July 21, 2021

A Silver Lining for Rural America in the Supreme Court’s Decision in Brnovich?

Cross-posted to the Daily Yonder and Legal Ruralism.

Lisa R. Pruitt & Ezera Miller-Walfish, Class of 2022

Although the U.S. Supreme Court’s recent voting rights decision in Brnovich v. Democratic National Committee was very bad news for rural residents (and, indeed, all voters) in terms of the precedent set, there is perhaps a silver lining to be found in the dissenting opinion, written by Justice Elena Kagan and joined by Justices Stephen Breyer and Sonia Sotomayor.  

That dissent took the concept of distance–rural spatiality–more seriously than any faction of the Supreme Court has ever done. Unlike the majority opinion, Kagan’s dissent examines the extra burden that living in a rural area can place on access, in this case to the ballot box.

In Brnovich v. Democratic National Committee, the Court split along ideological lines, voting 6-3 to uphold the State of Arizona’s restrictions on voting. The Arizona law limits the practice of ballot collection—a process whereby third-party individuals can return a voter’s signed and sealed mail-in ballot—and allows election officials to discard ballots cast at the wrong precinct.

We are a law professor and law student engaged in a thinking critically about the difference rurality makes to the operation of law, and we have followed this case for reasons other than those that have led election and constitutional law scholars to follow it: we’re interested in the case’s implications for rural populations and also how the Court understands lived realities in rural America.

Brnovich’s “Big Picture”

Before we get into the “rural weeds,” though, let us first refer to what Professor Rick Hasen of the UC Irvine School of Law said on his Election Law Blog about the big picture of Brnovich in relation to voting rights precedents.

[The decision] severely weakened Section 2 of the Voting Rights Act [a federal law dating to the Civil Rights Era] as a tool to fight against laws that make it harder to register and vote. Rather than focus on disparate impact—whether a law leads to minority voters registering or voting in lower numbers—the court applies a much broader totality of the circumstances test with a huge thumb on the scale favoring the state and its restrictive law. If a law imposes just a “usual burden of voting,” and the burden on minorities is not too much, and the state can assert (but does not need to prove) a significant interest in preventing voter fraud or another interest, then the law can stand.

The term “usual burden” is interesting here because in some prior cases, the focus has been on the opposite — on an “undue burden” on exercising the right. We will come back to that below when we draw the parallel between this voting rights case and another strand of constitutional litigation that uses an “undue burden” standard: abortion restrictions. On voting, Hasen continues:

When you couple this opinion with the 2008 ruling in the Crawford case, upholding Indiana’s voter ID law against a Fourteenth Amendment equal protection challenge, the 2013 ruling in Shelby County killing off the preclearance provision of the Voting Rights Act for states with a history of discrimination, and today’s reading of Section 2, the conservative Supreme Court has taken away all the major available tools for going after voting restrictions. This at a time when some Republican states are passing new restrictive voting law.
The Court today also makes it harder to prove intentional racial discrimination in passing a voting rule.

In a guest post on the Election Law Blog, Professor Doug Spencer provided further big-picture context in relation to the Court’s approach to other enumerated rights.

It’s hard to reconcile the Court’s indifference to inconveniences on voting rights (e.g., fn 11, slip op. at 16) with its uncompromising protection of gun rights or its “most-favored-nation” approach to religious freedom. Why are voting rights so different? And so less worthy of protection?

(Congratulations to Prof. Spencer and UC Davis' own Prof. Chris Elmendorf, whose Columbia Law Review article on Section  2 of the Voting Rigths Act was cited by Justice Kagan in dissent).

A New Response to Rurality

OK, enough on the broad U.S. Constitutional and voting rights context. We want to turn now to why this case is exceptional from a ruralist standpoint.

The backstory here is that we have been arguing in legal scholarship–if not in amicus briefs or any other form that would actually get directly before the Justices–that rural spatiality, aka material distance, is an obstacle the Supreme Court should take seriously in considering “undue burdens” on the exercise of constitutional rights like voting and abortion.

The context in which the issue of distance has arisen most frequently is abortion access, which one of us has written about herehere, and here. The Supreme Court of the United States has rarely grappled in any meaningful way with the distance a woman must travel to reach an abortion provider, an issue that arises when waiting periods make two trips necessary or when state abortion regulations force providers to close, thus forcing women to travel longer distances to other providers. But in Whole Woman’s Health v. Hellerstedt, Justice Breyer, writing for the majority in the 2016 opinion, used the word “rural” only once, though he used the word “miles” 19 times.

Specifically, Breyer quoted the trial (federal district) court opinion, which acknowledged the added burden the clinic closures were causing “poor, rural, or disadvantaged women.” The disadvantaged group most focused on in that litigation were Latinas living in the Rio Grande Valley, who tended to be “poor, rural and disadvantaged.” Interestingly, the Court did not again use the word “poor” or “poverty” in the majority opinion, which is bit unusual–and disappointing–given that poor women disproportionately seek abortions compared to their more affluent counterparts. The Court did, however, use the term “Rio Grande Valley” twice, which suggests that population drew particular solicitude.

The Hellerstedt Court’s use of “miles” also mostly tracked the district court’s findings, here about the specific impact of the law on women’s abortion access. Because the challenged law had the effect of closing abortion providers across Texas, the geographical distribution of abortion providers shifted, with these consequences:

[T]he number of women of reproductive age living more than 50 miles from a clinic has doubled, the number living more than 100 miles away has increased by 150%, the number living more than 150 miles away by more than 350%, and the number living more than 200 miles away by about 2,800%.

Also looming was the fact that if another pending restriction went into effect, Texas would have abortion providers “only in five metropolitan areas.” Finally, Breyer used “miles” when quoting the federal district court for the proposition that Texas is big–specifically, that it covers nearly 280,000 square miles and that 25 million people–5.4 million of them women of reproductive age–live on that vast land area.

Ultimately, Breyer’s opinion concluded:

We recognize that increased driving distances do not always constitute an “undue burden.” See Casey, 505 U. S., at 885–887 (joint opinion of O’Connor, KENNEDY, and Souter, JJ.). But here, those increases are but one additional burden, which, when taken together with others that the closings brought about, and when viewed in light of the virtual absence of any health benefit [from the Texas law], lead us to conclude that the record adequately supports the District Court’s “undue burden” conclusion.

That was a real victory for rural women, however defined, though the focus was much more on the distance–really increased distance–that any woman might have to travel to reach an abortion provider. This did not explicitly focus on rural women, but the Hellerstedt majority went much further than any prior opinion in taking seriously material distance, expressed as miles traveled.

Rural America and Voting Rights

That brings us to Brnovich and voting rights. In discussing this case, it makes sense to discuss first the number of times the dissent mentions the word “rural” because it far outnumbers–and outweighs–what the majority had to say. Justice Kagan, writing for the dissent, used the word “rural” twelve times, frequently as part of the phrase “rural Native Americans.” The reason for this linkage is that the Voting Rights Act responds to discrimination on the basis of race. Thus, the sensitivity–if there is any–is to racial or ethnic difference, and that difference gets paired with rurality in what scholars call intersectionality. That is, status as a Native American intersects with rurality to aggravate the disadvantage experienced by this population, just as status as a poor woman intersected with status as a Latina and rural location to disadvantage women in Texas’ Rio Grande Valley in Hellerstedt.

Here’s perhaps the most salient quote from Kagan’s dissent:

Arizona’s law mostly banning third-party ballot collection also results in a significant race-based disparity in voting opportunities. The problem with that law again lies in facts nearly unique to Arizona—here, the presence of rural Native American communities that lack ready access to mail service. Given that circumstance, the Arizona statute discriminates in just the way Section 2 proscribes. The majority once more comes to a different conclusion only by ignoring the local conditions with which Arizona’s law interacts.
The critical facts for evaluating the ballot-collection rule have to do with mail service. Most Arizonans vote by mail. But many rural Native American voters lack access to mail service, to a degree hard for most of us to fathom.

This language–humble for a Supreme Court Justice-–reminds me of Justice Thurgood Marshall’s rhetorical practice of putting himself in the shoes of litigants and acknowledging the challenge for Supreme Court justices to do just that. He wrote in United States v. Kras (1973), a case involving a court filing fee:

It may be easy for some people to think that weekly savings of less than $2 are no burden. But no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are. . . .It is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live.

One of us has made similar arguments re the Supreme Court’s struggle to grasp the burden of distance, especially with so many current justices having grown up in New York City. There is not, after all, much geographic diversity on the Court, and no current justice has any meaningful links to rurality.

Kagan’s dissent in Brnovich continues with a focus on the burden of rurality in relation to Native Americans, veering into the subject of those who rely on the U.S. mail in order to vote:

Only 18% of Native voters in rural counties receive home mail delivery, compared to 86% of white voters living in those counties. And for many or most, there is no nearby post office. Native Americans in rural Arizona “often must travel 45 minutes to 2 hours just to get to a mailbox.” (“Ready access to reliable and secure mail service is nonexistent” in some Native American communities). And between a quarter to a half of households in these Native communities do not have a car. See ibid. So getting ballots by mail and sending them back poses a serious challenge for Arizona’s rural Native Americans.

For that reason, an unusually high rate of Native Americans used to “return their early ballots with the assistance of third parties.” As the District Court found: “[F]or many Native Americans living in rural locations,” voting “is an activity that requires the active assistance of friends and neighbors.” So in some Native communities, third-party collection of ballots—mostly by fellow clan members—became “standard practice.” And stopping it, as one tribal election official testified, “would be a huge devastation.” [citations omitted]

It bears noting that Arizona, the sixth largest state in land area, is not alone in terms of challenges facing rural residents—and Native American voters in particular. Similar issues in Montana, the fourth largest state in the nation, are highlighted in this recent New York Times story, which focuses on the details of voting on Blackfeet reservation in the northwest part of the state.

Geography, poverty and politics all create obstacles for Native Americans. The Blackfeet reservation is roughly the size of Delaware but had only two election offices and four ballot drop-off locations last year, one of which was listed as open for just 14 hours over two days. Many other reservations in Montana have no polling places, meaning residents must go to the county seat to vote, and many don’t have cars or can’t afford to take time off.

The Majority’s Dismissiveness of Rural and Over-reliance on the U.S. Post Office

From a ruralist standpoint, the most shocking thing about the Brnovich litigation is the Supreme Court majority’s response to the dissent’s concern over these rural realities, especially as they impact Native Americans. Indeed, the majority was so dismissive of these concerns as to relegate its response to a footnote, footnote 21. Justice Alito, writing for the majority, notes the ways people will be still able to vote under the challenged Arizona law, e.g., the legality of having a ballot picked up and mailed by family or household members. Beyond that, he simply relies on provisions of the U.S. Code about the postal service, specifically the provisions about the circumstances under which small post offices may be closed. Here’s the full quote.

The burdens that fall on remote communities are mitigated by the long period of time prior to an election during which a vote may be cast either in person or by mail and by the legality of having a ballot picked up and mailed by family or household members. And in this suit, no individual voter testified that HB 2023 would make it significantly more difficult for him or her to vote. 329 F. Supp. 3d, at 871. Moreover, the Postal Service is required by law to “provide a maximum degree of effective and regular postal services to rural areas, communities, and small towns where post offices are not self-sustaining.” 39 U. S. C. §101(b); see also §403(b)(3). Small post offices may not be closed “solely for operating at a deficit,” §101(b), and any decision to close or consolidate a post office may be appealed to the Postal Regulatory Commission, see §404(d)(5). An alleged failure by the Postal Service to comply with its statutory obligations in a particular location does not in itself provide a ground for overturning a voting rule that applies throughout an entire state. [emphasis added]

So, on the one hand, there’s this federal statute that says the USPS must provide a “maximum degree of effective and regular” delivery even to places–including rural ones–where the local post office doesn’t “break even.” On the other hand, if the USPS fails to comply with this statute, that lack of compliance won’t be grounds for overturning a state voting law.

Folks who’ve followed the recent degradation in U.S. Postal Service will immediately see some irony in the majority’s reliance on this institution. Those who’ve followed the decades long efforts to close and consolidate rural post offices will see yet another level of irony. Indeed, the latest proposal to downgrade postal service, detailed here, would ”disproportionately affect states west of the Rocky Mountains,” which includes a lot of Indian Country–and many other rural places, too. Specifically, 57% of first-class mail sent in Montana and 55% sent in Arizona will take longer to arrive.

This has us wondering if rural postal service advocates will try to rely on this footnote in Brnovich majority to resist some future effort to close more post offices. The argument would be, we guess, that if the Supreme Court says it won’t be done because of this statute, then it should not be done. But what the footnote–and the statute–give, they also take away in saying that post offices can, of course, be closed, although there’s a right to appeal such closures.

This is all pretty grim—for all patrons of the U.S. Postal Service, but especially for rural and Native American folks whose local post offices are most likely to be on the chopping block.

The majority opinion in Brnovich is devastating for voting rights generally speaking, and for Native American and rural communities in particular. But there is a sliver of hope to be found here: the dissent in this case shows that the U.S. Supreme Court is capable of taking rurality seriously–at least as a factor intersecting with Native American status. The Brnovich dissent grapples with the lived realities of distance, with the material spatiality of the rural, in an even more explicit and compelling way than the Hellerstedt majority did five years ago.

This leaves us with hope that the groundwork laid by the Brnovich dissent will be invoked in some future case, if and when the liberal wing of the Court is in the majority and called on to take seriously the rights of rural folks and therefore also the state-imposed barriers that undermine their ability to exercise those rights. The liberal bloc has finally shown they know how to do this. Let’s hope they don’t forget if they are some day back in a position to be the final arbiters of what is or is not an “undue burden.”

Ezera Miller-Walfish is a rising third-year law student at UC Davis School of Law.  She grew up in rural northern New Mexico.  
May 11, 2021

RIP Cruz Reynoso, First Latino Justice on California Supreme Court

[Cross-posted from ImmigrationProf Blog]

By Kevin Johnson 

 

We have lost a civil rights icon and immigration reformer.  The first Latino on the California Supreme Court, Cruz Reynoso, passed away yesterday after a long illness. He celebrated his 90th birthday last weekend. 


Here is a story on Cruz's passing in the Los Angeles Times.

 

The Reynoso family, through son Len ReidReynoso, released the following announcement:

"On May 7, 2021, former California Supreme Court Associate Justice, law professor, and civil rights activist Cruz Reynoso passed away at age 90, surrounded by his family. Reynoso was born on May 2, 1931 in Brea, California, to Francisca Ramirez Reynoso and Juan Reynoso. Cruz was one of eleven children. Cruz along with his father and brothers worked as migrant farm workers. After high school, Cruz decided to go to college and attended Fullerton Community College, and then Pomona College. After graduation, Cruz was drafted into the U.S. Army where he served on the Counterintelligence Corp. While serving in the Army, Cruz was stationed in Washington D.C., where he met his first wife, Jeannene Harness. They married in 1956 and raised four children together. Jeannene passed in 2007, and in 2008 Cruz married Elaine Rowan. Elaine passed in 2017.

Cruz earned his law degree from Boalt Hall at UC Berkeley in 1958. After which he practiced law in El Centro, California. In 1968 Cruz became the director of California Rural Legal Assistance, the first state-wide legal services program. In 1972 Cruz became a law professor at University of New Mexico. In 1976, Governor Brown appointed him to be a Justice of the 3rd District Court of Appeals. In 1982, Brown appointed Cruz to be the first Mexican American to serve on the State Supreme Court. After leaving the Court in 1987, Cruz practiced law once again. In 1991 Cruz began teaching law at UCLA. In 2001 UC Davis offered Cruz the Boochever and Bird Chair designed to promote freedom and equality. Cruz accepted and taught at UC Davis until 2017.

Cruz worked for the Equal Employment Opportunity Commission under the Johnson administration, and was appointed by President Carter to serve on the Congressional Select Commission on Immigrant and Refugee Policy. President Clinton appointed Cruz to be the vice-chair of the U.S. Commission of Civil Rights and in 2000 gave Cruz the Presidential Medal of Freedom for his work in Social Justice.  Cruz also served on Barack Obama’s transition team.

Cruz’s life passion was creating a more just society. He fought for equal rights for under-represented populations, legal access for the poor, workers rights, immigration reform, and voting rights. When not fighting legal battles, Cruz loved working on his ranch in Sacramento County. Cruz also loved reading about history and loved to draw. Abby Ginzberg produced an award-winning film about Cruz’s life titled “Sowing the Seeds of Justice.”

Cruz is survived by four brothers, four sisters, his four children and their spouses (Trina and Duane Heter, Ranene and Bob Royer, Len and Kym ReidReynoso, Rondall and Pamela Reynoso) along with two stepchildren and their spouses (Dean and Laudon Rowan, Hali Rowen and Andy Bale), seventeen grandchildren, three step-grandchildren and two great grandchildren. Cruz is greatly loved and will be greatly missed. In lieu of flowers feel free to donate to the Cruz and Jeannene Reynoso Scholarship for Legal Access.

I had the honor of being Cruz's colleague for years at UC Davis.  We first met when he was a Justice on the California Supreme Court and I was a newly-minted attorney working in San Francisco.  Later, I had a chance to get to know him as a colleague at UC Davis School of Law, where Cruz ended his illustrious and path-breaking career.  As two early risers, we talked in the mornings regularly about current events, law, politics, families, taquerias, and the like.  As Cruz often said, he had a "justice bone" that was quick to challenge injustice.  He was as decent and genuine as anyone I have ever known and will be missed dearly.


Cruz came to UC Davis after a stint at UCLA School of Law.  Then-Dean Rex Perschbacher made it his mission to bring Cruz to UC Davis.  Besides teaching and writing (including a partially completed autobiography), Cruz was active in the UC Davis and greater community.  He, for example, chaired a task force reviewing the police use of pepper spray against protesters. Cruz also investigated the killing of a farmworker by  Yolo County law enforcement.  Cruz once told me that he found civil rights work more rewarding than the "boring" work of completing his autobiography.  


Upon Cruz's retirement, I had a fascinating interview with him for the UC Davis archives.  Here is the video.


RIP Cruz Reynoso.


KJ


May 10, 2021

Justice Cruz Reynoso's Rural Life

By Lisa Pruitt

Cruz Reynoso, former California Supreme Court Justice and my colleague at UC Davis School of Law for two decades, died a few days ago at the age of 90.  Many are offering remembrances of Reynoso -- who the faculty and staff at the law school knew as just "Cruz"-- and it's interesting for me as a ruralist to see the number of references to "rural" in his life's story.  

Of course, Reynoso famously led California Rural Legal Assistance (CRLA), the "first statewide, federally funded legal aid program in the country."  That was during the heyday of Cesar Chavez and Dolores Huerta's organizing in the 1960s.  CRLA provides free legal services to farmworkers.  In California, "rural" is largely conflated with agriculture in the popular imaginary (though there are far less densely populated and more remote California locales than its agricultural valleys), and the organization's website articulates its mission as helping “rural communities because those communities were not receiving legal help.” 

The tumultuous history of that organization under Reynoso's leadership is recounted in a Los Angeles Times story

Then-California Gov. Ronald Reagan repeatedly vetoed federal funds for the California Rural Legal Assistance while Reynoso headed the office and even signed off on an investigation that accused the nonprofit of trying to foment murders and prison riots (the investigation went nowhere).

Among other achievements during his leadership, Reynoso "oversaw eventually successful efforts to ban the short-handled hoe, which required farmworkers to stoop and led to debilitating back problems, and DDT, the deadly agricultural chemical."  

The Sacramento Bee reports on one of CRLA's big litigation victories under Reynoso's leadership, Diana v. California State Board of Education:  


It centered on Latino children who were incorrectly assessed by their school and labeled mentally challenged. The pupils were funneled into special education classes when, in reality, they were simply new English learners. CRLA lawyers filed a class-action lawsuit on behalf of students in the Monterey County town of Soledad.


“CRLA won a consent decree that allowed non-Anglo children to choose the language in which they would respond on IQ tests,” wrote the Salinas Californian in 2016. “It banned verbal sections of the test. It also required state psychologists to develop an IQ test appropriate for Mexican Americans and other non-English-speaking students.”

This column by Gustavo Arellano in the Los Angeles Times recounts Reynoso's childhood -- including early activism -- in Orange County, which then included significant rural stretches: 

[Reynoso's] family lived in a rural part of La Habra, where the Ku Klux Klan had held the majority of City Council seats just a decade earlier and Mexicans were forced to live on the wrong side of the tracks. Reynoso’s parents and neighbors had to travel a mile to the post office for their mail because the local postmaster claimed it was too inconvenient to deliver letters to their neighborhood.


Reynoso didn’t question this at first — “I just accepted that as part of the scheme of things,” he’d tell an oral historian decades later, in 2002.


But one day, a white family moved near the Reynosos and immediately began to receive mail. The teenage Cruz asked the postmaster why they were able to receive mail, but his Mexican family couldn’t. If you have a problem with this, the postmaster replied, write to her boss in Washington D.C.

And write a letter to the U.S. Postmaster General is exactly what Reynoso did.  According to a story released by UC Davis on the occasion of Reynoso's death: 

He wrote out a petition, gathered signatures, and successfully lobbied the U.S. Postmaster General in Washington, D.C., for rural mail delivery.

The obituary in the Los Angeles Times notes that Reynoso continued to live a rural life, even while working in Sacramento and Davis.  He "had a 30-acre spread in the agricultural Sacramento County town of Herald," population 1,184.The L.A. Times also reports that, as children, Reynoso and his 10 siblings worked summers in the fields with their parents. 

But the rural fact that leapt out at me most prominently was this line from the UC Davis story about what Reynoso did after finishing law school at UC Berkeley:

Justice Reynoso and his wife, Jeannene, moved to El Centro, in California’s Imperial Valley, where he started his own practice.


Today, Imperial County and El Centro, its county seat, are legal deserts--and they probably were back then, too.  Just imagine a UC Berkeley Law or UC Davis Law grad going to El Centro and hanging out a shingle in 2021?  It's nearly unthinkable, though a few probably go there each year to work for legal aid organizations like CRLA.  If it were more common to follow such a career path -- and for legal educators to prommote and honor those paths -- the Golden State would not be facing a rural lawyer shortage, with impoverished communities of vulnerable workers like the Imperial Valley suffering most as a consequence of that deficit.    


A Sacramento Bee column about Reynoso by Marcos Breton on the occasion of Reynoso's death features several remarkable photos.  These include one of Reynoso at the Herald property in 2000 with his then-young grandchildren; Reynoso was wearing overalls, a signifier of his rural authenticity.  The photo was taken by a Bee reporter the year he was awarded the Presidential Medal of Freedom and previously published as part of the paper's reporting on that honor.  


Speaking of that authenticity, I always appreciated Cruz's frequent use of the word "folk" to refer to groups of people, or the populace generally. Indeed, I see the Spanish translation is "la gente," meaning "people, town, dweller."  For me, his use of "folk" provided implicit permission to use that word and its plural, both terms I'd grown up with but later excised from my professional vocabulary becuse I had thought them too colloquial.  


Cruz was as approachable to students as he was to faculty and staff.  We often saw him walking to the Silo (an eatery on campus) with a group of students for lunch.  And in my first year at UC Davis, 1999-2000, when Cruz was visiting from UCLA's law school, he gamely agreed to participate in a student-sponsored moot court event called "Battle of the Giants," which featured two professors playing the role of advocates in a mock appellate argument.  It took a while for the student organizers of the event to get someone to agree to be the opposing "giant" (eventually, I reluctantly agreed), but Cruz had not hesitated to take on this time-consuming task, one little valued by the law school administration.

 

Cruz was very gentle in how he engaged and educated people, which I believe often rendered him particularly persuasive. Many years ago, I heard him say to a group of students, in his typical, soft-spoken way, "No human being is illegal." This was at a time whne the phrases "illegal alien" and "illegal immigrant" were still widely used. Expressed in his calm, avuncular, matter-of-fact way, I'm sure he won over many, got them to think about the significance of language. It's quite a contrast with the ways in which so many in our educational institutions today "call out" or "cancel" each other in shrill and judgmental fashion, a tactic that often serves primarily to aggravate divisions.   

 

Given Cruz's commitment to students and education, it's not surprising that his family has asked that, in lieu of flowers, donations be made to the UC Davis student scholarship fund "for legal access" that honors him and his wife

October 4, 2016

Professor Reynoso Discusses "Chicana/o Political Consciousness: Yesterday and Today"

This evening at Sacramento City College, Professor Emeritus Cruz Reynoso appeared on a panel on the Chicana/o rights movement.

Here is the event description: "The Mexican/Chicana/o Movement in Sacramento from the 1960s through the 1980s linked civil and political rights with social, economic, and cultural rights. It was an age of vibrant Mexican/Chicana/o activism and leaders saw themselves as a critical part of the national Chicana/o Movement. The panelists will discuss their personal experiences during the Movimiento."

June 8, 2016

Reynoso: I’m Mexican-American, and I was a judge. What Trump is doing is appalling.

Former California Supreme Court Justice and Professor Emeritus Cruz Reynoso penned an op-ed for PostEverything, a feature of The Washington Post. The piece is titled "I'm Mexican-American, and I was a judge. What Trump is doing is appalling." In it, Reynoso takes on remarks from presumed Republican presidential nominee Donald Trump, who wishes to disqualify U.S. District Judge Gonzalo Curiel from presiding over the lawsuits against Trump University: "Now, this judge is of Mexican heritage. I'm building a wall, okay?"

Reynoso writes:

Trump's rhetoric is a frontal attack on the judicial system. Are federal judges of Hispanic origin to be judged on the basis of their ethnicity rather than that the quality of their professionalism?

I have had the opportunity these last 53 years of my life to be a lawyer who practiced before judges, as well as a judge - a California state appellate and Supreme Court justice. (I was proud to be the first Latino appointed to my state's highest court, in 1976.) When appellate judges disagree, they write dissents. Dissents are based on differing views of the law. Never has a dissent been based on the ethnicity of disagreeing justices, nor should it be so. Were that true, as Trump asserts, our judicial system would, in effect, be destroyed.

For the full op-ed, visit PostEverything.

March 14, 2016

Latino Leaders Call on Senate to Commit to Hearing and Vote for Supreme Court Nominee

María Blanco, Executive Director of the UC Undocumented Legal Services Center that operates out of King Hall, joins this press call tomorrow. Hispanics for a Fair Judiciary and the National Hispanic Leadership Agenda are hosting the call to discuss Senate leaders' threats to obstruct confirmation process. Here is their press release:

WASHINGTON - On Tuesday, Hispanics for a Fair Judiciary (HFJ), a non-partisan network of elected officials, legal, civil rights, labor, academic and political leaders, in association with the National Hispanic Leadership Agenda (NHLA), a coalition of the nation's 40 preeminent Latino advocacy organizations, will host a media call to discuss the pending nomination of a Supreme Court Justice. 
Representatives from the academic, legal, and advocacy communities will address the current gridlock affecting the Senate confirmation process for judicial nominations and discuss the consequences to the state of justice if Senate leaders fail to give President Obama's Supreme Court nominee a fair hearing and vote. HFJ and NHLA will also outline the steps they plan to take to encourage the Senate to act. 
Please find press conference details provided below. Opportunities for one-on-one interviews are available.

WHAT: Latino Leaders Call on Senate to Commit to Hearing and Vote for Supreme Court Nominee

WHO:

  • Maria Blanco, Executive Director, Undocumented Legal Services Center, UC Davis School of Law
  • Juan Cartagena, President & General Counsel, LatinoJustice PRLDEF
  • Robert T. Maldonado, National President, Hispanic National Bar Association (HNBA)
  • Thomas A. Saenz, President and General Counsel, Mexican American Legal Defense and Educational Fund (MALDEF)
  • Hector E. Sanchez, Chair, National Hispanic Leadership Agenda (NHLA)

WHEN: Tuesday, March 15, 2016, 11:00 AM ET

CALL-IN INFORMATION: 877-876-9175

CONFERENCE ID: LEADERS

Please have the Conference ID readily available to speed up the check-in process.

October 2, 2015

LatCrit 2015 Twentieth Anniversary Conference: Critical Constitutionalism


Me with King Hall's Prof. Angela Harris and Prof. Rhonda Magee of the University of San Francisco

This year marks the twentieth anniversary of LatCrit (short for Latina and Latino Critical Legal Theory), part of the Critical Legal Studies tradition.  The theme for this year, "Critical Constitutionalism" provides an occasion for reflection and prospective planning.  I had the good fortune of moderating a powerful panel on "Mindfulness and Constitutionalism" with our very own Professor Angela Harris.  Joined by Professor Rhonda Magee of the University of San Francisco, Professors Harris and Magee opened the session with an example of mindfulness practice.  Professor Magee invited participants in the session to take a few minutes to take stock of our mental and physical states and to sit with our thoughts for a "quiet" minute.  She challenged us to consider what we teach and why to discover how mindfulness can ground us and reveal new ways of culturally evaluating constitutional democracy. The speakers urged us to incorporate mindfulness into teaching, scholarship, and the practice of law.

Professor Harris noted that mindfulness can give meaning to the Constitution, most notably, those famous three words of the preamble: "We the People."  She suggested that mindfulness unlocks possibilities for community-building and coalition formation based on recognition of our shared humanity.  She identified as problematic the "master stories" of how we become a nation, that is, those that call for "oneness" through the elimination (or masking) of differences.  Such narratives exclude those unwilling or unable to assimilate, hide, or reject those aspects of their identities that deviate from the master stories.  In turn, counter-narratives adopt "struggle" and "resistance," rather than connection, as central metaphors.  Yet understanding connection and respecting differences is possible through mindfulness.  The group then discussed the pedagogical possibilities for incorporating mindfulness into teaching.   Professors can create a shared experience of connection in the classroom where students can bring their whole selves to the analysis and application of the law.  It can be as simple as taking the first five minutes of class to sit in silence and encourage the students to identify the physical and mental state they bring to class.  Through modeling and intentional curricular design, we teach students that their diverse life experiences matter and can enhance not only their understanding of the law but expose and contest normative assumptions of "oneness" that underwrite substantive law.  

Not surprisingly, this session went over time as participants shared their reactions to the presentation as well as personal and pedagogical insights on mindfulness.  One participant noted the presence of law school courses on mindfulness signals its importance to students, the academy, and the profession.  Thanks to Professor Harris, King Hall has just such a course: "Mindfulness and Professional Identity: Becoming a Lawyer While Keeping Your Values Intact."  

I look forward to my panel tomorrow morning on "Courts and Politics" where I will discuss my current project "Sexual Citizenship, Disability, and the Dignity of Risk."

April 17, 2014

Dean Johnson Delivers Lecture on Immigration Act of 1965 at University of Cincinnati

Dean Kevin R. Johnson delivers a lecture today at the University of Cincinnati College of Law. Here is the web announcement:

UC College of Law to Host Discussion on Immigration Act of 1965 and Its Impact

The lecture by Dean Kevin Johnson of the University of California-Davis School of Law will highlight the Immigration Act of 1965 and its impact on Latina/Latino immigrants. The April 17 event is open to all.

The community is invited to join UC College of Law students, faculty and staff for "Beginning of the End: The Immigration Act of 1965 and the Emergence of the Modern U.S./Mexico Border State," a lecture by Dean Kevin Johnson, University of California-Davis School of Law.

The lecture will be held  at 12:15 p.m., Thursday, April 17, in Room 118 of the College of Law building. All are invited to attend. In the lecture, Johnson will reflect on the Immigration Act of 1965, the amendments to the act that followed and the impact of the act and amendments on Latina/o immigrants.

About the Speaker
Kevin R. Johnson is dean, Mabie-Apallas Professor of Public Interest Law, and professor of Chicana/o studies at the University of California-Davis, where he has been since 1989. Johnson is a preeminent and prolific scholar, teacher and advocate in the areas of immigration law, civil rights, Latino/as and the law, and critical race theory.

His scholarly works include such books as "The Huddled 'masses' Myth: Immigration and Civil Rights," "Opening the Floodgates: Why America Needs to Rethink Its Borders and Immigration Laws" and "Immigration Law and the U.S.-Mexico Border," which received the Latino Literacy Now's International Latino Book Award - Best Reference Book. Johnson has been regularly quoted in The New York Times, Los Angeles Times and other international news sources.

Johnson's teaching and advocacy have been recognized by various institutions throughout the country. He has been the recipient of the American Association of Law School's Clyde Ferguson Award (2004), the Hispanic National Bar Association's Law Professor of the Year Award (2006), the National Association of Chicana and Chicano Studies Scholar of the Year Award (2008) and was honored with the Central American Resource Center Romero Vive Award for his outstanding work and commitment to social justice and immigrants (2012). 

This event is sponsored by the Immigration and Nationality Law Review.

About the Immigration and Nationality Law Review at the College of Law
The Immigration and Nationality Law Review focuses on student advocacy in the area of immigration and nationality law. While primarily focused on immigration law, which seeks to define who may enter and reside in a country, INLR incorporates subject matter well beyond immigration. In particular, the INLR addresses issues of nationality which considers the formal relationship between a citizen of a nation and the nation itself. Since immigration and nationality work together to delineate citizenship and residency, they play an important part in the ongoing dialogue regarding national identity. Moreover, immigration and nationality frequently implicate issues of race, gender, class and national security.

May 5, 2012

Overlooking (even seemingly high profile) rural crimes

Americans are often said to have a love-hate relationship with rural America. On the one hand, many wax nostalgic about the good old days, simpler times, the bond of "rural community" that many of our grandparents once lived, even if most of "us" grew up in the city. Plus, most everyone enjoys a bit of time spent in "nature," and some even realize--the urban ag craze aside--that most of our food is grown "in the country." On the other hand, urbanites often hold rural people in disdain, mocking them for their attachment to place, their regressive politics and culture and, yes, even for their nostalgia.

One particular aspect of the "love" (more precisely, nostalgia) with which we may regard rural America is the tendency to think that bad things associated with cities--most notably crime--are largely absent in smaller towns, in nonmetropolitan areas. That's hardly accurate, as I've discussed here and here. I wonder, though, if these rural myths are the reason that even more shocking crimes in rural settings--crimes involving, for example, racial or ethnic animus--don't get national attention. For crimes like these, I would think that urban Americans might be anxious to publicize the crimes, to hold these acts up as justification for the "hate" (that is, disdain, contempt) part of the relationship.

I was reminded of all this last week when the New York Times ran a story headlined, "Black Man's Killing in Georgia Eludes Spotlight," dateline Lyons, Georgia, population 4,169. Kim Severson's story tells of a white man, Norman Neesmith, killing a black man, Justin Patterson, in Lyons last year "on a rural farm road, here in in onion country." Neesmith was arrested and charged with seven crimes, but he is expected to plead guilty to involuntary manslaughter and reckless conduct, for which he might be sentenced to just a year in "special detention," which means no jail time. Severson goes on to compare the rural Georgia case to that of Trayvon Martin, which has attracted national and international attention:

In both cases, an unarmed young black man died at the hands of someone of a different race.

And [Justin Patterson's parents] began to wonder why no one was marching for their son, why people like Rev. Al Sharpton had not booked a ticket to Toombs County. The local chapter of the N.A.A.C.P has not gotten involved, although Mr. Patterson's farther approached them.

* * *

Why some cases with perceived racial implications catch the national consciousness and others do not is as much about the combined power of social and traditional media as it is about happenstance, said Ta-Nehisi Coates, a senior editor at The Atlantic who writes about racial issues.

Several events coalesced to push the Martin case forward: an apparently incomplete police investigation, no immediate arrest and Florida's expansive self-defense law.

The New York Times' highlighting the overlooked Patterson case reminded me of another pair of cases last year that received grossly disparate media attention.

I learned quite by accident last summer of a federal conviction based on a 2010 hate crime in Carroll County, Arkansas. It was especially odd to learn of the conviction by coincidence (from a UC Davis colleague whose distant relative in Arkansas sat on the jury!) because this was the first ever conviction ever under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, a federal law passed in 2009. Here's what happened: After encountering each other at a gas station in Alpena, Arkansas (population 371) in the early morning hours in June 2010, three white men allegedly hurled racial epithets at five Latinos and then chased the Latinos in their car, while the white driver of the truck chasing them waved a tire wrench out his vehicle's window. The truck driven by the white men eventually ran the Latinos' car off the road, where it rolled over and burst into flames. All of the Latinos were injured, one very seriously, but all survived. Less than a year later, a jury in a federal courthouse in Harrison, Arkansas--(population 12,943, about 20 miles from the events, and with a reputation as a long-time bastion of KKK activity) took less than an hour (!) to convict the driver of the truck, 20-year-old Frankie Maybee, of "five counts of committing a federal hate crime and one count of conspiring to commit a federal hate crime." One of his companions, 19-year-old Sean Popejoy, had already pleaded guilty to a single hate crime and a conspiracy count; he turned state's witness. The third man was not charged, apparently because of a lack of evidence that he was part of the conspiracy. (In an effort to learn more about Carroll County matter last summer, I interviewed the Arkansas State Trooper who had helped investigate it, as well as the Arkansas Democrat-Gazette journalist who reported on it. They provided some back story, which I'll take up in a subsequent post.)

Several months after the convictions in this case, it had not yet been discussed anywhere except in local media. The Arkansas Democrat-Gazette ran about half a dozen stories, starting in April, 2011, when the men were indicted, running through the trial itself, and ending with Maybee's sentencing to 11 years in prison, in September, 2011. Television stations in nearby Springfield, Missouri covered only the sentencing, and Reuters, too, had finally found the story by then. In that way, the Arkansas case is similar to another Shepard/Byrd Act indictment that preceded the Arkansas conviction, this one in Farmington, New Mexico involving the torture of a developmentally disabled Native American by white men. That case resulted in a guilty plea and was mentioned, along with other Shepard/Byrd cases, in this NPR story a few days ago. (Other NPR coverage of the Shepard/Byrd law, which also mentions the New Mexico case post-guilty plea, is here and here).

Contrast that with the Shepard/Byrd charges against the three young white men who recently pleaded guilty in the death of James C. Anderson, a black man in Jackson, Mississippi. New York Times coverage of that crime is here, here, here and here. The Mississippi story is, of course, a huge one and deserves all the attention it got. But the Carroll County story seems like a pretty big one, too (did I mention that it was the first Shepard/Byrd conviction!?!), as does the case out of Farmington, New Mexico.

What explains the disparate and decidedly after-the-fact media attention to these cases? Perhaps coincidence. Perhaps differences in the Department of Justice's efforts to publicize the charges. Perhaps the fact that the Mississippi crime resulted in death whereas the Arkansas and New Mexico crimes did not. But as a ruralist, I can help wonder if the rural-ish settings of these crimes also obscured them from the national media?

Carroll County has a population of just 27,446, of which 12.7% are of Latino or Hispanic origin. I know the area quite well because I grew up in a contiguous county, and I wrote a lot about Carroll County's three-decade history of Latina/o migration in my 2009 article, Latina/os, Locality and Law in the Rural South. In 2003, MALDEF entered into a settlement with the Rogers, Arkansas Police Department, in neighboring Benton County, to prevent racial profiling.

Farmington, New Mexico has a population of just over 45,000, but surrounding San Juan county is technically metropolitan, with a population of just over 130,000. Indian reservations comprise more than 60% of San Juan County's land area, and 36.6% of its populace are Native American. Farmington has been the subject of major civil rights investigations over the course of four decades.

Like the relations between blacks and whites in Mississippi, then, both Carroll County, Arkansas and San Juan County, New Mexico have histories of racial and ethnic tensions. I would think the racial/ethnic contexts of these two incidents would make them interesting to a national audience--as would they way they illustrate widely held perceptions of the "best" and "worst" of rural America. The "worst" is that the hate crimes occurred--which confirms the image of rural folks as small-minded and bigoted. The "best"--at least in the Arkansas case--is that a local jury of the defendant's peers convicted the small-minded bigot--and they did so in no time flat.

Cross posted to Legal Ruralism and SALTLaw Blog.

October 4, 2011

Immigration Law and the U.S.–Mexico Border: ¿Sí se puede?

Here is a summary of my new book, Immigration Law and the U.S.–Mexico Border: ¿Sí se puede?

Americans from radically different political persuasions agree on the need to "fix" the "broken" US immigration laws to address serious deficiencies and improve border enforcement. In Immigration Law and the US-Mexico Border, Kevin Johnson and Bernard Trujillo focus on what for many is at the core of the entire immigration debate in modern America: immigration from Mexico.

In clear, reasonable prose, Johnson and Trujillo explore the long history of discrimination against US citizens of Mexican ancestry in the United States and the current movement against "illegal aliens"—persons depicted as not deserving fair treatment by US law. The authors argue that the United States has a special relationship with Mexico by virtue of sharing a 2,000-mile border and a "land-grab of epic proportions" when the United States "acquired" nearly two-thirds of Mexican territory between 1836 and 1853.

The authors explain US immigration law and policy in its many aspects—including the migration of labor, the place of state and local regulation over immigration, and the contributions of Mexican immigrants to the US economy. Their objective is to help thinking citizens on both sides of the border to sort through an issue with a long, emotional history that will undoubtedly continue to inflame politics until cooler, and better-informed, heads can prevail. The authors conclude by outlining possibilities for the future, sketching a possible movement to promote social justice. Great for use by students of immigration law, border studies, and Latino studies, this book will also be of interest to anyone wondering about the general state of immigration law as it pertains to our most troublesome border.

For more information, visit this page at The University of Arizona Press.