CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Archive for the ‘Government Law’ Category

Georgia’s New Elections Law May Have Effects For Local Governments

Posted on: April 15th, 2021

By:  William J. Linkous, III

Georgia’s new elections law, which has been widely reported upon nationally, passed the Georgia General Assembly during the 2021 session and was signed into law by Georgia Governor Brian Kemp near the end of March.  The 95-page revision may significantly affect the operations of local governments, which are often tasked with handling elections and registrations through their election superintendents, boards of registrars, boards of elections, or boards of elections and registration.

Some provisions of the new law will impact the budgeting of local governments.  Section 18 of the new law provides that in jurisdictions with 2,000 or more electors, if electors have to wait for an hour or more in line on election day, elections superintendents must reduce the size of the precinct or utilize more equipment (or both) in the next election, thus increasing elections expenses for local governments in the future.  Sections 9 and 14 of the new law prohibit elections superintendents and boards of registrations from taking any funding, grants, or gifts except from the local government, State, or Federal Government.  These provisions will impact the elections budgets of some jurisdictions that received large private grants for their election operations during the most recent elections, thus defraying costs to the local government.  Section 26 of the new law requires each board of registrars or absentee ballot clerk to establish at least one drop box as a means for absentee by mail electors to deliver their ballots.  Of course, the law allows more drop boxes to be used, up to prescribed limits.  The drop boxes can only be placed in locations with adequate lighting, constant surveillance by officials, anti-tampering measures, and daily collection of ballots by a team of two workers who meet certain qualifications.  In some jurisdictions, the drop box requirement may require a budget increase.

The expansion of early voting in most Georgia locations may also affect local government budgets.  There will be at least seventeen days of early voting under the new law, including two Saturdays and the option of offering voting on Sundays as well.  The budgets of rural local governments may be more heavily impacted by this expansion because staffing will be needed for at least two Saturdays, whereas most urban counties already utilize two Saturdays for early voting.

Some of the provisions of the new law provide for increased scrutiny and accountability for elections officials.  Section 6 of the new law allows the State Elections Board to suspend county or municipal superintendents and appoint replacements.  Under Sections 7 and 12 a governing authority of a county or municipality can request a performance review or an investigation into the actions of the local superintendent or board, and the State Elections Board can also initiate a review or investigation itself.  The extensive investigation and hearing process can result in a suspension with pay of a superintendent or board member, or even in their permanent removal.  The State Board of Elections can appoint a replacement for the official during the suspension, but the law is unclear who pays the replacement.  Local governments will be wise to closely review the operations of their elections and registrations divisions because of this added scrutiny.

Numerous provisions also change the administration of registrations and elections.  Some are subtle.  For instance, Section 11 allows poll officers to be permitted to serve in adjoining counties in some instances.  Sections 15 and 16 contain subtle changes to the method for challenging registrars and electors, including the removal of limits on the number of challenges that can be made by an elector which by itself could impact operations.  Section 20 restricts the types of places that can be utilized for advance voting locations.  Section 23 requires that ballots be printed on security paper to authenticate them.  Some of the less subtle changes in the administration of registration and elections under the new law include the fact that absentee ballot applications and ballots are primarily verified under the new law by name, date of birth, address, and driver’s license number, last four digits of one’s social security number, or other identification number, rather than verified by signature as in the past.  The new law also shortens the timeline for requesting and returning ballots.  Electors may request ballots 78 days before an election (as opposed to 180 days) and ballot applications must be received by the clerk no later than eleven days prior to the election, which is earlier than under the previous law.  Finally, the law also abbreviates the runoff period by requiring that a runoff be held 28 days after the initial election.   These administrative changes will require careful analysis by local governments of their election and registration operations.

For more information about this topic, please contact William Linkous at [email protected].

SCOTUS Grants Injunctive Relief In Free Exercise Case Challenging California’s COVID-19 Restrictions

Posted on: April 14th, 2021

By: Caitlin Tubbesing

Building on its pandemic-era Free Exercise Clause decisions, SCOTUS rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious activities for the fifth time on Friday (4/9/21).  In a 5-4 vote in Tandon, et al. v. Newsom, et al., the majority granted two California pastors’ application for emergency injunctive relief relating to the state’s COVID restrictions on private gatherings, which limit at-home religious gatherings to members of three households or less. The pastors argue that the restrictions preventing them from holding in-home Bible studies and communal worship with more than three households violate the Free Exercise Clause of the First Amendment.

The Ninth Circuit denied the pastors’ motion for emergency injunctive relief – because at-home secular gatherings were treated the same, the restrictions were neutral and generally applicable and triggered only rational basis review. Therefore, the pastors could not establish the they were likely to succeed on the merits. Last week’s 5-4 decision reversing the Ninth Circuit reiterated and applied the following points enunciated in the Court’s recent decisions addressing free exercise challenges to COVID-19 restrictions:  

  • Whenever a government regulation treats any comparable secular activity more favorable than religious exercise, it is not neutral and triggers strict scrutiny under the Free Exercise Clause; it does not matter that a state may treat some comparable secular businesses or other activities as poorly or less favorably than the religious exercise at issue.
  • Whether activities are comparable under the Free Exercise Clause must be evaluated against the asserted government interest justifying the challenged regulation – what matters is the risk of the activities.
  • The burden is on the government to establish that the law meets strict scrutiny. This requires more than asserting that “certain risk factors are always present in worship, or always absent from other secular activities;” and instead, show that less restrictive measures could not address its interest in reducing the spread of COVID-19. Likewise, if other secular activities are allowed to take place with precautions, the state must demonstrate that the religious exercise at issue is more dangerous than those activities even when the same precautions are applied.
  • Even if the government withdraws or modifies a COVID restriction after litigation begins, the case is not necessarily moot, and as long as the case is not moot and applicants “remain under a constant threat” that government will use its power to reinstate the restrictions, litigants may be entitled to emergency injunctive relief.

In this case, the Court found that California treated “some comparable secular activities” – such as hair salons, movie theaters, and indoor restaurants, more favorably than at-home religious exercise. Second, it observed that the Ninth Circuit did not conclude that those activities pose a lesser risk of transmission than the in-home bible study and communal worship at issue, and erroneously did not require the state to explain why it could not allow for larger gatherings of at-home religious exercise while using precautions required for secular activities. Finally, even though the private gathering restrictions had been changed after the application was filed, the restrictions remained in place until April 15th and were subject to being reinstated.

In sum, the majority determined the Applicants were likely to succeed on the merits because (i) they were irreparably harmed by the loss of free exercise rights (even for a minimal period of time); and (ii) California did not show that “public health would be imperiled” by employing less restrictive measures. Therefore, emergency injunctive relief was warranted.

For more information about this topic, please contact Caitlin Tubbesing at [email protected].

Did New Mexico Really “End” Qualified Immunity?

Posted on: April 13th, 2021

By: Wes Jackson

State and federal legislators are making a concerted push to end or curtail the defense of “qualified immunity,” which provides government employees a defense to civil rights claims in some circumstances. At the federal level, House Democrats have passed the “George Floyd Justice in Policing Act (H.R. 1280), which, if passed by the Senate and signed by the President, would remove qualified immunity as a defense for local law enforcement officials to claims for civil rights violations under 42 U.S.C. § 1983. On the state level, a handful of states have proposed or passed similar laws that would end or curtail analogous immunities to claims of civil rights violations arising under state law. Such states include Colorado and Connecticut

New Mexico is now the latest state to take such action. A recent article from The Hill announces that “New Mexico ends qualified immunity.” The article reports that New Mexico’s governor signed a bill on Wednesday, April 7, 2021 “ending qualified immunity for all government workers, including police.” But what does it really mean to “end” qualified immunity? While the bill makes New Mexico the latest state to curtail government workers’ immunities to civil rights claims, a look at the text of the new bill reveals that “qualified immunity,” at least for purposes of federal civil rights claims, remains a viable defense in that state.

While “qualified immunity” is often used as an umbrella term for any immunities law enforcement or government employees may have to civil rights claims, it is important to keep in mind that qualified immunity under federal civil rights law is distinct from whatever statutory or common law defenses may be available to government workers under the various states’ laws. New Mexico’s bill nominally removes the defense of “qualified immunity” for government workers, but only for “any claim for damages or relief under the New Mexico Civil Rights Act . . . for causing the deprivation of any rights, privileges or immunities secured by the bill of rights of the constitution of New Mexico.” (New Mexico H.B. 4, § 4.) Thus, New Mexico only ended the defense of qualified immunity for claims that a government employee violated state constitutional rights—it does not remove the defense to claims for violations of civil rights secured under the United States’ Constitution and laws.

The practical effect of New Mexico’s bill may be to incentivize plaintiffs to only bring civil rights claims under state law in New Mexico state courts and to forego asserting claims for analogous violations of federal rights under 42 U.S.C. § 1983. The tradeoff for plaintiffs, though, is that their claims will be subject to more demanding procedural rules, including a one-year pre-suit notice requirement, and a $2 million damages cap. Plaintiffs in New Mexico who miss the one-year ante litem notice requirement, or who hope for a judgment that exceeds $2 million, will have to bring their claims under 42 U.S.C. § 1983, for which the defense of qualified immunity is alive and well.

While state legislators may enact limitations to “qualified immunity” or similar defenses for claims under state law, any changes to qualified immunity for federal civil rights claims will ultimately have to come from the United States Congress or Supreme Court. If you have any questions about qualified immunity, please contact attorney Wes Jackson at [email protected].

The First Amendment Shield Against Student & Faculty Discipline

Posted on: April 13th, 2021

By Candice Jackson

Two recent federal court decisions give guidance to public universities on the interplay of free speech, academic freedom, free exercise of religion, and diversity and inclusion initiatives. The two cases have great significance for colleges and universities on how they should interpret and apply their own codes of conduct. The cases also may signal future legal claims against both public and private schools and employers if diversity and inclusion policies and trainings are challenged by students and employees.

In these two cases, the Sixth Circuit Court of Appeals, and the U.S. District Court for the Western District of Virginia both denied motions to dismiss in opinions allowing claims to proceed against the two universities. The courts were very skeptical of the manner and method of the alleged disciplinary process and strongly suggested that, if the facts alleged were true, both institutions could face significant liability. Both cases are at the pleading stage, where allegations made by the student and faculty member are taken as true for purposes of surviving a motion to dismiss.

In the Sixth Circuit’s decision in  Meriwether, Judge Amul Thapar authored an opinion reversing the district court’s grant of Shawnee State University’s motion to dismiss the First Amendment Free Speech and Free Exercise Clause claims brought by a professor who refused to comply with the institution’s policy on pronoun usage. The university expected its faculty members to refer to students using each student’s preferred pronouns reflecting each student’s self-identified gender identity. Professor Meriwether refused to comply with that policy because being compelled in his use of pronouns effectively compelled him to falsely assert belief in a philosophical and religious worldview that he does not hold.  

In Bhattacharya, United States District Judge Norman Moon denied the University of Virginia School of Medicine’s motion to dismiss the First Amendment free speech and retaliation claims of a medical student who alleges he was disciplined for questioning instead of agreeing with the university’s diversity and inclusion presentation on “microaggressions.”  The medical student was reprimanded and told to undergo psychological counseling under the auspices of the institution’s professionalism code after an exchange at a lecture where the medical student challenged the speaker’s presentation on the topic of microaggressions.

The universities contended that they were not punishing students or faculty on the basis of viewpoint or content of the student or professor’s speech, but were instead simply enforcing codes of conduct designed to promote and ensure respectful and inclusive treatment of all community members. However, the Sixth Circuit and Judge Moon rejected those contentions, and instead focused on the core constitutional protections afforded to the student and the professor, and particularly in the higher educational setting. As Judge Thapar wrote in Meriwether, “Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides.” The Meriwether and Bhattacharya opinions illustrate why picking sides – or at least, punishing those who choose the other side – in debates over matters of public concern, poses legal risks for institutions.

In Meriwether, the court agreed with Professor Meriwether’s contention that the university’s application of its gender-identity pronoun policy was (1) not simply “ministerial” because it touched directly upon matters of significant public debate and concern, and (2) not viewpoint-neutral, because officials exhibited hostility to the professor’s religious beliefs, refused Professor Meriwether’s attempts to compromise in abiding by the policy, and utilized an investigation process riddled with irregularities. Similarly, in Bhattacharya, the court found that the student’s questions and comments challenging the presentation on “microaggressions” was protected speech that was neither inappropriate, disruptive, nor offensive, and the student raised a plausible inference of non-neutrality. The court also allowed the student’s retaliation claim to proceed, reasoning that the subsequent disciplinary actions imposed by the school were actionable adverse actions because a “student would be reluctant to express his views if he knew that his school would reprimand, suspend, or ban him from campus for doing so…”

Both decisions soundly rejected the universities’ attempt to justify punishing speech and expressive conduct as necessary to comply with non-discrimination laws or codes of professionalism. Both decisions point out that simply disagreeing or expressing a contrary opinion cannot readily be deemed discriminatory or unprofessional conduct, even though some conduct or speech, of course, falls outside First Amendment protection and can thus be legitimately prohibited under non-discrimination policies or codes of conduct. By way of example, the court in Bhattacharya pointed out that, if student Bhattacharya had used profanity, ad hominem slurs, or threats against others, his speech might not warrant protection as a matter of law.

But where such misconduct is absent, these federal court decisions reinforce that educational institutions need to be thoughtful, consistent, and neutral in applying their codes of student and faculty conduct, and must do so in a manner that provides sufficient “breathing room” for exercise of each individual’s constitutional rights to free speech, academic freedom, and free exercise of religion. Otherwise, these cases provide disciplined students and professors (and their attorneys) a court-approved roadmap to assert First Amendment claims for disciplinary actions against educational institutions and also for personal liability against university officials engaging in such conduct. (In Bhattacharya, for instance, the court denied qualified immunity to the individual university official defendants, at least at the motion to dismiss stage.)

These two decisions also could be harbingers of future claims against private schools, as well as private employers, over a host of policies based on diversity and inclusion initiatives, as courts and government agencies grapple with the extent to which such policies themselves may violate constitutional equal protection or civil rights laws that prohibit discrimination on the basis of race, ethnicity, national origin, and sex. Currently, for example, the Supreme Court is considering whether to grant cert in a case involving Harvard’s alleged discriminatory admission policies, in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (Petition for Certiori pending, Docket No. 20-1199). Other policies that similarly stem from institutional desire to foster diversity and inclusion – such as mandated compositions of corporate boards, award of contracts based on immutable characteristics, hiring initiatives that utilize sex and race-based quotas, and diversity training programs that impute to individuals alleged privileges based on race, sex, or other protected characteristics – also likely continue to generate legal and administrative challenges.

No matter how well-intentioned, it seems probable that federal and state constitutional provisions and civil rights laws will be sources of challenges to such policies and practices in the future. With that in mind, employers and educational institutions will need to consider how policies and training aimed at creating diverse and inclusive workforces and educational communities can be implemented in a manner that mitigates the increasing risk of claims under anti-discrimination laws and constitutional provisions.

For more information about this topic, please contact Candice Jackson.

Georgia’s new elections law may have effects on local governments

Posted on: April 12th, 2021

By: William Linkous

Georgia’s new elections law, which has been widely reported upon nationally, passed the Georgia General Assembly during the 2021 session and was signed into law by Georgia Governor Brian Kemp near the end of March. The 95-page revision may significantly affect the operations of local governments, which are often tasked with handling elections and registrations through their election superintendents, boards of registrars, boards of elections, or boards of elections and registration.

Some provisions of the new law will impact the budgeting of local governments. Section 18 of the new law provides that in jurisdictions with 2,000 or more electors, if electors have to wait for an hour or more in line on election day, elections superintendents must reduce the size of the precinct or utilize more equipment (or both) in the next election, thus increasing elections expenses for local governments in the future. Sections 9 and 14 of the new law prohibit election superintendents and boards of registrations from taking any funding, grants, or gifts except from the local government, State, or Federal Government. These provisions will impact the elections budgets of some jurisdictions that received large private grants for their election operations during the most recent elections, thus defraying costs to the local government. Section 26 of the new law requires each board of registrars or absentee ballot clerk to establish at least one dropbox as a means for absentee by mail electors to deliver their ballots. Of course, the law allows more drop boxes to be used, up to prescribed limits. The drop boxes can only be placed in locations with adequate lighting, constant surveillance by officials, anti-tampering measures, and daily collection of ballots by a team of two workers who meet certain qualifications. In some jurisdictions, the dropbox requirement may require a budget increase.

The expansion of early voting in most Georgia locations may also affect local government budgets. There will be at least seventeen days of early voting under the new law, including two Saturdays and the option of offering voting on Sundays as well. The budgets of rural local governments may be more heavily impacted by this expansion because staffing will be needed for at least two Saturdays, whereas most urban counties already utilize two Saturdays for early voting.

Some of the provisions of the new law provide for increased scrutiny and accountability for elections officials. Section 6 of the new law allows the State Elections Board to suspend county or municipal superintendents and appoint replacements. Under Sections 7 and 12 a governing authority of a county or municipality can request a performance review or an investigation into the actions of the local superintendent or board, and the State Elections Board can also initiate a review or investigation itself. The extensive investigation and hearing process can result in a suspension with pay of a superintendent or board member, or even in their permanent removal. The State Board of Elections can appoint a replacement for the official during the suspension, but the law is unclear who pays the replacement. Local governments will be wise to closely review the operations of their elections and registrations divisions because of this added scrutiny.

Numerous provisions also change the administration of registrations and elections. Some are subtle. For instance, Section 11 allows poll officers to be permitted to serve in adjoining counties in some instances. Sections 15 and 16 contain subtle changes to the method for challenging registrars and electors, including the removal of limits on the number of challenges that can be made by an elector which by itself could impact operations. Section 20 restricts the types of places that can be utilized for advance voting locations. Section 23 requires that ballots be printed on security paper to authenticate them. Some of the less subtle changes in the administration of registration and elections under the new law include the fact that absentee ballot applications and ballots are primarily verified under the new law by name, date of birth, address, and driver’s license number, last four digits of one’s social security number, or another identification number, rather than verified by signature as in the past. The new law also shortens the timeline for requesting and returning ballots too. Electors may request ballots 78 days before an election (as opposed to 180 days) and ballot applications must be received by the clerk no later than eleven days prior to the election, which is earlier than under the previous law. Finally, the law also abbreviates the runoff period by requiring that a runoff be held 28 days after the initial election. These administrative changes will require careful analysis by local governments of their election and registration operations.

For more information about this topic, please contact William Linkous at [email protected]