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Cooper v. Harris - Post-Decision SCOTUScast

SCOTUScast 7-20-17 featuring Hans A. von Spakovsky
Hans A. von Spakovsky July 20, 2017

On May 22, 2017, the Supreme Court decided Cooper v. Harris, formerly known as McCrory v. Harris. In this case, the Court considered a redistricting plan introduced in North Carolina after the 2010 census. Plaintiffs 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. A three-judge panel of the U.S. District Court for the Middle District of North Carolina determined that the redistricting plan was an unconstitutional racial gerrymander that violated the Fourteenth Amendment's Equal Protection Clause because race was the predominant factor motivating the new plan.

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.

By a vote of 5-3, the Supreme Court affirmed the judgment of the district court. In an opinion by Justice Kagan, the Supreme Court held that (1) North Carolina's victory in a similar state-court lawsuit does not dictate the disposition of this case or alter the applicable standard of review; (2) the district court did not err in concluding that race furnished the predominant rationale for District 1's redesign and that the state's interest in complying with the Voting Rights Act of 1965 could not justify that consideration of race; and (3) the district court also did not clearly err by finding that race predominated in the redrawing of District 12. Justice Kagan’s majority opinion was joined by Justices Thomas, Ginsburg, Breyer, and Sotomayor. Justice Thomas filed a concurring opinion. Justice Alito filed an opinion concurring in the judgment in part and dissenting in part, in which the Chief Justice and Justice Kennedy joined. Justice Gorsuch took no part in the consideration or decision of this case.

And now, to discuss the case, we have Hans A. von Spakovsky, who is Manager, Election Law Reform Initiative and Senior Legal Fellow, The Heritage Foundation.

Murr v. Wisconsin - Post-Decision SCOTUScast

SCOTUScast 7-20-17 featuring James S. Burling
James S. Burling July 20, 2017

On June 23, 2017, the Supreme Court decided Murr v. Wisconsin. In the 1960s the Murrs purchased two adjacent lots (Lots F and E), each over an acre in size, in St. Croix County, Wisconsin. In 1994 and 1995, the parents transferred the parcels to their children and the two lots were merged pursuant to St. Croix County’s code of ordinances, with local rules then barring their separate sale or development.  A decade later the Murrs sought to sell Lot E in order to fund construction work on Lot F, but the St. Croix County Board of Adjustment denied a variance from the ordinance barring separate sale or development of the lots. The Murrs sued the state and county, claiming that the ordinance effected an uncompensated taking of their property and deprived them of “all, or practically all, of the use of Lot E because the lot cannot be sold or developed as a separate lot.” The circuit court disagreed and granted summary judgment to the state and county. The Court of Appeals of Wisconsin affirmed, concluding that the Murrs took the properties with constructive knowledge of the resulting restrictions and had not suffered a loss in value of more than 10%. The Wisconsin Supreme Court denied further review.

The question before the United States Supreme Court was whether, in a regulatory taking case, the “parcel as a whole” concept as described in Penn Central Transportation Company v. City of New York establishes a rule that two legally distinct but commonly owned contiguous parcels must be combined for takings analysis purposes.

By a vote of 5-3, the Supreme Court affirmed the judgment of the Court of Appeals of Wisconsin. In an opinion by Justice Kennedy, the Supreme Court held that the Wisconsin court was correct to analyze the Murrs’ lots as a single unit and that no compensable taking had occurred. Justice Kennedy’s majority opinion was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts filed a dissenting opinion, in which Justices Thomas and Alito joined. Justice Thomas filed a dissenting opinion. Justice Gorsuch took no part in the consideration or decision of this case. 

To discuss the case, we have James S. Burling, who is Vice President of Litigation, Pacific Legal Foundation.

Laws, Regulations, and “Regulatory Dark Matter”

Free Lunch Podcast featuring Wayne Crews
Wayne Crews, Devon Westhill July 20, 2017

Congress passes and the President signs several dozen laws every year. Meanwhile, federal departments and agencies issue well over 3,000 regulations of varying significance. Does Congress have a clear grasp of the amount and cost of the thousands of executive branch and federal agency proclamations and issuances, including guidance documents, memoranda, bulletins, circulars, and letters, that carry practical (if not always technically legally) binding regulatory effect? There are hundreds of “significant” agency guidance documents now in effect, plus many thousands of other such documents that are subject to little democratic accountability. Is the government trading the cost and benefits of informal as well as formal rules?

Sign up for Regulatory Transparency Project updates at RegProject.org.

Reauthorization of Section 702 - Podcast

International & National Security Law Practice Group Podcast
Adam T. Klein, Kate Martin, Karen J. Lugo July 19, 2017

Section 702 of the Foreign Intelligence Surveillance Act (FISA) is up for reauthorization in 2017. An earlier version of the program was instituted after 9/11 by President George W. Bush. In 2007, Congress adopted the Protect America Act and one year later passed the FISA Amendments Act, which included Section 702. Section 702 allows the government to target for surveillance non-U.S. citizens “reasonably believed to be located outside the United States to acquire foreign intelligence information.” The authorization does not extend to non-citizens outside the country to gain information on citizens or permanent residents believed to be residing in the United States.

While proponents of the law argue it is necessary for national security, critics claim that U.S. citizens are too often incidentally swept into surveillance due to the nature of the “targeting procedures” employed by intelligence agencies, and therefore reforms are needed to protect their privacy. Our experts discussed reauthorization, what it would mean if Congress chose not to act, and what kinds of reforms are under consideration.

.Featuring: 

  • Adam Klein, Senior Fellow, Center for a New American Security
  • Kate Martin, Senior Fellow, Center for American Progress 
  • Moderator: Karen Lugo, Founder, Libertas-West Project