Category Archives: ianal

The missing Hobby Lobby reaction

I haven’t read all of the reactions to this past week’s Burwell v Hobby Lobby decision, so perhaps I missed this, but I haven’t seen much of what I thought would be an obvious reaction when I was much younger. This post is an extension of the comment I left at Althouse when the decision came down on Monday.

One of the saddest things to me about this situation is that the ACLU sided with HHS in the Hobby Lobby case. Growing up, I understood the ACLU as being centered around the idea in a quote from Roger Baldwin cited in this PBS piece on the Constitution:

Indeed, the only thing predictable about giving the government the power to censor speech is that it will use that power unpredictably. The founder of the American Civil Liberties Union, Roger Baldwin, put it well when he said, “In order to defend the people you like, you have to defend the people you hate.”

My approach to applying Baldwin’s big idea is to do the thought experiment based on how a ruling would apply if the politics/beliefs of the situation were reversed. How does this apply in Hobby Lobby? Living in Texas, it doesn’t take much imagination: less than a month ago the Texas GOP endorsed gay conversion therapy in it’s platform. Is it so hard to imagine an HHS mandate from a right-wing administration to include that in all employee health plans?

I expected  to see counter-hypotheticals like this in the coverage of Hobby Lobby, and it’s the kind of thought experiment I would have expected from the ACLU I grew up with back in the days of the Warren Court. Perhaps this argument is being made somewhere and I’ve just missed it. Perhaps progressives are OK with including such therapies in health plans. After all, no one would be forcing employers to make their employees use the conversion therapy; it would just be available for those who wanted it, as the IUDs and Plan B would be available to the subset of Hobby Lobby employees who wanted them. This story shows that people are not indifferent to whether or not others can choose this particular “treatment”.

The Supreme Court declined on Monday to hear a challenge to a California law that bans “conversion therapy” aimed at changing the sexual orientation of gay and lesbian minors.

The court, in rejecting the case, effectively let stand a federal appeals court ruling issued last August that said that the state’s ban on the practice did not violate the free speech rights of counselors or people seeking treatment. The appeals court had said that the state had an interest in banning professional treatments it considered harmful.

Alternative title for this post: the Parade of Horribles marches both ways. Happy Independence Day!

Beaumont ISD and the preclearance provisions of the Voting Rights Act

Over at the Volokh Conspiracy, Will Baude linked to a post by Univ. of Texas Law prof Joey Fishkin about a redistricting fight going on in Beaumont that piqued my curiosity. Prof Fishkin writes:

The Beaumont case thus provides a particularly clear case [emph added] of the effect of the demise of Section 5: under Section 5, this particular shenanigan went nowhere, blocked by the DOJ and federal courts.  But now, absent Section 5, it may well go ahead. That is part of why the news yesterday that the Department of Justice is seeking to get Texas covered again, as the central test case of Section 3(c)(the “bail-in” provision), is so important.

In the incident that prompted the Prof. Fishkin’s post, an 11th hour filing by previously defeated candidates for the Beaumont ISD forced a change in the which seats were up for a May 11 election. This was timed so that three African-American trustees who thought they weren’t up for reelection would miss the filing deadline, leaving the previous losers unopposed. The writ was granted by the 9th court of appeals, but the May election was blocked under preclearance.

This sounded pretty crazy, so I wondered if there was more to the story, and it turns out that this questionable legal gambit was in the context of a larger and very contentious power struggle over the BISD. The BISD itself provides a timeline of the legal fight. In the comments at Volokh (which uses the Disqus system that oddly doesn’t work in OSX Safari, but works in iOS Safari) a Beaumont resident added a comment that added some context. This prompted an update from Baude after I flagged it. A subsequent update from Fishkin responds to the comment.

In the second point of view expressed by Robert from Beaumont, the entrenched interests at the BISD have used DoJ preclearance to thwart efforts at reform in the Beaumont schools, including a redistricting plan that was voted on by the people of Beaumont. Some highlights of reasons to think BISD could use some reform:

In 2011, a group called BETTER got a referendum on the ballot to change the system for electing trustees. Redistricting was due in any case as the 2013 deadline for reevaluation based on the 2010 census was looming.  An alternative group, BEST, accused the BETTER crowd of being racially motivated, and this report in the Beaumont Examiner, an local paper that clearly sides with the BETTER group, indicates the contentiousness of the situation:

Mixed with the crowd of supporters for the petition drive to change the way the BISD school board is comprised were district spokesperson Jessie Haynes, who took photos and wrote the names of people involved or making donations to the group; Assistant Superintendent for Secondary Education David Harris; Director of Personnel Sybil Comeaux; former BISD trustee Paul Brown; and Central math teacher William Littles, among others.

Meanwhile, BETTER supporters were sneaking hidden recorders into BEST meetings.

The May 2011 election gave mixed results for the reformers. Only one of their candidates won a seat on the board, while the three involved in the current shenanigans were defeated, despite forcing a redo of a shady drawing for ballot placement. On the other hand, the referendum to change from 7 single-member districts to 5 single-member plus 2 at-large passed by a comfortable margin.

Although Baude and Fishkin discuss the situation in the context of Shelby County v Holder, my non-lawyer mind also connects it to an underlying issue in one of the other big SCOTUS rulings from the recent term, Hollingsworth v. Perry, where the Supremes ruled that Prop 8 supporters did not have standing to challenge a court decision to overturn the California ban on gay marriage.  Here, as in Hollingsworth, the government entity charged with defending a voter initiative had little interest in mounting a vigorous defense.  Unlike Hollingsworth, the BETTER supporters didn’t even have the chance to make the argument for standing in an actual court.

The BETTER supporters believe that the BISD did not, in fact, defend the will of the people on the referendum.  Robert writes:

The school board president said that he did not have to present it because the only people who voted for it in the district wide election were the whites and hispanics. The school board attorney presented it to the DOJ but did not vigorously defend the new voting plan and they did not clear it.

After the DoJ turned down the 5/2 plan as presented, it appears that the board did not come back with an alternative 5/2 plan that would increase the number of black majority districts. Instead, a series of 7/0 plans were drawn up and submitted for preclearance. The district was still obligated to redistrict in order to remedy population disparities identified by the 2010 census. Texas election law is that when redistricting happens, all seats have to be put up for reelection unless the jurisdiction applies to exempt certain incumbents on the basis of a recent election.

You might think that in this contentious environment counsel for the BISD would make sure they were up on all of the relevant election law, but even the last plan missed a deadline to be in place for a May election. And although the BISD lawyer says she knew how the board could have used a “savings clause” to prevent the three disputed seats from being forced onto the ballot, this didn’t happen.  This just could be incompetence, but I can understand the view that the actions of the BISD are consistent with a desire to postpone a May election to allow various scandals to die down in the news.

Despite all this, I agree with Prof. Fishkin when he writes

common sense and equity require giving incumbent officeholders some sort of notice that the term for which they were elected is now being cut in half and new elections are being held for their seats.

But I’m not so sure about this:

Sandbagging the incumbents with late-afternoon-on-the-last-day filings for a not-yet-announced election is a classic local-politics shenanigan.

for the simple reason that I suspect that this kind of sandbagging is usually what incumbents do to challengers.  Prof Fishkin points to the thwarting of the sandbagging as evidence that the preclearance sections of the VRA are a good thing, and in isolation I don’t disagree, no matter how sympathetic I might be to the larger cause of the BETTER group.  But even in this case, preclearance has had multiple effects, so it seems odd to point to the good parts and ignore other consequences.  In particular, it seems to me that regardless of the specific merits of BETTER vs BEST in Beaumont, distant decisions at the DoJ can be gamed to protect corrupt incumbents from reformers as long as the incumbents are from a group covered by the VRA. I also suspect that the BISD was caught off guard not out of some general naivete, but rather from the confidence that the DoJ would have their backs.

If this is a particularly clear case, it makes me wonder what a murky one is.

All this confirms Baude’s prediction in the original post:

I suspect that the way most people see these voting changes will generally be a result of confirmation bias. Those who thought that the preclearance regime was constitutional will see these as further proof that Section 5 was needed — just look at all the “shenanigans” that covered jurisdictions get up to as soon as they have a chance, they’ll say. Those who thought the regime was unconstitutional will see them as further proof of Section 5′s dramatic invasion of state sovereignty — this just shows how big of a burden Section 5 was imposing and/or how unneeded that burden was in light of the Constitution and (maybe) Section 2, they’ll say