• February 11, 2015

    by Caroline Cox

    Sahil Kapur discusses at Talking Points Memo how supporters of the Affordable Care Act are tailoring their arguments to winning Justice Anthony Kennedy’s vote.

    Joey Meyer and Brianne Gorod argue at the Constitutional Accountability Center that the case against the Affordable Care Act is quickly unraveling.

    The Editorial Board of The Washington Post asserts that despite confusion and resistance, Alabama is a victory for same-sex marriage.

    Luke Brinker writes for Salon that Kansas Governor Sam Brownback has issued an executive order that removes gender identity and sexual orientation from the classes of protected Kansas government employees.

    Walter Shapiro argues at the blog for the Brennan Center for Justice that the influx of big money into the 2016 primaries could interfere with voter preferences.

  • February 9, 2015

    by Caroline Cox

    At Salon, Jenny Kutner reports that the Supreme Court has denied a stay in the Alabama same-sex marriage case.

    Bill Chappell writes for NPR that Alabama courts have begun to issue marriage licenses to same-sex couples despite comments from Alabama Chief Justice Roy Moore that courts should ignore the federal court ruling on same-sex marriage.

    Louise Radnofsky, Jess Bravin, and Brent Kendall write in The Wall Street Journal that there are now questions about the standing of the lead plaintiff in King v. Burwell.

    The Constitutional Accountability Center provides an overview of the King v. Burwell amicus briefs that support the government in the case.

    Joseph Shapiro of NPR reports that civil rights attorneys are suing Ferguson over “debtors' prisons” that jail people when the fail to pay fines for minor offenses.

    In The Atlantic, Conor Friedersdorf discusses how federalism has helped same-sex marriage spread throughout the country.

  • November 21, 2013
    Guest Post
    by Meagan S. Sway, Associate, Paul, Weiss, Rifkind, Wharton & Garrison LLP
    On Monday, Justice Sotomayor illuminated what many Alabama defendants and their lawyers have long known: the closer it gets to election season, the less the Sixth and Eighth Amendments matter in capital cases. While only Justice Breyer joined Justice Sotomayor’s dissent, the practice of granting elected judges power to override jury sentences in capital cases should trouble all nine justices, as Alabama’s capital sentencing scheme undermines our entire justice system.
    While a majority of the justices do not appear to accept that Alabama’s sentencing scheme violates a defendant’s Sixth Amendment right to trial by jury, the defendant is not the only player who loses as a result of granting a judge the power to override a jury’s recommendation—jurors also suffer. The Supreme Court has recognized in its Batson jurisprudence that discrimination against a veniremember deprives the defendant of his Sixth Amendment right to a jury and also denies the individual veniremember his “most significant opportunity to participate in the democratic process.” Powers v. Ohio (1991). Alabama’s judicial override system has the same problem. As shown in Bryan Stevenson’s mini-multiple regression analysis, there is a statistically significant relationship between a judge facing an election year and his exercise of judicial override. Thus, a person who serves on a jury, whose judge is facing an election, will see her vote count less than a person serving on a jury whose judge is not. This has the additional negative effect of causing jurors to lose faith in the system, because of the sense that whatever decision they reach it is subject to apparently arbitrary review (and potential reversal) by a judge. A juror may well ask herself, why bother?
    The Court should be concerned with the startling appearance of impropriety that results from Alabama’s capital sentencing scheme. Judges are – and should be – supremely concerned about guarding against any appearance of impropriety, as it undermines society’s trust and confidence in the justice system. The Second Circuit’s recent sua sponte removal of Judge Shira Scheindlin from New York City’s stop-and-frisk litigation comes to mind. There, the court removed Judge Scheindlin because she directed related cases to her docket and granted media interviews while the stop-and-frisk litigation was pending.  Judicial overrides in Alabama provide much more damning evidence of judicial impropriety: Stevenson’s analysis demonstrating an overwhelming correlation between judicial elections and overrides; 92% of all judicial overrides result in death sentences; states where judges are not elected but have the power of override do not exercise that power; and Alabama judges themselves have admitted that elections have influenced their decisions to override a jury’s recommendation of a life sentence.
  • February 26, 2013
    Guest Post

    by Ryan P. Haygood, Director of LDF’s Political Participation Group, and part of LDF’s litigation team in Shelby County, Alabama v. Holder. LDF Special Counsel Debo P. Adegbile will present oral argument on behalf of defendant-intervenors in this case, including LDF’s clients, five Black ministers and Councilman Ernest Montgomery. In 2006, the City of Calera, which lies within Shelby County, enacted a discriminatory redistricting plan that was rejected by the Department of Justice under Section 5, leading to the loss of the city’s sole Black councilman, Mr. Montgomery.  Because of Section 5, however, the Department of Justice required Calera to redraw its electoral boundaries in a nondiscriminatory manner and conduct another election in which Mr. Montgomery regained his seat. This post is part of an ACSblog symposium on Shelby County v. Holder.

    The United States Supreme Court will hear oral argument tomorrow in Shelby County, Alabama v. Holder, one of the most important voting rights cases of our generation. 

    In the case, Shelby County seeks to tear out the heart of the Voting Rights Act, Section 5. The Voting Rights Act is widely regarded as the most successful piece of civil rights legislation -- if not any legislation -- ever passed. It is for this reason that the Supreme Court, through an unbroken line of cases, has four times over four decades upheld the constitutionality of the Voting Rights Act.

    At oral argument, the Court will focus on two key questions: (1) whether voting discrimination persists to a degree that Section 5 is still needed; and, (2) whether that discrimination remains concentrated in the places covered by Section 5.

    The answer to both queries is yes for two reasons.

    First, in reauthorizing Section 5 in 2006, Congress identified the areas of the country with the worst histories of voting discrimination -- those places where persistent and adaptive discrimination has continued from the past through to the present and, which has proven particularly difficult to dislodge over time through case-by-case litigation. 

    During the 2006 reauthorization review, Congress assembled a virtually unprecedented legislative record that closely examined the evidence to determine whether Section 5 is still needed. This analysis was careful, detailed, and included a wide range of views.  Congress received more testimony and information about the voting experience, both in and outside the places covered by Section 5, than it had during any of the previous reauthorizations. Over 10 months in 2005-2006, the House and Senate Judiciary Committees held a combined 21 hearings, received testimony from more than 90 witnesses—including state and federal officials, litigators, scholars, and private citizens—both for and against reauthorization, and compiled a 15,000 page record.  Representative James Sensenbrenner, then-Chair of the House Judiciary Committee, described the record as “one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 27 ½ years” that he had served in Congress.


  • January 31, 2013

    by Jeremy Leaming

    Alabama officials seeking to gut the landmark Voting Rights Act of 1965 claim racial discrimination in voting is no longer a problem in their state. Specifically officials in Shelby County, Ala., a largely white county, are urging the U.S. Supreme Court to find Section 5, the law’s major enforcement provision, unconstitutional.

    The NAACP Legal Defense & Education Fund (LDF), representing voters in Alabama, is waging a vigorous defense of what many consider one of the nation’s most important and effective civil rights law. In its recently filed brief, the group urges the high court to uphold Section of 5 arguing that “racial discrimination in voting is ‘not ancient history.’” The Court will hear oral argument in Shelby County v. Holder on Feb. 27.  

    Section 5 requires certain states and localities, mostly in the South, with long histories of racial discrimination in voting to obtain “preclearance” from the Department of Justice or a federal court in Washington, D.C. for changes to elections procedures. LDF, in its brief, says Section 5 “remains essential to safeguard our democracy from racial discrimination. The record documents hundreds of examples of persistent unconstitutional efforts by covered States and localities to deny or abridge the right to vote on account of race, including widespread efforts to circumvent remedies imposed for prior VRA violations, which were only blocked by Section 5.” (Click picture to enlarge to show covered jurisdictions of Section 5.)

    Earlier this month, Alabama Attorney General Luther Strange filed a brief in the Shelby County case supporting the County officials. The state still grapples with “race relations issues, but they are the same kind of issues every state currently is endeavoring to solve,” Strange argues in his brief.

    LDF’s brief states there is ample evidence “of ongoing voting discrimination in Alabama specifically, and the covered jurisdictions generally, exceeds, by many orders of magnitude, that in the non-covered jurisdictions. Shelby County studiously avoids this evidence; instead, it selectively points to individual jurisdictions outside of Alabama that it asserts should not be covered.”