Tuesday, March 31, 2015

Voting Rights Act May Not be Used as a Pretext for Racial Gerrymandering

Supreme Court Strikes down Alabama’s Racial Gerrymander[1]

On March 25, 2015, the Supreme Court issued its decision in Alabama Democratic Conference v. Alabama and Alabama Legislative Black Caucus v. Alabama. The ruling in these consolidated cases reversed a lower court’s decision that Alabama’s legislature had not engaged in racial gerrymandering when it redrew electoral districts in 2012. The Supreme Court also found that there was strong and “possibly overwhelming,” evidence that race was the primary motivation in establishing the boundaries of some of some of the districts. This decision makes it harder for Republican-dominated legislatures to use compliance with Section 5 of the Voting Rights Act as a pretext to secure partisan advantage.

The cases were brought by a group of white Democrats and black legislators. They contended that Alabama's Republican-dominated legislature redrew the state's electoral districts in ways that diluted the voting strength of racial minorities by packing them into districts that were already heavily populated by minorities.

The 2010 census showed that populations of several majority black districts in Alabama shrank significantly. To achieve an equal distribution of the population, the districts had to be redrawn to incorporate more residents. The Republican majority redrew the state’s voting districts in 2012. The legislators added large numbers of African Americans to districts that were already heavily populated with minorities. This made other districts much whiter and more likely to elect Republican candidates. The legislators also drew district lines in ways that minimized the influence of African American voters in districts where they were the minority.

The challengers argued that the legislature engaged in “packing,” a tactic that dilutes minority voting strength by putting as many minority voters into as few districts as possible to minimize the number of representatives they could elect. They also alleged “cracking,” which dilutes minority voting strength by spreading minority communities across several election districts.

Republican lawmakers argued that because many districts had lost residents, cases interpreting Section 5 of the Voting Rights Act required the state to maintain the same number of majority-minority districts with roughly the same percentage of minority voters. Democratic and African-American lawmakers argued that the Section 5 rationale was a pretext for racial gerrymandering.

The District Court held that racial criteria had not predominated when Alabama’s electoral districts were redrawn. In doing so, it considered the entire State as an “undifferentiated whole.” The Supreme Court reversed the trial court’s ruling. It held that a racial gerrymandering claim requires an examination of individual voting districts using a district-by-district analysis. The trial court’s consideration of the entire state as a unit of measure was legally erroneous.

The Court also found that Alabama erroneously believed Section 5 of the Voting Rights Act required the legislature to pack more African-American voters into districts to keep the same percentage of African Americans in each majority-minority district. The Court also rejected arguments that racial gerrymandering cannot occur when a state’s goal is maintaining equally populated districts.

The trial court found that even if Alabama subordinated traditional districting principles to racial considerations, the racial gerrymandering claims failed because the redistricting would satisfy strict scrutiny.[2] The Supreme Court reversed that ruling. The proper approach would be a determination of the extent to which existing minority percentages had to be preserved to maintain the minority voters’ ability to elect the candidate of their choice. However, the Court left open the question whether compliance with the Voting Rights Act’s retrogression prohibitions could be deemed a “compelling” state interest that would satisfy strict scrutiny.

The Supreme Court vacated the trial court’s finding that plaintiffs lacked standing to assert their claims. At minimum, the plaintiffs should have been allowed to produce evidence that they had suffered an injury traceable to the actions of the defendants. The case was remanded to the District Court for reconsideration in light of the Supreme Court’s findings and analysis.

The decision in Alabama Democratic Conference is a victory for voting rights. Packing minority and other Democratic voters into fewer districts is a tactic that Republican-dominated legislatures have used to gain electoral advantages. The Supreme Court’s ruling prevents states from using retrogression avoidance as a pretext for racial gerrymandering. However, the battle is far from over. Other gerrymandering cases are pending and voter suppression tactics are being aggressively pursued by state legislatures.

[1] Leland Ware, Louis L. Redding Professor of Law & Public Policy, University of Delaware
[2] Laws that classify on the basis of race must satisfy the strict scrutiny standard. Under this exacting test, a legislature must have enacted a law to advance a "compelling governmental interest" and the law must be “narrowly tailored” achieving that interest. The test was used to strike down segregation laws in the 1960s.

Thursday, March 19, 2015

Legal Groups Say U.S. Magistrate Selection Process Lacks Diversity

Daily Report

Daily Report, March 18, 2915     
Federal judges in the Northern District of Georgia have settled on a successor for retiring U.S. Magistrate Judge Clayton Scofield III, but the selection process is being criticized as giving short shrift to African-American nominees.

Advocacy for Action, which organized in 2013 to push for broader diversity on the federal and state court benches in Georgia, said the process to replace Scofield was "flawed" and "unrepresentative" of the demographics of the Northern District.

In a Feb. 27 letter, the organization urged the court's 16 active and senior judges not to appoint Scofield's replacement from what it described as "the racially exclusive list" of finalists submitted by a court-appointed panel. Instead, Advocacy asked that the panel "go back to the drawing board and develop a new short list that reflects the district's racial, ethnic and gender diversity."

It also urged the judges to "revisit the composition" of the selection panel, which the group criticized for including only a single African-American among its 13 members "so that the next round of deliberations will be conducted by a panel which is better equipped to provide the court with a more representative range of choices."

The Georgia Association of Black Women Attorneys and the Gate City Bar Association last week expressed similar concerns to Northern District judges. In a March 13 letter, GABWA asked that it be allowed to choose one of its members to sit on the selection panel. GABWA suggested that, if it were not assigned a seat on the panel, selected members be allowed to review applications and provide feedback to the panel.

On March 11, Gate City President Darrick McDuffie and President-Elect Cheryl Turner met with the district's chief judge, Thomas Thrash Jr., and Judge Steve Jones to discuss the magistrate selection process, McDuffie said in an email to the Daily Report. McDuffie said he and Turner offered the support of the Gate City bar in identifying a more diverse pool of talented applicants for open magistrate judgeships.

In a statement to the Daily Report, Thrash defended the selection panel, which was appointed last year. He called Advocacy for Action's suggestions that any applicants were excluded as finalists because of their race "utterly false, preposterous and outrageous."

Citing the Guide to Judiciary Policy published by the Administrative Office of the U.S. Courts, Thrash told the Daily Report that the name of the candidate selected to replace Scofield remains confidential until an FBI background check is complete. So is the list of the five finalists submitted by the selection panel, in addition to the names of all who applied for the job. Applicants may waive those confidentiality requirements but, in this case, none has done so, the chief judge explained.

Advocacy for Action's letter noted that while "a number of well-qualified African-American lawyers and judges" applied for Scofield's post, some were never interviewed for the job, and the list of five finalists did not include an African-American candidate. The letter was signed by retired Fulton County Superior Court Judge Thelma Wyatt Moore, Advocacy for Action's president; former Richmond County Superior Court Judge Bettianne Hart, its vice president; and co-convenors Charles Johnson III, a Holland & Knight partner, and Suzanne Wynn Ockleberry, an attorney with AT&T in Atlanta.

"We believe that communities are strongest, governments have the highest claim to legitimacy, and institutions are most accountable when those who administer the institutions of government are talented individuals who are meaningfully representative of the communities they serve," the letter said. "Judicial diversity promotes impartiality by ensuring that no one viewpoint, perspective or set of values can persistently dominate legal decision making."

The letter suggested that "a racially exclusive short list" of finalists for the magistrate post would do "a disservice" to the district's citizens, "who deserve a process which at least has a chance of producing a representative judiciary."

GABWA's letter, signed by President Adwoa Ghartey-Tagoe Seymour and the organization's judicial review committee chair, Jamala McFadden, acknowledged that GABWA members have "no specific knowledge" of the applicant pool for Scofield's post or the criteria used in selecting the five finalists and so "take no issue" with their qualifications versus those of other applicants.

"Instead, we join in the concerns raised about the importance of a diverse merit selection panel and representative diversity among the ranks of judges who serve our communities," the letter said.

The letter said that GABWA's judicial review committee already rates nominees for state-level judicial vacancies and makes recommendations to the state Judicial Nominating Commission "to ensure that diverse, well-qualified candidates are seriously considered for judicial seats." GABWA, it added, "is confident that our organization can provide the court and merit selection panel with an additional layer of objectivity and perspective in these judicial selections to best facilitate a diverse selection of the most qualified candidates for recommendation to the court."

Seymour told the Daily Report that the organization decided to write the Northern District court after several of its members expressed concerns about the selection panel's lack of diversity. "As lawyers, we feel compelled to ensure there is a diverse bench to represent the communities they serve," she said. "If we have a diverse panel identifying candidates, it further enriches the conversation and discussion around the candidates presented to the panel."

She said she already has received "some positive feedback from the court" about the letter, which was sent to 16 active and senior judges. "It speaks to the fact that the court is also interested and sees the value of having a diverse panel and having a diverse court and what that value brings to our community," she said.

In a written statement to the Daily Report, Thrash defended the panel of 11 attorneys and two nonlawyers. The chief judge also defended the five finalists recommended by the panel to the Northern District bench as "an outstanding list" of applicants.

"Our judges seek to ensure a diverse group of experienced attorneys and civilians known for their character, integrity and leadership," he said. "While the exact number and makeup of individual panels may differ, the quality of the persons reflected thereon is uniformly of the highest order. Such is the case with our current panel."

"Our goal in our selection process is to appoint magistrate judges with exceptional experience, intellect, judgment and integrity," Thrash continued. "We have met this goal for many years, and we believe that we have the right selection process in place to meet it now."

Thrash also expressed confidence that every applicant for judicial post "was given full and fair consideration," based on the panel's "conscientious and dedicated work" as well as his knowledge of the character of those serving on the panel. He called the list of five finalists "outstanding."

The judge added that on Feb. 26—the day before Advocacy for Action sent its letter to the court—the judges of the Northern District voted to add two members to the panel at a future date. Thrash said he expects those additions "will increase the diversity of the panel."

Of Advocacy for Action, the judge said, "I am familiar with the group only through their public opposition to the nominations of certain of the judges recently added to our bench. My only response to the letter is that any suggestion that some applicants were excluded from the list of finalists because of race or that race played any role in those who were selected as finalists is, in my opinion, utterly false, preposterous and outrageous."

The panelists, selected by the judges of the Northern District bench and appointed by order of then-Chief Judge Julie Carnes, serve for two years. Former U.S. Attorney and former U.S. Magistrate Judge Richard Deane, now managing partner at the Atlanta offices of Jones Day, is the sole African-American member. On Monday, Deane said he could not comment on Advocacy for Action's letter without potentially running afoul of the confidentiality rules under which the merit panel operates.

Deane's fellow panelists include its chairwoman, Virginia Carron of Finnegan Henderson Farabow Garrett & Dunner; Thomas Carlock of Carlock Copeland & Stair; former Atlanta City Attorney Linda DiSantis; Henry Fellows Jr., of Fellows LaBriola; CNN Vice President and Editorial Director Richard Griffiths; Robert Khayat Jr., a former president of the Atlanta chapter of the Federal Bar Association; M. Tyler Smith of Smith, Gilliam, Williams & Miles in Gainesville; Rome attorney Billy Sparks; Michael E. Sumner of Sumner Meeker in Newnan; former Atlanta school board member Midge Sweet; Lester Tate, a Cartersville lawyer and chairman of the state Judicial Qualifications Commission; and Michael Terry of Atlanta's Bondurant, Mixson & Elmore.

Tate told the Daily Report that he has seen Advocacy for Action's letter. "They certainly point to a valid concern," he said. "It's the kind of problem we have to keep working to try to solve."

Tate would not discuss the selection panel's deliberations or the applicants they considered. But he said the panel "worked hard to try to pick good candidates." And, he added, in voting for the applicants whom the committee would recommend as finalists for the open magistrate post, "I think I cast as diverse a ballot as any other racial or ethnic minority would."

Johnson, one of the Advocacy letter's signers, told the Daily Report that he signed the letter after he heard of three African-Americans who applied for the magistrate post—all of whom he considered qualified for the job—but only one was interviewed by the panel and none was a finalist.

There is only one African-American among the nine magistrate judges for the Northern District. She is Linda Walker, who was appointed in 2000 and became the first female African-American to sit on the federal bench in Georgia. President Barack Obama nominated Walker to be a federal district judge in January 2011. Her nomination, along with that of public defender Natasha Perdew Silas, never moved forward after Georgia's two Republican senators opposed a package deal that included Silas. The president did not renominate the pair.

Johnson said that, in the past, he has served on similar merit selection panels that recommended candidates for a federal magistrate post, and, "I am not aware of anyone being excluded from an interview. As far as I know, we interviewed everyone who applied."

Johnson said that Advocacy for Action decided to write the letter after its members "started hearing from people who were concerned about the process," including individuals whom he said were panelists.

Monday, March 2, 2015

A Call for Fairness in the Selection of U.S. Magistrates

February 27, 2015
Hon. Thomas W. Thrash, Jr.
Hon. Timothy Batten, Sr.
Hon. Marc H. Cohen
Hon. Clarence Cooper
Hon. William S. Duffey, Jr.
Hon. Orinda D. Evans
Hon. Willis B. Hunt, Jr.
Hon. Steve B. Jones
Hon. Leigh Martin May
Hon. Harold L. Murphy
Hon. William C. O’Kelley
Hon. Charles A. Pannell, Jr.
Hon. Eleanor L. Ross
Hon. Marvin H. Shoob
Hon. Richard W. Story
Hon. Amy Totenberg
United States District Court
            For the Northern District of Georgia
Richard B. Russell Federal Building and Courthouse
75 Spring Street, S.W.
Atlanta, Georgia 30303-3361
            Re:      Selection of U.S. Magistrate for the Northern District of Georgia
Dear Judges of the U.S. District Court:
Advocacy for Action, Inc. is a non-profit organization formed for the purpose of working to ensure that Georgia has a judiciary which represents the best and brightest minds from all segments of our communities.  We believe that communities are strongest, governments have the highest claim to legitimacy, and institutions are most accountable, when those who administer the institutions of government are talented individuals who are meaningfully representative of the communities that they serve.
This principle is as applicable to our courts as to any other institution.  Judicial diversity promotes impartiality by ensuring that no one viewpoint, perspective, or set of values can persistently dominate legal decision making. As Judge Richard Posner has observed, a diverse judiciary “is more representative, and its decisions will therefore command greater acceptance in a diverse society than would the decisions of a Mandarin court.”[1] Judge James Wynne has noted that a lack of diversity poses a significant challenge for a judicial system that passes judgment on issues affecting African-Americans, women and other minorities.[2]  Speaking through its diversity subcommittee, the Judicial Conference Committee on Judicial Resources has noted that:
 “The essential function of courts is to dispense justice. An important component of this function is the creation and maintenance of diversity in the court system. A community’s belief that a court dispenses justice is heightened when the court reflects the community’s racial, ethnic, and gender diversity.”[3]

This principle is applicable in the selection of magistrate judges, according to the Judicial Conference’s Conference Committee on the Administration of the Magistrate Judges System, which has noted that a merit selection panel for the selection of federal magistrates is obligated, under the Judicial Conference’s selection and appointment regulations, to give due consideration to all qualified applicants for a magistrate judge position, particularly those from underrepresented groups.[4]

Events have come to our attention regarding the magistrate selection process in the Northern District of Georgia which appear to be inconsistent with the foregoing principles.  In June of 2014, the court appointed a Merit Selection Panel consisting of thirteen individuals, including only one African-American. We do not wish to suggest that the court should have employed a principle of proportional representation in the appointment of this panel.  Nevertheless, it should be noted that a panel that is less than 9% African American is far from representative of the population of this very diverse district.  That such an unrepresentative panel might have had difficulty in producing a representative short list was a thoroughly foreseeable outcome.
In recent months, this flawed Merit Selection Panel was called upon to screen applicants for the position held by Magistrate Judge E. Clayton Scofield, III.  The information which has come to our attention from a variety of reliable sources reveals the following about the work of this panel:
  • A number of applicants applied for this positon, including a number of well-qualified African-American lawyers and judges;
  • A number of the applicants, including some of the African-American candidates, were not interviewed by the panel;
  • The Merit Selection Panel has developed a short list of five candidates, and the panel has submitted this short list to the Court; and
  • There are no African-Americans on the short list developed and submitted by the Merit Selection Panel.
We must assume that the court subscribes to the principles of inclusion which are described in the foregoing passages from Judge Posner, Judge Wynne, and the Judicial Conference.  We further assume that, in order to adhere to these principles, the court would expect to be presented with a range of choices for magistrate judge that truly reflects the diversity of the district’s talent pool.  If we are correct in these assumptions, then the action of the Merit Selection Panel in producing a racially-exclusive short-list does a disservice to the Court (albeit a predictable one).  It also does a disservice to the people of this district, who deserve a process which at least has a chance of producing a representative judiciary.

You, the judges of this court, are not required to appoint the next magistrate from the racially-exclusive list which has been developed by this flawed Merit Selection Panel; rather, you are authorized to select none of the names that have been submitted to you and, instead, to request the panel to go back to the drawing board and develop a new short list that reflects the district’s racial, ethnic and gender diversity.  We urge you to take this action, which is fully within your statutory authority.  Before you do so, however, we urge you to revisit the composition of the Merit Selection Panel, so that the next round of deliberations will be conducted by a panel which is better equipped to provide the court with a more representative range of choices.


Retired Judge Thelma Wyatt Moore
President, Advocacy for Action, Inc.

Former Judge Bettianne Hart
Vice President, Advocacy for Action, Inc.

Suzanne Wynn Ockleberry
Charles S. Johnson III
Co-Convenors, Advocacy for Action PAC

[1] Richard A Posner, Law, Pragmatism and Democracy 71 (2003).
[2] James A. Wynne and Eli P. Mazur, Judicial Diversity: Where Independence and Accountability Meet. 67 Albany Law Review 755 (2004).
[3] Administrative Office of the United States Courts, Office of Judge Programs, Magistrate Judges Division, The Selection, Appointment and Reappointment of United States Magistrate Judges (2010) 28.
[4] Id.