Federal Court Strikes Down Racially Drawn Texas Congressional Maps

The Republican-controlled Texas state legislature racially gerrymandered a handful of congressional districts in order to diminish the electoral influence of the state’s minority populations, according to a San Antonio federal court ruling issued late on Friday night.  The two-judge majority wrote in their opinion, “This Court finds that map drawers acted with an impermissible intent to dilute minority voting strength or otherwise violated the Fourteenth Amendment and that Plaintiffs are still being harmed by the lines drawn as the direct product of these violations.” The ruling was the culmination of a long redistricting case pitting state Democrats, minority groups, and the Obama Justice Department against the Texas Republican leadership and legislature over the course of six years.

A potential consequence of this ruling is whether the state of Texas will once again have to seek federal approval before changing voting laws, a practice known as preclearance. The practice applied to Texas and several other Southern states with a history of racial discrimination, though that changed as a consequence of the Supreme Court’s 2013 decision in Shelby County v. Holder. The state is likely to appeal the decision to the Supreme Court.

The new ruling mentions the 23rd, 26th, 27th and 35th congressional districts.  The 23rd district covers much of West Texas and the Mexican border across to San Antonio, and is currently represented by Rep. Will Hurd. The 26th district covers a suburban area north of Dallas/Fort Worth and is represented by Rep. Michael Burgess. The 27th district covers part of the Texas coast on the Gulf of Mexico, as well as the outskirts to the southwest of the capital city of Austin, and is currently represented by Rep. Blake Farenthold. The 35th district covers a stretch between San Antonio and Austin, and is represented by Rep. Lou Doggett.  Doggett is the only Democrat representing the four districts named in the ruling.  Hurd has been identified by both parties as one of the most vulnerable Republican incumbents in the 2018 election. He narrowly won a rematch with his Democratic predecessor by one point, in a district with a 68 percent Hispanic population that Hillary Clinton won by 3 in the presidential election. The court ordered the Texas legislature to redraw lines for the 23rd, 27th and 35th districts.

This is the latest in a series of legal rulings against congressional redistricting in the aftermath of the 2010 census.  Other courts have ruled against Republican gerrymandered maps in Alabama, North Carolina, Virginia and Wisconsin.

“This Texas ruling is another major legal victory for fairer maps in America,” National Democratic Redistricting Committee General Counsel Marc Elias said in a statement. “Yet again, courts have sent a clear message that unconstitutional racial gerrymandering and violations of the Voting Rights Act will not stand in the United States of America. The National Democratic Redistricting Committee will act quickly on a proactive legal strategy that will build upon these recent victories.”

Democratic Legislative Campaign Committee Executive Director Jessica Post said, “Texas Republicans illegally diluted the voices of Hispanic voters, and this ruling is an important step towards giving all Texans fair representation.”

“The Texas congressional map engineered by Republican legislators diminished the voices of specific groups of voters just to protect GOP power. This court decision, along with recent rulings in Virginia, Alabama, and Wisconsin, mark important progress in the fight to protect and enfranchise all voters and are blows against the artificial Republican majorities the GOP created at minority voters’ expense.”

“The federal court further confirmed what we’ve known all along:  Texas intentionally discriminated to disenfranchise Latino and African American voters.  This is unacceptable and that is why I led the effort at the Justice Department to challenge these maps.  But our work here is far from over,” Democratic National Committee Chairman Tom Perez said in a statement.

“Republicans have ensured that the dark days of discrimination in Texas continue to loom, but the sun will soon shine. In time, justice prevails,” Texas Democratic Party Chairman Gilberto Hinojosa said.

No statements on the court ruling have been released by the Republican Legislative Campaign Committee, the Republican National Committee, or the Texas Republican Party.

UPDATE: Read this analysis of the case from Election Law Blog’s Rick Hasen. He calls the ruling “a major victory for voting rights plaintiffs,” and notes there is a real question of whether or not Texas will be subject to Section 5 preclearance for as long as ten years.

Democratic Attorneys General Oppose Trump Clean Water Executive Order

While much of the focus on the Democratic legal opposition to the Trump White House has focused on the travel ban, a new front has opened up: Trump’s executive order loosening Obama-era clean water regulations.

New York Attorney General (and long-time Trump nemesis) Eric Schneiderman announced a coalition of attorneys general from New York, the District of Columbia, Hawaii, Massachusetts, Oregon and Vermont that would oppose this new executive order.  The coalition issued this statement:

“We strongly oppose President Trump’s action today that undermines Clean Water Act protections and the public health and environment of our states.

The President’s order runs counter to the Clean Water Act’s, and the EPA’s, very purpose: achieving clean water. The Clean Water Rule is a measured, reasonable, and lawful application of sound and uncontroverted science to protect our nation’s upstream source waters. We rely on these waters to ensure clean drinking water, recreation, and viable commercial fishing and navigation. Abandoning the Clean Water Rule will allow uncontrolled pollution of these critical water resources. It could also harm the competitiveness of our state economies by forcing us to spend more to clean up the pollution of deregulated waters coming from upstream states that refuse to control such pollution.

Clean water is essential to life — and the people of our states and the nation deserve the basic protections established by the Clean Water Rule, to ensure that the benefits of clean water are shared equally, regardless of state lines.

We won’t hesitate to protect our people and our environment—including by aggressively opposing in court President Trump’s actions that ignore both the law and the public’s paramount need for clean water.”

 

Washington Attorney General Scores Legal Victories Against Federal Government and Florist

Washington Attorney General Bob Ferguson scored two big legal victories today. The one that got the most attention is his lawsuit regarding President Trump’s travel ban, which has already been ruled in his favor on two separate occasions by four judges on the Ninth Circuit Court of Appeals. The Department of Justice filed a 61-page document this morning with this crucial sentence:

Rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns.
President Trump confirmed this himself during his press conference today, telling reporters, “The new order is going to be very much tailored to what I consider to be a very bad decision.”
Washington Attorney General Bob Ferguson – who filed the initial lawsuit on behalf of the state, before being joined by his Minnesota counterpart Lori Swanson – said in a statement:
“Let’s be clear:  Today’s court filing by the federal government recognizes the obvious — the President’s current Executive Order violates the Constitution,” Ferguson said. “President Trump could have sought review of this flawed Order in the Supreme Court but declined to face yet another defeat.”
The question that remains now is what will the new executive order look like, and will there be further litigation surrounding that as well.
Ferguson’s other victory today was in the case of State of Washington v. Arlene’s Flowers. (Read the PDF here) At issue was a Richland florist who refused to sell flowers to a gay couple for their wedding because the owner didn’t believe in marriage equality. Ferguson’s office sued the florist arguing that by doing so, it was violating the state’s Consumer Protection Act and the Washington Law Against Discrimination.  The Washington Supreme Court ruled unanimously in the state’s favor. According to state law, businesses are not required to provide a particular service. However, if it does so for heterosexual couples, it must provide that service to same-sex couples.
In the bigger picture, this case provides a potential precedent for future litigation involving state or federal religious freedom bills that allow people to deny services if they conflict with their religious beliefs – for example, opposition to gay marriage.

Ninth Circuit Court of Appeals Rules 3-0 Against Trump Administration

A three-judge panel on the Ninth Circuit Court of Appeals ruled unanimously in favor of Washington and Minnesota in their lawsuit against the federal government. (Read the PDF of the decision here) The ruling means the Temporary Restraining Order (TRO) issued by Judge James Robart blocking the implementation of President Trump’s travel/immigration ban is still in effect. CNN legal analyst Jeffrey Toobin called it “a complete and total repudiation of the Trump administration’s legal position in this case.” (Watch the video here)

Toobin also pointed out that the three judges who made this decision were appointed by Jimmy Carter, George W. Bush, and Barack Obama, so there is no political division. In addition, Judge Robart was a George W. Bush appointee, meaning that four federal judges from both parties have ruled unanimously against the administration in two separate decisions.   If the administration appeals to the Supreme Court and the justices split 4-4, the Ninth Circuit opinion would stand, though not with the weight of a Supreme Court ruling decided by a majority of the full court.  Keep in mind there are other lawsuits that have been filed against the administration in other states, so this is not over by any means.

Here is a sampling of reactions to the Ninth Circuit’s decision:

State Attorneys General Prepare Legal Opposition to Trump Executive Order

The New York Times has a good report on the Democratic attorneys general who have been mounting legal opposition to the Trump administration’s agenda – focusing on the big issue right now, the travel ban executive order:

The three Democratic lawyers met over dinner in a cavernous hotel in Fort Lauderdale, Fla., picking at seafood as they discussed how to take on President Trump: Eric T. Schneiderman, the attorney general of New York; Josh Shapiro, his counterpart in Pennsylvania; and Xavier Becerra, a former congressman who had been sworn in as attorney general of California only a day earlier.

Unrecognized so far from home, and little known to one another, the men spent a Wednesday evening late in January discussing a range of White House policies that might unsettle their states, including a mass deportation of unauthorized immigrants.

They never anticipated that a live-fire test of their teamwork would come less than 48 hours later.

Mr. Trump’s Jan. 27 decree on immigration, shutting off entry to the United States from seven overwhelmingly Muslim countries and halting refugee admissions, left states and cities scrambling to respond. Amid mounting protests and emotional scenes of disorder at American airports, it offered a galvanizing first challenge for a gang of Democratic attorneys general who have vowed to check the power of the White House.

In interviews, more than a dozen Democratic attorneys general, governors and party operatives detailed a week of frenzied litigation, late-night and early-morning phone calls and text messages, and strategies devised on airplanes and at sporting events. All told, Democrats say, the legal onslaught against Mr. Trump was a crystallizing moment for the party’s attorneys general — and a model for how to stall or unwind the administration policies they find most offensive.

The key quote, from New Mexico Attorney General Hector Balderas: “It does seem that we are becoming, potentially, the fourth branch of government.”

One update to this story: sixteen attorneys general have filed an amicus brief on behalf of their states with the Ninth Circuit Court of Appeals in State of Washington v. Trump. The key excerpt:

The Executive Order at issue in this suit bars entry into the United States of nationals of seven majority-Muslim countries, including those who hold valid U.S. visas for work, study, and travel. It hinders the free exchange of information, ideas, and talent between the affected countries and the States, including at the States’ many educational institutions; harms the States’ life sciences, technology, health care, finance, and other industries, as well as innumerable small businesses throughout the States; and inflicts economic harm on the States through diminished tax revenues and other means.
Although the residents, institutions, industries, and economies of the amici States differ, all stand to face the concrete, immediate, and irreparable harms caused by the Executive Order.

Former National Security Officials Call Trump Executive Order “Ill-Conceived, poorly Implemented and Ill-Explained”

A group of ten former senior national security officials filed a joint declaration (Read the PDF here)  with the Ninth Circuit Court of Appeals, saying that President Trump’s Executive Order “does not further – but instead harms – sound U.S. national security and foreign policy.” The document is short and well worth reading in its entirety, but here are the highlights:

  • “Four of us (Haines, Kerry, Monaco and Rice) were current on active intelligence regarding all credible terrorist threat streams directed against the U.S. as recently as one week before the issuance of the Jan. 27, 2017 Executive Order.”
  • “We all are nevertheless unaware of any specific threat that would justify the travel ban established by the Executive Order issued on January 27, 2017. We view the Order as one that ultimately undermines the national security of the United States, rather than making us safer. In our professional opinion, this Order cannot be justified on national security or foreign policy grounds.”
  • “There is no national security purpose for a total bar on entry for aliens from the seven named countries. Since September 11, 2001, not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the Order. Very few attacks on U.S. soil since September 11, 2001 have been traced to foreign nationals at all. The overwhelming majority of attacks have been committed by U.S. citizens.”
  •  “As a national security measure, the Order is unnecessary. National security – based immigration restrictions have consistently been tailored to respond to: (1) specific, credible threats based on individualized information, (2) the best available intelligence and (3) thorough interagency legal and policy review. This Order rests not on such tailored grounds, but rather, on (1) general bans (2) not supported by any new intelligence that the Administration has claimed, or of which we are aware, and (3) not vetted through careful interagency legal and policy review.”
  • “In our professional opinion, the Order was ill-conceived, poorly implemented and ill-explained.”
  • “The Order is of unprecedented scope. We know of no case where a President has invoked his statutory authority to suspend admission for such a broad class of people. Even after 9/11, the U.S. Government did not invoke the provisions of law cited by the Administration to broadly bar entrants based on nationality, national origin, or religious affiliation.”
  • “Maintaining the district court’s temporary restraining order while the underlying legal issues are being adjudicated would not jeopardize national security. It would simply preserve the status quo ante, still requiring that individuals be subjected to all the rigorous legal vetting processes that are currently in place. Reinstating the Executive Order would wreak havoc on innocent lives and deeply held American values.”
  • “Rebranding a proposal first advertised as a “Muslim Ban” as “Protecting the Nation from Foreign Terrorist Entry into the United States” does not disguise the Order’s discriminatory intent, or make it necessary, effective, or faithful to America’s Constitution, laws, or values.”

The signatories of the declaration are:

  • Madeleine Albright (Ambassador to the United Nations, 1993-1997. Secretary of State, 1997-2001)
  • Avril Haines (CIA Deputy Director, 2013-2015. Deputy National Security Adviser, 2015-2017)
  • Michael Hayden (NSA Director, 1999-2005. CIA Director 2006-2009)
  • John Kerry (Secretary of State, 2013-2017)
  • John McLaughlin (CIA Deputy Director, 2000-2004. Acting CIA Director, 2004)
  • Lisa Monaco (Assistant to the President for Homeland Security and Counterterrorism, Deputy National Security Adviser 2013-2017)
  • Michael Morrell (Career CIA official since 1980. CIA Deputy Director 2010-2013. Acting CIA Director, 2011, 2012-2013)
  • Janet Napolitano (Secretary of Homeland Security, 2009-2013)
  • Leon Panetta (CIA Director, 2009-2011. Secretary of Defense, 2011-2013)
  • Susan Rice (Ambassador to the United Nations, 2009-2013. National Security Adviser, 2013-2017)

Ninth Circuit Court of Appeals Refuses to Reinstate Trump Travel Ban

A late night decision (Read the PDF here) from a three-judge panel on the Ninth Circuit Court of Appeals came down in the early hours of Sunday morning:

Washington (CNN)A federal appeals court early Sunday morning denied the US government’s emergency request to resume President Donald Trump’s travel ban.

The Ninth Circuit Court of Appeals has asked for both sides to file legal briefs before the court makes its final decision after a federal judge halted the program on Friday.

What this means is that the ruling by US District Court Judge James Robart, who suspended the ban, will remain in place — for now.

The US Justice Department filed an appeal just after midnight Sunday, asking to pause Robart’s sweeping decision that temporarily halted enforcement of several key provisions of Trump’s executive order.

Lawyers from both sides have until Monday (tomorrow) to make any filings. If the Ninth Circuit upholds Robart’s TRO, expect the Department of Justice to file an appeal with the Supreme Court. If SCOTUS agrees to hear the case with its current 8 justice lineup, that means that if the opinion is a 4-4 partisan split, the Ninth Circuit opinion will stand. If the Supreme Court rules by a 5-3 majority or greater, then its opinion will supersede the Ninth Circuit’s.