Will the Supreme Court Rein in Partisan Gerrymandering?

The author is a counsel for the League of Women Voters of North Carolina (“LWVNC”) in a partisan gerrymandering case scheduled to be argued at the U.S. Supreme Court on March 26, 2019.

“What’s different about the partisan gerrymandering cases in 2019 compared to the ones argued in 2018?”  “How can you win without Justice Kennedy?”  These are the most common inquiries lobbed at litigators by Supreme Court observers who watched the Court punt on the partisan gerrymandering cases from Wisconsin and Maryland cases last term, and who now hold a healthy amount of skepticism that the Court, with Justice Kavanaugh having replaced Justice Kennedy, will do anything to rein in partisan gerrymandering when it hears arguments in the North Carolina and Maryland cases on March 26.

The skepticism is understandable, but there are several things different about how this term’s gerrymandering cases have made their way to the docket, the facts in these cases, and the options available to the Supreme Court should it finally be ready to settle upon a theory of liability in partisan gerrymandering cases.

RELATED: Listen to our March 14, 2019 podcast exploring how the Supreme Court might rule on these partisan gerrymandering cases.

First, procedurally, these cases now are more properly developed for the Court’s consideration of the merits of the proposed legal standards.  The Maryland litigants are not asking the Supreme Court to order new maps on the eve of an election.  Following the Court’s guidance in Gill v. Whitford, the North Carolina litigants, on remand, supplemented the record to leave no question that plaintiffs had standing, and the district court so found.  The Supreme Court can now turn its full attention to the merits of the cases, and the various standards for liability the district courts approved in each case.  And having examples of both Republican and Democratic gerrymandering before the Court should not be undervalued.  Evidence of the excesses by both parties on the same day may reinforce cries from democracy advocates that voters of every ilk recognize and suffer legal harms from gerrymanders that allow politicians to choose their voters rather than the reverse—as our constitutional system expects.  The juxtaposition of these cases, along with their procedural posture, represents a significant change from the last term.

Second, while the facts in Maryland obviously remain the same, the Court will for the first time confront the full story of the egregious partisan gerrymander that North Carolina’s Republican legislature enacted in 2016.  Significantly, North Carolina’s 2011 congressional map had already been invalidated for containing two districts that had violated the 14th Amendment —and that racially-gerrymandered map produced a congressional delegation with 10 Republicans and 3 Democrats in a state considered to be one of the most “purple” and competitive states in the nation.  Once the courts struck down the racially gerrymandered map in 2016, the House Republican leading the redrawing effort, Rep. David Lewis, declared his intent to keep that lopsided margin, and he unabashedly bragged in on the record that the only reason the legislature would not pass a plan that would produce 11 Republican and 2 Democratic districts was because it was not physically possible.  With no hesitation, he explicitly referred to the 2016 map as a partisan gerrymander, and he proclaimed his view that partisan gerrymandering was not illegal.  Far more than just “smoking gun” intent evidence, the whole world witnessed the actual firing of the gun intended to silence the political voices of millions of North Carolina voters.  The facts in Maryland are nearly as egregious, with the Democratic governor, charged with leading the redistricting process, blatantly acknowledging his intent to change the 6 Democratic and 2 Republican congressional delegations in the state to 7-1.  With intent facts like those in North Carolina in Maryland, these cases hew as closely as one could imagine to the hypothetical that Justice Kennedy posed in the Gill argument: what if the face of the statute requires maximum political subjugation of one political party, which counsel for the Wisconsin map-drawers conceded would likely violate the Constitution.  That is, to the extent, there are “close calls” of unconstitutionality that exist, the cases this term are not among them.  Facts setting the outer limits of a standard ought to aid litigants who are asking the Supreme Court to establish a new rule.

Third, this year is different because Justice Breyer, one of the Court’s academics, is getting his dream seminar to explore this topic.  In argument in the Benisek v. Lamone case last year, he asked counsel if it would not be better to just gather the different theories presented by the various litigants across the country and hear at once all of the options available to the Court in adopting a standard.  Tuesday, March 26, 2019, will be just that day.

The three cases being argued before the Court on March 26 present an extensive menu of options from which the Court can choose its preferred means to curb the worst of what Justice Alito called “distasteful” gerrymandering without injecting mandatory judicial review into every redistricting process.  The cases offer the Supreme Court multiple theories of liability—based on vote dilution unconstitutional under the Fourteenth Amendment; based on Article I, Section 2, which reserves for the people, not state legislators, the right to choose; and based on two variations of liability under the First Amendment (viewpoint discrimination and harms to the right to freely associate).  It is not that the litigants cannot agree on a standard—it is that the practice of intentional partisan gerrymandering as happened in North Carolina and Maryland actually offends numerous constitution guarantees designed to protect our democracy.  Just as both the lower courts in these cases have concluded, a viable legal rule is possible that can bring an end to these blatant partisan excesses.

In particular, the LWVNC case presents the court with a very logical and step-by-step test for unconstitutional partisan gerrymandering based on a vote dilution theory—a test that has been refined since Gill and embraced by the district court on remand following the Gill decision.  The three-part test proposed asks whether, using three different metrics, there is a consistent pattern of severe and durable partisan asymmetry in the challenged plan.  If the answer to the question is yes, the appropriate move for potential litigants is to, as one of the LWVNC’s experts described it, “throw a flag” and examine the other two factors that comprise the test.  That is, to see if, first, there is evidence of discriminatory intent and second, whether there are any neutral redistricting norms that would otherwise explain the observed partisan asymmetry.  Importantly, the proposed measures of partisan asymmetry would not require review of any plan based simply on a departure from partisan symmetry or proportional representation.  Rather, metrics referenced in this test only trigger greater scrutiny in the most extreme and unfair maps, where voters in packed or cracked districts have no meaningful ability to influence electoral outcomes.

Too much has been read into Justice Roberts’ reference to the metrics that assess partisan asymmetry in Gill as “sociological gobbledygook,” implying that those metrics are too complicated for judges to understand.  But these very measures are not new.  District judges nationwide, with the aid of expert testimony, have been assessing very similar social science methods in voting rights cases for more than 30 years.  In vote dilution cases brought under Section 2 of the Voting Rights Act, liability partly depends upon proof of legally-significant racially polarized voting.  There exist at least three different ways of measuring racially polarized voting: homogenous precinct analysis, ecological regression, and ecological inference.  In fact, when the Court approved the use of homogenous precinct analysis and ecological regression as tools for measuring racially polarized voting in Thornburg v. Gingles in 1986, ecological inference did not even exist as a methodology.  But the social science analysis in this arena continued to evolve, and the ecological inference was developed as a variation of ecological regression that improves upon some of the weaknesses of the latter methodology.  Most courts now will give greater weight to analyses employing ecological inference rather than ecological regression.  All of this suggests that the judicial branch can handle social science metrics, including the tools that evolve over time.

On a related note, one can embrace the vote dilution theory of liability in a partisan gerrymandering case even without fully embracing Section 2 of the Voting Rights Act (VRA).  Some academics and Court observers are suspicious that the Roberts Court may be looking for an opportunity to invalidate Section 2.  Regardless of one’s views about the continuing need for Section 2 of the VRA (though, in my view, present evidence in this nation’s political realm demonstrate that this protection remains sorely needed), there is nothing remarkable about federal courts considering social science metrics as one part of an analysis of whether new districts are required in a redistricting case.  Indeed, this approach is no more remarkable than reviewing economic modeling of competitiveness in an antitrust case.  Lower federal courts have been successfully reviewing and drawing conclusions from statistical analyses of voting patterns for decades.  This theory of liability tracks the well-developed path of Gingles-like cases that, for decades, have been viewed as offering the judiciary a manageable standard for reviewing the legality of redistricting plans.  And the other theories, under the First Amendment and Article I, Section 2, likewise present the Court with additional manageable standards that could be employed.

Of course, there is still the reality that these cases will be argued before a different Court than the cases from the last term—a Court without Justice Kennedy.  The fact that the cases are better postured for consideration on the merits does not preclude the Court from finding grounds to punt yet again—leaving untouched the Davis v. Bandemer holding that partisan gerrymandering cases are justiciable while declining to adopt any of the standards proposed by the litigants.  And it does not foreclose the worst-case scenario—that five Justices might reverse Bandemer and conclude that partisan gerrymandering is non-justiciable.  But the Supreme Court, regardless of present composition, generally looks to craft narrow rules, and the good news is that amongst the several theories of gerrymandering liability now being offered to the Court, several propose ways to impose limits on the very worst of the democracy-eroding maps seen in recent years without inviting judicial involvement any time redistricting happens.  And this trend, given the options in front of the Court, is the reason for real hope.

On March 26, 2019, the Supreme Court will be presented with a wide range of menu options from which to choose a route to restore faith in the integrity of our electoral systems, particularly in the construction of districts that elect members of Congress.  A win under any theory is a win for all citizens seeking a more fair democracy, with electoral structures that allow all voters to participate in the political process on equal footing.

Dunn v. Ray: We Should Have Seen This Coming

Last week, the Supreme Court confirmed what religious minorities and unbelievers have known for some time: Christianity is the Court’s preferred religion, which states may also officially prefer if they wish.

Muslim Dominque Ray, condemned to death for what all agree was a horrific crime, requested that an imam be at his side as he was executed. For reasons that remain obscure, the state of Alabama refused, insisting that only its state-employed prison chaplain could be present in the execution chamber. It’s hard to know how much comfort a Christian cleric can give a Muslim facing imminent death—probably about what an orthodox rabbi might do for a Roman Catholic, or Mormon elder for an evangelical Protestant: maybe more than no comfort at all—though maybe not, given the stark theological differences—but surely a poor substitute for ministering by a leader of the prisoner’s own faith. For Muslims condemned to death in Alabama, however, it’s either the prison’s Christian chaplain, or nobody. Ray chose nobody.

It wasn’t that the state couldn’t find an imam who wouldn’t undermine “prison security” or unspecified “execution procedures”; the state insisted it had no obligation even to try. The Supreme Court agreed, vacating a lower court ruling which found that the state’s denominational preference for Christianity violated both the Establishment Clause and a federal statute mandating religious accommodation of inmate religion.

The Court’s decision triggered bipartisan, ecumenical condemnation. As Justice Kagan noted in her dissent, “The clearest command of the Establishment Clause”—indeed, the one thing everyone thought was indisputable—“is that one religious denomination cannot be officially preferred over another.” [2019 WL 488293, slip op. at *1] And yet, no one should have been surprised—Kagan least of all—for Dunn v. Ray is the logical endpoint of the Supreme Court’s jurisprudence of state use of Christianity.

This jurisprudence began in 1984, when the Court held that a municipally sponsored Christian nativity was a secular symbol of the equally secular “Christmas holiday season.” [Lynch v. Donnelly] From here the Court moved to government displays of the Ten Commandments, beloved of conservative Christians and, we are told, also secular if the government is not too transparent about its pro-Christian motivations. [Van Orden, McCreary County] Next came Latin crosses at war memorials, which a Court plurality understood to honor non-Christian and unbelieving soldiers despite its ancient association with Christianity. [Salazar v. Buono]

The most recent decision in this line was Town of Greece v. Galloway (2014), where the Court found that prayers delivered by Christian ministers in the Christian manner in advance of government meetings do not violate the Establishment clause, so long as they retain a “solemn and respectful tone” which lends “gravity to the occasion” and causes reflection on “values long part of the Nation’s heritage,” and “shared ideals and common ends.” [572 U.S. at 582-83]

The implicit principle running beneath these decisions is the Court’s belief that the symbols and practices of Christianity speak to, and for, all Americans. If a representation of the virgin birth of the Son of God, the symbol of divine commandments given to a Biblical prophet, and the quintessential sign of the crucifixion of Jesus Christ, are somehow not Christian, if the quintessential act of Christian worship—prayer to God in the name Jesus Christ—is somehow secular, why should we be surprised to find that a Christian chaplain employed by the state is perfectly able to comfort a Muslim facing death?

The various puzzling efforts to both criticize the Court’s decision and absolve the Justices of anti-Muslim bias miss the point of the Establishment Clause. Imagine that what reached the Court was a lower court decision staying an execution with the roles were reversed, a condemned Christian whose only option is a Muslim imam. Does anyone really think that the Court’s suspicion of the death penalty bar [Will Baude, Volokh], or the value it places on finality in death penalty litigation [Luke Goodrich WSJ], would have caused it to reach out and reverse the lower court decision so the Christian could be executed with an imam by his side?

We don’t know the answer to this question, because it has never happened, and probably never will. Islam, unlike Christianity, is not a supposed stand-in for all Americans and All-American values. But in truth, neither is Christianity. The enduring value of the Establishment Clause in the United States has been its guarantee that all believers and unbelievers are equal before the government, that it prefers none of their religions to any other. We should all regret that the “clearest command of the Establishment Clause,” is no longer clear, nor a command.

If Trump Takes Unilateral Action on Wall, Constitutional System Will Be Tested

It must be emphasized that this is not a done deal, but it appears likely that the president will sign into law legislation funding the federal government until the end of September 2019.  When and if this legislation is enacted, federal workers who recently endured a 35-day partial government shutdown will undoubtedly heave a sigh of relief.  But the issue that sparked the shutdown in the first place—President Trump’s demand for billions of dollars to support some construction of a new border wall between the United States and Mexico—will not go away.  In fact, it remains possible that Trump will move ahead with his long-telegraphed threat to declare a national emergency in an effort to gain access to funds needed for wall construction.

This remains speculative, and it is of course possible that Trump will not declare an emergency.  There are reports that Senate majority leader Mitch McConnell has warned the president not to do so, in part by telling Trump that congressional Republicans might take action to reject a presidential declaration of emergency.  However, the president continues to suggest he might take unilateral action, claiming that “[w]e have options that most people don’t understand.”  Those options could include declaring an emergency pursuant to the National Emergencies Act of 1976 or issuing an executive order to reprogram money already appropriated by Congress.

If the president does take unilateral action in an effort to free up money to build a new wall on the southern border, the constitutional system itself will be tested.  The Constitution was designed to strike a balance between power and limits—to create a federal government strong enough to carry out the responsibilities assigned to it, while also setting limits to prevent that government, or any part of it, from gaining too much power.  As James Madison wrote in Federalist 47, “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many…may justly be pronounced the very definition of tyranny.”  Madison expected that members of each branch of government would jealously defend their branch against encroachment by another branch.  For instance, members of Congress would act to rein in a president bent on consolidating power in his or her hands.  This is the concept of separation of powers that undergirds constitutional democracy in the United States.  It is built on overlapping authority—checks and balances--that, in theory, allows each branch of government to fulfill its duties without gaining a monopoly on powers

The problem, of course, is that the system only works if members of each branch take action when the balance of power is threatened.  One way the system can fail is if members of Congress value partisan ties to a president of their own party above institutional power.

In the past, the system has worked when members of Congress and judges have put aside partisan or personal feelings to set limits on presidential power.  For example, when President Franklin D. Roosevelt proposed his court-packing plan, it was derailed when congressional Democrats saw this as a dangerous attempt to install pliant justices on the Supreme Court.  When President Richard Nixon brazenly sought to undermine the rule of law, congressional Republicans joined Democrats in making clear that he faced a choice: resign from office or be removed through the impeachment process.

But, when presidents seek to set aside limits on their power, there haven’t always been happy endings.  Five years after his court-packing plan went by the boards, Roosevelt issued Executive Order 9066, which paved the way for the internment of more than 100,000 Japanese Americans living on the west coast of the United States.  Legislators and judges largely fell in line behind the president, providing legal cover for his actions, including in two Supreme Court decisions.

The shameful history of the Japanese American internment is instructive now for at least two reasons.  First, it provides evidence that checks and balances only function when each branch of government takes action to set limits on power.  Second, it reminds us that presidents can create contrived emergencies to justify assaults on the constitutional order.  The executive branch sought to justify the mass internment of Japanese Americans in part by falsely claiming there was no time to separate supposedly disloyal Japanese Americans from the majority who were loyal.  In fact, there was no evidence any were disloyal—and, as Justice Frank Murphy pointed out in his dissent from the 1944 Korematsu case, the emergency claim was a pretext.  Roosevelt did not sign Executive Order 9066 until more than two months after the December 7, 1941 attack at Pearl Harbor, and internment was not completed until October 1942.  As Murphy wrote, “Leisure and deliberation seem to have been more of the essence than speed.” There was no actual sense of urgency in taking action to place Japanese Americans in internment camps—unsurprisingly, as they did not actually pose a threat.

If Trump does ultimately seek to declare an emergency as a basis for gaining access to funds he wants for wall construction, it would be similarly clear that this is a pretext.  Actual emergencies demand immediate action, not months (or years) of equivocation and delay.  What’s really driving Trump is frustration at his inability to convince members of Congress (including Republicans) to appropriate money for his desired project.  What would make it especially dangerous for Trump to take unilateral action is his authoritarian, anti-democratic tendencies and instincts.  Political scientists Steven Levitsky and Daniel Ziblatt write that “[o]ne of our greatest concerns about Donald Trump’s presidency has always been that he would exploit (or invent) a crisis in order to justify an abuse of power.”  If Trump takes unilateral action in an effort to make an end run around congressional refusal to provide the funding he seeks, the most important question will be whether congressional Republicans take action to stop him.

Chris Edelson is an assistant professor of government in American University’s School of Public Affairs. He is the author of Emergency Presidential Power: from the Drafting of the Constitution to the War on Terror.

 

Voting Rights Under Attack in North Carolina, Wisconsin, and Texas

"At the bottom of all the tributes paid to democracy is the little man, walking into the little booth, with a little pencil, making a little cross on a little bit of paper—no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of that point." - Winston Churchill, House of Commons, Oct. 31, 1944

It is the fairness of this simple act that lawmakers, judges, and all citizens must remain vigilant to protect.  Voting is at the very heart of who we are because it is the act we each take, together, to decide who we want to be.  And voting is one of the few things we do as equals.  When we go in the voting booth Churchill described, and mark the ballot—no matter where we are from, how much money we have, or where we are heading—we vote as equals.

One would have hoped that the Voting Rights Act of 1965 would permanently protect this most sacred right to vote free from discrimination and intimidation, but sadly that is no longer the case.  Our process is under attack, and, in many states, the process is failing.

The Supreme Court’s decision in Shelby County unleashed a wave of discriminatory voting laws

In 2013, the Supreme Court gutted the Act in Shelby County v. Holder.  The effect of Shelby County was immediate and far-reaching.  States across the country started passing voter ID laws under the cover of stopping non-existent vote fraud—but really designed to make it harder to register and vote.  Discriminatory laws passed by state lawmakers took effect immediately with no federal review or clearance.  This rush of state voter ID laws, voter purges, cutbacks on early voting, polling place closures, and other restrictions disproportionately disenfranchised voters of color, the poor, the disabled, and the elderly, and made the need for expanded voter protections increasingly urgent.

For three examples, look to North Carolina, Texas, and Wisconsin.  In North Carolina, immediately after the decision in Shelby County, the legislature passed a law targeting specific voting practices — including same-day registration and early voting—that had helped drive recent surges in minority voter turnout. The law was aimed directly at communities of color participating in the electoral process.

In Texas, the legislature passed a law that took effect within hours of the Shelby County decision, prohibiting voters from registering and voting unless they could produce a very specific type of identification.  A lawsuit was filed and the federal court found that over 500,000 voters didn’t have this ID; that many without the correct ID faced 90 minutes or more of travel —without a driver’s license—to get what they’d need; and that racial and language minorities bore the main burden from these voting rights restrictions.  The Court said the law forced some in poverty to “choose between purchasing their franchise or supporting their family.”  After years of litigation, and the passage of a new Texas voting law, in April 2018 the Court of Appeals upheld the new law, finding that it—finally—was constitutional.

In 2011—the year after Wisconsin Republicans won the governorship and majorities in both houses of the legislature—the Wisconsin legislature passed the first of eight laws enacted over the next four years that transformed Wisconsin’s election system.  None of these laws made voting easier for anyone.  A federal lawsuit was filed.  In July 2016, the Court found the law unconstitutional as it related to the challenged voting ID requirements, the time limits on in-person absentee voting, and student voter ID and registration requirements, and granted a permanent injunction.

But this ruling apparently wasn’t clear to the Wisconsin Legislature.  In late 2018—after the state-wide election of a Democratic Governor, Lieutenant Governor, and Attorney General—the legislature passed another law making it more difficult to register and vote.  This law was immediately challenged as violating the federal court injunction.  On January 17, 2019, the Court addressed this most recent attempt to make voting more difficult, and determined that the law violated the injunction granted in 2016:  “This is not a close question: the three challenged provisions are clearly inconsistent with the injunctions that the court has issued in this case.”

True leaders should remove obstacles to voting, not erect them

Do the state legislative majorities passing these restrictive laws believe their present power is so tenuous that they must create obstructions to voting because full, free, and open voting will send them packing?  Do they fear the poor, students, minorities, the elderly, people with disabilities, or single parents will find it too easy to vote, and so must face increased voter restrictions? Are these the reasons numerous state legislatures vote—time and time again—to place limits on the time allowed for in-person absentee voting; to place limits on the validity of temporary identification cards, and to place restrictions on the use of student ID cards for voting?  Does their fear of the voters lead them to pass more and more laws placing extra obstacles and impediments in front of voters—in violation of federal constitutional law?

When will these state legislatures learn that true leaders in a democracy must take all possible steps to encourage voting, and to remove obstacles preventing citizens from voting?  Approximately 40% of registered voters don’t vote, and that should embarrass us all.  But state legislatures keep making it more difficult to register and vote in what seem to be very clear attempts to decrease that embarrassing number.  Why?

One of the most basic civil rights is the right to choose your own leaders

There are many sacred places in this country that symbolize and remind us of the long fight for civil rights, and the heroes—famous and not so famous—who paved the way. These sacred places include lunch counters, bus depots, public schools, universities, public restrooms and drinking fountains, county courthouses, and, of course, countless churches.  In the long and bloody fight for the right to vote—the basic right to be part of democracy—no place is more sacred than Selma, Alabama.

The Selma Heroes, after being beaten and murdered, kept marching because they knew—even after the passing of the Civil Rights Act of 1964—there could be no lasting change in this country without firmly securing the right to vote.  Because they would not quit, and because of the work of so many others in Civil Rights Campaigns, change came.  One week after March 15, 1965 -  Bloody Sunday - President Lyndon Baines Johnson went to Congress to demand passage of the Voting Rights Act.  President Johnson said:

"I speak tonight for the dignity of man and the destiny of democracy. At times history and fate meet at a single time in a single place to shape a turning point in man's unending search for freedom. So it was at Lexington and Concord. So it was a century ago at Appomattox. So it was last week in Selma, Alabama."

Our fathers believed that if this noble view of the rights of man was to flourish, it must be rooted in democracy. The most basic right of all was the right to choose your own leaders. The history of this country, in large measure, is the history of the expansion of that right to all of our people.  Many of the issues of civil rights are very complex and most difficult. But about this there can and should be no argument. Every American citizen must have an equal right to vote. There is no reason which can excuse the denial of that right. There is no duty which weighs more heavily on us than the duty we have to ensure that right.

It appears many state legislative bodies around the country have forgotten —or choose to ignore—President Johnson’s words.  The voting laws like those recently passed again by the Wisconsin Legislature, seeking to place obstacles to voting, ignore their duty to ensure the right to vote.

How to challenge efforts to make it harder to vote

What can we do?  First, ask your legislators why they are ignoring the history of expanding the vote, and why they are trying to make it harder to vote.  When they say “We need stricter voter ID laws, and a limit to early voting, to stop fraud”— challenge them.  Ask to see all the voter fraud cases that are supposedly undercutting our fair elections.

I was a federal prosecutor for the Western District of Wisconsin from January 1980 to March 2017, and there was not one federal voter fraud case prosecuted over all those years.  Nationally, in fact, numerous voting studies and surveys show the opposite is true: Election fraud is extremely rare, and the in-person, individual fraud these laws are supposedly designed to prevent is virtually non-existent.

Do the legislators who spread the fear of fraud really expect us to believe that convicted persons and undocumented aliens - with all the problems they face - are running to the polls with fake IDs because they can’t wait to vote?  Seriously?  Do the legislators who spread this fear, in an attempt to justify voting restrictions, really expect us to believe that while only about 50-60% of us vote, this small number actually includes a large number of voting fraudsters?

Our problem is not voter fraud.  Our problem is voter suppression.  Our problem is the legislators, laws, and misinformation which make it harder to register and vote.  Leadership in a Democracy is not about power, it is about responsibility.

It is time for the U.S. Congress to accept that responsibility; to pass voting rights legislation as recently proposed by the Democratic House Majority designed to expand Americans' access to the ballot box; to give life back to the Voting Rights Act of 1965; and to protect the “simple act” that gives life to our democracy.

Remember the Selma Marchers.  And remember that The March Continues.

The Supreme Court’s Ruling in Ray: A Broken Promise of Religious Liberty for All

On January 23, 2019, an Alabama prison warden denied a Muslim death row inmate’s request to have his imam present in the execution chamber with him. That same facility regularly allows its Christian chaplain into the chamber. The Muslim inmate, Mr. Domineque Ray, challenged the policy as a violation of his Establishment Clause rights, and won below. The Eleventh Circuit granted him a stay of execution until it could decide his case on the merits, finding that it was “substantially likely . . . that Alabama has run afoul of the Establishment Clause of the First Amendment.”

But in a highly unusual move, the Supreme Court reversed the Eleventh Circuit’s ruling in a one-paragraph decision, allowing the state of Alabama to execute Mr. Ray without his spiritual advisor present. The Court did not reach the merits of his Establishment Clause claim, but instead stated only that the stay is reversed “[b]ecause Ray waited until January 28, 2019 to seek relief.” But even though the Court did not weigh in on the merits, the decision—and its choice not to do so—signaled to many in the Muslim community that religious rights only matter to the Court when the petitioner is Christian.

Ray learned that his imam’s presence was prohibited only five days before scheduled execution

Perhaps the most astonishing aspect of this decision is that Ray was not aware of the prison’s policy against allowing his imam into the room until very shortly before his scheduled execution date, and that he filed suit just five days after finding out that his imam would not be allowed to be present with him. His lawsuit would not have been ripe before then, and the record below shows that the prison deliberately obstructed his access to its specific policies in that regard and was not clear about the fact that only the Christian chaplain, but not the Muslim imam, would be allowed into the execution chamber. Thus, even though he moved very quickly to try to claim his religious rights—again, he filed suit just five days after the warden denied his request—the Court’s conservative majority saw fit to dismiss his challenge out of hand.

The case is a textbook example of religious discrimination. The actions of the state of Alabama transparently favor Christian death row inmates over all others. As Justice Kagan noted in her powerful dissent, “[t[hat treatment goes against the Establishment Clause’s core principle of denominational neutrality.” It needlessly deprives a Muslim prisoner of the ability to have a spiritual advisor of his own faith with him in his final moments. Yet the court’s conservative majority, which expresses deep concern about religious liberty in other contexts, took the unusual measure of reversing the Eleventh Circuit stay, under an abuse of discretion standard a case like this ordinarily would not meet, in order to allow him to be killed. It did so without giving him so much as an opportunity to make a case for having his chosen religious representative present at his execution.

The Ray ruling is not the first time the Supreme Court has dismissed Muslim’s religious rights

This is not the first time the Court casually dismisses the religious rights of Muslims in a way that is completely inconsistent with its treatment of religious rights when Christians assert such rights. As we wrote this past summer, the Supreme Court’s twin decisions in Trump v. Hawaii and in Masterpiece Cakeshop highlight a fundamental inconsistency in the Court’s attitude towards religious rights: when it came to the Christian baker, the Court viewed one ambiguous stray comment from a commissioner—a comment that formed no part of the decision—as hostility towards religion. In that context, the Court stated that the constitution’s protection for the freedom of religion prohibits even “subtle departures from neutrality.” This was enough for the Court to sanction the baker’s discriminatory refusal to provide service to an LGBT couple.

Yet just a couple of weeks later in Trump v. Hawaii, the Court upheld the Trump administration’s Muslim Ban in the face of a years-long clear and undisputed record of anti-Muslim animus. There, the Court gave no significance to the very unsubtle “departures from neutrality”. Between those decisions and the Court’s willingness last week to dismiss out of hand the religious rights of a Muslim man on death row, the message to religious minorities is hard to ignore.

The decision in Ray gratuitously robbed a man of the ability to practice his faith during the final moments of his life. It will undoubtedly be remembered as a shameful mistake in the Supreme Court’s history. But even more, and particularly when juxtaposed with the Supreme Court’s recent decisions in Hawaii and in Masterpiece Cakeshop, it sends the dangerous message to religious minorities that ultimately, they do not enjoy the same protections that their Christian counterparts do. It signals that this Supreme Court majority is adopting a jurisprudence of religious liberty, not for all, but only for a chosen few.

Sirine Shebaya is the Interim Legal Director at Muslim Advocates.

Trump Admin Attack on California’s Environmental Authority is Legally Indefensible

[Cross-posted on ACSblog and Legal Planet]

In an outright assault on public health and the environment, the Trump Administration recently proposed rolling back national motor vehicle emission standards put in place by the Obama Administration. As part of this proposal, the Trump Administration also took aim at a special provision long-enshrined in the federal Clean Air Act allowing California to set its own motor vehicle standards--a provision that has resulted in tremendous environmental benefits and been a textbook success story for cooperative federalism. In a new Issue Brief published with the American Constitution Society today, we outline why we believe this unprecedented move is legally indefensible and environmentally catastrophic.

To fully understand the significance of the Trump Administration’s attack, one has to take a quick trip back to 1940s Los Angeles. Angelenos were faced with inexplicable attacks of “eye-irritating haze, accompanied by a peculiar ‘bleaching-solution’ odor.” Los Angeles County reacted by forming the nation’s first Air Pollution Control District, and focused on reducing pollution from local industrial sources like petroleum refineries and rubber plants. But in the early 1950s, CalTech chemist Dr. Arie Jan Haagen-Smit realized the accumulation of what we now term “smog” was actually the result of emissions from motor vehicles reacting with Southern California’s sunshine to form ground-level ozone trapped by the surrounding mountains. So in 1960, California formed the Motor Vehicle Control Board and began regulating motor vehicle emissions by setting tailpipe standards limiting the pollution cars were allowed to emit.

California set strict new public health-based standards that could only be met through the development of new technology like the now-omnipresent catalytic converter. Meanwhile, Congress was under pressure from automakers to head off a patchwork of 50 different vehicle standards. So in the 1970 Clean Air Act amendments that created our modern air quality regulations, Congress included an express preemption clause barring states from setting their own vehicle standards. But, recognizing both California’s policy leadership and its particular problems with smog caused by vehicles, Congress included a carve-out for the state. Still enshrined in the Clean Air Act today, this special exemption allows California to issue its own standards as long as it seeks a federal preemption “waiver” from the Environmental Protection Agency (EPA).  So long as California’s standards protect public health and welfare at least as strictly as federal law, and are necessary “to meet compelling and extraordinary conditions,” the law requires EPA to grant California’s request for a preemption waiver.

Each time California adopts new standards, the state applies to EPA for a federal preemption waiver for those standards. Since 1970, California has been granted more than 100 waivers for each iteration of its motor vehicle standards. And the EPA has typically responded by adopting California’s standards at the federal level once California has successfully demonstrated their achievability at the state level. This cooperative and iterative federalism relationship has resulted in emissions reductions beyond what either California or the EPA could have achieved on its own. New passenger vehicles are 99% cleaner today than when first regulated back in the 1960s. And regulating tailpipe emissions has more than paid for itself--the federal government estimates that every dollar spent to reduce emissions from vehicles results in nine dollars in benefits to public health, the environment, productivity, and consumer savings.

So now we come to August 2018, when the Trump Administration proposed rolling back harmonized fuel economy and greenhouse gas tailpipe standards agreed upon by both California and the federal government back in 2012, freezing the standards at 2020 levels instead of continuing to ratchet down through the 2025 model year. Ignoring the successful history described above, the Trump Administration also seeks to revoke California’s waiver to set their own standards--attempting to lock California into the proposed weakened federal standards. Such a revocation is completely unprecedented. Under George W. Bush, the EPA once denied a request for a waiver (and even that was later reversed by the Obama Administration)--but the EPA has never revoked a waiver once it has already been granted to California.

As we detail in the Issue Brief published today, not only does revoking California’s waiver fly in the face of federalism principles and threaten the tremendous environmental progress made over the past five decades, we believe revoking the waiver is also legally indefensible for three primary reasons. First, the Clean Air Act does not provide EPA with the authority to revoke a waiver; it allows EPA to grant or deny a waiver but not to revoke one. Second, California’s waiver continues to satisfy all requirements of the Clean Air Act provisions guiding when EPA should grant a waiver request. Revocation of California’s waiver would ignore the “compelling and extraordinary” conditions that have supported California’s waiver in the past, conditions which, if anything, have become even more compelling. Finally, though the Trump Administration argues that California’s greenhouse gas tailpipe standards are preempted by the federal Department of Transportation’s authority to issue fuel economy standards, there is virtually no support for this position. Multiple federal courts have already rejected this argument in earlier challenges to California’s first tailpipe standards, and these arguments are no more convincing now than when they were rebuffed in 2008.

The proposed rule issued last August is still just that--a proposal. A final rule was previously expected to be released in March, but this date may be pushed back given the recent federal government shutdown. Negotiations between acting EPA Administrator Andrew Wheeler and California Air Resources Board Chair Mary Nichols continue, and one hopes that the Trump Administration will back down from this environmentally catastrophic and legally indefensible proposal. But if the final rule includes the waiver revocation as proposed, we believe such a move should be overturned in court for all the reasons we’ve outlined in today’s Issue Brief.