Fifth Annual Executive Branch Review Conference
The Fifth Annual Executive Branch Review Conference will examine the changing and often convoluted relationship between the legislative and the executive branches in the United States government. The Conference began with an opening address by Senator Mike Lee and concluded with a closing address by OMB Director Mick Mulvaney.
This panel of the 2017 Executive Branch Review Conference was held at the Mayflower Hotel in Washington, D.C. on May 17, 2017.
Breakout Session: Congressional Oversight of Voting Rights
10:45 a.m. – 12:15 p.m.
- Mr. Adam Ambrogi, Program Director, Elections, Democracy Fund Voice
- Mr. Robert Popper, Senior Attorney and Director, Election Integrity Project, Judicial Watch
- Mr. Robert A. Sensenbrenner, General Counsel, Committee on House Administration
- Mr. John Tanner, Former Chief, United States Department of Justice Voting Section
- Moderator: Mr. Will Consovoy, Partner, Consovoy McCarthy Park PLLC
Mayflower Hotel Free Speech and Election Law Practice Group Podcast
On May 22, the Supreme Court threw out two North Carolina congressional districts as discriminatory. State legislatures face confusion over how to redistrict without violating either the Voting Rights Act or the Equal Protection Clause of the 14th Amendment. What does this case mean for the redistricting that will occur throughout the country after the 2010 Census? How can courts distinguish between legally acceptable partisan and unacceptable racial motives in redistricting when certain racial groups disproportionately support one particular political party? Hans von Spakovsky, a former commissioner on the Federal Election Commission and former Counsel to the Assistant Attorney General for Civil Rights at the U.S. Justice Department, discussed these issues and the Cooper decision.
SCOTUScast 5-15-17 featuring Jack Park
- Hans A. von Spakovsky, Manager, Election Law Reform Initiative and Senior Legal Fellow, The Heritage Foundation
On March 1, 2017, the Supreme Court decided Bethune-Hill v. Virginia State Board of Elections. 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. Plaintiffs argued that the new districts constituted racial gerrymanders that violated the Equal Protection Clause of the Fourteenth Amendment. A three-judge panel of the U.S. District Court for the Eastern District of Virginia disagreed, holding that the plaintiffs had failed to 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--District 75--the state legislature had satisfied the requirements of a compelling state interest and narrow tailoring.
On appeal to the United States Supreme Court, plaintiffs argued that the district court panel erred in a number of respects, including in determining that that race could not predominate unless its use resulted in an “actual conflict” with traditional districting criteria. Plaintiffs also argued that the use of race in drawing House District 75 was not narrowly tailored to serve a compelling government interest.
By a vote of 7-1, the Supreme Court affirmed the judgment of the district court panel in part, vacated it in part, and remanded the case. In an opinion delivered by Justice Kennedy, the Court held that the district court panel had employed an incorrect legal standard to determine whether race predominated, noting that challengers are permitted to establish racial predominance in the absence of an “actual conflict” by presenting direct evidence of the legislative purpose and intent or other compelling circumstantial evidence. The Court rejected Plaintiffs’ challenge to District 75, however, determining that the legislature’s action ultimately survived strict scrutiny.
Justice Kennedy’s majority opinion was joined by the Chief Justice and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito filed an opinion concurring in part and concurring in the judgment. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part.
To discuss the case, we have Jack Park, who is Of Counsel at Strickland Brockington Lewis LLP. Civil Rights Practice Group Podcast
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.
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.