Articles Posted in Election Law

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The North Carolina General Assembly redrew state legislative districts in 2011 to account for population changes revealed by the 2010 census. Plaintiffs alleged that 28 majority-black districts in the new plan were unconstitutional racial gerrymanders. The district court ruled for the plaintiffs in August 2016, declined to require changes before the November 2016 election, but ordered the General Assembly to redraw the map. Three weeks after the November 2016 election, the court set a March 2017 deadline for drawing new districts, ordering that “[t]he term of any legislator elected in 2016” from a district later redrawn would be replaced by new ones, to be chosen in court-ordered special elections in fall, 2017, to serve a one-year term. The court suspended provisions of the North Carolina Constitution requiring prospective legislators to reside within a district for one year before they may be elected to represent it. The Supreme Court granted a stay pending appeal and subsequently vacated the remedial order. Relief in redistricting cases is “‘fashioned in the light of well-known principles of equity.’” The district court “addressed the balance of equities in only the most cursory fashion.” In determining whether or when a special election may be a proper remedy for a racial gerrymander, obvious considerations include the severity and nature of the particular constitutional violation, the extent of the likely disruption to the ordinary processes of governance if early elections are imposed, and the need to act with proper judicial restraint when intruding on state sovereignty. View "North Carolina v. Covington" on Justia Law

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North Carolina redrew Congressional Districts 1 and 12 after the 2010 census. Previously, neither district had a majority black voting-age population (BVAP), but both consistently elected candidates preferred by most African-American voters. The state needed to add 100,000 people to District 1 to comply with the one-person-one-vote principle; it took most of them from heavily black areas of Durham—increasing the district’s BVAP from 48.6% to 52.7%. District 12’s BVAP increased from 43.8% to 50.7%. State courts upheld the redistricting. The district court found it unconstitutional. The Supreme Court affirmed. Although the state court’s decision is relevant, the district court properly concluded that race furnished the predominant rationale for District 1’s redesign and that compliance with the Voting Rights Act could not justify that consideration of race, which subordinated other criteria. The redistricting cannot withstand strict scrutiny under the “Gingles” factors. For nearly 20 years, African-Americans made up less than a majority of District 1’s voters, but their preferred candidates scored victories. District 1 was a “crossover” district, in which members of the majority help a “large enough” minority to elect its candidate. History gave the state no reason to think that the Act required it to ramp up District 1’s BVAP. The evidence, even without an alternative map, adequately supported the conclusion that race, not politics, accounted for District 12’s reconfiguration. “By slimming the district and adding a couple of knobs to its snakelike body, North Carolina added 35,000 African-Americans and subtracted 50,000 whites, turning District 12 into a majority-minority district,” indicating a determination to concentrate black voters. View "Cooper v. Harris" on Justia Law

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After the 2010 census, the Virginia Legislature drew new lines for 12 state legislative districts, to ensure that each district would have a black voting-age population of at least 55%. Voters challenged the redistricting under the Equal Protection Clause. As to 11 districts, the district court concluded that the voters had not shown that race was the predominant factor motivating the legislature’s decision, reasoning that race predominates only where there is an “actual conflict between traditional redistricting criteria and race.” As to District 75, the court found that race did predominate, but the use of race was narrowly tailored to a compelling state interest--avoiding violation of the Voting Rights Act. The Supreme Court vacated in part, stating that the proper inquiry concerns the actual considerations that provided the essential basis for the lines drawn, not post hoc justifications. A legislature could construct a plethora of potential maps that look consistent with traditional, race-neutral principles, but if race is the overriding reason for choosing a map, race still may predominate. Challengers may establish racial predominance without evidence of an actual conflict. A holistic analysis is necessary to give the proper weight to districtwide evidence, such as stark splits in the racial composition of populations moved into and out of a district, or the use of a racial target. The judgment regarding District 75 is consistent with the basic narrow tailoring analysis; the state’s interest in complying with the Voting Rights Act was a compelling interest and the legislature had sufficient grounds to determine that the race-based calculus it employed was necessary to avoid violating the Act. View "Bethune-Hill v. Virginia State Board of Elections" on Justia Law

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Voters from Virginia’s Congressional District 3 challenged the Commonwealth’s 2013 congressional redistricting plan on the ground that the legislature’s redrawing of their district was unconstitutional racial gerrymander. Three members of Congress from Virginia intervened to defend the plan. The district court struck down the plan and, after remand from the Supreme Court, again held that the plan was unconstitutional. The Supreme Court dismissed a second appeal for lack of standing. A party invoking federal court jurisdiction can establish Article III standing only by showing that he has suffered an “injury in fact,” that the injury is “fairly traceable” to the challenged conduct, and that the injury is likely to be “redressed” by a favorable decision. , Representative Forbes, the Republican incumbent in District 4, has decided to run in District 2, regardless of the litigation's outcome; even if Forbes had standing when he first intervened, he does not have standing now. Representatives Wittman and Brat, the incumbents in Districts 1 and 7, respectively, have not identified any record evidence to support their allegation that the redistricting plan has harmed their prospects of reelection. The allegation of an injury, without more, is not sufficient to satisfy Article III. View "Wittman v. Personhuballah" on Justia Law

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After the 2010 census, Arizona’s Redistricting Commission, with two Republicans, two Democrats, and one Independent, redrew legislative districts. The initial plan had a 4.07% maximum population deviation from absolute equality of districts, but a statistician reported that the Justice Department might not approve the plan under the Voting Rights Act requirement that a new plan, compared to the existing plan, not diminish the number of districts in which minority groups can elect their preferred candidates. The Commission adopted a revised plan with an 8.8% deviation on a 3-to-2 vote, with Republican members dissenting. Under the final plan, a Republican-leaning district became more competitive. The Justice Department approved the plan as consistent with the Act. The Supreme Court upheld the plan, concluding that the “deviations were primarily a result of good-faith efforts to comply with the Voting Rights Act . . . though partisanship played some role.” Mathematical perfection is not required. Deviations may be justified by legitimate considerations, including compactness and contiguity, and state interests in maintaining the integrity of political subdivisions, competitive balance among political parties, and, before the Supreme Court’s 2013 Shelby County decision, compliance with the Act. Because the deviation here is under 10%, objectors cannot rely on numbers to show a constitutional violation, but must show that it is more probable than not that the deviation reflects predominantly illegitimate reapportionment factors. Objectors failed to meet that burden: the deviations reflected efforts to achieve compliance with the Act, not to secure advantage for the Democratic Party. View "Harris v. Ariz. Indep. Redistricting Comm’n" on Justia Law

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Under the one-person, one-vote principle, jurisdictions must design legislative districts with equal populations. In state and local legislative districting, states may deviate from perfect population equality to accommodate traditional districting objectives. Where the maximum population deviation between the largest and smallest district is less than 10%, a state or local legislative map presumptively complies with the rule. Texas, like all other states, uses total-population numbers from the decennial census when drawing legislative districts. After the 2010 census, Texas adopted a State Senate map that has a maximum total-population deviation of 8.04%. However, measured by a voter-population baseline—eligible voters or registered voters—the map’s maximum population deviation exceeds 40%. Objectors unsuccessfully sought an injunction. The Supreme Court affirmed. The Framers endorsed allocating House seats to states based on total population. Debating what would become the Fourteenth Amendment, Congress reconsidered the proper basis for apportionment and rejected proposals to allocate House seats to states based on voter population. A voter-population rule is inconsistent with Supreme Court precedent that states and localities may comply with the one-person, one-vote principle by designing districts with equal total populations. Adopting voter-eligible apportionment would upset a well-functioning approach to districting that all 50 states and countless local jurisdictions have long followed. Representatives serve all residents. Nonvoters have an important stake in policy debates and in constituent services. View "Evenwel v. Abbott" on Justia Law

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Under Arizona’s Constitution, voters may, by ballot initiative, adopt laws and constitutional amendments and may approve or disapprove measures passed by the legislature. Proposition 106 (2000), an initiative aimed preventing gerrymandering, amended Arizona’s Constitution, removing redistricting authority from the legislature and vesting it in an independent commission. After the 2010 census, the commission adopted redistricting maps for congressional and state legislative districts. The Arizona Legislature challenged the map for congressional districts, arguing violation of the Elections Clause of the U. S. Constitution, which provides:The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations. The district court held that the Arizona Legislature had standing to sue, but rejected its complaint on the merits. The Supreme Court affirmed. The Elections Clause and 2 U.S.C. 2a(c) permit the use of a commission to adopt congressional districts. Redistricting is a legislative function to be performed in accordance with state prescriptions for lawmaking, which may include referendum and the Governor’s veto. It is characteristic of the federal system that states retain autonomy to establish their own governmental processes free from incursion by the federal government. The Framers may not have imagined the modern initiative process in which the people’s legislative power is coextensive with the state legislature’s authority, but the invention of the initiative was consistent with the Constitution’s conception of the people as the font of governmental power. Banning use of initiative to direct a state’s method of apportioning congressional districts would cast doubt on other time, place, and manner regulations governing federal elections that states have adopted by initiative without involvement by “the Legislature.” View "Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n" on Justia Law

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Florida voters elect judges. The Florida Supreme Court adopted Canon 7C(1) of its Code of Judicial Conduct, stating that judicial candidates “shall not personally solicit campaign funds . . . but may establish committees of responsible persons” to raise money for election campaigns. Yulee mailed and posted online a letter soliciting financial contributions to her campaign for judicial office. The Florida Bar disciplined her for violating a Bar Rule requiring candidates to comply with Canon 7C(1). The Florida Supreme Court upheld the sanction against a First Amendment challenge. The U.S. Supreme Court affirmed. Florida’s interest in preserving public confidence in the integrity of its judiciary is compelling.. Unlike the legislature or the executive, the judiciary “has no influence over either the sword or the purse,” so its authority largely depends on the public’s willingness to respect its decisions. Canon 7C(1) raises no fatal underinclusivity concerns. The solicitation ban aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary: it is not riddled with exceptions. Allowing a candidate to use a committee and to write thank you notes reflect Florida’s effort to respect the First Amendment interests of candidates and contributors. Canon 7C(1) is not overinclusive It allows judicial candidates to discuss any issue with any person at any time; to write letters, give speeches, and put up billboards; to contact potential supporters in person, on the phone, or online; and to promote their campaigns through the media. Though they cannot ask for money, they can direct their campaign committees to do so. Florida has reasonably determined that personal appeals for money by a judicial candidate inherently create an appearance of impropriety. Canon 7C(1) must be narrowly tailored, not “perfectly tailored” to address that concern. View "Williams-Yulee v. Florida Bar" on Justia Law

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In 2012 Alabama redrew the boundaries of its 105 House and 35 Senate districts to minimize each district’s deviation from precisely equal population and avoid retrogression with respect to racial minorities’ “ability to elect their preferred candidates of choice” under the Voting Rights Act, 52 U.S.C. 10304(b), by maintaining roughly the same black population percentage in existing majority-minority districts. The district court rejected an equal protection claim of “racial gerrymander.” The Supreme Court vacated. Analysis of the racial gerrymandering claim as referring to the state “as a whole,” rather than district-by-district, was erroneous. Showing that race-based criteria did not significantly affect the drawing of some districts did not defeat a claim that such criteria predominantly affected the drawing of others. The objectors’ claimed that individual majority-minority districts were racially gerrymandered, and those districts must be reconsidered. There was “strong, perhaps overwhelming, evidence that race did predominate as a factor” with respect to one district. An equal population goal is not a “traditional” factor in determining whether race “predominates,” but is taken as a given. The district court and the Alabama legislature relied upon a mechanically numerical view as to what counts as forbidden retrogression and asked how to maintain the present minority percentages in majority-minority districts. The Act does not require maintenance of a particular numerical minority percentage. It requires the jurisdiction to maintain a minority’s ability to elect a preferred candidate of choice. View "Alabama Legislative Black Caucus v. Alabama" on Justia Law

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A former congressman filed a complaint with the Ohio Elections Commission alleging that SBA violated an Ohio law that criminalizes some false statements made during a political campaign. SBA had stated that his vote for the Patient Protection and Affordable Care Act was a vote in favor of “taxpayer funded abortion.” After he lost his re-election bid the complaint was dismissed. SBA pursued a separate challenge on First Amendment grounds. COAST also challenged the law, arguing that it had planned to disseminate a similar message but refrained because of the suit against SBA. The district court consolidated the suits and dismissed them as nonjusticiable, concluding that neither suit presented a sufficiently concrete injury to establish standing or ripeness. The Sixth Circuit affirmed. A unanimous Supreme Court reversed and remanded, finding that the plaintiffs alleged a sufficiently imminent injury under Article III. An “injury in fact” must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Challenging a law before enforcement requires alleging “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution.” The plaintiffs alleged a credible threat of enforcement. Their intended future conduct is arguably proscribed by the statute. The statute sweeps broadly; the Elections Commission already found probable cause to believe that SBA violated the law when it made statements similar to those they plan to make in the future. SBA’s insistence that its previous statements were true did not preclude finding probable cause. The threat of future enforcement is substantial. There is a history of past enforcement; a complaint may be filed by “any person,” not just a prosecutor or agency. Commission proceedings impose a burden on electoral speech. The target of a complaint may be forced to divert significant time and resources in the crucial days before an election. Those proceedings are backed by the additional threat of criminal prosecution. The Court found the “prudential factors” of fitness and hardship “easily satisfied.” View "Susan B. Anthony List v. Driehaus" on Justia Law