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As I understand it, it's some pretty crap reasoning by PA Supreme Court: - Prosecutor #1 publicly announces that he will not ever charge Cosby for the rapes. His claimed purpose for this is that he doesn't think there's enough evidence to get a conviction and he wants to induce Cosby to not take the 5th in a civil suit. - Cosby testifies in civil suit and doesn't take the 5th - Prosecutor #2 charges Cosby It's undisputed that Prosecutor #1 had no authority to offer any kind of immunity, and that this was not legally murky at the time. A trial court concluded that there was no agreement reached between Prosecutor #1 and Cosby. Cosby also had a full fancy legal team for the civil suit and knew or should have known that the DA had no ability to offer immunity. But Cosby not taking the 5th will be interpreted as him relying on the clearly invalid immunity offer instead of being a (failed) trial strategy, and this somehow makes the invalid immunity binding on Pennsylvania.
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Jul 1, 2021 07:06
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And the case deals with state law, not federal (even though it involved him not invoking his rights under the Fifth Amendment), so SCOTUS is probably going to say they lack jurisdiction and decline to hear the case.
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Jul 1, 2021 07:25
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It wasn’t Cosby’s responsibility to second-guess what authority this specific prosecutor actually had. Prosecutors do frequently have that authority, and this prosecutor appeared to be both asserting and exercising it. Even if someone specifically knew that this prosecutor didn’t have that authority, it would be reasonable to think that they might be speaking with the approval of someone who did. If the government wanted to fix the mistake, they had a duty to make sure Cosby knew he didn’t have immunity before he acted on that assumption. Instead they let him testify and then jumped out and said “gotcha”; it’s unacceptable even if it wasn’t planned out from the start. Testifying without a written immunity agreement wasn’t the most prudent thing to do, but people are not obligated to behave as perfectly prudently as a lawyer would like or else lose all protection.
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Jul 1, 2021 09:49
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I'm not seeing how "I don't think I have enough evidence to convict you so I'm not going to charge you" = "You cannot and will not ever be charged" especially with the defendant having a whole team of high powered lawyers who should absolutely not have assumed an immunity deal without a legally binding document.
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Jul 1, 2021 10:27
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I can believe that a DA without the power to offer an immunity deal could present the impression of an immunity deal to an unsavvy defendant and take advantage of them. I cannot believe that Bill loving Cosby is that defendant.
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Jul 1, 2021 10:32
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rjmccall posted:It wasn’t Cosby’s responsibility to second-guess what authority this specific prosecutor actually had. Prosecutors do frequently have that authority, and this prosecutor appeared to be both asserting and exercising it. Even if someone specifically knew that this prosecutor didn’t have that authority, it would be reasonable to think that they might be speaking with the approval of someone who did. If the government wanted to fix the mistake, they had a duty to make sure Cosby knew he didn’t have immunity before he acted on that assumption. Instead they let him testify and then jumped out and said “gotcha”; it’s unacceptable even if it wasn’t planned out from the start. Who the hell on earth would take some statement at a press conference as LEGAL IMMUNITY? That's an absurd assumption, and its absurd that the Penn State Supreme Court was willing to interpret it that way.
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Jul 1, 2021 10:39
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rjmccall posted:It wasn’t Cosby’s responsibility to second-guess what authority this specific prosecutor actually had. Prosecutors do frequently have that authority, and this prosecutor appeared to be both asserting and exercising it. Even if someone specifically knew that this prosecutor didn’t have that authority, it would be reasonable to think that they might be speaking with the approval of someone who did. If the government wanted to fix the mistake, they had a duty to make sure Cosby knew he didn’t have immunity before he acted on that assumption. Instead they let him testify and then jumped out and said “gotcha”; it’s unacceptable even if it wasn’t planned out from the start. I don't know, remember that case where they decided that the right to remain silent doesn't attach until you actually assert it verbally? Or how it's perfectly legal for cops to tell you to just confess and they'll let you go and then charge you if you do? Or the whole host of other lies police are allowed to tell to get you to incriminate yourself? Was there an actual legal finding in the civil case that he couldn't invoke the fifth? Or did he simply never assert it because he thought a press release was a legally binding agreement?
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Jul 1, 2021 10:48
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I am pretty sure the PA supreme court ruled the other way in a similar situation when the defendant was poor.
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Jul 1, 2021 12:48
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VitalSigns posted:I am pretty sure the PA supreme court ruled the other way in a similar situation when the defendant was poor. Yeah their holding is very narrowly tailored to just apply to pretty much only Cosby and no one else ever. There would have to be a pretty unlikely confluence of events for someone to be able to rely on this case as precedent for a future overturn.
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Jul 1, 2021 13:54
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rjmccall posted:Testifying without a written immunity agreement wasn’t the most prudent thing to do, but people are not obligated to behave as perfectly prudently as a lawyer would like or else lose all protection. They certainly are if they are poor, where the accused have to affirmatively claim their rights with sufficiently specific terminology. And certainly verbal agreements during interrogation aren't enforced for poor accused.
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Jul 1, 2021 15:09
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https://twitter.com/mjs_DC/status/1410599444731465732?s=20 It's cool that because this is a non-partisan body full of impartial justices you can't tell exactly how bad this is going to be based on "6-3 written by Alito". edit: hahahahaha pack the loving court you assholes https://twitter.com/mjs_DC/status/1410602658323255300?s=20 Groovelord Neato fucked around with this message at 15:15 on Jul 1, 2021 |
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Jul 1, 2021 15:12
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rjmccall posted:It wasn’t Cosby’s responsibility to second-guess what authority this specific prosecutor actually had. Prosecutors do frequently have that authority, and this prosecutor appeared to be both asserting and exercising it. Even if someone specifically knew that this prosecutor didn’t have that authority, it would be reasonable to think that they might be speaking with the approval of someone who did. If the government wanted to fix the mistake, they had a duty to make sure Cosby knew he didn’t have immunity before he acted on that assumption. Instead they let him testify and then jumped out and said “gotcha”; it’s unacceptable even if it wasn’t planned out from the start. This is wrong for a number of reasons. First: what authority the DA has is set by law. He needs a court order to grant immunity. It's not about did his superior stamp the form: it's about did he ask a judge to issue the order. It is not reasonable to believe that the DA sought and obtained that order if you are unaware of its existence. Second: Cosby had lawyers, and plenty of time, to analyze the import of the DA's press release and make a decision about if he should invoke the 5th amendment in his civil trial. Expensive lawyers, plural, with plenty of time to look at that specific issue. Third: the PA Supreme Court specifically declined to extend this same protection (immunity from being charged) to a criminal defendant who was lied to by the police - a situation where the target of the lie was (likely) not represented by counsel and was certainly not given months to consider it. People are held to understanding what the law is and informing themselves all the time, even if they don't know what it is. It would be one thing if this sort of rationale was consistently applied - but it is not (just try using that defense about contracts you breezed through without reading). And this case, where he had expensive advice of counsel with more than enough time to research the details, he should not be able to go "oh my bad". Being asked to behave "like a lawyer" when he consulted with lawyers who had more than enough time to investigate the issue is perfectly reasonable. evilweasel fucked around with this message at 15:44 on Jul 1, 2021 |
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Jul 1, 2021 15:35
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evilweasel posted:Third: the PA Supreme Court specifically declined to extend this same protection (immunity from being charged) to a criminal defendant who was lied to by the police - a situation where the target of the lie was (likely) not represented by counsel and was certainly not given months to consider it. Prosecutors are "officers of the court" and held to a different standard than cops who are legally considered lying bastards so that seems pretty different. I suspect a prosecutor that played those games would have blown up the case with a "poor" defendant too. Now, that a prosecutor would not have a chance to blow up a non celebrity case because there wouldn't be press conferences or anything is a separate issue...
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Jul 1, 2021 15:51
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Groovelord Neato posted:edit: hahahahaha pack the loving court you assholes Neither ruling is surprising in how it turned out and are predictably utterly monstrous in both their interpretations and reasoning. Separate But Equal is back, baby!
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Jul 1, 2021 15:59
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hobbesmaster posted:Prosecutors are "officers of the court" and held to a different standard than cops who are legally considered lying bastards so that seems pretty different. I suspect a prosecutor that played those games would have blown up the case with a "poor" defendant too. That's not a relevant factor the court considered. The distinction that the court drew between the two was that in the case of the poor defendant he could argue that the evidence against him should be suppressed and that would fix it; but because cosby had relied to his detriment by testifying in his civil case without pleading the 5th, the state must be held to the DA's statement. The problem is the poor defendant gave evidence against someone else and thereby similarly lost his ability to get a better deal from the prosecutor like cosby lost a chance to invoke the 5th to avoid giving evidence in his civil case.
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Jul 1, 2021 16:03
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Taerkar posted:Neither ruling is surprising in how it turned out and are predictably utterly monstrous in both their interpretations and reasoning. lochner and plessy revivals in the same session!
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Jul 1, 2021 16:05
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https://twitter.com/jaywillis/status/1410612149735497728?s=21
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Jul 1, 2021 16:05
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https://twitter.com/craigcaplan/status/1410618948194902020?s=21
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Jul 1, 2021 17:01
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 Opinions! 1 of 2 for July 1, and we’re done with October Term 2020. BRNOVICH, ATTORNEY GENERAL OF ARIZONA, ET AL. v. DEMOCRATIC NATIONAL COMMITTEE ET AL. TLDR: Arizona can refuse to count a ballot case in the wrong precinct and can make it a crime for third parties to collect absentee ballots. 6-3 liberals lose voting rights cases. Holding / Majority Opinion (Alito) In these cases, we are called upon for the first time to apply §2 of the Voting Rights Act of 1965 to regulations that govern how ballots are collected and counted. Arizona law generally makes it very easy to vote. All voters may vote by mail or in person for nearly a month before election day, but Arizona imposes two restrictions that are claimed to be unlawful. First, in some counties, voters who choose to cast a ballot in person on election day must vote in their own precincts or else their ballots will not be counted. Second, mailin ballots cannot be collected by anyone other than an election official, a mail carrier, or a voter’s family member, household member, or caregiver. … Congress enacted the landmark Voting Rights Act of 1965, in an effort to achieve at long last what the Fifteenth Amendment had sought to bring about 95 years earlier: an end to the denial of the right to vote based on race. Ratified in 1870, the Fifteenth Amendment provides in §1 that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Section 2 of the Amendment then grants Congress the “power to enforce [the Amendment] by appropriate legislation.” Despite the ratification of the Fifteenth Amendment, the right of African-Americans to vote was heavily suppressed for nearly a century. States employed a variety of notorious methods, including poll taxes, literacy tests, property qualifications, “‘white primar[ies],’” and “‘grandfather clause[s].’” Challenges to some blatant efforts reached this Court and were held to violate the Fifteenth Amendment. … Invoking the power conferred by §2 of the Fifteenth Amendment, Congress enacted the Voting Rights Act (VRA) to address this entrenched problem. The Act and its amendments in the 1970s specifically forbade some of the practices that had been used to suppress black voting. … What is now §2(b) was added [during Senate-House negotiations in 1982], and that provision sets out what must be shown to prove a §2 violation. It requires consideration of “the totality of circumstances” in each case and demands proof that “the political processes leading to nomination or election in the State or political subdivision are not equally open to participation” by members of a protected class “in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Reflecting the Senate Judiciary Committee’s stated focus on the issue of vote dilution, this language was taken almost verbatim from [SCOTUS vote-dilution case] White. … In the years since [first post-amendment vote-dilution SCOTUS case] Gingles, we have heard a steady stream of §2 vote-dilution cases,5 but until today, we have not considered how §2 applies to generally applicable time, place, or manner voting rules. In recent years, however, such claims have proliferated in the lower courts. The present dispute concerns two features of Arizona voting law, which generally makes it quite easy for residents to vote. All Arizonans may vote by mail for 27 days before an election using an “early ballot.” No special excuse is needed, and any voter may ask to be sent an early ballot automatically in future elections. In addition, during the 27 days before an election, Arizonans may vote in person at an early voting location in each county. And they may also vote in person on election day. Each county is free to conduct election-day voting either by using the traditional precinct model or by setting up “voting centers.” Voting centers are equipped to provide all voters in a county with the appropriate ballot for the precinct in which they are registered, and this allows voters in the county to use whichever vote center they prefer. The regulations at issue in this suit govern precinct-based election-day voting and early mail-in voting. Voters who choose to vote in person on election day in a county that uses the precinct system must vote in their assigned precincts. If a voter goes to the wrong polling place, poll workers are trained to direct the voter to the right location. If a voter finds that his or her name does not appear on the register at what the voter believes is the right precinct, the voter ordinarily may cast a provisional ballot. That ballot is later counted if the voter’s address is determined to be within the precinct. But if it turns out that the voter cast a ballot at the wrong precinct, that vote is not counted. For those who choose to vote early by mail, Arizona has long required that “[o]nly the elector may be in possession of that elector’s unvoted early ballot.” In 2016, the state legislature enacted House Bill 2023 (HB 2023), which makes it a crime for any person other than a postal worker, an elections official, or a voter’s caregiver, family member, or household member to knowingly collect an early ballot—either before or after it has been completed. In 2016, the Democratic National Committee and certain affiliates brought this suit and named as defendants (among others) the Arizona attorney general and secretary of state in their official capacities. Among other things, the plaintiffs claimed that both the State’s refusal to count ballots cast in the wrong precinct and its ballot-collection restriction “adversely and disparately affect Arizona’s American Indian, Hispanic, and African American citizens,” in violation of §2 of the VRA. In addition, they alleged that the ballot-collection restriction was “enacted with discriminatory intent” and thus violated both §2 of the VRA and the Fifteenth Amendment. … We begin with two preliminary matters. Secretary of State Hobbs contends that no petitioner has Article III standing to appeal the decision below as to the out-of-precinct policy, but we reject that argument. All that is needed to entertain an appeal of that issue is one party with standing, and we are satisfied that Attorney General Brnovich fits the bill. … Second, we think it prudent to make clear at the beginning that we decline in these cases to announce a test to govern all VRA §2 claims involving rules, like those at issue here, that specify the time, place, or manner for casting ballots. Each of the parties advocated a different test, as did many amici and the courts below. … We start with the text of VRA §2. It now provides: “(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f )(2) of this title, as provided in subsection (b). “(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” … Section 2(a), as noted, omits the phrase “to deny or abridge the right . . . to vote on account of race or color,” which the Bolden plurality had interpreted to require proof of discriminatory intent. In place of that language, §2(a) substitutes the phrase “in a manner which results in a denial or abridgement of the right . . . to vote on account of race or color.” We need not decide what this text would mean if it stood alone because §2(b), which was added to win Senate approval, explains what must be shown to establish a §2 violation. Section 2(b) states that §2 is violated only where “the political processes leading to nomination or election” are not “equally open to participation” by members of the relevant protected group “in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” The key requirement is that the political processes leading to nomination and election (here, the process of voting) must be “equally open” to minority and non-minority groups alike, and the most relevant definition of the term “open,” as used in §2(b), is “without restrictions as to who may participate,” or “requiring no special status, identification, or permit for entry or participation.” What §2(b) means by voting that is not “equally open” is further explained by this language: “in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” … Putting these terms together, it appears that the core of §2(b) is the requirement that voting be “equally open.” The statute’s reference to equal “opportunity” may stretch that concept to some degree to include consideration of a person’s ability to use the means that are equally open. But equal openness remains the touchstone. One other important feature of §2(b) stands out. The provision requires consideration of “the totality of circumstances.” Thus, any circumstance that has a logical bearing on whether voting is “equally open” and affords equal “opportunity” may be considered. We will not attempt to compile an exhaustive list, but several important circumstances should be mentioned. First, the size of the burden imposed by a challenged voting rule is highly relevant...because voting necessarily requires some effort and compliance with some rules, the concept of a voting system that is “equally open” and that furnishes an equal “opportunity” to cast a ballot must tolerate the “usual burdens of voting.” Mere inconvenience cannot be enough to demonstrate a violation of §2. … For similar reasons, the degree to which a voting rule departs from what was standard practice when §2 was amended in 1982 is a relevant consideration. Because every voting rule imposes a burden of some sort, it is useful to have benchmarks with which the burdens imposed by a challenged rule can be compared. The burdens associated with the rules in widespread use when §2 was adopted are therefore useful in gauging whether the burdens imposed by a challenged rule are sufficient to prevent voting from being equally “open” or furnishing an equal “opportunity” to vote in the sense meant by §2. Therefore, it is relevant that in 1982 States typically required nearly all voters to cast their ballots in person on election day and allowed only narrow and tightly defined categories of voters to cast absentee ballots. … The size of any disparities in a rule’s impact on members of different racial or ethnic groups is also an important factor to consider. Small disparities are less likely than large ones to indicate that a system is not equally open. … Next, courts must consider the opportunities provided by a State’s entire system of voting when assessing the burden imposed by a challenged provision. This follows from §2(b)’s reference to the collective concept of a State’s “political processes” and its “political process” as a whole. Thus, where a State provides multiple ways to vote, any burden imposed on voters who choose one of the available options cannot be evaluated without also taking into account the other available means. Finally, the strength of the state interests served by a challenged voting rule is also an important factor that must be taken into account. As noted, every voting rule imposes a burden of some sort, and therefore, in determining “based on the totality of circumstances” whether a rule goes too far, it is important to consider the reason for the rule. Rules that are supported by strong state interests are less likely to violate §2. One strong and entirely legitimate state interest is the prevention of fraud….Ensuring that every vote is cast freely, without intimidation or undue influence, is also a valid and important state interest. ... The interpretation set out above follows directly from what §2 commands: consideration of “the totality of circumstances” that have a bearing on whether a State makes voting “equally open” to all and gives everyone an equal “opportunity” to vote. The dissent, by contrast, would rewrite the text of §2 and make it turn almost entirely on just one circumstance—disparate impact. That is a radical project, and the dissent strains mightily to obscure its objective. … In light of the principles set out above, neither Arizona’s out-of-precinct rule nor its ballot-collection law violates §2 of the VRA. Arizona’s out-of-precinct rule enforces the requirement that voters who choose to vote in person on election day must do so in their assigned precincts. Having to identify one’s own polling place and then travel there to vote does not exceed the “usual burdens of voting.” On the contrary, these tasks are quintessential examples of the usual burdens of voting. Not only are these unremarkable burdens, but the District Court’s uncontested findings show that the State made extensive efforts to reduce their impact on the number of valid votes ultimately cast. The State makes accurate precinct information available to all voters. When precincts or polling places are altered between elections, each registered voter is sent a notice showing the voter’s new polling place. Arizona law also mandates that election officials send a sample ballot to each household that includes a registered voter who has not opted to be placed on the permanent early voter list, and this mailing also identifies the voter’s proper polling location. In addition, the Arizona secretary of state’s office sends voters pamphlets that include information (in both English and Spanish) about how to identify their assigned precinct. … Next, the racial disparity in burdens allegedly caused by the out-of-precinct policy is small in absolute terms. The District Court accepted the plaintiffs’ evidence that, of the Arizona counties that reported out-of-precinct ballots in the 2016 general election, a little over 1% of Hispanic voters, 1% of African-American voters, and 1% of Native American voters who voted on election day cast an out-of-precinct ballot. Ibid. For non-minority voters, the rate was around 0.5%. A policy that appears to work for 98% or more of voters to whom it applies—minority and non-minority alike—is unlikely to render a system unequally open. … In light of the modest burdens allegedly imposed by Arizona’s out-of-precinct policy, the small size of its disparate impact, and the State’s justifications, we conclude the rule does not violate §2 of the VRA. … HB 2023 likewise passes muster under the results test of §2. Arizonans who receive early ballots can submit them by going to a mailbox, a post office, an early ballot drop box, or an authorized election official’s office within the 27-day early voting period. They can also drop off their ballots at any polling place or voting center on election day, and in order to do so, they can skip the line of voters waiting to vote in person. Making any of these trips—much like traveling to an assigned polling place—falls squarely within the heartland of the “usual burdens of voting.” And voters can also ask a statutorily authorized proxy—a family member, a household member, or a caregiver—to mail a ballot or drop it off at any time within 27 days of an election. … The plaintiffs were unable to provide statistical evidence showing that HB 2023 had a disparate impact on minority voters. Instead, they called witnesses who testified that third-party ballot collection tends to be used most heavily in disadvantaged communities and that minorities in Arizona—especially Native Americans—are disproportionately disadvantaged. But from that evidence the District Court could conclude only that prior to HB 2023’s enactment, “minorities generically were more likely than non-minorities to return their early ballots with the assistance of third parties.” How much more, the court could not say from the record. Ibid. Neither can we. And without more concrete evidence, we cannot conclude that HB 2023 results in less opportunity to participate in the political process. Even if the plaintiffs had shown a disparate burden caused by HB 2023, the State’s justifications would suffice to avoid §2 liability. “A State indisputably has a compelling interest in preserving the integrity of its election process.” Limiting the classes of persons who may handle early ballots to those less likely to have ulterior motives deters potential fraud and improves voter confidence. That was the view of the bipartisan Commission on Federal Election Reform chaired by former President Jimmy Carter and former Secretary of State James Baker. … The Commission warned that “[v]ote buying schemes are far more difficult to detect when citizens vote by mail,” and it recommended that “States therefore should reduce the risks of fraud and abuse in absentee voting by prohibiting ‘third-party’ organizations, candidates, and political party activists from handling absentee ballots.” Ibid. The Commission ultimately recommended that States limit the classes of persons who may handle absentee ballots to “the voter, an acknowledged family member, the U. S. Postal Service or other legitimate shipper, or election officials.” … As with the out-of-precinct policy, the modest evidence of racially disparate burdens caused by HB 2023, in light of the State’s justifications, leads us to the conclusion that the law does not violate §2 of the VRA. We also granted certiorari to review whether the Court of Appeals erred in concluding that HB 2023 was enacted with a discriminatory purpose. The District Court found that it was not, and appellate review of that conclusion is for clear error. If the district court’s view of the evidence is plausible in light of the entire record, an appellate court may not reverse even if it is convinced that it would have weighed the evidence differently in the first instance. “Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” The District Court’s finding on the question of discriminatory intent had ample support in the record. … The court noted, among other things, that HB 2023’s enactment followed increased use of ballot collection as a Democratic get-out-the-vote strategy and came “on the heels of several prior efforts to restrict ballot collection, some of which were spearheaded by former Arizona State Senator Don Shooter.” [The legislative debate following Shooter’s election], the District Court concluded, was sincere and led to the passage of HB 2023 in 2016. Proponents of the bill repeatedly argued that mail-in ballots are more susceptible to fraud than in-person voting. The bill found support from a few minority officials and organizations, one of which expressed concern that ballot collectors were taking advantage of elderly Latino voters. And while some opponents of the bill accused Republican legislators of harboring racially discriminatory motives, that view was not uniform. One Democratic state senator pithily described the “‘problem’” HB 2023 aimed to “‘solv[e]’” as the fact that “‘one party is better at collecting ballots than the other one.’” We are more than satisfied that the District Court’s interpretation of the evidence is permissible. The spark for the debate over mail-in voting may well have been provided by one Senator’s enflamed partisanship, but partisan motives are not the same as racial motives. The District Court noted that the voting preferences of members of a racial group may make the former look like the latter, but it carefully distinguished between the two. And while the District Court recognized that the “racially-tinged” video helped spur the debate about ballot collection, it found no evidence that the legislature as a whole was imbued with racial motives. … Arizona’s out-of-precinct policy and HB 2023 do not violate §2 of the VRA, and HB 2023 was not enacted with a racially discriminatory purpose. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Alito, joined by Roberts, Thomas, Gorsuch, Kavanaugh, and Barrett. Concurrence by Gorsuch, joined by Thomas. Dissent by Kagan, joined by Breyer and Sotomayor. Concurrence (Gorsuch, joined by Thomas) I join the Court’s opinion in full, but flag one thing it does not decide. Our cases have assumed—without deciding— that the Voting Rights Act of 1965 furnishes an implied cause of action under §2. Lower courts have treated this as an open question. Because no party argues that the plaintiffs lack a cause of action here, and because the existence (or not) of a cause of action does not go to a court’s subject-matter jurisdiction, this Court need not and does not address that issue today. Dissent (Kagan, joined by Breyer and Sotomayor) If a single statute represents the best of America, it is the Voting Rights Act. It marries two great ideals: democracy and racial equality. And it dedicates our country to carrying them out. Section 2, the provision at issue here, guarantees that members of every racial group will have equal voting opportunities. Citizens of every race will have the same shot to participate in the political process and to elect representatives of their choice. They will all own our democracy together—no one more and no one less than any other. If a single statute reminds us of the worst of America, it is the Voting Rights Act. Because it was—and remains—so necessary. Because a century after the Civil War was fought, at the time of the Act’s passage, the promise of political equality remained a distant dream for African American citizens. Because States and localities continually “contriv[ed] new rules,” mostly neutral on their face but discriminatory in operation, to keep minority voters from the polls. Because “Congress had reason to suppose” that States would “try similar maneuvers in the future”— “pour[ing] old poison into new bottles” to suppress minority votes. Because Congress has been proved right. … Today, the Court undermines Section 2 and the right it provides. The majority fears that the statute Congress wrote is too “radical”—that it will invalidate too many state voting laws. So the majority writes its own set of rules, limiting Section 2 from multiple directions. Wherever it can, the majority gives a cramped reading to broad language. And then it uses that reading to uphold two election laws from Arizona that discriminate against minority voters. I could say—and will in the following pages—that this is not how the Court is supposed to interpret and apply statutes. But that ordinary critique woefully undersells the problem. What is tragic here is that the Court has (yet again) rewritten—in order to weaken—a statute that stands as a monument to America’s greatness, and protects against its basest impulses. What is tragic is that the Court has damaged a statute designed to bring about “the end of discrimination in voting.” I respectfully dissent. … “After a century’s failure to fulfill the promise” of the Fifteenth Amendment, “passage of the VRA finally led to signal improvement.” In the five years after the statute’s passage, almost as many African Americans registered to vote in six Southern States as in the entire century before 1965. The crudest attempts to block voting access, like literacy tests and poll taxes, disappeared. Legislatures often replaced those vote denial schemes with new measures—mostly to do with districting—designed to dilute the impact of minority votes. But the Voting Rights Act, operating for decades at full strength, stopped many of those measures too. As a famed dissent assessed the situation about a half-century after the statute’s enactment: The Voting Rights Act had become “one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history.” … Yet efforts to suppress the minority vote continue. No one would know this from reading the majority opinion. It hails the “good news” that legislative efforts had mostly shifted by the 1980s from vote denial to vote dilution. And then it moves on to other matters, as though the Voting Rights Act no longer has a problem to address—as though once literacy tests and poll taxes disappeared, so too did efforts to curb minority voting. But as this Court recognized about a decade ago, “racial discrimination and racially polarized voting are not ancient history.” Indeed, the problem of voting discrimination has become worse since that time— in part because of what this Court did in Shelby County. Weaken the Voting Rights Act, and predictable consequences follow: yet a further generation of voter suppression laws. Much of the Voting Rights Act’s success lay in its capacity to meet ever-new forms of discrimination. Experience showed that “[w]henever one form of voting discrimination was identified and prohibited, others sprang up in its place.” Combating those efforts was like “battling the Hydra”—or to use a less cultured reference, like playing a game of whack-a-mole. So Congress, in Section 5 of the Act, gave the Department of Justice authority to review all new rules devised by jurisdictions with a history of voter suppression—and to block any that would have discriminatory effects. In that way, the Act would prevent the use of new, more nuanced methods to restrict the voting opportunities of non-white citizens. And for decades, Section 5 operated as intended. Between 1965 and 2006, the Department stopped almost 1200 voting laws in covered areas from taking effect. Some of those laws used districting to dilute minority voting strength—making sure that the votes of minority citizens would carry less weight than the votes of whites in electing candidates. Other laws, even if facially neutral, disproportionately curbed the ability of non-white citizens to cast a ballot at all. So, for example, a jurisdiction might require forms of identification that those voters were less likely to have; or it might limit voting places and times convenient for those voters; or it might purge its voter rolls through mechanisms especially likely to ensnare them. In reviewing mountains of such evidence in 2006, Congress saw a continuing need for Section 5. Although “discrimination today is more subtle than the visible methods used in 1965,” Congress found, it still produces “the same [effects], namely a diminishing of the minority community’s ability to fully participate in the electoral process.” Congress thus reauthorized the preclearance scheme for 25 years. But this Court took a different view. Finding that “[o]ur country has changed,” the Court saw only limited instances of voting discrimination—and so no further need for preclearance. Displacing Congress’s contrary judgment, the Court struck down the coverage formula essential to the statute’s operation. The legal analysis offered was perplexing: The Court based its decision on a “principle of equal [state] sovereignty” that a prior decision of ours had rejected—and that has not made an appearance since. … The rashness of the act soon became evident. Once Section 5’s strictures came off, States and localities put in place new restrictive voting laws, with foreseeably adverse effects on minority voters. On the very day Shelby County issued, Texas announced that it would implement a strict voter-identification requirement that had failed to clear Section 5. ... In recent months, State after State has taken up or enacted legislation erecting new barriers to voting. Those laws shorten the time polls are open, both on Election Day and before. They impose new prerequisites to voting by mail, and shorten the windows to apply for and return mail ballots. They make it harder to register to vote, and easier to purge voters from the rolls. Two laws even ban handing out food or water to voters standing in line. Some of those restrictions may be lawful under the Voting Rights Act. But chances are that some have the kind of impact the Act was designed to prevent—that they make the political process less open to minority voters than to others. … So the Court decides this Voting Rights Act case at a perilous moment for the Nation’s commitment to equal citizenship. It decides this case in an era of voting-rights retrenchment—when too many States and localities are restricting access to voting in ways that will predictably deprive members of minority groups of equal access to the ballot box. If “any racial discrimination in voting is too much,” as the Shelby County Court recited, then the Act still has much to do. Or more precisely, the fraction of the Act remaining—the Act as diminished by the Court’s hand. Congress never meant for Section 2 to bear all of the weight of the Act’s commitments. … Section 2, as relevant here, has two interlocking parts. Subsection (a) states the law’s basic prohibition: “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Subsection (b) then tells courts how to apply that bar—or otherwise said, when to find that an infringement of the voting right has occurred: “A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of [a given race] in that [those] members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Those provisions have a great many words, and I address them further below. But their essential import is plain: Courts are to strike down voting rules that contribute to a racial disparity in the opportunity to vote, taking all the relevant circumstances into account. The first thing to note about Section 2 is how far its prohibitory language sweeps. The provision bars any “voting qualification,” any “prerequisite to voting,” or any “standard, practice, or procedure” that “results in a denial or abridgement of the right” to “vote on account of race.” The overlapping list of covered state actions makes clear that Section 2 extends to every kind of voting or election rule. Congress carved out nothing pertaining to “voter qualifications or the manner in which elections are conducted.” So, for example, the provision “covers all manner of registration requirements, the practices surrounding registration,” the “locations of polling places, the times polls are open, the use of paper ballots as opposed to voting machines, and other similar aspects of the voting process that might be manipulated to deny any citizen the right to cast a ballot and have it properly counted.” Ibid. All those rules and more come within the statute—so long as they result in a race-based “denial or abridgement” of the voting right. And the “denial or abridgement” phrase speaks broadly too. “[A]bridgment necessarily means something more subtle and less drastic than the complete denial of the right to cast a ballot, denial being separately forbidden.” It means to “curtail,” rather than take away, the voting right. The “results in” language, connecting the covered voting rules to the prohibited voting abridgement, tells courts that they are to focus on the law’s effects. Rather than hinge liability on state officials’ motives, Congress made it ride on their actions’ consequences. That decision was as considered as considered comes. This Court, as the majority notes, had construed the original Section 2 to apply to facially neutral voting practices “only if [they were] motivated by a discriminatory purpose.” Congress enacted the current Section 2 to reverse that outcome—to make clear that “results” alone could lead to liability. An intent test, the Senate Report explained, “asks the wrong question.”If minority citizens “are denied a fair opportunity to participate,” then “the system should be changed, regardless of” what “motives were in an official’s mind.” Congress also saw an intent test as imposing “an inordinately difficult burden for plaintiffs.” Even if state actors had purposefully discriminated, they would likely be “ab[le] to offer a non-racial rationalization,” supported by “a false trail” of “official resolutions” and “other legislative history eschewing any racial motive.” So only a results-focused statute could prevent States from finding ways to abridge minority citizens’ voting rights. But when to conclude—looking to effects, not purposes— that a denial or abridgment has occurred? Again, answering that question is subsection (b)’s function. It teaches that a violation is established when, “based on the totality of circumstances,” a State’s electoral system is “not equally open” to members of a racial group. And then the subsection tells us what that means. A system is not equally open if members of one race have “less opportunity” than others to cast votes, to participate in politics, or to elect representatives. The key demand, then, is for equal political opportunity across races. That equal “opportunity” is absent when a law or practice makes it harder for members of one racial group, than for others, to cast ballots. When Congress amended Section 2, the word “opportunity” meant what it also does today: “a favorable or advantageous combination of circumstances” for some action. See American Heritage Dictionary, at 922. In using that word, Congress made clear that the Voting Rights Act does not demand equal outcomes. If members of different races have the same opportunity to vote, but go to the ballot box at different rates, then so be it—that is their preference, and Section 2 has nothing to say. But if a law produces different voting opportunities across races—if it establishes rules and conditions of political participation that are less favorable (or advantageous) for one racial group than for others—then Section 2 kicks in. It applies, in short, whenever the law makes it harder for citizens of one race than of others to cast a vote. [fn4: I agree with the majority that “very small differences” among racial groups do not matter.] And that is so even if (as is usually true) the law does not single out any race, but instead is facially neutral. Suppose, as Justice Scalia once did, that a county has a law limiting “voter registration [to] only three hours one day a week.” And suppose that policy makes it “more difficult for blacks to register than whites”—say, because the jobs African Americans disproportionately hold make it harder to take time off in that window. Those citizens, Justice Scalia concluded, would then “have less opportunity ‘to participate in the political process’ than whites, and §2 would therefore be violated.” In enacting Section 2, Congress documented many similar (if less extreme) facially neutral rules—“registration requirements,” “voting and registration hours,” voter “purging” policies, and so forth—that create disparities in voting opportunities. Those laws, Congress thought, would violate Section 2, though they were not facially discriminatory, because they gave voters of different races unequal access to the political process. Congress also made plain, in calling for a totality-of-circumstances inquiry, that equal voting opportunity is a function of both law and background conditions—in other words, that a voting rule’s validity depends on how the rule operates in conjunction with facts on the ground….“The essence of a §2 claim,” we have said, is that an election law “interacts with social and historical conditions” in a particular place to cause race-based inequality in voting opportunity. That interaction is what the totality inquiry is mostly designed to discover. At the same time, the totality inquiry enables courts to take into account strong state interests supporting an election rule. An all-things-considered inquiry, we have explained, is by its nature flexible. On the one hand, it allows no “safe harbor[s]” for election rules resulting in discrimination. On the other hand, it precludes automatic condemnation of those rules. Among the “balance of considerations” a court is to weigh is a State’s need for the challenged policy. But in making that assessment of state interests, a court must keep in mind—just as Congress did—the ease of “offer[ing] a non-racial rationalization” for even blatantly discriminatory laws. State interests do not get accepted on faith. And even a genuine and strong interest will not suffice if a plaintiff can prove that it can be accomplished in a less discriminatory way. As we have put the point before: When a less racially biased law would not “significantly impair[] the State’s interest,” the discriminatory election rule must fall. So the text of Section 2, as applied in our precedents, tells us the following, every part of which speaks to the ambition of Congress’s action. Section 2 applies to any voting rule, of any kind. The provision prohibits not just the denial but also the abridgment of a citizen’s voting rights on account of race. The inquiry is focused on effects: It asks not about why state officials enacted a rule, but about whether that rule results in racial discrimination. The discrimination that is of concern is inequality of voting opportunity. That kind of discrimination can arise from facially neutral (not just targeted) rules. There is a Section 2 problem when an election rule, operating against the backdrop of historical, social, and economic conditions, makes it harder for minority citizens than for others to cast ballots. And strong state interests may save an otherwise discriminatory rule, but only if that rule is needed to achieve them—that is, only if a less discriminatory rule will not attain the State’s goal. That is a lot of law to apply in a Section 2 case. Real law—the kind created by Congress. (A strange thing, to hear about it all only in a dissent.)6 None of this law threatens to “take down,” as the majority charges, the mass of state and local election rules. Here is the flipside of what I have said above, now from the plaintiff ’s perspective: Section 2 demands proof of a statistically significant racial disparity in electoral opportunities (not outcomes) resulting from a law not needed to achieve a government’s legitimate goals. That showing is hardly insubstantial; and as a result, Section 2 vote denial suits do not often succeed (even with lower courts applying the law as written, not the majority’s new, concocted version). … The majority’s opinion mostly inhabits a law-free zone. It congratulates itself in advance for giving Section 2’s text “careful consideration.” And then it leaves that language almost wholly behind. So too the majority barely mentions this Court’s precedents construing Section 2’s text. On both those counts, you can see why. As just described, Section 2’s language is broad. To read it fairly, then, is to read it broadly. And to read it broadly is to do much that the majority is determined to avoid. So the majority ignores the sweep of Section 2’s prohibitory language. It fails to note Section 2’s application to every conceivable kind of voting rule. It neglects to address the provision’s concern with how those rules may “abridge[],” not just deny, minority citizens’ voting rights. It declines to consider Congress’s use of an effects test, rather than a purpose test, to assess the rules’ legality. Nor does the majority acknowledge the force of Section 2’s implementing provision. The majority says as little as possible about what it means for voting to be “equally open,” or for voters to have an equal “opportunity” to cast a ballot. It only grudgingly accepts—and then apparently forgets— that the provision applies to facially neutral laws with discriminatory consequences. And it hints that as long as a voting system is sufficiently “open,” it need not be equally so. In sum, the majority skates over the strong words Congress drafted to accomplish its equally strong purpose: ensuring that minority citizens can access the electoral system as easily as whites. … look at Arizona. Two of that State’s policies disproportionately affect minority citizens’ opportunity to vote. The first—the out-of-precinct policy—results in Hispanic and African American voters’ ballots being thrown out at a statistically higher rate than those of whites. And whatever the majority might say about the ordinariness of such a rule, Arizona applies it in extra-ordinary fashion: Arizona is the national outlier in dealing with out-of-precinct votes, with the next-worst offender nowhere in sight. The second rule—the ballot-collection ban—makes voting meaningfully more difficult for Native American citizens than for others. And nothing about how that ban is applied is “usual” either—this time because of how many of the State’s Native American citizens need to travel long distances to use the mail. Both policies violate Section 2, on a straightforward application of its text. Considering the “totality of circumstances,” both “result in” members of some races having “less opportunity than other members of the electorate to participate in the political process and to elect a representative of their choice.” The majority reaches the opposite conclusion because it closes its eyes to the facts on the ground. Arizona’s out-of-precinct policy requires discarding any Election Day ballot cast elsewhere than in a voter’s assigned precinct. Under the policy, officials throw out every choice in every race—including national or statewide races (e.g., for President or Governor) that appear identically on every precinct’s ballot. The question is whether that policy unequally affects minority citizens’ opportunity to cast a vote. Although the majority portrays Arizona’s use of the rule as “unremarkable,” the State is in fact a national aberration when it comes to discarding out-of-precinct ballots. In 2012, about 35,000 ballots across the country were thrown out because they were cast at the wrong precinct. Nearly one in three of those discarded votes—10,979—was cast in Arizona. … And the out-of-precinct policy operates unequally: Ballots cast by minorities are more likely to be discarded. In 2016, Hispanics, African Americans, and Native Americans were about twice as likely—or said another way, 100% more likely—to have their ballots discarded than whites. … The majority is wrong to assert that those statistics are “highly misleading.” In the majority’s view, they can be dismissed because the great mass of voters are unaffected by the out-of-precinct policy. But Section 2 is less interested in “absolute terms” (as the majority calls them) than in relative ones. Arizona’s policy creates a statistically significant disparity between minority and white voters: Because of the policy, members of different racial groups do not in fact have an equal likelihood of having their ballots counted. Suppose a State decided to throw out 1% of the Hispanic vote each election. Presumably, the majority would not approve the action just because 99% of the Hispanic vote is unaffected. Nor would the majority say that Hispanics in that system have an equal shot of casting an effective ballot. Here, the policy is not so overt; but under Section 2, that difference does not matter. Because the policy “results in” statistically significant inequality, it implicates Section 2. And the kind of inequality that the policy produces is not the kind only a statistician could see. A rule that throws out, each and every election, thousands of votes cast by minority citizens is a rule that can affect election outcomes. If you were a minority vote suppressor in Arizona or elsewhere, you would want that rule in your bag of tricks. You would not think it remotely irrelevant. … Arizona’s law mostly banning third-party ballot collection also results in a significant race-based disparity in voting opportunities. The problem with that law again lies in facts nearly unique to Arizona—here, the presence of rural Native American communities that lack ready access to mail service. Given that circumstance, the Arizona statute discriminates in just the way Section 2 proscribes. The majority once more comes to a different conclusion only by ignoring the local conditions with which Arizona’s law interacts. The critical facts for evaluating the ballot-collection rule have to do with mail service. Most Arizonans vote by mail. But many rural Native American voters lack access to mail service, to a degree hard for most of us to fathom. Only 18% of Native voters in rural counties receive home mail delivery, compared to 86% of white voters living in those counties. And for many or most, there is no nearby post office. Native Americans in rural Arizona “often must travel 45 minutes to 2 hours just to get to a mailbox.” And between a quarter to a half of households in these Native communities do not have a car. So getting ballots by mail and sending them back poses a serious challenge for Arizona’s rural Native Americans. For that reason, an unusually high rate of Native Americans used to “return their early ballots with the assistance of third parties.” [fn13: The majority faults the plaintiffs for failing to provide “concrete” statistical evidence on this point. But no evidence of that kind exists: Arizona has never compiled data on third-party ballot collection.] As the District Court found: “[F]or many Native Americans living in rural locations,” voting “is an activity that requires the active assistance of friends and neighbors.” So in some Native communities, third-party collection of ballots—mostly by fellow clan members—became “standard practice.” Ibid. And stopping it, as one tribal election official testified, “would be a huge devastation.” … Put all of that together, and Arizona’s ballot-collection ban violates Section 2. The ban interacts with conditions on the ground—most crucially, disparate access to mail service—to create unequal voting opportunities for Native Americans. Recall that only 18% of rural Native Americans in the State have home delivery; that travel times of an hour or more to the nearest post office are common; that many members of the community do not have cars. Given those facts, the law prevents many Native Americans from making effective use of one of the principal means of voting in Arizona. What is an inconsequential burden for others is for these citizens a severe hardship. And the State has shown no need for the law to go so far. Arizona, as noted above, already has statutes in place to deter fraudulent collection practices. Those laws give every sign of working. Arizona has not offered any evidence of fraud in ballot collection, or even an account of a harm threatening to happen. And anyway, Arizona did not have to entirely forego a ballot-collection restriction to comply with Section 2. It could, for example, have added an exception to the statute for Native clan or kinship ties, to accommodate the special, “intensely local” situation of the rural Native American community. That Arizona did not do so shows, at best, selective indifference to the voting opportunities of its Native American citizens. … This Court has no right to remake Section 2. Maybe some think that vote suppression is a relic of history—and so the need for a potent Section 2 has come and gone.But Congress gets to make that call. Because it has not done so, this Court’s duty is to apply the law as it is written. The law that confronted one of this country’s most enduring wrongs; pledged to give every American, of every race, an equal chance to participate in our democracy; and now stands as the crucial tool to achieve that goal. That law, of all laws, deserves the sweep and power Congress gave it. That law, of all laws, should not be diminished by this Court. https://www.supremecourt.gov/opinions/20pdf/19-1257_g204.pdf
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Opinions! 2 of 2 for July 1, and we’re done with October Term 2020. AMERICANS FOR PROSPERITY FOUNDATION v. BONTA, ATTORNEY GENERAL OF CALIFORNIA TLDR: California’s requirement that charitable organizations disclose their major donors to the state Attorney General violates the First Amendment. 6-3 liberals lose dark money to charities case. Holding / Majority Opinion (Roberts) To solicit contributions in California, charitable organizations must disclose to the state Attorney General’s Office the identities of their major donors. The State contends that having this information on hand makes it easier to police misconduct by charities. We must decide whether California’s disclosure requirement violates the First Amendment right to free association. … California law empowers the Attorney General to make rules and regulations regarding the [charitable organization] registration and renewal process. Pursuant to this regulatory authority, the Attorney General requires charities renewing their registrations to file copies of their Internal Revenue Service Form 990, along with any attachments and schedules. Form 990 contains information regarding tax-exempt organizations’ mission, leadership, and finances. Schedule B to Form 990—the document that gives rise to the present dispute—requires organizations to disclose the names and addresses of donors who have contributed more than $5,000 in a particular tax year (or, in some cases, who have given more than 2 percent of an organization’s total contributions). The petitioners are tax-exempt charities that solicit contributions in California and are subject to the Attorney General’s registration and renewal requirements. Americans for Prosperity Foundation is a public charity that is “devoted to education and training about the principles of a free and open society, including free markets, civil liberties, immigration reform, and constitutionally limited government.” Thomas More Law Center is a public interest law firm whose “mission is to protect religious freedom, free speech, family values, and the sanctity of human life.” Since 2001, each petitioner has renewed its registration and has filed a copy of its Form 990 with the Attorney General, as required by Cal. Code Regs. Out of concern for their donors’ anonymity, however, the petitioners have declined to file their Schedule Bs (or have filed only redacted versions) with the State. … The First Amendment prohibits government from “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This Court has “long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others.” Protected association furthers “a wide variety of political, social, economic, educational, religious, and cultural ends,” and “is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority.” Government infringement of this freedom “can take a number of forms.” We have held, for example, that the freedom of association may be violated where a group is required to take in members it does not want, where individuals are punished for their political affiliation, or where members of an organization are denied benefits based on the organization’s message. We have also noted that “[i]t is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action.” NAACP v. Alabama involved this chilling effect in its starkest form. The NAACP opened an Alabama office that supported racial integration in higher education and public transportation. In response, NAACP members were threatened with economic reprisals and violence.As part of an effort to oust the organization from the State, the Alabama Attorney General sought the group’s membership lists. We held that the First Amendment prohibited such compelled disclosure. We explained that “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association,” and we noted “the vital relationship between freedom to associate and privacy in one’s associations.” Because NAACP members faced a risk of reprisals if their affiliation with the organization became known—and because Alabama had demonstrated no offsetting interest “sufficient to justify the deterrent effect” of disclosure—we concluded that the State’s demand violated the First Amendment. … The Law Center (now joined by the Foundation) argues in the alternative that even if exacting scrutiny applies, such review incorporates a least restrictive means test similar to the one imposed by strict scrutiny. The United States and the Attorney General respond that exacting scrutiny demands no additional tailoring beyond the “substantial relation” requirement noted above. We think that the answer lies between those two positions. While exacting scrutiny does not require that disclosure regimes be the least restrictive means of achieving their ends, it does require that they be narrowly tailored to the government’s asserted interest. The need for narrow tailoring was set forth early in our compelled disclosure cases. In Shelton v. Tucker, we considered an Arkansas statute that required teachers to disclose every organization to which they belonged or contributed. We acknowledged the importance of “the right of a State to investigate the competence and fitness of those whom it hires to teach in its schools.” On that basis, we distinguished prior decisions in which we had found “no substantially relevant correlation between the governmental interest asserted and the State’s effort to compel disclosure.” But we nevertheless held that the Arkansas statute was invalid because even a “legitimate and substantial” governmental interest “cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Shelton stands for the proposition that a substantial relation to an important interest is not enough to save a disclosure regime that is insufficiently tailored. … Our more recent decisions confirm the need for tailoring. In McCutcheon v. Federal Election Commission, for example, a plurality of the Court explained: “In the First Amendment context, fit matters. Even when the Court is not applying strict scrutiny, we still require a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served, that employs not necessarily the least restrictive means but a means narrowly tailored to achieve the desired objective.” ... A substantial relation is necessary but not sufficient to ensure that the government adequately considers the potential for First Amendment harms before requiring that organizations reveal sensitive information about their members and supporters. Where exacting scrutiny applies, the challenged requirement must be narrowly tailored to the interest it promotes, even if it is not the least restrictive means of achieving that end. … The Foundation and the Law Center both argued below that the obligation to disclose Schedule Bs to the Attorney General was unconstitutional on its face and as applied to them. The petitioners renew their facial challenge in this Court, and they argue in the alternative that they are entitled to as-applied relief. For the reasons below, we conclude that California’s blanket demand for Schedule Bs is facially unconstitutional. As explained, exacting scrutiny requires that there be “a substantial relation between the disclosure requirement and a sufficiently important governmental interest,” and that the disclosure requirement be narrowly tailored to the interest it promotes. The Ninth Circuit found that there was a substantial relation between the Attorney General’s demand for Schedule Bs and a sufficiently strong governmental interest. Of particular relevance, the court found that California had such an interest in preventing charitable fraud and self-dealing, and that “the up-front collection of Schedule B information improves the efficiency and efficacy of the Attorney General’s important regulatory efforts.” The court did not apply a narrow tailoring requirement, however, because it did not read our cases to mandate any such inquiry. That was error. And properly applied, the narrow tailoring requirement is not satisfied by the disclosure regime. We do not doubt that California has an important interest in preventing wrongdoing by charitable organizations. It goes without saying that there is a “substantial governmental interest[] in protecting the public from fraud.” … There is a dramatic mismatch, however, between the interest that the Attorney General seeks to promote and the disclosure regime that he has implemented in service of that end. Recall that 60,000 charities renew their registrations each year, and nearly all are required to file a Schedule B. Each Schedule B, in turn, contains information about a charity’s top donors—a small handful of individuals in some cases, but hundreds in others. This information includes donors’ names and the total contributions they have made to the charity, as well as their addresses. Given the amount and sensitivity of this information harvested by the State, one would expect Schedule B collection to form an integral part of California’s fraud detection efforts. It does not. To the contrary, the record amply supports the District Court’s finding that there was not “a single, concrete instance in which pre-investigation collection of a Schedule B did anything to advance the Attorney General’s investigative, regulatory or enforcement efforts.” … The Attorney General and the dissent contend that alternative means of obtaining Schedule B information—such as a subpoena or audit letter—are inefficient and ineffective compared to up-front collection. It became clear at trial, however, that the Office had not even considered alternatives to the current disclosure requirement. … The upshot is that California casts a dragnet for sensitive donor information from tens of thousands of charities each year, even though that information will become relevant in only a small number of cases involving filed complaints. … In reality, then, California’s interest is less in investigating fraud and more in ease of administration. This interest, however, cannot justify the disclosure requirement. The Attorney General may well prefer to have every charity’s information close at hand, just in case. But “the prime objective of the First Amendment is not efficiency.” Mere administrative convenience does not remotely “reflect the seriousness of the actual burden” that the demand for Schedule Bs imposes on donors’ association rights. … [Thomas doesn’t believe in facial challenges so does not join this Part III-B] The foregoing discussion also makes clear why a facial challenge is appropriate in these cases. Normally, a plaintiff bringing a facial challenge must “establish that no set of circumstances exists under which the [law] would be valid,” or show that the law lacks “a plainly legitimate sweep”. In the First Amendment context, however, we have recognized “a second type of facial challenge, whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” We have no trouble concluding here that the Attorney General’s disclosure requirement is overbroad. The lack of tailoring to the State’s investigative goals is categorical—present in every case—as is the weakness of the State’s interest in administrative convenience. Every demand that might chill association therefore fails exacting scrutiny. … The disclosure requirement “creates an unnecessary risk of chilling” in violation of the First Amendment, indiscriminately sweeping up the information of every major donor with reason to remain anonymous. The petitioners here, for example, introduced evidence that they and their supporters have been subjected to bomb threats, protests, stalking, and physical violence. … Finally, California’s demand for Schedule Bs cannot be saved by the fact that donor information is already disclosed to the IRS as a condition of federal tax-exempt status. For one thing, each governmental demand for disclosure brings with it an additional risk of chill. For another, revenue collection efforts and conferral of tax-exempt status may raise issues not presented by California’s disclosure requirement, which can prevent charities from operating in the State altogether. … The dissent concludes by saying that it would be “sympathetic” if we “had simply granted as-applied relief to petitioners based on [our] reading of the facts.” But the pertinent facts in these cases are the same across the board: Schedule Bs are not used to initiate investigations. That is true in every case. California has not considered alternatives to indiscriminate up-front disclosure. That is true in every case. And the State’s interest in amassing sensitive information for its own convenience is weak. That is true in every case. When it comes to the freedom of association, the protections of the First Amendment are triggered not only by actual restrictions on an individual’s ability to join with others to further shared goals. The risk of a chilling effect on association is enough, “because First Amendment freedoms need breathing space to survive.” The District Court correctly entered judgment in favor of the petitioners and permanently enjoined the Attorney General from collecting their Schedule Bs. The Ninth Circuit erred by vacating those injunctions and directing entry of judgment for the Attorney General. The judgment of the Ninth Circuit is reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Roberts, joined by Kavanaugh and Barrett; by Alito and Gorsuch except as to Part II-B-1; and Thomas except as to Parts II-B-1 and III-B. Concurrence in part and concurrence in the judgment by Thomas. Concurrence in part and concurrence in the judgment by Alito, joined by Gorsuch. Dissent by Sotomayor, joined by Breyer and Kagan. Concurrence (Part II-B-1 of the main opinion) (Roberts, joined by Kavanaugh and Barrett) NAACP v. Alabama did not phrase in precise terms the standard of review that applies to First Amendment challenges to compelled disclosure. We have since settled on a standard referred to as “exacting scrutiny.” Under that standard, there must be “a substantial relation between the disclosure requirement and a sufficiently important governmental interest.” “To withstand this scrutiny, the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.” Ibid. (internal quotation marks omitted). Such scrutiny, we have held, is appropriate given the “deterrent effect on the exercise of First Amendment rights” that arises as an “inevitable result of the government’s conduct in requiring disclosure.” The Law Center (but not the Foundation) argues that we should apply strict scrutiny, not exacting scrutiny. Under strict scrutiny, the government must adopt “the least restrictive means of achieving a compelling state interest,” rather than a means substantially related to a sufficiently important interest. The Law Center contends that only strict scrutiny adequately protects the associational rights of charities. And although the Law Center acknowledges that we have applied exacting scrutiny in prior disclosure cases, it argues that those cases arose in the electoral context, where the government’s important interests justify less searching review. It is true that we first enunciated the exacting scrutiny standard in a campaign finance case. And we have since invoked it in other election-related settings. But exacting scrutiny is not unique to electoral disclosure regimes. To the contrary, Buckley derived the test from NAACP v. Alabama itself, as well as other non-election cases. As we explained in NAACP v. Alabama, “it is immaterial” to the level of scrutiny “whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters.” Regardless of the type of association, compelled disclosure requirements are reviewed under exacting scrutiny. Concurrence as to Parts I, II-A, II-B-2, and III-A, and concurrence in the judgment (Thomas) The Court correctly holds that California’s disclosure requirement violates the First Amendment. It also correctly concludes that the District Court properly enjoined California’s attorney general from collecting the forms at issue, which contain sensitive donor information. But, while I agree with much of the Court’s opinion, I would approach three issues differently. First, the bulk of “our precedents . . . require application of strict scrutiny to laws that compel disclosure of protected First Amendment association.” California’s law fits that description. Although the Court rightly holds that even the less demanding “exacting scrutiny” standard requires narrow tailoring for laws that compel disclosure, invoking exacting scrutiny is at odds with our repeated recognition “that privacy of association is protected under the First Amendment.” The text and history of the Assembly Clause suggest that the right to assemble includes the right to associate anonymously. And the right to associate anonymously often operates as a vehicle to protect other First Amendment rights, such as the freedom of the press. Laws directly burdening the right to associate anonymously, including compelled disclosure laws, should be subject to the same scrutiny as laws directly burdening other First Amendment rights. Second, the Court holds the law “overbroad” and, thus, invalid in all circumstances. But I continue to have “doubts about [the] origins and application” of our “overbreadth doctrine.” That doctrine purports to grant federal courts the power to invalidate a law “if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” However, the Court has no power to enjoin the lawful application of a statute just because that statute might be unlawful as-applied in other circumstances. And the principle that application of a law is always unlawful if “‘a substantial number of its applications are unconstitutional’” “lacks any basis in the Constitution’s text” and “contravenes traditional standing principles.” Third, and relatedly, this Court also lacks the power “to ‘pronounce that the statute is unconstitutional in all applications,’” even if the Court suspects that the law will likely be unconstitutional in every future application as opposed to just a substantial number of its applications. A declaration that the law is “facially” unconstitutional “seems to me no more than an advisory opinion—which a federal court should never issue at all.” Courts cannot “strike down statutory text” or resolve the legal rights of litigants not before them. Despite the Court’s use of the term “facially unconstitutional,” I join Part III–A, which finds that California’s law fails exacting scrutiny, because the Court does not say that it is “provid[ing] relief beyond the parties to the case.” The Court simply (and correctly) holds that the District Court properly enjoined the law as applied to petitioners. The Court’s judgment is also not dependent on its overbreadth determination. One can understand the Court’s reasoning as based on the fundamental legal problems with the law (that are obvious in light of the facts of this suit) that will, in practice, prevent California from lawfully applying the disclosure requirement against a substantial number of entities, including petitioners. With those points of difference clarified, I join Parts I, II– A, II–B–2, and III–A of the majority’s opinion and concur in the judgment. Concurrence as to Parts I, II-A, II-B-2, and III, and concurrence in the judgment (Alito, joined by Gorsuch) I am pleased to join most of THE CHIEF JUSTICE’s opinion. In particular, I agree that the exacting scrutiny standard drawn from our election-law jurisprudence has real teeth. It requires both narrow tailoring and consideration of alternative means of obtaining the sought-after information. For the reasons THE CHIEF JUSTICE explains, California’s blunderbuss approach to charitable disclosures fails exacting scrutiny and is facially unconstitutional. The question is not even close. And for the same reasons, California’s approach necessarily fails strict scrutiny. THE CHIEF JUSTICE would hold that the particular exacting scrutiny standard in our election-law jurisprudence applies categorically “to First Amendment challenges to compelled disclosure.” JUSTICE THOMAS, by contrast, would hold that strict scrutiny applies in all such cases. I am not prepared at this time to hold that a single standard applies to all disclosure requirements. And I do not read our cases to have broadly resolved the question in favor of exacting scrutiny. This Court decided its seminal compelled disclosure cases before it developed modern strict scrutiny doctrine. Accordingly, nothing in those cases can be understood as rejecting strict scrutiny. If anything, their language and reasoning—requiring a compelling interest and a minimally intrusive means of advancing that interest— anticipated and is fully in accord with contemporary strict scrutiny doctrine. Similarly, Buckley v. Valeo and its progeny should not be read to have broadly cabined our earlier decisions merely by relying on them in one particular context. Because the choice between exacting and strict scrutiny has no effect on the decision in these cases, I see no need to decide which standard should be applied here or whether the same level of scrutiny should apply in all cases in which the compelled disclosure of associations is challenged under the First Amendment. Dissent (Sotomayor, joined by Breyer and Kagan) Although this Court is protective of First Amendment rights, it typically requires that plaintiffs demonstrate an actual First Amendment burden before demanding that a law be narrowly tailored to the government’s interests, never mind striking the law down in its entirety. Not so today. Today, the Court holds that reporting and disclosure requirements must be narrowly tailored even if a plaintiff demonstrates no burden at all. The same scrutiny the Court applied when NAACP members in the Jim Crow South did not want to disclose their membership for fear of reprisals and violence now applies equally in the case of donors only too happy to publicize their names across the websites and walls of the organizations they support. … Today’s analysis marks reporting and disclosure requirements with a bull’s-eye. Regulated entities who wish to avoid their obligations can do so by vaguely waving toward First Amendment “privacy concerns.” It does not matter if not a single individual risks experiencing a single reprisal from disclosure, or if the vast majority of those affected would happily comply. That is all irrelevant to the Court’s determination that California’s Schedule B requirement is facially unconstitutional. Neither precedent nor common sense supports such a result. I respectfully dissent. … Because the freedom to associate needs “breathing space to survive,” this Court has recognized that associational rights must be “protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference”. Publicizing individuals’ association with particular groups might expose members to harassment, threats, and reprisals by opponents of those organizations. Individuals may choose to disassociate themselves from a group altogether rather than face such backlash. Acknowledging that risk, this Court has observed that “privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” That observation places special emphasis on the risks actually resulting from disclosure. Privacy “may” be indispensable to the preservation of freedom of association, but it need not be. It depends on whether publicity will lead to reprisal. For example, privacy can be particularly important to “dissident” groups because the risk of retaliation against their supporters may be greater. For groups that promote mainstream goals and ideas, on the other hand, privacy may not be all that important. Not only might their supporters feel agnostic about disclosing their association, they might actively seek to do so. … Before today, to demonstrate that a reporting or disclosure requirement would chill association, litigants had to show “a reasonable probability that the compelled disclosure of . . . contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties.” Proof could include “specific evidence of past or present harassment of members due to their associational ties, or of harassment directed against the organization itself,” ibid., as well as evidence that “fear of community hostility and economic reprisals that would follow public disclosure . . . had discouraged new members from joining” an organization or caused “former members to withdraw”. Although the Court has never imposed an “unduly strict requiremen[t] of proof,” it has consistently required at least some record evidence demonstrating a risk of such objective harms. Indeed, the Court has expressly held that parties do not have standing to bring claims where they assert nothing more than that government action will cause a “subjective ‘chill.’” It does not matter if an individual perceives a government regulation “as inappropriate,” or believes “it is inherently dangerous for the [government] to be concerned with” a particular activity, or has “generalized yet speculative apprehensiveness that the [government] may at some future date misuse the information in some way that would cause direct harm” to her. She must still allege a risk of objective harm. Consistent with this approach, the Court has carefully scrutinized record evidence to determine whether a disclosure requirement actually risks exposing supporters to backlash. … Hence, in Doe v. Reed, the Court rejected a facial challenge to the public disclosure of referenda signatories on the ground that the “typical referendum” concerned revenue, budget, and tax policies unlikely to incite threats or harassment. Any judge who has witnessed local fights over raising taxes, funding schools, building sewer systems, or rerouting roads can surely envisage signatories with reason to keep their support for such measures private. But in Reed, such subjective reasons did not suffice to establish a cognizable burden on associational rights. Today, the Court abandons the requirement that plaintiffs demonstrate that they are chilled, much less that they are reasonably chilled. Instead, it presumes (contrary to the evidence, precedent, and common sense) that all disclosure requirements impose associational burdens. … At best, then, a subjective preference for privacy, which previously did not confer standing, now subjects disclosure requirements to close scrutiny. Of course, all disclosure requires some loss of anonymity, and courts can always imagine that someone might, for some reason, prefer to keep their donations undisclosed. If such speculation is enough (and apparently it is), then all disclosure requirements ipso facto impose cognizable First Amendment burdens. Indeed, the Court makes obvious its presumption that all disclosure requirements are burdensome by beginning its analysis of “burden” with an evaluation of means-end fit instead. “[A] reasonable assessment of the burdens imposed by disclosure,” the Court explains, “should begin with an understanding of the extent to which the burdens are unnecessary, and that requires narrow tailoring.” … All this would be less troubling if the Court still required means-end tailoring commensurate to the actual burden imposed. It does not. Instead, it adopts a new rule that every reporting or disclosure requirement be narrowly tailored. … Disclosure requirements burden associational rights only indirectly and only in certain contexts. For that reason, this Court has never necessarily demanded such requirements to be narrowly tailored. Rather, it has reserved such automatic tailoring for state action that “directly and immediately affects associational rights.” When it comes to reporting and disclosure requirements, the Court has instead employed a more flexible approach, which it has named “exacting scrutiny.” Exacting scrutiny requires two things: first, there must be “‘a “substantial relation” between the disclosure requirement and a “sufficiently important” government interest,’” and second, “‘the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.’” Exacting scrutiny thus incorporates a degree of flexibility into the means-end analysis. The more serious the burden on First Amendment rights, the more compelling the government’s interest must be, and the tighter must be the fit between that interest and the government’s means of pursuing it. By contrast, a less substantial interest and looser fit will suffice where the burden on First Amendment rights is weaker (or nonexistent). In other words, to decide how closely tailored a disclosure requirement must be, courts must ask an antecedent question: How much does the disclosure requirement actually burden the freedom to associate? This approach reflects the longstanding principle that the requisite level of scrutiny should be commensurate to the burden a government action actually imposes on First Amendment rights. … The Court now departs from this nuanced approach in favor of a “one size fits all” test. Regardless of whether there is any risk of public disclosure, and no matter if the burdens on associational rights are slight, heavy, or nonexistent, disclosure regimes must always be narrowly tailored. The Court searches in vain to find a foothold for this new approach in precedent. The Court first seizes on Shelton’s statement that a governmental interest “‘cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.’” The Court could not have cherry-picked a less helpful quote. By its own terms, Shelton held that an end must be “more narrowly achieved” only if the means “broadly stifle” First Amendment liberties, that is, only if the means impose a severe burden on associational rights. In any event, the Court need not read a few isolated sentences from that opinion to divine Shelton’s meaning….the Court in Shelton concluded that a reasonable “fear of public disclosure” and an asymmetric power dynamic with hiring authorities would result in a “constant and heavy” pressure on teachers “to avoid any ties which might displease those who control [their] professional destin[ies].” Recall that a witness had testified that his white supremacist organization would seek to obtain the identities of teachers working on civil rights issues in order to eradicate them from the school system, and that just a year after Arkansas enacted its disclosure law, it enacted a law prohibiting the hiring of members of the NAACP as public school teachers. The problem was not the breadth of the inquiry; it was the significant risk that teachers would face serious repercussions for their disclosed associations. … Under a First Amendment analysis that is faithful to this Court’s precedents, California’s Schedule B requirement is constitutional. Begin with the burden it imposes on associational rights. Petitioners have unquestionably provided evidence that their donors face a reasonable probability of threats, harassment, and reprisals if their affiliations are made public. California’s Schedule B regulation, however, is a nonpublic reporting requirement, and California has implemented security measures to ensure that Schedule B information remains confidential. Nor have petitioners shown that their donors, or any organization’s donors, will face threats, harassment, or reprisals if their names remain in the hands of a few California state officials. The Court notes that, under Shelton, disclosure requirements can chill association even absent public disclosure. In Shelton, however, there was a serious concern that hiring authorities would punish teachers for their organizational affiliations. By contrast, the Court in no way suggests that California officials will use Schedule B information to retaliate against any organization’s donors. If California’s reporting requirement imposes any burden at all, it is at most a very slight one. Given the modesty of the First Amendment burden, California may justify its Schedule B requirement with a correspondingly modest showing that the means achieve its ends. California easily meets this standard. … Much of the Court’s tailoring analysis is categorically inappropriate under the correct standard of review. In any event, the Court greatly understates the importance to California of collecting information on charitable organizations’ top donors. The Court claims that the collection of Schedule Bs does not form an “integral” part of California’s fraud detection efforts and has never done “‘anything’” to advance investigative efforts. The record reveals otherwise. As discussed, Section leaders report that they use Schedule Bs “[a]ll the time” and rely on them to create roadmaps for their investigations. … The Court next insists that California can rely on alternative mechanisms, such as audit letters or subpoenas, to obtain Schedule B information. But the Section receives as many as 100 charity-related complaints a month. It is not feasible for the Section, which has limited staff and resources, to conduct that many audits. SThe subpoena process is also time consuming: Letters must go through multiple layers of review and waiting for a response causes further delays during which a charity can continue its malfeasance. Implicitly acknowledging that audits and subpoenas are more cumbersome and time consuming, the Court trivializes the State’s interest in what it calls “ease of administration.” Yet in various contexts, the Court has recognized that an interest in “efficiency” is critical to the effective operation of public agencies. … In a final coup de grâce, the Court concludes that California’s reporting requirement is unconstitutional not just as applied to petitioners, but on its very face. “In the First Amendment context,” such broad relief requires proof that the requirement is unconstitutional in “‘a substantial number of . . . applications . . . , judged in relation to the statute’s plainly legitimate sweep.’” “Facial challenges are disfavored for several reasons,” prime among them because they “often rest on speculation.” Speculation is all the Court has. The Court points to not a single piece of record evidence showing that California’s reporting requirement will chill “a substantial number” of top donors from giving to their charities of choice. Yet it strikes the requirement down in every application. … Today’s decision discards decades of First Amendment jurisprudence recognizing that reporting and disclosure requirements do not directly burden associational rights. There is no other explanation for the Court’s conclusion that, first, plaintiffs do not need to show they are actually burdened by a disclosure requirement; second, every disclosure requirement demands narrow tailoring; and third, a facial challenge can succeed in the absence of any evidence a state law burdens the associational rights of a substantial proportion of affected individuals. That disclosure requirements directly burden associational rights has been the view of JUSTICE THOMAS, but it has never been the view of this Court. Just 11 years ago, eight Members of the Court, including two Members of the current majority, recognized that disclosure requirements do not directly interfere with First Amendment rights. In an opinion barely mentioned in today’s decision, the Court in Reed did the opposite of what the Court does today. First, it demanded objective evidence that disclosure risked exposing supporters to threats and reprisals; second, it required only a loose means-end fit in light of the “modest” burden it found; and third, it rejected a facial challenge given petitioners’ failure to establish that signatories to the “typical” referendum had any reason to fear disclosure. In so doing, the Court ensured that it would not “short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.” The Court 11 years later apparently has a different view of its role. It now calls upon the federal courts to serve “as virtually continuing monitors of the wisdom and soundness. There is no question that petitioners have shown that their donors reasonably fear reprisals if their identities are publicly exposed. The Court and I, however, disagree about the likelihood of that happening and the role Schedule Bs play in the investigation of charitable malfeasance. If the Court had simply granted as-applied relief to petitioners based on its reading of the facts, I would be sympathetic, although my own views diverge. But the Court’s decision is not nearly so narrow or modest. Instead, the Court jettisons completely the longstanding requirement that plaintiffs demonstrate an actual First Amendment burden before the Court will subject government action to close scrutiny. It then invalidates a regulation in its entirety, even though it can point to no record evidence demonstrating that the regulation is likely to chill a substantial proportion of donors. These moves are wholly inconsistent with the Court’s precedents and our Court’s long-held view that disclosure requirements only indirectly burden First Amendment rights. With respect, I dissent. https://www.supremecourt.gov/opinions/20pdf/19-251_p86b.pdf
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Jul 1, 2021 17:53
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Groovelord Neato posted:https://twitter.com/mjs_DC/status/1410599444731465732?s=20 The GOP continues it's steady march of rolling back the VRA (and soon the CRA) while the Dems just nod along as they cede control of the government back to Republicans who will make drat sure that the next time they control the WH and both chambers they don't lose them again. Burn the SCOTUS to the ground and cast the conservatives into the sun. e: California should tell the SCOTUS to eat poo poo and enforce their law anyways. Sure Biden is a piece of poo poo who'd back the SCOTUS but maybe someone can stop pretending the country's not in a slow-rolling crisis as it slides to fascism. Evil Fluffy fucked around with this message at 18:17 on Jul 1, 2021 |
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Jul 1, 2021 18:13
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That first decision is proof positive that even if the Dems get their ducks in a row and nuke the filibuster to pass voting protection legislation, it will be swiftly overturned unless they pack SCOTUS as well.
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Jul 1, 2021 18:40
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I can't remember whether it was in this thread or one of the USPol variants, but someone tell me again how SCOTUS Justices aren't politicians in funny robes and jabots. I could use the laugh.
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Jul 1, 2021 18:59
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TLM3101 posted:I can't remember whether it was in this thread or one of the USPol variants, but someone tell me again how SCOTUS Justices aren't politicians in funny robes and jabots. I could use the laugh. I didn't know Stephen Breyer posted on SA.
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Jul 1, 2021 19:04
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TLM3101 posted:I can't remember whether it was in this thread or one of the USPol variants, but someone tell me again how SCOTUS Justices aren't politicians in funny robes and jabots. I could use the laugh. Last page I had a post where I quoted an insanely stupid paper/statement the guy who took over Dershowitz's position at Harvard who's on Biden's commission put out the other day. His argument against court packing is that it'd cause the Court to be seen as an unelected legislature.
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Jul 1, 2021 19:07
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TLM3101 posted:I can't remember whether it was in this thread or one of the USPol variants, but someone tell me again how SCOTUS Justices aren't politicians in funny robes and jabots. I could use the laugh. As a legal scholar, I can guarantee to you that justices are not politicians in robes and are actually very ideologically committed to neutral discuss---- HAHAHA ooh boy I tried but couldn't stick the landing
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Jul 1, 2021 20:07
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Groovelord Neato posted:edit: hahahahaha pack the loving court you assholes
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Jul 1, 2021 20:47
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Dead Reckoning posted:That awful conservative SCOTUS, ruling in favor of the side supported by *checks notes* the ACLU, NAACP, CAIR, the Prop 8 Legal Defense Fund, and PBS Reno. Buddy…
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Jul 1, 2021 22:00
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I know who they are, I'm saying that this question doesn't track neatly on a Democrat/Republican analysis, and it's shallow to accuse the court of right wing partisanship when the side they ruled in favor of had a broad range of groups supporting them.
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Jul 1, 2021 22:23
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The conservative wing of the Roberts court using the 1A as a cudgel is long standing practice at this point and that does not change here even if a handful of ostensibly "good" charities were part of the suit to cover their own asses. This was done so that companies and rich fucks can pour their money into charities with reprehensible causes (or are flat out grifts) outside the public eye.
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Jul 1, 2021 22:36
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Sydin posted:The conservative wing of the Roberts court using the 1A as a cudgel is long standing practice at this point and that does not change here even if a handful of ostensibly "good" charities were part of the suit to cover their own asses. This was done so that companies and rich fucks can pour their money into charities with reprehensible causes (or are flat out grifts) outside the public eye. These disclosures were always supposed to be outside the public eye. They are considered confidential, however the DA has so far done a terrible job actually keeping them secret, a fact which was cited in the cert as a reason they are burdensome and chilling. The major decision here is that it removes the requirement of nonprofits to actually show that the disclosure of donors will have a chilling effect, it is instead just assumed it will, so the mandatory disclosure is just always unconstitutional. The government now must prove that getting the disclosure is the least intrusive way of accomplishing whatever the government's goals are, which I assume is mainly to prevent charities from being used for money laundering. The argument rests heavily on the fact that the DA has never used these disclosures to prosecute any charitable fraud, despite them not ever actually getting a disclosure from most groups. In the end this will just make charitable fraud much more difficult to prosecute at all, so I expect there to be a bunch more straight up scams and money laundering schemes set up with nonprofits called Americans For Squeaky Clean Money that strangely only ever give community grants to the same guy.
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Jul 1, 2021 23:04
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it seems like it should be a much bigger deal what the supreme court actually just went and did, considering that today strom thurmond is smiling up from hell, tears in his eyes, saying "thank you ... thank you for stopping what i couldn't" like i'm not wrong to think that this essentially renders the VRA a dead letter, yeah
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Jul 1, 2021 23:25
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Staluigi posted:like i'm not wrong to think that this essentially renders the VRA a dead letter, yeah *noncommittal handwave* ...it's a dead letter for as long as this Court or a more conservative one stands, but it wasn't this case that did it; this case just recognized that this Court would not find any VRA violations absent hard-r usage during the legislative debate before passing a law, which had been true since Shelby County.
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Jul 2, 2021 00:14
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their message is quite clear: effecting public policy via rich people methods like spending money is incredibly protected and even the vaguest notion that anything might be getting in the way even a little, or even just the suggestion that it might, is unconstitutional as hell. effecting public policy via poor people methods (voting, signing petitions, protesting) is not free speech and you can make all sorts of laws that make it incredibly burdensome or even impossible, as long as you pretend like you had a reason that wasn't just "racism". possible reasons include "i wanted to win the election"
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Jul 2, 2021 00:34
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TLM3101 posted:I can't remember whether it was in this thread or one of the USPol variants, but someone tell me again how SCOTUS Justices aren't politicians in funny robes and jabots. I could use the laugh. Honestly the only people stupid enough to believe that are like, dead reckoning and that one guy with the truck av
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Jul 2, 2021 00:42
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Staluigi posted:it seems like it should be a much bigger deal what the supreme court actually just went and did, considering that today strom thurmond is smiling up from hell, tears in his eyes, saying "thank you ... thank you for stopping what i couldn't" The VRA is dead because neither Congress nor the Executive actually care to slap down the courts when they decide they have unlimited power and that Congress doesn't get to have final say on voting rights gently caress your post war amendments.
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Jul 2, 2021 01:00
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https://mobile.twitter.com/DavidAFrench/status/1410657379201523713
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Jul 2, 2021 03:43
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https://mobile.twitter.com/gtconway3d/status/1410630061422792706
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Jul 2, 2021 03:47
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Stereotype posted:their message is quite clear: effecting public policy via rich people methods like spending money is incredibly protected and even the vaguest notion that anything might be getting in the way even a little, or even just the suggestion that it might, is unconstitutional as hell. effecting public policy via poor people methods (voting, signing petitions, protesting) is not free speech and you can make all sorts of laws that make it incredibly burdensome or even impossible, as long as you pretend like you had a reason that wasn't just "racism". possible reasons include "i wanted to win the election"
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Jul 2, 2021 14:48
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Thomas and Gorsuch wrote in a dissent today that they want to overturn NYT v Sullivan, because of course they do https://twitter.com/mjs_dc/status/1410955611597070341?s=21
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Jul 2, 2021 15:46
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