Tag: equal protection

Will Debate Constitutionality of the Voting Rights Act — Anytime, Anywhere

Three years ago, some law professors were having a hard timing finding someone to debate the constitutionality of Obamacare’s individual mandate.  I naively stepped up to the plate, which resulted in over 100 debates, speeches, panels, and public events (and, as we know, an invalidation of the mandate but salvage of the relevant provision in the form of a tax).

Now we see a similar predicament with respect to Section 5 of the Voting Right Act, the provision that effectively makes the federal government a proconsul with respect to election administration in a seemingly random assortment of states, counties, and towns around the country.  As I’ve blogged and written in a Supreme Court brief, Section 5’s extraordinary powers were justified only under Jim Crow’s exceptional conditions; the Voting Rights Act’s success in eradicating those conditions has happily obviated Section 5’s constitutional legitimacy.  (As I noted more recently, and wrote in another brief, Section 2 has its problems as well.)

Yet my view isn’t shared in legal academia – surprise, surprise – and a leading election law scholar posits that “the case for Section 5’s constitutionality is so clear that the liberal election law professors simply have the better of the argument!”  Three weeks before the Supreme Court hears argument in the pivotal case of Shelby County v. Holder, there is apparently a dearth of scholars willing to speak out against this egregious violation of federalism and equal protection.

Well, in the words of How I Met Your Mother’s Barney Stinson, challenge accepted!

I may not be full-time faculty anywhere – is that a negative? – but I hereby announce that I will travel anywhere at anytime to debate the constitutionality of Section 5 of the Voting Rights Act. Whoever sets up the debate has to pay my travel expenses and take me out to a nice dinner, but that’s it.  Any takers?

Modern Voting Rights Act Takes Another Constitutional Stumble

In 2009, Irving, Texas, was forced to redraw its city council districts after a federal court held that its multi-member-district system discriminated against Hispanic voters in violation of Section 2 of the Voting Rights Act, which protects the rights of racial and linguistic minorities to elect their preferred candidates (whatever that means). Following complex Section 2 precedent, the court employed the requisite “citizen of voting age population” (CVAP) standard and found that, in the absence of at-large elections, Irving’s Hispanic voters could have constituted their own majority district.

When Irving finished redrawing its map, the total population count of residents inhabiting each district was roughly equal and one was indeed majority-Hispanic. Because the redistricting process used total population instead of CVAP, however, that particular district had a significant concentration of non-citizen residents. A relatively small constituency of eligible voters in that district thus had their votes so “over-weighted” that their voting power was effectively double that of voters in the other districts (which, again, were similarly populated but had twice the number of eligible voters).

Irving citizens sued the city, alleging violations of their voting rights as guaranteed by the one-person, one-vote (OPOV) principle under the Fourteenth Amendment’s Equal Protection Clause. The U.S. Court of Appeals for the Fifth Circuit affirmed a dismissal of these claims, following circuit precedent holding that the decision to use either total population or CVAP when applying OPOV should be left to elected officials’ discretion. Astonishingly, even though courts are required to use CVAP when examining Section 2 racial-discrimination claims—see above—the Fifth Circuit completely ignored the CVAP disparities in the redrawn districting plan.

Cato has now filed an amicus brief supporting the Irving citizens’ request that the Supreme Court take the case. We have frequently argued that courts confront a “bloody crossroads” when trying to reconcile the modern Voting Rights Act with the Constitution. Here, not only has the Fifth Circuit illustrated the tension between Section 2 and the Fourteenth Amendment, but similar rulings in the Fourth and Ninth Circuits—either deferring to the political branches or precluding the use of CVAP altogether—have heightened the conflict.

The Fourteenth Amendment and OPOV are emphatically within the province of the judiciary to enforce. We thus urge the Court to review the intolerable contradiction that arises when Section 2, intended to enforce the guarantees of the Fourteenth Amendment, is used to violate OPOV.

While once a functional proxy for equalizing the voting strength of eligible voters, the total population metric has become imprecise and outmoded. In areas with high concentrations of non-citizen, non-voter residents, it can conceal substantive demographic differences that undermine the principle of voter equality. CVAP, by contrast, is the most precise measure of the substantive electoral equality and the proper means for reconciling the conflict between Section 2 and the Fourteenth Amendment.

The name of the case is Lepak v. City of Irving. The city and certain activist groups that have intervened in the case will now file their opposition to the petition for review, and then the Supreme Court will decide this spring whether to take the case and set it for argument in the fall.

With All Due Respect, Rep. Cole, My Arguments Against Race-Based Government Are Quite Principled

While campaigning for former Hawaii governor Linda Lingle, who is now running for U.S. Senate, Rep. Tom Cole (R-OK), the only Native American in Congress, said that opposition to the Akaka Bill is “arrogant” meddling in local affairs.  (The Akaka Bill, which I’ve covered extensively, would create a race-based governing entity that would negotiate with the federal and state governments over all sorts of issues—effectively carving out an unconstitutional system of racial spoils.)

As quoted in the Honolulu Star-Advertiser ($):

“Hawaii has told us again and again, on a bipartisan basis, this is what we want to do,” Cole said. “I’d have to tell you, I think it’s incredibly arrogant, whether it’s a Republican or a Democrat that opposes tribal sovereignty — in this case sovereignty for Native Hawaiians—when the people of Hawaii have told us we’d like it. Who are we to impose our opinions?”

Cole’s attack is not only a calumny on those who oppose the Akaka Bill in good faith—including all but six of his House Republicans who voted against it in 2010 after years of deliberation, public vetting, and a 2006 Department of Justice conclusion that the bill was unwise as a policy matter and presented serious constitutional difficulties—but itself displays a dangerous misunderstanding of the issues involved.

It’s easy to think of the Akaka Bill as being “merely” another request for self-governance by native peoples as was extended to Aleuts upon Alaskan statehood, but that’s simply not what’s going on in Hawaii.  Hawaiians, “Native” and otherwise, have a different history and political sociology from the tribes that are accommodated in our (dubious and counterproductive) Indian law, which itself is a unique compromise with pre-constitutional reality.  Congress can’t simply define Hawaiians as an “Indian tribe” because that term has a fixed meaning, limited to preexisting North American tribes that were “dependent nations” at the time of the Founding.  Such tribes, to benefit from the protections of Indian law, must have an independent existence and “community” apart from the rest of American society, and their separate government structure must have a continuous history for at least the past century.  By these standards, Hawaiians don’t qualify.

Moreover, it’s false to say that Hawaiians support the Akaka Bill or ethnic/racial preferences more broadly.  There has never been a public referendum—Akaka Bill supporters resist such a move—but a November 2009 Zogby poll revealed that 51% of Hawaiians oppose the bill, 60% opposed if you remove the undecideds.  In addition, 76% would oppose tax increases to pay for the Akaka nation-tribe (which would be inevitable), only 7% favor separate laws and regulations for a new native government, and only 28% say the bill is fair with respect to racial discrimination.  Perhaps most importantly, 58% would want a chance to vote before the Akaka Bill could become law, with only 28% saying that would be unnecessary.

Finally, and quite apart from the policy and political considerations, the Akaka Bill has serious constitutional defects. As mentioned above, the Constitution’s anamolous Indian law exception was created by the document itself and Congress still retains a great amount of oversight.  Once the Constitution was ratified, no government organized under it could create another government that can exempt itself from the Bill of Rights.  Even setting these structural issues aside, the Akaka Bill is facially disallowed by the Fifth and Fourteenth Amendments’ explicit proscription against any state action that treats people differently based on their race or ethnicity. The Supreme Court has found Native Hawaiians to be an ethnic group, so Congress cannot pass a law giving them rights denied other Americans.

I respect Rep. Cole’s right to hold a different view of the Akaka Bill’s merits than mine, in which case he could have said something like, “Some folks have principled objections to this.  I think they’re wrong.  I think they misread the Constitution and don’t appreciate Hawaii’s unique history.  We need to show them why they should come over to our side, and Linda Lingle can help me do that.”  Instead, he accuses us critics of arrogance, ignorance, and willfully thwarting Hawaiians’ dreams of self-determination.

With all due respect, Rep. Cole (and Gov. Lingle to the extent she associates herself with his remarks), if you want to pass the Akaka Bill, you need to do a better job of answering some very valid concerns rather than engaging in base demagoguery.  And these concerns aren’t limited to parochial issues relevant only to Hawaiians.  So long as Hawaii remains part of the United States, all Americans have a stake in the future of the state and how it treats its citizens.

h/t Steven Duffield

Enforcing Housing Codes Is Not Racist

The federal Fair Housing Act makes it unlawful “[t]o refuse to sell or rent after the making of a bona fide offer … or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.”  Magner v. Gallagher addresses the question of whether the FHA’s ban on racial discrimination can be violated by someone who does not actually engage in racial discrimination:  Owners of rental properties in St. Paul, Minnesota brought this suit claiming that the city’s enforcement of its housing code — ensuring that rental units were safe and otherwise habitable — violated the FHA because the repairs and maintenance necessary to comply with the code would increase rents and price out many of their African-American tenants.

Unable to show that the housing code intentionally discriminated based on race, however, the owners argued — and the Eighth Circuit Court of Appeals accepted — a “disparate impact” theory under which a plaintiff need only show that an otherwise neutral practice has a disproportionate effect on some racial group. Cato has now joined the Pacific Legal Foundation, the Center for Equal Opportunity, and the Competitive Enterprise Institute on an amicus brief supporting the city’s request for Supreme Court review and arguing that the statutory language and congressional intent of the FHA preclude disparate impact claims.

We argue that extending such claims to the FHA “would deeply intrude on the authority of state and local governments, and render much of their housing policies illegal,” and “would inappropriately alter the federal-state balance in far-reaching ways.” Indeed, disparate impact claims would preclude all institutions subject to the FHA — public and private — from implementing many practical policies. For example, “because [the FHA] applies to financial institutions, banks and mortgage companies would be pressured to provide loans to unqualified applicants in order to avoid disparate impact liability. Similar actions played a key role in triggering the mortgage crisis of 2007-2008.”

Moreover, the disparate impact doctrine directly conflicts with the Fourteenth Amendment’s equal protection guarantees by forcing government agencies “to engage in unconstitutional race-conscious decision making” in order to avoid liability under the Act. In short, allowing disparate impact claims under the FHA would both lead to adverse economic consequences and create new constitutional tensions.

The Supreme Court will hear Magner v. Gallagher on Feb. 29.

Sneaking Race-Based Government Through the Tropical Back Door

Those of you who follow this blog know of the special place in my heart for Hawaiian constitutional issues.  Cato has even filed several Hawaii-related amicus briefs; here’s my post about the latest one, last month.  This is in part because thinking about the Constitution and individual liberty is even more fun in the context of palm trees, trade winds, and tiki bars, but more than that, developments in Hawaii tend to get overlooked or dismissed as parochial and “not really” relevant to the American project.

Unfortunately, that sort of benign neglect plays into the hands of those who want to wreak all sorts of havoc with our constitutional order.  And once those who don’t care about limited government, individual liberty, and equality under the law gain a toehold anywhere, Honolulu as much as Hartford, that creates a dangerous precedent – a political and jurisprudential tsunami, if you will, that threatens to swamp the mainland.

Such is the case with the infamous Akaka Bill (which I most recently covered in a blogpost that links to my previous work on the subject).  This bill, introduced in every Congress since 2000, would create a race-based governing entity that would negotiate with the federal and state governments over all sorts of issues – effectively carving out a system of racial spoils. 

Now, Hawaii’s senators, Daniel Akaka and Daniel Inouye, have long said that their pursuit of this legislation would always be above-board and transparent… until a couple of weeks ago when Inouye, as chairman of the Senate Appropriations Committee, had a sentence inserted into the massive Interior Department funding bill allowing the federal government to recognize Native Hawaiians in the same way that American Indians and Native Alaskans are recognized (but without immediate federal benefits).  This, combined with a state resolution labeling the “Native Hawaiian people” as the only indigenous Hawaiians, is part of a piecemeal strategy to get the Akaka Bill in through the backdoor.

For more coverage of these developments, see this report, as well as these two articles ($).  For Hawaii’s fuzzy relationship with the Voting Rights Act, see this article.  For reasons on why this is all not just sneaky but a terrible idea – and unconstitutional – again, see my previous writings

At base, Hawaiians have a very different history and political sociology from the tribes that were accommodated in our (dubious and counterproductive) Indian law, which itself is a unique compromise with pre-constitutional reality.  It would be a shame to destroy that beautiful state’s spirit of aloha (welcome).

The Longhorn Mismatch: Too Much Racial Preference, Too Little Success

Last week the Supreme Court asked the University of Texas to respond to a cert petition raising an issue that in any non-Obamacare year would be the most explosive part of the Court’s docket: racial preferences in higher education.  (UT had for some inexplicable reason failed even to file a waiver, which is customary in cases where the respondent feels no need to file an actual brief.)

The case was brought by Abigail Fisher, a white Texan denied admission to UT-Austin even though her academic credentials exceeded those of admitted minority students.  The district court granted summary judgment to the university and the Fifth Circuit panel affirmed because a divided Supreme Court in the 2003 case of Grutter v. Bollinger (the University of Michigan case) found narrowly tailored racial preferences to be constitutionally justified for the sake of diversity.  Judge Emilio Garza wrote an electrifying concurrence – starting at page 58 here – agreeing that the ruling was correct under Grutter but that Grutter itself, and the regime of “soft” racial preferences (i.e., not quotas) it created, is incompatible with the Equal Protection Clause. 

The Fifth Circuit then denied en banc rehearing by a vote of 7-9, over a sharp dissent by Chief Judge Edith Jones.  (Full disclosure: The judge I clerked for lo those years ago, E. Grady Jolly, joined Chief Judge Jones’s dissent.)

Fisher’s cert petition objects to the wide discretion the Fifth Circuit would grant UT in administrating its racially preferential admissions paradigm, arguing that affording deference to the university extends Grutter and cannot be consistent with the “strict scrutiny” Grutter requires. Indeed, rather than working to phase out public university race preferences consistent with the expectations the Court articulated in Grutter – Justice O’Connor famously wrote that the diversity rationale would only suffice for about 25 years – the Fifth Circuit provides a veritable roadmap for discriminatory state action.

Now, it would be ideal if all nine justices were courageous enough to uphold constitutional protections for all citizens by refusing to legitimize racially discriminatory state action, regardless of the good-faith motives or other political atmospherics surrounding that action. Progressive legal theory being what it is, however, such a result, where people are judged on the content of their character/qualifications rather than the color of their skin, is unfortunately still a dream. There is, however, an argument that might sway even those members of the Court who support affirmative action as a policy matter: race preferences hurt those they are intended to help.

As highlighted in Richard Sander and Stuart Taylor’s amicus brief, a growing body of research suggests that when the capabilities of a student’s peers exceed their own, the student performs worse than when surrounded by peers with objectively similar capacities. Sander (a UCLA economist and law professor) and Taylor (a lawyer and journalist who has long covered civil rights issues) utilize this “mismatch theory” to discredit the assumption underlying race preference programs – that they benefit minorities – and demonstrate that the opposite is true. They further point out that racial preferences have failed to have their intended effects; namely, preventing racial balancing, fostering diversity, and making universities more attractive to minorities.

Three U.S. Civil Rights Commissioners also filed an amicus brief presenting evidence that racial preferences produce the opposite of their intended effect; they discourage rather than facilitate the entry of minorities into prestigious careers by incentivizing elite public universities to admit students they would not admit if admissions were race-blind. They argue that racial preferences place students in environments that do not optimize to their learning. Citing robust statistics, they conclude that this effect actually discourages minorities from entering science and engineering careers and becoming college professors, and decreases the number of minority students accepted to law schools who actually earn JDs and pass the bar exam.

The well-intentioned advocates of race-conscious public university admissions got it wrong under the Constitution. These briefs further illustrate the detriment everyone in society suffers when state action based on race rather than merit dictates the paths of young Americans.

Under the Court’s request for a response, the university has until the end of the month to file, unless it asks for and is granted an extension.  If the university’s response arrives by January, the case – if the Supreme Court takes it – should be on schedule for argument and decision this term.  For more on Fisher v. University of Texas, see the case’s SCOTUSblog page.

Thanks to Cato legal associate (and UT alumna) Anna Mackin for help with this blogpost.

Race-Based Tax Exemptions Are Unconstitutional

Hawaii continues to think that it’s not quite part of the United States and thus not fully subject to U.S. law.

In the 2000 case of Rice v. Cayetano, the Supreme Court struck down race-based voting requirements for certain Hawaii state officers because government schemes that distinguish between “native Hawaiian” and “Hawaiian” are racial classifications that must pass “strict scrutiny” to be deemed constitutional; they must be narrowly tailored to achieve a truly “compelling” purpose (a standard nearly impossible to meet). Yet that exact same category of “native Hawaiian” — whose frighteningly archaic definition is “any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778” — was used in the Hawaii Homes Commission Act to distinguish those who can hold certain leases that are subject to little or no property tax.

A group of Hawaiians who do not meet the state’s definition of “native Hawaiian” and therefore suffer under the explicitly race-based law decided to challenge these property-tax exemptions. After paying their taxes, these plaintiffs sought refunds on the grounds that the classification scheme violates the Fourteenth Amendment’s Equal Protection Clause.

The Supreme Court of Hawaii, however, ruled that they didn’t have standing — a legal doctrine that determines who can bring a claim — to challenge the taxes on the ground that they had not yet asked for the leases (for which they were indisputably ineligible due to not having enough “blood of the races” flowing through their veins). A lower state court had even ruled that the classification was not race-based—that it merely distinguishes leaseholders and non-leaseholders, even though Hawaiians without the sufficient “blood quantum” cannot be leaseholders!

The group of taxpayers now seek review in the U.S. Supreme Court. Cato, joined by the Pacific Legal Foundation, the Grassroot Institute of Hawaii, the Goldwater Institute, and Professor Paul M. Sullivan, filed a brief urging the Court to take the case and rectify Hawaii’s explicitly unconstitutional taxation scheme. We argue that, after Hawaii’s state judiciary refused to address the issue of racial discrimination head-on, only the U.S. Supreme Court is in a position to guarantee the constitutional protections that Hawaiians have lived under for over a century (since Hawaii became a territory). Only by taking this case and overturning the racially charged definition can the Court continue to ensure that Hawaii is a state that “neither knows nor tolerates classes among citizens.”

The Supreme Court will likely decide by the end of the year (or in early 2012) whether to hear this case, Corboy v. Louie.