The Roberts Court may be waiting until the bitter end of its current term to deliver the much-awaited decisions on same-sex marriage, affirmative action, and voting rights, but as this term comes to a close the agenda of the conservative wing of the court couldn't be clearer.
Despite the hype and anticipation, the Roberts Court didn’t deliver any of its marquee decisions for the term on Monday. Instead, the court ruled on state attempts to regulate federal election law, the right to remain silent, and agreed to consider next term a challenge to laws designed to eliminate racial discrimination in housing. And with big decisions on employment discrimination and adoption still looming, in addition to the cases everyone is watching, including challenges to the Voting Rights Act, affirmative action in university admissions, and of course same-sex marriage, it is going to be a busy end of the month.
The biggest news from court Monday didn’t come in the form of a legal opinion, but instead the announcement that next term the Roberts Court will decide whether people who file housing discrimination lawsuits must show they were the victims of intentional discrimination. In the case, the city of Mount Holly, New Jersey, is fighting a U.S. Fair Housing Act lawsuit filed by residents over the demolition of a predominately minority neighborhood. The case will test a legal theory known as “disparate impact” analysis that allows claims of discrimination to proceed even if the victim does not have evidence of intentional discrimination. Instead, if a person can show that the action or decision at issue had the effect of discriminating against a protected class or had a “disparate impact” on that protected class then they have shown unlawful discrimination. The theory evolved to address the more insidious and “hidden” forms of discrimination based on cultural bias and stereotyping, and the Obama administration has used disparate impact analysis in predatory lending lawsuits against banks. The specific issue the Court will consider is whether the Fair Housing Act recognizes disparate impact claims. So far eleven courts of appeals have ruled on the issue, and each one has said the statute does allow for disparate-impact claims.
A decision that strikes down disparate-impact analysis would have wide-reaching impact. Depending on how broad an anti-equality ruling the court issues, even the Equal Credit Opportunity Act, which bars discrimination in all types of lending and contains language similar to the Fair Housing Act and the Consumer Financial Protection Bureau, could be effectively gutted.
The news that the Roberts Court will review the disparate impact analysis under civil rights laws sets an ominous tone to the coming session, and one that even a decision in which Justice Antonin Scalia strikes an Arizona law requiring people supply proof-of-citizenship before registering to vote cannot undo. Normally the words “Justice Scalia” and “upholding voting rights” don’t go together, but when a case is essentially a question of state law blatantly contradicting federal law on a question of federal concern, in this case the regulation of federal elections, even Justice Scalia can do the reasonable thing. Scott Lemieux at the American Prospect has this great take on the decision and explanation of the law at issue in the case. Arizona’s Proposition 200, passed in 2004, was a high water mark in anti-immigrant, anti-voting rights legislation. The law requires Arizona voters in federal elections to produce evidence of citizenship, something federal law does not. The question before the Roberts Court was whether Prop 200 conflicts with the Motor Voter Act, the 1993 law that creates a uniform process for federal vote registration by mail.
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The key language in the federal law requires states to “accept and use” the federal form for voter registration, and by a 7-2 majority the Supreme Court ruled that Arizona’s additional burdens of proof-of-citizenship were preempted by the federal law. But before we celebrate this as a major victory for voting rights, like many important Supreme Court decisions, the devil is in the details. While the opinion does seem to embrace a broad federal power to regulate elections, something that could be useful in future pro-voting rights legislation designed to address state-level voter ID laws for example, it also embraces the power of states to regulate elections at the local level and suggest ways those states can request those regulations, such as a proof-of-citizenship, be adopted or accepted by the federal government.
But those looking for any hints on how the Court will decide the Shelby County challenge to the Voting Rights Act in this decision should look elsewhere. While the opinion strikes the citizenship requirement, at oral arguments the conservative majority made it clear they didn’t have a problem with such a requirement in theory. Rather, Arizona had a poorly drafted law that left them no choice but to strike it, which means the decision is more about statutory construction than upholding or defending fundamental civil rights. On that point, there’s still plenty of room for worry, especially in light of the decision to review the Mount Holly fair housing case.
If a pattern is emerging from this last term, it is that a majority of justices on the Court have bought into the idea that this country is post-racial and that the civil rights battles of the 1960s and ’70s are little more than celluloid memories deserving of historical, but not legal, deference. If the Warren Court relied on broad-based sociological evidence of the impact of racial and gender discrimination in supporting school desegregation and the aims of racial equality, the Roberts Court has so far rejected that framework in favor of an embrace of “individual liberty” that had in a different era been invoked to defend against desegregation and federal enforcement of civil rights statutes. We will see this more in the coming term as the Court likely considers challenges to Roe v. Wade, government-sponsored prayer, and an expansion of religious rights under the guise of objecting to insurance coverage for birth control. But it’s clear that on matters of equality, the Court’s young conservatives have taken up where Edwin Meese and white Christian radical evangelicals left off.
This makes two voting rights victories in as many days for voting rights advocates. A federal judge on Tuesday in Wisconsin ruled that voters who unable to comply with the state's photo ID requirement would be allowed to vote in the November's election.
The ultra-conservative Fifth Circuit Court of Appeals, in a surprising victory for voting rights advocates, ruled that Texas’s voter ID law disproportionately burdened Black and Hispanic voters in violation of the federal Voting Rights Act (VRA) of 1965.
The decision means Texas can’t enforce the law in November’s presidential election.
Wednesday’s ruling was the latest in a convoluted legal challenge to the Texas law, which conservative lawmakers passed in 2011 and is among the most stringent voter ID laws in the nation. Voting rights advocates challenged the measure almost immediately, and the law remained blocked until the Roberts Court’s 2013 ruling in Shelby County v. Holderrevived it.
The Court in Shelby struck down a key provision of the VRA, Section 4, which is the coverage formula used to determine which states must get pre-clearance from the Department of Justice or the District Court for the District of Columbia under Section 5 of the VRA before making any changes to their election laws. States with a history of racially discriminatory voting requirements like Texas were covered by the Section 4 pre-clearance requirement before the Shelby decision.
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Within hours of the Court’s ruling in Shelby, Texas officials announced that they would begin enforcing SB 14, the restrictive voter ID law.
In response, a group of Texas voters sued Texas under a different portion of the civil rights law, arguing SB 14 violates Section 2 of the VRA, which forbids voting procedures that discriminate on the basis of race. Unlike Section 5 of the VRA, which requires state officials prove a voting rights law has no discriminatory intent or effect, under Section 2, the burden of proving racial discriminatory intent or effect is placed on voters to prove the restriction discriminated against their voting rights.
Both the district court and a three-judge panel of the Fifth Circuit agreed and found that SB 14 had a discriminatory affect in violation of Section 2 of the VRA. Texas then requested that the Fifth Circuit rehear the case en banc, with the full slate of judges on the Fifth Circuit.
The full Fifth Circuit issued that decision Wednesday, handing Texas conservatives a decisive loss.
“The record shows that drafters and proponents of SB 14 were aware of the likely disproportionate effect of the law on minorities, and that they nonetheless passed the bill without adopting a number of proposed ameliorative measures that might have lessened this impact,” Judge Catharina Haynes wrote for the majority.
Texas claimed that it had modeled its law after Indiana’s law, which was upheld in another challenge, Crawford v. Marion County Election Board. The Fifth Circuit, however, rejected Texas’s argument, finding obvious differences between the two laws that affected its decision that Texas’s law had a discriminatory impact on people of color.
“While cloaking themselves in the mantle of following Indiana’s voter ID law, which had been upheld against a (different) challenge in Crawford, the proponents of SB 14 took out all the ameliorative provisions of the Indiana law,” Haynes wrote.
One such ameliorative provision was an indigency exception, which the GOP-dominated Texas house stripped from the law. That exception would have freed indigent people from any obligation of paying fees associated with obtaining a qualified photo ID.
Although the Fifth Circuit found that the law violates the Voting Rights Act, the Fifth Circuit did not fashion a remedy for this violation and instead, remanded the case back to the lower court, instructing it that the “remedy must be tailored to rectify only the discriminatory effect on those voters who do not have SB 14 ID or are unable to reasonably obtain such identification.”
In addition, the appeals court reversed the lower court ruling that Texas had intended to discriminate against racial minorities. The court found evidence to support such a claim, but ultimately found that the district court’s overall findings were insufficient, and sent the case back to the district court to reconsider the evidence.
Nevertheless, voting rights advocates hailed the decision as a victory.
“We have repeatedly proven—using hard facts—that the Texas voter ID law discriminates against minority voters,” Gerry Hebert, executive director of the Campaign Legal Center and an attorney for the plaintiffs, said in a statement, according to the Texas Tribune. “The 5th Circuit’s full panel of judges now agrees, joining every other federal court that has reviewed this law. We are extremely pleased with this outcome.”
Texas Republicans, including former governor and presidential candidate Rick Perry, rushed the law through the GOP-majority legislature in 2011, arguing that it was necessary to prevent voter fraud, even though voter fraud has been found to be almost nonexistent in other Republican-led investigations.
Politifact found in March of this year that since 2002, there had been 85 election fraud prosecutions, and not all of them resulted in convictions. To put that in perspective, from 2000 to 2014, some 72 million ballots were cast in Texas, not counting municipal and local elections.
Justin Levitt, a professor at Loyola Law School in Los Angeles, argued in 2015 that most of the Texas prosecutions would not have been prevented by the voter ID law, since the prosecutions were not for in-person voter fraud, but rather for marking someone else’s absentee ballots without their consent, fake registrations, or voting while ineligible.
“There are vanishingly few instances of voter fraud—incidents flat-out, not just prosecutions—that could be stopped by applying a rule requiring ID at the polls,” Levitt said, according to Politifact.
Opponents of SB 14 cited the near absence of proven in-person voter fraud, arguing that the law was intended to dilute the voting strength of the state’s increasing population of people of color, many of whom do not have photo identification and who would find it difficult to obtain it, as the opinion noted.
Laws requiring photo identification disparately impact people of color, students, and low-income voters, all groups who tend to vote for Democrats rather than Republicans.
Nevertheless, Texas conservatives continue to insist that the law was appropriately tailored to address voter fraud. “Voter fraud is real, and it undermines the integrity of the process,” said Gov. Greg Abbott (R) in a statement on Wednesday, according to the Texas Tribune.
Texas may appeal to the Supreme Court and ask the high court to intervene, although given that the Roberts Court remains short one judge, a 4-4 split is possible, which would leave in place the Fifth Circuit’s ruling.
This makes two voting rights victories in as many days for voting rights advocates. A federal judge on Tuesday in Wisconsin ruled that voters who unable to comply with the state’s photo ID requirement would nevertheless be allowed to vote in the upcoming election in November.
“David Daleiden contacted our agency May 21st of 2015 and filed a criminal report against StemExpress here in Placerville,” a spokesperson at the El Dorado County Sheriff’s Office told Rewire. “All he was, was a reporting party. He didn’t consult with us and he didn’t cooperate with us. In fact, I’d characterize him as uncooperative.”
See more of our coverage on the anti-choice front group the Center for Medical Progress here.
In late May of last year, David Daleiden was reaching the culmination of a project he had been working on for three years. Over that time, the anti-choice activist had been living a lie of his own creation. He had set up a bogus company, complete with a fake website, and corporate officers whose names were in fact aliases.
He had enlisted half a dozen other anti-choice activists to help him, most notably Sandra Susan Merritt, a 63-year-old resident of San Jose, California, who—using the alias Susan Tennenbaum—posed as the CEO of the bogus company, Biomax Procurement Services.
Together, Daleiden—going by Robert Daoud Sarkis—and Merritt hopscotched the country, traveling from California to Colorado, Florida, Maryland, Texas, and Washington, D.C. They attended conferences for abortion providers and parlayed those attendances—and the trust and credibility they engendered—into visits to abortion clinics, where the pair secretly recorded meetings and site visits and tried to goad their targets into making statements that could be twisted to look like evidence of illegal activities.
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By May 21, Daleiden was nearly ready to bring his elaborate scheme to a head. The next night, he and “Tennenbaum” were scheduled to have dinner with executives from StemExpress, a tissue procurement company based in Northern California. As he had done for virtually every encounter as a Biomax official, Daleiden planned to secretly video record the meeting and then to release doctored versions of that footage to the public.
But this time, Daleiden did something different. On the eve of this particular meeting, he delivered a bundle of so-called evidence of alleged wrongdoing by StemExpress to the El Dorado County Sheriff’s Office, claiming that the company had engaged in a range of crimes including trafficking in human organs and human tissues, and “homicide of babies born alive during the abortion procedure,” according to legal documents obtained by Rewire.
In a deposition taken late last year, Daleiden would claim—in sworn testimony, under penalty of perjury—that the purpose of his meeting with the El Dorado County Sheriff’s Office was “to coordinate [his] investigations going forward on how to bring StemExpress criminal conduct to light.”
Following his lawyer’s advice during that deposition, Daleiden refused to say more about that meeting, or the other authorities he had supposedly “coordinated” with in his spying campaign, but he did heavily imply that the El Dorado County Sheriff’s Office was just one of the “governmental authorities” that he met with “contemporaneously with the actual undercover operation.”
The notion that law enforcement authorities were actively colluding with Daleiden and his associates in conduct that has resulted in criminal indictments is curious, to say the least.
It’s just one of the loose ends that surrounds Daleiden’s project, a year after he released the first smear video against Planned Parenthood (the organization and some of its individual employees), abortion providers in general, and companies that assist in the procurement of tissue for medical and scientific research.
Despite the dozen-odd state and federal investigations his project sparked, the multiple civil and criminal cases it sent ricocheting through state and federal courts, and the untold damage it caused to companies, organizations, and individuals targeted by his group, many questions remain about who funded Daleiden, which politicians supported him, and who else was involved in his operation—including the identities of the other operatives that posed as Biomax employees.
Using freshly obtained legal documents, Rewire has taken a look back at some of the most mysterious aspects of the Daleiden affair, comparing what we have learned since the videos were first released with what remains unknown or unclear.
What emerge are some disturbing claims that have yet to be fully resolved, not least of which is the extent to which members of Congress were aware of—or involved in—planning or executing Daleiden’s campaign.
El Dorado Sheriff’s Office: Daleiden Was “Uncooperative”
When Daleiden met with the El Dorado County Sheriff’s Office, he handed over a report he had prepared containing his “best kind of summary or list of the different California and federal laws that are implicated in the actions between StemExpress and Planned Parenthood,” along with “a few representative examples of the evidence that CMP gathered that indicates probable cause for violations of those laws,” according to a transcript of the deposition he gave on December 30, 2015.
When Rewire contacted the El Dorado County Sheriff’s Office about this anecdote, its spokesperson, Jim Byers, said he clearly remembered Daleiden’s visit, but disputed Daleiden’s characterization that his office was “coordinating” with the spying project.
“David Daleiden contacted our agency May 21st of 2015 and filed a criminal report against StemExpress here in Placerville,” Byers said. “All he was, was a reporting party. He didn’t consult with us and he didn’t cooperate with us. In fact, I’d characterize him as uncooperative.”
Byers said that it was unclear to his colleagues what exactly Daleiden wanted them to do with the information he had provided. Flipping through the report while speaking with Rewire, Byers explained: “It just says that he had been conducting a multiyear investigation and was going to go public with it and wanted to make this report to us, but when we asked him to hold off so we could investigate his claims, he went ahead and went public anyway.”
The reason the sheriff’s office asked Daleiden not to go public was because doing so would hamper any investigation they might do into the allegations Daleiden had made. “That’s very common, for us to ask something like that, because then the people we need to talk to aren’t going to talk to us,” Byers said. “He declined to follow our request.”
Regardless, the sheriff’s office spent months investigating Daleiden’s claims; they found no evidence of illegal conduct by StemExpress. As is routine, the sheriff’s office then referred the matter to the El Dorado District Attorney for further review. Dave Stevenson, the spokesperson for the district attorney’s office, told Rewire he was unable to comment on the matter as the investigation is ongoing.
If it seems odd that Daleiden would make a report to law enforcement—but not give them any time to actually investigate the allegations he’d made and actually jeopardize those investigations—that might be because the act of making the report itself was part of Daleiden’s legal strategy.
Daleiden was consulting with the Life Legal Defense Foundation for at least two years prior to releasing his videos, according to published reports. It’s therefore likely that he knew that California creates criminal and civil penalties for people who intentionally make a secret recording of a person in a private meeting without their consent. And indeed, that’s one of the key charges within the lawsuits that have been filed against Daleiden and his co-defendants.
It’s also likely that Daleiden and his advisers knew that there is an exception to that law for people who make a secret recording “for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person.”
Throughout the deposition he made on December 30, Daleiden maintained that he believed he was exposing criminal conduct as a justification for his spying activities. Merritt made similar claims in the deposition she gave in the same case, on December 29. In particular, both insist they believed they were recording evidence of murder.
It appears plausible that Daleiden made his report not because he thought the county sheriff’s office would really investigate, but because he anticipated that once he published the illegally taped videos, he would be charged with a crime, and he was simply laying the groundwork to be able to show a court later on that he had filed the criminal report as evidence of his belief that he had uncovered a crime.
Daleiden did not reply to Rewire‘s questions about whether this was in fact his legal strategy. Catherine Short, his lawyer at Life Legal Defense Foundation, did not immediately respond to our emails seeking comment.
However, for that defense to work, a person must show they had an honest and reasonable belief that they were uncovering a crime. And when it came to the specifics of the supposed crimes they were uncovering, both depositions are striking for the extent to which Daleiden and Merritt refused or were unable to give clear definitions of those offenses.
For instance, both Daleiden and Merritt were reluctant to answer questions about who, if anyone, they believed had actually committed the murder they were supposedly reporting, despite that being one of their key allegations. Both Daleiden and Merritt made vague statements about “doctors” being responsible, or about the “abortion industry” writ large, but when it came to the specifics of how anyone at StemExpress could have been guilty of murder, their answers were evasive.
In one chilling passage, Daleiden gave stammering and elusive answers to questioning over whether he believed that one of the people who assisted him in his smear campaign—a former StemExpress employee named Holly O’Donnell—had provided him with evidence that she had herself committed murder. Discussing O’Donnell’s account of one incident she related where she claimed to have procured fetal brain tissue, Daleiden initially said he did not believe O’Donnell had murdered that fetus. But under questioning about the overall processes involved in preparing tissue samples, Daleiden’s answers became confused.
After Daleiden noted that O’Donnell went with him to his first meeting with El Dorado law enforcement, the StemExpress lawyer asked: “Did you ever tell Holly that you thought she should be investigated by El Dorado County for her conduct?”
Daleiden never definitely said “no,” but rather, “I think that, you know, the testimony of people who worked at StemExpress is—you know, is relevant to that investigation but I think the ultimate culpability is with the—with the business entity.” He also said he would “put culpability on the doc,” but then he said:
I’m not sure what Holly’s obligations were there. But, you know, but this is—this is highly speculative and, like I said, this is why I think this is really serious information that I—and really serious allegations and actions that—that needed to be brought to law enforcement, which is what I did.
Ultimately, Daleiden’s lawyer summarized his client’s position on O’Donnell’s potential guilt thus: “He explained as best he could that it would be the doctor or it would be [a different StemExpress employee] and it’s ambiguous as to Holly’s role at that point.”
Merritt appears to go further. Towards the end of her deposition, she was asked to clarify whether she believed that any StemExpress employees had committed murder. She described what she believed O’Donnell had done, and then said, “Yes, I believe that to be murder.”
One can only wonder whether O’Donnell was aware that Daleiden considered the possibility—or perhaps, had not considered the possibility—that he was giving law enforcement authorities evidence that she had committed murder, when she accompanied Daleiden to their offices and helped him with his “investigation.”
Rewire’s attempts to contact O’Donnell for her comment on that question were unsuccessful.
Further Evidence That Daleiden and His Associates Are Not Reporters
The very fact that Daleiden claimed—albeit incorrectly—to have been “coordinating” with law enforcement further undermines his dubious assertion that he is an investigative reporter. Reporters would seldom coordinate their efforts with law enforcement, except for rare instances where, by way of example, they might inform law enforcement if they had learned of an imminent risk to a person’s life or to national security.
The deposition also revealed Daleiden’s investigative methods to be far from objective, and in some respects, amateurish.
Under questioning from StemExpress’ attorney, Daleiden explained that much of his knowledge of how tissue or organ transplantation worked was based on “research,” which comprised Googling for journal articles, which he admitted to cherry-picking. He also based most of his understanding of the equipment used in heart transplants on watching videos that the equipment manufacturer had posted on its website and YouTube channel.
He relied disproportionately on the expertise of a scientist whose otherwise impressive credentials are marred by her support for widely debunked theories that vaccines are linked to autism. He used this patchwork knowledge to cobble together flawed theories about how fetal tissue is acquired, and the circumstances in which it could be used for research.
He even made assumptions about what medical professionals meant by the words “case” or “specimen”—he said he believed the people he filmed were referring to a fetus, when in fact those words can also refer to a particular organ or piece of tissue. He said that he didn’t give the subjects of his secret video recordings the opportunity to clarify what they meant by these terms because he didn’t want to blow his cover—or as he put it, he didn’t want to get greedy for information and “get lost in the Cave of Wonders like Aladdin and go like looking for all the other treasures.” He just ran with his own assumptions, something no professional reporter would do.
And he acknowledged that the reason he embarked on his project was because he had formed an unshakable belief that abortion providers engaged in unlawful trafficking of human organs and tissues, instead of remaining open-minded about the facts and attempting to report against his own biases, as a real reporter would do. None of the multiple investigations into Planned Parenthood have found any evidence that substantiate Daleiden’s allegations. Indeed, Daleiden manipulated his videos to omit passages where the targets of his campaign explicitly told him that profiting from human tissues was unethical and illegal.
Merritt’s deposition is even more astonishing in terms of just how flimsy her claims to be a reporter turn out to be.
Like Daleiden, Merritt is trying to assert that she is a reporter and therefore protected by the First Amendment.
A lawyer for StemExpress asked Merritt, “Do you consider yourself a journalist?”
Merritt answered, “Yes.”
The lawyer then asked, “Have you ever published any articles?”
Merritt answered, “I have not.”
She said she didn’t do any original research. She didn’t do any writing. She didn’t edit. Merritt specifically told the lawyer for StemExpress that her sole role in the ruse orchestrated by Daleiden was to wear a video recorder while playing the part of Susan Tennenbaum, which may explain why Daleiden has frequently referred to his associates as “actors.”
Wearing a camera does not a reporter make.
Which Members of Congress Knew About the Planned Smear Campaign, What Did They Know, and When?
An especially curious aspect of this saga is how some members of Congress had seen at least one of the smear videos before Daleiden released them to the public. Rep. Trent Franks (R-AZ) and Rep. Tim Murphy (R-PA) both told Roll Call that they had seen the first video about a month before it was published. How and why they came to see the video, and what their role was in helping plan the political response to the tapes, if any, remains unclear.
But the following exchange during Daleiden’s deposition provided a tantalizing tidbit about that mystery.
In his December 30 deposition, Daleiden declined to answer the following questions from StemExpress’ lawyer:
When is the first time you spoke with anybody from, or had any contact with anybody from Congress?
When is the first time you provided any materials to anybody that is a member of Congress?
Daleiden responded: “I don’t think the answer to that question is a matter of public record so I’m going to follow the advice of my counsel.” He declined to respond.
Ostensibly, the reason Daleiden declined is that he believed it was outside the scope of that particular deposition, which was confined to some narrow legal arguments. However, there is an implication in the December 30 deposition that those questions were within the scope of a related case, along with questions about who funded Daleiden’s efforts, and information about the specific role of his board member, the anti-choice extremist and head of Operation Rescue, Troy Newman.
A year has passed since the videos were first released, and a lot of time and taxpayer dollars have been spent as a result of Daleiden’s endeavors. But a year is a short time in the life of a lawsuit, and many cases are still wending their way through state and federal courts. As they do, it is possible that we will learn more about these unresolved questions.
Time will tell whether the pattern Daleiden has established will continue: Instead of exposing wrongdoing by others, the only wrongdoing he has thus far managed to record and expose was his own.