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Wisconsin

No DNC for Houston

Alas.

Democratic National Committee officials announced Monday that the party’s 2020 convention would take place in Milwaukee.

The announcement is a setback for Houston, which was a final contender to host the convention. Miami was also on the short list.

Houston Democratic insiders who were pushing for the convention have said the city’s convention center and hotel space were indisputable strengths. But ultimately, the selection of Milwaukee was the decision of one person: DNC Chairman Tom Perez.

It also is an indicator of a Democratic party that is attempting to take back a state it lost in the 2016 presidential campaign.

[…]

The Harris County Democratic Party released a statement Monday morning congratulating Milwaukee Democrats and expressing disappointment at getting passed over.

“We’d like to thank everyone who worked so hard to showcase the unparalleled diversity and culture of our hometown,” the statement read. “Texas is a battleground state and our 38 electoral votes will change the roadmap to winning the White House.”

See here for the last update. This was the safe choice, and as of recent days seemed to be what everyone was expecting. For obvious reasons, I would have preferred Houston, but it is what it is and I can understand the decision. Better luck next time, I suppose.

2020 DNC update

Houston remains in the running, but who knows how this will go.

Democratic National Committee Chairman Tom Perez is choosing among Houston, Miami and Milwaukee. In recent weeks, some Democrats have privately suggested Milwaukee would get the nod, and a sense of finality set in once the DNC in December paid what were billed as the last visits to each city before a decision was made.

[…]

Houston, the nation’s fourth-largest city, has few logistical concerns given its big-event capability put on display as recently as the Super Bowl in 2017.

But Houston must prove it can collect the private financing to put on the convention, according to multiple Democrats with knowledge of the negotiations who spoke on condition of anonymity to discuss the talks candidly. The primary reason for the potential shortfall: Democratic officials asked the bid committee to come up with the money without tapping the oil and gas industry, which has long fueled the city’s economy but has become anathema to the Democratic base as climate change becomes a high-profile issue.

That’s a source of frustration for some Texans.

“Milwaukee’s being funded by Wall Street,” said an exasperated Texas Democratic Chairman Gilberto Hinojosa, a reference to the corporate money that is always a part of both major parties’ conventions.

Houston also has a lingering labor and wage dispute between Mayor Sylvester Turner and the city’s firefighters. A top Democratic official said the party is loath to risk negative media coverage that could harm a presidential nominee who will be heavily dependent on public- and private-sector organized labor — particularly in key Midwest battleground states that delivered President Donald Trump’s victory in 2016.

See here for the most recent update. Obviously, I think Houston is the best choice, but the article makes it sound like Milwaukee is the frontrunner. I’ll grant that people from cooler climes will be less likely to melt on the sidewalk there than here, but come on. Just stay inside and use the tunnels, it’ll be fine. Anyway, I’m sure we’ll know soon enough.

SCOTUS punts on non-Texas redistricting cases

The Magic 8 ballSCOTUS says Reply hazy, try again later in the two partisan gerrymandering cases before it.

On Monday, the court punted two major political redistricting cases: Gill v. Whitford, a challenge to Wisconsin’s Republican gerrymander, and Benisek v. Lamone, a challenge to Maryland’s Democratic gerrymander. Together, Gill and Benisek presented the Supreme Court with an opportunity to finally decide whether legislators violate the Constitution when they draw districts designed to dilute the power of voters’ ballots on the basis of their political associations. Instead, the court shooed away both cases on plausible but not entirely satisfactory grounds. Its nondecision will allow partisan gerrymandering to continue for the time being. Yet Justice Elena Kagan’s concurring opinion provides a road map for voting rights advocates to follow in the future—one that might attract Justice Anthony Kennedy’s vote if he remains on the court.

Ironically, Gill’s assault on Wisconsin’s gerrymander failed for precisely the reason that so many advocates thought it would succeed. In 2004, the Supreme Court splintered on the question of whether the judiciary can strike down a legislative map drawn along unduly political lines. Kennedy declared that courts might be able to, because partisan gerrymandering constitutes a genuine threat to voters’ First Amendment rights to free association and expression. But first, Kennedy wrote, the courts would need reliable, manageable, and consistent “judicial standards” to determine when, exactly, a gerrymander infringes upon these rights.

Gill marked an effort to hand Kennedy that standard, in the form of the “efficiency gap.” This formula measures two types of “wasted votes”: “lost votes” cast for a defeated candidate and “surplus votes” cast for a winning candidate that weren’t necessary for her to win. As its creator explains it, the efficiency gap measures “the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast.” A large efficiency gap indicates a particularly egregious partisan gerrymander; an efficiency gap of 7 percent can entrench the majority party’s power indefinitely. Wisconsin’s GOP-drawn gerrymander has an efficiency gap of 13 percent, indicating that Democrats could not possibly win back a majority in the state legislature. The Gill plaintiffs used this calculation as proof that Wisconsin Republicans had trammeled their First Amendment rights.

But here’s the problem: In order to bring a lawsuit in federal court, an individual must have standing—a “particularized injury” that burdens their rights individually. And in Gill, the group of voters who sued Wisconsin Republicans had not proved that their specific votes had been diluted on account of their association with the Democratic Party. Instead, Chief Justice Roberts wrote in his majority opinion, they “rested their case” on a “theory of statewide injury to Wisconsin Democrats.” This statewide injury, Roberts held, was not sufficiently particularized to give the plaintiffs standing to sue. So he sent the case back down to the lower court, giving the plaintiffs another opportunity to prove that Wisconsin’s gerrymander directly injures them.

[…]

Kagan, on the other hand, wrote a concurring opinion, joined by the other three liberals, effectively providing the plaintiffs with guidance on how to prove standing next time around. After reiterating that partisan gerrymandering is “incompatible with democratic principles,” Kagan explained that the plaintiffs should now “introduce evidence that their individual districts” were drawn to dilute Democratic votes. Moreover, the lower court should still “consider statewide evidence,” such as GOP mapmakers’ explicit desire to create a map that disfavored Democrats. Taken together, this evidence should suffice to give the plaintiffs standing.

But Kagan went further, giving the plaintiffs a different route to victory on their second try. The justice explained that partisan gerrymandering may burden a voter’s constitutional rights even if she does not live in a gerrymandered district. In Wisconsin, for example, all members of the state Democratic party are “deprived of their natural political strength by a partisan gerrymander.” As a result, members of this “disfavored party … may face difficulties fundraising, registering voters, attracting volunteers, generating support from independents, and recruiting candidates to run for office.” Individual voters may have standing, Kagan wrote, when mapmakers burden their “associational rights” in this manner. And their injury—a broad harm to their “First Amendment rights of association”—would be fairly easy to prove.

I’ll let you read that story and the “more reading” links at the end for analysis, but that’s the gist of it there. Expect to see this case take another tour through the courts, with a different name or set of names on top. The main thing to remember otherwise is that these cases were about partisan gerrymandering, which is not a claim being decided in the Texas litigation. That one is an old-fashioned racial discrimination claim, so the court has no real basis to send it back. Though with this court, who knows. I was clearly of the opinion back in April when the case was argued that we would have a decision by the end of June, but now I think I got that wrong. The Gill case was argued last October, so based on that I now expect this to be handed down late in the year. But again, with this court, who knows? Ian Millhiser, Rick Hasen, Daily Kos, and Pema Levy have more.

SCOTUS takes up partisan gerrymandering

So much coverage on this potentially ground-breaking and earth-shaking case. Here’s the Washington Post:

Opponents of political gerrymandering had reason for optimism at the Supreme Court on Tuesday, with Justice Anthony M. Kennedy, the likely swing vote, appearing more in sync with liberal colleagues who seemed convinced that a legislative map can be so infected with political bias that it violates the Constitution.

But it’s what Kennedy didn’t say that could determine whether the court, for the first time, strikes down a legislative map because of extreme partisan gerrymandering. While he has previously expressed concerns about the political mapmaking practice, he has yet to endorse a way of determining when gerrymandering is excessive, and Kennedy give no sign at oral arguments Tuesday that he had found one.

In a case from Wisconsin that could reshape the way American elections are conducted, the Supreme Court heard from challengers that it was the “only institution in the United States” that could prevent a coming wave of extreme partisan gerrymandering that would distort the basic structure of democracy.

“Politicians are never going to fix gerrymandering,” said Paul M. Smith, representing Democratic voters who challenged a 2011 redistricting plan drawn by Wisconsin’s ruling Republicans. “They like gerrymandering.”

Even conservative justices skeptical of Smith’s argument seemed to agree that it was unsavory for members of the party in power to draw legislative districts to protect themselves and their own, and make it hard for opponents to ever gain power.

“Gerrymandering is distasteful,” said Justice Samuel A. Alito Jr. “But if we are going to impose a standard on the courts, it has to be something that’s manageable.”

Finding a test that courts could use to determine when political favoritism had become too great — the “Rosetta Stone,” Alito called it — has always been the hurdle. Kennedy said as much the last time the court examined the issue, in 2004.

If anything, Kennedy seemed more convinced this time around that the courts have a role in finding that partisan gerrymandering can be so extreme as to be unconstitutional.

He pressed lawyers for the state and its legislative leaders about whether it would be unconstitutional for a state to undertake the redistricting process by forthrightly saying it intended to favor one party over another.

Erin Murphy, representing the legislative leaders, hesitated and said that was not the case in Wisconsin.

Kennedy was undeterred. “I’d like the answer to the question,” he said.

Murphy and the state’s lawyer, Solicitor General Misha Tseytlin, agreed that would be unconstitutional.

See here, here, and here for some background. Basically all the coverage was focused on Justice Kennedy, who is not only our supreme overlord the main swing vote in the chamber but also who had suggested that a partisan gerrymander could be illegal if there were a good, objective standard to determine it. That’s what this case is about, and it seems likely that if this isn’t where he draws a line, there isn’t a line he’ll be willing to draw. This case is about Wisconsin, but if SCOTUS sides with the plaintiffs it would surely have a broad impact, as many other purple or even blue states – Florida, Pennsylvania, Michigan, Ohio, Virginia, North Carolina – have similarly extreme gerrymanders in them. We’ll know by the spring. SCOTUSBlog, the NYT, Rick Hasen, Ari Berman, Kevin Drum, Mark Joseph Stern, Dahlia Lithwick, and ThinkProgress have more.

Paxton joins defense of Wisconsin partisan gerrymandering

Of course he does.

Best mugshot ever

Texas Attorney General Ken Paxton is backing Wisconsin in a high-profile case asking the U.S. Supreme Court whether lawmakers can go too far when drawing political maps to advantage one party.

Paxton, a Republican, filed an amicus brief seeking to protect the status quo in political gerrymandering — redistricting maneuvers that allow controlling parties to bolster their majorities in state Legislatures and Congress even when statewide demographics shift against them.

“Never has the U.S. Supreme Court disallowed a legislative map because of partisan gerrymandering, and it surely can’t find fault with Wisconsin’s, which is lawful, constitutional and follows traditional redistricting principles,” Paxton said in a statement Tuesday.

[…]

It’s unclear how the Wisconsin case could directly affect the pending case in Texas, because of the different timelines and arguments being made. And the Supreme Court must also decide whether it has the jurisdiction to rule in the Wisconsin case, a question it left open in accepting the challenge.

But if the high court ultimately establishes a new limit on the role politics can play in redistricting, it would almost certainly affect map-drawing in Texas going forward and give opponents of Texas’ current maps a new avenue to challenge them.

See here for some background, and here for the Paxton brief. It’s unlikely this case will affect the current one, at least at this time, but it could make a difference of some kind down the line. At this point, anything that legally restricts gerrymandering will hinder the Republicans, though of course some day the shoe may be on the other foot. But for now, the reason why Paxton would want to pitch in is obvious.

Another look at redistricting in Texas

We’re in the spotlight right now.

The odd shapes tell the story.

A huge Republican majority in the Houston-area 2nd congressional district represented by Ted Poe curls around the region from Lake Houston, northeast of the city, makes a meandering, snakelike loop out to the western suburbs, and ends south of downtown near Loop 610.

Nearby, the 29th congressional district has a big Democratic majority and is represented by Gene Green. It resembles a partially-eaten doughnut, forming an undulating shape from north to east to south.

Like virtually all 36 congressional districts in Texas – Republican Will Hurd’s West Texas district being the only exception – neither Poe’s nor Green’s district is particularly competitive in general elections.

The political art of drawing boundaries to protect incumbents is called gerrymandering – a word derived from salamanders, lizard-like creatures known for their slender bodies and short limbs. The whole idea behind the practice is to carve up the political map for partisan advantage.

It happens everywhere, and has been the subject of legal challenges for years.

And now the U.S. Supreme Court has signaled it may take a fresh look in a Wisconsin redistricting case that has the potential to fundamentally alter the political landscape from Texas to Washington, D.C.

[…]

“Clearly the Texas congressional map, and the state House map and state Senate map, are partisanly gerrymandered, and they are way out of balance with the political performance of the state,” said Matt Angle, head of the Lone Star Project, which seeks to make Democratic gains in Texas.

Some Republicans downplay the significance of the Wisconsin case, saying that they believe Texas’ political boundaries are already fair and, most importantly, legal.

“Unless the court does some serious overreach, we shouldn’t be facing needing to redraw those lines at all,” said James Dickey, the newly-elected chairman of the Texas Republican Party.

The problem for Texas Republicans is that the state’s congressional district boundaries already are under legal challenge over alleged racial discrimination for the way minorities were packed into a limited number of urban districts.

Some of the boundaries drawn in 2011 already have been ruled intentionally discriminatory, and a federal court is set to hear a challenge next month on a new map drawn in 2013.

Unlike the Texas challenge, which focuses in the racial makeup of political districts, the legal fight in Wisconsin is over the partisan makeup of the state’s boundaries, which also favor Republicans.

But the two criteria are closely related. “If you correct for the racial discrimination in Texas, you go a long way toward balancing the partisan makeup of these districts,” Angle said.

[…]

In Texas, Angle argues, “There’s no question what’s happened is you’ve got safe districts created, Democrats packed into as few districts as possible, and the rest of them cracked into as many safe Republican districts as possible, and what that’s done is it’s made the primaries matter the most, and primaries are driven by the most ideological people within their party.”

In the Wisconsin case, Gill v. Whitford, the court will be asked to look at the allegedly skewed results of the state’s recent elections. In 2012, Republicans won 60 of 99 legislative seats despite winning only 48.6 percent of the state’s two-party statewide vote. In 2014, Republicans won 63 seats with only 52 percent of the statewide vote.

Texas Democrats say they could make the same case. While Democratic presidential candidates won more than 40 percent of the statewide vote in the past three elections, Democratic voters were distributed in such a way that their party controls only about a third of the state’s legislative and congressional seats.

Critics call that an “efficiency gap,” which can only be explained by partisan gerrymandering. Now before the high court, they hope to find a way to close the gap.

“This is a historic opportunity to address one of the biggest problems in our electoral system,” said Wendy Weiser of the Brennan Center for Justice, a left-leaning law and public policy institute at the New York University School of Law. “Gerrymandering has become so aggressive, extreme and effective that there is an urgent need for the Supreme Court to step in and set boundaries.”

Conservative groups argue that there is no way to estimate what each party “should” win in a fair election. The redistricting tests that have been proposed to close the “efficiency gap” in Wisconsin, they say, are arbitrary.

See here for more on the Wisconsin case, which will not affect the ongoing Texas litigation at this time. Poe’s district is certainly a Republican one, and for most of this decade it was deep red, but after a significant Democratic shift in 2016, it’s still very favorable to Republicans but not overwhelmingly so. Given the overall trends in Harris County, I suspect that the fate of CD02 in the 2021 redistricting cycle will be to take on a piece of Montgomery County in order to keep it sufficiently Republican, much as Pete Sessions’ CD32 needed to incorporate some of Collin County in 2011 to stay red.

It’s really hard to say what will happen going forward. Between the Texas case and the Wisconsin and North Carolina cases, the range of outcomes stretches from “no real difference” to multiple seats flipping this year with fewer ways for the Republicans to put their thumb on the scale in 2021. As I’ve noted before, Texas isn’t all that out of whack in terms of how many seats each party wins, but Republicans have gained a huge advantage in multiple swing states thanks to having gained control of those states’ legislatures in 2010. SCOTUS could put a stop to that going forward, or they could just apply a remedy to Texas for its own brand of egregious gerrymandering, or they could shrug their shoulders and decline to get involved. We’ll just have to wait and see.

No partisan gerrymandering claims (yet) in Texas

From Texas Redistricting:

The three-judge panel in the Texas redistricting case has issued an order striking the expert report offered by the Texas Democratic Party in connection with its partisan gerrymandering claim. However, the court said that it would allow the TDP to make an offer of proof under Federal Rule of Evidence 103 so that the report could be part of the record on appeal.

The panel said that it was striking the report because it had previously dismissed the TDP’s partisan gerrymandering claim regarding both the 2011 and 2013 maps.

The long and the short is that the court won’t be reviving the partisan gerrymandering claim and any remedy for the TDP will have to come from the Supreme Court when the case is eventually appealed (after the court decides the other issues in the case).

See here for more on the partisan redistricting case, which came out of Wisconsin. The Texas plaintiffs still have their discriminatory intent rulings, which offer a fair bit of potential for change, as does the recent SCOTUS ruling on racial gerrymandering. It’s possible the Wisconsin case could affect the next round of redistricting in 2021, but I wouldn’t count on anything before then. In the meantime, this case is moving along, and with any luck we’ll have us some new maps in place for next year.

SCOTUS takes on Wisconsin partisan gerrymandering case

Monday’s big news.

Partisan gerrymandering exists because the Supreme Court allows it to exist. Although such gerrymanders are a form a viewpoint discrimination, which violates the First Amendment, Republican appointees to the Supreme Court have been reluctant to even let federal courts consider partisan gerrymandering cases — much less strike down actual gerrymanders.

That could all change, however, as the Supreme Court just announced it will hear Gill v. Whitford, a case that presents the most promising challenge to a partisan gerrymander in more than a decade. In Whitford, a divided three-judge panel held, in an opinion by Reagan-appointed Judge Kenneth Ripple, that Wisconsin’s state assembly maps violate the Constitution.

Notably, the plaintiffs’ arguments in Whitford are tailor-made to address a concern Justice Anthony Kennedy, the Court’s ostensible “swing” vote, raised in a 2004 opinion. In Vieth v. Jubelirer, the Court’s other conservatives joined an opinion by Justice Antonin Scalia, which would have slammed the door on partisan gerrymandering suits entirely. Kennedy, however, left the narrowest of cracks open in his separate concurrence.

[…]

Though Kennedy worried about “the failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights” — that is, the fact that it is difficult to come up with an objective test courts can use to determine which maps are gerrymanders — he also concluded that “if workable standards do emerge to measure these burdens . . . courts should be prepared to order relief.”

Whitford accepts this challenge by proposing a mathematical formula that judges can use to identify partisan gerrymanders. Gerrymanders work by forcing one party to “waste” votes. Voters are either “cracked,” pushed into districts where their party has no chance of winning; or “packed,” crammed into districts where their party has such an overwhelming majority that additional votes for their candidate are superfluous.

A gerrymander, scholars Nicholas Stephanopoulos and Eric McGhee, who devised the formula at the heart of Whitford, explain “is simply a district plan that results in one party wasting many more votes than its adversary.”

Stephanopoulos and McGhee’s formula counts the number of wasted Democratic votes that results in an election held under a particular map, and compares it to the number of wasted Republican votes. Maps that create a large disparity may then potentially be struck down as gerrymanders if the plaintiffs can also show that they were drawn with partisan intent.

I note this primarily because it’s always of interest when SCOTUS takes up a redistricting case, but also because as the Trib notes, there could be an effect on Texas as well.

But the cases are very different: The Wisconsin case revolves around whether partisanship played too large a role into redistricting, while the Texas case focuses on race. In fact, part of Texas’ argument claims redistricting was indeed based on partisanship — something courts have allowed in the past. “A rule against partisan gerrymandering will have a major impact for communities of color, where partisanship unfortunately has often been used as an excuse for actions that hurt minorities,” [Michael Li, redistricting and voting counsel at New York University’s Brennan Center for Justice] said in a statement.

What’s next? It’s unclear if the Wisconsin case, which the U.S Supreme Court is set to consider in its term that begins in November, could affect the pending case in Texas, because of the different timelines and arguments being made. And the justices must also decide whether they even have the jurisdiction to rule in the Wisconsin case, a question they left open in accepting the case. But the high court could ultimately establish a new limit on the role politics plays into redistricting. If that were to occur, it would almost certainly affect map drawing in Texas going forward and give opponents of the current Texas’ maps a new avenue to challenge them.

The Michael Li statement is here. It seems likely to me that we will have a new Congressional map in Texas for 2018 based on the existing litigation, but there could be further action in the future after SCOTUS rules in the Wisconsin case. I should note that while Wisconsin is one of several particularly egregious states in terms of legislative gerrymandering – we’re talking states that are basically 50-50 at the Presidential level (or considerably bluer, as is the case in Virginia) but where Republicans have a two-thirds majority or close to it in their state House and Senate – Texas isn’t that ridiculous. Going by recent statewide results, you could argue Dems “deserve” somewhere between 58 and 65 House seats, and 12 or 13 in the Senate. That’s not out of the question for them next year if the 2018 winds blow favorably. We’ll see where this goes, and as always all eyes will be on Anthony Kennedy, our true lord and master. Daily Kos, the DMN, the WaPo, Texas Redistricting, and Rick Hasen have more.

Wisconsin case undermines even the scaled back bathroom bill

Special session or not, this could be a big deal.

The U.S. Court of Appeals for the Seventh Circuit likely just handed the Supreme Court a new case about a transgender student to consider. The Court’s opinion, issued Tuesday, eviscerates a Wisconsin school’s arguments for discriminating against one of its students.

Ashton Whitaker (“Ash”), now a 17-year-old senior, first filed suit against Kenosha Unified School District a little over a year ago, arguing that the school was illegally discriminating against him by prohibiting him from accessing the boys’ restrooms. He had previously used the restroom for six months without incident before the new policy was implemented. Ash was instead forced to using single-stall restrooms that were very far away from his classes and that further stigmatized him among his classmates. His bathroom usage was then policed, with the school even considering requiring him to wear bright green wristbands or stickers to easily identify him, though it never actually took that step.

Back in September, U.S. District Judge Pamela Pepper granted Ash a preliminary injunction against the policy, ensuring he could use the facilities that match his gender identity throughout his senior year. The school appealed, but Tuesday’s ruling upholds the injunction, allowing Ash to finish out the school year without being segregated because he is transgender.

The decision is very unforgiving of the school’s arguments against Ash’s integration, to say the least.

For example, the district claimed that Ash’s harm was “self-inflicted” because he didn’t take advantage of the accommodations that were provided. The decision noted that this argument fails for a number of reasons. First, segregating him to a separate bathroom caused anxiety related to his transition, as well as the fact that it invited scrutiny from his peers. This anxiety prompted Ash to avoid drinking water to avoid using the restrooms, which exacerbated physical symptoms he experiences due to his vasovagal syncope, a condition that causes him to experience fainting and/or seizures when dehydrated.

This was all in addition to the fact that the bathrooms were on the opposite side of the building from his classes. “Therefore,” the Court wrote, “he was faced with the unenviable choice between using a bathroom that would further stigmatize him and cause him to miss class time, or avoid use of the bathroom altogether at the expense of his health.”

The district had in turn argued that allowing Ash to use the boys’ bathrooms would somehow infringe on “the privacy rights of all 22,160 students” in the district. The Court dismissed this argument as being “based upon sheer conjecture and abstraction.”

Ash had used the boys’ bathroom for six months without incident. It was only after a teacher — not a student — noticed him using the bathroom that the policy was implemented. The district also claimed to have received just one complaint, and it was from a parent — again, not a student. The Court further countered that this reasoning “ignores the practical reality of how Ash, as a transgender boy, uses the bathroom: by entering a stall and closing the door.”

The parallel to Texas isn’t exact because it was school district policy in Wisconsin that was at issue, not state law, but as Vox explains, it’s the remedy that really matters.

If existing federal law and the 14th Amendment shield trans people from discrimination, then it’s not just Whitaker’s rights that are protected here, but all trans students’. And if bans against sex discrimination in particular apply to trans people, then it’s not just students’ rights that are protected, but all trans people who face discrimination in other settings where sex discrimination is banned — so not just schools, but the workplace and housing as well.

[…]

The Seventh Circuit Court’s case does not have the limitation of being attached to the guidance or any other regulation that the Trump administration could rescind. Instead, it poses the straight question: Are trans people protected under federal law? If other courts agree with the Seventh Circuit Court, that could reshape the face of civil rights laws in America — and help fill a void that’s left trans people legally unprotected from discrimination across most of the US.

Under most states’ laws and federal law, trans people aren’t explicitly protected from discrimination in the workplace, housing, public accommodations, and schools. This means that a person can be fired from a job, evicted from a home, kicked out of a business, or denied the correct bathroom facility just because an employer, landlord, business owner, or school principal doesn’t approve of the person’s gender identity.

LGBTQ advocates argue, however, that federal civil rights law should already shield trans people from discrimination.

The argument: Discrimination against someone based on their gender identity is fundamentally rooted in sex-based expectations. For example, if someone discriminates against a trans woman, that’s largely based on the expectation that a person designated male at birth should identify as a man — a belief built on an idea of what a person of a certain sex assigned at birth should be like. So since federal civil rights laws, such as Title IX, ban sex discrimination in the workplace, housing, and schools, they should ban discrimination against trans people in these settings as well.

This isn’t just a wild interpretation by LGBTQ advocates; there’s legal precedent for it. Joshua Block, an American Civil Liberties Union attorney who worked on Grimm’s case, cited a 1998 Supreme Court case, Oncale v. Sundowner Offshore Services Inc., in which the Court unanimously agreed that bans on sex discrimination prohibit same-sex sexual harassment. Same-sex sexual harassment was not something the authors of federal civil rights laws considered, but it’s something, the Supreme Court said, that a plain reading of the law protects.

Oncale says that’s irrelevant whether [Congress] contemplated it,” Block previously told me. “That’s not how laws work. This is literal sex discrimination. Whether or not that’s what Congress was focused on doesn’t make it any less a type of discrimination covered by the statute.”

Seventh Circuit Judge Ann Claire Williams embraced this view in her ruling on Tuesday: “A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX.”

But the court went even further — arguing that the Kenosha Unified School District’s actions violated the 14th Amendment. The school district claimed that it treats all boys and girls equally — meaning it forces them all to use certain bathrooms based on the sex they were assigned at birth instead of their gender identity. But Williams ruled that this is “untrue,” adding, “Rather, the School District treats transgender students like Ash, who fail to conform to the sex‐based stereotypes associated with their assigned sex at birth, differently.”

You can see how that would apply to Texas, or any other state that doesn’t already have a non-discrimination law that includes transgender people. It’s just theoretical at this point because Texas isn’t in the Seventh Circuit, but the case is a road map for any litigation that would result from the passage of even the watered-down bathroom bill that could have passed in the regular session. That won’t stop Dan Patrick, of course, and Lord only knows what the Fifth Circuit might do once such a case crossed their threshold, but the point here is that a precedent now exists, and anything the bad guys do from here will have to take that into account. RG Ratcliffe and Buzzfeed have more.

Federal court rules there is such a thing as a too-partisan gerrymander

Worth keeping an eye on.

In a potentially transformative decision that could hobble partisan gerrymandering and restore a degree of fairness to many legislative races, a divided federal court held on Monday that Wisconsin’s state assembly maps are unconstitutional.

The court reached this decision despite a web of Supreme Court decisions that have discouraged, if not exactly foreclosed, lower courts from striking down gerrymandered maps — a testament both to the egregiousness of Wisconsin’s maps and the creativity of the lawyers who challenged them.

Whether Monday’s decision in Whitford v. Gill will amount to more than some excited headlines followed by a sinking feeling of powerlessness, however, is likely to depend entirely on how Justice Anthony Kennedy views this case when it almost certainly reaches the Supreme Court.

Whitford asked the court to find its way through a winding path left by Kennedy in his concurring opinion in Vieth v. Jubelirer. Though Kennedy’s four most conservative colleagues called upon courts to simply give up on trying to solve partisan gerrymanders in Vieth, Kennedy kept a single light of hope burning for Americans who want to choose their own lawmakers, rather than having lawmakers choose their own voters.

Though Kennedy fretted about “the failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights” in his Vieth opinion, he added that “if workable standards do emerge to measure these burdens . . . courts should be prepared to order relief.”

See here for the background, and be sure to read the whole post for the full explanation. Basically, this ruling says that if too many of one party’s voters are packed into too few districts, the map may be illegal. That could be a “workable standard” for judging such things, by Justice Kennedy’s reasoning. If this survives SCOTUS scrutiny it could have a significant effect in states like Wisconsin, where Democrats almost literally can’t win a legislative majority. However, if this standard were to be applied to Texas, the effect would be fairly minimal. Based on 2016 results, Democrats “should” have something like 62 or 63 seats in the State House. They actually have 55, with one race pending a recount though unlikely to change. The difference isn’t nothing, but it would be a few seats less if we were considering off-year elections, and in practical terms it wouldn’t change much. Be that as it may, this is worth watching if only to see if SCOTUS updates the standard it set in Vieth v. Jubelirer. A statement from the Campaign Legal Center, which represented the plaintiffs, is here, and Rick Hasen has more.

Friday was a very good day for voting rights

In North Carolina:

Still the only voter ID anyone should need

Still the only voter ID anyone should need

The United States Court of Appeals for the Fourth Circuit’s opinion in North Carolina State Conference of the NAACP v. McCrory is nothing short of a beat down. The court does not simply tear apart major provisions of the law, it catches state lawmakers at the center of a conspiracy to disenfranchise black voters, and it calls them out onto the carpet for it. By the time the court is done scraping the bloody mass of what was once North Carolina’s attempts to justify this law off the floor, the state’s leadership has been thoroughly shamed.

The court’s opinion — primarily written by Judge Diana Gribbon Motz, a Clinton appointee — is rooted in an important understanding of how race and partisanship interact in states like North Carolina with large minority populations.

[…]

As Judge Motz lays out the facts of this case, it’s hard not to come away with the conclusion that North Carolina’s lawmakers wanted to get caught engaging in unlawfully racial discrimination. Just one day after the Supreme Court gutted a key provision of the Voting Rights Act in Shelby County v. Holder, effectively eliminating federal supervision that could have halted this voter suppression law before it ever took effect, “a leader of the party that newly dominated the legislature (and the party that rarely enjoyed African American support) announced an intention to enact what he characterized as an ‘omnibus’ election law.”

Before enacting that law, moreover, “the legislature requested data on the use, by race, of a number of voting practices.” After receiving that data, “the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.” Indeed, this data appears to have guided the state’s lawmakers in drafting a law that would have maximal impact on African-Americans.

The law did not simply contain a voter ID provision. Rather “the legislature amended the bill to exclude many of the alternative photo IDs used by African Americans” while simultaneously retaining “only the kinds of IDs that white North Carolinians were more likely to possess.” (Although, in fairness, this provision was later watered down.)

The legislature’s data on racial voting patterns showed that “African Americans disproportionately used the first seven days of early voting,” and so “the General Assembly amended the bill to eliminate the first week of early voting.” The data showed that “African American voters disproportionately used [same-day registration] when it was available,” and so same-day registration was cut as well. The law also eliminated out-of-precinct voting, which “required the Board of Elections in each county to count the provisional ballot of an Election Day voter who appeared at the wrong precinct, but in the correct county, for all of the ballot items for which the voter was eligible to vote.” African-Americans, meanwhile, were especially likely to take advantage of this practice.

Yet for all these changes, the lawmakers exempted absentee voting from the law’s new voter ID restriction, and it did so after discovering “that African Americans did not disproportionately use absentee voting; whites did.” Thus, as Motz summarizes the facts of the case, “the General Assembly enacted legislation restricting all — and only — practices disproportionately used by African Americans.”

Wonkblog adds on:

Most strikingly, the judges point to a “smoking gun” in North Carolina’s justification for the law, proving discriminatory intent. The state argued in court that “counties with Sunday voting in 2014 were disproportionately black” and “disproportionately Democratic,” and said it did away with Sunday voting as a result.

“Thus, in what comes as close to a smoking gun as we are likely to see in modern times, the State’s very justification for a challenged statute hinges explicitly on race — specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise,” the judges write in their decision.

This is about as clear-cut an indictment of the discriminatory underpinnings of voter-ID laws as you’ll find anywhere. Studies have already shown a significant link between support for voter ID and racial discrimination, among both lawmakers and white voters in general.

“Faced with this record,” the federal court concludes, “we can only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent.”

Ari Berman and Rick Hasen have their own analyses. North Carolina can ask for an en banc review, where the makeup of the full Fourth Circuit is unlikely to favor them, and they can appeal to SCOTUS, where they are unlikely to get five votes. This ruling opens the door to North Carolina being put back under federal oversight – that is, preclearance – for changes to election laws there, but it did not require it. That may yet come, as may also happen with Texas once the district court here reviews the Fifth Circuit voter ID ruling. (On that note, the hearing on how to mitigate Texas’ voter ID law is now set for August 10.) For now, this pernicious law, which was at least as bad as Texas’, has been thrown out. That would be reason enough to celebrate, but we also got good rulings in Wisconsin and Kansas, too. It’s clear to me that what we need is a constitutional amendment affirming that anyone who is eighteen, a citizen, and not currently under a felony conviction, has the right to vote and that any law that abridges that right is illegal. There are a lot of things on the progressive to-do list right now, but that one needs to be up there.

A new way to attack gerrymandering

From Think Progress:

America’s anti-gerrymandering law is an incoherent mess.

Thirty years ago, in Davis v. Bandemer, the Supreme Court held that a partisan gerrymander may be struck down as unconstitutional upon proof of “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” Yet the Court struggled to determine where to draw the line between lawful and unlawful maps.

Nearly two decades later, in Vieth v. Jubelirer, the justices seemed even more confused. Four of them called upon federal courts to simply give up on solving the problem of partisan gerrymanders. Four others splintered into a maze of dissenting opinions, altogether proposing a total of three different standards for weighing alleged gerrymanders. In the middle, Justice Anthony Kennedy threw up his hands in frustration. “The failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights make our intervention improper,” Kennedy wrote. Nevertheless, he concluded that “if workable standards do emerge to measure these burdens . . . courts should be prepared to order relief.”

Now, a dozen years after Kennedy despaired for want of a workable way to uncover partisan gerrymanders, two young scholars may have cracked the code. In a paper published in the University of Chicago Law Review last year, law professor Nicholas Stephanopoulos and political scientist Eric McGhee propose a mathematical formula judges can use to identify suspect maps. This formula is now the subject of a federal lawsuit, Whitford v. Nichol, which has survived two motions, submitted by defenders of Wisconsin’s Republican-drawn maps, that sought to kill the case. Moreover, because of a quirk of federal law, the case is overwhelmingly likely to wind up in the Supreme Court.

[…]

The test offered by the plaintiffs in Whitford, which is based on Stephanopoulos and McGhee’s scholarship, is not a perfect solution to the problem of gerrymandering. For one thing, it effectively gives lawmakers a free election where they can enact gerrymandered maps and not need to worry that a court will strike them down in advance of the election. This is because the only way to calculate a map’s efficiency gap is to first run an election under that map and then add up the wasted votes.

Additionally, it may not catch the most devious gerrymanders. In a nod to Davis‘ holding that plaintiffs must show “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group” in order to prevail in a gerrymandering case, theWhitford plaintiffs explain that a high efficiency gap is not enough to prove gerrymandering, or even to establish a reputable presumption that a map is gerrymandered. Rather, to win their case, plaintiffs challenging a gerrymander must also show that the mapmakers acted with discriminatory intent when they drew the maps.

That’s probably not going to be a high bar to clear in Whitford where it is uncontested that Wisconsin Republicans “hired a law firm and a political scientist to design an Assembly plan that would maximize the electoral advantage of Republicans.” In other cases, however, lawmakers may learn to do a better job of covering their tracks.

Whatever its flaws, however, the plaintiffs’ proposed standard in Whitford does have one important virtue: it may have a better likelihood of prevailing in court than any other standard previously proposed by litigators. In federal litigation, defendants typically can make multiple attempts to convince a court to kill a case before it goes to a full trial. Whitford has now survived two of the most potent weapons in the Wisconsin defendants’ arsenal — a motion to dismiss and a motion for summary judgment. Significantly, they’ve done so despite the fact that the three-judge panel hearing this case includes a Reagan appointee and a George W. Bush appointee (the third judge was appointed by President Jimmy Carter).

The fact that two Republican appointees believe that Whitford deserves a full trial suggests that some conservative justices, like Kennedy, might be convinced that Stephanopoulos and McGhee have found the solution to the problem of partisan gerrymandering. Moreover, though the Supreme Court normally has discretion to turn away cases it does not want to hear, it has far less ability to ignore cases heard by three-judge district courts. So even if Kennedy (or, for that matter, a newly constituted Court that could soon include Supreme Court nominee Merrick Garland) would prefer not to wade into the fraught waters of partisan gerrymandering, it is far from clear that he’ll be able to avoid doing so.

The basics of the standard is measuring the number of “wasted” votes in each single-member district. Above a certain threshold, the evidence suggests that one party or the other has an unfair advantage. You can read the story and follow the links to see what you think about this proposed standard, the point is that if the courts buy it, it would greatly change how redistricting litigation is done. Among other things, it would apply equally to a map drawn by Democrats to screw Republicans. The plaintiffs in Wisconsin would have to win first, and then SCOTUS would have to take the case for this to be on the radar. Just keep it in mind, because it could be a factor in 2021 and beyond.

In other news, SCOTUS ruled on a redistricting case, too.

The Supreme Court upheld an Arizona redistricting commission’s right to draw legislative districts in a way that ensures minority representation, delivering a crushing rebuke on Wednesday to a group of Arizona tea party activists who’d sought to strike down the state’s redistricting maps in order to increase the voting power of rural white voters.

In Harris v. Arizona Independent Redistricting Commission, the plaintiffs were taking on Arizona’s Independent Election Commission, a body created through a 2000 ballot initiative intended to make redistricting less partisan. The commission produced its first legislative maps after the 2010 census. Its work came under fire almost immediately, primarily by Republicans. At one point, then-Gov. Jan Brewer (R) attempted to impeach the commission’s chair in what was seen as a power grab. When that failed, in 2012, the Republican-led state legislature filed a lawsuit arguing that the ballot measure that created the commission was unconstitutional because it deprived the legislature of its redistricting power. The lawsuit went all the way to the US Supreme Court, which last June ruled 5-4 in the commission’s favor.

In the current lawsuit, filed in 2014, the plaintiffs, all Republicans, argued that the commission diluted their voting power by packing more people into Republican districts while underpopulating Democratic ones. They wanted the court to mandate that all district have almost exactly equal populations; the current ones vary by 4 to 8 percent. The commission, in turn, responded that it drew the districts in such a way as to win approval from the Justice Department, in compliance with the Voting Rights Act. Due to Arizona’s long history of suppressing minority voting, it was one of the jurisdictions required under the Voting Rights Act to clear any changes to legislative districts with the Justice Department before implementing them. The Supreme Court gutted this requirement in Shelby County v. Holder in 2013, but it was in place when Arizona redrew its legislative maps.

If the Harris plaintiffs had been successful, the case could have opened the floodgates to lawsuits challenging how states around the country draw their legislative districts. But in an opinion written by Justice Stephen Breyer, the court ruled unanimously that Arizona’s maps were indeed designed to comply with federal law in ensuring minority representation, and that the minor population deviations were acceptable.

SCOTUSBlog explains what this unanimous decision means.

In his opinion for the Court, Breyer explained that the Constitution requires states to try to distribute residents evenly among legislative districts, but it “does not demand mathematical perfection.” In particular, states can draw districts with populations that aren’t perfectly equal if there is a good reason to do so – for example, to draw districts that are compact or to ensure that a city or county is not split up. And the fact that districts aren’t perfectly equal, standing alone, does not mean that a redistricting map violates the Constitution, Breyer explained, if the largest deviation from perfect equality is less than ten percent.

When, as in this case, the deviation is less than ten percent, plaintiffs like Wesley Harris and his fellow voters must meet a more difficult standard: they must show that “it is more probable than not” that the deviation is attributable to some other, illegitimate reason. And, the Court concludes, Harris cannot do so here. When the commission was drawing the maps after the 2010 census, its primary consideration was whether the maps would comply with the federal Voting Rights Act. Among other things, that act prohibits new redistricting plans that would decrease the number of districts in which minority groups can elect candidates of their choice. The evidence in the case, the Court reasons, reflects that any deviations from equally populated districts were largely attributable to the commission’s efforts to make sure that the plan contained enough of these “ability to elect” districts to pass muster under the Voting Rights Act.

But, the voters had protested, party politics must have entered (improperly) into the mix: after all, virtually all of the Democratic districts have populations that are lower than they would be if all districts contained the same number of people – which would give more voting power to the residents in those districts – while most of the Republican districts have populations that are greater than they would otherwise be, giving those residents less voting power. The Court seemed to regard this as a matter of correlation, rather than causation, though. Noting “the tendency for minority populations in Arizona in 2010 to vote disproportionately for Democrats,” it suggested that, in its efforts to ensure that it had enough “ability to elect” districts to comply with the Voting Rights Act, that the commission may have had to move “other voters out of those districts, leaving them slightly underpopulated.”

Both stories reference the recent Evenwel decision, since the plaintiffs in both cases were conservative activists. There’s some tension between this case and the Wisconsin one, since the Court ruled here that compliance with the Voting Rights Act is an acceptable reason for population variances in the service of drawing minority “ability to elect” districts, and a lot of these districts are going to show up as outliers in the wasted-vote test. I presume there’s a way to harmonize these two competing interests, either in the standard for calculating “wasted votes” or in a legal standard the courts will eventually devise. Just a reminder that redistricting is often messy no matter how it’s done. Daily Kos has more.

Republican attorneys general file briefs in support of Texas’ voter ID law

Birds of a feather.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Fifteen Republican-controlled states are wading into the contentious court fight over Texas’ voter ID law, arguing in a legal brief that similar laws around the country have already been upheld by the courts.

[…]

Ahead of oral arguments [this] month, Indiana Attorney General Greg Zoeller is leading a coalition of GOP states supporting Texas’ controversial measure. In a recent court filing with, Zoeller’s office argues that a ruling against Texas’ measure could create “uncertainty for States attempting to enforce or enact voter ID laws.”

“This, in turn, would leave State voter ID laws in a constant state of flux,” Indiana Solicitor General Thomas Fisher writes in an amicus brief.

Aside from Indiana, the states included on the amicus are: Alabama, Arizona, Arkansas, Georgia, Kansas, Louisiana, Michigan, Nevada, Ohio, Oklahoma, South Carolina, Utah, West Virginia, and Wisconsin.

Indiana’s voter ID measure was upheld in 2008 by the U.S. Supreme Court, which rejected arguments that the law imposed burdens on minority groups less likely to have photo identification required to vote. In the amicus filing, Indiana argues “there are no meaningful differences between” its voter ID measure and the one passed by Texas lawmakers in 2011.

Wisconsin and Georgia have also had their respective measures upheld in court. Earlier this week, a federal judge upheld North Carolina’s voter ID law.

In its filing, the coalition of GOP states noted that a federal appeals court used the Supreme Court ruling in Indiana’s case to uphold Wisconsin’s law, which had been found by a lower court to have disenfranchised up to 300,000 voters.

See here and here for some background. This brief was filed before SCOTUS issued its ruling on the motion before it to decide whether or not to allow enforcement of voter ID for the 2016 election in Texas. It was originally enjoined by the district court, but the Fifth Circuit lifted the stay for the 2014 election, and SCOTUS declined to get involved at the time, saying it was too late in the process. As for the other cases cited, the North Carolina verdict was in district court; there is some optimism that the Fourth Circuit may overrule it, but we’re at the very beginning of that process, and the first step is to try to get an injunction for this November. The Wisconsin voter ID law is still the subject of a lot of conflict. One of the federal appeals court judges that upheld the Indiana law has since thoroughly recanted his opinion on voter ID. Perhaps SCOTUS will do the same when it inevitably gets another crack at it. Having Merrick Garland or a President Clinton appointee on the bench when that case gets heard would sure be nice. You know, in case you needed another reason to vote this fall.

Hey, how about another lawsuit against Obamacare?

Sure, why not?

It's constitutional - deal with it

It’s constitutional – deal with it

Six states filed a new lawsuit Wednesday against the Obama administration over the Affordable Care Act.

The complaint that Texas, Wisconsin, Kansas, Louisiana, Indiana and Nebraska filed in the Northern District of Texas takes issue with the Health Insurance Providers Fee assessed to health insurers to cover federal subsidies.

The lawsuit says nothing in the Affordable Care Act’s language provided clear notice that states would also have to pay the fee.

“This notice was not even provided by rule but was ultimately provided by a private entity wielding legislative authority,” the suit says.

The suit seeks an injunction against the federal rules that say states are responsible for the fee. It also asks that states be refunded for what they’ve already paid.

The story says that the total cost of these subsidies is “$13 billion and $15 billion from states over the next decade”, so we’re not talking budget-busting numbers. It’s more the principle of it, or at least I assume so given the characters in this drama. Maybe by the time this one reaches the Supreme Court, the Senate will have finally gotten around to confirming a ninth Justice. Maybe. Trail Blazers has more.

Court strikes down Texas voter ID law

Boom.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Less than two weeks before the start of early voting, a federal judge ruled the state’s photo voter ID law unconstitutional late Thursday and ordered state officials to drop the new requirements.

“The Court holds that SB 14 creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose,” U.S. District Judge Nelva Gonzales Ramos of Corpus Christi wrote in a 147-page opinion. “The Court further holds that SB 14 constitutes an unconstitutional poll tax.”

A spokeswoman for Attorney General Greg Abbott said the state would immediately file an appeal to the U.S. Fifth Circuit Court of Appeals.

“The State of Texas will immediately appeal and will urge the Fifth Circuit to resolve this matter quickly to avoid voter confusion in the upcoming election,” Lauren Bean said in an emailed statement. “The U.S. Supreme Court has already ruled that voter ID laws are constitutional so we are confident the Texas law will be upheld on appeal.”

[…]

The judge heard three weeks of evidence in September and issued her opinion on the same day that the U.S. Supreme Court stopped immediate implementation of a similar law in Wisconsin.

It was not immediately clear what will happen to this year’s general election. The judge said she would schedule a conference with the lawyers to discuss it, and a successful appeal by Abbott, who is also the Republican nominee for governor, could put the law back into effect for this election while the courts sort out a full appeal.

Here’s more on the Wisconsin voter ID ruling. There are two things to emphasize here. One is that in addition to striking down the law, Judge Ramos found intentional discrimination on the part of the state in passing the law. That potentially allows for Texas to be bailed back in to preclearance under Section 3 of the Voting Rights Act, which is something the Justice Department specifically sought. The other is that there’s a good chance that Judge Ramos’ ruling could be stayed, allowing voter ID to be implemented for this election while the appeals go forward. Rick Hasen explains.

In Ohio, the court changed the law close to the election, but more importantly, it imposed an order reestablishing 5 weeks of early voting when the state was still willing to give four. There was no significant burden on plaintiffs and so the lower courts were wrong to order this emergency relief. In North Carolina, North Carolina’s law, which I’ve dubbed the strict set of voting restrictions we’ve seen enacted as a package since the passage of the 1965 Voting Rights Act, should be found unconstitutional. But even so, under the Purcell v. Gonzalez principle, it was wrong for the 4th Circuit to make this change in the rules so close to the election (particularly where plaintiffs waited a while to seek a preliminary injunction [this has been corrected]).

That same Purcell principle applies even more strongly to Wisconsin. That is, even if the Supreme Court ultimately would say that Wisconsin’s law is constitutional and does not violate the Voting Rights Act, this is a very strong case under Purcell. (As I explained, the key question is whether Wisconsin has a strong enough state interest in its sovereignty over elections to implement a voter id law very quickly before the election, when there has been no preparation and when the undisputed evidence shows that, by the state’s own account, up to 10 percent of the state’s voters could be disenfranchised (a position the 7th Circuit en banc dissenters called shocking).

Finally, what happens now with Texas, with the huge win for challengers to Texas’s voter id law which Justin wrote about earlier? It is 4 am where I am and I may have missed it, but in all of the court’s findings—the Texas law violates the Equal Protection clause, is a poll tax, violates the Voting Rights Act, and engaged in enough intentional discrimination to be put back under preclearance–there is no discussion of whether the actual order will apply to this election and the injunction will stop its use in this election.

This order too creates a huge Purcell problem, as I’ve blogged, changing the rules so close to the election. If the district court orders an immediate stop to Texas’s id law, I expect the 5th Circuit (if not the Supreme Court) to reverse that on Purcell grounds.

He’s the expert, but I would argue that the default for the vast majority of voters has been not needing to show ID, and that it would be less disruptive to enjoin the law pending appeals. The Texas Election Law Blog, going by an earlier Justin Levitt post, thinks Judge Ramos’ decision was written to address the Purcell issue. I hope they’re right, but as always with matters involving the Fifth Circuit, I have no faith in their jurisprudence. A press release from the Brennan Center is here, the Chron story is here, and BOR, Burka, Newsdesk, and PDiddie have more.

Texas same sex marriage plaintiffs want the get oral arguments scheduled

They would like to get on with their lives, if it’s not too much trouble to Greg Abbott and the Fifth Circuit.

RedEquality

Austin lawyer Nicole Dimetman is pregnant and expects to give birth for the first time on March 15, lawyers trying to overturn Texas’ gay-marriage ban announced Sunday.

“The need for justice and equality has always been urgent,” San Antonio lawyer Neel Lane, of the firm Akin Gump Strauss Haurer & Feld, said in a statement. “This development — Nicole’s pregnancy — only underscores that. We hope the [U.S.] 5th Circuit [Court of Appeals] will do what it can to move this case forward expeditiously.”

Dimetman and 13-year partner Cleopatra De Leon, an Air Force veteran, were married in Massachusetts five years ago. They want Texas to recognize their marriage.

After they were married, De Leon gave birth to a boy, now four years old. Dimetman adopted him. But adoption is expensive and time-consuming, and the couple would like to avoid going through the procedure again, Lane said. He noted that while for heterosexual couples, the establishment of parental rights is automatic, De Leon would have to do the adopting this time — to be legally recognized as a parent of the child they’re expecting.

“More importantly, the child will be exposed to great uncertainty and insecurity if, for some reason, Dimetman is rendered incapable of caring for the newborn child,” Lane said. “For instance, if Dimetman did not survive childbirth, the baby could be an orphan without a parent directing the baby’s care.”

The appeals court hasn’t set a date for a hearing in the case. Most of the briefs have been filed, though Abbott is scheduled to respond to the plaintiffs’ latest arguments very soon.

Lane noted that a three-judge panel, yet to be named by the appeals court, will hear the Texas case and one from Louisiana. In the Louisiana case, a federal district judge ruled that state could ban same-sex marriage. Briefs in it are to be completed by Nov. 7, Lane said. So a November oral argument in the Texas case would be ideal, as Dimetman would like to attend, he said. It’s unwise for women to travel late in their pregnancies if that can be avoided, and as of next month, Dimetman won’t have entered her pregnancy’s third trimester, he said.

Their co-plaintiff Mark Phariss wrote an op-ed in support of Dimetman and DeLeon, basically daring the state of Texas to live up to its stated concern about “families”, which our leadership supports far more in the abstract than in reality. The concerns about possible complications with the pregnancy and their consequences are more than theoretical to Dimetman and DeLeon. I’ve said before and I’ll say again, I do not understand the morality of anyone that would work to make the lives of Nicole Dimetman and Cleopatra DeLeon and their children more difficult and less secure. I don’t know if the Fifth Circuit is going to abet justice or stand in its way in this litigation, but one way or another we need to get this show on the road.

That takes on an even stronger urgency now that the Supreme Court has denied petitions to hear appeals of the various appellate court decisions striking down state bans on same sex marriage. By doing so, all of the lower court decisions striking down those bans in Indiana, Wisconsin, Utah, Oklahoma, and Virginia will go into effect, which is to say same sex couples can legally get married in those states, and shortly thereafter in the other states within those judicial districts. If the Fifth Circuit upholds the lower court’s ruling in this case, it seems safe to assume that SCOTUS will let that ruling stand as well. If they overturn it, or perhaps if the Sixth Circuit beats them to it, then that ought to fast-track review. One way or the other, however, further delays are just foot-dragging in the hope of postponing the inevitable. Daily Kos, Texpatriate, TPM, and Unfair Park have more.

UPDATE: Good luck with that, Ted.

Louisiana breaks the streak

One in every crowd, I guess.

RedEquality

A federal judge [in New Orleans] upheld the state’s ban on same-sex marriage on Wednesday, going against what had been a unanimous trend of federal court decisions striking down such bans since the Supreme Court ruled on the matter last year.

In his ruling, Judge Martin L. C. Feldman of Federal District Court said that the regulation of marriage was left up to the states and the democratic process; that no fundamental right was being violated by the ban; and that Louisiana had a “legitimate interest … whether obsolete in the opinion of some, or not, in the opinion of others … in linking children to an intact family formed by their two biological parents.”

That this ruling ran counter to a wave of other federal decisions across the country in recent months was immediately noted by opponents of the ban.

“We always anticipated that it would be a difficult challenge,” said J. Dalton Courson, a lawyer for the plaintiffs, adding that the ruling would be appealed to the Fifth Circuit. “We certainly are disappointed considering the string of rulings in favor of same-sex marriage.”

Since the Supreme Court struck down the federal Defense of Marriage Act last year in the case of United States v. Windsor, there have been 21 consecutive federal court decisions finding that gay marriage bans were unconstitutional, according to the Human Rights Campaign, a gay rights group.

This tally includes cases that have made it to the appellate level: the 10th Circuit, in Denver, affirmed such rulings in Utah and Oklahoma, and the Fourth Circuit, in Richmond, Va., upheld the overturning of Virginia’s ban as well. Other cases are still waiting at the appellate level; a decision striking down Texas’s gay marriage ban has already been appealed to the Fifth Circuit.

With so much activity in the federal courts, legal experts believe that the Supreme Court is likely to rule more definitively on gay marriage during the next term, potentially rendering Wednesday’s decision moot within the next year.

TPM has a copy of the ruling. Judge Feldman apparently bought into the lurid slippery-slope arguments that hapless true-believer AGs have been unsuccessfully peddling elsewhere. The Fifth Circuit already has Texas’ appeal to deal with, once it gets around to putting it on their calendar. And in the time it took me to write this, the Seventh Circuit Court of Appeals overturned the ban on same sex marriages in Wisconsin and Indiana, thus starting a new win streak for the forces of equality. One way or another, this question will be decided by SCOTUS. One hope this time they don’t duck the big issue, and that they get it right again.

Lots of same sex marriage appeals about to happen

Busy times in the federal appeals courts.

RedEquality

Federal appeals courts soon will hear arguments in gay marriage fights from nine states, part of a slew of cases putting pressure on the U.S. Supreme Court to issue a final verdict.

If the appeals judges continue the unbroken eight-month streak of rulings in favor of gay marriage, that could make it easier for the nation’s highest court to come down on the side of supporters.

If even one ruling goes against them in the four courts taking up the issue in the coming weeks, it would create a divide that the Supreme Court also could find difficult to resist settling.

“We’re going to be racking up more courts of appeals decisions, and every one we get puts more pressure on the Supreme Court to weigh in,” said Douglas NeJaime, a law professor at the University of California-Irvine. “It’s very likely the Supreme Court ultimately settles this question. Given how quickly things have moved, it’s hard for the court to avoid this in the short term.”

[…]

Arguments similar to those [that were] heard Wednesday will take place Aug. 26 in the 7th Circuit in Chicago, for bans in Wisconsin and Indiana, and for Sept. 8 in the 9th Circuit in San Francisco, for bans in Idaho and Nevada. The 5th Circuit in New Orleans is expected to soon set a date to hear arguments on Texas’ ban.

The flurry of arguments means an upcoming spate of rulings, possibly all issued this autumn, that could profoundly alter the nation’s marriage laws.

If the four federal circuit appeals courts rule in favor of gay marriage, then nine states with pending appeals stand to have their bans stricken down altogether or ordered to recognize out-of-state gay marriages: Ohio, Michigan, Tennessee, Kentucky, Texas, Indiana, Wisconsin, Idaho and Nevada, though the decisions likely would be put on hold for a Supreme Court ruling.

Five additional states under those four circuit courts have gay marriage lawsuits awaiting decisions by federal judges: Alaska, Arizona, Louisiana, Mississippi and Montana.

Observers say the 6th or 5th circuits could deliver the first victory for gay marriage opponents.

We know about the Sixth Circuit, in which arguments were heard this week. We still don’t know when the Fifth Circuit will hear arguments there, but we do know that 63 Texas legislators have signed a brief in the appeal in which they declare that same sex marriage is icky and they totally have Greg Abbott’s back. Hey, remember when something like that would have been bipartisan? This one was an all-R effort, with the TDP and these troglodytes’ two LGBT colleagues firing back. I’m so glad those days are over, even if there are still a few laggards on the issue. In any event, the national picture will almost certainly be a lot clearer, or a lot more complicated, in the next few months.

Two wins against voter ID

Good news from Wisconsin.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Trying to crack down on in-person voter fraud isn’t a strong enough justification for Wisconsin’s voter ID law, a federal judge ruled Tuesday, because voter impersonation virtually never occurs now and is unlikely to become a real problem in the future.

In striking down the 2011 law signed by Gov. Scott Walker (R), U.S. District Judge Lynn Adelman held that although the U.S. Supreme Court had ruled in 2008 that states had an interest in preventing voter fraud, Wisconsin’s voter ID law wasn’t justified because voter fraud in person doesn’t really exist.

“The evidence at trial established that virtually no voter impersonation occurs in Wisconsin,” Adelman ruled in Frank v. Walker. “The defendants could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past.”

The judge also held that re-enforcing public confidence in the electoral process wasn’t a sufficient justification for the voter ID law. He noted that there was no evidence that law enforcement authorities were simply failing to catch instances of voter impersonation because they were hard to detect.

If voter impersonation is occurring “often enough to threaten the integrity of the electoral process, then we should be able to find more evidence that it is occurring than we do,” Adelman wrote. “If, for example, voter impersonation is a frequent occurrence, then we should find more than two unexplained cases per major election in which a voter arrives at the polls only to discover that someone has already cast a ballot in his or her name.”

[…]

“This is a warning to other states that are trying to make it harder for citizens to vote,” Dale Ho, director of the ACLU Voting Rights Project, said in a statement. “This decision put them on notice that they can’t tamper with citizens’ fundamental right to cast a ballot. The people, and our democracy, deserve and demand better.”

This ruling follows on the heels of a state judge in Arkansas finding that state’s voter ID law unconstitutional. That ruling has been temporarily stayed pending appeal, and the Wisconsin ruling will also be appealed, so it’s still early days.

Rick Hasen analyzes the Wisconsin ruling.

This is about the best possible opinion that opponents of voter identification laws could have hoped for. It is heavy on both facts and on law. It is thoughtful and well written. It finds that a voter id law serves neither an anti-fraud purposes (because “virtually no voter impersonation occurs in Wisconsin and it is exceedingly unlikely that voter impersonation will become a problem in Wisconsin in the foreseeable future”) nor voter confidence purposes. It finds that it burdens lots of voters (up to 300,000) voters. It finds these burdens fall especially on Black and Latino voters and that the reason is does is poverty, which is itself the result of prior legal discrimination.It enjoins enforcement of the law for everyone, and expresses considerable doubt that the Wisconsin legislature could amend the law to make it constitutional. It is about as strong a statement as one might imagine as to the problems the voter id law.

[…]

On the VRA issue, this is the first full ruling on how to adjudicate voter id vote denial cases under section 2. The key test appears on page 52 of the pdf: “Based on the text, then, I conclude that Section 2 protects against a voting practice that creates a barrier to voting that is more likely to appear in the path of a voter if that voter is a member of a minority group than if he or she is not. The presence of a barrier that has this kind of disproportionate impact prevents the political process from being ‘equally open’ to all and results in members of the minority group having ‘less opportunity’ to participate in the political process and to elect representatives of their choice.” The judge also approaches the causation/results question in a straightforward way. It is not clear whether the appellate courts will agree or not agree with this approach, which would seem to put a number of electoral processes which burden poor and minority voters up for possible VRA liability.

In sum, this is a huge victory for voter id opponents. But time will tell if this ruling survives.

So reasons for hope, but it’s way too early to celebrate. What the trial courts have done, the appeals courts and the Supreme Court can still undo. On the bright side, Kevin Drum explains why this case was different than Crawford v. Marion County, the 2008 Supreme Court decision that allowed for voter ID:

In a word, better arguments from one side. In Crawford, the state presented virtually no evidence that in-person voter fraud was a problem in Indiana—but neither did the plaintiffs provide much evidence that a voter ID law presented a serious obstacle to voting. Given this, the state’s interest in preventing voter fraud—even if that interest was more speculative than real—carried the day.

This time, the state once again produced virtually no evidence that in-person voter fraud was even a potential problem. But the judge was presented with loads of evidence that the burden of obtaining a photo ID was, in fact, quite high for low-income voters in particular. Since Crawford mandated the use of a balancing test to assess whether a photo ID law was justified, that made the difference and Wisconsin’s law was struck down.

He goes on to highlight parts of the decision that show the burden on some 300,000 voters in Wisconsin to get an accepted form of voter ID. The parallels to Texas should be obvious to anyone that has followed the issue in our state.

Speaking of Texas, there’s a hearing scheduled for today on motions made by AG Abbott to quash subpoenas to current and former members of the Legislature on their role in crafting the voter ID law – see here for the background, and here for the plaintiffs’ responses. How the judge rules on this motion will determine how much these legislators will have to testify in this case, and how much is protected by legislative privilege.

On, Wisconsin

From the ACLU of Wisconsin:

RedEquality

The American Civil Liberties Union, the ACLU of Wisconsin and the law firm of Mayer Brown filed a federal lawsuit today on behalf of four same-sex couples who wish to marry in Wisconsin or are seeking recognition for their legal out-of-state marriages.

The plaintiffs include Roy Badger and Garth Wangemann of Milwaukee, who have been together 37 years. Three years ago Wangemann had much of his right lung removed after being diagnosed with lung cancer. Following the operation, a complication occurred and he was put into a medically induced coma for nearly a month. His progress was uncertain, and Wangemann’s father attempted to override Badger’s power of attorney to have his son taken off life support. Before that could happen, Wangemann recovered.

“What upset me the most was that after all of our time together, our relationship was not fully recognized by my family and there was a real danger that my wish to give Roy the ability to make decisions about my care could be stripped away,” Wangemann said. “Thankfully, our wishes held in this case. But without the protections that come with marriage, the consequences can literally be a matter of life or death.”

Other plaintiffs in the case are Carol Schumacher and Virginia Wolf of Eau Claire; Charvonne Kemp and Marie Carlson of Milwaukee; and Judi Trampf and Katy Heyning of Madison. Read their stories.

Wisconsin’s ban on marriage for same-sex couples prevents them from securing the hundreds of protections that state law provides to married couples. Wisconsin law subjects same-sex couples to an additional harm that is unique among states that deny same-sex couples the freedom to marry. The only way for Wisconsin couples to get the federal protections that come with marriage is for them to go out of state to marry. But Wisconsin law says that may be a crime punishable by nine months in jail and a $10,000 fine.

Among the plaintiff couples, Schumacher and Wolf were legally married in another state, raising the possibility of prosecution back at home. The lawsuit challenges the overall ban as well as the application of this criminal law to same-sex couples who are forced to choose between being denied federal protections and the risk of criminal prosecution.

“These families simply want the security and recognition that only marriage provides,” said Larry Dupuis, legal director of the ACLU of Wisconsin. “They have built their lives and raised children here. It is wrong for the state to treat these loving and committed couples as second-class citizens, and it is cruel to place them in a catch-22 where they can’t even travel elsewhere to obtain federal protections without their marriage being labeled a crime.”

The lawsuit was filed in the U.S. District Court for the Western District of Wisconsin. The plaintiffs allege that the state’s constitutional marriage ban sends a message that lesbians, gay men, and their children are viewed as second-class citizens who are undeserving of the legal sanction, respect, protections, and support that heterosexuals and their families are able to enjoy through marriage.

Criminalizing out of state marriages is a nasty little twist. I’m surprised there wasn’t a lawsuit sooner.

Meanwhile, the Virginia case was heard yesterday.

The ban on same-sex marriage is just like an old Virginia law that made interracial marriages illegal, and it’s time for Virginia to stop discriminating against gays and lesbians, a state attorney told a federal judge Tuesday.

But lawyers who support the ban said if the law is to change, it should be done by the legislature. They also argue that there has never been a fundamental right to same-sex marriage.

“We have marriage laws in society because we have children, not because we have adults,” said attorney David Nimocks of the religious group Alliance Defending Freedom.

The case is the first one in the South to reach oral arguments before a federal judge. Recently elected Democratic Attorney General Mark Herring announced Jan. 23 that he would not defend the state in the lawsuit because he believed it violates the equal protection clause of the 14th Amendment.

In overturning bans in Utah and Oklahoma, federal judges have also said those laws violate the 14th amendment.

Virginia Solicitor General Stuart Raphael told the judge Virginia had frequently been on the wrong side of history, citing the state’s ban on interracial marriages, its defense of segregation as well as its opposition to allowing female students into the Virginia Military Institute.

Raphael said supporters of the ban have failed to prove how allowing gay marriage would make opposite sex couples less likely to marry.

“That’s the Achilles heel in the argument,” he said.

[…]

U.S. District Judge Arenda L. Wright Allen said she would rule soon. If Wright Allen finds Virginia’s law unconstitutional, Raphael asked her to issue a stay so that nobody can get married until the case is heard on appeal.

He said the state wanted to avoid the situation Utah found itself in after marriages were briefly allowed to occur there before a stay was issued.

With Herring’s office deciding to side with the plaintiffs, the job of defending the law fell to the legal team of Norfolk’s Circuit Court clerk.

Attorney David Oakley said the court should respect the legislative process that created the law. If the law is to be changed, it should be done through the legislature, he said.

In addition, an attorney for the religious group Alliance Defending Freedom argued on behalf of the Prince William County’s clerk, which was allowed to intervene in the case. The clerk asked to intervene because of worries the attorney general’s office wouldn’t do an adequate job defending the law.

And there was some action in Utah as well.

The state of Utah offered a tailored defense of its ban on same-sex marriage in a brief filed late Monday evening with the 10th Circuit Court of Appeals, arguing its laws are all about the long-term interests of children.

Utah has chosen a definition of marriage that is “principally a child-centered institution, one focused first and foremost on the welfare of children rather than the emotional interests of adults,” the state said. “And by reinforcing that understanding, the state gently encourages parents to routinely sacrifice their own interests to the legitimate needs and interests of their children.”

That definition is not designed to demean other family structures “any more than giving an ‘A’ to some students demeans others,” the state said.

But redefining marriage in “genderless” terms likely would result in lower reproductive rates and fewer children being raised in the ideal environment provided by biological, opposite-sex parents, the state said.

[…]

Attorneys for the three same-sex couples who are challenging Utah’s ban have until Feb. 25 to file a response, and the state’s final filing must be submitted by March 4.

Oral arguments are scheduled for April 10 in Denver. The three-judge panel that will hear the case — as well as an appeal from the state of Oklahoma involving a similar ban — will be picked 10 days before the hearing.

You can see the full brief here. I’m pretty sure these are the same basic arguments that were made in the Prop 8 case in California. There may be some differences, but I’m not a lawyer so this is just my impression. I am sure we’ll hear more of the same when Texas’ case gets heard.

A little Texas in Wisconsin

Way to go!

The weather in Wisconsin is cold this time of year — but the budget fight is only getting hotter. Following a walkout by the state Senate Democrats, depriving Republicans of the three-fifths majority needed to pass the budget and its controversial anti-public union provisions, the NBC affiliate in Madison now reports that sources say the Dems have left the state entirely.

This comes after the state Senate majority leader said that the State Patrol could be called in to round up the Dems. However, leaving for another state would presumably place the legislators beyond the state’s jurisdiction. (Fun fact: The state Senate leader and the Assembly Speaker are brothers — and the new head of the State Patrol is their father.)

I asked the state Democratic Party for comment on this latest report, but communications director Graeme Zielinski was unable to confirm anything. “I know the whereabouts of not a single Democratic senator,” said Zielinski. “I do not know what latitude they’re on, or know what longitude they’re on. I assume they’re in this hemisphere, I’ll say that.”

Under Republican Gov. Scott Walker’s plan, as TPM has posted, most state workers would no longer be able to negotiate for better pensions or health benefits or anything other than higher salaries, which couldn’t rise at a quicker pace than the Consumer Price Index. Walker and state Republican leaders have said the plan to limit the collective bargaining rights of state employees is necessary to deal with the state’s budget shortfall.

We Texas Democrats know a little something about quorum-busting for a good cause. It’s not a repeatable strategy, so it’s best used for something big, and I’d say this qualifies. May they have a happier ending than we ultimately had.

Let’s always elect our Senators

U.S. Sen. Russ Feingold, having seen what a farce the gubernatorial-selection process for replacing Senators has been this year, proposes to do something about it:

The controversies surrounding some of the recent gubernatorial appointments to vacant Senate seats make it painfully clear that such appointments are an anachronism that must end. In 1913, the Seventeenth Amendment to the Constitution gave the citizens of this country the power to finally elect their senators. They should have the same power in the case of unexpected mid term vacancies, so that the Senate is as responsive as possible to the will of the people. I plan to introduce a constitutional amendment this week to require special elections when a Senate seat is vacant, as the Constitution mandates for the House, and as my own state of Wisconsin already requires by statute. As the Chairman of the Constitution Subcommittee, I will hold a hearing on this important topic soon.

He goes into greater detail here.

I do not make this proposal lightly. In fact, I have opposed dozens of constitutional amendments during my time in the Senate, particularly those that would have interfered with the Bill of Rights. The Constitution should not be treated like a rough draft. Constitutional amendments should be considered only when a statutory remedy to a problem is not available, and when the impact of the issue at hand on the structure of our government, the safety, welfare, or freedoms of our citizens, or the survival of our democratic republic is so significant that an amendment is warranted. This is such a case.

The fact that the people of four states, comprising over 12 percent of the entire population of the country, will be represented for the next two years by someone they did not elect is contrary to the purpose of the 17th Amendment, which provides for the direct election of Senators. That is not to say that people appointed to Senate seats are not capable of serving, or will not do so honorably. I have no reason to question the fitness for office of any of the most recent appointees, and I look forward to working with them. But people who want to be a U.S. Senator should have to make their case to the people whom they want to represent, not just the occupant of the governor’s mansion. And the voters should choose them in the time-honored way that they choose the rest of the Congress of the United States.

This proposal is not simply a response to these latest cases. Those cases have simply confirmed my longstanding view that Senate appointments by state governors are an unfortunate relic of the time when state legislatures elected U.S. Senators. This system was replaced by direct elections by the citizens of each state following the ratification of the 17th Amendment in 1913. Direct election of Senators was championed by the great progressive Bob La Follette, who served as Wisconsin’s Governor and a U.S. Senator. Indeed, my state of Wisconsin is now one of only three states (Oregon and Massachusetts are the others) that require a special election to fill a Senate vacancy. But the vast majority of states still rely on the appointment system. Changing this system state by state would be a long and difficult process, particularly since Governors have the power to veto state statutes that would take this power away from them. We need to finish the job started by La Follette and other reformers nearly a century ago. Nobody can represent the people in the House of Representatives without the approval of the voters. The same should be true for the Senate.

I think this makes a lot of sense, and even if it never gets officially ratified, I think Feingold’s actions may spur more states to change their own processes. For what it’s worth, I think Texas’ process of an appointment followed by a special election on the next uniform election date is good enough for these purposes. I’d rather have someone in office for the few months it takes for the next election date to roll around than have only one Senator represent the state. But clearly a two-year appointment, however well-intentioned and however well-qualified the appointee may be, just doesn’t cut it any more. I hope this proposal gets plenty of traction.