Category: Legal Wars

Michigan Supreme Court Approves Redistricting Ballot Measure

Michigan voters will determine whether or not to create an independent redistricting commission this November, after a 4-3 state supreme court ruling allowed the measure to appear on the ballot.  The majority ruling, by Democrat-nominated justices Richard Bernstein and Bridget McCormack joined by Republican-nominated justices David Viviano and Elizabeth Clement, allowed the measure under the condition that “if it proposes changes that do not significantly alter or abolish the form or structure of the government in a manner equivalent to creating a new constitution.”

According to MLive, “The court’s majority decision concurred with a unanimous decision from the state Court of Appeals, which compelled the Michigan Board of State Canvassers to place the Voters not Politicians measure on the ballot after determining the initiative passed constitutional muster.”

If approved, Proposal 2 would amend Michigan’s constitution to create a 13-member Independent Citizens Redistricting Commission made up of five independents, four Republicans and four Democrats, with conditions on who can serve on the commission in order to separate it from the political process.  The commission would be in place in time for the next redistricting following the 2020 census.

The anti-gerrymandering proposal was created by Voters Not Politicians, a statewide organization that collected more than 427,000 signatures from Michigan voters. Redistricting has been controlled by Republicans since the last census in 2011. The proposal had been opposed by the Michigan Chamber of Commerce, the Michigan Republican Party, and Attorney General and likely Republican gubernatorial nominee Bill Schuette.

“The court’s decision upholds our right as citizens to petition our government for positive change,” VNP founder and executive director Katie Fahey said in a statement. “Michigan voters are ready for a transparent redistricting process, where election district lines represent the people – not special interests. It’s time voters choose their politicians, not the other way around.”

National Democratic Redistricting Committee chairman Eric Holder tweeted, “This is a big win. Citizens will choose their representatives, politicians will not pick their voters – if the ballot measure is passed.”

There may be some political fallout for Justice Clement, who is on the ballot for re-election this year and could lose funding or support from the state’s Republican Party, according to the Detroit Free Press.  According to the paper, Clement – who had previously served as Gov. Rick Snyder’s chief legal counsel – had no prior judicial experience or judicial record prior to her appointment to the Michigan Supreme Court.

Federal Judge Strikes Down Tennessee Law Revoking Driver’s Licenses

Tennessee was one of approximately 40 states with laws under which drivers could lose their licenses if they were too poor to pay court costs or traffic fines. Judge Aleta Trauger struck down Tennessee’s law earlier this week, noting in her ruling:

“The damage that the lack of a driver’s license does to one’s employment prospects is just the beginning. Being unable to drive is the equivalent of a recurring tax or penalty on engaging in the wholly lawful ordinary activities of life—a tax or penalty that someone who committed the same traffic violation, but was able to pay her initial traffic debt, would never be obligated to pay.”

“As a general proposition, the cities, towns, and communities of Tennessee are pervasively structured around the use of motor vehicles. Anyone who doubts that premise is welcome to attempt to run a day’s worth of errands in a rural Tennessee county with no car and very little money… Nashville is a city where motor vehicle travel is, for the vast majority of the population, an essential part of ordinary life, particularly for anyone seeking to maintain or build economic self-sufficiency. All of these facts, together, leave very little room for doubt regarding the plaintiffs’ assertion that an indigent person who loses her driver’s license is only going to be made less likely to be able to meet the ordinary expenses of life, let alone pay hundreds of dollars in traffic debt.”

This ruling could have an impact on voter turnout in the midterm elections, where Tennessee has an open U.S. Senate race and an open governor’s race on the ballot. According to the Secretary of State’s office, “all voters must present a federal or Tennessee state ID,” which includes driver’s licenses. According to the New York Times, more than 100,000 Tennesseeans could get their licenses reinstated. Judge Trauger is also presiding over a separate lawsuit arguing that unpaid traffic fines have cost almost 250,000 Tennessee residents their licenses. The Times article also notes:

According to evidence presented in the Tennessee case, 93.4 percent of workers who reside in the state drive to work.

The state revoked 146,211 driver’s licenses for failure to pay court debts between July 2012 and June 2016. Only about 7 percent of those people were able to get their licenses reinstated in that same period.

Tennessee Democratic legislators had previously introduced bills on this subject.  A state Democratic Party official said, “We believe this is a major positive development because being poor is not a crime, and this is a huge burden lifted from many Tennesseans. Not having a valid photo ID is also a barrier to voting, so this could potentially have a positive impact on voter turnout among this group.”

The ruling could create a voter demographic that neither political party had previously accounted for, which could make the difference in a close race.  For comparison, during the last open Senate race in a mid-term election cycle in 2006, Bob Corker was elected to his first term in office by a margin of almost 50,000 votes.

Attorneys General Sue Trump Administration Over Family Separation Policy

A coalition of eighteen attorneys general spearheaded by Bob Ferguson of Washington filed a lawsuit challenging the Trump Administration’s family separation policy.  The lawsuit calls the policy “an affront to States’ sovereign interests in enforcing their laws governing minimum standards of care for children, declaring the family unit to be a fundamental resource of American life that should be nurtured, and requiring the preservation of the parent-child relationship unless the child’s right to basic nurture, health, or safety is jeopardized. The Policy also adversely affects the States’ proprietary interests, forcing States to expend resources to remediate the harms inflicted by the Policy, some of which are likely to be permanent.”

The lawsuit accuses the administration of violations of the Fifth Amendment, the Administrative Procedure Act, and asylum laws.  Ferguson was one of the attorneys general who successfully challenged early iterations of the administration’s travel ban policy, a newer version of which was upheld 5-4 by the Supreme Court today. The lawsuit was filed this afternoon in the Western District of Washington.

Supreme Court Upholds Travel Ban

By a 5-4 split on ideological lines, the high court ruled in favor of the administration. Read the opinion here.

Update: Read the analysis from SCOTUSblog here.

Update II:

Update III:

Update IV:
Statement from New York Attorney General Barbara Underwood:

“​President Trump’s travel bans are a stain on American history that were rooted in deep anti-Muslim animus and unleashed chaos on families, businesses, institutions, and communities throughout New York. Despite today’s ruling, New York will continue to serve as a beacon to the world, welcoming people of all faiths, races, nationalities, and backgrounds.

I’m proud of our work to successfully beat back President Trump’s first two discriminatory bans. My office won’t hesitate to act to protect New York’s families and ensure that we live up to the values on which this state and this nation were built.”​

Update V:
Statement from Democratic National Committee Chairman Tom Perez:

“Discrimination is not a national security strategy, and prejudice is not patriotism. Let’s call this ban for what it is: an outright attack on the Muslim community that violates our nation’s commitment to liberty and justice for all. But this ban does more than just violate our values – it also makes us less safe and threatens our place as a beacon of freedom for the world.

“Of course, this is part of a larger assault by President Trump and congressional Republicans on our nation’s values of inclusion and opportunity for all people — no matter who they are, where they come from, who they love, or how they pray. From the Muslim ban to the humanitarian crisis on our southern border, Donald Trump has made tearing families apart a hallmark of his administration and the Republican Party.

“As a nation, our diversity is our greatest strength. We cannot allow this administration’s prejudice to shut the doors of progress. And Democrats will continue to fight back every step of the way.”

Update VI:

Update VII:
Statement from California Attorney General Xavier Becerra:

“The Supreme Court got this one wrong. One day, this nation and Court will look back and regret this ruling that legalized discrimination. We will continue to fight actions that unlawfully target people based on their background or faith.”

Update VIII:
Statement from Marielena Hincapié, Executive Director of the National Immigration Law Center:

“Today the arc of justice just got longer. The Supreme Court ruling marks this as another painful day in our country’s history. The Court’s decision ignores and empowers this administration’s bigotry and serves as a tacit approval of religious and ethnic discrimination that runs counter to the inclusionary principles that our country aspires to. President Trump’s Muslim ban has already caused immeasurable suffering to families and communities and is part of the administration’s overall strategy of attacking and separating immigrant and refugee families.

“The Supreme Court has been wrong before. Today, the Roberts Court joins the shameful legacy left by Court majorities that sanctioned the unjust imprisonment of Japanese Americans (Korematsu) and the perpetuation of slavery in the U.S. (Dred Scott).

“The fights for religious freedom and justice for all immigrant families do not end here. The right to live in peace and be treated with dignity and justice no matter one’s race, ethnicity, or religion is too important to let one person, one president destroy. In November, we must elect a Congress that will hold this administration accountable. We continue to stand proudly with our plaintiffs, refugees, and the American Muslim community and will fight in the courtroom, in the halls of Congress, at the ballot box, and alongside our communities until there is no Muslim ban ever.”

Democratic Attorneys General Will Sue Trump Administration Over Family Separation Policy

A coalition of ten state attorneys general has announced it will sue the Trump administration over its family separation policy. The planned lawsuit, which will be led by Washington Attorney General Bob Ferguson, will be filed in the Western District of Washington.

“This is a rogue, cruel, and unconstitutional policy,” Ferguson said in a statement. “We’re going to put a stop to it.” The other states involved are California, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, and Pennsylvania. More states are expected to join the case after the lawsuit is filed.

According to the statement from Ferguson’s office, the lawsuit will allege that the Trump administration violated constitutional due process rights of the parents and children for separating them without a finding that the parent poses a threat to children.  The suit will also allege the policy violates the constitutional guarantee of equal protection, because it only targets people crossing from the southern border, not from anywhere else. The plaintiffs will also argue that it violates the Administrative Procedure Act because “it is arbitrary and capricious,” and noted that the administration has been violating U.S. asylum laws by turning people away at ports of entry.”

Ferguson and other attorneys general have been successful in other legal challenges to Trump administration policies, including litigation about the administration’s travel ban that was put into place at the beginning of President Trump’s term. The Supreme Court is expected to hand down its decision in Trump v. Hawaii before the end of its current term.

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.