Before Week 1 (before January 15th)

• Review Syllabus, Calendar, Deliverables, Schedule and Course Policies
• Click here to find our Teams workspace and here to complete your O365 profile.
• Complete the “Introduce Yourself” post in the Teams’ Introduction channel
• Complete the “Learning Contract” post in the Teams’ Learning Contract channel

Course Resources: Voting Rights

• US Constitution
  • Twelfth Amendment
  • Fourteenth Amendment
    • Equal Protection Clause
  • Fifteenth Amendment
  • Seventeenth Amendment
  • Nineteenth Amendment
  • Twenty-fourth Amendment
  • Twenty-fifth Amendment
  • A History of the Voting Rights Act, ACLU
  • Voting Rights Act of 1965
  • Amendments to the Voting Rights Act of 1965
  • Voting Rights Act of 1965 (text)
  • Federalist No. 10
  • SCOTUS Redistricting Cases
  • Voting Rights in the United States
  • Campaign Finance in the United States

Week 1, Class 1

During Class

• Review the course requirements

Week 2, Classes 2 & 3

• Federalist No. 10 (CB 4, LoC Research Guides, Wikipedia)
• Introduction: CB Chapter 2: The Right to Vote | Age, Residency, Citizenship, Non-felon status
  • Background on Voting Rights CB 29-63 | Harper v. Virginia State Board of Elections 383 U.S. 663 (1966) (CB 54)
  • Restrictions on Who May Vote CB 63-84 | Skafte v. Rorex 553 P.2d 830 (1976) (CB63) | Kramer v. Union Free School District #15 395 U.S. 621 (CB 74)

• Discuss
• Review current events

Week 3 Classes 4 & 5

• Vote Denial: CB Chapter 6, Election Administration and Remedies
  • Counting and Recounting Votes CB 391-416 | Bush v. Gore 531 U.S. 98 (2000) (CB 394)
  • Voting Technology, Voter ID & Other Burdens CB 416-41 | Crawford v. Marion County Election Board (2008) (CB 420)
  • Race Discrimination CB 441-69 | Brnovich v. Democratic National Committee 594 U.S. ___ (2021)  (CB 443)
  • 
Law and Turnout CB 469-88
  • Judicial Remedies CB 488-502 | Pabey v. Pastrick, 816 N.E.2d 1138 (I2004) (CB 491)

• Discuss
• Review current events

Week 4, Classes 6 & 7

• Vote Dilution: CB Chapter 3, Representation and Districting
  • One Person, One Vote, The Right to an Equally Weighted Vote CB 85-123 | Reynolds v. Sims 377 U.S. 533 (1964) (CB 88) | Lucas v. 44th General Assembly of Colorado, 377 U.S. 713 (1964) (CB 95) | Avery v. Midland County 390 U.S. 474 (1968) (CB 114)
  • Voter Representation, Special Purpose Elections CB 124-37 | Salyer Land Co. v. Tulare Lake Basin Water District, 410 U.S. 719 (1973) (CB 124)
  • 
Districting Criteria & Gerrymandering CB 138-47, 149-60

• Discuss
• Review current events

Week 5, Classes 8 & 9

• Review the following in sufficient depth that you can participate in informed discussion
  • Gerrymandering: CB Chapter 4: Partisan Gerrymandering and Political Competition
    • Partisan Gerrymandering CB 160-208 | Rucho v. Common Cause 588 U.S. 2484 (2019) (CB 175)
    • Competition CB 209-19 | Miller v. Cunningham 512 F.3d 98 (4th Cir. 2007) (CB 214)

• Discuss
• Review current events

Week 6, Classes 10 & 11

• Race and Redistricting: CB Chapter 5: Race and Redistricting
  • The Rise of Section 5 CB 221-38 | Allen v. 
State Board of Elections 393 U.S. 544 (1969) (CB 222) | Beer v. United States, 425 U.S. 130 (1976) (CB 226)
  • The Demise of Section 5 CB 238-65 | Shelby County v. Holder 570 U.S. 529 (2013) (CB 242)
  • The Rise of Section 2 CB 265-75 | White v. Regester 412 U.S. 755 (1973) (CB 267)
  • The Section 2 Standard CB 275-302 | Thornburg v. Gingles 478 U.S. 30 (1986) (CB 275)
  • Refining Gingles CB 303-29 | LULAC v. Perry 548 U.S. 399 (2006) (CB 303) | Bartlett v. Strickland 556 U.S. 1 (2009) (CB 313)
  • 
Section 2’s Limits and Critics CB 329-47 | Johnson v. DeGrandy 512 U.S. 997 (1994) (CB 330) | Holder v. Hall 512 U.S. 874 (1994) (CB 338)
  • The 1990s CB 347-78
 | Shaw v. Reno 509 U.S. 630 (1993) (CB 349) and Its Progeny
  • The 2010s CB 378-89 | Alabama Legislative Black Caucus v. Alabama 135 S. Ct. 1257 (2015) (CB 379)

• Discuss
• Review current events

• Case Simulation #1 Materials Available No Later Than Sunday at 1p ET
• Case Simulation #1, Phase 1 Memo Due No Later Than Thursday at 11p ET; Submit Using Teams DM
• ATP Status Report Due No Later Than Saturday at 1:12a ET, submit using Teams

Week 7, Classes 12 & 13

• Monday: Phase 1, discuss case simulation memos
• Wednesday: Phase 2, team Q&A

Week 8, No Classes | Spring Break

Week 9, Classes 14 & 15

• Discuss
• Review current events

Week 10, Classes 16 & 17

• Campaign Finance: CB Chapter 12: The Buckley Framework
  • Finance Jurisprudence CB 853-923 | Buckley v. Valeo 424 U.S. 1, 12-59 (1976) (CB 860)

• Discuss
• Review current events

• ATP Portfolio Due No Later Than Thursday at 4:47a EDT, submit using Teams

Week 11, Classes 18 & 19

• Disclosure vs. Anonymity: CB Chapter 16: Disclosure
  • Government Interest CB 1135-1164 | Buckley v. Valeo 424 U.S. 1, 60-84 (1976) (CB 1136) | McIntyre v. Ohio Elections Commission 514 U.S. 334 (1995) (CB 1145)
  • Skepticism About Disclosure CB 1164-1194 | Americans for Prosperity Foundation v. Bonta 594 U.S. ___ (2021) (CB 1166)

• Discuss
• Review current events

• Case Simulation #2 Materials Available No Later Than Sunday at 1p EDT
• Case Simulation #2, Phase 1 Memo Due No Later Than Thursday at 11p EDT; Submit Using Teams DM

Week 12, Classes 20 & 21

• Monday: Phase 1, discuss case simulation memos
• Wednesday: Phase 2, team Q&A

Week 13, Class 22

• AT Projects

• Discuss Voting Rights
• Review current events

• CA Materials Due No Later Than Thursday at 2:18a EDT, submit using Teams

Case Analysis

Week 14, Classes 23 & 24

Team 1 –  Environmental Protection (Monday)

• Summary: In 2015, the Environmental Protection Agency (EPA) promulgated the Clean Power Plan rule, which addressed carbon dioxide emissions from existing power plants, citing Section 111 of the Clean Air Act,” 42 U.S.C. 7411(d). Although the states set the enforceable rules governing existing sources, EPA determines the emissions limit with which they have to comply by determining the “best system of emission reduction” (BSER). In the Clean Power Plan, EPA determined that the BSER for existing coal and natural gas plants included “heat rate improvements” at coal-fired plants and “generation-shifting,” i.e., a shift in electricity production from existing coal-fired to natural-gas-fired plants and from both coal and gas plants to renewables (wind and solar). An operator could reduce the regulated plant’s production of electricity, build or invest in new or existing equipment, or purchase emission allowances as part of a cap-and-trade regime. No existing coal plant could achieve the emissions performance rates without generation-shifting. The Supreme Court stayed the Clean Power Plan in 2016. It was later repealed when EPA determined that it lacked authority “of this breadth.” EPA then promulgated the Affordable Clean Energy (ACE) rule, mandating equipment upgrades and operating practices. The D.C. Circuit held that EPA’s repeal of the Clean Power Plan rested on a mistaken reading of the Clean Air Act and vacated the ACE rule. The Supreme Court reversed. Congress did not grant EPA the authority to devise emissions caps based on the Clean Power Plan’s generation-shifting approach. Restructuring the nation’s mix of electricity generation cannot be the BSER under Section 111. Under the major questions doctrine, an agency must point to “clear congressional authorization” for such an unprecedented exercise of authority. On EPA’s view of Section 111(d), Congress implicitly tasked it alone with balancing vital considerations of national policy. Issues of electricity transmission and distribution are not within EPA’s traditional expertise. The Clean Power Plan “conveniently enabled” EPA to enact a program, cap-and-trade, that Congress rejected numerous times.
• Issue: Under a provision of the Clean Air Act, did Congress prohibit the EPA from issuing rules and standards of performance that could potentially reshape the country’s electricity grids and unilaterally decarbonize any sector of the economy?
• Holding: Congress did not grant the Environmental Protection Agency in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the agency took in the Clean Power Plan.
• Judgment: Reversed and remanded, 6-3, in an opinion by Chief Justice Roberts on June 30, 2022. Justice Gorsuch filed a concurring opinion, in which Justice Alito joined. Justice Kagan filed a dissenting opinion, in which Justices Breyer and Sotomayor joined.
• SCOTUS Blog Case Page
• Slip Opinion

Team 2 – Free Exercise Clause, School Prayer (Wednesday)

• Summary: Kennedy lost his job as a high school football coach after he knelt at midfield after games to offer a quiet personal prayer. The Ninth Circuit affirmed the summary judgment rejection of Kennedy’s claims against the school district. The Supreme Court reversed. The Constitution neither mandates nor permits the government to suppress such religious expression. The district acted on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech. A plaintiff may demonstrate a free exercise violation by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable,” triggering strict scrutiny. Kennedy seeks to engage in a sincerely motivated religious exercise that does not involve students; the district’s policies were neither neutral nor generally applicable. The district sought to restrict Kennedy’s actions at least in part because of their religious character. Kennedy established a Free Speech Clause violation. When an employee “speaks as a citizen addressing a matter of public concern,” courts should engage in “a delicate balancing of the competing interests surrounding the speech and its consequences.” Kennedy was not engaged in speech “ordinarily within the scope” of his coaching duties. His prayers occurred during the postgame period when coaches were free to attend to personal matters and students were engaged in other activities. In place of the “Lemon” and “endorsement” tests, courts should look “to historical practices and understandings.” A rule that the only acceptable government role models for students are those who eschew any visible religious expression would undermine a long constitutional tradition of tolerating diverse expressive activities.
• Issue: Whether a public school district had the constitutional authority to prevent a high school football coach from continuing his longstanding practice of leading student-athletes in midfield prayer immediately after games.
• Holding: The free exercise and free speech clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.
• Judgment: Reversed, 6-3, in an opinion by Justice Gorsuch on June 27, 2022. Justice Gorsuch delivered the opinion of the court, in which Chief Justice Roberts, Justices Thomas, Alito, and Barrett joined, and in which Justice Kavanaugh joined except as to Part III-B. Justices Thomas and Alito filed concurring opinions. Justice Sotomayor filed a dissenting opinion, in which Justices Breyer and Kagan joined.
• SCOTUS Blog Case Page
• Slip Opinion

Week 15, Classes 25 & 26

Team 3 –  Second Amendment (Monday)

• Summary: The State of .New York makes it a crime to possess a firearm without a license. An individual who wants to carry a firearm outside his home may obtain an unrestricted license to “have and carry” a concealed “pistol or revolver” if he can prove that “proper cause exists.” An applicant satisfies the “proper cause” requirement if he can “demonstrate a special need for self-protection distinguishable from that of the general community.” New York residents who unsuccessfully applied for unrestricted licenses to carry a handgun in public based on their generalized interest in self-defense challenged the “proper cause” requirement. The Supreme Court reversed the dismissal of the suit. New York’s “proper cause” requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense. The “historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation, but none of these limitations on the right to bear arms operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose.” The Court stated that the “constitutional right to bear arms in public for self-defense is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need.
• Issue: Does New York’s law requiring that applicants for unrestricted concealed-carry licenses demonstrate a special need for self-defense violate the Second Amendment?
• Holding: New York’s proper-cause requirement for obtaining an unrestricted license to carry a concealed firearm violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms.
• Judgment: Reversed and remanded, 6-3, in an opinion by Justice Thomas on June 23, 2022. Justice Alito filed a concurring opinion. Justice Kavanaugh filed a concurring opinion, in which Chief Justice Roberts joined. Justice Barrett filed a concurring opinion. Justice Breyer filed a dissenting opinion, in which Justices Sotomayor and Kagan joined.
• SCOTUS Blog Case Page
• Slip Opinion

Team 4 –  Regulatory Authority (Wednesday)

• Summary: The Secretary of Labor, through OSHA, enacted a vaccine mandate, to be enforced by employers. The mandate preempted contrary state laws and covered virtually all employers with at least 100 employees, with exemptions for employees who exclusively work remotely or outdoors. It required that covered workers receive a COVID–19 vaccine or obtain a medical test each week at their own expense, on their own time, and also wear a mask at work. Challenges were consolidated before the Sixth Circuit, which allowed OSHA’s rule to take effect. The Supreme Court stayed the rule. Applicants are likely to succeed on the merits of their claim that the Secretary lacked the authority to impose the mandate. The rule is “a significant encroachment into the lives—and health—of a vast number of employees,” not plainly authorized by statute; 29 U.S.C. 655(b) empowers the Secretary to set workplace safety standards, not broad public health measures. Although COVID–19 is a risk in many workplaces, it is not an occupational hazard in most. COVID–19 spreads everywhere that people gather. Permitting OSHA to regulate the hazards of daily life would significantly expand OSHA’s regulatory authority without clear congressional authorization. The vaccine mandate is unlike typical OSHA workplace regulations. A vaccination “cannot be undone.” Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are permissible but OSHA’s indiscriminate approach fails to distinguish between occupational risk and general risk. The equities do not justify withholding interim relief. States and employers allege that OSHA’s mandate will force them to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs.
• Issue: Did the Occupational Safety & Health Administration exceed its authority in promulgating a rule mandating that employers with at least 100 employees require covered workers to receive a COVID–19 vaccine or else wear a mask and be subject to weekly testing?
• Holding: The court grants the applications to stay the Occupational Safety & Health Administration’s challenged rule mandating that employers with at least 100 employees require covered workers to receive a COVID–19 vaccine.
• Judgment: Application granted in a per curiam opinion on January 13, 2022. Justice Gorsuch filed a concurring opinion, in which Justices Thomas and Alito joined. Justices Breyer, Sotomayor, and Kagan filed a dissenting opinion.
• SCOTUS Blog Case Page
• Slip Opinion

Covid in Health Care Facilities

• Summary: In November 2021, the Secretary of HHS announced that, in order to receive Medicare and Medicaid funding, participating facilities must ensure that their staff—unless exempt for medical or religious reasons or teleworking full-time—are vaccinated against COVID–19. Two district courts enjoined enforcement of the rule. The Supreme Court stayed the injunctions pending appeals in the Fifth and Eighth Circuits. The rule falls within the Secretary’s statutory authority to promulgate regulations “necessary to the efficient administration of the functions with which [he] is charged,” 42 U.S.C. 1302(a), including ensuring that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety. Conditions with which facilities must comply to be eligible to receive Medicare and Medicaid funds have long included a requirement that certain providers maintain and enforce an “infection prevention and control program.” Vaccination requirements are a common feature of the provision of healthcare in America.  The rule is not arbitrary. The Court noted the Secretary’s findings that in addition to the threat posed by in- facility transmission itself, “fear of exposure” to the virus “from unvaccinated health care staff can lead patients to themselves forgo seeking medically necessary care.” Nor did the Secretary fail to consider that the rule might cause staffing shortages. The Secretary’s finding of good cause to delay notice and comment was based on a finding that accelerated promulgation of the rule in advance of the winter flu season would significantly reduce COVID–19 infections, hospitalizations, and deaths.
• Issue: Does the Department of Health and Human Services have the authority to enforce a rule requiring health care workers at facilities that participate in the Medicare and Medicaid programs to be fully vaccinated against COVID-19 unless they qualify for a medical or religious exemption?
• Holding: The court grants the applications to stay the two injunctions barring the Secretary of Health and Human Services’ regulation requiring facilities that participate in Medicare and Medicaid to ensure that their employees are vaccinated against COVID–19.
• Judgment: Application granted in a per curiam opinion on January 13, 2022. Justice Thomas filed a dissenting opinion, in which Justices Alito, Gorsuch, and Barrett joined. Justice Alito filed a dissenting opinion, in which Justices Thomas, Gorsuch, and Barrett joined.
• SCOTUS Blog Case Page
• Slip Opinion

Week 16, Classes 27 & 28

Team 5 –  Establishment Clause: Separation of Church and State (Monday)

• Summary: Maine offers tuition assistance for parents who live in school districts that neither operate a secondary school nor contract with a school in another district. Parents designate the secondary school they would like their child to attend; the school district sends payments to that school to defray tuition costs. To be eligible for tuition payments, private schools had to be accredited by the New England Association of Schools and Colleges or approved by the Maine Department of Education. Since 1981, Maine has limited tuition assistance payments to “nonsectarian” schools. The First Circuit affirmed the rejection of constitutional challenges to the “nonsectarian” requirement. The Supreme Court reversed. Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause, which protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” A state need not subsidize private education but if it does so, it cannot disqualify some private schools solely because they are religious. A law that operates in that manner must be subjected to “the strictest scrutiny.” A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause; a state’s anti-establishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.
• Issue: Does a state law prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction violate the Religion Clauses or Equal Protection Clause of the U.S. Constitution?
• Holding: Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments to parents who live in school districts that do not operate a secondary school of their own violates the free exercise clause of the First Amendment.
• Judgment: Reversed and remanded, 6-3, in an opinion by Chief Justice Roberts on June 21, 2022. Justice Breyer filed a dissenting opinion, in which Justice Kagan joined, and in which Justice Sotomayor joined as to all but Part I-B. Justice Sotomayor filed a dissenting opinion.
• SCOTUS Blog Case Page
• Slip Opinion

Team 6 –  Abortion Rights (Wednesday)

• Summary: Mississippi’s Gestational Age Act provides that “[e]xcept in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” The Fifth Circuit affirmed an injunction, prohibiting enforcement of the Act.  The Supreme Court reversed, overruling its own precedent. The Constitution does not confer a right to abortion; the authority to regulate abortion belongs to state representatives. Citing the “faulty historical analysis” in Roe v. Wade, the justices concluded that the right to abortion is not deeply rooted in the nation’s history and tradition; regulations and prohibitions of abortion are governed by the same “rational basis” standard of review as other health and safety measures. The justices analyzed “great common-law authorities,” concerning the historical understanding of ordered liberty. “Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ … could license fundamental rights to illicit drug use, prostitution, and the like.” Noting “the critical moral question posed by abortion,” the justices compared their decision to Brown v. Board of Education in overruling Plessy v. Ferguson, which “was also egregiously wrong.” Roe conflated the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference and produced a scheme that “looked like legislation,” including a “glaring deficiency” in failing to justify the distinction it drew between pre- and post-viability abortions. The subsequently-described “undue burden” test is unworkable in defining a line between permissible and unconstitutional restrictions. Traditional reliance interests are not implicated because getting an abortion is generally an “unplanned activity,” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.” The Court emphasized that nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion. Mississippi’s Gestational Age Act is supported by the Mississippi Legislature’s specific findings, which include the State’s asserted interest in “protecting the life of the unborn.”
• Issue: Is Mississippi’s law banning nearly all abortions after 15 weeks’ gestational age unconstitutional?
• Holding: The Constitution does not confer a right to abortion; Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey are overruled; the authority to regulate abortion is returned to the people and their elected representatives.
• Judgment: Reversed and remanded, 6-3, in an opinion by Justice Alito on June 24, 2022. Justices Thomas and Kavanaugh filed concurring opinions. Chief Justice Roberts filed an opinion concurring in the judgment. Justices Breyer, Sotomayor, and Kagan filed a dissenting opinion.
• SCOTUS Blog Case Page
• Slip Opinion

Week 17, Class 29