On the Hill Updates: October 23, 2020
Courts matter to voting rights
On October 19, the US Supreme Court upheld a ruling from the Pennsylvania Supreme Court requiring election officials to count mail-in ballots received up to three days after Election Day. All Pennsylvania ballots mailed prior to Election Day will now be counted, regardless of the absence of a clear postmark. The 4-4 decision is a victory for voting rights activists and comes in the wake of widespread concerns over possible postal service delays. Chief Justice John Roberts joined Justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer to uphold the ruling.
On the other hand, the Court on October 21 blocked curbside voting in Alabama in a vote of 5-3. While a lower court had concluded that the “ban impose[d] a significant burden on vulnerable voters during the Covid-19 pandemic,” the Court sided with the Alabama Secretary of State who had ordered county officials not to offer curbside voting despite the fact that state law neither provides for nor forbids it. Justice Sonia Sotomayor authored a dissent joined by Justices Stephen Breyer and Elena Kagan, noting that the lower court’s order did not “require all counties to adopt curbside voting; it simply [gave] prepared counties the option to do so. This remedy respects both the right of voters with disabilities to vote safely and the state’s interest in orderly elections.” Since our founding, NCJW has worked to promote voting rights and supports policies that ensure easy and equitable access to the ballot box.
- Take Action! Click here to access helpful resources and ways to take action to ensure that EVERYONE has access to the polls.
SCOTUS to review Trump immigration policies
On October 19, the Supreme Court announced that it would take up two major cases surrounding the Trump administration’s unconscionable immigration policies. In 2019, the Sierra Club and the Southern Border Communities Coalition sued the Trump administration to stop the construction of a massive border wall along the US-Mexico border. They cited the federal government’s lack of authority to spend more on the wall than Congress had allocated for border security, highlighting funds being diverted from the Department of Defense budget. In a 5-4 vote, the Supreme Court in 2019 allowed the funds to be used while the case continued and, in 2020, the Court rejected a request to stop construction altogether while appeals continued. Now, the Court will hear Trump v. Sierra Club, a case brought by the Trump administration asserting that the parties did not have the right to bring the lawsuit and that the transfer of funds did not violate federal funding laws.
The second case, Wolf v. Innovation Law Lab, centers upon Trump administration policy — officially known as Migrant Protection Protocols (MPP) but more commonly referred to as Remain in Mexico — which requires asylum seekers from Central America who travel through Mexico on their way to the US to stay in Mexico during their asylum proceedings. Since the policy was put in place, more than 60,000 people have been forced to wait in dangerous Mexican border communities despite overwhelming evidence that this policy has resulted in barriers to legal representation at best, and kidnappings, torture, trafficking, sexual assaults, and murders at worst. Lower courts, including the Ninth Circuit Court of Appeals, originally blocked the policy but, in March, the Supreme Court allowed the government to continue enforcement while its appeals moved forward.
However, with the onset of the COVID pandemic, the administration began citing public health concerns when turning away asylum seekers, often returning them within hours to Mexico without even providing the opportunity to go through the application process. Eleven asylum seekers from Central America, represented by the ACLU, urged the Supreme Court to deny review in the case given that this effective closure of the border to asylum seekers during the pandemic has rendered the dispute moot for the time being. NCJW supports comprehensive, humane, and equitable immigration, refugee, and asylum laws, policies, and practices and will be watching these cases closely.
2020 Census returns to SCOTUS
The 2020 Census has been before the Supreme Court several times in recent years. In 2019, the Court ruled in Department of Commerce v. New York that the Commerce Secretary’s decision to add a citizenship question to the 2020 Census was subject to administrative review, eventually leading the White House to drop its insistence on adding the question. In October 2020, the Court allowed the Department of Commerce, which conducts the constitutionally-mandated enumeration every ten years, to end the Census early on October 15. On November 30, 2020, the Census will be before the Court again as the justices must now decide whether President Trump can exclude undocumented residents from the count used to apportion congressional districts in all 50 states. The president asked the Commerce Department to subtract undocumented residents from the count provided to the White House at the end of the year and, since there was no citizenship question, to use other data sources to do so. Municipalities and others have sued, arguing that the Fourteenth Amendment requires “the counting of the whole number of persons in each state.” The Supreme Court will determine whether the Executive Branch has the discretion to determine who counts as an inhabitant — a decision that could change the balance of power in Congress by moving House of Representatives seats to less diverse states. NCJW rejects the president’s efforts to treat undocumented immigrants as though they are less-than other members of our community and will be watching this case closely.
Courts matter to abortion rights and access
On October 16, the Sixth Circuit Court of Appeals upheld a Kentucky law forcing abortion clinics to obtain transfer agreements with local hospitals. This legislation is very similar to admitting privileges laws previously struck down by the Supreme Court in Whole Woman’s Health v. Hellerstedt and June Medical Services v. Russo; under the guise of “protecting women’s health,” these measures supposedly aim to ensure that abortion providers can admit or transfer patients to a hospital if necessary. However, abortion is one of the safest outpatient medical procedures and major complications are incredibly rare, occurring but a fraction of 1 percent of the time. In reality, these deceitful laws are designed for one purpose only: to shut down clinics, so even as Roe v. Wade remains the law of the land, accessing abortion care would be impossible for many.
The district court had deemed the transfer agreement requirement unconstitutional, concluding that “the scant medical benefits from transfer and transport agreements are far outweighed by the burden.” Unfortunately, the Sixth Circuit, citing Chief Justice John Roberts’ concurring opinion in June Medical Services, determined that the court need not balance the supposed benefits of the law with the burdens it imposed on those seeking abortion care and instead applied a less stringent standard of review. Once again, this decision confirms what many abortion rights advocates feared: that anti-abortion politicians and judges would exploit that lack of a clear majority in June Medical Services to enact and uphold a wide range of bans and restrictions. We need a federal statute with clear guidance to states and courts to ensure that people in every state have access to abortion care. NCJW supports the Women’s Health Protection Act (WHPA, HR 2975/S 1645) as a means to this end.
- Take Action! Sign our petition and use NCJW’s Action Alert to urge your lawmakers to pass WHPA.
Unqualified nominee referred out of committee
On October 22, the Senate Judiciary Committee referred the nomination of Kathryn Kimball Mizelle to the US District Court for the Middle District of Florida to the full Senate. In doing so, Chairman Lindsey Graham (R-SC) broke committee rules, for the second time in a single week, requiring at least two members of the minority party be present in order to hold a vote. Mizelle graduated from law school only eight years ago, spent four years clerking, and has experience in only two trial cases — neither at the senior level. Moreover, the American Bar Association found Mizelle “Not Qualified” for a lifetime appointment, directly citing her lack of meaningful experience. NCJW believes Mizelle lacks the proper experience required for a lifetime appointment and strongly opposes her nomination.
- Take Action! Urge your senators to oppose Mizelle.
COVID relief talks on again
House Speaker Nancy Pelosi (D-CA) and Treasury Secretary Steven Mnuchin continue to discuss a COVID relief agreement. The issues remain the same: aid to state and local governments, liability protections for businesses, and funding for the US Census as well as election systems. Should they reach a deal, it is likely a bill will not be written and ready for passage until after the November election. NCJW supports a meaningful package to protect women, children, and families — especially Black and brown communities disproportionately impacted by the virus.
- Take Action! Tell the Senate to consider the House-passed HEROES Act.
- NCJW joined 27 organizations on a letter to Chairman Graham and Ranking Member Feinstein opposing Amy Coney Barrett’s nomination given concerns about her record related to campaign finance laws and voter protections.