Sunday, July 24, 2016

Veasey v. Abbott: Federal Appeals Court Rejects Texas Voter ID Law

By Leland Ware 
On July 20, 2016, the U. S. Court of Appeals for the Fifth Circuit delivered a strong rebuke to what is widely viewed as the nation’s strictest voter ID law. The court heard the case, en banc, a rarely invoked process in which a full appeals court (as opposed to a panel of three judges) convenes to decide a case. It was a stunning decision by one of the most conservative federal appellate courts in the nation.

In 2011 Texas enacted Senate Bill 14 (“SB 14”), which required individuals to present one of several forms of photo identification to vote. Texas implemented SB 14 by requiring voters to present: (1) a Texas driver’s license or personal identification card issued by the Department of Public Safety (“DPS”); (2) a U.S. military identification card with a photograph; (3) a U.S. citizenship certificate with a photo; (4) a U.S. passport: (5) a license to carry a concealed handgun issued by DPS: or (6) an Election Identification Certificate (“EIC”) issued by DPS.

To secure an EIC Texas residents are required to present either: (A) one form of primary ID, (B) two forms of secondary ID, or (C) one form of secondary ID and two pieces of supporting identification. This meant that any application for an EIC required either a Texas driver’s license or personal identification card or one of the following documents, accompanied by two forms of supporting identification: (1) an original or certified copy of a birth certificate from the appropriate state agency; (2) an original or certified copy of a United States Department of State Certification of Birth for a U.S. citizen born abroad; (3) U.S. citizenship or naturalization papers without a photo; or (4) an original or certified copy of a court order containing the person’s name and date of birth and indicating an official change of name and/or gender.

A civil Action was filed challenging the constitutionality of the Texas law. The plaintiffs also alleged that SB 14 violates the Voting Rights Act.  After the conclusion of a trial, the district court held that SB 14 imposed an unconstitutional burden on the right to vote under the First and Fourteenth Amendments, had an discriminatory effect on Hispanics and African Americans under Section 2 of the Voting Rights Act, and was enacted with a discriminatory purpose in violation of the Fourteenth and Fifteenth Amendments and Section 2. The trial court also held that SB 14 created a poll tax that violated the Fourteenth and Twenty-Fourth Amendments.

Texas appealed that decision and a panel of the Court of Appeals for the Fifth Circuit affirmed in part, vacated in part, and remanded the case for further findings. Texas responded with a petition to rehear the case en banc. The Court of Appeals granted the request. After the hearing, the Fifth Circuit affirmed the trial court’s decision on the discriminatory effect issue as a violation of Section 2 of the Voting Rights Act. On the discriminatory intent question, the Fifth Circuit found that some of the trial court’s findings were flawed, but it also stated the record contained evidence that could support a finding of discriminatory intent. As a consequence, the Court remanded the discriminatory intent issue to the district court to reconsider its decision.

The plaintiffs also argued that SB 14 unconstitutionally burdened their right to vote in violation of the First and Fourteenth Amendments. The Fifth Circuit declined to decide this question relying on the principle that courts should not decide a constitutional question if there is some other ground on which to decide of the case.

To avoid any disruption of the upcoming election, the Fifth Circuit directed the district court to fashion interim redress for the discriminatory effect violation in the months leading up to the November 2016 general election.

Veasey v. Abbott is a major victory that gives civil rights advocates a crucial remedy in advance of the 2016 election. The new wave of voter ID laws harken back to the Reconstruction era when African Americans in the South were completely disenfranchised. Six of the 16 states that enacted voter ID laws since 2010 have a documented history of discriminating against minority voters. All but one of those states’ laws were put in place after the Supreme Court overturned a key provision of the Voting Rights Act that required them to seek approval from the Justice Department for any voting law changes.

All of the recent Voter ID laws were sponsored by Republicans and passed overwhelmingly by Republican dominated legislatures. A conservative U.S. circuit judge, Richard Posner, called the expressed concern about voter fraud “a mere fig leaf” and the laws instead “appear to be aimed at limiting voting by minorities, particularly blacks.” Posner also stated “there is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud…and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens.” This is clearly the case with voter ID laws. The Republican lawmakers’ motives are the same as those of the white supremacist legislators during the Reconstruction era--disenfranchising minority voters.

Friday, July 15, 2016

Anonymous Flyer Attacking Candidate Is Slammed by Judicial Diversity Group

Greg Land, Daily Report
July 14, 2016

An organization that works to increase racial diversity on the bench is crying foul after an anonymous flyer landed in mailboxes attacking former Fulton County Juvenile Court Chief Judge Belinda Edwards' handling of a case when she was on the bench, and asserting that Edwards was "fired" when the superior court judges declined to reappoint her at the end of 2012.

Edwards, who is African-American, served as chief judge from 2004 to 2012; she is running in the July 26 runoff against former Fulton Magistrate Sterling Eaves, who is white.

The flyer cited news reports concerning a case in which Edwards overruled an associate juvenile court judge and awarded custody of two children to their mother's family members after the Division of Family and Children Services filed a motion to terminate the mother's parental rights. The earlier order had awarded the children to the foster parents who had raised them since they were infants.

DFACS later filed to withdraw its termination motion because the mother had agreed to allow the family members, an aunt and uncle, to adopt the children—a move that was opposed in court by the office of the Fulton County child advocate.

Superior Court Judge Wendy Shoob was drawn into the case when the foster parents filed an adoption petition in that court. Shoob awarded the children to the foster parents, spurring a jurisdictional dispute that ended with the Georgia Court of Appeals ruling that matter had properly been before the juvenile court when Edwards ruled. By that time, Edwards had been replaced as chief judge and the mother had dropped her effort to have the children moved; they remained with the foster parents.

The flyer accused Edwards of "trying to take these foster children away from a loving home," and features a photo of the children and their adoptive parents.

A letter to the Daily Report from Advocacy Action took issue with the "scurrilous, inaccurate and grossly misleading" mailer.

"The truth is Judge Edwards was not reappointed because she refused to compromise in the exercise of her independent judgment to reunify a family and maintaining familial bonds in the best interests of the children" said the letter, signed by former Fulton Superior Court Judge Thelma Wyatt Moore, former Burke County Superior Court Judge Bettianne Hart, and attorneys Charles Johnson, Wayne Kendall and Suzanne Ockleberry.

"The flyer is a gross distortion and contains many inaccuracies and I think it is most telling that no one is taking responsibility for it," said Edwards, declaring it "most unfortunate that the distortions and negativity represented by the flyer have been interjected into the election process."

Eaves said she had heard about the flyer. When asked if she knew where it came from, she replied that she was "blessed that I've got a lot of supporters, and I don't know what everybody's doing."

The children's adoptive father, reached by phone, said he knew nothing about the flyer or its genesis, and asked that a copy be emailed to him, which it was. He did not respond to further requests for comment.

The return address on the flyer belongs to a printing shop, whose proprietor said he knew nothing about the mailer or the case mentioned. He said that he had done some printing work for Eaves' campaign during the general election, and noted that his clients frequently used his mailing address on materials.

Edwards' departure from the juvenile court came after a December 2012 vote by the superior court bench vote not to give her another four-year term. Shortly after that vote, Edwards fired the juvenile court administrator, spurring then-Superior Court Chief Judge Cynthia Wright to issue an order rescinding the termination and forbidding any "adverse actions" against any more juvenile court personnel.

At the time, Wright told The Atlanta Journal-Constitution that she and her fellow judges felt it was time to take the juvenile court "in another direction."

Friday, July 8, 2016

Lillian Smith Book Awards - Featured 2016 Nominee

Anti-Black Violence in Twentieth-Century Texas

 Edited by Bruce A. Glasrud
Anti-Black Violence in Twentieth-Century Texas provides an arresting look at the history of violence against African Americans in Texas.

From a lynching in Paris at the turn of the century to the 1998 murder of Jasper resident James Byrd Jr., who was dragged to death behind a truck, this volume uncovers the violent side of race relations in the Lone Star State.

Historian Bruce A. Glasrud has curated an essential contribution to Texas history and historiography that will also bring attention to a chapter in the state’s history that, for many, is still very much a part of the present.

BRUCE A. GLASRUD is professor emeritus of history at California State University, East Bay, and retired dean of the School of Arts and Sciences, Sul Ross State University. He is the author, coauthor, or editor of more than two dozen books, including Southern Black Women in the Modern Civil Rights Movement, winner of the Liz Carpenter Award for Research in the
History of Women.

What Readers Are Saying:

“Bruce A. Glasrud’s impressive collection of carefully researched essays is an important contribution in the field of racial violence. This timely collection also deepens our understanding of the modern civil rights movement and the resistance to a racially just society. The twelve contributors demonstrate, sadly, the persistence of racial violence across time and into the twenty-first century. Anti-Black Violence reveals a broad spectrum of white violence and numerous forms of racial control, and it illustrates, too, the creative range of responses that black Texans used to cope with white violence, ranging from organized activism and out-migration to racial accommodation. These powerful narratives reveal finally that the Lone Star State was every bit as brutal and vicious toward African Americans as Mississippi and Georgia in its quest to assert white supremacy and maintain a subservient and inferior status for African Americans.”—Albert S. Broussard, author of Expectations of Equality: A History of Black Westerners

“Bruce A. Glasrud has brought together in one volume a striking collection of essays on Texas racism, past and present, which should dash unexamined notions of benign race relations in a state often considered more Western than Southern. It deserves high priority for every reader who wishes to understand the full nature of one of the most politically important states in the nation.”—Garna Christian, author of Black Soldiers in Jim Crow, Texas, 1899–1917

“Anti-Black Violence in Twentieth-Century Texas is a welcome and long overdue addition to the literature on African American history in the Lone Star State. This landmark study is more than a historical analysis. By providing a rich description and analysis of important events, it becomes an insightful discussion of collective violence meted to African Americans. In a word, it fills a serious gap in the history of racial violence in this country, especially Texas.”—Merline Pitre, Professor of History, Texas Southern University and coauthor of Southern Black Women in the Modern Civil Rights Movement.

Sunday, June 26, 2016

Affirmative Action Survives Another Attack: Fisher v. University of Texas

By Leland Ware 
Louis L. Redding Chair and 
Professor for the Study of  
Law and Public Policy 
University of Delaware

In Fisher v. University of Texas the Supreme Court once again affirmed the constitutionality of universities’ use of race conscious admission policies.[1] This is the latest chapter in a decades-long battle over the legitimacy of affirmative action. This episode began when Abagail Fisher was denied admission to the 2008 entering class at the University of Texas (UT). She subsequently filed suit contending UT’s affirmative action admissions policies were unconstitutional because they went beyond promoting the educational benefits of diversity and sought to achieve a student body that reflected the of State of Texas' racial composition. Fisher also argued that UT had not given adequate consideration to race-neutral alternatives. Her other argument was minorities had already achieved a "critical mass" under Texas’ "Top Ten Percent" law, making additional efforts to promote diversity unnecessary.

UT’s admissions process divides applicants into three groups: Texas residents, domestic nonresidents, and international students. Students compete for admission against other students in their respective pools. Texas residents are allotted ninety percent of all available seats. Under Texas' Top Ten Percent law, students with grades in the top tenth percentile of their high schools' graduating classes are automatically admitted. Applicants who are not in the top ten percent compete for admission based on their academic and personal achievement indices. The academic index is based on SAT scores and grades.

The personal index is based on a score awarded for of two required essays and a "personal achievement score" which represents a "holistic" evaluation of the applicant’s file. Race is considered as one element of the personal achievement score but that is only one component of the total personal academic index.

This case has been up and down in the courts for eight years. The first round started in a federal trial court. It entered summary judgment in the University’s favor and the Court of Appeals subsequently affirmed. The Supreme Court granted certiorari and vacated the of the Court of Appeals’ judgment because it had, in the majority’s view, applied an unduly deferential, “good-faith” standard in evaluating the constitutionality of the UT’s pro­gram. On remand the Court of Appeals again affirmed the trial court’s entry of a summary judgment in the University’s favor. In an unusual move, the Supreme Court agreed to hear the case for a second time.

At this juncture the only question before the Court was whether Fisher had shown, by a preponder­ance of the evidence, that she was denied equal treatment when her application was rejected. Laws and policies that use racial classifications are subjected to “strict scrutiny.” To survive this exacting standard of review a university must show that its purpose is substantial and constitutionally permissible and that its use of a racial classification is necessary to accomplish the purpose asserted. Moreover, the institution must bear the burden of demonstrating that workable, race-neutral alternatives will not suffice. However, once a university provides a reasoned and principled explanation for its decision, deference must be accorded to the institution’s academic judgment regarding the educational value of a diverse student body.

In this case the majority concluded that UT stated concrete and precise goals including: ending stereotypes, promoting cross-racial understanding, preparing students for an increasingly diverse workforce and society, and cultivating leaders with legitimacy in the eyes of the citizens. These interests were found to be sufficiently compelling in the 2003 decision in Grutter v. Bollinger. UT also provided a reasoned and principled explanation for its decision in a 39-page proposal written after a year-long study determined that its race-neutral policies and programs did not meet its goals.

Fisher made a number of arguments that were rejected by the Court. She claimed that the University did not articulate its compelling interest with sufficient clarity because it has failed to state more precisely what level of minority enrollment would constitute a critical mass. However, the compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students, but an interest in obtaining the educational benefits that flow from student body diversity.

It is not a goal that can be reduced to pure numbers. Since the University is prohibited from seeking a particular number or quota of minority students, it cannot be faulted for failing to specify the particular level of minority enrollment at which it believes the educational benefits of diversity will be obtained.

Fisher also argued that UT did not need to consider race because it had already achieved a critical mass of minority students under the “Top Ten Percent” plan and its race-neutral holistic review. However, the record showed that the University studied and deliberated for months and concluded that race-neutral programs had not achieved the University’s diversity goals. This determination that was supported by significant statistical and anecdotal evidence.

Fisher contended that considering race was unnecessary because it had only a minor impact on the number of minority students admitted. The record established that the consideration of race had a meaningful, albeit limited, effect on freshman class diversity. That race consciousness played a role in only a small portion of admissions decisions showed narrow tailoring, not evidence of unconstitutionality.

Finally, Fisher argued that there were other, race-neutral means to achieve the University’s goals. However, the record showed that none of those alternatives was a workable means of attaining student body diversity. The Court rejected all of Fisher’s arguments after concluding that UT’s consideration of race was narrowly tailored to achieving its compelling educational interest in promoting student body diversity. Although “it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity” the Supreme Court has confirmed that race conscious affirmative action is a legitimate means of promoting diversity.

Racial Resentment and Samuel Alito’s Dissent

The affirmative action debate extends beyond the boundaries of Fourteenth Amendment jurisprudence. Much of the opposition to affirmative action is rooted in racial resentment; an intense, emotionally-charged objection to policies designed to assist racial minorities. This attitude is on display in Samuel Alito’s rambling and unfocused 50-page dissenting opinion. Today, although most whites subscribe to the norm of racial equality, negative stereotypes persist that provoke racial resentment. The disposition is not usually overt; it tends to reside at an unconscious level deep within an individual’s psyche. Racial resentment is different from ordinary envy or jealousy because it includes feelings of injustice.

Many whites believe that affirmative action programs benefit undeserving minorities in ways that disadvantage better qualified whites. Their racial resentment is often expressed by anger, bitterness, or similar concerns related to beliefs about special dispensations given to racial minorities. These special considerations violate affirmative action opponents’ views of fairness. Persons who harbor racial resentment are offended by claims of racial discrimination as a justification for affirmative action. They believe that racism has been largely eradicated and pointing to race as a cause of continuing inequality is unfair. This view is unrealistic and empirically inaccurate but intense emotions can override reality. Simmering racial resentment animates Alito’s dissent and it is not the first time it has been exposed in his opinions.

[1] The majority included Justices Anthony Kennedy, Sonia Sotomayor, Stephen Breyer and Ruth Bader Ginsburg. Samuel Alito, John Roberts and Clarence Thomas dissented. Elena Kagan recused herself and did not participate.