dan_admin_civil

For a generation, state and local governments have faced a Goldilocks problem when they redistrict. Courts require them to use race to design districts in order to comply with Section 2 of the Voting Rights Act, but they invalidate maps under the 14th Amendment to the U.S. Constitution when racial considerations “predominated” in the drawing of districts. Seemingly every approach state and local governments have taken to try to draw districts that would comply with these dueling requirements leaves them in the crosshairs of plaintiffs and the federal judiciary: ignoring race entirely, following bright-line concentration rules established by Supreme Court precedents to assure protected classes’ voting power, deferring to the requests presented by representatives of protected classes, deferring to the decisions of nominally non-partisan redistricting panels, and more. There is also an obvious disconnect between voting reformers’ complaints about our current redistricting systems and those reformers’ proposed solutions. Almost no proposal on offer would solve these problems, and almost every proposal on the table would actually make them worse. Indeed, even the remedies imposed by courts have been attacked in later litigation as violating one or both of Goldilocks’ warring demands. But there is a solution to the Goldilocks problem. State and local governments can avoid further redistricting litigation under both the Constitution and Section 2 by simply getting out of the game and drawing no districts whatsoever. This piece originally ran, along with a response from Kevin St. John and a reply from the author, in The Federalist Society Review, Vol. 21.

The furthest advanced effort of the California legislature to allocate opportunities on the basis of group identities has got to be the statutes (two passed in the last three years) to amend the state’s Corporations Code to dictate whom stockholders can elect as their directors. These allocations have been challenged in state and federal court, and -- should it survive those initial suits -- additional claims will surely follow. This piece originally ran on the blog of the Civil Rights Practice Group of the Federalist Society.

Things happen slow and then fast. It took almost a century for Congress, and President Lyndon B. Johnson, a Democrat from Texas, to enact the Civil Rights Act of 1964, putting America back on the side of defending the equality before the law of all U.S. Citizens. Then, it took less than a year (less than a week after an intervening atrocity) for President Johnson to call Congress to the special session that would produce the Voting Rights Act of 1965. This piece originally ran as part of a Constituting America program on American history. This piece originally

For a decade after the Civil War, the federal government sought to make good its promises and protect the rights of the liberated as American citizens.  Most critically, in the Civil Rights Act of 1866, Congress created U.S. Citizenship and, in the Civil Rights Act of 1875, Congress guaranteed all American Citizens access to all public accommodations. Then, stretching from 1877 to the end of the century following the close of the Civil War, the federal government did nothing to assure that those rights were respected. Eventually, in Brown v. Board of Education, the Supreme Court started to admit that this was a problem, a clear failure to abide by our Constitution. But the Supreme Court (in Brown II) also made clear that it wouldn’t do anything about it. So things stood, until a bad man in high office made it his business to get the federal government again on the side of right, equality, and law. That man was Lyndon Baines Johnson. And while this story could be told in fascinating, exhaustive detail, these are its broad outlines. This piece originally ran as part of a Constituting America program on American history.

You can count on one hand the number of Supreme Court decisions that normal people can identify by name and subject. Brown is one of them (and, arguably, both the widest and most accurately known). And it’s place in the public mind is well-deserved, even if it should be adjusted to reflect more accurately its place in modern American history. This piece originally ran as part of a Constituting America program on American history.

Usually, breaking down history into chapters requires imposing arbitrary separations. Every once in a while, though, the divisions are clear and real, providing a hard-stop in the action that only makes sense against the backdrop of what it concludes, even if it explains what follows. For reasons having next-to-nothing to do with the actual candidates, the Presidential election of 1876 provided that kind of page-break in American history. It came on the heels of the Grant Presidency, during which the victor of Vicksburg and Appomattox sought to fulfill the Union’s commitments from the war (including those embodied in the post-war Constitutional Amendments) and encountered unprecedented resistance. It saw that resistance taken to a whole new level, which threw the election results into chaos and created a Constitutional crisis. And by the time Congress had extricated itself from that, they had fixed the immediate mess only by creating a much larger, much more costly, much longer lasting one. This piece originally ran as part of a Constituting America program on American history.

In 2013, after the Obama Administration's Department of Education issued the first of three "guidance" letters related to the application of Title IX of the Education Amendments of 1972 to allegations of sexual harassment or sexual violence on college campuses, the United States Civil Rights Commission (America’s statutory guardian of civil rights since 1957) decided to undertake a narrow investigation into the conflict between the First Amendment and free expression, on the one hand, and sexual harassment law as applied on campus, on the other. But a funny thing happened between that decision and the Commission’s release, in January of 2020, of its related report seven years later. Catherine Lhamon, the Assistant Secretary of Education for Civil Rights who oversaw the preparation of at the last two of those rounds of “guidance[,]” became the Chairman of the Commission. And Chairman Lhamon had no interest in recusing herself from “grading” Assistant Secretary Lhamon’s previous work. No, instead, she oversaw the production of the Commission’s final report, published over her signature, with the odd title of “Free to Learn: Speech and Sexual Harassment on Campus[.]” Chairman Lhamon, sitting in judgment of Assistant Secretary Lhamon, assured that the Commission would laud her efforts and endorse the policies she implemented in her previous role.  Missing the point that those policies reduced the civil rights of Americans (both those accused and those too afraid to speak lest they be accused of harassment) was the point.  And the fact that, under Ms. Lhamon’s guidance, the Commission would take that stance demonstrates exactly why it is that America has norms requiring parties not to be their own judges, even where, as here, no law expressly forbids it.