The First Monday in October

This October has certainly been unique thus far.  Between the Obamacare exchanges opening, the capture of Anas al-Libi in Libya, and the proposed secession of North Colorado, and of course the one-week-and-counting government shutdown, the United States citizens and their government are defying traditions this month.

Except at 1 First St. NE, Washington D.C.

Roundtable readers are likely aware that yesterday, like every “First Monday in October” since 1917, the nine Supreme Court Justices held their first oral arguments of the October 2013 Term.  Yesterday, they heard oral argument in Chadbourne & Park LLP v. Troice and Madigan v. Levin, and today’s docket was for Burt v. Titlow and McCutcheon v. FEC.  From now on, your Constitutional Law class will become increasingly obsolete.

There are many detailed Supreme Court previews, like USA Today’s, The Heritage Foundation’s, and the Federalist Society’s, our sister organization.  More generally, however, it seems that October Term 2013 won’t feature headline-grabbing decisions like NFIB v. Sebelius, or Hollingsworth v. Perry to the same degree as the past two years.  And we may not see an OT13 Running of the Interns.  But this term is not lacking in momentous Constitutional decisions.  In McCutcheon v. FEC, for example, the Court could obliterate an erstwhile tenet of political speech, that Congress can limit overall donations to political campaigns.  In NLRB v. Canning (argument date not set), the Nine will have to interpret the Recess Appointments Clause (Article II.3), which they have never done before according to a quick Westlaw search.

Despite this potential, the Court has been reluctant to hand down expansive, precedent-setting cases. Take NFIB v. Sebelius, for example, to listen to pundits, President Barack Obama’s signature legislation was upheld in its entirety.  But by carefully counting the votes in the Chief’s opinion and Justice Ruth Bader Ginsburg’s dissent concurrence, only Obamacare’s Individual Mandate was clearly upheld.  The rest of the law, and whether the Commerce Clause has grown, shrunk, or stayed the same remains an open question of law.  Or consider Hollingsworth v. Perry, if your understanding of the case derived from Facebook posts, you might have thought that the Supreme Court had declared same sex marriage legal throughout the nation, but the case was clearly much narrower.  Such incremental Constitutional law may be the hallmark of the Roberts Court, and this Term may be no different.  Indeed, SCOTUSblog reporter Lyle Deniston already discounts the possibility of the McCutcheon case producing a large constitutional holding based on today’s oral argument.  Still, this case could reopen the doors on political speech and allow every citizen to make his case as loudly and effectively as Oprah.

That is… as long as the Court stays open. The Court will eventually run out of money to keep its doors open during this shutdown—in fact, it will run out of money on October 15 when its “rainy day” fund is drained.  No matter what you think of the nine Justices, the Supreme Court, if not the federal judiciary is a cornerstone of democracy and the rule of law.  Whatever the outcome between the Democrats and Republicans on the Hill, let us hope that the Courts aren’t shuttered as well.




United States v. North Carolina

By Jonathan H. Levy

With Americans beginning to feel the effects of the latest government shutdown, it might seem that money drives our government.  But cash is closer to the car’s gasoline than its driver: gasoline powers the engine, but especially today, it is clear that the car, gasoline, and engine are useless without Messrs. Reid and Boehner in the driver’s seat, negotiating with each other.  This Shutdown Tuesday, I’m thinking about those drivers and the lawsuit Attorney General Eric Holder filed Monday in Greensboro, North Carolina, challenging the Tar Heel state’s Voter Information Verification Act, signed into law by Governor Pat McCrory on August 12, 2013.

When researching the suit, captioned United States v. North Carolina, I was initially surprised that not one article I read cited or linked to the actual law.  I once had a wise boss who, the morning of the NFIB v. Sebelius decision, told me to say nothing about the decision until I had read it.  In his immortal words, “Reading helps you know what you’re talking about.”  Obviously, I was not working for CNN or Fox.  I don’t want to rant about the importance of the text in statutory interpretation, nor do I allege that those authors I read did not actually read the law.  But the media ought to disseminate information and then comment upon it—in that order. The internet makes citations so easy that when one editorializes about a thing, he should encourage readers to judge the thing for themselves. I’ve already cited to the Act above but it’s so easy, I’ll do it again: Voter Information Verification Act.

The complaint speaks in racially charged language, noting for example, that no African-Americans voted for the legislation.  But thankfully, the complaint does not equate voter ID laws to poll taxes, as Mr. Holder claimed last year.  Such forbearance, however, does not indicate a strong foundation.

The Department of Justice’s complaint claims the Act has a discriminatory intent and purpose.  The Act’s leading section, codified in Article 14A of Chapter 163 of North Carolina’s General Statutes requires in-person voters to present one of several forms of valid identification.  Ripley Rand, United States Attorney for the Middle District of North Carolina, and Jocelyn Samuels, Acting Assistant Attorney General, Civil Rights Division, who signed the complaint, argue that because in 2010, black North Carolinians had “higher rates of poverty” than whites with less access to a DMV able to issue proper identification, the bill discriminates in effect and by design.  This allegation is half-hearted.  First, Justice offered a report by the State Board of Elections (“SBOE”) showing that about five percent of registered voters had no proper identification from the DMV.  The Complaint, however, omits an important qualification: that the SBOE does not account for people who lack DMV identification, but possess another valid form.  The original report clearly states this qualification, but Justice strategically omits it.  Thus, the Complaint speaks of a worst-case scenario.  But even so, the numbers do not clearly show discrimination.  For example, 14.3% of non-Hispanic black households in North Carolina lacked access to a vehicle, as compared to 4.3% of non-Hispanic white households.  It is therefore factually accurate to say that access to vehicles is disproportionate, but query whether this difference is statistically significant.

Next, the Complaint mentions in passing that the exhaustive list of valid identification is unnecessarily narrow and excludes, for example, utility bills and student identification from a North Carolina college.  Nevertheless, if the Act’s purpose is to match a face with a name, a utility bill is obviously insufficient, and student identification is overinclusive because international students, not eligible to vote, would carry such a card.

The rest of the Complaint deals with the restrictions on early voting, the elimination of preregistration, and the elimination of same-day registration.  Rand and Samuels again point to statistics about how African-Americans disproportionately use these erstwhile provisions.

According to the Justice Department, this disproportionate treatment amounts to discrimination because the North Carolina General Assembly heard and ignored testimony about such a disparate impact.  Set against a background of North Carolina’s racial discrimination and the fact that the legislature explicitly waited for the Shelby County v. Holder decision to pass the Act the uneven effect conclusively proves discrimination in violation of the Fourteenth and Fifteenth Amendments says the Justice Department.  The allegations thus rest on nothing but statistical conjecture.

Finally, it should be noted that the Department of Justice challenges these law under the Voting Rights Act—the very same Act some feared was gutted in the Shelby County decision.  Whether or not the specific allegations in United States v. North Carolina have merit, it is clear that Attorney General Holder has power to enforce the Voting Rights Act and ensure the widest franchise possible.

Preferencing based on race is reprehensible in all its forms.  But the basis of an allegation of racial discrimination cannot be res ipsa loquitor, much less ipse dixit.  Let us challenge our leaders to provide more proof before spending taxpayer dollars on such frivolous lawsuits.  Let us use our hard-won civil rights legislation to help eradicate discrimination to the extent required by humanity.  With such rights firmly secured, let us soon elect some drivers willing to serve us and cooperate with one another.