The Supreme Court begins its 2017/2018 term on October 2. This is the first full term with the Supreme Court back at its full strength following the controversial confirmation of Justice Neil Gorsuch. In October, the Court will hear twelve (12) sets of oral arguments on blockbuster issues including: religious objections to providing services for same-sex weddings; the Constitutional limits of extreme partisan gerrymandering; compelling new employees to settle wage disputes without going to court, but instead through mandatory arbitration; and limits on states’ ability to purge voter registration rolls of “inactive” voters.
Below are four cases to watch during the Supreme Court’s Fall term.
Gill v. Whitford: Wisconsin Partisan Gerrymandering Challenge
On October 3, the Court will consider whether Wisconsin’s gerrymandered map of state legislative districts constitutes an unconstitutional attempt to “entrench” a political party in power. For 30 years, the federal courts have been heavily involved in Wisconsin’s redistricting process. Both political parties have redrawn district lines to retain their party’s power. Many of these schemes have had severely detrimental consequences on the ability of voters of color to meaningfully participate fully in the democratic process and elect candidates of their choice.
In 2016, a three-judge panel invalidated Wisconsin’s redistricting plan. In the lower court opinion, the judges noted that Wisconsin’s “legislative districts had been drawn so meticulously to ensure partisan advantage that Republicans won overwhelming control of the house in 2012, with 60 of 99 seats, even though Democrats won 51% of the vote statewide.”[i]
The Supreme Court’s decision could impact redistricting efforts nationwide, including the redistricting that will be done at all levels of government following the 2020 Census.
LDF filed a friend of the court brief in Gill v. Whitford, which assists the Court in considering the wide ramifications of extreme partisan gerrymandering. Particularly, in districts where race and party are deeply intertwined, partisan gerrymandering may significantly impact minority representation in the political process. LDF’s amicus brief implores the Court not to undermine civil rights protections like the Voting Rights Act while it considers workable standards for a partisan gerrymandering claim.
Husted v. A. Phillip Randolph Institute: Ohio’s Voter Purge
Across the country, voters are routinely removed from voter registration lists for practical reasons, including death, moving, or becoming ineligible. In 1994, however, Ohio added a new wrinkle to its standard removal procedure. Under Ohio’s “Supplemental Process,” the Ohio Secretary of State’s Office compiles a list of “inactive” yet registered voters — voters who have failed to vote in two election cycles and then subsequently fail to confirm their address — and automatically purges them from the state’s voter rolls.
In 2016, civil rights organizations sued Ohio Secretary of State John Husted, claiming that the voter purges violated federal law. The Sixth Circuit Court of Appeals blocked the process before the November 2016 elections, allowing 7,515 voters who had been removed to cast a ballot.
At issue is the removal of tens of thousands of Ohio voters from the state’s voter list. The U.S. Department of Justice (DOJ), for more than 20 years — and under both Democratic and Republican presidential administrations — has maintained the position that voter purges, like Ohio’s, are prohibited by federal voting rights laws. Just weeks after the 2017 inauguration and the confirmation of Attorney General Jeff Sessions, the Justice Department, without explanation, has taken the opposing position.
LDF filed an amicus brief supporting the contention that laws like the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA) prohibit states from removing voters solely for inactivity. Our brief also calls attention to the DOJ’s recent decision to abandon its longstanding position that the NVRA and HAVA prohibit techniques like Ohio’s voter purge, and explains why the Court should be skeptical of the DOJ’s new interpretation, reversing its view on the issue.
Oral arguments will be heard on November 8.
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission: Same-Sex Discrimination and the First Amendment
Jack Phillips, owner of Colorado bakery Masterpiece Cakeshop, refuses to design custom cakes for Halloween, cakes with profanity or containing alcohol, and cakes for same-sex weddings in abidance of his religious beliefs. In 2012 a gay couple asked Phillips to design a cake for their wedding. He refused, and the couple filed a complaint with Colorado’s Civil Rights Commission. An administrative law judge found Phillips discriminated against the couple under the state’s public accommodation law, which protects LGBT Coloradans against discrimination.
In Masterpiece Cakeshop, the Court must determine whether requiring a business owner to create wedding cakes for same-sex marriages against their purported religious beliefs violates his or her First Amendment rights. Philips argues that because his faith bars him from condoning gay marriage, he is constitutionally protected from not having to serve the couple under the First Amendment’s Free Exercise Clause; he also argues that, as a culinary “artist,” he cannot be forced to serve the couple under the First Amendment’s Free Speech Clause.
The Trump Administration has filed a brief in support of the business owner. The Administration’s involvement in this case could create significant discord in the enforcement of anti-discrimination law. The case has troubling historical parallels to the way that theology was used and abused to justify discrimination against Blacks in the Jim Crow-era.
Oral arguments have not yet been scheduled.
Epic Systems Corp v. Lewis: Employee Rights and Forced Arbitration
In 2014, Epic Systems required employees to consent to resolving individual wage-and-hour claims through arbitration — an alternative dispute method, usually without an appeals process, and that is a substitute for going to court; unlike going to court, decisions are decided by an “arbiter” — not a judge — and the proceedings are private, meaning they do not go on the public record. Epic Systems’ arbitration agreement further bars employees from pursuing those claims together, either through a class action or collective action. Employment at Epic Systems constituted consent to the agreement.
In conflict with his employment agreement, Epic Systems employee, Jacob Lewis, filed a class action lawsuit against the company. Lewis claims that the company failed to compensate him and other employees for overtime pay. A three-judge panel of the Seventh Circuit Court of Appeals agreed with Lewis, finding that the class or collective action waiver in his employment contract violated the National Labor Relations Act.
At issue is whether an employer can force employees to waive their rights to bring a class or collective action in court. In recent years, the Supreme Court has tended to enforce arbitration causes such as the one at issue.
To protect the right of workers, LDF teamed up with the Impact Fund and Cohen Milstein to file an amicus brief on behalf of more than 30 civil rights organizations. Our brief explains why class actions have been important in combatting employment discrimination; often, in individual, or non-collective action cases, employees are denied access to evidence necessary to show widespread discrimination, or a pattern of discriminatory practice.
Oral arguments in Epic Systems are scheduled for October 2.