December 1, 2021

Volume XI, Number 335


November 30, 2021

Subscribe to Latest Legal News and Analysis

November 29, 2021

Subscribe to Latest Legal News and Analysis

Supreme Court Update: Brnovich v. Democratic National Committee (No. 19-1257), Americans for Prosperity Foundation v. Bonta (No. 19-251), Johnson v. Guzman Chavez (No. 19-987)

Let’s get right to it…

At issue in Brnovich v. DNC were two restrictions in Arizona’s otherwise fairly permissive voting laws. First, some counties do not count in-person ballots cast on election day if they are cast in the wrong precinct. Second, mail-in ballots can be collected only by an election official or mail carrier, a member of the voter’s household or family, or a caregiver, and not so-called “ballot harvesters”—unrelated third parties, often campaign workers, who distribute and collect absentee ballots en masse. The Ninth Circuit, sitting en banc, concluded that these rules have a disparate impact on minority voters, found that at least some of the Arizona legislators who enacted them did so with discriminatory intent, and held that they therefore violate Section 2 of the Voting Rights Act (VRA). The Supreme Court reversed, 6-3, with Justice Alito writing for the conservative majority and Justice Kagan penning an impassioned dissent.

Justice Alito began with an account of America’s sordid history of suppressing minority votes (which lead to the passage of the VRA) and the development of Section 2. Of particular importance, Section 2 was amended in 1982 to require consideration of “the totality of circumstances” in each case and requires proof that voting is “not equally open to participation” from minority voters, in that they “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” The legislative history suggests that this language was chosen with a particular focus on problems of minority vote dilution—i.e., the use of district line-drawing to dilute the ability of minority voters to affect election outcomes—which had been a contentious issue addressed by several Supreme Court cases in the decade preceding the amendment. Justice Alito emphasized that the legislative history does not suggest that Congress was concerned with the equal application of otherwise facially-neutral rules specifying the time, place, or manner of voting.

In the years following its amendment, § 2 has been the subject of numerous vote-dilution cases. But, until now, the Supreme Court had never addressed how § 2 applies to time, place, and manner voting cases.

Having laid out this background, Justice Alito then turned to two additional preliminary matters before addressing the substantive legal issue. First, he explained that there was no issue of Article III standing, because the State of Arizona intervened in the case below and certainly had standing to press the appeal. Second, Justice Alito emphasized that the Court’s decision was not intended to announce a comprehensive test to cover all time, place, and manner voting restrictions under § 2. Rather, in its first foray into this area of election law, the Court was content to “identify certain guideposts” that informed its decision.

With that, Justice Alito turned to the substance of the issues. He began with “careful consideration” of the statutory text, homing in on Section 2(b)’s language to the effect that a law only violates Section 2 if it “results in” electoral processes that are not “equally open” to minority voters by giving them “less opportunity” than other voters to participate in the election. For Justice Alito, “equal openness” is the “touchstone” for Section 2.

Justice Alito also emphasized Section 2(b)’s focus on “the totality of the circumstances” and went on to provide a non-exhaustive list of circumstances to be considered. These include (1) the size of the burden imposed by the challenged voting rule; (2) the degree to which the voting rule departs from standard practices at the time Section 2 was amended in 1982; (3) the size of any disparate impact on minority groups; (4) the opportunities provided by a State’s entire system of voting; and (5) the strength of the state interests served by the challenged voting rule. Together, consideration of these circumstances will give a reviewing court a sense of whether a given voting law impairs the “equal openness” of voting. Justice Alito also identified some factors that lower courts have considered previously in vote dilution cases, noting that these are not helpful when applied to time, place, or manner voting cases. He also rejected the notion that the “disparate impact” model employed in Title VII and Fair Housing Act cases should apply to voting cases like this one.

Having laid out these principles (and after rejecting the dissent’s differing conception of the totality of the circumstances test outlined further below), Justice Alito then applied these factors to the two Arizona voter laws at issue. He concluded that neither of them impose significant burdens on voting, that Arizona took the necessary steps to ensure that the burden would be as light as possible, that the disparate impact on minority groups was small in absolute terms (in the 2016 election, about 1% of various minority groups’ voters were impacted by the precinct rule, whereas the rate was about 0.5% for white voters). Justice Alito also noted that the State’s interests in preventing voter fraud and intimidation were important and furthered by the rules.

An additional question presented in the case was whether the rule requiring only certain persons to deliver mail-in ballots was enacted with a discriminatory purpose. The district court had found as a factual matter that it was not, despite the fact that some proponents plainly harbored “racially discriminatory motives.” The Arizona legislature “as a whole” was not “imbued” with such motives, so there was no basis for concluding the law was passed with discriminatory intent.

Justice Gorsuch filed a one-paragraph concurrence, with Justice Thomas joining, noting that it remains an open question, unaddressed in this case, as to whether the VRA furnishes an implied cause of action under § 2 in the first place.

Justice Kagan wrote a strident dissent on behalf of the Court’s liberals, claiming that the majority “undermines Section 2” and the right to an equal opportunity to vote. Like Justice Alito, Justice Kagan provided a (lengthier) account of the history of racially-motivated voter suppression in the United States that led to the VRA. She then went on to emphasize that the problem has not gone away—and has in fact “become worse” since the Court gutted key provisions of the VRA in its decision in Shelby County v. Holder (2013).

Justice Kagan went on to address the text of Section 2 itself, concluding that its purpose is to prohibit any voting rules “that contribute to a racial disparity in the opportunity to vote.” She emphasized the breadth of Section 2’s language and focused on the fact that the statue bars any law that “results in” such a disparity. For Justice Kagan, that means the focus should be on the results of a law, not the intent with which it was passed. Accordingly, what matters is whether a law, under the totality of the circumstances, makes it harder for minority groups to cast ballots than for others, regardless of whether it applies to all groups equally on its face. Courts should consider not just the law itself, but also the background conditions of the populace, in determining whether such disparate impact is present. A state’s interest in protecting the integrity of its voting processes is relevant, but not if the same interest can be achieved without causing the disparate impact on minority groups.

Justice Kagan thus rejected Justice Alito’s list of five circumstances to be considered, calling them “a set of extra-textual restrictions on Section 2.” For her, the list doesn’t appear in the text of the statute and is unworkable in any event. The Court should have stuck to the question of whether there is a disparate impact. And if it had, it would have seen that the Arizona laws do impact minorities, because the precinct rule causes minority votes to be thrown out more than white votes, and the third-party delivery of mail-in ballots impacts Native American citizens in far-flung places in the state more than all others.

For Justice Kagan, the Court had “no right to remake Section 2,” which is what, in her view, the majority’s decision did.

In its last decision of the term, a 6-3 Court held in Americans for Prosperity Foundation v. Bonta (No. 19-251), that a California regulation requiring charitable organizations to disclose the identities of their major donors to the state Attorney General’s Office violates the First Amendment. The case broke more-or-less along ideological lines, with the Chief Justice writing for a majority (on all but the precise standard of review to be applied in compelled disclosure cases) and Justice Sotomayor leading the charge for a unified trio of dissenters.

California law gives the Attorney General the authority to establish and maintain a register of charitable organizations and to obtain “whatever information, copies of instruments, reports, and records are needed for the establishment and maintenance of the register.” Charities must generally register with the Attorney General in order to operate and raise funds in California and to renew their registrations every year. Pursuant to its regulatory authority, the Attorney General’s Office requires charities registering or renewing their registration to file copies of their IRS Form 990s and related schedules. Schedule B of the Form 990 requires organizations to disclose the names and addresses of donors who have contributed more than $5,000 in a particular tax year. While this combination of regulations required all charities to disclose their large donors in order to do business in California, for many years the Attorney General’s Office didn’t actually require the filing of Schedule Bs. But that changed in 2010, when the office (under then newly elected AG Kamala Harris) stepped up its enforcement efforts and sent thousands of deficiency letters to charities that had not submitted Schedule Bs. Americans for Prosperity (a nonprofit focused on education and training about “free markets, civil liberties, immigration reform, and constitutionally limited government) and Thomas More Law Center (a public-interest law firm dedicated to protecting “religious freedom, free speech, family values, and the sanctity of human life”) received such deficiency letters in 2012 and 2013 but refused to disclose their contributors’ identities. When the Attorney General threatened to suspend their registrations and issue fines, AFP and the Law Center filed suit, alleging that enforcement of the disclosure requirement would violate their First Amendment rights and those of their donors. They challenged the disclosure requirement both on its face and as applied to them. The district court granted preliminary injunctive relief in each case, but the Ninth Circuit reversed. It rejected the facial challenge and applied “exacting scrutiny” to the as-applied challenge, under which it narrowed the injunction to allow the AG’s Office to collect the charities’ Schedule Bs so long as they were not publicly disclosed. On remand, the district court held a bench trial and then entered permanent injunctions prohibiting the AG’s Office from collecting the charities’ Schedule Bs. The Ninth Circuit again reversed, holding that the district court erred in imposing a narrow-tailoring requirement and that, under exacting (as opposed to strict) scrutiny, the disclosure regime was constitutional because it promoted investigative efficiency and effectiveness and did not meaningfully burden associational rights.

The Supreme Court reversed. Writing for the conservative majority, the Chief Justice began with the common understanding that the right of association is protected by the First Amendment and that “compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as other forms of government action.” The Court most famously announced this principle in NAACP v. Alabama (1958), where it prohibited the Alabama Attorney General from compelling the disclosure of the NAACP’s membership lists. But, as the Chief acknowledged, “NAACP v. Alabama did not phrase in precise terms the standard of review that applies to First Amendment challenges to compelled disclosure.” In a section of his opinion joined only by Justices Kavanaugh and Barrett, the Chief concluded that the “exacting scrutiny” standard drawn from the campaign-finance context applies in all compelled-disclosure cases. “Under that standard, there must be a substantial relation between the disclosure requirement and a sufficiently important governmental interest,” which reflects “the seriousness of the actual burden on First Amendment rights.” The Chief rejected the Law Center’s argument that exacting scrutiny is unique to the elections context and that strict scrutiny should therefore apply here. However, he agreed (and here reassembled a majority) that even exacting scrutiny requires that disclosure regimes be narrowly tailored to the government’s asserted interest (even if not the least restrictive means of achieving it).

Applying exacting scrutiny, the Chief concluded that California’s disclosure regime is facially unconstitutional because, while California may have an important interest in preventing fraud and other wrongdoing by charitable organizations, “[t]here is a dramatic mismatch . . . between the interest that the Attorney General seeks to promote and the disclosure regime that he has implemented in service of that end.” As the district court found, 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.” Here, the Chief criticized the dissent’s relitigation of factual findings made by the district court, despite the clear-error standard of review. Based on the record before the Court, and the district court’s reasonable factual findings, “[t]he 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.” The disclosure regime, therefore, was not narrowly tailored to the State’s purported interest. And while the regime might the Attorney General’s job easier, “ease of administration” is not a sufficiently important interest to survive exacting scrutiny. Given the categorical lack of tailoring with respect to the State’s interest in preventing fraud, and the categorical weakness of its interest in administrative ease, the Chief (for a majority, but without Justice Thomas) concluded that the regime is facially unconstitutional and not just as applied to APF and the Law Center. Notwithstanding the State’s assurances that donor lists would remain confidential (an assurance the district court found hollow), the regime had an impermissible chilling effect on donors who may wish to associate with any charitable organization.

Justice Alito filed a concurring opinion, joined by Justice Gorsuch. They joined all of the Chief’s opinion except for the part establishing exacting scrutiny as the standard of review. Though they suggested that strict scrutiny is the proper standard, they did not believe that the Court needed to decide which standard should be applied, since the disclosure regime would fail both strict scrutiny and exacting scrutiny. They appreciated, however, that majority opinion insisted “that the exacting scrutiny standard drawn from our election-law jurisprudence has real teeth,” including a requirement of narrow tailoring and consideration of alternative means of achieving a state’s interest.

Justice Thomas also wrote separately. He also refused to join the part of the opinion establishing exacting scrutiny as the standard of review, preferring to apply strict scrutiny. But he wrote principally to express his continued “doubts about the origins and application of our overbreadth doctrine.” In his view, “the Court has no power to enjoin the lawful application of a statute just because the statute might be unlawful as-applied in other circumstances.” He therefore joined the opinion to the extent it found the disclosure regime unconstitutional as applied to the petitioners, but not the portion finding it unconstitutional on its face.

Justice Sotomayor wrote for the dissenters (joined by Breyer and Kagan). Her principal objection was to the majority’s narrow-tailoring requirement. In her view, plaintiffs must first “demonstrate an actual First Amendment burden before demanding that a law be narrowly tailored to the government’s interests.” Here, there are plenty of donors (maybe most) who would not object to being publicly associated with charities that they financially support. Petitioners here had failed to show that even a substantial portion of those affected by the disclosure requirement would be objectively burdened by the loss of anonymity. This gives any regulated entity a free pass to avoid disclosure obligations “by vaguely waving toward First Amendment ‘privacy concerns.’” “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” should not, Sotomayor argued “appl[y] equally in the case of donors only too happy to publicize their names across the websites and walls of the organizations they support.”

Finally, in Johnson v. Guzman Chavez (No. 19-895), a majority of six (again consisting of the Court’s conservatives) held that noncitizens who reenter the country without authorization after removal are not entitled to bond hearings.

The Immigration and Nationality Act (INA) governs removal proceedings. Under 8 U.S.C. 1226, the Department of Homeland Security (DHS) is permitted to arrest and detain a noncitizen pending a determination as to whether the noncitizen is removable. While that process is underway, the noncitizen can apply for release on bond or conditional parole. The request is first heard by DHS and if it is denied, the noncitizen can apply for a bond hearing before an immigration judge. Bond or not, the removal proceedings culminate in a hearing before an immigration judge who must decide whether to issue an order of removal. If the immigration judge issues a removal order, DHS must remove the noncitizen within a 90-day “removal period” that begins on the latest of: (1) the date the removal order becomes “administratively final,” (2) the date of the final order of any court that entered a stay of removal, or (3) the date on which the noncitizen is released from non-immigration detention or confinement. The noncitizen must remain in detention for the duration of the removal period.

If a noncitizen reentersthe country without authorization after removal, he is not entitled to the same procedural protections. 8 U.S.C. 1231 provides an expedited removal process by which the Attorney General may reinstate the prior removal order from its original date. The order “is not subject to being reopened or reviewed,” and the noncitizen “is not eligible and may not apply for any relief.” But there is one important caveat: the Section 1231 expedited removal process does not prevent a noncitizen from pursuing “withholding only” relief to prevent DHS from removing the noncitizen to a particular country where his life or freedom would be threatened due to his race, religion, nationality, membership in a particular social group, or political opinion, or where he is likely to be tortured.

Enter Respondents, a group of noncitizens who were removed and later reentered the country. When DHS learned of their reentry, it reinstated their removal orders. Each respondent pursued withholding-only relief. In the meantime, they were detained by DHS. They sought release on bond, which the Government opposed on the ground that because they were detained under Section 1231 and not Section 1226, they were not entitled to bond hearings. Habeas proceedings ensued, with the district court ultimately holding that the noncitizens were entitled to bond hearings. The Fourth Circuit affirmed. The Court granted cert to determine which provision—Section 1231 or 1226—governs the detention of a noncitizen who reenters without authorization.

Writing for the majority, Justice Alito looked to the statutory text. Section 1226 authorizes detention “pending a decision on whether the alien is to be removed.” Section 1231, by contrast, authorizes detention when the noncitizen has already been “ordered removed” and entered the “removal period,” which begins on the “date the order of removal becomes administratively final.” The Respondents were “ordered removed” upon the issuance of the initial removal orders. And those orders were “administratively final” because the opportunity to seek administrative review had long passed. Because the noncitizens had already been ordered removed by an administratively final removal order, Section 1331 governed their detention. Justice Alito found further support for his interpretation in the statute’s structure: the statutory withholding provision is located within Section 1231, so it only makes sense that Section 1231’s procedural provisions would apply.

The remainder of the opinion debunked each of Respondents’ arguments in favor of applying Section 1226 (which, recall, would have allowed them a bond hearing). They argued that during withholding-only proceedings the question of whether removal is appropriate remains “pending,” triggering Section 1226. Not so, said Justice Alito. Withholding-only proceedings affect where the noncitizen may be removed to, not whether the noncitizen may be removed. Justice Alito next rejected the notion that the removal orders lose their administrative finality when they are reinstated. Just last term, the Court held in Nasrallah v. Barr (2020) that the grant of withholding relief does not “disturb the final order of removal.” Respondents’ various arguments that the withholding-only proceedings toll the removal period and preclude Section 1331 from applying were similarly unsuccessful.

Justices Thomas and Gorsuch concurred in the opinion’s reasoning, but they would have vacated and remanded on jurisdictional grounds. Specifically, a federal statute permits judicial review of removal cases only in limited circumstances, none of which they thought was satisfied here.

The liberal wing, led by Justice Breyer, dissented. Justice Breyer emphasized that withholding proceedings often last more than a year. While it may make sense to detain noncitizens without bond during a removal period capped at 90 days, the same reasoning does not apply to such a lengthy process. And, in his view, the statute’s text does not mandate detention without bond because until the withholding-only proceeding is complete, the order is not administratively final and therefore Section 1226, not 1231, applies.

That’s it for today. We’ll be back after the holiday weekend to summarize the Court’s last two decisions of the term: TransUnion LLC v. Ramirez (No. 20-297), and PennEast Pipeline v. New Jersey (No. 19-1039). Until then, enjoy your Fourth of July.

© 1998-2021 Wiggin and Dana LLPNational Law Review, Volume XI, Number 187

About this Author

Tadhg Dooley Appelate Attorney Wiggin Dana New Haven, CT

Tadhg is a Partner in the firm’s Litigation Department, where his practice focuses on appellate and complex civil litigation. He has extensive experience handling appeals in state and federal courts throughout the country and has obtained favorable results for a diverse range of clients, from federal prisoners to foreign presidents, big companies to small towns. Among other recent successes, Tadhg helped a municipality overturn a $6.8 million verdict in the Connecticut Appellate Court, and helped a dental practice overturn a $3.7 million verdict in the Georgia Supreme Court. Tadhg has also...

David Roth Litigation lawyer Wiggin Dana

David is Counsel in Wiggin and Dana’s Litigation Department and a member of the firm’s Appellate, Art and Museum Law, and Intellectual Property Litigation practice groups. He has assisted insurers, universities, large companies, cultural institutions, and sovereign nations in a variety of complex civil litigation and appeals. Representative matters include trademark, copyright, and patent cases; insurance class-actions; art-ownership disputes; and high-stakes business litigation. David has also represented private individuals and companies in several criminal matters and...