Justices Say Facebook Posts Can’t Be Threats Without Intent
Justices Say Facebook Posts Can’t Be Threats Without Intent
By Allison Grande
The U.S. Supreme Court ruled Monday that an online musing cannot be considered threatening if the author claims he didn’t intend for the posting to be perceived that way, striking down the conviction of a man who made violent remarks about his wife, law enforcement officials and others over Facebook.
In a 7-2 decision, the high court reversed the Third Circuit’s September 2013 ruling that held that the test for determining whether a statement can be deemed a true threat hinges on how a reasonable observer would view the message, rather than whether the speaker intended for the posts to be threatening.
“Such a ‘reasonable person’ standard is a familiar feature of civil liability in tort law, but is inconsistent with ‘the conventional requirement for criminal conduct — awareness of some wrongdoing,'” Chief Justice John Roberts wrote in the majority decision. “Having liability turn on whether a ‘reasonable person’ regards the communication as a threat — regardless of what the defendant thinks — ‘reduces culpability on the all-important element of the crime to negligence,’ and we ‘have long been reluctant to infer that a negligence standard was intended in criminal statutes.'”
Justices Samuel Alito and Clarence Thomas both attacked the majority’s decision, saying it didn’t go far enough to provide guidance to lower courts on how to assess intent on the part of the speaker.
“The court’s disposition of this case is certain to cause confusion and serious problems,” Justice Alito wrote in an opinion dissenting in part. “The court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. But the court refuses to explain what type of intent was necessary.”
Because the majority opinion failed to address questions such as whether it was enough that Elonis knew his words conveyed a perceived threat or whether recklessness was enough to be culpable under the statute, “attorneys and judges are left to guess,” creating “regrettable consequences,” according to Alito.
Thomas in his full dissent also took issue with the majority leaving lower courts to “guess at the appropriate mental state for culpability” and skirting the recklessness question, in addition to its refusal to weigh the question of whether the First Amendment requires a particular mental state for threat prosecutions.
“Our job is to decide questions, not create them,” Justice Thomas wrote. “Given the majority’s ostensible concern for protecting innocent actors, one would have expected it to announce a clear rule — any clear rule. Its failure to do so reveals the fractured foundation upon which today’s decision rests.”
As a result of the majority decision, the justices vacated the conviction of defendant and peitioner Anthony Elonis, who in multiple Facebook posts discussed killing his wife with a mortar launcher and blowing up FBI agents, although they did remand the case to the lower court in order to give prosecutors an opportunity to retry the case based on the intent standard.
Arrested in 2010, Elonis was indicted on five counts of making threatening communications. A jury eventually convicted him on counts involving threats to his wife and threats to an FBI agent, and he was sentenced to 44 months in prison.
In appealing the conviction to the Third Circuit, Elonis contended that, based on the Supreme Court’s 2003 decision in Virginia v. Black, the jury was misled on the true threat standard through instructions that depended on how a reasonable person would see the statement.
According to Elonis, the Black case established the requirement of a subjective intent to threaten, and Elonis asserted that he didn’t mean for his Facebook posts to be threatening.
But the three-judge Third Circuit panel rejected that view of the decision and said a statement falls within the true threat exception to the First Amendment based on what a reasonable speaker would believe, maintaining its finding in the 1991 case of U.S. v. Kosma.
The appellate court’s decision led Elonis to the Supreme Court, which in June agreed to hear the case.
During oral arguments in December, the justices grilled representatives for the government and Elonis over how far prosecutors must go to prove that a violent message posted online falls within the true threat exception to the First Amendment.
While the government pushed for the high court to uphold the standard established by the Third Circuit and the petitioner advocated for a higher bar that would require prosecutors to prove subjective intent on the part of the poster, several justices searched for a compromise that would punish threatening posts without weeding out protected speech, such as legitimate rap lyrics and protest activities.
“We typically say that the First Amendment requires a kind of a buffer zone to ensure that even stuff that is wrongful may be is permitted because we don’t want to chill innocent behavior,” Justice Elena Kagan said. “So I guess the question is: Shouldn’t we allow some kind of buffer zone here past the sort of reasonable-man negligence standard that you are proposing?”
Deputy Solicitor General Michael R. Dreeben responded that moving away from the reasonable observer standard set by the Third Circuit would be dangerous because it would allow people who are consciously aware of the impact of their statement to hide behind an alleged lack of intent to cause that reaction.
John P. Elwood of Vinson & Elkins LLP, who argued the case on behalf of Elonis, countered that eliminating the poster’s intent from the equation completely would wrongly sweep up teenagers “who are essentially shooting off their mouth” and create a “five-year felony liability” any time there is a disagreement between the understanding of the speaker and the understanding of the listener.
Chief Justice John Roberts delivered the opinion of the court, in which Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined. Justice Samuel Alito filed an opinion concurring in part and dissenting in part. Justice Clarence Thomas filed a dissenting opinion.
Elonis is represented by John P. Elwood of Vinson & Elkins LLP and Ron Levine and Abe Rein of Post & Schell PC.
The government is represented by Deputy Solicitor General Michael R. Dreeben.
The case is U.S. v. Elonis, case number 13-983, in the Supreme Court of the United States.
–Additional reporting by Martin Bricketto. Editing by Philip Shea and Rebecca Flanagan.
New Law allows smart phone insurance cards
New Law allows smart phone insurance cards
Many readers may not be aware that on May 7th, Governor Christie signed A3905 into law. The bill amends NJSA 39:3-29 to allow drivers to use electronic copies of their insurance cards via smart phone or other electronic devices.
The May 7, 2015 amendment to NJSA 39:3-29 reads as follows:
The insurance identification card may be displayed or provided in either paper or electronic form. For the purposes of this section, “electronic form” means the display of images on an electronic device, such as a cellular telephone, tablet, or computer, if the images displayed contain the insured name, mailing address, carrier name, policy number, and the inception and expiration date of the policy as provided on an insurance identification card in paper form.
The use of a cellular telephone, tablet, computer, or any other electronic device to display proof of insurance does not constitute consent for a police officer or judge to access any other contents on the device. Any police officer or judge presented with an electronic device pursuant to this section shall be immune from any liability resulting from damage to the device.
Florida First District Court of Appeal Says Scammed Customers Cannot Be Forced into Arbitration
Court Says Scammed Customers Cannot Be Forced into Arbitration
December 10, 2014
By Aidan O’Shea
Communications Specialist
In a case regarding a car dealership that misrepresented and marked up a fee in its contracts with customers, the Florida First District Court of Appeal has now written a thorough opinion outlining the reasons why those customers taking part in a class action suit against the dealership cannot be forced into arbitration. This follows a ruling to that effect earlier this year.
“This opinion clarifying why there was no agreement to arbitrate will be helpful to fellow consumer rights attorneys working to preserve access to civil justice for people who are cheated,” said Public Justice Executive Director Paul Bland, who argued the case before the court in early 2014.
While there are some situations in which the FAA overrides state laws that create defenses to arbitration agreements, in this case the Court held that there was no agreement to arbitrate in the first place. The court explained the key point that under the FAA, “challenges to formation or existence of a contract are resolved by the court.”
In this case, under Florida law, no agreement to arbitrate had ever been formed because of the way the defendant wrote the documents. “HHH Motors is being held to the language of its own concurrently-signed documents”, said the court. “If it intended for credit buyers to be subject to the arbitration clause, then it could have said so in the RISC, but did not.”
For at least four years, Florida car dealership conglomerate HHH Motors scammed its customers by misrepresenting a vendor’s fee for making a required government filing as the government’s fee, then drastically marked up that fee and pocketed the profits. HHH’s customers have filed a class-action lawsuit under Florida’s Deceptive and Unfair Trade Practices Act, which prohibits sellers from overcharging customers for government fees in an attempt to squeeze additional profits. The plaintiffs seek reimbursement and injunctive relief.
But HHH refuses to defend its conduct in court and is fighting to force its wronged customers into individual arbitration, where they could not be part of a class action. Without a class action, almost no consumers would bother to sue and those who did would be unable to find a lawyer who could afford to fight the case for recovery of about $100. HHH charged buyers $100 or in some cases more, for a fee that’s actually about $12, attorneys said.
“The defendants made a lot of money from a phony electronic funds transfer fee,” Brian W. Warwick, attorney for the plaintiffs, said. “It’s deceptive because the dealer made the fee look like it’s a government required fee, like a sales tax, but in fact it’s almost all profit. There’s no question that the consumers deserve to get their money back.”
Warwick is a partner with Florida law firm Varnell & Warwick. The case is Jenny Lee Holt and Kristopher Holt, etc. v. HHH Motors LLP., d/b/a/ Hyuandai of Orange Park, etc.
The trial court denied HHH’s Motion to Compel Arbitration because the contracts its customers signed did not reflect a legally valid agreement to arbitrate. HHH has appealed that denial in Florida’s First District Court of Appeals, arguing that the Federal Arbitration Act calls for an arbitrator, and not the court, to decide whether there is an agreement to arbitrate.
Paul Bland successfully defeated the defendant’s argument that the Federal Arbitration Act essentially preempts the normal rules of state contract law relating to the formation of contracts. On May 27, 2014, the Florida First District Court of Appeal upheld the trial court’s decision that the car dealership could not enforce an arbitration clause and class action ban that appeared in its Retail Purchase Agreement where a second agreement to finance the car did not contain an agreement to arbitrate.
Plaintiffs’ attorney Janet Varnell, of Varnell & Warwick, emphasized the rare and precious nature of this spring’s victory for consumers in consumer contracts that involve an arbitration clause.
“Paul Bland was masterful in his argument, but it was his leadership and tenacity in educating and encouraging consumer protection lawyers to properly identify the last vestiges of opportunity amid the tsunami of pro-mandatory-arbitration opinions,” Varnell said. “Lawyers facing these same overreaching arguments about FAA preemption of state contract law should watch the video recording of Paul Bland’s oral argument in this case.”
The appellate court’s decision upheld the critical Florida precedent set in Duval Motors Co. v. Rogers (2011), which states that an agreement to arbitrate is only valid when the arbitration clause is in the particular document at issue in the case. In Holt, the challenged fee was in the financing agreement that contained an integration clause, while the agreement to arbitrate was in a separate purchase agreement. Had the appellate court done away with the Duval precedent, Varnell said, it would have left scammed Florida consumers with little hope of defeating arbitration challenges on the basis of contract formation, one of the last remaining lines of defense available to consumer attorneys.
“As it stands, the Plaintiffs in Holt now have the increasingly rare opportunity to bring a class action and to prove they were cheated in court,” she said.
– See more at: http://www.publicjustice.net/content/court-says-scammed-customers-cannot-be-forced-arbitration#sthash.pazcf5tb.dpuf
Fannie, Freddie Give Some Relief to Foreclosed Homeowners
Fannie, Freddie Give Some Relief to Foreclosed Homeowners
Agencies Will Allow Homeowners in Foreclosure to Buy Back Properties at Market Value
Mortgage-finance giants Fannie Mae and Freddie Mac will allow homeowners who have been foreclosed upon to repurchase their homes at market value even if they owe more, reversing a policy that prohibited such transactions.
The change comes as Melvin Watt, the director of Fannie and Freddie’s regulator, has come under increasing pressure from some groups to use the companies to provide more relief to struggling homeowners.
“This is a targeted, but important policy change that should help reduce property vacancies and stabilize home values and neighborhoods,” said Mr. Watt, the chief of the Federal Housing Finance Agency.
Previously, someone who lost a home through foreclosure and wanted to buy it back from Fannie or Freddie needed to pay the full amount owed on the mortgage, even if the market value of the home was less. That was intended to take away the motivation for homeowners to intentionally default in order to get the balance of their mortgages reduced.
In effect, that meant Fannie and Freddie had two standards where they would be willing to sell properties they owned to a new buyer at market prices when they wouldn’t do so for the former homeowner.
“There’s no reason why you shouldn’t be willing to sell a home to these borrowers on the same terms that you’re willing to sell it to someone else,” said Laurie Goodman, center director of the Housing Finance Policy Center at the Urban Institute.
The old policy drew the ire of some politicians and nonprofit groups, which argued that it encouraged homes to stay vacant and hurt neighboring property values. In June, Massachusetts Attorney General Martha Coakley sued Fannie and Freddie, alleging that the policy violated a Massachusetts state law that allowed market-value sales to foreclosed-upon homeowners in some circumstances. That lawsuit was dismissed in October.
On Tuesday, Ms. Coakley said the change “is encouraging news for homeowners in Massachusetts and across the country” while adding that she hoped the regulator would move further to reduce mortgage debt for some homeowners.
Elyse Cherry, chief executive of Boston Community Capital, a nonprofit group that provides financing to foreclosed-upon homeowners to buy their homes back, called the new policy “an encouraging step in the right direction. It makes sense for homeowners and it makes sense for neighborhoods.”
However, the impact of the change could be limited. It will only apply to the 121,000 homes that Fannie and Freddie have already foreclosed on and own, a provision that’s intended to curtail any incentive for borrowers in good standing to default. That narrow scope is unlikely to quiet the drumbeat for the FHFA to make bigger changes intended to help a larger number of borrowers who owe more than their homes are worth.
Foreclosed-upon borrowers will also still need to find the cash or financing to buy the old home back at market value, a tall order for those with tarnished credit histories.
“This is a ‘feel-good’ type of policy. It’s directionally helpful to a small number of homeowners that ran into trouble, but at the end of the day, I don’t look to this to have a major policy impact,” said Clifford Rossi, a finance professor at the University of Maryland.
Since Mr. Watt took office in January, many politicians and nonprofit groups have asked that he allow Fannie and Freddie to reduce the principal of mortgages for borrowers who owe more than their homes are worth, a step that he has so far avoided taking.
At a Senate Banking Committee hearing last week, Sen. Elizabeth Warren (D., Mass.) criticized Mr. Watt for not allowing principal reduction. Mr. Watt at the hearing said that principal reduction was “the most difficult issue that I’ve faced as director.”
The new policy in effect reduces mortgage principal, albeit for a small number of foreclosed-upon borrowers. Some nonprofit groups said that Fannie and Freddie would be better served to reduce the borrower’s principal before a foreclosure.
“It would make more sense to do a mortgage modification with principal reduction earlier in the process and prevent foreclosure in the first place,” said Kevin Whelan, national campaign director for the Home Defenders League, a nonprofit that has advocated for widespread principal reduction.
A Fannie Mae spokesman declined to comment beyond Mr. Watt’s statement.
“Our ongoing practice has been to sell homes at current market price to minimize losses to Freddie Mac and maximize opportunities to stabilize home prices in communities while fostering homeownership opportunities,” said a Freddie Mac spokesman.
Supreme Court case tests limits of free speech on Facebook
Supreme Court case tests limits of free speech on Facebook
Next Monday, the Supreme Court will hear oral arguments in a case originating near Bethlehem, Pennsylvania, that asks the Justices to decide when violent posts on social media are protected by the First Amendment.
In Elonis v. United States, 30-year-old Anthony Elonis is challenging a 44-month prison sentence he received for Facebook posts that appeared to threaten his ex-wife with violence.
One such post said, “If I only knew then what I know now … I would have smothered you’re [sic] a** with a pillow. Dumped your body in the back seat. Dropped you off in Toad Creek and made it look like a rape and murder.” Another declared, “Revenge is a dish that is best served cold with a delicious side of psychological torture.” (You can read more examples in the government’s brief.)
“I felt like I was being stalked,” his wife testified in district court. “I felt extremely afraid for mine and my children’s and my family’s lives.”
But as Constitution Daily reported in September, the case is complicated by Elonis’ claim that he is simply “an aspiring rapper” who liberally quoted from songs by Jay-Z, the Notorious B.I.G. (not to be confused with the Notorious R.B.G.) and Eminem on his Facebook profile.
“Art is about pushing limits,” Elonis wrote in one post. “I’m willing to go to jail for my constitutional rights.”
He may indeed get his wish. But first, the Supreme Court will have to decide whether it is enough that a “reasonable person” would view Elonis’ comments as a serious threat—the standard used to convict him—or if prosecutors have to prove that Elonis’ “subjective intent” was really to make threats.
Specifically, the Court will answer two questions: whether the federal law under which Elonis was convicted requires proof of subjective intent to threaten, and whether the First Amendment, especially in light of Virginia v. Black (2003), requires such proof as well.
The federal law in question, 18 U.S.C. § 875(c), says, “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”
And in Black, three Virginia men were convicted of burning crosses on their neighbors’ property. They were all convicted under a state law that prohibits the burning of crosses altogether without regard to intent. On appeal at the Supreme Court, however, their convictions were overturned and the Virginia law was struck down as unconstitutional for assuming the act of burning a cross must be an act of intimidation in all cases.
The attorneys for Elonis answer both questions with resounding affirmation. The plain language of 875(c), they argue, as well as its legislative history and case law, together indicate that subjective intent must be considered. They also point out that, if intent is not considered, what amounts to simple “negligent speech” would be criminalized, leading to a violation of the First Amendment.
As you might expect, attorneys for the government take precisely the opposite positions, arguing that the statutory text only requires a “reasonable person” standard—that is, would a reasonable third-party observer find the speech threatening?—and that prohibiting such threats does not chill speech.
How the Supreme Court will ultimately rule is uncertain. Under Chief Justice John Roberts, the Court has apparently championed the First Amendment. But upon a second look, the record is not so clear.
Nicandro Iannacci is a web strategist at the National Constitution Center.
The Truth about The President’s Immigration Accountability Executive Actions
Contrary to much of the media hype and the nay-sayers who cannot find a positive word to say about the President’s Executive actions, I humbly and respectfully suggest that they actually read the documents. The following is a summary of the actions.
• The President’s Immigration Accountability Executive actions will help secure the border, hold nearly 5 million undocumented immigrants accountable and ensure that everyone plays by the same rules.
• Acting within his legal authority, the President is taking an important step to fix our broken immigration system.
• These executive actions crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay their fair share of taxes as they register to temporarily stay in the US without fear of deportation.
• These are commonsense steps, but only Congress can finish the job. As the President acts, he’ll continue to work with Congress on a comprehensive, bipartisan bill—like the one passed by the Senate more than a year ago—that can replace these actions and fix the whole system.
• For the past half century, every president—Democratic or Republican—has used his legal authority to act on immigration. President Obama is now taking another common sense step.
Taking Action to Help Increase Accountability and Ensure Everyone Plays by the Rules:
Cracking Down on Illegal Immigration at the Border
• The President’s actions increase the chances that anyone attempting to cross the border illegally today will be caught and sent back. Continuing the surge of resources that effectively reduced the number of unaccompanied children crossing the border illegally this summer, the President’s action will also centralize border security command-and- control to continue to crack down on illegal immigration.
Deporting Felons, Not Families
• The President’s actions focus on the deportation of people who threaten national security and public safety. He has directed immigration enforcement to place anyone suspected of terrorism, violent criminals, gang members, and recent border crossers at the top of the deportation priority list.
Accountability – Criminal Background Checks and Taxes
• The President is also acting to hold accountable those undocumented immigrants who have lived in the US for more than five years and are parents of U.S. citizens or Lawful Permanent Residents. By registering and passing criminal and national security background checks, millions of undocumented immigrants will start paying their fair
share of taxes and temporarily stay in the US without fear of deportation for three years at a time.
Finishing the Job:
• As the Administration implements these executive actions, Congress should finish the job by passing a bill like the Senate bill, which:
o Continues to strengthen border security by adding 20,000 more Border Patrol agents;
o Cracks down on companies who hire undocumented workers;
o Creates an earned path to citizenship for undocumented immigrants who pay a fine
and taxes, pass a background check, learn English and go to the back of the line, and;
o Boosts our economy and keeps families together by cutting red tape to simplify our legal immigration process.
Toplines:
• The President’s Immigration Accountability Executive actions will help secure the border, hold nearly 5 million undocumented immigrants accountable and ensure that everyone plays by the same rules.
• Acting within his legal authority, the President is taking an important step to fix our broken immigration system.
• These executive actions crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay their fair share of taxes as they register to temporarily stay in the US without fear of deportation.
• These are commonsense steps, but only Congress can finish the job. As the President acts, he’ll continue to work with Congress on a comprehensive, bipartisan bill—like the one passed by the Senate more than a year ago—that can replace these actions and fix the whole system.
• For the past half century, every president—Democratic or Republican—has used his legal authority to act on immigration. President Obama is now taking another common sense step.
Taking Action to Help Increase Accountability and Ensure Everyone Plays by the Rules:
Cracking Down on Illegal Immigration at the Border
• The President’s actions increase the chances that anyone attempting to cross the border illegally today will be caught and sent back. Continuing the surge of resources that effectively reduced the number of unaccompanied children crossing the border illegally this summer, the President’s action will also centralize border security command-and- control to continue to crack down on illegal immigration
• Specifically, the President announced the following actions:
o Shifting resources to the border and recent border crossers. Over the summer, DHS sent hundreds of Border Patrol agents and ICE personnel to the border, and the Department of Justice (DOJ) reordered dockets in immigration courts to prioritize removal cases of recent border crossers. This continued focus will help keep our borders safe and secure.
o Streamlining the immigration court process. DOJ is announcing a package of immigration court reforms that will address the backlog of pending cases by working with DHS to more quickly adjudicate cases of individuals who meet the new DHS- wide priorities and closing cases of individuals who are low priorities. DOJ will also pursue regulations that adopt best practices for court systems in an effort to use limited court hearing time as efficiently as possible.
o Protecting victims of crime and human trafficking and workers. The Department of Labor (DOL) is expanding and strengthening immigration options for victims of crimes (U visas) and trafficking (T visas) who cooperate in government investigations. An interagency working group will also explore ways to ensure that workers can avail themselves of their labor and employment rights without fear of
retaliation.
Deporting Felons, Not Families
• The President’s actions focus on the deportation of people who threaten national security and public safety. He has directed immigration enforcement to place anyone suspected of terrorism, violent criminals, gang members, and recent border crossers at the top of the
deportation priority list.
• Specifically, the President announced the following actions:
o Focusing on the removal of national security, border security, and public safety threats. To better focus on enforcement, Secretary Johnson is issuing a new DHS- wide memorandum that makes clear that the government’s enforcement activity should be focused on national security threats, serious convicted criminals, and recent border crossers. These are the highest priorities for removal and DHS will direct all
of their enforcement resources to pursing priority individuals.
o Implementing a new Priority Enforcement Program. Effectively identifying and removing criminals in state and local jails is a critical goal but it must be done in a way that sustains the community trust. To address concerns from Governors, Mayors, law enforcement and community leaders which have undermined cooperation with DHS, Secretary Johnson is replacing the existing Secure
Communities program with a new Priority Enforcement Program (PEP) to remove those convicted of criminal offenses. DHS will continue to rely on biometric data to verify individuals who are enforcement priorities, and they will also work with DOJ’s Bureau of Prisons to identify and remove federal criminals serving time as soon as possible.
Accountability – Criminal Background Checks and Taxes
• The President is also acting to hold accountable those undocumented immigrants who have lived in the US for more than five years and are parents of U.S. citizens or Lawful Permanent Residents. By registering and passing criminal and national security
background checks, millions of undocumented immigrants will start paying their fair
share of taxes and temporarily stay in the US without fear of deportation for three years at a time.
• Specifically, the President announced the following actions:
o Requiring certain undocumented immigrants to pass a background check and pay taxes. In order to promote public safety, DHS is establishing a new deferred action program for parents of U.S. citizens or Lawful Permanent Residents who are not enforcement priorities and have been in the country for more than 5
years. Individuals will have the opportunity to request temporary relief from deportation and obtain work authorization if they come forward and register, submit biometric data, pass criminal and national security background checks, pay taxes, and show that their child was born before the date of this announcement. By providing individuals with an opportunity to come out of the shadows and work legally, we will also help crack down on companies who hired undocumented workers, which
undermines the wages of all workers, and ensure that individuals with deferred action are playing by the rules and paying taxes.
o Expanding DACA to cover additional DREAMers. Under initial DACA guidelines, young people who had been in the U.S. for at least five years, came as children, and met specific education and public safety criteria were eligible for temporary relief from deportation so long as they were under the age of 31 on June 15, 2007. DHS is expanding DACA so that individuals can apply if they entered before January 1,
2010, regardless of how old they are today. Going forward, DACA relief will also be granted for three years.
• The President’s actions will also streamline legal immigration to boost our economy and promote naturalization by:
o Providing portable work authorization for high-skilled workers awaiting green cards and their spouses.
o Enhancing immigration options for foreign entrepreneurs.
o Strengthening and extending on-the-job training for STEM graduates of U.S
universities.
o Streamlining the process for foreign workers and their employers, while protecting
American workers.
o Reducing family separation for those waiting to obtain LPR status.
o Ensuring that individuals with lawful status can travel to their countries of origin.
o Issuing a Presidential Memorandum on visa modernization.
o Creating a White House Task Force on New Americans.
o Promoting Citizenship Public Awareness.
o Ensuring U.S. Citizens Can Serve.
Finishing the Job:
• As the Administration implements these executive actions, Congress should finish the job by passing a bill like the Senate bill, which:
o Continues to strengthen border security by adding 20,000 more Border Patrol agents;
o Cracks down on companies who hire undocumented workers;
o Creates an earned path to citizenship for undocumented immigrants who pay a fine
and taxes, pass a background check, learn English and go to the back of the line, and;
o Boosts our economy and keeps families together by cutting red tape to simplify our legal immigration process.
###
New SCOTUS Case
Annucci v. Vincent
Pending petition
| Docket No. | Op. Below | Argument | Opinion | Vote | Author | Term |
|---|---|---|---|---|---|---|
| 14-360 | 2d Cir. | TBD | TBD | TBD | TBD | TBD |
Issue: (1) Whether a convicted offender has a clearly established constitutional right – sufficient to defeat qualified immunity – to separate judicial pronouncement of mandatory post-release supervision; and (2) whether, absent a definitive ruling from this Court, a federal court of appeals’ habeas ruling could clearly establish such a right without regard to contrary rulings by state courts of coordinate jurisdiction.
SCOTUSblog Coverage
| Date | Proceedings and Orders |
|---|---|
| Aug 8 2014 | Application (14A186) to extend the time to file a petition for a writ of certiorari from August 21, 2014 to September 25, 2014, submitted to Justice Ginsburg. |
| Aug 13 2014 | Application (14A186) granted by Justice Ginsburg extending the time to file until September 25, 2014. |
| Sep 25 2014 | Petition for a writ of certiorari filed. (Response due October 29, 2014) |
| Oct 20 2014 | Order extending time to file response to petition to and including November 28, 2014, for all respondents. |
Argument preview: Religion, rights, and the workplace
Argument preview: Religion, rights, and the workplace
At 10 a.m. next Tuesday, the Supreme Court will hold ninety minutes of oral argument on the government’s authority to require private businesses to provide birth control and other pregnancy-related services to their employees under the Affordable Care Act. Arguing for the challengers to the so-called “contraceptive mandate” will be Paul D. Clement, of the Washington, D.C., law firm of Bancroft PLLC. Defending the mandate will be U.S. Solicitor General Donald B. Verrilli, Jr. Each will have forty-five minutes of time, under an order issued Thursday expanding the time beyond the normal amount. The consolidated cases are Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius.
Background
For the first time since the broad new federal health care law partially survived its most sweeping constitutional challenge in the Supreme Court nearly two years ago, the Affordable Care Act comes up for a new test before the Justices. This time, the Court will be examining whether the government may enforce against private businesses owned by religiously devout owners the requirement that employee health plans provide no-cost coverage for women’s pregnancy-related services, including birth control.
These services, required under the so-called “contraceptive mandate” in the Act and in government regulations, are not themselves in legal trouble: the only issue before the Court at this point is which businesses can be ordered to provide the services to their female workers at no cost to them.
That issue will be debated by two of the legal gladiators who met in the last test at the Court of the Affordable Care Act: Washington attorney Paul D. Clement, a former U.S. Solicitor General, and the current Solicitor General, Donald B. Verrilli, Jr.
There probably would be a significant loophole in the contraceptive mandate’s reach if the challengers win. Some women’s rights groups have estimated that millions of women would be affected. Female workers of the two companies involved and those of other religiously oriented companies would have to cover personally the cost of at least some of the birth-control services — unless the government were to set up a new program on its own to do so, which is a very unlikely prospect.
Thus, the two cases that the Court has combined for review set up a direct conflict between the interests of some employers against those of their female workers of child-bearing age. The federal government is clearly on the workers’ side, but the lower federal courts have been divided on who should win.
The dispute only involves private businesses because religious groups, as such, are given an exemption by regulations the government has issued. Even some businesses get exemptions, too, because their employee health plans have been “grandfathered,” but before long those, too, will actually have to provide the benefits at issue, or face heavy financial penalties.
At the level of their greatest potential, the two cases raise the profound cultural question of whether a private, profit-making business organized as a corporation can “exercise” religion and, if it can, how far that is protected from government interference. The question can arise — and does, in these cases — under either the First Amendment’s Free Exercise Clause or under a federal law, the Religious Freedom Restoration Act, passed by Congress in 1993.
In a manner of speaking, these issues pose the question — a topic of energetic debate in current American political and social discourse — of whether corporations are “people.” The First Amendment protects the rights “of the people,” and the 1993 law protects the religious rights of “persons.” Do profit-making companies qualify as either?
Aside from whether corporations do have any religious rights, as such, the cases also raise the question whether the religious rights of their owners — real people, who undeniably can act according to their faith — are violated by the requirement that their companies obey the contraceptive mandate. Ordinarily, in business law, corporations are separate from their owners, but the owners in these cases resist that notion, at least so far as the owners’ religious views actually shape the business of their companies.
No one doubts that the owners of the two companies have sincere religious objections to some forms of birth control or that their beliefs do counsel them to avoid any role in providing those services to their employees. The companies and their owners do not have to convince the Court that that is what they believe — only whether that belief controls enforcement, or not, of the mandate.
One company is Hobby Lobby Stores, Inc., and a related company, Mardel, Inc. Headquartered in Oklahoma City, the two companies are owned — through a trust — by members of the Green family. Hobby Lobby is a chain of more than 500 arts-and-crafts stores across the country, with more than 13,000 employees. Mardel is a chain of Christian book stores, with 35 outlets and about 400 employees.
The Green family members signed a formal commitment to run the two chains according to Christian religious principles — closing on Sunday, advertising their religious orientation, and playing religious music in the stores. The owners and their stores do not object to every part of the contraceptive mandate, but they do object to the use of any drugs or intrauterine devices that — in the words of their lawyers — “end human life after conception.”
They have estimated that, if they follow their faith and violate the mandate, they face fines of about $1.3 million a day, or almost $475 million a year. They believe that cancelling their health plan to avoid obeying the mandate would put them at a competitive disadvantage with other employers. They do not believe that the government can force them to make such choices.
The other company is Conestoga Wood Specialties Corp., a company based in East Earl, Pennsylvania, that also has operations in other states, making wooden cabinets and wood specialty products. It has about 950 employees.
The company is owned by members of the Hahn family, who are Mennonite Christians. Their faith teaches them that it is wrong to take a human life and to prevent its creation through drugs and intrauterine devices If the company or its owners were to violate the mandate to adhere to their beliefs, they estimate that they would face financial penalties of about $35 million a year.
Federal appeals courts ruled in conflicting ways. The U.S. Court of Appeals f0r the Tenth Circuit decided that Hobby Lobby was likely to win its challenge because, even though it is a profit-making business, it can, indeed, act according to faith principles. The U.S. Court of Appeals for the Third Circuit decided that neither the company, Conestoga Wood Specialties, nor its owners could claim First Amendment religious rights — because, it found, the corporation is incapable of doing so, and because the owners had chosen the corporate form for their business and it stands apart from their personal interests.
Petitions for certiorari
The federal government asked the Supreme Court to review the Hobby Lobby case, while the Hahn family and their woodworking company did the same in their case. As offered to the Justices, the two cases together raise both the First Amendment religious rights question and the RFRA statutory issue, as to both the companies and their owners.
The First Amendment provides that no law may be passed, at any level of government, that prohibits “the free exercise of religion.” RFRA provides that government agencies (only at the federal level, since the Act no longer applies at the state and local levels) may not impose a “substantial burden” on the religious exercise of “a person,” even if the law is one that everyone ordinarily must obey, unless the government can justify the burden to satisfy a “compelling government interest,” and only if it is the “least restrictive means” of doing so. It does not specifically define “person.”
On November 26, the Court agreed to review both cases and consolidated them for review.
Briefs on the merits
Hobby Lobby Stores — whose name will probably provide the label for the case in history – argued aggressively in its merits brief that the federal government was pursuing “a misguided shell game” in which only the Green family has rights and the corporation suffers alone the burden of the mandate. That, it contended, was a move to ”drive a wedge” between the family and its corporation.
The brief insisted that, if the Court uses the definition of “person” that is in the federal Dictionary Act, it would refer not only to natural persons, but to corporations, too. And, under the ACA regulations at issue, the filing said, the government is seeking to force employers to provide specific contraceptives, not just “an exchange of money.” It is the contraceptives, not their cost, that burdens the Green family’s faith and the principles of Hobby Lobby Stores and the related bookstore chain, the brief argued.
Saying that the Court must apply “strict scrutiny,” the most demanding test for the validity of a government mandate or program, the Hobby Lobby brief said that the government has “not come close” to satisfying that standard. The official claims that the mandates support public health and women’s equality are so broad that they could never meet that test, the brief said.
The retail chains’ filing said that the government has come up at the last minute with another attempted justification — that is, that the mandate is part of a comprehensive scheme of providing health benefits to all. But that notion, the brief said, is belied by all the exemptions the government has allowed.
Because the question that the government raised in its petition in the Hobby Lobby case was restricted to the scope of the Religious Freedom Restoration Act, the retail chains’ merits brief is confined to that issue.
The merits brief for Conestoga Wood Specialties and its owners deals with its claims under both RFRA and the First Amendment. The filing begins with a defense of the Hahn family’s claim that its members choose to practice their faith through business activity, as well as in their personal lives. “The corporate formality of a business is not determinative of whether religious exercise occurs in that business,” it contended.
But, if the family’s religious interests could be separated from the company, the brief went on, the company itself “exercises religion, too.” Under state law, the corporate form may be used “to pursue all lawful purposes, without excluding religion,” Conestoga’s lawyers told the Court. The Supreme Court, they added, “has never limited religious freedom to natural persons.”
Aside from arguing that the contraceptive mandate substantially burdens the religious rights of the Hahns and of their company, the brief said that Congress in passing the Affordable Care Act did not require that contraceptive services be included in employee health plans; that was added by the federal government in ACA regulations.
And, like Hobby Lobby, the Conestoga filing asserted that “strict scrutiny” is the only valid test to apply and that the government cannot show that it has a compelling interest in enforcing the birth-control mandate against religious objectors. If the government is intent on assuring access to birth control, the brief said, it could either expand existing programs which provide that service or create new ones.
The Obama administration’s merits brief in Hobby Lobby focused on the RFRA claim, and its separate brief in the Conestoga case sought to answer claims under both RFRA and the First Amendment.
In each filing, the government made the same basic points: profit-making businesses do not “exercise” religion at all, for purposes of either federal law or the Constitution; the mandate only applies to corporations and not to their owners and, in any event, corporations law treats the business separate from the owner; and, even if the mandate did have to satisfy a compelling government interest, it does so by assuring that female workers have access to an important health benefit as part of a comprehensive health insurance scheme.
The contraceptive coverage requirement, according to the government, is a neutral obligation that applies to profit-making businesses in general, and does not target any religious exercise. The exemptions that have been provided for other businesses — those whose plans are “grandfathered” and thus do not immediately have to obey the mandate — will only exist in a phased sequence, and that alone is not enough to deprive the mandate of its neutral character, the U.S. brief said.
In passing RFRA, the brief contended, Congress did not intend to “uniquely disable the government by working a dramatic expansion” of the claims for exemption based on religious liberty. Besides, it added, there has not been a single decision by the Supreme Court that struck down a federal law — or required an exemption to it — on the theory that that was necessary “to protect the rights of a for-profit corporation or of the owners, managers, or directors of the corporation.”
The government brief also made a religious liberty argument of its own. It said that giving for-profit businesses the chance to obtain an exemption from federal laws based on religion would threaten “the special place of religious institutions in our society.” Congress has often given religious bodies exemptions from laws, but it has always “drawn the line at for-profit corporations,” the brief said.
If Hobby Lobby and Conestoga are legally entitled to exemptions, Congress would be discouraged from providing exemptions for non-profit religious organizations “for fear that doing so would automatically entitle for-profit corporations to the same accommodation,” according to the government’s argument.
The briefs for the government also asserted that there actually is no burden on any religious exercise by owners or corporations, because the choice to use a birth-control pill or device would be made independently by the female workers covered by a health insurance plan. The connection between those choices and the interests of the employer who finances the plan, the brief went on, is “too indirect” to make a legal difference.
The amicus briefs
If numbers of amici were to make a difference, there is no contest in these cases: the government drew two dozen briefs in support, while Hobby Lobby and Conestoga are backed by five dozen filings. There are two briefs that do not take a position on how these specific cases should be decided, but they take opposite positions: a brief by professors of history and law argues that the Court has always treated corporations differently from natural persons, while a brief by a group of traditional religious organizations urges the Court to adopt an expansive view of the right to religious exemptions from public laws.
The boldest brief in support of the government takes a position that the government did not, urging the Supreme Court to strike down RFRA as an unconstitutional attempt by Congress to scuttle a Supreme Court decision requiring religious organizations to obey laws that apply generally. That is a brief by a disparate group of advocacy organizations, including non-believers and survivors of clergy sexual abuse of children.
There is, on the corporations’ side, a brief by constitutional law scholars seeking to answer that constitutional challenge. That brief contends that RFRA is a valid exercise of Congress’s legislative powers, and that nullifying the law “would threaten thousands of statutes that protect religious minorities.”
There are predictable allies on each side: civil rights and women’s rights groups, liberal organizations, professors of various disciplines, and liberal lawmakers on the side of the federal government and the ACA, and traditional religious organizations and advocacy groups, conservative and libertarian entities, professors of various disciplines, and conservative lawmakers on the side of Hobby Lobby and Conestoga.
Analysis
If the legal territory the Court enters in these cases is not entirely new, it is also not well traveled. The Court has sort of assumed since 1886 — without ever ruling flatly — that corporations are “persons” in a constitutional sense. And, over time, it has filled in some of the gaps on what rights corporations are to have under the Constitution. But it has never said, explicitly, that they are endowed with the right to freely exercise a religious faith.
These two cases give it the chance to do just that, if it is so inclined, and that would be a profound constitutional shift, with deeply uncertain implications. It would, at a minimum, pave the way for businesses to choose whom they serve according to the identities of the customers and how those square with the religious preferences of the company.
But the Court need not go that far, even if it should lean toward ruling in favor of an exemption within the business world from the ACA’s contraceptive mandate. It could decide that the Green family and the Hahn family have a right to exercise their religious beliefs in the way they run their business firms, and that this mandate intrudes on those rights.
Along the way, of course, the Justices would have to find a way around the conventional business law notion that corporations stand apart from their owners. But they could do that with a very narrow definition of the rights of the owners of a company that is so closely held that it is essentially not a public corporation, except in name. Again, though, that would grow out of the rights of the owners, not of the corporate entity itself.
The problem in anticipating a victory for religious owners, though, is that the focus in that analysis may fall too heavily on the owner’s interests, and insufficiently on the interests of the employees. What is at stake on that side of the legal controversy is the interest of female employees in managing their personal lives and their reproductive health, with obvious implications for their ability to carry on their work lives and careers.
Just as there are Justices now on the Court who would, indeed, view this controversy through sympathetic eyes for business management, there also are Justices now serving who would certainly view sympathetically the claims of female workers of child-bearing age.
In these two cases, those two perspectives seem distinctly at odds, and the chances of finding common ground between them seem remote, indeed.
For example, the easiest way to rule for a religious exemption for businesses or their owners in this case would be to interpret the Affordable Care Act as not even authorizing the government to include birth control in the requirements for employee health plans. That is an argument that the lawyers for the businesses here actually make. But to rule that way would be to read the purposes of the statute’s coverage of preventive health services so narrowly as to ignore the realities of the health of women who work in offices, factories, and shops.
In terms of the legal foundations for a ruling, the Court might well go into this case hoping to avoid making new constitutional law, on the institutional premise that it should not decide a constitutional question unless it has no way to avoid it.
But it would be hard to base a ruling in this case solely on the scope of the Religious Freedom Restoration Act, because that Act is essentially designed to protect constitutional rights of religious liberty. To know what that law does protect requires knowing what the Constitution embraces — either as to corporations, or as to their owners, or both.
Only one thing, perhaps, is certain as the argument in this case approaches: whatever the Court decides, it will not decide the fate of the Affordable Care Act. The nation’s politics, and many of its legislatures (including Congress), are absorbed with debates over whether to keep the law, to amend it, to render it unenforceable, or to repeal it altogether. None of that depends upon the outcome of this case.
The Court has not been asked to strike down any part of the law, and it almost certainly won’t volunteer to do so. All that is at issue is who must obey the contraceptive mandate.
15th Amendment: Right to Vote Not Denied by Race
Adoption and Judicial Enforcement
Adoption .–The final decision of Congress not to include anything relating to the right to vote in the Fourteenth Amendment, aside from the provisions of Sec. 2, 1 left the issue of African American suffrage solely with the States, and Northern States were generally as loath as Southern to grant the ballot to African Americans, both the newly-freed and those who had never been slaves. 2 But in the second session of the 39th Congress, the right to vote was extended to African Americans by statute in the District of Columbia and the territories, and the seceded States as a condition of readmission had to guarantee African American suffrage. 3 Following the election of President Grant, the ”lame duck” third session of the Fortieth Congress sent the proposed Fifteenth Amendment to the States for ratification. The struggle was intense because Congress was divided into roughly three factions: those who opposed any federal constitutional guarantee of African American suffrage, those who wanted to go beyond a limited guarantee and enact universal male suffrage, including abolition of all educational and property-holding tests, and those who wanted or who were willing to settle for an amendment merely proscribing racial qualifications in deter mining who could vote under any other standards the States wished to have. 4 The later group ultimately prevailed.
The Judicial View of the Amendment .–In its initial appraisals of this Amendment, the Supreme Court appeared disposed to emphasize only its purely negative aspects. ”The Fifteenth Amendment,” it announced, did ”not confer the right . . . [to vote] upon any one,” but merely ”invested the citizens of the United States with a new constitutional right which is . . . exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.” 5 But in subsequent cases, the Court, conceding ”that this article” has originally been construed as giving ”no affirmative right to the colored man to vote” and as having been ”designed primarily to prevent discrimination against him,” professed to be able ”to see that under some circumstances it may operate as the immediate source of a right to vote. In all cases where the former slave-holding States had not removed from their Constitutions the words ‘white man’ as a qualification for voting, this provision did, in effect, confer on him the right to vote, because . . . it annulled the discriminating word white, and this left him in the enjoyment of the same right as white persons. And such would be the effect of any future constitutional provision of a State which would give the right of voting exclusively to white people. . . .” 6
Grandfather Clauses .–Until quite recently, the history of the Fifteenth Amendment has been largely a record of belated judicial condemnation of various state efforts to disenfranchise African Americans either overtly through statutory enactment or covertly through inequitable administration of electoral laws and toleration of discriminatory membership practices of political parties. Of several devices which have been voided, one of the first to be held unconstitutional was the ”grandfather clause.” Beginning in 1895, several States enacted temporary laws whereby persons who had been voters, or descendants of those who had been voters, on January 1, 1867, could be registered notwithstanding their inability to meet any literacy requirement. Unable because of the date to avail themselves of the exemption, African Americans were disabled to vote on grounds of illiteracy or through discriminatory administration of literacy tests, while illiterate whites were permited to register without taking any tests. With the achievement of the intended result, most States permitted their laws to lapse, but Oklahoma’s grandfather clause had been enacted as a permanent amendment to the state constitution. A unanimous Court condemned the device as recreating and perpetuating ”the very conditions which the [Fifteenth] Amendment was intended to destroy.” 7
The Court did not experience any difficulty in voiding a subsequent Oklahoma statute of 1916 which provided that all persons, except those who voted in 1914, who were qualified to vote in 1916 but who failed to register between April 30 and May 11, 1916, with some exceptions for sick and absent persons who were given an additional brief period to register, should be perpetually disenfranchised. The Fifteenth Amendment, Justice Frankfurter declared for the Court, nullified ”sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.” 8 The impermissible effect of the statute, said the Court, was automatically to continue as permanent voters, without their being obliged to register again, all white persons who were on registration lists in 1914 by virtue of the previously invalidated grandfather clause, whereas African Americans, prevented from registering by that clause, had been afforded only a 20-day registration opportunity to avoid permanent disenfranchisement.
The White Primary .–Indecision was displayed by the Court, however, when it was called upon to deal with the exclusion of African Americans from participation in primary elections. 9 Prior to its becoming convinced that primary contests were in fact elections to which federal constitutional guarantees applied, 10 the Court had relied upon the equal protection clause to strike down the Texas White Primary Law 11 and a subsequent Texas statute which contributed to a like exclusion by limiting voting in primary elections to members of state political parties as determined by the central committees thereof. 12 When exclusion of African Americans was thereafter perpetuated by political parties not acting in obedience to any statutory command, this discrimination was for a time viewed as not constituting state action and therefore as not prohibited by either the Fourteenth or the Fifteenth Amendments. 13 This holding was reversed nine years later when the Court declared that where the selection of candidates for public office is entrusted by statute to political parties, a political party in making its selection at a primary election is a state agency, and hence it may not under the Fifteenth Amendment exclude African Americans from such elections. 14 An effort by South Carolina to escape the effects of this ruling by repealing all statutory provisions regulating primary elections and political organizations conducting them was nullified by a lower federal court with no doctrinal difficulty, 15 but the Supreme Court, although nearly unanimous on the result, was unable to come to a majority agreement with regard to the exclusion of African Americans by the Jaybird Association, a county-wide organization which, independently of state laws and the use of state election machinery or funds, nearly monopolized access to Democratic nomination for local offices. The exclusionary policy was held unconstitutional but there was no opinion of the Court. 16
Literacy Tests .–At an early date the Court held that literacy tests which are drafted so as to apply alike to all applicants for the voting franchise would be deemed to be fair on their face and in the absence of proof of discriminatory enforcement could not be said to deny equal protection. 17 But an Alabama constitutional amendment the legislative history of which disclosed that both its object and its intended administration were to disenfranchise African Americans was condemned as violative of the Fifteenth Amendment. 18
Racial Gerrymandering .–The Court’s series of decisions interpreting the equal protection clause as requiring the apportionment and districting of state legislatures solely on a population basis 19 had its beginning in Gomillion v. Lightfoot, 20 in which the Court found a Fifteenth Amendment violation in the redrawing of a municipal boundary line into a 28-sided figure which excluded from the city all but four or five of 400 African Americans but no whites, and which thereby continued white domination of municipal elections. Subsequent decisions, particularly concerning the validity of multi-member districting and alleged dilution of minority voting power, were decided under the equal protection clause, 21 and in City of Mobile v. Bolden, 22 in the course of a considerably divided decision with respect to the requirement of discriminatory motivation in Fifteenth Amendment cases, 23 a plurality of the Court sought to restrict the Fifteenth Amendment to cases in which there is official denial or abridgment of the right to register and vote, and to exclude indirect dilution claims. 24 Congressional amendment of Sec. 2 of the Voting Rights Act may obviate the further development of constitutional jurisprudence in this area, however. 25
Footnotes
[Footnote 1] Supra, pp. 1926-27. Of course, the equal protection clause has been extensively utilized by the Court to protect the right to vote. Supra, pp. 1892-1911.
[Footnote 2] W. Gillette, The Right to Vote: Politics and the Passage of the Fifteenth Amendment 25-28 (1965).
[Footnote 3] Id. at 29-31; ch. 6, 14 Stat. 375 (1866) (District of Columbia); ch. 15, 14 Stat. 379 (1867) (territories); ch. 36, 14 Stat. 391 (1867) (admission of Nebraska to statehood upon condition of guaranteeing against racial qualifications in voting); ch. 153, 14 Stat. 428 (1867) (First Reconstruction Act).
[Footnote 4] Gillette, supra n., at 46-78. The congressional debate is conveniently collected in 1 B. Schwartz, Statutory History of the United States–Civil Rights 372 (1971).
[Footnote 5] United States v. Reese, 92 U.S. 214, 217 -18 (1876); United States v. Cruikshank, 92 U.S. 542, 566 (1876).
[Footnote 6] Ex parte Yarbrough, 110 U.S. 651, 665 (1884); Guinn v. United States 238 U.S. 347, 363 (1915). A state constitutional provision limiting the right of suffrage to whites was automatically nullified by ratification of the Fifteenth Amendment. Neal v. Delaware, 103 U.S. 370 (1881).
[Footnote 7] Guinn v. United States, 238 U.S. 347 (1915).
[Footnote 8] Lane v. Wilson, 307 U.S. 268, 275 (1939).
[Footnote 9] See also supra, p. 120.
[Footnote 10] United States v. Classic, 313 U.S. 299 (1941); Smith v. Allwright, 321 U.S. 649 (1944).
[Footnote 11] Nixon v. Herndon, 273 U.S. 536 (1927).
[Footnote 12] Nixon v. Condon, 286 U.S. 73 (1932).
[Footnote 13] Grovey v. Townsend, 295 U.S. 45 (1935).
[Footnote 14] Smith v. Allwright, 321 U.S. 649 (1944).
[Footnote 15] Rice v. Elmore, 165 F.2d 387 (4th Cir. 1947), cert. denied, 333 U.S. 875 (1948); see also Baskin v. Brown, 174 F.2d 391 (4th Cir. 1949).
[Footnote 16] Terry v. Adams, 345 U.S. 461 (1953). For an analysis of the opinions, see infra, p. 1945.
[Footnote 17] Williams v. Mississippi, 170 U.S. 213 (1898); cf. Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1960).
[Footnote 18] Davis v. Schnell, 81 F. Supp. 872 (M.D. Ala. 1949), aff’d 336 U.S. 933 (1949). On congressional action on literacy tests, see infra, pp. 1946-47.
[Footnote 19] Supra, pp. 1902-11.
[Footnote 20] 364 U.S. 339 (1960). See also Wright v. Rockefeller, 376 U.S. 52 (1964).
[Footnote 21] E.g., Whitcomb v. Chavis, 403 U.S. 124 (1971); White v. Regester, 412 U.S. 755 (1973).
[Footnote 22] 446 U.S. 55 (1980).
[Footnote 23] On the issue of motivation versus impact under the equal protection clause, see supra, pp. 1815-20. On the plurality’s view, see 446 U.S. at 61 -65. Justice White appears clearly to agree that purposeful discrimination is a necessary component of equal protection clause violation, and may have agreed as well that the same requirement applies under the Fifteenth Amendment. Id. at 94-103. Only Justice Marshall unambiguously adhered to the view that discriminatory effect is sufficient. Id. at 125. See also Beer v. United States, 425 U.S. 130, 146 -49 & nn.3-5 (1976) (dissenting).
[Footnote 24] Id. at 65. At least three Justices disagreed with this view and would apply the Fifteenth Amendment to vote dilution claims. Id. at 84 n.3 (Justice Stevens concurring), 102 (Justice White dissenting), 125-35 (Justice Marshall dissenting). The issue was reserved in Rogers v. Lodge, 458 U.S. 613, 619 n.6 (1982).
[Footnote 25] See Voting Rights Act Amendments of 1982, Pub. L. 97-205, 96 Stat. 131, amending 42 U.S.C. Sec. 1973. The Supreme Court interpreted the 1982 amendments to section 2 in Thornburg v. Gingles, 478 U.S. 30 (1986), determining that Congress had effectively overruled the City of Mobile intent standard in returning to a ”totality of the circumstances” results test.
– See more at: http://constitution.findlaw.com/amendment15/annotation01.html#4
Adoption and Judicial Enforcement
Adoption .–The final decision of Congress not to include anything relating to the right to vote in the Fourteenth Amendment, aside from the provisions of Sec. 2, 1 left the issue of African American suffrage solely with the States, and Northern States were generally as loath as Southern to grant the ballot to African Americans, both the newly-freed and those who had never been slaves. 2 But in the second session of the 39th Congress, the right to vote was extended to African Americans by statute in the District of Columbia and the territories, and the seceded States as a condition of readmission had to guarantee African American suffrage. 3 Following the election of President Grant, the ”lame duck” third session of the Fortieth Congress sent the proposed Fifteenth Amendment to the States for ratification. The struggle was intense because Congress was divided into roughly three factions: those who opposed any federal constitutional guarantee of African American suffrage, those who wanted to go beyond a limited guarantee and enact universal male suffrage, including abolition of all educational and property-holding tests, and those who wanted or who were willing to settle for an amendment merely proscribing racial qualifications in deter mining who could vote under any other standards the States wished to have. 4 The later group ultimately prevailed.
The Judicial View of the Amendment .–In its initial appraisals of this Amendment, the Supreme Court appeared disposed to emphasize only its purely negative aspects. ”The Fifteenth Amendment,” it announced, did ”not confer the right . . . [to vote] upon any one,” but merely ”invested the citizens of the United States with a new constitutional right which is . . . exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.” 5 But in subsequent cases, the Court, conceding ”that this article” has originally been construed as giving ”no affirmative right to the colored man to vote” and as having been ”designed primarily to prevent discrimination against him,” professed to be able ”to see that under some circumstances it may operate as the immediate source of a right to vote. In all cases where the former slave-holding States had not removed from their Constitutions the words ‘white man’ as a qualification for voting, this provision did, in effect, confer on him the right to vote, because . . . it annulled the discriminating word white, and this left him in the enjoyment of the same right as white persons. And such would be the effect of any future constitutional provision of a State which would give the right of voting exclusively to white people. . . .” 6
Grandfather Clauses .–Until quite recently, the history of the Fifteenth Amendment has been largely a record of belated judicial condemnation of various state efforts to disenfranchise African Americans either overtly through statutory enactment or covertly through inequitable administration of electoral laws and toleration of discriminatory membership practices of political parties. Of several devices which have been voided, one of the first to be held unconstitutional was the ”grandfather clause.” Beginning in 1895, several States enacted temporary laws whereby persons who had been voters, or descendants of those who had been voters, on January 1, 1867, could be registered notwithstanding their inability to meet any literacy requirement. Unable because of the date to avail themselves of the exemption, African Americans were disabled to vote on grounds of illiteracy or through discriminatory administration of literacy tests, while illiterate whites were permited to register without taking any tests. With the achievement of the intended result, most States permitted their laws to lapse, but Oklahoma’s grandfather clause had been enacted as a permanent amendment to the state constitution. A unanimous Court condemned the device as recreating and perpetuating ”the very conditions which the [Fifteenth] Amendment was intended to destroy.” 7
The Court did not experience any difficulty in voiding a subsequent Oklahoma statute of 1916 which provided that all persons, except those who voted in 1914, who were qualified to vote in 1916 but who failed to register between April 30 and May 11, 1916, with some exceptions for sick and absent persons who were given an additional brief period to register, should be perpetually disenfranchised. The Fifteenth Amendment, Justice Frankfurter declared for the Court, nullified ”sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.” 8 The impermissible effect of the statute, said the Court, was automatically to continue as permanent voters, without their being obliged to register again, all white persons who were on registration lists in 1914 by virtue of the previously invalidated grandfather clause, whereas African Americans, prevented from registering by that clause, had been afforded only a 20-day registration opportunity to avoid permanent disenfranchisement.
The White Primary .–Indecision was displayed by the Court, however, when it was called upon to deal with the exclusion of African Americans from participation in primary elections. 9 Prior to its becoming convinced that primary contests were in fact elections to which federal constitutional guarantees applied, 10 the Court had relied upon the equal protection clause to strike down the Texas White Primary Law 11 and a subsequent Texas statute which contributed to a like exclusion by limiting voting in primary elections to members of state political parties as determined by the central committees thereof. 12 When exclusion of African Americans was thereafter perpetuated by political parties not acting in obedience to any statutory command, this discrimination was for a time viewed as not constituting state action and therefore as not prohibited by either the Fourteenth or the Fifteenth Amendments. 13 This holding was reversed nine years later when the Court declared that where the selection of candidates for public office is entrusted by statute to political parties, a political party in making its selection at a primary election is a state agency, and hence it may not under the Fifteenth Amendment exclude African Americans from such elections. 14 An effort by South Carolina to escape the effects of this ruling by repealing all statutory provisions regulating primary elections and political organizations conducting them was nullified by a lower federal court with no doctrinal difficulty, 15 but the Supreme Court, although nearly unanimous on the result, was unable to come to a majority agreement with regard to the exclusion of African Americans by the Jaybird Association, a county-wide organization which, independently of state laws and the use of state election machinery or funds, nearly monopolized access to Democratic nomination for local offices. The exclusionary policy was held unconstitutional but there was no opinion of the Court. 16
Literacy Tests .–At an early date the Court held that literacy tests which are drafted so as to apply alike to all applicants for the voting franchise would be deemed to be fair on their face and in the absence of proof of discriminatory enforcement could not be said to deny equal protection. 17 But an Alabama constitutional amendment the legislative history of which disclosed that both its object and its intended administration were to disenfranchise African Americans was condemned as violative of the Fifteenth Amendment. 18
Racial Gerrymandering .–The Court’s series of decisions interpreting the equal protection clause as requiring the apportionment and districting of state legislatures solely on a population basis 19 had its beginning in Gomillion v. Lightfoot, 20 in which the Court found a Fifteenth Amendment violation in the redrawing of a municipal boundary line into a 28-sided figure which excluded from the city all but four or five of 400 African Americans but no whites, and which thereby continued white domination of municipal elections. Subsequent decisions, particularly concerning the validity of multi-member districting and alleged dilution of minority voting power, were decided under the equal protection clause, 21 and in City of Mobile v. Bolden, 22 in the course of a considerably divided decision with respect to the requirement of discriminatory motivation in Fifteenth Amendment cases, 23 a plurality of the Court sought to restrict the Fifteenth Amendment to cases in which there is official denial or abridgment of the right to register and vote, and to exclude indirect dilution claims. 24 Congressional amendment of Sec. 2 of the Voting Rights Act may obviate the further development of constitutional jurisprudence in this area, however. 25
Footnotes
[Footnote 1] Supra, pp. 1926-27. Of course, the equal protection clause has been extensively utilized by the Court to protect the right to vote. Supra, pp. 1892-1911.
[Footnote 2] W. Gillette, The Right to Vote: Politics and the Passage of the Fifteenth Amendment 25-28 (1965).
[Footnote 3] Id. at 29-31; ch. 6, 14 Stat. 375 (1866) (District of Columbia); ch. 15, 14 Stat. 379 (1867) (territories); ch. 36, 14 Stat. 391 (1867) (admission of Nebraska to statehood upon condition of guaranteeing against racial qualifications in voting); ch. 153, 14 Stat. 428 (1867) (First Reconstruction Act).
[Footnote 4] Gillette, supra n., at 46-78. The congressional debate is conveniently collected in 1 B. Schwartz, Statutory History of the United States–Civil Rights 372 (1971).
[Footnote 5] United States v. Reese, 92 U.S. 214, 217 -18 (1876); United States v. Cruikshank, 92 U.S. 542, 566 (1876).
[Footnote 6] Ex parte Yarbrough, 110 U.S. 651, 665 (1884); Guinn v. United States 238 U.S. 347, 363 (1915). A state constitutional provision limiting the right of suffrage to whites was automatically nullified by ratification of the Fifteenth Amendment. Neal v. Delaware, 103 U.S. 370 (1881).
[Footnote 7] Guinn v. United States, 238 U.S. 347 (1915).
[Footnote 8] Lane v. Wilson, 307 U.S. 268, 275 (1939).
[Footnote 9] See also supra, p. 120.
[Footnote 10] United States v. Classic, 313 U.S. 299 (1941); Smith v. Allwright, 321 U.S. 649 (1944).
[Footnote 11] Nixon v. Herndon, 273 U.S. 536 (1927).
[Footnote 12] Nixon v. Condon, 286 U.S. 73 (1932).
[Footnote 13] Grovey v. Townsend, 295 U.S. 45 (1935).
[Footnote 14] Smith v. Allwright, 321 U.S. 649 (1944).
[Footnote 15] Rice v. Elmore, 165 F.2d 387 (4th Cir. 1947), cert. denied, 333 U.S. 875 (1948); see also Baskin v. Brown, 174 F.2d 391 (4th Cir. 1949).
[Footnote 16] Terry v. Adams, 345 U.S. 461 (1953). For an analysis of the opinions, see infra, p. 1945.
[Footnote 17] Williams v. Mississippi, 170 U.S. 213 (1898); cf. Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1960).
[Footnote 18] Davis v. Schnell, 81 F. Supp. 872 (M.D. Ala. 1949), aff’d 336 U.S. 933 (1949). On congressional action on literacy tests, see infra, pp. 1946-47.
[Footnote 19] Supra, pp. 1902-11.
[Footnote 20] 364 U.S. 339 (1960). See also Wright v. Rockefeller, 376 U.S. 52 (1964).
[Footnote 21] E.g., Whitcomb v. Chavis, 403 U.S. 124 (1971); White v. Regester, 412 U.S. 755 (1973).
[Footnote 22] 446 U.S. 55 (1980).
[Footnote 23] On the issue of motivation versus impact under the equal protection clause, see supra, pp. 1815-20. On the plurality’s view, see 446 U.S. at 61 -65. Justice White appears clearly to agree that purposeful discrimination is a necessary component of equal protection clause violation, and may have agreed as well that the same requirement applies under the Fifteenth Amendment. Id. at 94-103. Only Justice Marshall unambiguously adhered to the view that discriminatory effect is sufficient. Id. at 125. See also Beer v. United States, 425 U.S. 130, 146 -49 & nn.3-5 (1976) (dissenting).
[Footnote 24] Id. at 65. At least three Justices disagreed with this view and would apply the Fifteenth Amendment to vote dilution claims. Id. at 84 n.3 (Justice Stevens concurring), 102 (Justice White dissenting), 125-35 (Justice Marshall dissenting). The issue was reserved in Rogers v. Lodge, 458 U.S. 613, 619 n.6 (1982).
[Footnote 25] See Voting Rights Act Amendments of 1982, Pub. L. 97-205, 96 Stat. 131, amending 42 U.S.C. Sec. 1973. The Supreme Court interpreted the 1982 amendments to section 2 in Thornburg v. Gingles, 478 U.S. 30 (1986), determining that Congress had effectively overruled the City of Mobile intent standard in returning to a ”totality of the circumstances” results test.
– See more at: http://constitution.findlaw.com/amendment15/annotation01.html#4
Judge blocks warrantless searches of Oregon drug database
(Reuters) – A federal judge ruled on Tuesday that U.S. government attempts to gather information from an Oregon state database of prescription drug records violates constitutional protections against unreasonable search and seizure.
The American Civil Liberties Union hailed the decision, in a case originally brought by the state of Oregon, as the first time a federal judge has ruled that patients have a reasonable expectation of privacy in their prescription records.
The ACLU had joined the lawsuit on behalf of four patients and a physician challenging U.S. Drug Enforcement Administration efforts to gain access, without prior court approval, to the state’s prescription database.
The Oregon Prescription Drug Monitoring Program database was created by the state legislature in 2009 as a tool for pharmacists and physicians to track prescriptions of certain classes of drugs under the federal Controlled Substances Act.
Some seven million prescription records are uploaded to the system every year, according to court documents.
The state mandated privacy protections for the data, including a requirement that law enforcement could only obtain information from the network with a warrant.
But the DEA claimed federal law allowed the government to access the database using only an “administrative subpoena”, which does not require a finding of probable cause for believing a crime has been committed or a judge’s approval.
U.S. District Judge Ancer Haggerty in Portland ruled that the DEA’s efforts to obtain Oregon’s prescription records without a warrant violate Fourth Amendment safeguards against searches and seizures of items or places in which a person has a reasonable expectation of privacy.
“It is more than reasonable for patients to believe that law enforcement agencies will not have unfettered access to their records,” Haggerty wrote in the summary judgment opinion.
“The prescription information maintained by (Oregon) is intensely private as it connects a person’s identity information with the prescription drugs they use,” Haggerty wrote.
(Reporting by Steve Gorman; Editing by Eric M. Johnson)
The State of the Law 