The Supreme Court Rules There Is No One Left Standing To Appeal Prop. 8

By Associate Clinical Professor Jessica Levinson

This op-ed was originally posted on Jurist

In a 5-4 opinion written by Chief Justice John Roberts, the US Supreme Court has ruled that there is simply no one left standing to appeal California's infamous 2008 ballot initiative, Proposition 8. Prop 8, as the entire world now knows, amended the California State Constitution to define marriage as between a man and a woman to the exclusion of same-sex marriages.

In the much-anticipated case, Hollingsworth v. Perry, the Court avoided the larger, and more politically charged issue potentially presented by the case: whether the Equal Protection Clause of the Fourteenth Amendment prohibits California from defining marriage as between a man and a woman. This question raises the issues of whether gays and lesbians are members of a so-called "suspect class" and whether there is a "fundamental" right to marry.

Chief Justice Roberts ruled on narrower grounds, finding that proponents of ballot initiatives lack the "standing" under Article III, ¨ 2 of the Constitution. Standing, the Court reiterated, is necessary to appeal a case in federal court.

Battle Over CA's Public Records Act was Actually a Budget Deal

By Associate Clinical Professor Jessica Levinson

This op-ed is cross-posted from KCET.

Some of you may have gotten whiplash following the latest kerfuffle over California's Public Records Act (CPRA).

First, as part of the budget deal it looked like there would be limited access to government documents. Why? Because the deal provided that the CPRA would be suspended, instead of paid for from state coffers. Specifically, the state is required to reimburse local agencies for the cost of compliance. The anticipated cost of the CPRA totals in the tens of millions of dollars.

Under the budget plan, local agencies would have the ability to opt out of certain portions of the law, those requiring local agencies to help people trying to access information, provide respond to record requests within 10 days, and furnish people with electronic records when they are obtainable.

Then, predictably, there was a significant backlash. And then, equally predictably, legislators reacted. At the end of last week two State Senators introduced a constitutional amendment purportedly intended to strengthen the CPRA. State President Pro Tem Darrell Steinberg (D - Sacramento) and State Senator Mark Leno (D - San Francisco) introduced an amendment, which would require that local agencies comply with and pay the costs of complying with the CPRA.

Who's Killing the Voting Rights Act, Congress or the Supreme Court?

By Associate Clinical Professor Jessica Levinson

This op-ed was originally published by Pacific Standard Magazine
In a much-anticipated case decided Tuesday, the Supreme Court concluded that Section 4 of the Voting Rights Act, a landmark civil rights law originally enacted a half century ago to reverse the rampant disenfranchisement of Southern blacks, is unconstitutional. The VRA itself is not dead, but a key section of it is undoubtedly on life support. And while a 5-4 court majority wielded the weapon, know that Congress' inaction gave the court an excuse to take it up.

If you've been following the saga of pre-clearance, you may have expected to read that Section 5--not Section 4--was declared invalid. Section 5, after all, has gotten most of the press. Allow me to explain.

WHAT IS THE VOTING RIGHTS ACT?

Congress passed the VRA in 1965 in response to pervasive discrimination against African American voters. This landmark piece of legislation contains two key provisions.

The first is Section 2, which provides a general prohibition against any voting procedure or practice that discriminates on the basis of race, color, or membership in certain language minority groups. Section 2 was not at issue in Shelby County v. Holder but likely will begin to bear a much heavier weight thanks to the Supreme Court declaring Section 4 invalid.

Shadowboxing and Unintended Consequences

By Associate Professor Justin Levitt

This commentary was cross-posted from SCOTUS blog.

The Court today struck down a statute that did not exist. And it did so at the request of jurisdictions seeking a little extra "dignity" -- who might end up with less dignity as a result.

Formally, the Court struck the 2006 reauthorization of 42 U.S.C. § 1973b -- Section 4 of the Voting Rights Act, and a central part of the Act's preclearance regime. Its more famous counterpart, Section 5, requires certain jurisdictions to submit election changes for federal review, to ensure that they do not harm minority voting power. Section 5 sets the "what." Section 4 sets the "where," delineating which jurisdictions receive Section 5′s special medicine.

But the Section 4 that the Court struck is a curious creature -- as I'd feared, a simulacrum. The Court branded it the rote reenactment of a "formula based on 40-year-old facts having no logical relation to the present day."

This stale formula is not the coverage formula actually in the law. The formula started with 1960s and 1970s registration and turnout figures, locating the broken democracies connected to the worst discrimination. But it did not end there. It allowed any jurisdiction that had demonstrated consistent improvement in minority opportunities, without backsliding, to "bail out" of coverage.

BREAKING NEWS: DOMA struck down, Prop 8 case dismissed on standing

By Associate Professor Justin Levitt

This information was cross-posted from Election Law Blog.

DOMA has been struck down as unconstitutional. Prop 8 case from California dismissed on standing grounds (initiative proponents have no cognizable injury distinct from the general population). I haven't yet read thoroughly, but SCOTUSblog reports that neither finds a constitutional right to same-sex marriage.

DOMA decision is here; Prop 8 is here.

Both 5-4, very different majorities. DOMA is Kennedy, Ginsburg, Breyer, Kagan, Sotomayor; Prop 8 is Roberts, Scalia, Ginsburg, Breyer, Kagan.

Shelby County v. Holder Reaction Coverage

By Associate Professor Justin Levitt

These posts originally appeared on the Election Law Blog

Reactions to Shelby County: Spencer Overton
I'll be expecting several comments today on Shelby County from academics who write in the field. Spencer Overton kicks it off:
The preclearance provision of the Voting Rights Act required that all or part of 15 states submit their election changes to federal officials for approval. Today, five members of the Court ruled that the Section 4 coverage formula of the Voting Rights Act is unconstitutional and can no longer be used to require that areas preclear their election rules with federal officials. The Court invalidated the coverage formula because the Justices believed the formula was based on outdated election data from the 1960s and 1970s.
Today's Supreme Court decision is a setback for democracy.
Unfortunately, today's decision gives politicians even more power to unfairly manipulate election rules and target Americans based on how they look or talk. There is overwhelming evidence that unfair voting rules remain a very real threat--too many political operatives currently manipulate rules to diminish the voices of growing minority communities.

His thoughts continue here.

The Lost Continent By Gavin Hewitt

By Professor Jeff Atik

The challenge with European democracy is its constantly shifting notions of demos - who are the people who should exercise political determination. The current Euro crisis - and the ensuing imposition of austerity policies on Greece and Ireland, Spain and Italy - demonstrate a democratic irony. As Gavin Hewitt points out, there is nothing democratic about the adoption of austerity; austerity is not a lifestyle choice struggling countries freely assume. The Euro crisis precipitated changes of government (left to right and right to left) in the affected Member States and fierce popular backlash. Yet Angela Merkel, the physician prescribing austerity to faltering countries, responds to democratic signals given by her German electorate (who balk on bailing out their neighbors). Hewitt constructs a story where the democracy of Germany is pitted against the democracy of Southern and Peripheral Europe.

The Lost Continent focuses on national stories - and national leaders - and so at times has the feel of a tell-all. Silvio Berlusconi, to no-one's surprise, comes off the worst. His cynical disregard for anyone's interest saves his own marks, a new low in post-War Italian politics. Imagine how Angela Merkel felt upon receiving his 'political' advice to take on a lover. And even more respectable characters, such as Sarkozy, engage in behind-the-back smirkiness with regard to Merkel. But much of the focus falls on Merkel herself; we're never quite sure whether she is (as she claims) acting just like a Swabian housewife, guided by common-sense and prudence, or whether she is the instrument of peculiar German obsessions outside her control.