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Election Law

Litigation Update: Davis v. Guam - Podcast

Litigation Practice Group Podcast
J. Christian Adams April 13, 2017

On March 8, Judge Frances M. Tydingco-Gatewood of the District Court of Guam struck down a Guam law that permitted only those who meet the definition of “Native Inhabitants of Guam” to vote in a future status plebiscite. This decision has been met with opposition from elected officials, protests at the federal courthouse, public rallies, and now an appeal to the Ninth Circuit Court of Appeals.

Supporters of the plebiscite are forcing a reexamination of the role of the United States on this strategically important island and opponents contend they are doing so without giving all citizens a voice in the process. What did the district court decide, and what does the reaction say about the rule of law and respect for the Constitution?  Christian Adams joined us to discuss the latest in Davis v. Guam.

Featuring:

  • J. Christian Adams, Election Lawyer Center

Campaign Finance and Free Speech - Event Audio/Video

2017 National Student Symposium
Bradley A. Smith, Richard Pildes, John O. McGinnis, Ciara Torres-Spelliscy, Richard Sullivan March 15, 2017

Congress' passage of the Bipartisan Campaign Reform Act of 2002 did not end the debate on campaign finance. Instead, it arguably created more legal questions than it did answers. 

The Act's passage quickly unleashed subsequent litigation, resulting in a number of Supreme Court decisions directly related to the BCRA and, more broadly, to general laws regulating campaign finance. These recent Supreme Court cases, including the much-discussed Citizens United decision, struck down many campaign regulations on the grounds that they infringe upon individuals' First Amendment rights. Some have charged that decisions like these have increased the influence of a privileged few in our political system. Others have argued that these decisions are not only doctrinally correct, but the prudential fears many have expressed have not been borne out.

Still, Americans remain discontented with the current campaign finance regime. According to a New York Times/CBS News poll in 2015, 46% of respondents agree that the country needs to completely rebuild its campaign finance system, while 39% believed it requires fundamental change. Today, groups and individuals continue to fight limits on political contributions, and restrictions on political speech, while others push for stricter regulations. 

This panel will weigh in on whether decisions like Citizens United are correct as a matter of law, and if they are desirable from a policy perspective. The panel will also discuss the jurisprudential foundations of Citizens United—including the landmark case of Buckley v. Valeo—and where future fights over campaign finance regulations are likely to occur.

This panel was presented at the 2017 National Student Symposium on Saturday, March 4, 2017, at Columbia Law School in New York City, New York.

Panel 2: Campaign Finance and Free Speech
9:30 a.m. -11:00 a.m.
Jerome Greene Hall 104

  • Prof. Brad Smith, Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School; Former FEC Commissioner
  • Prof. Richard Pildes, Sudler Family Professor of Constitutional Law, New York University School of Law
  • Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law
  • Prof. Ciara Torres-Spelliscy, Fellow, Brennan Center for Justice; Associate Professor of Law, Stetson University College of Law
  • Moderator: Hon. Richard J. Sullivan, U.S. District Judge for the Southern District of New York

Columbia Law School
New York, New York

McCrory v. Harris and Bethune-Hill v. Virginia State Board of Elections - Post-Argument SCOTUScast

SCOTUScast 12-21-16 featuring Jack Park
John J. Park, Jr. December 21, 2016

On December 5, 2016, the Supreme Court heard oral argument in McCrory v. Harris and Bethune-Hill v. Virginia State Board of Elections. In these related cases, the Court considered redistricting plans introduced in North Carolina and Virginia after the 2010 census.

Plaintiffs in McCrory argued that North Carolina used the Voting Rights Act’s “Black Voting Age Population” requirements as a pretext to place more black voters in two particular U.S. House of Representatives districts in order to reduce black voters’ influence in other districts. The district court determined that the redistricting plan was an unconstitutional racial gerrymander that violated the Equal Protection Clause because race was the predominant factor motivating the new plan.

Plaintiffs in Bethune-Hill each resided in one of twelve newly proposed majority-minority districts for the Virginia Legislature, created to satisfy Section 5 of the Voting Rights Act (VRA), which requires that any new districting plan must ensure that there be no “retrogression” in the ability of racial minorities to elect the candidate of their choice. They argued that the new districts constituted racial gerrymanders that violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the plaintiffs did not establish that race was the predominant factor in the creation of 11 of the 12 challenged districts. The district court also held that, although race was the predominant factor in the creation of one district, the General Assembly was pursuing a narrowly tailored compelling state interest in creating it.

In McCrory, appellants contend the lower court decision against them erred in five critical ways: (1) presuming racial predominance from North Carolina's legitimate reliance on Supreme Court precedent; (2) applying a standard of review that required the State to demonstrate its construction of North Carolina Congressional District 1 was “actually necessary” under the VRA instead of simply showing it had “good reasons” to believe the district, as created, was needed to foreclose future vote dilution claims; (3) relieving plaintiffs of their burden to prove “race rather than politics” predominated with proof of a workable alternative plan; (4) clearly erroneous fact-finding; and (5) failing to dismiss plaintiffs' claims as being barred by claim preclusion or issue preclusion. Appellants further argue that, in the interests of judicial comity and federalism, the Supreme Court should order full briefing and oral argument to resolve the split between the court below and the North Carolina Supreme Court which reached the opposite result in a case raising identical claims.

The Bethune-Hill appellants also assert five errors by the lower court: (1) holding that race cannot predominate even where it is the most important consideration in drawing a given district unless the use of race results in “actual conflict” with traditional districting criteria; (2) concluding that the admitted use of a one-size-fits-all 55% black voting age population floor to draw twelve separate House of Delegates districts did not amount to racial predominance and trigger strict scrutiny; (3) disregarding the admitted use of race in drawing district lines in favor of examining circumstantial evidence regarding the contours of the districts; (4) holding that racial goals must negate all other districting criteria in order for race to predominate; and (5) concluding that the General Assembly's predominant use of race in drawing House District 75 was narrowly tailored to serve a compelling government interest.

To discuss the case, we have Jack Park, who is Of Counsel at Strickland Brockington Lewis LLP.

Redistricting Tested in the Supreme Court - Podcast

Free Speech & Election Law and Civil Rights Practice Groups Podcast
Maya Noronha December 07, 2016

On December 5, the U.S. Supreme Court will hold oral arguments on two redistricting cases, Bethune-Hill v. Virginia State Board of Elections and McCrory v. Harris. After the movement of population, both Virginia and North Carolina legislatures redrew plans for their state legislative districts. However, plaintiffs in each state challenged the plans as racial gerrymanders diluting the vote of African-American voters. Both cases raise the question of how to comply with the Voting Rights Act requirement that racial minorities have the ability to elect representatives of their choice, along with the Constitutional prohibition of race predominating in the drawing of plans. The Court will be also be asked to clarify the acceptable ways to consider minority populations in drawing plans, what plaintiffs need to show to prove a racial gerrymander, and what would trigger strict scrutiny.

Featuring:

  • Ms. Maya M. Noronha, Associate, Baker & Hostetler LLP