Tag: history

  • Supreme Court Upholds Alabama Congressional Map, Further Erodes Protections Against Racial Gerrymandering

    The Supreme Court late yesterday allowed Alabama to use a congressional district map that was based on intentional race discrimination, according to an earlier three-judge court decision.

    The ruling almost certainly means that Alabama will have one less Black representative in Congress, and one less Democrat.

    It also means that plaintiffs will have an even tougher time proving illegal racial discrimination in legislative districting going forward–that is, even more difficult than after the Court’s recent ruling in Louisiana v. Calais. In other words, yesterday’s ruling, as a practical matter, all but eliminates racial discrimination claims in legislative districting. That’s because the Court made it yet easier (again, easier even than Calais) for states to evade claims of racial discrimination by simply providing political reasons for their maps, even political reasons that overlap with race. And if states can’t even manage that, they can evade claims by playing the courts.

    To see all this, here’s a brief history of this up-and-down case:

    In 2021, Alabama adopted a new congressional map with just one majority-Black congressional district. A three-judge court ruled that the map violated Section 2 of the Voting Rights Act, because it had a racially discriminatory effect and diluted Black voters’ voting strength. The court ordered the state to adopt a map that included a second district where Black voters could elect a candidate of their choice.

    Alabama appealed to the Supreme Court, arguing that it didn’t have time to implement the lower court’s ruling. (The lower court issued its ruling in January 2022, and Alabama’s primary election was slated for May 2022.) The Court stayed the lower court ruling and allowed Alabama to use the 2021 map (the one with just one majority-Black district).

    The Supreme Court later affirmed the lower court’s ruling (that the 2021 map violated Section 2 of the VRA) and its remedy (to draw a second district where Black voters could elect a candidate of their choice). The Court said that the lower court faithfully applied Court precedent in its ruling and remedy.

    In response, in 2023 Alabama adopted another map, also with just one district where Black voters could elect a candidate of their choice. (In other words, the state thumbed its nose at the Supreme Court ruling.)

    Plaintiffs then challenged the 2023 map, arguing that it violated both Section 2 of the VRA and the Equal Protection Clause of the Fourteenth Amendment. (Although those are related, they are two different, distinct claims.) The district court ruled that the new map violated the VRA. The court instituted a remedial map, drawn without reference to race. This map governed the 2024 election.

    Alabama again appealed to the Supreme Court. While the appeal was pending, the Court decided Callais. Callais revised the test for Section 2 claims under the VRA and made it substantially harder (maybe impossible) for racial minority voters to prove a Section 2 violation. (That’s because Callais now requires plaintiffs to dis-aggregate and account for any state political objective in redistricting–a near impossible feat in the racially-polarized political environments where Section 2 does its work. In other words, after Callais, states can insulate themselves from a Section 2 claim simply by providing political objectives for their gerrymander.)

    But Callais did not change the test for equal protection claims.

    After it issued Callais, the Court vacated the lower-court ruling and remanded the case for reconsideration in light of Callais. Alabama announced that it would use the 2023 map (which, recall, the district court struck as a racial gerrymander) for the upcoming 2026 election. (The governor called a special primary election for August 11 (months later than the regularly scheduled primary) in four of the districts that were affected by all this.)

    On remand, the three-judge district court ruled again that the map violated the VRA. It also ruled that the map was based on intentional racial discrimination in violation of the Equal Protection Clause. (The court said that its earlier decision on intentional racial discrimination was “undisturbed by Callais.” That’s not surprising, because, remember, Callais changed the Section 2 test (for discriminatory effect), not the equal protection test (for discriminatory intent).) It wrote, “[D]espite our searching review of all the evidence before us–much of it directly from the Legislators and Legislature, none of it in dispute–try as we might, we cannot understand the 2023 Plan as anything other than an intentional effort to dilute Black Alabamians’ voting strength and evade the unambiguous requirements of court orders standing in the way.” (Just a quick note on that: Under Supreme Court precedent, without direct evidence of racial discrimination, it’s tough–really tough–to prove that a racial gerrymander is based on intentional racial discrimination.)

    Yesterday, the Supreme Court stayed that ruling. In a brief, shadow-docket opinion, the Court wrote that the district court failed to apply a presumption of good faith to the state’s behavior and failed to apply the new Callais standard.

    Significantly, the Court extended the new Callais standard to the equal protection claim, writing, “And, as to both claims, the District Court’s analysis departed from Callais.” (Recall that Callais revised the standard for Section 2 claims under the VRA. Callais said nothing about equal protection claims like the one at issue in this case.) This shoehorns the new Callais standard into equal protection claims and makes it equally difficult (or impossible) for plaintiffs to challenge a racial gerrymander under the Equal Protection Clause as it now is to challenge a racial gerrymander under the VRA.

    The ruling also validated the state’s efforts to manipulate the courts. Recall that the state previously told the Court that it couldn’t comply with the first district court ruling, because it didn’t have enough time before its scheduled election (from January 2022 to May 2022). Yet the state now says that it can switch from the district court’s earlier remedial map (which the state used in the 2024 elections) to the 2023 map for the 2026 primary elections–on a much tighter timeline. Moreover, recall that the state ignored the Court’s earlier ruling that affirmed the district court’s holding that the 2023 map likely violated the VRA and the district court’s order requiring the state to draw a second majority Black district. The Court’s ruling yesterday validates all this behavior.

    Justice Sotomayor dissented, joined by Justices Kagan and Jackson. She concluded, “Because I choose to defend the rule of law and the right of all Alabamians to participate equally in democracy, I respectfully dissent.”

  • Court Stops National Park Service from Removing Protestors’ “8647” Flag

    Judge Randolph D. Moss (D.D.C.) issued a temporary restraining order yesterday preventing the National Park Service from revoking the demonstration permit of a protestor or removing the protestor’s flag, which included the numbers “8647.” The court rejected NPS’s arguments that the flag amounted to a true threat or incitement.

    The ruling is temporary, so the court’s assessment goes to the likelihood of success on the merits (and not necessarily the actual success). Still, it’s hard to see how NPS could prevail as the case moves forward.

    The case, Accountability Now USA v. Griess, arose when NPS officers instructed protestors to take down their “8647” flag from their 24/7 protest tent and threatened to revoke their free-speech permit if it reappeared. Accountability Now amended an existing complaint against NPS (for threatening to revoke the permit for other yet other signs that the organization displayed at the site) and sought a TRO.

    The court ruled that Accountability Now was likely to succeed on the merits of their free-speech claim. The court first noted that content-based restrictions on speech, especially political speech, are inherently suspect and generally invalid under the First Amendment. It then rejected NPS’s arguments that the flag represented a “true threat” or “incitement,” two exceptions to the First Amendment’s general prohibition on content-based restrictions on speech.

    “‘True threats’” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black (2003). In assessing whether a statement constitutes a “true threat,” courts look to the entire factual context of the statement. A statement must meet both an objective standard and “a subjective mental-state requirement . . . .” Counterman v. Colorado (2023). As to the subjective standard, a speaker must “consciously disregard[] a substantial and unjustifiable risk that the conduct will cause harm to another.” Id.

    The court said that the overall context of the flag didn’t meet this test. It pointed to a dictionary definition, which said that “86” mostly means “to throw out” or “to get rid of”; the fact that the flag contained no symbol of violence and was part of a months-long demonstration demanding “the impeachment and removal of President Trump”; and the fact that a protestor earlier told an NPS officer that they “want[ed] Trump to live forever” so that he could “rot in jail.”

    “Incitement” is speech “directed [at] producing imminent lawless action and likely to incite or produce such action.” Brandenburg v. Ohio (1969). Like “true threats,” “incitement” also depends on context. It also requires the speaker to have “specific intent, presumably equivalent to purpose or knowledge.” Id.

    The court ruled that the flag didn’t meet this test, either. As with “true threats,” the surrounding context showed that the flag did not constitute “incitement.”

  • No Right to Post “Crass” Statements by Coast Guard Auxiliarist

    The Seventh Circuit ruled yesterday that a Coast Guard Auxiliarist’s “Crass” Statements on social media are not protected by the First Amendment.

    The case, Wenzler v. United States Coast Guard, arose when Coast Guard Auxiliary member James Wenzler posted a series of offensive statements on LinkedIn. After warning him, the Auxiliary suspended Wenzler, initiated formal disciplinary proceedings, and ultimately removed him from his position.

    Wenzler sued, arguing that the Coast Guard retaliated against him for engaging in protected speech. The district court ruled for the Coast Guard, and the Seventh Circuit affirmed.

    The court applied the familiar Connick/Pickering test for free speech for public employees. Under that two-part test, courts first ask if a public employee’s speech was on a matter of public concern. If not, the speech is unprotected. But if so, courts then balance the speaker’s interests “in commenting upon matters of public concern” against the government’s interest “in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Education (1968).

    The court assumed that Wenzler’s speech touched on matters of public concern. It then ruled that the Auxiliary’s interests outweighed Wenzler’s:

    Given the uncontested facts before us, the Auxiliary could have reasonably determined that Wenzler’s speech and actions would be detrimental to the Auxiliary and its reputation. He served in a leadership role, and the example he set matters. The Auxiliary could have reasonably expected that other Auxiliarists would be less likely to work with Wenzler, or at least to work well with him, following his derogatory comments and attacks on others. Wenzler’s statements alarmed at least two members of the public enough to notify the Auxiliary. On this record, the Auxiliary could have been justifiably concerned about its negative impacts to its reputation and, in turn, its recruiting and retention. In the long run, its ability to serve the public might suffer, or at least the Auxiliary could have reasonably believed so.

    The district court properly found that the Coast Guard’s reasonable determination that Wenzler’s speech could undermine the Auxiliary’s mission outweighed his interest in the statements he made.

  • A History of President Trump’s “Anti-Weaponization Fund” and Why it Matters

    Late last week, two federal courts dealt separate blows to President Trump’s efforts to establish an “Anti-Weaponization Fund,” a pot of federal money that President Trump could effectively pay out to his supporters with no meaningful oversight or check.

    In one case, the court temporarily halted the Fund’s implementation while the court considers a motion for a temporary restraining order. In the other case, the original case brought by President Trump, the court ordered the plaintiffs to brief whether the case was collusive from the get-go, justifying dismissal and potential sanctions against the attorneys. Those cases, and others challenging the Fund, are pending; we don’t have any definitive rulings yet.

    The episode is a case study in the attempted aggrandizement of presidential power at the expense of Congress and the courts. It comes in two steps. First, President Trump tried to play the courts by filing and “settling” a collusive lawsuit against an agency he supervises. Next, he tried to bypass Congress by unilaterally establishing a nearly $1.8 billion fund, with his own five-member board to control it.

    But federal courts don’t hear collusive lawsuits. Instead, Article III requires that parties be adverse. And in our system, the president can’t just establish a fund and a board to control it. Article I says that those powers belong to Congress.

    The courts and Congress, if they play their institutional roles in our checks-and-balances system, can reassert their powers by pushing back against this effort. The courts can reopen the original collusive case and scrutinize the parties’ behavior, and they can rule that the Fund violates the separation of powers, among other things. Congress, for its part, can enact legislation restricting the Fund or even eliminating it (subject, of course, to an admittedly unlikely presidential signature or a similarly unlikely veto override). It could also hold up other presidential priorities and even engage in meaningful oversight. But again: only if it’s willing to play its institutional role.

    In the meantime, to see how this unfolded, here’s a short history:

    The Lawsuit: January 2026

    In January 2026, President Trump, his sons, and the Trump organization sued the IRS and Treasury Department on the ground that a former government contractor improperly released Trump tax documents. The plaintiffs sought $10 billion in damages.

    The lawsuit was, er, unusual. For one, presidents don’t typically sue agencies that they supervise. President Trump acknowledged this himself shortly after he filed suit when he said, “I’m supposed to work out a settlement with myself.” For another, the $10 billion claim for damages seemed on the high side. For a third, the plaintiffs filed the suit outside the two-year statute of limitations for lawsuits challenging the unauthorized disclosure of tax returns.

    Outside parties raised these issues and others with the court. Department of Justice attorneys, who represent the government in court, did not even file an appearance in the case.

    The court, concerned that the lawsuit may have been collusive (and that it therefore might have lacked jurisdiction), ordered the parties to file briefs on the issue by May 20, 2026.

    Plaintiffs Voluntarily Dismiss the Case: May 18, 2026

    On May 18, two days before the court’s deadline to file briefs on the jurisdictional issue, the plaintiffs voluntarily dismissed the case. (Federal rules allow a plaintiff to voluntarily dismiss their case; and when they do, the case goes away.) The plaintiffs did not file a brief on the jurisdictional issue, and they did not attach a settlement agreement. As a result, the court did not rule on the jurisdictional issue, and it did not approve any settlement. Instead, it simply dismissed the case.

    DOJ Announces an Agreement: May 18, 2026

    Later that same day, DOJ announced that the parties reached an agreement: DOJ would establish a $1.776 billion “Anti-Weaponization Fund” “[t]o provide a systematic process to hear and redress claims” of “individuals, groups, and entities” who were “target[ed]” “by Democrat elected officials, political and career federal employees, contractors, and agents . . . for improper and unlawful political, personal, and/or ideological reasons.” Under the agreement, the Attorney General appoints five members to operate the fund. President Trump has authority to remove the members at will.

    Money for the fund comes from the DOJ Judgment Fund, a fund authorized by Congress that allows DOJ to settle lawsuits against the government under certain conditions and subject to certain restraints. It does not allow DOJ to siphon funds off to an “Anti-Weaponization Fund.”

    By design, the “Anti-Weaponization Fund” effectively allows President Trump to pay certain political supporters out of the government’s coffers, without meaningful checks or oversight. As many have pointed out, potential beneficiaries almost certainly include January 6 protestors.

    More Agreements: May 19, 2026

    DOJ later announced that the agreement also provides President Trump and the other plaintiffs with permanent protection against tax audits and prosecutions “before Defendants or other agencies and departments” that are “currently pending or that could be pending.”

    According to wide reporting, this could protect President Trump from a federal tax liability of $100 million or more. It’s also a highly unusual “settlement” term.

    Lawsuits: May 2026

    Various plaintiffs sued in several lawsuits to stop the Fund. Among other things, they argued that the Fund

    • violates the separation of powers, because Congress (the branch that has the powers to pass laws, create government agencies, and appropriate federal funds) did not authorize it;
    • conflicts with federal law and regulations, including DOJ’s regulations on the Judgment Fund and DOJ’s policy of prohibiting settlements that involve payments to third parties;
    • lacks connection to the alleged claims and damages in the original lawsuit;
    • violates the First and Fourteenth Amendments by discriminating among beneficiaries by viewpoint.

    Others have pointed out that the Fund violates Section 4 of the Fourteenth Amendment, insofar as it could pay January 6 protestors or others involved in the effort to overturn the 2020 presidential election. That section prohibits the United States from “assum[ing] or pay[ing] any debt or obligation incurred in aid of insurrection or rebellion against the United States . . . .”

    District Court Halts Fund: May 29, 2026

    Judge Leonie M. Brinkema (E.D. Va.) temporarily halted implementation of the Fund while the court considers a motion for a temporary restraining order in one of the cases challenging the Fund. Judge Brinkeman ordered the defendants to file a response to the plaintiffs’ motion by June 5, with any reply due by June 10. The hearing on the motion is set for June 12.

    Court Reopens Trump Case: May 29, 2026

    On the same day, Judge Kathleen M. Williams (S.D. Fl.), the judge in President Trump’s original case against the IRS and Treasury, ordered the case reopened in order to assess whether the case was collusive, whether “dismissal in [the] case was premised on deception by the Parties,” and whether “the Court was the ‘victim of a fraud.’” Judge Williams ordered the plaintiffs to file their briefs by June 12, 2026, and allowed a response brief by June 19.

    The order came in response to a friend-of-the-court motion to reopen the case filed by thirty-five former federal judges.