Abbott v. Veasey: Voting Rights Case Continues

Over the past few weeks, federal courts have found that Texas voter identification laws violate the Voting Rights Act (VRA). The Campaign Legal Center called the law, Senate Bill 14 (SB 14), “the nation’s strictest voter photo ID law that leaves more than half a million eligible voters who do not have the requisite types of ID from fully participating in the democratic process.” Governor Greg Abbott said the law “protects the integrity of elections,” and according to Abbot, it resulted in 50 convictions from election fraud investigations over the past decade (the CNN article makes unclear whether he meant voter fraud or election fraud. The irony is that election fraud is illegal interference from officials in the democratic process, whereas voter fraud, which is extremely rare, is when non-official people commit the crimes, specifically illegal voting).

This case started in 2012, when groups filed a lawsuit in federal court to block SB 14, and a three-judge court unanimously agreed that the law violates the VRA, is an unconstitutional burden on the right to vote, and constitutes a poll tax.

In 2015, the Fifth Circuit vacated the constitutional discrimination and poll tax claims, but affirmed the decision that SB 14 violated the VRA. They remanded for further proceedings and consideration.

En banc, the Fifth Circuit struck down the SB 14 on July 20, 2016. Judge Catharina Haynes, writing for the majority, said “although some of the evidence on which the district court relied was infirm, there remains evidence to support a finding that the cloak of ballot integrity could be hiding a more invidious purpose.

“As we have explained, the absence of direct evidence such as a ‘let’s discriminate’ email cannot be and is not dispositive.”

Haynes remanded the case back to the district court to “reevaluate the evidence and determine anew whether the Legislature acted with a discriminatory intent.”

The Supreme Court received a petition from Greg Abbott, in his capacity as Governor of Texas, asking to reverse the decision of the Fifth Circuit. This petition was filed on Sept. 23, 2016 and denied on Jan. 23, 2017.

Chief John Roberts filed a statement respecting the denial of certiorari, where he said that he believes the issues in the case will be better suited for review later because “the discriminatory purpose claim is in an interlocutory posture, having been remanded for further consideration.

On April 10, the United States District Court for the Southern District of Texas reconsidered the case after the 2016, en banc remanding. The opinion considered the following factors from the Supreme Court in Arlington Heights to consider intent to discriminate. After using the seven factors from that 2006 case, the District Court held again that SB 14 violated Section 2 of the Voting Rights Act.

Next, the case will likely go back to the appellate court and, then, the Supreme Court.

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Gorsuch Sworn In

The eminently-qualified originalist and successor to the seat of the late Antonin Scalia, 10th Circuit Judge Neil Gorsuch, was sworn in Monday, April 10. As SCOTUSblog notes, each justice has to take a constitutional and judicial oaths. Chief Justice John G. Roberts administered the constitutional oath to Gorsuch in private ceremony at the Court, and Justice Anthony Kennedy the judicial in a formal ceremony at the rose garden two hours earlier.

Gorsuch is now the 113th Justice on the Supreme Court of the United States. He is now the Junior Justice on the Court, taking over Kagan’s place as the newest justice. In a piece by The Washington Post, Kagan gave Gorsuch a face-to-face tutorial on how to be a junior justice. Each newest justice is in charge of cafeteria committee.

It might be a while until Gorsuch settles in, and even longer until he begins to make majority opinions and find his voice. However, it won’t be nearly as long as liberal justices who struggle hard to gain a majority without Justice Kennedy.

Ellen Brings Tough Topic to Stage

Late at night, dozens of students at Northeastern University gather in the third floor of Ryder Hall. They’ve packed into a studio room to watch each other act, read poems, dance, do improvisational comedy and watch a small, student-produced and directed play at the end of the night.

This is Fortnight, a biweekly event hosted by Silver Masque, a student-run theater group at Northeastern and an esoteric tradition for students who discover it.

This week’s ending play, however, is more serious than usual. The piece, Ellen, written by senior studio art major Mollie Davis, talks about a sensitive and intense issue: sexual assault. She wrote a script for her capstone, as part of a pre-production for an animated film she is currently developing.

Ellen is about the embodiment of a woman’s panic attack and the way she reckons with childhood trauma,” Davis said.

Davis asked her friend and senior environmental studies major Katra Laidlaw to voice one of the characters in her animation. Laidlaw began helping with the dramaturgy of the script and said she was inspired by the story behind Ellen. Laidlaw asked if she direct it as a play for Fortnight, alongside Monica Cole, a senior theatre major.

“Typically, the plays that [Silver Masque] do focus on different social issues but sexual abuse, and specifically childhood sexual abuse, is something that hasn’t been discussed yet,” Cole said. “That’s one of our main goals, to open up that conversation. This thing happens all the time and just goes unspoken. … We’re trying to reverse that.”

At the end of the performance on March 30, Laidlaw and Cole projected statistics from the childhood sexual abuse awareness organization Darkness to Light. According to the studies that they get their information from, one in seven girls and one in 25 boys are sexually abused before the age of 18. Other studies show that up to one in five girls and one in 20 boys are victims of such abuse.

Silver Masque gives students not only the ability to bring their ideas to stage, but practical experience in writing, directing and acting. The feedback from audience members also has its benefits. All the plays performed are student-written, student-directed and student-acted. Liam Hofmeister, vice president of Silver Masque, said that there will have been five Fortnights during the spring semester where student plays are performed. The last Fortnight is reserved specifically for seniors to perform.

Silver Masque does outreach by creating Facebook pages for each Fortnight event. Laidlaw and Cole used their Facebook event’s discussion section to post sexual violence hotline numbers and link to counseling resources, such as University Health and Counseling Services’ page on sexual violence.

With a bit of adaptation, Ellen was ready to be brought to the stage in the March 30 Fortnight. Sophomore political science major Hayley Cashman said her fellow cast members spent months preparing to bring their characters to the stage.

“We actually didn’t start acting in the space until [the week of March 23.] But we rehearsed for two months before that just talking about concepts,” said Cashman, who played Inner Parent in Ellen. “We spent so much time just defining these roles.”

Cashman also said that during one of their rehearsals the cast played therapy games in which they labeled different boxes with emotions. After describing a personal experience, each cast member threw ornaments into those boxes corresponding with that situation. Each cast member had an interest in bringing the issue of trauma and sexual assault to the Northeastern community, Cashman said.

These exercises were important not only to get every performer focusing on the topic, but also bonding between cast members. Sophomore media and screen studies major Zack McCabe said acting in Ellen allowed him to grow as an individual.

“This cast … really brought out the best in me as an actor, and challenged me in a lot of ways mentally that a lot of other productions haven’t because of the subject matter,” McCabe said.

All of the cast members ran through a rehearsal an hour before show time in the theatre lab in Ryder, where Fortnight is held. Excited, yet prepared, the actors took notes from Laidlaw and Cole minutes before doors opened to other students.

Laidlaw and Cole addressed the audience members before the performance and asked if they would share “what haunts them” anonymously on post-it notes. After the cast members read the notes, the performance began.

Ellen begins with the eponymous character, played by freshman theatre and business double major Megan Warshofsky, having a traumatic experience while working on a school project. She is then greeted by her former selves, Teen Ellen (Somaiya Rowland) and Child Ellen (Carolyn Noyes). A dark figure, known as Shadow Boy (Zack McCabe), lurks behind a door at the back of the stage. Then, as Adult Ellen is weighed down by anxiety and stress, her child self is abducted by Shadow Boy as she relives her childhood sexual abuse, heavily implied through the dialogue. The show then ends with a short video clip from a projector, displaying statistics related to childhood sexual abuse and its effects.

Although eerily silent during the 11-minute show, the crowd erupted in thunderous applause afterward. Ellen was Warshofsky’s first time performing in Silver Masque, or any Northeastern production.

“I definitely thought this was an amazing experience. I’ve never gotten up in front of all my peers in my department before,” Warshofsky said. “If we can reach out to anyone who needed this or it made people think about this issue more than they had in the past, that’s an accomplishment.”

Laidlaw and Cole voiced similar aspirations.

“Ultimately,” Laidlaw said, “we’re hoping that people who have experienced trauma in many different forms can try and see this as a way to seek the help that they need.”

 

 

Hernandez v. Mesa: Does the Fourth Stop at the border?

One of the most important cases is one pushing the borders of the Fourth Amendment. This case, Hernandez v. Mesa, which was argued on Feb. 21, 2017, before the Supreme Court also tests the application of the Fourth at America’s borders.

Here’s the gist of the case. In June 2010, Sergio Adrian Hernandez Guereca, a 15-year-old Mexican youth was playing soccer on the Mexican side of the border at a culvert that separates El Paso, Texas from Juarez, Mexico. U.S. Border Patrol Agent Jesus Mesa Jr. arrived at the border and detained one of Hernandez’s friends at the United States side of the border.

Attorneys said that Hernandez retreated to the Mexican side of the culvert, which is maintained by both the United States and Mexico. Hernandez was taking cover behind a pillar of a bridge going over the culvert when he was fatally shot by Mesa. Cell phone video taken at the time of the shooting is available, but is gruesome. The  country of Mexico formally charged Mesa with murder and asked for him to be extradited, a request the United States refused.

Six months after the death, the Hernandez family filed a lawsuit against Mesa in the federal district court in Texas, and the case made it’s way to Court of Appeals for the Fifth Circuit. The petitions to the case, the Hernandez family, appealed after having lost an en banc review by the Fifth Circuit, and the Supreme Court granted cert. Three questions have come up in the case, two of which are directly asked in the petition for writ of certiorari. Those questions are:

  1. Does a formalist or functionalist analysis govern the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States?
  2. May qualified immunity be granted or denied based on facts—such as the victim’s legal status—unknown to the officer at the time of the incident?
  3. Can the claim in this case be properly asserted under Bivens v. Six Unknown Fed. Narcotics Agents, which governs when federal agents may be liable for damages for violating an individual’s constitutional right?

The appellate court held that the Fifth Amendment protections applied in these circumstances, but not Fourth Amendment, or specifically Bivens cases where an implied cause of action exists for violations of Fourth Amendment rights. The court also held that Mesa was not subject to qualified immunity for his actions.

In a rare en banc review of the case, the Fifth Circuit ruled that Mesa did have qualified immunity and that the Fourth Amendment protections did not apply. They also refused to answer the Fifth Amendment question answered in earlier review.

The facts-based, practical approach of the petitioner’s argument, resting on Boumediene v. Bush to assert that Constitutional protections are sourced from “practical concerns.” However, this rationale may fall flat because facts are quite different (Boumediene had to do with Guantanamo Bay, where the U.S. had de facto jurisdiction even though Cuba had de jure sovereignty, as opposed to here, where the officer was in U.S. jurisdiction, but the boy was shot in Mexico). The “lawlessness” argument that the Hernandez family’s lawyer has made, where concerns are voiced about giving too much freedom to border agents to act in a lawless manner, may be appealing, but the appellate court, specifically Judge Edith Jones in her concurrence, did not take to it. Ultimately, it is up to the Court to decide, and, as Ian Samuel and Dan Epps mention in their First Mondays podcast in the episode No. 15 of the October Term of 2016, the lawyer for the Hernandez family did exceptionally poor at oral argument.

Gorsuch hearings fail to impress

Following the all too common trend in modern Supreme Court confirmation hearings, Gorsuch’s appearance before the Senate Judiciary Committee were a continuation of the politicization of our judicial system. Ever since Robert Bork’s famously caustic hearings took place in the 1980s, there has been an increasing politicization of our nomination process for Supreme Court nominees. Bork’s hearings, in a Democratic-majority Congress at the end of Reagan’s presidency, resulted in denial of his nomination from the Senate, 42-58. Unlike the current nomination, Gorsuch’s hearings have not been a substantive discussion on what our country wants from a justice. This is because nominees are reluctant to answer, in order to avoid being “borked.”

Gorsuch’s nomination as expected, contained plenty of Democrats trying to ask gotcha questions and Republicans asking softballs. When confronted with important precedent, Gorsuch had plenty of “The Court has said … ,” a gentle nod that nominees do not like the precedent but give the appearance that they will uphold. The problem with these types of discussions is, no one knows if they will. When confronted with Brown v. Board, Gorsuch was more than happy to call it a “one of the shining moments in our constitutional history.” However, when confronted with Lawrence v. Texas, a 2003 Supreme Court case about anti-sodomy laws that were really about anti-homosexuality, Gorsuch stated to Senator Richard Blumenthal, D-Connecticut, that he would give the same answer as he had about other precedents, namely that it was settled law according to precedent. That hasn’t, however, settled the fears that have arisen from other justices who have hastily overturned precedent regardless of promises to do the opposite. The concern for this comes from a dissertation that Gorsuch wrote where he seemed to take a stance that opposed rights for same-sex couples, rights to autonomy, and rights to privacy. In it, he states that “State laws against bigamy, gay marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity” are all at risk if we take seriously what Justice Scalia derided as Casey’s “famed sweet-mystery-of-life passage.” This is, of course, referencing the 1992 abortion case Planned Parenthood v. Casey.

Among my favorite softball questions were, as Time Magazine documents:

  • “What is the answer to the ultimate question of life, the universe, and everything?” – Senator Ted Cruz, R-Texas.
  • “Would you tell me where your favorite fishing stream is?” – Senator Mike Crapo, R-Idaho.
  • “Would [you] rather fight 100 duck-sized horses or one horse-sized duck?” – Senator Jeff Flake, R-Arizona.
  • “Does a good judge decide who should win and then work backward to try to justify the outcome?” – Senator John Cornyn, R-Texas.

The blame is not totally on Gorsuch’s shoulders. Our senators, our rampant media coverage, and even we are somewhat to blame for this situation. But, the lack of substance, the proliferation of softball questions, and the many more difficult ones unanswered leaves me unsatisfied.

Pavement Coffee House Makes Reliable Choice for NU Students

Right by the Symphony Green Line T-stop, Pavement Coffee House’s Gainsborough location is a reliable, convenient location for Northeastern Students. A regular cup of coffee at Pavement will run you $2.50 plus tax, slightly above the cost of Starbucks coffee. They offer hot and iced coffees, hot and iced teas, lattes, espressos, hot chocolate and cappuccinos. They also sell a variety of baked goods, such as bagels, sandwiches and granola (with milk or yogurt.)

Pavement is also quite busy on weekends, as many students come to study. Luckily, lines move fast at the coffee house, so you won’t have to wait long.

“For me, its a study place. I like the busy environment,” said Abdulrahman Alharbi, a senior and mechanical engineering student at Northeastern. Out of anything on the menu, Alharbi said he recommends the bagels. “It’s not a New York bagel, but it’s the best in Boston.”

For some, Pavement is even an every day affair, like for Northeastern freshman and marketing major Caroline Klay. Her favorite drink is the cappuccino.

“It’s really convenient instead of being stuck in the library,” Klay said. “Normally I can’t work in busy environments, but here I can tune it out.”

Overall, Pavement has a lively, ebullient atmosphere where people of all walks of life can come and enjoy good coffee. It’s not a bank-breaking experience, but you pay for more than just coffee, so I would suggest sticking and enjoying the uplifting environment. I tried the iced coffee, which was $2.94 with tax. It was pretty good. It wasn’t the strongest coffee I’ve ever had, but it definitely was a delight, and I plan on coming back soon.

—–

Address: 44 Gainsborough Street, Boston, Mass. 02115

Hours: Monday-Sunday: 7 a.m. – 8 p.m.

Phone: 617-859-7080

Handicapped-Accessible: Yes

Website: http://www.pavementcoffeehouse.com

Other Locations: Allston, Boylston Street, Commonwealth Avenue, Fenway Street, Newbury Street

Final Project: Silver Masque Hosts Student-Created Act Ellen

Late in the night on every other Thursday, students from Northeastern University gather into Ryder Hall. They are going to hidden Northeastern experience, Silver Masque, a completely student-run theatre event. On any given night, students will perform 9 to 10 different pieces, ranging from performing a song they find inspirational or they created to participating in the regular improvisational-comedy segment of the night. At the end of each Fortnight is usually a small one-act play that gives students the ability to write, direct and act in an miniature production. For my final project I want to cover Silver Masque, with a focus on the opportunities it affords to theatre students on campus.

To demonstrate this, I’ll be covering the production of Ellen, an original play written by Mollie Davis, a Northeastern student. The play will be directed by students as well, Katra Laidlaw and Monica Cole. The play will be performed at the March 30 Fortnight.

I was hoping to use the video to talk to the directors and writer of Ellen, as well as leaders of Silver Masque about the opportunities the event offers; the photo story would focus on the actors and their performance during the show; and the written story will tell somewhat of an intertwining story between the play itself and the help that Silver Masque offers to those wanting to sharpen their theatre skills.

 

Helpful Legal Definitions, List 1

I figured for this week, I would share some important legal terms that often confuse people reading decisions. Most of these are Latin, and judges and justices will often include these because they describe things, situations or conditions in technical terms.

  • de jure: As applied by law; as set up by law. This is often used in three contexts: de jure government, de jure corporations or de jure segregation. De jure government is one that has legal legitimacy and is recognized by other states. A de jure corporation is one which has followed all legal provisions in the state that it exists to establish itself as a corporation. De jure segregation would be legalized segregation, or segregation of races set up explicitly by black-letter law.
  • de facto: As opposed to de jure, de facto means as a matter of fact, usually this is explicitly not set up by law (and very well may be illegal or illegitimate), but something that still exists none the less. So a de facto government would be one which is perhaps not recognized by others, but still has authority. De facto segregation is one which is not set up by law, but where races are still segregated in fact.
  • ipse dixit: A type of fiat statement, one which relies on the authority of the person who speaks it. Scalia famously lampooned against judicial fiat and said “he who lives by the ipse dixit dies by the ipse dixit.”
  • prima facie: literally meaning “on the first appearance;” Something taken at face value, assumed to be true unless it is proven false.To avoid dismissal, parties to cases will often have to provide a prima facie case, not undeniable proof but just something that proves to the judge that a case is there and worthy of further litigation.
  • dictum: A statement, comment or opinion that is not directly related to the holding of a case, and therefore has no binding authority as precedent. These are often asides, analogies or examples as way of illustration that help to make the judge’s case. Plural is dicta.
  • holding: As opposed to dicta, holdings are legal principle derived from cases. The part of an opinion that is binding as precedent, usually the sections where the law is applied to the facts of the case.
  • per se: As a nature of being, intrinsically, known without any need for proof. For example, in libel law, there are certain ideas you can communicate that are libel per se. These are things like saying a person has an venereal disease, or is a convicted felon. If you cannot prove truth, then you are subject to libel law because the content is simply assumed to be libelous.
  • per quod: In regard to slander, it means for the plaintiff to receive special damages they must provide proof; In regard to libel, a claim that requires additional proof in order to show culpability. This phrase generally denotes a harmful statement, but is not intrinsically libelous.

 

I hope these definitions helped to explain certain concepts that jurists often use swiftly and with impunity. As I find more, I’ll keep pushing these out to help make decisions more accessible.

Stare decisis, Cornerstone of Common Law

One of the first terms any western law student becomes familiar with is the notion of stare decisis, latin for “to stand by things decided.” Stare decisis is the encapsulation of the Common Law system, which gains much of its stability from precedent, or the notion that courts generally follow previous rulings. It allows for both the accumulation of wisdom and knowledge on many topics of the law, but also makes judging infinitely more efficient.

Whenever any person is nominated to the Supreme Court, you can almost guarantee that they will mention their reverence to stare decisis. Chief Justice John Roberts talked a great deal during his confirmation about stare decisis, and compared judges to umpires. “Umpires don’t make the rules; they apply them.”

That said, precedent is not an “inexorable command,” as the late Chief Justice William Rehnquist said. Stare decisis for lower courts is binding, and judges are usually required to follow it. (There is wiggle room here, as a judge could say that current facts are significantly different enough from those of previous cases to warrant departure from precedent.)  The Supreme Court, however, plays with a different handbook, to continue the baseball analogy. Northeastern Law School Professor Dan Urman said the only thing preventing the Court from overturning its precedent is “norms” and “shame.”  And he’s right. The Court has, in recent years, turned over numerous precedents.

Overturning precedent can happen when a previous decision is seen as totally unjust and unworkable, and when social conditions change so significantly to warrant it. And the latter is responsible for some of the most famous cases in history. Brown v. Board of Education overturned Plessy v. Ferguson and made segregation unconstitutional. Lawrence v. Texas overturned Bowers v. Hardwick, which ruled that sodomy laws were constitutional. Lastly, Obergefell v. Hodges legalized same-sex marriage and overruled Baker v. Nelson, in which the Court of 1972 dismissed a case about same-sex marriage “for want of a substantial federal question.”

Although precedent leads to a great amount of stability in our legal system, it’s obvious that, at times, it must be set aside for the cause of justice.

Boston Law Professors Discuss Gorsuch Nomination

Federal appellate judge Neil Gorsuch, having been nominated to the Supreme Court, will have to stand before the Senate Judiciary Committee later this year. If confirmed he will fill the seat left empty by the passing of Antonin Scalia. Like Scalia, Gorsuch is a committed textualist and originalist. They do have some key differences, in administrative law for example.

We talked to law professors in the Boston area to see what they thought about Gorsuch and his jurisprudence. We talked to Professor Daniel Urman of Northeastern University Law School, Renée Landers of Suffolk University Law School, and Ian Samuel, Harvard Law School professor and former clerk to Antonin Scalia during the October 2012 term. Samuel said the biggest question surrounding Gorsuch is whether he will support a strong, independent judiciary to restrain executive power from excess.