The Constitution and Democracy: What in the Election is Going On?!

On this blog I answer questions regarding Constitutional issues of significance in the democratic process. Archived articles focus on legal issues arising out of the passage of Act 10 in Wisconsin. Questions can be submitted to me directly at While I will endeavor to answer all legitimate questions submitted, I reserve the right to ignore questions that are vague, overly argumentative, or outside of my areas of expertise. When I post an answer to a question, I will also note on facebook and twitter that I have added a post to this blog. I can be followed on twitter as amfhoeschen.

Monday, August 1, 2016

Getting to Know the Fourteenth Amendment (and its progeny, Voting Rights)

The last week has been a busy one for the U.S. Constitution, particularly the Fourteenth Amendment and its equal protection clause. The Fourteenth Amendment made a national appearance at the Democratic National Convention in Khizr Khan's speech memorializing his son and rebuking Donald Trump, and went on to play a pivotal role in two federal court decisions declaring certain voting restrictions unconstitutional. In N.C. State Conference of the NAACP v. McCrory, the Fourth Circuit Court of Appeals found that North Carolina enacted its voting restrictions with discriminatory intent, which is a violation of the Fourteenth Amendment. In One Wisconsin Institute, Inc. v. Thomsen, the U.S. District Court for the Western District of Wisconsin found that some provisions of Wisconsin's voting restrictions were enacted with discriminatory intent, and some were not but still violated the Fourteenth Amendment because they had a discriminatory impact and burdened certain groups of voters too much, without justification. 

The "equal protection clause" of the Fourteenth Amendment is in the first paragraph: 
"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Even though the Fourteenth Amendment makes no mention of race, it has been the Constitution's oft-tested guardian of civil rights since its enactment following the Civil War. The courts have consistently interpreted the Fourteenth Amendment as prohibiting race-based classifications by all branches of municipal, state, and federal government unless the government can show a really, really good reason.

In recent decades, analyzing potential Fourteenth Amendment violations has become more complex, as politicians have learned that explicit race-based classifications are illegal. This is particularly true in the context of modern voting restrictions, which never explicitly restrict voting based on race, but often result in burdens that weigh more heavily on less-privileged members of society. The Wisconsin and North Carolina cases decided last week illustrate this. Both involved voting restrictions that placed more burdens on people who don't drive, move a lot, and have less flexible working hours, by implementing voter ID requirements, making voter registration more difficult, and narrowing opportunities to vote outside of election day. In neither case did the laws themselves reference race, but in both cases there was evidence that Republican lawmakers were motivated by a desire to suppress the votes of Democrats, and an awareness that minorities are a large Democratic voting bloc. In North Carolina, some lawmakers were explicit in their desire to roll back increased access to voting that had occurred specifically to remedy a history of racial discrimination at the polls. There was also evidence that lawmakers targeted voting methods that they knew were utilized disproportionately by African-Americans. In Wisconsin there was evidence that lawmakers had a specific desire to curtail voting in Milwaukee, which is known to be home to a majority of the state's African-American and Latino voters.

The lawmakers' knowledge of the outcome of the voting restrictions combined with their stated intent to target voters in ways that correlated with race, combined with the actual outcome of voter suppression resulted in the Fourth Circuit's finding in NAACP v. McCrory that the North Carolina law violated the Fourteenth Amendment: 
"Using race as a proxy for party may be an effective way to win an election. But intentionally targeting a particular race’s access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose. This is so even absent any evidence of race-based hatred and despite the obvious political dynamics. A state legislature acting on such a motivation engages in intentional racial discrimination in violation of the Fourteenth Amendment and the Voting Rights Act." 

In One Wisconsin Institute, Inc. v. Thomsen, the court's decision was more nuanced, as the evidence of intentional discrimination was not as clear. The decision would be a great - but long - reading assignment for a first-year Constitutional Law class, as it clearly explains "burden-shifting" analysis under the Fourteenth Amendment:
"The heart of the opinion considers whether each of the other challenged provisions unduly burdens the right to vote, in violation of the First and Fourteenth Amendments. This analysis proceeds under what is known as the Anderson-Burdick framework, which sets out a three-step analysis. First, I determine the extent of the burden imposed by the challenged provision. Second, I evaluate the interest that the state offers to justify that burden. Third, I judge whether the interest justifies the burden."

Burden-shifting is the foundation of any Constitutional analysis involving civil rights. A court weighs the government interest against the civil rights affected. If the government's interest is important and the rights affected are only somewhat important, the government can do something that restricts (burdens) that right. If the government's interest is kind of stupid, and the right is pretty important (like voting, or free speech) the government can't do much to restrict it. In any case, whatever the government does can't be stupid: The government action has to be designed to actually fix the problem the government identifies.

Keeping people from voting on the basis of race is never a valid government interest. So, for example, when the U.S. District Court in Wisconsin determined that the portion of the law that restricted hours for in-person absentee voting "was specifically targeted to curtail voting in Milwaukee without any other legitimate purpose" there was no need for the Court to do any further analysis. The Court found that "the legislature’s immediate goal was to achieve a partisan objective, but the means of achieving that objective was to suppress the reliably Democratic vote of Milwaukee’s African Americans."  End of analysis. That portion of the law violated the Equal Protection Clause, as well as the Fifteenth Amendment, which specifically prohibits laws that discriminate on the basis of race.

The Court did engage in full burden-shifting analysis to decide whether Wisconsin violated the Fourteenth Amendment by extending the residency requirement for voting from 10 days to 28 days. First, the Court found that extending the residency requirement imposed a "moderate burden" on voting. The state's purported reason for the change was to prevent non-residents from voting, but this was not a legitimate interest because the state provided no evidence of non-residents attempting to vote in the past. Finally, the State's weak interest in preventing non-residents from voting did not justify the burden on voters, because there was no evidence that lengthening the residency requirement would make it any harder for non-residents to vote.

The courts' decisions in NAACP v. McCrory and One Wisconsin Institute, Inc. v. Thomsen are both lengthy decisions addressing a range of voting restrictions. This post is merely a very brief explanation of the relevance of the Fourteenth Amendment to these decisions.

Monday, June 29, 2015

Why Do Gays Have "New Rights" and Do I Have to Bake Them a Cake?

Normally I use this blog to address issues specific to Wisconsin, but the recent Supreme Court decision in Obergefell v. Hodges justifies a departure from this practice.  In Obergefell v. Hodges the Supreme Court decided that the states cannot refuse to license a marriage between two people of the same gender, or refuse to recognize a marriage of two people of the same gender performed in another state.  The decision has given rise to commentary, some of it rather hysterical, suggesting that the Court created new Constitutional rights, and in so doing has infringed on the religious liberties of people who oppose gay marriage.  In this post I present a simple summary of the Constitutional basis of the Court's decision, and the Constitutional reasons why no one's religious liberties are in danger.
I. The Fourteenth Amendment Prohibits States from Violating Fundamental Rights.
The Supreme Court based its decision on Section 1 of the Fourteenth Amendment of the Constitution, which provides:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 
Before the Fourteenth Amendment was added to the Constitution, there was some debate as to whether the Constitution protected citizens from state violations of rights, or only from federal violations.  The Fourteenth Amendment established that citizens are protected from both state and federal interference with fundamental rights.
II. The Court's Decision is Based on the Well-Established Fundamental Right to Marriage.
For the Fourteenth Amendment to apply, there must be a fundamental right at stake.  Several Supreme Court decisions have previously established that the right to marry is a fundamental right.  The lengthy case citations are in the decision. There really isn't much dispute over this point.
III. Gay Citizens are Entitled to Equal Protection of the Laws.
The Court concluded that the states that barred gay marriage were depriving gay couples of the fundamental right of marriage, thereby treating gay couples differently, not equally. There really wasn't any factual dispute; The issue was whether gays are entitled to equal protection.  The states opposing gay marriage argued that they aren't.  But previous Supreme Court cases have struck down laws that treated men and women differently and people of different races differently for the purposes of marriage, finding violations of the equal protection clause.  The Court also cited cases holding that gay couples have the same rights to privacy as other couples.  The Court reached the conclusion that the equal protection clause applies as much to gay couples as straight couples, and therefore the states cannot deny them the fundamental right of marriage.
IV. You Don't Have to Bake the Gays a Cake.
One common misconception about "constitutional rights" is that once you have them, no one can violate them.  That is not true.  The Constitution only limits what the government can do.  The government (state or federal) cannot infringe on your free speech rights, but your neighbor can tell you to shut up. The government cannot treat you differently because you are black, but your co-worker can refuse to go to lunch with you because you are black.  The effect of Obergefell is that state and federal governments cannot treat gay people different from straight people for the purposes of marriage, but the case has no effect on how private citizens can treat each other.  Furthermore, the Court recognized that the free speech and freedom of religion provisions of the First Amendment absolutely protect the rights of clergy to refuse to marry a gay couple. The decision requires states to issue marriage licenses, but it does not require private citizens to perform the ceremonies or otherwise be involved in the event. Marriage has long been recognized as a fundamental right for male-female couples, yet clergy have maintained the right to refuse to marry couples whom they determine are not abiding by the faith.
The entire decision is available here:

Thursday, February 26, 2015

Do Workers in a Non- Right-to-Work States Have to Join Unions?

No.  Even before right-to-work legislation, Wisconsin workers in unionized workplaces did not have to join unions, although they could be required to pay a portion of union dues to compensate the union for representational services such as negotiating collective bargaining agreements, challenging employee discipline and termination, and arbitrating disputes over wages and benefits.

Under federal labor law, unions have a duty to represent not only their members, but everyone in a bargaining unit.  A bargaining unit consists of non-supervisory employees who are similarly situated in the workplace.  In a factory, for example, the bargaining unit is usually every non-supervisory employee working in production. Since unions have to represent everyone in the bargaining unit, they historically required everyone to be in the union and pay dues.  Throughout the decades there have been many legal challenges to this practice, claiming that it violated employees' rights of association to be required to join a union, and violated their rights of free speech to be required to contribute funds for political action.  A series of Supreme Court cases, culminating in Communication Workers of America v. Beck, 487 U.S. 735 in 1988, established that: 1) Employees cannot be required to join a union in a unionized workplace; 2) Employees can be required to pay an "agency fee" to the union that includes only the portion of dues used to represent the bargaining unit (negotiating collective bargaining agreements, challenging employee discipline and termination, and arbitrating disputes over wages and benefits); 3) Employees have a right to challenge the amount of an agency fee and obtain an explanation of how agency fees are spent.  As a result, in recent decades unions have generally endeavored to allocate the vast majority of dues collected to the cost of representing employees, and have funded political action by soliciting members to voluntarily contribute to union political action committees (PACs).  

When right to work laws are adopted, unions still have to represent the entire bargaining unit, but employees can choose to pay no dues, thus obtaining the union's representational services at no cost.

Wednesday, June 15, 2011

What is the Point of the Latest Legal Challenge to the Budget Repair Bill?

The day after the Wisconsin Supreme Court reversed a lower court's ruling that the adoption of the budget repair bill was invalid, nearly all of the unions representing public employees in Wisconsin combined forces to file a 29-page complaint challenging the bill on constitutional grounds.

The lawsuit focuses on the Budget Repair Bill's differing treatment of:
1) Law enforcement officers that are represented by unions that supported Walker's gubanatorial campaign;
2) Law enforcement officers that are represented by unions that did not support Walker's gubanatorial campaign;
3) All other public sector workers represented by unions.

Employees in the first category retain most collective bargaining rights and potentially better pension and health insurance benefits.  Employees in the second and third categories lose most collective bargaining rights and will likely have higher pension and health insurance costs.  The lawsuit alleges that this violates the Equal Protection Clause of the United State Constitution, which is contained in the 14th Amendment. 

The Fourteenth Amendment provides that:
"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Laws make distinctions among different types of people regularly (only the elderly qualify for medicare, only those under 21 are punished for drinking alcohol), but where people are similary situated, a government must have a rational basis for treating classes of people differently.  The complaint filed today argues that not only is there no rational basis for taking collective bargaining rights away from some public employees and not others, but that the basis is the impermissible one of granting political favors.

The lawsuit also alleges violations of the First Amendment.  The Budget Repair Bill prohibits unions from collecting union dues from the paychecks of public employees in the second and third categories, even with the employees' consent.  The lawsuit alleges that that these restrictions amount to an infringement of speech, because unions are deprived of the financial resources necessary to engage in political speech activities on behalf of their members.

The link to the complaint is below.  The suit was filed in federal court in Madison, and the plaintiffs have requested an injunction.

Saturday, April 16, 2011

How Much Authority do States Have Over Labor Rights?

A few weeks ago a federal court in Chicago issued a decision that received some comment on Daily Kos, and raised the question of how much authority states really have to regulate labor rights.  The case, Teamsters Local 727 v. Metropolitan Pier and Exposition Authority (MPEA), arose when the Illinois legislature amended the state statute governing operations at McCormick Place, a major convention venue in Chicago. 

The MPEA is a unit of local government created to promote business and tourism in Illinois.  The MPEA operates and manages McCormick place and contracts with a variety of private entities who lease space and arrange conventions.  Those private entitites bargain with unions such as the Teamsters and the Carpenters over labor agreements that establish the terms and conditions for labor at McCormick place.  The union laborers are private employees, not public employees, and therefore their collective bargaining rights are protected by the National Labor Relations Act (NLRA), which is a federal law.  Over the last several decades, U.S. Supreme Court decisions have established that federal labor law preempts state law.  In other words, local and state governments cannot change or interfere with the rights that privately employed individuals have under the NLRA.  One exception to the preemption doctrine is that when states are contracting for services with private entities, the state can condition its business on the entities adhering to certain labor standards.  In other words, when a local government is acting as a consumer, it can makes demands similar to those that other consumers can make.

In 2010 the Illinois legislature amended the law governing MPEA operations, and in the process enacted provisions governing hours, wage rates, the size of work crews, and other working conditions of private employees at McCormick Place.  Parts of the amendments contradicted provisions in the existing collective bargaining agreements.  The Teamsters and Carpenters filed suit, claiming that the existing collective bargaining agreements were protected by federal labor law, and federal labor law preempts state law.  The federal district court in Chicago agreed, and enjoined the MPEA from enforcing those provisions of the law that attempted to govern the labor standards of the private employees at McCormick Place.

Despite the attention the decision received, it did not establish any new law, and it has little relevance to the immediate issues in Wisconsin.  Federal law protects private employees' labor rights.  Indeed it is a common fallacy that only unionized employees have protections under the NLRA.  The NLRA protects the right of nearly every private employee in the United States to join a labor union and bring a labor union into his or her workplace.  The NLRA requires employers to bargain in good faith with employees' bargaining representatives, provides a vehicle for enforcing collective bargaining agreements, and even protects the right of non-unionized employees to engage in collective action.  The NLRA does not, however, have anything to do with the labor rights of public employees.  The extent of state and local employees' labor rights is entirely a matter of state and local law, and therefore within the control of state and local elected officials.  In Wisconsin, the State Employment Labor Relations Act (SELRA) and the Municipal Employment Relations Act (MERA) govern the rights of public employees.  SELRA and MERA are the state and local corollaries of the NLRA.  The Budget Repair Bill signed into law by Governor Walker amends SELRA and MERA, only affects the rights of Wisconsin's public employees, and therefore is not preempted by federal labor laws.

Friday, April 8, 2011

Can't Someone Sue Walker for Unfair Labor Practices?

Yes.  Someone can.  And someone has.  To be exact, the Wisconsin State Employees Union, AFT-Wisconsin, the Wisconsin Education Association Counsel, the State Engineers Association, and the Wisconsin Law Enforcement Association have each filed their own unfair labor practice charges against Governor Scott Walker.  While I have not seen copies of all of the complaints, I understand that the Wisconsin State Employees Union's complaint alleges that the governor has refused to bargain a new contract. 

Under the Municipal Employment Relations Act (MERA) and the State Employment Relations Act (SELRA), the state and other municipal employers have a duty to engage in good faith bargaining with employees' collective bargaining representative once a labor contract nears the end of its term.  If an employer refuses to bargain, the collective bargaining representative can file a complaint with the Wisconsin Employment Relations Commission (WERC) which has the authority to hold a hearing, reach a decision, and order bargaining and other remedies.  If a party is unhappy with a decision of the WERC, that party can appeal the WERC's decision to the state courts.

MERA and SELRA are the laws that Governor Walker seeks to radically amend with the Budget Repair Bill, but the Budget Repair Bill is not yet law.  SELRA governs the collective bargaining relationship between the state and its employees for the time being.  As one of the WERC complaints states: "Governor Walker has the power to propose draconian legislation grounded in his anti-union animus.  However such proposals do not change the law or repeal the obligations of the Respondents under Wisconsin law."

Friday, March 25, 2011

Can the LRB Publish the Budget Repair Bill?

Update 8:46 p.m., March 25:  The Legislative Reference Bureau is taking the position that it had a legal duty to publish the bill, but that its publication does not result in the budget bill becoming law.  Rather, the Secretary of State must also fulfill his duty to order it published before it can become law.  The LRB's position is at odds with the Governor's assertion that the bill is now law, but consistent with Judge Sumi's order enjoining not just the publication, but the implementation of the budget bill.  Should the Governor proceed with implementing the budget repair bill he may not be in violation of the judge's order (since he is not named as a defendant) but he would have no lawful basis for his actions, since the budget repair bill simply is not law.  See the LRB's explanation at:

Let me first say that when lawyers do research and arrive at conclusions, they rely heavily on precedent, and nearly everything that has happened in the last few months in Wisconsin is unprecedented.  The latest is the Legislative Reference Bureau's publication of the the Budget Repair Bill despite Dane County Judge MaryAnn Sumi temporarily enjoining publication.  I'm going to go out on a limb and say that someone, possibly one of the Fitzgeralds, will be held in contempt of court.  I'm going to stay pretty close to the trunk and say there will be a court motion to challenge the effect of the bill's publication Monday morning. The Final paragraph of Judge Sumi's order reads:

"I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10.
The next step in implementation of that law would be the publication of that law by the Secretary of
State. He is restrained and enjoined from such publication until further order of this court."

While the court specifically restrains the Secretary of State, the first sentence doesn't limit the force of the court's order.  Furthermore, all parties to a legal action are generally bound to court orders in that action unless the court states otherwise, and the defendants in the action include the Fitzgerald brothers, Senator Micheal Ellis, and Rep. Scott Suder.  So, the question of the day, is who directed that the bill be published?  More to come as events unfold.