CIVIL RIGHTS POLICIES, ANALYSIS, AND RESOURCES
The Civil Rights Domain tracks and reports on policies that deal with voter rights, police brutality, free speech, the right to privacy, and other human rights enshrined in our constitution. This domain tracks policies emanating from the White House, the Justice Department, Department of Homeland Security, the Department of Housing and Urban Development, and state legislatures. Our Principal Analyst is Rod Maggay who can be reached at firstname.lastname@example.org.
Latest Civil Rights Posts
Brief #146—Civil Rights
By Rod Maggay
Under Article II, Section 1, Clause 2 of the U.S. Constitution each individual State has the power to appoint the slate of electors who will vote in every presidential election. The Federal Government has no role in a State’s selection of its slate of presidential electors.
Brief #141—Civil Rights
By Rod Maggay
On October 1, 2019 USRESIST NEWS reported that Judge Allison Burroughs of the United States District Court for the District of Massachusetts issued a ruling in the case Students for Fair Admissions v. Harvard. The Students for Fair Admissions (SFFA) filed the case in November 2014.
Policy Summary: On January 7, 2021 President – elect Joseph R. Biden, Jr. nominated Judge Merrick Garland to the position of Attorney General of the United States.
Judge Garland had first served in the Department of Justice (DOJ) from 1979 – 1981 where he was special assistant to Attorney General Benjamin Civiletti during the Carter Administration. In 1993 he returned to DOJ as deputy assistant attorney general in the Criminal Division. While in this position he oversaw prosecution of domestic terrorism cases, notably the 1995 bombing of the federal building in Oklahoma City and the 1996 Atlanta Olympic bombings in Centennial Park.
In 1995, President Bill Clinton nominated Judge Garland to a seat on the United States Court of Appeals for the District of Columbia. However, Republicans in the Senate did not schedule a vote on his nomination at that time. After President Clinton was re – elected in 1996 he re – nominated Mr. Garland again to the same seat where he was confirmed 76 – 23 by the Senate. Judge Garland served on the court and even was promoted to Chief Judge of the court from 2013 to 2020. In 2016, President Barack Obama nominated Judge Garland to the Supreme Court of the United States in the wake of the death of Justice Antonin Scalia in February 2016. However, Republicans in the Senate, led by Sen. Mitch McConnell (KY-R), refused to consider the nomination and preferred to wait for the outcome of the election which was eleven months away. After President Trump won the election, Judge Garland’s nomination expired and President Trump selected Neil Gorsuch to replace Justice Scalia. Judge Garland returned to the U.S. Court of Appeals for the District of Columbia where he continues to serve as a judge.
Policy Analysis: The nomination of Judge Garland to become the next Attorney General of the United States is a surprise pick in that there were other candidates who had significant support and were favored to receive the nomination. But the choice is not an unwelcome choice given Judge Garland’s credentials and what he can bring to the position at the start of Joe Biden’s presidency.
Judge Garland’s nomination illustrates how President – elect Biden wants to steer the DOJ after the tumultuous years of the Trump presidency. In his remarks introducing Judge Garland as his nominee Biden stated the “[N]eed to restore the honor, the integrity, the independence of the DOJ of this nation that has been badly damaged.” He also went on to say that “You are not the president’s or the vice – president’s lawyer. Your loyalty is not to me. It’s to the law, the Constitution and the people of this nation.” These statements are a clear rebuke to the leadership of the DOJ the last four years.
How does this relate to the nominee himself? The pick of Judge Garland signals that partisanship will no longer be a factor in the day to day operations of the department and that an emphasis will be placed on professionalism and ethical behavior. Tom Goldstein, writer of the popular SCOTUSblog, has called Judge Garland the model of a neutral judge and the judge has won acclaim as a jurist who can work with all judges as found by his court rulings and opinions that have a low rate of dissenting opinions from other colleagues. His nomination also signals that highly contested issues will be dealt with an eye towards following the rules and evidence wherever it may lead instead of investigations where some groups demand a specific result. From his first day as Attorney General, there will be ongoing investigations of President Trump’s obstruction of justice incidents (including the president’s incitement of the riot at the Capitol the day before Biden’s announcement of his Attorney General nominee), allegations of tax fraud by the president and a criminal tax probe of Biden’s son Hunter. With Judge Garland likely leading the Justice Department, Americans can feel much more comfortable that these issues will be investigated and handled in a professional and neutral manner instead of in the haphazard partisan way that President Trump wanted. And this is the key in the Judge Garland nomination – that the Justice Department will return to serving the best interests of this nation and her citizens instead of the selfish whims of a President who was looking only to shield himself from criticism and criminal liability on a number of different fronts. Judge Merrick Garland should be confirmed as soon as possible so the Department can turn the corner on the last four years of the Trump presidency. LEARN MORE, LEARN MORE
Department of Justice Office of the Attorney General – news and speeches from OAG.
American Bar Association (ABA) – 2016 report of Judge Garland’s qualifications, integrity and professionalism when he was nominated to the Supreme Court.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.
Policy Summary: Under Article II, Section 1, Clause 2 of the U.S. Constitution each individual State has the power to appoint the slate of electors who will vote in every presidential election. The Federal Government has no role in a State’s selection of its slate of presidential electors.
On February 23, 2006 the group National Popular Vote introduced their plan for a proposed interstate compact entitled “Agreement Among the States to Elect the President by Nationwide Popular Vote.” The plan was formulated by Dr. John Koza, a former professor at Stanford University, and was initially endorsed by a number of former Republican and Democratic politicians. The plan would be an agreement by a number of states to award all of their selected presidential electors to whoever wins the popular vote nationwide. The goal is to sign on as many states whose total number of electors would be more than 270 since a candidate must win more than 270 electors to win the presidency. On April 10, 2007 the State of Maryland became the first state to enter the compact when the National Popular Vote bill was signed into law by Governor Martin O’Malley after having passed both houses of the Maryland Legislature. On January 13, 2008, the State of New Jersey became the second state to enter into the compact after Governor Jon Corzine signed it into law.
Since the time those two states entered into the National Popular Vote Compact an additional 14 jurisdictions have entered into the agreement – an additional thirteen states and the District of Columbia. The total number of electoral votes from these 16 jurisdictions is 196. The interstate compact needs an additional 75 electoral votes (for a grand total of 271) to go into effect.
As of December 2020 and by the count of the National Popular Vote group of the remaining states that have not officially entered the compact, a National Popular Vote bill has passed at least one legislative chamber in nine states (AR, AZ, ME, MI, MN, NC, NV, OK, VA) that have eighty – eight (88) electoral votes combined. LEARN MORE
Policy Analysis: With the recent vote by the Electoral College to affirm Joe Biden’s victory over Donald Trump in the 2020 U.S. Presidential Election discussions about the role of the Electoral College have sprung up again. This time the discussion was a little more subdued and did not have the controversy of the 2016 election since Mr. Biden won both the popular vote and the Electoral College vote, which had not been the case in 2016 when Mr. Trump was elected. But with Mr. Biden’s razor – thin margins in states like Georgia and Pennsylvania and the likelihood that President Trump could have won re-election had he won those states the discussion turned to how to correct the flaws that are inherent in the Electoral College. Could a candidate who lost the nationwide popular vote win the presidency again?
The National Popular Vote Compact is one of the more intriguing proposals because of the support it has garnered. The fifteen states and the District of Columbia have been a good foundational step to get the interstate compact moving. But after closer inspection of the other states who have not joined yet the truth is that support for this compact is much more significant than what is being acknowledged on the surface.
Of the nine states comprising 88 electoral votes the bill has been approved in at least one legislative chamber, which means that there is some support for the bill in those states. And these are not states where Democrats are in control of the government. Arizona, Arkansas and Oklahoma are traditionally Republican states while Virginia and North Carolina are swing states that have voted both blue and red in recent years. In Nevada the National Popular Vote bill actually passed both state legislative houses but did not become official because Democratic Governor Steve Sisolak vetoed the bill. And in Colorado just this past election in November voters voted on whether to stay in the interstate agreement and the ballot measure passed with 52% voting to remain in the National Popular Vote Compact. (Colorado had officially joined in 2019 but the issue proved contentious and the issue was placed on the 2020 ballot for Colorado voters to vote on.).
What all of this information means is that this proposal is not a Democrat proposal or a Republican proposal. This plan has had bipartisan support from the beginning and has had bipartisan support as it has made its way through various state legislatures. And it has proven to have wide appeal as evidenced by the fact that it has passed at least one legislative chamber from states in various regions of the country and even has grassroots level support as evidenced by the 2020 ballot measure in Colorado. This indicates that support to reform the presidential election process is growing even if it has not cleared all of the bill enactment procedures in a number of states yet. The goal for the National Popular Vote Group is to continue lobbying state legislators in the remaining states and add enough states in order to surpass the 270 electoral vote threshold. There is real support behind this movement and once this agreement can add enough states the unique situation of installing a president who lost the nationwide popular vote can finally be discarded from the American political experience. LEARN MORE, LEARN MORE, LEARN MORE,
National Popular Vote – group pursuing National Popular Vote Compact to reform U.S. Presidential Elections.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.
Policy Summary: Under Article II, Section 2 of the U.S. Constitution, the President of the United States has “the Power to grant Reprieves and Pardons for offenses against the United States, except in Cases of Impeachment.” This power is vested exclusively in the President and only applies to federal crimes. A president has no authority to pardon persons convicted of crimes under state laws. That would be the responsibility of the state governor where the state crime was committed.
On August 5, 1974, Acting Assistant Attorney General Mary Lawton of the Office of Legal Counsel issued a memorandum opinion titled Presidential or Legislative Pardon of the President. The purpose of the memo was to clarify legal questions with regard to a possible pardon for then President Richard Nixon. President Nixon was facing calls for his impeachment in connection with the Watergate burglary. (President Nixon would resign five days later). Her memo took the position that the President would likely be unable to issue a pardon for himself. And as for a possible legislative pardon, she took the position that Congress could not enact a legislative pardon as this would probably be in conflict with the President’s exclusive pardon power under the Constitution.
During the Trump Presidency author Jack Goldsmith has calculated that the President, as of November 10, 2020, has issued forty-one pardons or commutations of sentences. 88% of these pardons and commutations have a personal or political connection to the President. On June 4, 2018 on his Twitter account President Trump claimed that he had the absolute right to pardon himself. With the end of the Trump Presidency in sight, President Trump has granted a full pardon to General Michael T. Flynn with more expected in the coming weeks, including a likely contentious pardon to all of his adult children for their work and activities during the Trump Presidency. LEARN MORE
Policy Analysis: The Constitution is clear that the power of the pardon resides with the President of the United States. There are no conditions or limitations attached to the power such as having to confer with Congress first or having his pardons be approved by the Supreme Court. The current process to request a presidential pardon through the Office of the Pardon Attorney in the Department of Justice requires submitting the request through this office for evaluation. A recommendation is drawn up and sent to the President but as a practical matter the President’s decision to issue a pardon is up to him. He does not have to follow the recommendation of the Office of the Pardon Attorney and can issue a pardon to whomever he chooses even if the request did not originate in the Office of the Pardon Attorney.
This brings up the thorny question as to whether the President can issue a pardon to himself. The memorandum opinion authored by Ms. Lawton more than forty years ago starts off with a fundamental principle of American law. That no one in America, even the President, should be a judge in his own case. This is a key principle because it supports the notion that everyone should be able to have a fair and neutral person, such as a judge, examine the facts of their accusations and be able to come to a reasoned conclusion as to the innocence or guilt of that person. President Trump’s assertion that he can issue a pardon for himself completely upends this principle and his assertion should be categorically rejected. It defies not just the legal rationale of having neutral judges decide disputes but also common sense. If President Trump can issue a pardon to himself that would mean that there would be no mechanism to hold the President accountable for acts he undertakes. Acts that would not be for the benefit of the United States could be authorized and then after the fact wiped clean from the President’s record so that he would not be responsible for it in any way. As an analogy, ordinary citizens accused of crimes do not have the power to decide for themselves to absolve themselves of crimes that they commit. They must answer to a neutral judge in open court. Just because a person has risen to the Office of the President does not mean that the laws should no longer apply to him.
If President Trump is to be held accountable for possible crimes he may have committed than the President should answer before a neutral judge just like all other ordinary Americans do. The power to grant a pardon to himself should not be a power that a President should be able to exercise no matter the circumstances. LEARN MORE, LEARN MORE
DOJ Office of the Pardon Attorney – website of the office handling pardon requests.
Pew Research Center – research institute providing comparison of statistics on presidential pardons.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.
Roman Catholic Diocese of Brooklyn v. Cuomo Decision Hints At Future of Religious Liberty Cases In Supreme Court
Policy Summary: In response to the COVID-19 pandemic Governor Andrew Cuomo of the State of New York enacted regulations that allowed him to identify “hot spots” of COVID-19 activity and to designate areas according to a color – coded scheme. Each colored zone would correspond to a level of restrictions that were designed to limit the number of persons in a gathering, among other restrictions, due to COVID-19. Red zones have the strictest restrictions on the gathering of people and operations of commercial businesses. Areas classified as orange would be areas immediately surrounding red zones and have a less limited tier of restrictions. And yellow zones would be the outlying areas of red zones and have the least strict restrictions.
The Roman Catholic Diocese of Brooklyn and Agudath Israel of America brought a lawsuit in Federal District Court arguing that the limitations of 10 people in red zones and 25 people in yellow zones for houses of worship were violations of the First Amendment’s Free Exercise Clause and asked for a preliminary injunction against the State from enforcing these COVID-19 based restrictions. The Federal District Court ruled against the houses of worship and the case was appealed to the Court of Appeals for the Second Circuit which denied the petitioners request to issue an injunction. The case was appealed to the Supreme Court which issued an unsigned majority opinion issuing an injunction against the State of New York from enforcing the maximum persons regulations. While the majority opinion was unsigned six written opinions total were issued from the case (the majority opinion, three concurring plus two dissenting opinions). LEARN MORE
Policy Analysis: While this case was technically a procedural case which was to decide whether a temporary injunction should be issued, the discussion of religious freedom and liberties emerged front and center and it revealed how cases on religion in the future might go at the High Court.
The dissenting opinion penned by Justice Stephen Breyer emphasizes forcefully that the deadly nature of COVID-19, the current spike in infections and the uncertainty caused by this pandemic are serious health considerations that needed immediate attention which in turn led to the color – coded regulations imposed by Governor Cuomo. This was not an assault on the Constitution or First Amendment rights as Justice Gorsuch implied but an attempt to save as many lives as possible which Chief Justice Roberts recognized when he said his dissenting colleagues “simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.”
Yet the concurring opinions of Justices Gorsuch and Kavanaugh signal an approach to First Amendment religion cases that could be troubling down the road. Both Justices view the free exercise of religion as a highly cherished right, as well they should, but they also showed they are reluctant to side against religion even if the exercise of religion might lead to harm to outside third parties. If they are unwilling to uphold limited restrictions and limitations to save human lives in this case then it seems likely that they will side with religion again in highly contested freedom of religion cases. Objections to act or perform duties based on religious beliefs have been used in cases to deny marriage licenses to gay couples, to deny health care services to patients, to discriminate against foster parents and potential adoptions and to even deny contraception in health insurance benefits. If a deadly virus is not enough to convince justices that limited restrictions and limitations are necessary in a situation in New York than it seems likely that these justices will mostly favor religion when it comes to the religious freedom vs. do not harm third parties debate. With this case, that seems like the direction the Supreme Court will be headed especially with a new conservative and deeply religious justice – Amy Coney Barrett – recently installed. LEARN MORE, LEARN MORE
- Americans United for Separation of Church and State – press release on Supreme Court NY case.
- American Civil Liberties Union (ACLU) – blog post on issues of faith based discrimination.
NAACP In Michigan Lawsuit Turns The Tables And Claims President Trump Is The One Engaging In Voter Fraud
Policy Summary: On November 20, 2020 the NAACP Legal Defense Fund filed a lawsuit on behalf of three African – American voters in Michigan contending that President Trump and his campaign team in Michigan are trying to suppress the votes of Black voters in the state. The lawsuit alleges that the President and campaign officials are pressuring state and local officials to not tally votes from Wayne County in the state. Wayne County encompasses the city of Detroit, which has a significant number of African – American residents. Joe Biden won the state over President Trump with just over 150,000 votes. In Wayne County, Biden’s margin over the President was over 333,000 votes.
Section 11(b) of the Voting Rights Act of 1965 provides:
No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote, or intimidate, threaten, or coerce any person for exercising any powers or duties under section 3(a), 6, 8, 9, 10, or 12(e).
The case, brought in the United States District Court for the District of Columbia, alleges President Trump and his campaign officials in Michigan are in violation of Section 11(b) of the Voting Rights Act of 1965. LEARN MORE, LEARN MORE
Policy Analysis: In the aftermath of the November 3rd election and when it became increasingly likely that President Trump would not win re – election to a second term the President brought a number of lawsuits in key swing states hoping to show that vote tallies were not accurate. The President believed that the only reason that he trailed in a number of states was because of voter fraud brought on by the use of mail ballots and the inability of poll observers to watch the tabulation process. The President even concluded that there must have been voter fraud because of the razor thin margin of votes between him and Mr. Biden in some states. However, the President and his team did not have any evidence of this fraud and the courts dismissed many of the cases.
The lawsuit brought by the NAACP in Michigan stands out because it is a case that has not been brought by the President but brought directly against him. And it turns the table on the President and his voter fraud arguments because while the President has been the one who has constantly screamed voter fraud and irregularities in the voting process this lawsuit shows that the President himself is the one who is denigrating the democratic voting process. Section 11(b) of the Voting Rights Act of 1965 is clear that acts of intimidation, threats and coercive attempts against persons for voting are not permitted. Nor are acts of intimidation and threats permitted against election officials for performing the duties of their office. Yet here we have President Trump and his campaign team engaged in acts of intimidation and coercion. Trump has personally called a number of Michigan legislators to “discuss” with them the certification of the election for Joe Biden and has even discussed with aides who else in other states he can call to discuss delays in certification of the election. It is clear that President Trump is trying to exert pressure on these local officials in an effort to manipulate the results of the election in his favor. But the fact remains that hundreds of thousands of people in Michigan cast their ballots and chose Joe Biden over Mr. Trump. By trying to not have their votes counted so he can claim victory in Michigan President Trump is engaging in the kind of voter suppression that only leads to a distortion in the true will of an electorate and is exactly the kind of voter fraud that President Trump has been complaining about (falsely it appears) all along. In this case in Michigan the NAACP lawsuit perfectly shows that acts of voter fraud and suppression are being encouraged by none other than President Trump himself. The lawsuit has just been filed but it will help to illustrate that the President’s claim of voting irregularities are meritless. LEARN MORE, LEARN MORE, LEARN MORE
- Brennan Center for Justice – blog post on Trump’s tactics to delay certification of election in swing states.
- Verified Voting – group advocating for the responsible use of technology in elections.
Policy Summary: One of the most significant decisions that President – elect Joseph R. Biden, Jr. will make in the coming weeks before his inauguration will be whom he will appoint as Attorney General of the United States. The Attorney General is the top law enforcement official in the country and heads the Department of Justice (DOJ). Leadership and management of the department is vital because of the impact the divisions have on all aspects of American life. Well – known divisions at DOJ are the civil rights and the criminal division as well as the environmental and natural resources and antitrust divisions. DOJ also manages several law enforcement agencies such as the Drug Enforcement Administration (DEA), Bureau of Prisons (BOP) and, of course, the Federal Bureau of Investigation (FBI). Due to the enormous responsibilities at leading so many varied divisions and bureaus, President – elect Biden’s choice to lead DOJ will have an effect on the direction the department will take on controversial issues and which laws will be prioritized for enforcement. Thus far, three names have emerged as leading candidates, each with perceived strengths and weaknesses based on the current situation in the U.S. LEARN MORE
Policy Analysis: Former deputy attorney general Sally Yates, former Massachusetts Governor Deval Patrick and federal appeals court Judge Merrick Garland have all received serious consideration for the position.
Ms. Yates is believed to be the leading candidate for the job due to her long career and experience at DOJ, which started in the late 1980’s as a federal prosecutor. She also made headlines when she instructed DOJ not to enforce President Trump’s executive order restricting travel to seven Muslim countries. Former Governor Deval Patrick presents the most experience to lead DOJ as he was formerly head of the civil rights division under the Clinton Administration and has more civil rights experience from working for the NAACP Legal Defense and Education Fund. And in a bit of a surprise, Judge Merrick Garland’s name has emerged as a serious contender. Judge Garland is known for having his nomination to the Supreme Court blocked by Sen. Mitch McConnell (R-KY) but he has impeccable credentials and is well – respected by his peers for his time as the former Chief Judge for the U.S. Court of Appeals for the District of Columbia Circuit.
What these three choices signify is what the Biden Administration would like to prioritize in a post – Trump DOJ. The selection of Ms. Yates would be seen as the most direct rebuke of President Trump’s disregard for the Constitution and his policies as illustrated by Ms. Yates instruction to not enforce one of President Trump’s most controversial policies, the Muslim travel ban, because it was deemed unconstitutional. If Mr. Biden chooses her it would show that the DOJ would get back to following established processes and procedures instead of the bulldozing ways to get what they wanted as was the norm under President Trump’s DOJ. The selection of former Governor Patrick would be seen as prioritizing race and civil rights issues again in the department. This has become vitally important in the wake of racial protests in 2020, criminal justice reform and the Black Lives Matter movement. Under President Trump, the focus on civil rights and their impact on minority communities seem to have been neglected or outright mocked and if Mr. Biden selects former Governor Patrick then he can assure the nation that civil rights will not become an inconvenient afterthought. And finally, Judge Garland as a potential choice to become Attorney General is seen as a way to bring back professionalism and order back to a DOJ that had become chaotic under a Trump Administration. Judge Garland also has experience dealing with domestic terrorist groups as he led the prosecution of Oklahoma City bomber Timothy McVeigh. With President Trump giving encouragement to domestic terrorist and white supremacist groups, the selection of Judge Garland would be another message to send that DOJ under a President Biden will not tolerate the encouragement of domestic terror groups.
While the choice for Attorney General has yet to be revealed the leading contenders are helping to signal the direction that DOJ will take under President – elect Biden. His focus is on emphasizing civil rights, combatting domestic terror groups and, most importantly, bringing back a high standard of competence and ethical behavior that was sorely lacking under the direction of President Trump and outgoing Attorney General William Barr. LEARN MORE, LEARN MORE
U.S. Department of Justice (DOJ) – organizational chart of the department’s divisions and bureaus.
U.S. Department of Justice Office of the Inspector General – group that seeks to promote integrity, efficiency and accountability at DOJ with reports and updates on ongoing investigations.
USRESIST NEWS has been following the important legal case Students for Fair Admissions v. Harvard for the past year. In this Brief we recap our earlier coverage and provide an update on an important ruling in the case that was made this week.
Policy Summary: On October 1, 2019 USRESIST NEWS reported that Judge Allison Burroughs of the United States District Court for the District of Massachusetts issued a ruling in the case Students for Fair Admissions v. Harvard. The Students for Fair Admissions (SFFA) filed the case in November 2014. The group had brought previous cases aimed at challenging affirmative action policies at colleges and universities around the country. In the Harvard case, the group alleged that Harvard intentionally discriminated against Asian – American applicants to the school in violation of Title VI of the Civil Rights Act of 1964. That title prohibits discrimination by programs and activities that receive federal funding. After a three week trial conducted at the end of 2018, Judge Burroughs ruled against all of SFFA’s counts and ruled that  Harvard’s admissions program was narrowly tailored to serve a compelling government interest,  that Harvard did not engage in racial balancing,  did not use race as a plus factor,  that other race – neutral alternatives were not available and  that Harvard did not intentionally discriminate against Asian – American applicants. LEARN MORE
Analysis: After Judge Burrough’s ruling USRESIST NEWS commented that Students for Fair Admissions Group and its director Edward Blum have wanted nothing but to discredit and dismantle affirmative – action programs around the country. In her ruling, Judge Burroughs was very careful in acknowledging that affirmative – action programs are “not perfect” and not meant to be permanent and showed that the admissions program at Harvard was constructed in a manner that was constitutionally sufficient. The “strict scrutiny” analysis applied to the program demonstrated that Harvard’s admissions program did enough to serve the interests of building a diverse student body and did not do more than was necessary to achieve that goal because race was used in a holistic fashion together with other non – race factors. And in all the remaining counts, she showed how race was never used as a deciding factor such as part of a fixed quota system and that the use of race as a “plus” factor still permitted the admissions committee enough flexibility to consider all other elements of the applicant’s application. In short, race, when used was constitutionally permissible according to the limits set by prior Supreme Court cases.
What also made this interesting was how selective the plaintiffs were in their use of statistical data while ignoring other facts that they found inconvenient to their arguments. As an example, SFFA tried to point to a Harvard recruitment program that sent recruitment letters based on PSAT scores. Those letters showed that Asian – American students received those unsolicited letters if they had a 1370 score while white males would receive those letters if they only received a 1310 on the PSAT. However, Harvard shot back that the letters are an invitation to apply to Harvard. Once a student enters the applicant pool different standards are used when reviewing an applicant’s application. And in another example, Harvard’s applicant rating system exposed SFFA due to the fact that their analysis omitted athletes and children of alumni. This led to accusations of SFFA trying to manipulate their statistics to fit their discrimination narrative. Again, Harvard pushed back and said that an entire review of the applicant pool was necessary and, more importantly, that their forthright statistical analysis showed that being Asian – American did not impact an applicant’s likelihood of getting accepted to the school.
Even though Judge Burroughs clearly demonstrated how this case was permissible within the limits of existing case law, the case will in all likelihood be appealed where it will be hotly debated more on a policy level than a legal one. LEARN MORE, LEARN MORE, LEARN MORE
Update: On November 12, 2020 Circuit Judge Sandra Lynch of the United States Court of Appeals for the First Circuit issued the opinion in the case Students for Fair Admissions, Inc. v. Harvard. The case was being heard on appeal after the trial case in federal district court ruled against SFFA’s claims that Harvard’s admissions policies discriminated against Asian – American applicants. In the opinion, Judge Lynch declared definitively that “under governing Supreme Court law Harvard’s race conscious admissions program does not violate Title VI.” The case was unanimous with a 2 – 0 vote in favor of Harvard. (The appeal was heard by a panel of three circuit judges but Judge Torruella passed away prior to the issuance of the opinion in the appeal).
The opinion is notable because of Judge Lynch’s focus and emphasis on the statistics used in the trial court. During the trial, SFFA was exposed for profferring statistical evidence that was misconstrued as viewed by SFFA, which led to accusations that SFFA was manipulating the evidence. SFFA’s efforts at omitting certain groups of students (athletes, children of alumni) and confusing marketing efforts with application review standards were not convincing at the trial level and not convincing again on the arguments at the appeal.
While SFFA’s evidence has been exposed to be shaky at a trial and appeal level thus far, it is a not very well kept secret that SFFA and its director Ed Blum are aiming for their day in the United States Supreme Court. By bringing the case through the appeals process they are simply following every step in the process in order to reach the high court where they hope that the case will end in a favorable decision for them. With the makeup of the high court now clear with a conservative majority (6 – 3) SFFA is gambling that the recent addition of conservative justices on the Supreme Court will help issue an opinion that will strike down affirmative action policies nationwide despite the benefits that the programs have brought about in terms of boosting diversity and opportunity for disadvantaged minority students. Due to the long time it takes to get a case before the Supreme Court it is unclear when the case will be heard by the high court, if at all, but it seems certain that this contentious issue has an ending that still has to be decided, whether in the courts as a legal issue or in the legislatures as a policy one. LEARN MORE, LEARN MORE, LEARN MORE
Harvard Admissions Lawsuit – webpage from Harvard about the case.
American Civil Liberties Union (ACLU) – statement from group on case with link to amicus brief filed by the ACLU on in support of Harvard.
Policy Summary: With the 2020 United States election only days away a number of states have already started the process of voting. Absentee ballots have been filled out and mailed back and early voting periods have seen a large turnout of voters in anticipation of the November 3, 2020 election. With a little more than a week until Election Day a number of recent incidents illustrate the difficulties that some voters are having in casting their ballot.
In some states, the wait in line to vote has been reported to be two, three or four hours. On October 25, 2020 Representative Alexandra Ocasio Cortez (D-NY) reported that she waited two hours in line to vote in her precinct in the Bronx, New York. And the Washington Post reported that lines in New Mexico, Texas, Tennessee and other locales were having wait times that reached two hours causing some voters who didn’t vote to leave and come back the next day to try again.
In Lucas County, Ohio, the Board of Elections has acknowledged that there has been a delay in counting returned absentee ballots because of a shortage of poll workers. Fear of COVID-19 had caused fewer volunteers than in years past but it remains to be seen if this shortage will translate to problems to in – person voting. Other regions have also reported a shortage of poll workers which prompted a number of non – profit groups and projects to try and fill in the void this week.
And finally, a number of voters in the New York area reported receiving harassing robocalls that were intended to intimidate them from voting. The robocalls stated that if the voter returned their ballot that the info would be used to track down old arrest warrants, be given to credit card companies to collect outstanding debts and be used by the CDC to administer mandatory vaccines. The Lawyers Committee for Civil Rights Under Law finally stepped in and filed a temporary restraining order to stop the false robocalls under an old anti-Klan statute. LEARN MORE
Policy Analysis: While there are any number of issues or circumstances that can prevent a voter from casting his or her ballot, these three incidents help to illustrate that many of the problems and barriers are systemic but also that there are a number of good non – profit groups who are willing to do what needs to be done to fix the flaws.
Waiting in line to vote in – person can often cause a person to endure a long period of hours waiting in line but there are options a voter can use to avoid this. A voter does not have to wait to vote on Election Day but can instead utilize early voting periods which can help a voter better manage their time. A voter can also utilize the option of mail ballots which can be dropped off in person, in an officially sanctioned drop box or with the U.S. Postal Service. Waiting in line to vote might seem to be a one time situation to be tolerated because of COVID-19 but the Brennan Center for Justice has been studying the issue of long wait times in line to vote and offers policy suggestions to help manage this issue in the future.
In some areas, the shortage of poll workers is attributed to a rare pandemic that has kept usual election volunteers at home this year. But citizens were alerted to the news of this potential problem and efforts were mobilized by a number of non – profit groups to ensure that polling places had enough volunteers to ensure a safe and fair election. Power the Polls is a first of its kind initiative that was created to try and help recruit 250,000 Americans to sign up to staff a polling booth location. The ability to count and process ballots and staff locations should not run into some of the delays being reported due to the help that is available out there.
And finally, there are a number of right wing groups who are intent on following President Trump’s lead to sow chaos and division at the polls in the coming days. The situation with the recent robocalls in New York, Pennsylvania and Ohio were coordinated by operatives Jacob Wohl of California and Jack Burkman of Virginia. Both men have a history of making statements about their intent to disrupt the 2020 election and harm the chances of many Democratic candidates. While this particular scam was discovered it is very likely that there are many other operations out there that are still trying to intimidate voters from casting their ballots and who may continue to try on Election Day. The Lawyers Committee for Civil Rights Under Law was quick to file a temporary restraining order for this one scam. That might not be the case with other voter suppression tactics which reinforces the call to be vigilant as Election Day nears and to use any and all resources (governmental, non – profit groups) to combat what a voter may likely see out there heading into next week.
Brennan Center for Justice – “Waiting to Vote” report on racial disparities in Election Day experiences.
Power the Polls – non – profit group’s website on their efforts to recruit polling booth workers and volunteers.
Policy Summary: In 2016 the California Legislature passed Assembly Bill 1921 which expanded on who can return an absentee or mail ballot on another person’s behalf. Previously, the only persons permitted to return another person’s mail ballot were family members residing in the same household as the voter (spouse, children, parents, brother, sister, etc.). With the new law California allowed any person designated by the voter to return the mail ballot. Familial ties were no longer required nor did the person designated by the voter have to reside in the same household. The rationale for the law was to remove further barriers that could have prevented some people from returning their ballot.
Over the last few weeks, the Republican Party in California hatched an idea to collect ballots and deliver them to local election headquarters. In the cities of Fresno and areas around Los Angeles ballot collection boxes were set up at churches and gun shops. The ballot collection boxes set up at these locations by the Republican Party were in violation of state law and prompted a memorandum from California Secretary of State Alex Padilla to provide clarity on the use of unauthorized ballot collection boxes. Republicans countered that their use of ballot collection boxes is perfectly within the law as written by the Democrats in the Legislature. On October 12, 2020, Secretary Padilla filed a cease and desist order with the California Republican Party and local Republican Parties in Fresno, Los Angeles and Orange Counties to stop the use of unauthorized ballot collection boxes. LEARN MORE
Policy Analysis: The issue that triggered this fight in California just weeks from Election Day is known as “ballot harvesting.” It is also known as “ballot collection.” A voter can mail their mail ballot or absentee ballot back to election headquarters or simply drop it in an official ballot collection box set up by the local county. However, the laws from each of the fifty states are not uniform and some states permit another person to return their ballot, some states do not and other states have no laws addressing the issue. Some of the most common restrictions are the number of ballots that can be returned by one person (e.g. Montana limits a person to six ballots returned by him or her on behalf of another voter), a bar on political candidates or their staff from returning another person’s ballot and some technical requirements such as signing an affidavit on voter assistance forms.
The problem with the ballot collection boxes set up in California by the Republican Party, aside from the technical requirements, is that the collection boxes are only targeted at likely Republican voters. The intent of the ballot collection law in California and in a number of other states is to allow the individual voter to select one person to return their ballot. Many of the ballots have sections on the envelope where the designated person will sign their name and attest that the voter has voted. What the Republicans are instead doing is setting up a massive ballot collection effort that will operate outside the safeguards that many of these state ballot collection laws have implemented. If a person known to be a Democrat in the community drops his or her ballot in these unauthorized collection boxes there is no guarantee that the Republican Party will deliver the ballot. Additionally, there is no one signing for the receipt of these ballots which does not give anyone responsibility for the delivery of the mail ballot. And while the use of officially sanctioned ballot drop boxes have protocols for the security of the box and the retrieval of the ballots by known elections officials in the county these receptacles used by Republicans have none of those protocols in place. And it can be difficult to demand and monitor these kinds of protocols if the boxes are placed in a location like a gun shop.
While Republicans claim to merely be playing by the rules set up by California Democrats there is a dark chapter with the Republican Party when it comes to ballot harvesting. Just last year, a Republican political operative in North Carolina was indicted in a ballot harvesting scandal. Leslie Dowless, Jr. ran a ballot collection operation that included sending absentee ballots to voters who never requested one, filling in the ballots personally for multiple voters and signing the voter’s name himself. With this sordid incident happening so recently, it is questionable to allow the Republican Party to engage in another ballot collection effort on a large scale without ensuring that security and retrieval protocols are in place. Secretary Padilla of California has already sent out cease and desist orders to local Republican officials to halt their efforts at using unauthorized ballot collection boxes but it may take a few days to see if Republicans will comply or if they will continue to use this ballot harvesting method to try and sow confusion and try to manipulate an election that is only weeks away. LEARN MORE, LEARN MORE
LawFare – infopage on ballot collection issues and how it has been handled in courts.
National Conference of State Legislatures (NCSL) – chart detailing ballot collection statutes in all fifty states.
Policy Summary: On October 13, 2020 the United States Supreme Court issued an order that stayed an order from the 9th U.S. Circuit Court of Appeals that upheld the suspension of the September 30, 2020 deadline for finishing the 2020 census count. And, on October 16, 2020 the Supreme Court announced that it had set for argument on November 30, 2020 to consider whether the census can exclude undocumented immigrants from the overall tally of persons.
Article 1, Section 2 of the U.S. Constitution requires that enumeration of all persons shall be done every ten years which will then determine how congressional Representatives will be apportioned among the several States. However, on July 21, 2020 President Donald J. Trump issued a presidential memorandum that directed the Secretary of Commerce to exclude illegal aliens from being counted for the apportionment base following the 2020 census. In response to this directive multiple lawsuits were filed by a number of plaintiffs asking the court, among other things, to not exclude illegal aliens from the overall census tally and the Commerce Department to not transmit any citizenship or immigration status data to the President for apportionment purposes. The multiple lawsuits were consolidated and at trial Judge Lucy Koh of the United States District Court for the Northern District of California sided with the plaintiffs. She issued an injunction that suspended both the September 30 deadline for finishing the census and the December 31 deadline for reporting the final census tally to the President. A number of groups had advocated for an extension of time to continue with the census count as the process had been upended due to the COVID-19 pandemic. The injunction issued by Judge Koh helped to give more time to conduct a more thorough count as the deadline to report the numbers to the President was pushed back to April 2021.
The government’s argument has been more of a technical argument. The finalization and reporting deadlines are set in federal law. So, the government was merely arguing against an extension because it did not want to agree to an extension and then be accused of not following the law. Only Congress can change the deadlines which wasn’t going to happen.The injunction was appealed to the 9th U.S. Circuit Court of Appeals which upheld the injunction and extension of the reporting deadlines. The case was then appealed to the U.S. Supreme Court which issued an order overturning the trial court injunction. This in effect will allow the Commerce Department to end census operations by the September 30th deadline and report the final census tally by the December 31st deadline. LEARN MORE, LEARN MORE, LEARN MORE
Policy Analysis: The latest orders issued by the Supreme Court are just the latest twist in the ongoing saga of the 2020 decenniel census. The importance of this census is staggeringly high as an accurate tally of the American population and where persons are living in the country will be used to determine how many Congressional Representatives a state will have for the next ten years, how many electoral votes it will have in upcoming presidential elections and how federal monies will be divided and doled out to states to use.
The Supreme Court case that issued the order that permitted the government to cease census operations in order to comply with deadlines to finalize and report and send the final tally numbers to the president is an erroneous decision. This is because it does not consider that accuracy and thoroughness is much more important than simply complying with the deadlines to report the data. Census operations were disrupted with the COVID-19 pandemic causing delays and even a temporary suspension of field data collection activities. Due to these unforeseen circumstances the Supreme Court should have upheld the injunction issued by the trial court, allowed the collection of information to continue and emphasized that accuracy and thoroughness of census data is preferable over submitting inaccurate and incomplete data just to meet a deadline.
While the Supreme Court’s decision seemed like it would be the last word on the 2020 Census, the Court stepped into the census fray again a few days later by agreeing to hear arguments on whether President Trump can exclude undocumented immigrants from the final 2020 census tally. President Trump’s plan is to collect two tallies – one for everyone in the U.S. and another that would leave out the number of undocumented immigrants in the U.S. He would then report the tally that excludes undocumented immigrants to Congress for apportionment purposes. This plan is completely flawed as it is settled American law that “persons” are to be counted and not just “citizens.” This has been borne out from the historical record as prior debates in Congress considered counting only “citizens” but those proposals were rejected in favor of counting all “persons” regardless of their citizenship. Additionally, since the usage of “persons” is established in Constitutional Amendments, President Trump’s efforts to try to unilaterally decide on his own to only count citizens is a clear violation of the separation of powers principle. Laws are made by Congress and the President can only execute the laws within the boundaries of those laws. President Trump cannot do what Congress has not authorized under law and for President Trump to decide to not count undocumented immigrants for purposes of the 2020 census is in violation of what Congress clearly intended – that all “persons” and not just “citizens” be counted. As it now heads to the highest court for review the Supreme Court should provide clarity on this issue and rein in President Trump’s actions in what look to be an end – around Congressional powers for political purposes. LEARN MORE, LEARN MORE, LEARN MORE
- American Civil Liberties Union (ACLU) – infopage on 2020 Census.
- Brennan Center for Justice – infopage on group’s litigation efforts regarding the 2020 Census.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org