” The opinion then cited many Supreme Court cases and other authorities in the following five sections:

1. The current Congress on January 3, 2019, debated and adopted “a set of rules to govern its proceedings.” It established the previously mentioned Committee, which was charged with “review[ing] and study[ing] on a continuing basis the operation of Government activities at all levels” and which was authorized to “conduct investigations” “at any time . . . of any matter,” “without regard to” other standing committees’ jurisdictions. To “carry[] out . . . [these] functions and duties” the . . . Committee may “require by subpoena or otherwise . . . the production of such . . . documents as it considers necessary.”

The opinion then reviewed the background for this subpoena, including the Ethics in Government Act of 1978 and the district court’s opinion in this case that had upheld this subpoena.

2. Next Judge Tatel’s opinion reviewed the history of legislative subpoenas, starting with the English Parliament and U.S. congressional subpoenas before discussing U.S. Supreme Court cases regarding the latter (as well as the D.C. Circuit’s opinion in a case over a Senate subpoena to President Nixon). These authorities established the following governing principles: (a) the committee must have been delegated the power to conduct investigations; (b) the congressional power to investigate is broad; Congress, however, may not “usurp the other branches’ constitutionally designated functions nor violate individuals’ constitutionally protected rights” or “conduct itself as a law enforcement agency;” (c) “Congress may investigate only those topics on which it could legislate;” and (d) “congressional committees may subpoena only information ’calculated to’ ‘materially aid[]’ their investigations.”                                                      3. The opinion then reviewed the “public record,” including “several pieces of legislation related to the Committee’s inquiry,” regarding this subpoena and concluded that it “reveals legitimate legislative pursuits, not an impermissible law-enforcement purpose.” Moreover, “this subpoena is a valid exercise of the legislative oversight authority because it seeks information important to determining the fitness of legislation to address potential problems within the Executive Branch and the electoral system; it does not seek to determine the President’s fitness for office.” In short, “the categories of information sought are ‘reasonably relevant’ to the Committee’s legitimate legislative inquiry.”                 4. Next the opinion rejected Mazars’ contention that the full House had not authorized the Committee to issue this subpoena. After all, Mazars had not challenged “the most natural reading of the House Rules [that] the full chamber has authorized the Committee to issue the challenged subpoena” and “the House Rules have no effect whatsoever on the balance between Congress and the President.”                                                                                                                            5.Finally, “the constitutional questions raised here are neither “’[g]rave’” nor “’serious and difficult.’” “We therefore have no cause to invoke the canon of constitutional avoidance.” “It is Mazars, a third-party, that will retrieve and organize the relevant information; the subpoena seeks non-confidential records in which the President has asserted no proprietary or evidentiary protections; and it is Mazars, not the President, [that] risks contempt through non-compliance.”

Conclusion

 This blogger is a University of Chicago Law School classmate and friend of Judge Tatel and at our 50th reunion in May 2016, presented our classmates with a booklet containing his biography and a selected list of 10 of his most significant cases as of that date.[2]

In 1957 David was diagnosed with retinitis pigmentosa, a genetic disorder causing loss of vision, which happened for him around 1973. I continue to be amazed at his ability to overcome this disorder and do this difficult and important legal work with such intelligence, diligence and grace. Thank you, Judge Tatel!

===========================================

[1] Trump v. Mazars and Committee on Oversight & Reform of the U.S. House of Representatives, No. 19-5142 (D.C. Cir. Oct. 11, 2019).   The dissenting opinion of Circuit Judge Neomi Rao is not discussed in this post.

[2] See these posts to dwkcommentaries.com mentioning Judge Tatel: My Years at the University of Chicago Law School (Dec. 27, 2011); The D.C. Circuit’s Decision Upholding the Validity of the Voting Rights Act of 2006 (March 11, 2013); Judging on the U.S. Court of Appeals for the D.C. Circuit (April 11, 2013); Federal Appellate Court Allows Lawsuit by Guantanamo Detainees (March 1, 2014).

 

U.S. Needs New Voting Rights Act

Problems exist with the present U.S. voting systems and procedures. Here are just a few:

  • In the November 2012 general election, many states that were controlled by Republican state legislatures and governors adopted various measures that, in my opinion, were intended to suppress voting by U.S. citizens, including minorities, who were deemed likely to vote for Democratic candidates.
  • Late this June the U.S. Supreme Court invalidated an important provision of the Voting Rights act of 2006. [1]
  • Immediately after that Supreme Court decision, some states–most notably Texas [2] and North Carolina–have moved to implement or adopt restrictive voting laws. [3]

This blog has criticized these efforts to restrict voting and that Supreme Court decision. This blog also has proposed ways to expand voting in this country, many of which have been voiced as well by Norman Ornstein, author and Resident Scholar at the American Enterprise Institute.[4]

Here are my suggestions for a new federal Voting Rights Act.

First, every U.S. citizen entitled to vote.

That includes all citizens who have been convicted of felonies and who are still in prison and those who have served their sentences. They are human beings who have interests and opinions, and they have unique experiences of life inside our prisons, which are often neglected in the political debate about allocation of resources.

Now only two states (Maine and Vermont) impose no voting restrictions on felons or ex-felons. Other states impose various restrictions, with 12 states (six in the South) banning ex-felons from voting even after they have completed prison and probation or parole. As a result, an estimated 5.9 million citizens are disenfranchised on this basis, about one-fourth of whom are still in prison. Because 38.2% of these people are African-American, it is also a racial justice issue.

The electorate also should include all children. They too are human beings with interests that should be reflected in elections. This is especially true in an electorate in which older citizens tend to vote in higher percentages and naturally have an interest in programs and services that benefit them. I am a member of the older group and yet believe our political influence needs to be counterbalanced by the voices of the youngest. Creation of a voting system to allow all children to vote would require a lot of careful consideration of how this could be accomplished.  It presumably would have parents or guardians voting for their children through a certain age such as 16 or 18.[5]

Second, every U.S. citizen required to vote.

Every citizen should be required to vote at least in national elections.

This is true in many countries so it can be done. Such a system, I believe, would have the beneficial effect of causing political parties and candidates to appeal to voters in the middle of the political spectrum and thereby combat the polarization of our political system. Again, creation of such a system would require careful consideration of how that could be done.

Ornstein and Thomas E. Mann have made such a proposal. One means of enforcing such a law, they say, would be a modest fine, say $15, for failure to vote with increased amounts for repeated failures. Another way would be to provide a small tax credit for voting.

Third, no racial discrimination in voting.

Using the language of the Voting Rights Act of 2006, forbid 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.”

Fourth, simplified voting laws and procedure.

To make it easier to vote, Ornstein and Mann offer the following suggestions:

a. A new voter registration regime. Ornstein asserts, “eligible citizens should be presumed registered.”  Allow online registration and transfer of such records when the voter moves to a new home by sharing data with private databases. Allow “same-day voter registration available for those not registered via their draft registration or driver’s license. Ideally, Congress would provide the funds to modernize voter registration lists and create a 21st-century voting process in which voters could get personalized ballots printed, with all the offices they are eligible to vote on, at any polling place in their vicinity. Why shouldn’t Americans be able to vote at any nearby polling center?”

b. More easily accessible polling places. Use facilities in or near shopping centers or arenas.

c. Weekend Election “Day.”  As Ornstein says, “’Election Day’ should suit contemporary American life:  a 24-hour period from noon Saturday to noon Sunday, with early voting the week before. This would eliminate ‘rush-hour’ backlogs early in the morning and at the end of the day, as well as Sabbath problems. If Wal-Mart can stay open 24/7, our democracy can stay open 24 hours once every two years.”

d. Social Security cards as valid voter IDs. Any U.S. citizen, Ornstein asserts, “who can provide proof of a valid Social Security number should be able to obtain, free, a Social Security card with a photo. It should be mandated as acceptable for identification wherever a photo ID is required to vote. Such cards should be available not just at Social Security offices but also at post offices.”

e. Uniform separate federal election ballot. Finally, Ornstein believes “Congress has the clear constitutional right to manage federal elections. A separate ballot for federal races strengthens that control. Other advantages include no more confusing butterfly ballots; there would be no more than three races (president, Senate and House) on a federal ballot. No more provisional ballots or access denied if someone shows up at the wrong polling place; the vote would still count only for those federal offices.”

Conclusion

These voting changes would help make the federal government more accountable to the citizens. Other changes to aid in this effort have been suggested in this blog: certain constitutional changes, elimination of the U.S. Senate’s filibuster rule and reforming the system for creating new congressional districts after the decennial census.


[1] Former Supreme Court Justice John Paul Stevens has criticized the Court’s decision invalidating a provision of the Voting Rights Act.

[2] On July 25th the Department of Justice sued the State of Texas to ask a federal court to require Texas to get permission from the federal government before making voting changes. The suit is based upon section 3 of the Voting Rights Act of 2006 which allows such relief if the Government shows that the jurisdiction has committed constitutional violations with respect to voting. Richard H. Pildes, a New York University professor said, “If this strategy works, it will become a way of partially updating the Voting Rights Act through the courts.”  A Washington Post editorial endorsed this approach while also calling on Congress to enact a new statutory formula for comprehensive coverage of states for such preclearance. An editorial in the New York Times also supports this approach as does Washington Post columnist E. J. Dionne, Jr.

[3] New York Times columnist, Charles Blow, points out that almost all of the states that were covered by the Voting Rights Act provision that was invalidated are Republican-controlled and are now wasting “no time . . .  to institute efforts to suppress the vote in the next election and beyond.”

4] Thomas E. Mann & Norman J. Ornstein, It’s Even Worse Than It Looks: How the American Constitutional System Collides with the New Politics of Extremism (Basic Books; New York 2012); Ornstein, Let’s enact a new Voting Rights Act, Wash. Post (July 17, 2013).

[5] I originally made such a suggestion in 1996.

Former U.S. Supreme Court Justice Criticizes Its Decision on the Voting Rights Act of 2006

John Paul Stevens
John Paul Stevens

 

John Paul Stevens, who served as an Associate Justice of the U.S. Supreme Court for nearly 35 years (1975-2010), has issued a stinging rebuke to its recent decision invalidating an important provision of the Voting Rights Act of 2006.

Stevens’ remarks came in his review of a book about the history of that statute: Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy.[1]

As discussed in a prior post, the court on June 25th in an opinion by Chief Justice John Roberts (joined by Justices Scalia, Kennedy, Thomas and Alito) held unconstitutional the Act’s formula that determined which states were subject to pre-clearance by the U.S. Department of Justice or a three-judge federal district court of any changes to the state’s voting procedures. The Court concluded that the burdens of such pre-clearance on the jurisdictions covered by the formula were not justified by current needs and, therefore, violated basic principles of equal state sovereignty or autonomy over voting.[2]

First, Stevens disputed the major legal premise of the Roberts’ opinion. Instead, Stevens agreed with Justice Ruth Bader Ginsburg’s dissenting opinion in the case that “the principle [of equal sovereignty] “applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.” (Emphasis in Stevens’ book review.)

Second and more importantly, Stevens strenuously objected to the Court’s not respecting the virtually unanimous congressional support for the 2006 re-authorization of the Voting Rights Act after “thorough evidentiary hearings.” Said Stevens,

  • “The members of Congress, representing the millions of voters who elected them, are far more likely to evaluate correctly the risk that the interest in maintaining the supremacy of the white race still plays a significant role in the politics of those states. After all, that interest was responsible for creating the slave bonus when the Constitution was framed, and in motivating the violent behavior that denied blacks access to the polls in those states for decades prior to the enactment of the [Act].”

Stevens found support for this conclusion in an unlikely source–the dissenting opinion of Justice Antonin Scalia in the case that invalidated the federal Defense of Marriage Act.[3] According to Justice Scalia,

  • “This [DOMA] case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution [the Supreme Court] in America.”

[1] The Stevens book review is also discussed in The Atlantic and Politico.

[2]  Earlier posts provided important background for the Supreme Court’s decision.

[3] The DOMA case is United States v. Windsor, No. 12-307 (June 26, 2013).

 

U.S. Supreme Court Invalidates Key Provision of Voting Rights Act of 2006

U.S. Supreme Court Building
U.S. Supreme Court Building

 

As widely reported, the U.S. Supreme Court in Shelby County v. Holder recently held unconstitutional a key provision of the Voting Rights Act of 2006.[1]

That provision, section 4, which was part of the original statute enacted in 1965, established a formula to determine which states were subject to pre-clearance by the U.S. Department of Justice or a three-judge federal district court of any changes to the state’s voting procedures. Such pre-clearance approval could be obtained only if the proposed change was shown to have neither “the purpose [nor] the effect of denying or abridging the right to vote on account of race or color.”

Section 4’s formula, as amended in 1975, established as “covered jurisdictions” those States or political subdivisions that had maintained a test or device (literacy or knowledge tests, good moral character requirements, vouchers from registered voters, providing English-only voting material s in places where over 5% of voting-age citizens spoke a language other than English) as a prerequisite to voting as of November 1, 1972, and had less than 50% voter registration or turnout in the 1972 presidential election.

Majority Opinion

Chief Justice John Roberts
Chief Justice John Roberts

The opinion for the Court by Chief Justice John Roberts (joined by Justices Scalia, Kennedy, Thomas and Alito) held that this formula imposed current burdens on the covered jurisdictions that were not justified by current needs. Section 4, therefore, violated basic principles of equal state sovereignty or autonomy over voting and was unconstitutional. This conclusion was reached even though the Chief Justice acknowledged that “voting discrimination still exists.”

The fundamental factual premise of the opinion was the assertion that the U.S. had significantly changed in racial discrimination in voting since 1965. As the Chief Justice said, “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”[2]

Dissenting Opinion

Associate Justice Ruth Bader Ginsburg
Associate Justice Ruth Bader Ginsburg

Justice Ginsburg, who was joined by Justices Breyer, Sotomayor and Kagan, issued a stinging dissenting opinion.

She emphasized that the Fifteenth Amendment to the Constitution granted to Congress, not the courts, the power to enact legislation to enforce the Amendment’s  ban on racial discrimination in voting. Moreover, the Supreme Court itself repeatedly has held that Congress’ judgment on such matters warrants “substantial deference” and that congressional power is “at its height” when it so acts.

As a result, the proper question for the courts is whether Congress had employed “rational means” in re-enacting section 4 as part of the 2006 Act. According to the dissenting opinion, section 4 meets that test. There was abundant evidence of continued racial discrimination in voting before Congress when it adopted the 2006 Act, and Congress acted with “great care and seriousness” in so doing.

Indeed, Justice Ginsburg stressed, the formula in section 4 is subject to statutory provisions “allowing jurisdictions to ‘bail out’ of preclearance, and for court-ordered “bail ins.” These mechanisms were seen by Congress as “effective means of adjusting the [Act’s] coverage over time.” Therefore, the dissent asserted it is erroneous for the Court’s majority to see the Act as “static, unchanged since 1965. Congress designed the [statute] to be a dynamic statute, capable of adjusting to changing circumstances.”

In short, the dissent says, “Hubris is a fit word for today’s demolition of the [statute].” The majority of the Court “errs egregiously by overriding Congress’ decision.”

Conclusion

The key failure of the majority opinion for me is its narrow focus on the coverage formula in section 4 instead of looking at how the formula works in the statute as a whole. As Justice Ginsburg and previously the D.C. Circuit emphasized, the coverage formula has to be seen with the statutory mechanisms for adjusting coverage to new circumstances through the bail-in or bailout provisions. It is dynamic and capable of adjusting to new circumstances.

Indeed, the Supreme Court did just that in 2009 in Northwest Austin Municipal Utility District No. One v. Holder. The Court’s opinion by Chief Justice Roberts provided a broad reading of the bail out provision to allow the political subdivision in the case to bailout from coverage under sections 4 and 5.


[1] The Supreme Court opinions in Shelby County are available online. Prior posts have discussed the original Voting Rights Act of 1965, the Voting Rights Act of 2006, a prior Supreme Court decision on the latter statute (Northwest Austin), the D.C. Circuit’s decision in Shelby County and the recent Supreme Court oral argument in that case.

[2] Justice Thomas issued a concurring opinion that section 5 of the Act was unconstitutional as well.

 

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

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         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
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.

 

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

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 David S. Tatel
Judge Thomas Griffith
Judge Thomas B. Griffith
Judge Stephen F. Williams
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.

 

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

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
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

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).