Fordham Undergraduate Law Review: Volume V Issue 1 (Fall 2021)

FORDHAM UNDERGRADUATE LAW REVIEW FIFTH

EDITION

NOTES WHEN LEGISLATORS PLAY DOCTOR: ARKANSAS’S BAN ON GENDER-AFFIRMING HEALTHCARE Ahan Dhar CORPORATE DISTORTION AND THE CITIZENS UNITED DECISION Nicholas Wolf THE RESIST LINE 3 MOVEMENT: UNDRIP AND INDIGENOUS RIGHTS Elizabeth Hartnett “WHITES ONLY”: AMERICA’S RACIAL COVENANTS IN HOUSING DEEDS Olivia Lilley THE SILENCED VOTE: THE CONSTITUTIONAL LEGITIMACY OF FELON DISENFRANCHISEMENT Samantha Scott THE EXTENT TO WHICH AMERICAN VOTING RIGHTS ARE PROTECTED Elizabeth Lebci TO SUE OR NOT TO SUE: PATENT PROTECTION IN THE WAKE OF COVID-19 Katerina Kutuzov LEGAL SMART CONTRACTS Brian Escobar

Vol. V No. 1

Fall 2021

FORDHAM UNDERGRADUATE LAW REVIEW FALL 2020 FALL 2021

Edited by the Undergraduates of Fordham University undergradlawreview.blog.fordham.edu

LETTER FROM THE CO-EDITORS-IN-CHIEF VOL. 5

FALL 2021

NO. 1

March 22, 2022 Dear Reader: It is with incredible pride and excitement that we present the Fifth Volume of the Fordham Undergraduate Law Review (FULR). The writers in this Volume contribute to legal arguments that span several decades, including disenfranchisement and voting rights, corporate law, and housing discrimination. Other writers contribute to emerging legal discussions surrounding LGBTQ+ rights, vaccine policies, and legal smart contracts. The legal arguments presented in this Volume will help shape the ways in which we approach these issues in years to come.

As FULR continues to grow, we remember the uncertainty of our humble origins, combined with the hope that we would eventually gain traction as a publication at Fordham. It is clear that we have made extraordinary growth since our first publication, and while the uncertainty is gone, the hope for even more is still ever-present. We are sure that our future will be just as promising as our past and present have proven to be.

This publication would not have been possible without the tremendous effort of the Editorial Board. We are grateful for their hard work and perseverance, their creativity, and most of all, their constant dedication to FULR. Because of their support, FULR has grown into a premier academic research journal on campus and in the greater academic community.

We would also like to thank Fordham University for its support of this Volume. Special thanks are due to Father Brendan Horan, Dean Hillary Mantis, and all the other faculty at Fordham who have provided feedback and comments on these notes. We also owe particular thanks to Tatiana Hyman, the Editor-in-Chief of Volume 90 of the Fordham Law Review, for her guidance in the development of this journal and for her dedication to providing valuable mentorship advice to our Editorial Board and writers.

Please direct any questions or comments to our Editorial Board at fulr@fordham.edu.

Sincerely, Reeve Churchill, President & Co-Editor-in-Chief, 2021-2022 Caroline Morris, Co-Editor-in-Chief, 2021-2022

VOL. 5

TABLE OF CONTENTS FALL 2021

NO. 1

WHEN LEGISLATORS PLAY DOCTOR: ARKANSAS’S BAN ON GENDER-AFFIRMING HEALTHCARE FOR TRANSGENDER YOUTH Ahan Dhar..................................................................................... 1 CORPORATE DISTORTION AND THE CITIZENS UNITED DECISION Nicholas Wolf.............................................................................. 14 THE RESIST LINE 3 MOVEMENT: UNDRIP AND INDIGENOUS RIGHTS IN THE UNITED STATES Elizabeth Hartnett ....................................................................... 28 “WHITES ONLY”: AMERICA’S RACIAL COVENANTS IN HOUSING DEEDS Olivia Lilley ................................................................................ 37 THE SILENCED VOTE: THE CONSTITUTIONAL LEGITIMACY OF FELON DISENFRANCHISEMENT Samantha Scott ........................................................................... 46 THE EXTENT TO WHICH AMERICAN VOTING RIGHTS ARE PROTECTED Elizabeth Lebci ........................................................................... 62 TO SUE OR NOT TO SUE: PATENT PROTECTION IN THE WAKE OF COVID-19 Katerina Kutuzov ........................................................................ 76 LEGAL SMART CONTRACTS: WHAT THEY ACCOMPLISH AND THE NEED FOR A LEGAL FRAMEWORK Brian Escobar ............................................................................. 89

VOL. 5

MASTHEAD FALL 2021

NO. 1

EDITORIAL BOARD

REEVE CHURCHILL

President & Co-Editor-in-Chief

CAROLINE MORRIS Co-Editor-in-Chief

ARIANNA CHEN APRIL GORE THOMAS REUTER Co-Managing Editor Co-Managing Editor Co-Managing Editor MADALYN STEWART Executive Notes Editor

NICHOLAS SUIT Executive Online Editor

THOMAS MURRAY Executive Layout Editor

JONATHAN KATZ Business Administrator

BUSINESS ADMINISTRATOR ASSISTANTS ELIZABETH LEBCI

JASMINE AIELLO

ETHAN DUBINSKY

SENIOR EDITORS ALLEYAH ALLY MARGARET FRANZREB

MARGARITA MCCOY KATHERINE TIMOFEYEV ANTHONY VU

KEVIN JAMES GABRIELLE MANGOME

STAFF WRITERS BRIANA AL-OMOUSH AHAN DHAR ANTHONY DIGIOVANNI BRIAN ESCOBAR BRIAN HARTAN ELIZABETH HARTNETT JACK HAYES AVA ZINS

ALEXANDRA HELLINGHAUSEN AMY HERD KATERINA KUTUZOV MICHAEL LEIFER OLIVIA LILLEY KATHRYN MACMILLAN ALEXANDRA SAYEGH JACK SCHNEIDER

FATHER BRENDAN HORAN, S.J. Faculty Advisor

SAMANTHA SCOTT APHRODITE STAMBOULOS SOPHIA STANIUNAS ELIZABETH REED TYLESE RIDEOUT DAYMARA RODRIGUES KAROLINA VIERA NICHOLAS WOLF

DEAN HILLARY MANTIS, J.D. Faculty Mentor

VOL. 5

MISSION FALL 2021

NO. 1

The Fordham Undergraduate Law Review (FULR) is an entirely student-run, scholarly journal at the undergraduate level for the Fordham University and legal community. Our publication includes a wide array of topical and historical legal issues covering both domestic and international affairs in its scope. FULR is a coveted opportunity for high-achieving, exceptional writers examining a range of disciplinary lenses as it relates to the nuances of law. In this pursuit, we have forged a driven, competitive community of students that engage in fruitful discussions on various legal issues. These exceptional attorneys of tomorrow are given opportunities for publication and offered admission to prelaw networking events with distinguished Fordham alumni. Learn more about opportunities to join our team at fulr@fordham.edu.

INSTITUTIONAL PARTNERS ROSE HILL DEAN’S OFFICE, Fordham College at Rose Hill PRE-LAW ADVISING OFFICE, Fordham College at Rose Hill & Lincoln Center OFFICE OF STRATEGIC INITIATIVES, Fordham College at Rose Hill OFFICE OF STUDENT INVOLVEMENT, Fordham College at Rose Hill PRE-LAW SOCIETIES OF ROSE HILL & LINCOLN CENTER, Fordham College at Rose Hill & Lincoln Center Thank you to our institutional partners for their supportive mentorship and financial assistance. Without their help, this Volume would not have been possible.

The views expressed by the contributors are not necessarily those of the Editorial Board or the institutional partners of the Fordham Undergraduate Law Review. While every effort has been made to ensure the accuracy and completeness of information contained in this journal, the Editors cannot accept responsibility for any errors, inaccuracies, omissions, or inconsistencies contained herein.

No part of this Journal may be reproduced or transmitted in any form or by any means, including photocopying, recording, or by any information storage and retrieval system, without permission in writing. The authors who submitted their work to the Fordham Undergraduate Law Review retain all rights to their work.

Fordham Undergraduate Law Review Volume V, Issue 1, Fall 2021 undergradlawreview.blog.fordham.edu

NOTE WHEN LEGISLATORS PLAY DOCTOR: ARKANSAS’S BAN ON GENDER-AFFIRMING HEALTHCARE FOR TRANSGENDER YOUTH Ahan Dhar*

1

Gender-affirming healthcare is a medically accepted and lifesaving process for transgender people, but it’s legality in the United States, especially for transgender youth, remains uncertain. In April of 2021, Arkansas passed the Save Adolescents from Experimentation (SAFE) Act that outlawed gender-affirming healthcare for transgender minors, arguing that its risks outweigh its benefits. This Note examines the feasibility of a genderaffirming healthcare ban using the SAFE Act. Specifically, this Note reviews the Act in the context of the United States Constitution and the Affordable Care Act (ACA). This Note will first determine the key components of the Act and its central argument. This will be followed by an examination of Brandt v. Rutledge (2021), a District Court case brought by the American Civil Liberties Union in opposition to the SAFE Act. This Note will analyze its counts against the Act in reference to the First and Fourteenth Amendments to the Constitution. This Note will then discuss the antidiscrimination clause of the Affordable Care Act and its implications for the SAFE Act. This Note will address Bostock v. Clayton County (2020), a United States Supreme Court case that established the protection of transgender identities under the term “sex” in the Civil Rights Act, and how that could render the SAFE Act discriminatory under the ACA. Ultimately, this Note argues that the SAFE Act is unlawful under both the U.S. Constitution and the ACA, which should lead to the revocation of the Act and the protection of gender-affirming healthcare for transgender youth.

I. II. III.

INTRODUCTION.................................................................................... 2 ACT 626 OVERVIEW ............................................................................ 3 LAWSUIT OVERVIEW ........................................................................... 4 A. Count One: The Fourteenth Amendment ............................... 5 B. Count Two: The First Amendment ......................................... 6

* B.A. Candidate for Communication and Culture and French Studies, Fordham College at Rose Hill, Class of 2023.

1

1

2

WHEN LEGISLATORS PLAY DOCTOR

IV.

V.

[Vol. 5

SECTION 1557 OF THE PATIENT PROTECTION AND AFFORDABLE CARE ACT ..................................................................................................... 8 A. Treatment for Cisgender Individuals ................................... 10 B. Treatment for Intersex Individuals ....................................... 10 CONCLUSION ..................................................................................... 11 I. INTRODUCTION

The rights of transgender individuals in the United States have never been guaranteed. They have largely depended on the attitudes of the state; certain regions frequently enact policies that support and assist transgender people, but there are numerous proposed bills across the country that would discriminate against those whose gender identity differs from their assigned sex at birth. For instance, there are currently nine states in the process of considering bills that would restrict access to certain medical procedures for transgender youth.1 Most of these bills propose to make it punishable for medical providers to deliver gender-affirming healthcare to minors, and some even include penalties for parents who encourage or facilitate minors’ access to gender-affirming medical care.2 Although these bills have not yet been decided upon, there have been similar bills that have prevailed under a false pretense of helping transgender individuals to make the correct and safest medical decisions, in the eyes of the legislators, that is.

This was seen recently in Arkansas with House Bill 1570, the Save Adolescents from Experimentation (SAFE) Act, which outlawed genderaffirming healthcare for minors, or more specifically, transgender youth.3 The bill was passed on April 6th, 2021 and enacted as Act 626.4 This made Arkansas the first state in the United States to illegalize gender-affirming medical care.5 The law was supposed to take effect in July of that year, but it was stayed by a federal judge after the American Civil Liberties Union This includes Alabama, Florida, Louisiana, Missouri, Montana, North Carolina, South Carolina, Tennessee, and Texas.

2 Kerith J. Conron et al., Prohibiting Gender-Affirming Medical Care for Youth, UCLA: THE WILLIAMS INSTITUTE (2021), https://escholarship.org/uc/item/040032xd.

3 Daniel Trotta, Arkansas Legislature Votes To Ban Transgender Treatments For Youth, REUTERS (March 29, 2021), https://www.reuters.com/article/us-usa-lgbtq-arkansasidUSKBN2BL2XE. 4 A.R. Legis. Assemb. Act 262. Reg. Sess. 2021-2022 (2021).

5 Trotta, supra note 3.

1

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

3

(ACLU) filed a lawsuit in May of 2021.6 The ACLU makes some strong arguments against the Act in reference to the United States Constitution, which raises the question of whether a discriminatory bill such as this one should have been passed, and whether the Act is enforceable under the terms of other statutes. First, this Note will summarize the core argument and key elements of the SAFE Act. This Note will review the ACLU’s lawsuit against the SAFE Act based on the U.S. Constitution. This Note will then examine the Affordable Care Act’s anti-discrimination clause and its implications for the SAFE Act. This Note will ultimately argue that Arkansas’s ban on gender-affirming medical care for transgender youth is unlawful, violating the U.S. Constitution and Affordable Care Act by targeting individuals based on their sex, and should therefore be repealed.

II. ACT 626 OVERVIEW The core of Act 626 stems from the argument that gender transition procedures, including hormone therapy, puberty blockers, and sex reassignment surgery, are experimental processes with potential long-term effects on children that have not yet been established.7 However, it ignores the life threatening effects of gender dysphoria that transgender individuals experience, especially for transgender youth, and the increased risk of suicide for those afflicted with untreated dysphoria.8 Instead, the Act highlights “the lack of studies” showing whether the benefits of extreme interventions outweigh its risks.9 It essentially claims that the risks of gender transition procedures, which include anything from mental distress, irreversible infertility, and even cerebrovascular disease, far outweigh any potential benefit.10 With this motivation, Act 626 calls for the criminalization of genderaffirming healthcare for transgender youth through a variety of means. First of all, the Act bans the use of public funds and insurance from covering gender transition procedures, stating that a health benefit plan under an ACLU Sues Arkansas Over Ban On Health Care For Transgender Youth, AMERICAN CIVIL LIBERTIES UNION (May 25, 2021), https://www.aclu.org/press-releases/aclu-suesarkansas-over-ban-health-care-transgender-youth.

7 A.R. Legis. Assemb. Act 262. Reg. Sess. 2021-2022 § 2(6)(b) (2021).

8 Trotta, supra note 3.

9 A.R. Legis. Assemb. Act 262. Reg. Sess. 2021-2022 § 2(14) (2021).

10 Id. § 2(8).

6

4

WHEN LEGISLATORS PLAY DOCTOR

[Vol. 5

insurance policy in Arkansas shall not include reimbursement for gender transition procedures for a person under eighteen years of age.11 Second of all, it leaves doctors who provide treatment in violation of the ban liable to sanctions and legal action.12 The Act specifies the procedures that a healthcare professional is prohibited from performing on or referring to minors.13 However, this comes with special exemptions, like if the minor has a medically verifiable disorder of sex development.14 The Act therefore only believes that these procedures are dangerous when done with the intention of assisting a gender transition. It is important to keep all of these elements in mind to understand why the Act is discriminatory and potentially unconstitutional III. LAWSUIT OVERVIEW The ACLU is currently suing the Arkansas attorney general and medical board over the SAFE Act in Brandt v. Rutledge.15 The plaintiffs’ main arguments is that the law is significantly harmful for transgender youth, countering the risk assessment of the defendant, and that it violates the U.S. Constitution.16 The plaintiffs point out how gender-affirming healthcare can protect transgender youth from severe distress and potentially save lives.17 They also point out the flaw in the defendants’ argument that there are unknown, potential long-term risks to the procedures used in the genderaffirming process. The plaintiffs highlight that the Act still permits these procedures to be performed on minors for reasons other than affirming one’s gender identity, which means that the defendants are more concerned with the purpose of the procedures rather than their direct effects. 18 However, it puts forward a more comprehensive argument regarding the U.S. Constitution, with two counts focused on two specific amendments that aim to protect the liberty of the American people. The plaintiffs present how they Id. § 4(a).

Id. § 3.

13 Id. § 3.

14 Id. § 3(c).

15 Complaint for Declaratory and Injunctive Relief, Brandt v. Rutledge, 2021 U.S. Dist.

LEXIS 148442 (E.D. Ark. 2021), https://www.aclu.org/legal-document/brandt-et-al-vrutledge-et-al-complaint.

16 Id. at 41.

17 Id. at 2.

18 Id. at 3.

11 12

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

5

are violated by Arkansas’s SAFE Act, which would make the law unconstitutional.

A. Count One: The Fourteenth Amendment The plaintiffs argue that the Act violates two aspects of the Fourteenth Amendment to the U.S. Constitution: the Equal Protection Clause and the Due Process Clause.19 Under the Equal Protection Clause, no state can deny to any person within its jurisdiction the equal protection of the laws.20 Therefore, the state must treat every individual in the same manner as others who are in similar conditions and circumstances. Act 626, however, violates this by targeting transgender youth outright, putting them in a vulnerable position. The plaintiffs underline that the procedures are only considered illegal depending on their intent; if assisting an individual with a gender transition, Clause 6(a) of Section 3 prohibits any medical or surgical practices, including prescribed drugs related to gender transition, pubertyblocking drugs, cross-sex hormones, and other services.21 However, if the purpose is not to assist an individual with gender transition, and the individual’s gender identity aligns with their sex at birth, Clause 6(b) permits these treatments for minors.22 The procedures are therefore only illicit for those who seek treatment for the purpose of gender transition, which the plaintiffs use to demonstrate how transgender individuals are not given the right to the same procedures as others because of their unique identity.23 It is discriminatory and unequal, thereby defying the Equal Protection Clause of the Fourteenth Amendment.

The Due Process Clause on the other hand guarantees due process of law before the government may deprive someone of life, liberty, or property.24 However, the clause has been interpreted as prohibiting the government from depriving someone of substantive rights that come under life, liberty, or 19 Complaint for Declaratory and Injunctive Relief, Brandt v. Rutledge, 2021 U.S. Dist.

LEXIS 148442 (E.D. Ark. 2021), https://www.aclu.org/legal-document/brandt-et-al-vrutledge-et-al-complaint.

20 U.S. CONST. amend. XIV, § 1.

21 A.R. Legis. Assemb. Act 262. Reg. Sess. 2021-2022 § 3(6)(a) (2021).

22 Id. § 3(6)(b).

23 Complaint for Declaratory and Injunctive Relief, Brandt v. Rutledge, 2021 U.S. Dist.

LEXIS 148442 (E.D. Ark. 2021), https://www.aclu.org/legal-document/brandt-et-al-vrutledge-et-al-complaint.

24 U.S. CONST. amend. XIV, § 1.

6

WHEN LEGISLATORS PLAY DOCTOR

[Vol. 5

property. This was first seen during the Slaughterhouse cases in 1873, where in a dissenting opinion, Justice Stephen J. Field wrote how the Due Process Clause protected individuals from state legislation that infringed upon their “privileges and immunities” under the U.S. Constitution. This led to the conception of substantive due process, a court-developed way of thinking that defends the rights related to life, liberty, and property that are not mentioned in the Constitution.25 In Brandt v. Rutledge, the plaintiffs argue that a parent’s right to raise their children is restricted by the Act, a liberty that is not directly supported by the Constitution.26 Thus, under substantive due process, it could be argued that the parent(s) or guardian(s) of an individual deserve the liberty to seek and follow medical advice in the best interest of their child. The Act removes the parent’s or guardian’s choice when it comes to providing wellaccepted medical care for their children and is therefore infringing upon their personal liberties. As a result of this, and the violation of the Equal Protection Clause, it is clear that the federal judge should find the Act unconstitutional in more than one way.

B. Count Two: The First Amendment The First Amendment to the U.S. Constitution is crucial because it prohibits Congress from making any law that abridges the freedom of speech.27 Arkansas’s SAFE Act, however, infringes on the freedom of speech of medical professionals and prevents them from prescribing patients with appropriate, life-saving treatments.

The Act prohibits healthcare providers from recommending gender transition procedures to transgender youth, which violates the freedom of speech of these medical professionals.28 The Act specifically states that “a physician, or other healthcare professional shall not refer any individual under eighteen (18) years of age to any healthcare professional for gender transition procedures.”29 This restricts what medical professionals are Due Process, LEGAL INFORMATION INSTITUTE (2021), https://www.law.cornell.edu/wex/due_process.

26 Complaint for Declaratory and Injunctive Relief, Brandt v. Rutledge, 2021 U.S. Dist.

LEXIS 148442 (E.D. Ark. 2021), https://www.aclu.org/legal-document/brandt-et-al-vrutledge-et-al-complaint.

27 U.S. CONST. amend. I. 28 A.R. Legis. Assemb. Act 262. Reg. Sess. 2021-2022 § 3(a) (2021).

29 Id. § 3(b).

25

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

7

allowed to say about gender transition processes. There are instances where speech is not protected by the First Amendment, including speech that incites actions to harm others or obscene speech.30 However, a medical professional’s referral for a gender-transition procedure does not fit any of these exceptions and should therefore be protected under the Amendment.

The Act argues that these medical referrals should be banned because of the risky long-term consequences of the procedures, but the majority of doctors would disagree with these implications.

Gender transition procedures are largely accepted and recommended in the medical community. The American Academy of Child and Adolescent Psychiatry supports the use of current evidence-based gender-affirming care for minors.31 Multiple studies have shown that they drastically reduce the rates of depression and suicide for transgender youth.32 Furthermore, every step of the gender-affirming process is undertaken with the consultation of doctors, therapists, and social workers, while still being a reversible process.33 This explains why doctors around the country have come out to claim that the SAFE Act interferes with the doctor-patient relationship and prevents them from providing lifesaving treatment that improves the health, life, and well-being of their patients.34 The plaintiffs use this information to bolster their argument that the Act impermissibly restricts what physicians and other healthcare providers can say about medically accepted treatments for gender dysphoria.35 Overall, the Act restricts medical professionals from using their expertise to propose a sound, scientific decision for the care of their patients. It uses a false narrative of “unknown long-term effects” to overrule the judgement shared by the vast majority of the medical community, including the American Medical Association, the Pediatric Kathleen A. Ruane, Cong. Rsch. Serv., 95-815, Freedom of Speech and Press: Exceptions to the First Amendment (2014); What Does Free Speech Mean?, UNITED STATES COURTS (2021), https://www.uscourts.gov/about-federal-courts/educationalresources/about-educational-outreach/activity-resources/what-does.

31 ACLU, Doctors Agree: Gender-Affirming Care is Life-Saving Care, AMERICAN CIVIL LIBERTIES UNION (Apr. 1, 2021), https://www.aclu.org/news/lgbtq-rights/doctors-agreegender-affirming-care-is-life-saving-care/.

32 Id. 33 Trotta, supra note 3.

34 Id. 35 Complaint for Declaratory and Injunctive Relief, Brandt v. Rutledge, 2021 U.S. Dist.

LEXIS 148442 (E.D. Ark. 2021), https://www.aclu.org/legal-document/brandt-et-al-vrutledge-et-al-complaint.

30

8

WHEN LEGISLATORS PLAY DOCTOR

[Vol. 5

Endocrine Society, and the American Academy of Pediatrics, which all agree that gender-affirmative treatments are a vital option for transgender youth.36 It infringes upon healthcare providers’ right to truly express their wellsupported opinions on their patient’s health, thus violating every healthcare professional’s First Amendment rights and rendering Arkansas’s act unconstitutional.

IV. SECTION 1557 OF THE PATIENT PROTECTION AND AFFORDABLE CARE ACT The Patient Protection and Affordable Care Act (ACA) is a comprehensive health care reform law that was enacted in March of 2010, aiming to increase the accessibility of affordable health insurance, expand the Medicaid program, and support innovative methods of medical care that would lower the costs of healthcare.37 However, the Act also included clauses that aimed to make healthcare less discriminatory and more accessible to minorities, which can be seen with the example of Section 1557, a nondiscrimination provision.38 Section 1557 “prohibits discrimination by any federal health program or activity on the grounds of race, color, national origin, sex, age, or disability.”39 This essentially means that there can be no legislation introduced which distinctly excludes a patient from obtaining healthcare services on the basis of their identity, including sex. The idea of what sex is, as defined in the justice system, has recently expanded to include both queer and transgender people, which was seen during the 2020 Supreme Court case of Bostock v. Clayton County (2020).

This case arose after Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” of a county employee, shortly after he began participating in a gay recreational softball league.40 The plaintiff argued that this violated the sex discrimination clause in Title VII of the Civil Rights Act of 1964, as he was fired for his sexual orientation. The plaintiffs recognize Kristina R. Olson, Gender-Affirming Health Care Should Be a Right, Not a Crime, SCIENTIFIC AMERICAN (Apr. 13, 2021), https://www.scientificamerican.com/article/genderaffirming-health-care-should-be-a-right-not-a-crime/.

37 Affordable Care Act (ACA), HEALTHCARE.GOV (2021), https://www.healthcare.gov/glossary/affordable-care-act/.

38 Patient Protection and Affordable Care Act, 26 U.S.C. § 1557.

39 Id. § 1557.

40 Bostock v. Clayton Cty., 140 S. Ct. 1731, 1731 (2020).

36

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

9

that the term “sex” in 1964 referred to the biological distinctions between male and female.41 However, they argue that when an employer fires an employee for being homosexual or transgender, it discriminates against that individual partly as a result of sex. This is because an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules.42 In the end, the Court held that Title VII protections extend to cover sexual orientation and gender identity. Justice Neil Gorsuch, who delivered the opinion, wrote for the Court that “an employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” and that “sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”43 Sex therefore has extended to include gender identity and sexual orientation in a broader sense, and this precedence in the Supreme Court proposes that it can be applied to the ACA. This was further seen with Kadel v. Fowell (2019), where several enrollees in the North Carolina State Health Plan for Teachers and State Employees (NCSHP) filed a three-count complaint against the State Health Plan and other state defendants.44 The plaintiffs alleged that the NCSHP discriminates against its transgender enrollees by categorically denying coverage for gender dysphoria treatments like counseling, hormone therapy, and surgical care.45 In September of 2021, the United State Court of Appeals for the Fourth Circuit released an opinion, revealing that the NCSHP should be liable in private discrimination suits brought under Section 1557 of the ACA.46 Although the case has still not reached a verdict, the opinion of the Court of Appeals affirmed that laws restricting access to healthcare for transgender people potentially violate the ACA, which implies that the restrictions found in Arkansas’s SAFE Act’s might also violate the ACA.

Id. at 1732.

Id. at 1733.

43 Pete Williams, In Landmark Case, Supreme Court Rules LGBTQ Workers Are Protected From Job Discrimination, NBC NEWS (June 15, 2020), https://www.nbcnews.com/politics/supreme-court/supreme-court-rules-existing-civilrights-law-protects-gay-lesbian-n1231018.

44 Kadel v. Folwell, 466 F. Supp. 3d 1 (M.D.N.C. 2019).

45 Id. at 4.

46 Id. at 45.

41 42

10

WHEN LEGISLATORS PLAY DOCTOR

[Vol. 5

A. Treatment for Cisgender Individuals The SAFE Act violates the nondiscrimination clause of the Affordable Care Act because it directly prohibits transgender minors from receiving the same healthcare procedures that cisgender minors can receive. As mentioned previously, the procedures included in the gender transition process are only considered illegal by the SAFE Act based on its intent. The Act categorizes the prohibited procedures as the medical or surgical services related to gender transition, or performed for the purpose of assisting an individual with a gender transition.47 The procedures and treatments, like hormone therapy, are nevertheless allowed for cisgender people if they experience developmental issues in sex steroid hormone production, or sex steroid hormone action.48 The Act therefore excludes transgender youth from obtaining the same treatment that cisgender youth have access to, which means that it is discriminatory. Seeing that this law directly targets youth whose gender identity differs from their assigned sex at birth, sex plays a necessary and undisguisable role in the decision. The law excludes people from either sex from receiving treatment that could be allowed if they were of the other sex.

Male youth can receive male aligned hormones, but minors assigned female at birth cannot. Sex therefore becomes the basis of this legislation. The law restricts access to healthcare for minors because of their sex assigned at birth, rendering it in violation of Section 1557 of the Affordable Care Act. B. Treatment for Intersex Individuals The SAFE Act has specific exemptions when it comes to medical services for intersex medical interventions. Even though the Act prohibits “gender transition procedures,” this does not include services to intersex youth. This is seen in Sections 3, 6(a), and 6(b), which state that medical professionals are not prohibited from providing: Services to persons born with a medically verifiable disorder of sex development, including external biological sex characteristics that are irresolvably ambiguous, such as those born with 46 XX chromosomes with virilization, those born with 46 XY chromosomes with undervirilization, or those having both ovarian and testicular tissue. 49 A.R. Legis. Assemb. Act 262. Reg. Sess. 2021-2022 § 3(6)(a) (2021).

Id. § 3(6)(b)(ii).

49 Id § 3(6)(b)(i).

47 48

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

11

They are also not prohibited from providing: Services provided when a physician has otherwise diagnosed a disorder of sexual development that the physician has determined through genetic or biochemical testing that the person does not have normal sex chromosome structure, sex steroid hormone production, or sex steroid hormone action.50

Individuals who experience these ambiguous sex characteristics can be referred to as intersex, as their characteristics—chromosome patterns, gonads, hormones, or genitals—do not fit the typical binary notions of male or female bodies.51 People who are not intersex are referred to as endosex.

However, under the Act, intersex minors can undergo treatment to counter the effects of their biological differences through the same medical procedures used in the gender-affirming process of transgender individuals.

This essentially means that they can undergo treatment to align themselves with the biological sex they feel the closest to, which is not outlawed under the SAFE Act. However, endosex transgender individuals are not able to do the same due to the fact that their biological sex at birth fits into the binary understandings of sex. Because the sex characteristics of endosex transgender youth conform to the sex binary, they are not able to undergo procedures to align themselves with the gender they identify with. This reveals how Arkansas’s outlawing of gender-affirming processes for transgender youth is based on sex, as it discriminates against those whose sex characteristics fit into the notions of the sex binary, but whose gender identity differs from that sex. Sex plays a necessary and undisguisable role in the decision. With this in mind, it is clear that the SAFE Act violates Section 1557 of the Affordable Care Act, as it withholds treatment from endosex minors who do not identify with their assigned sex at birth, or transgender minors, and therefore discriminates against them based on sex.

V. CONCLUSION Arkansas’s SAFE Act may present itself as an attempt to protect minors from undergoing potentially detrimental procedures, but in reality, it singles out a vulnerable group in an inherently discriminatory manner, while Id. § 3(6)(b)(ii).

Fact Sheet: Intersex, UNITED NATIONS FOR LGBT EQUALITY (2021), https://www.unfe.org/wp-content/uploads/2017/05/UNFE-Intersex.pdf.

50 51

12

WHEN LEGISLATORS PLAY DOCTOR

[Vol. 5

allowing the procedures for minors in other contexts. The procedures are only prohibited in the Act when done with the intention to help children transition from one gender to another, and only when these children have sex characteristics that fit into the sex binary. These procedures are presented as having unknown, potentially harmful long term effects, but are still able to be implemented on both cisgender and intersex individuals.52 With this in mind, it is clear that the safety of these minors is not the aim of this Act, especially when numerous studies have shown the live-saving capabilities of gender-affirming health care.53 Arkansas’s SAFE Act therefore violates the U.S. Constitution and the Patient Protection and Affordable Care Act. Arkansas’s SAFE Act infringes on multiple aspects of the U.S. Constitution. It violates the Fourteenth Amendment, as the procedures are only illicit for those who seek treatment for the purpose of gender transition, discriminating against transgender individuals because of their unique identity. It is also in violation of substantive due process, as it revokes a parent or guardian’s liberty to seek and follow medical advice in the best interest of their child. Furthermore, it violates the First Amendment by infringing upon the freedom of speech of medical professionals, prohibiting them from referring patients to appropriate, medically sound treatments.

The Act also violates Section 1557 of the Affordable Care Act by discriminating against transgender individuals on the basis of sex. It excludes transgender people based on their assigned sex at birth, as the treatments they require would only be allowed if they were of the other sex. It further excludes gender-affirming processes for transgender youth whose sex characteristics fit into the sex binary. Intersex people can undergo genderaffirming procedures to fit themselves into the binary ideas of sex, but transgender youth are not afforded that same opportunity to affirm their gender identity. Either way, it is clear that the legislators of the SAFE Act did not have the best interests of transgender youth in mind when drafting the law. The procedures are still permitted and performed for youth that are not transgender or endosex, so protecting children from the “unknown long-term effects” of these procedures is certainly not the objective of the law. It is evident that the law targets transgender youth under the false pretenses of protecting youth in general. Legislators cannot and should not have more of A.R. Legis. Assemb. Act 262. Reg. Sess. 2021-2022 § 2(6)(b) (2021).

Complaint for Declaratory and Injunctive Relief, Brandt v. Rutledge, 2021 U.S. Dist.

LEXIS 148442 (E.D. Ark. 2021), https://www.aclu.org/legal-document/brandt-et-al-vrutledge-et-al-complaint.

52 53

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

13

a say in the practice of healthcare for a child than the medical professionals and guardians involved. This law proves that attempts to do so will result in illogical, unconstitutional, and unlawful acts. The SAFE Act should be repealed and gender-affirming health care should be a basic right for anyone, including transgender youth, which legislators need to keep in mind as they move forward. *** This Note was edited by Alleyah Ally.

NOTE CORPORATE DISTORTION AND THE CITIZENS UNITED DECISION Nicholas Wolf*

1

Citizens United v. Federal Election Commission (2010) yielded one of the United States Supreme Court’s most controversial holdings of the past fifteen years. The dramatic rise of federal campaign contributions since Citizens United suggests that this decision may well be largely responsible for corporate involvement, as it has often been cited as the root cause of an overt, corrupting corporate presence within the American political process.

While such assertions are not unmerited, they often overstate the scope and genuine ramifications of this decision. It is undoubtedly true that Citizens United deregulated corporate influence in campaign finance. However, understanding the nuances of the case and the history of American campaign finance law more generally is paramount to understanding the broader legal failings within the United States concerning corporate political spending.

This Note will argue that Citizens United, while significant, is not uniquely responsible for the lackluster regulations of campaign finance in the United States. As detailed by the late Supreme Court Justice Thurgood Marshall, corporations’ financial influence has always been necessarily greater than that of any individual, creating a distortion effect. Although excessive corporate involvement in our political process is undesirable, the suggestion that the reversal of Citizens United would be a panacea for corporate distortion is overly simplistic.

I.

II.

INTRODUCTION.................................................................................. 15 A. Hard and Soft Money Contributions .................................... 16 B. The Bipartisan Campaign Reform Act of 2002 .................... 17 C. Austin v. Michigan State of Commerce ................................ 18 D. Citizens United v. Federal Election Commission ................ 19 RAMIFICATIONS ................................................................................ 21

* B.A. Candidate for Political Science and Environmental Studies, Fordham College at Rose Hill, Class of 2023. It has been an honor to be a member of the Fordham Undergraduate Law Review as a Senior Editor. I am excited and motivated to encourage the growth and success of this Journal. I am grateful for the Editorial Board’s tremendous contributions and support as well as my friends and family, who have been and always will be incredibly loving and supportive.

1

14

2021]

III. IV. V.

FORDHAM UNDERGRADUATE LAW REVIEW

15

A. Legal Outcomes .................................................................... 21 B. Monetary Repercussions ...................................................... 22 C. Impacts on the American Political Process ......................... 23 A MISGUIDED ASSIGNMENT OF LEGAL RIGHTS ................................ 24 THE OVERSIMPLIFICATION OF REVERSAL ......................................... 25 AVENUES FOR ELIMINATING DISTORTION ......................................... 26 I. INTRODUCTION

During his 2010 State of the Union address, then-President Barack Obama made apparent his disdain for the Citizens United v. Federal Election Commission (2010) ruling. President Obama stated that this decision would lead to an unprecedented level of corporate freedom to influence American elections and urged Congress to pass legislation remedying its clear defects.

While many senators and representatives suggested a similar outlook (through thunderous applause), all nine Supreme Court justices remained noticeably silent. While each justice likely had varied reasons for this cold response, their reaction was not without merit as the President’s statements reflected a broad misunderstanding of campaign finance law history.

Although this ruling undoubtedly aggravated the previous faults of American campaign finance law, President Obama’s proposed remedial actions would likely not only stall in the courts, but also fail to address these underlying shortcomings. As such, this Note will discern the true ramifications of this decision and the uncomfortable reality of corporate political spending from a practical and legal perspective.

Prior to analyzing the history and proceedings of this case, identifying both the legal precedent and the legislation challenged by the plaintiff, Citizens United, is imperative. Specifically, examining the now-defunct Bipartisan Campaign Reform Act (BCRA),1 also commonly referred to as the McCain-Feingold Campaign Finance Reform Act, reveals the origin of this legal controversy. This law was central to the plaintiff’s case, as it generated the legal controversy that Citizens United sought to challenge. While this relatively novel law was initially central to Citizens United’s lawsuit, the most pronounced ramifications spawned from this decision involved the reversal of a prior case. Specifically, this Note identifies the reversal of the precedent laid out by the Supreme Court in Austin v. Michigan State Chamber 1

Bipartisan Campaign Reform Act of 2002, Pub. L. 107–155, 116 Stat. 81.

16

CORPORATE DISTORTION

[Vol. 5

of Commerce (1990) as the primary cause for the rise in corporate political spending and will discern the legal impacts of this reversal.2 A. Hard and Soft Money Contributions This Note refers to two broad terms concerning political spending: hard and soft money. Hard money refers to a contribution that is directed toward a specific candidate or political party.3 Such contributions may be used by recipients for the purpose of expressly encouraging individuals to vote for a specific candidate or policy.4 For example, candidates often state “I approve this message” at the end of television and radio advertisements to indicate that they were funded through hard money contributions.5 Corporations are barred from contributing hard money to candidates, political parties, and political action committees (PACs). However, such entities still possess immense influence over the American political process through another avenue: soft money.

Soft money refers to a political contribution that cannot be used directly to support particular political candidates or policies.6 Rather, such funds must be used for “educational” purposes and cannot expressly advocate for a candidate or policy.7 However, corporations may only contribute soft money to independent-expenditure-only PACs, also known as super PACs. While this may appear as a narrow avenue for corporations to participate politically, they often establish and contribute extraordinary amounts to a large number of super PACs to maximize their influential abilities. This is possible because there is no monetary ceiling nor disclosure requirement for this type of political contribution.

Plainly, the regulatory measures for these contributions differ drastically and the Citizens United decision exacerbated this disparity. But the rules for what differentiates soft and hard money contributions are often vague: Austin v. Mich. State Chamber of Commerce, 494 U.S. 652 (1990) (overruled by Citizens United v. FEC, 558 U.S. 310 (2010)).

3 Ruth Marcus, ‘Hard’ and ‘Soft’ Money: A Crucial, Sometimes Fine Line, WASHINGTON POST, Sept. 5, 1997, at A16.

4 Id. 5 Advertising and Disclaimers, THE FEDERAL ELECTIONS COMMISSION, https://www.fec.gov/help-candidates-and-committees/advertising-and-disclaimers/.

6 Marcus, supra note 3.

7 Id. 2

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

17

specifically, the distinction between expressed advocacy and education is often indeterminable.

B. The Bipartisan Campaign Reform Act of 2002 The Bipartisan Campaign Reform Act (BCRA) was chiefly sponsored by late Republican Senator from Arizona John McCain and former Democratic Senator from Wisconsin Russ Feingold.8 They proposed the Act as an amendment to the Federal Election Campaign Act of 1971 (FECA),9 which historically served as the primary law regulating political campaign spending in the United States. Specifically, prior to the BCRA’s enactment in 2002, the FECA regulated hard money contributions to candidates and restricted the amount a candidate could contribute to their own campaign.10 Moreover, the Act also established mandatory disclosure reports for those contributing to political campaigns.11 This law has been amended several times prior to the BCRA, most notably in 1974 following the Watergate scandal. The most impactful aspect of these amendments was the establishment of the Federal Elections Commission (FEC), which held the authority to “administer and enforce the Federal Election Campaign Act.”12 These amendments were also noteworthy in instituting specific monetary limitations on individuals’ campaign contributions.13 While these novel limitations laid the groundwork for campaign finance regulations in the United States, calls for further regulation lingered.

The BCRA altered the role of the FECA through a range of new policies.

The most significant of these amendments sought to further eliminate corporate influence within American elections by barring corporations from participating in “electioneering communications.”14 In broad terms, this policy was designed to prevent corporations from expressly advocating for or against any candidate or policy.

Bipartisan Campaign Reform Act of 2002, Pub. L. 107–155, 116 Stat. 81.

Federal Election Campaign Act of 1971, Pub. L. 92–225, 86 Stat. 3.

10 Id. 11 Id. 12 Federal Election Campaign Act Amendments of 1974, Pub. L. 93–433, 88 Stat. 1263.

13 Id. 14 Bipartisan Campaign Reform Act of 2002, Pub. L. 107–155, 116 Stat. 81.

8 9

18

CORPORATE DISTORTION

[Vol. 5

A corporation would be in violation of this law if they met any one of three bases laid out by this Act. First, a corporation could not put out an advertisement expressly mentioning a candidate.15 Second, it could not advertise in the thirty days prior to a primary or caucus election, and the sixty days prior to a general election.16 Finally, such advertisements could not target an electorate (with the exception of presidential elections, where the entire nation is the electorate).17 This aspect of the BCRA proved to be significant in the Citizens United ruling.

C. Austin v. Michigan Austin v. Michigan Chamber of Commerce was one of the most significant court rulings on campaign finance law prior to Citizens United. In the lead-up to a special election for the Michigan House of Representatives in 1985, the Michigan Chamber of Commerce attempted to run advertisements in support of a particular candidate with “general treasury funds.”18 This violated the Michigan Campaign Finance Act of 1976,19 which dictated that corporations were prohibited from appropriating funds from their general treasury for the purpose of supporting any political candidate: these entities were required to use separate funds to engage in such activity.20 To bypass this requirement, the Michigan Chamber of Commerce preemptively sued the Michigan Secretary of State, Richard Austin, arguing that the legislation was unconstitutional.21 Specifically, the plaintiff argued that this limitation on corporate political spending was in violation of the First Amendment and Equal Protections Clause of the Fourteenth Amendment to the United States Constitution.22 The case was initially reviewed by the United States District Court for the Western District of Michigan in 1985 and eventually appealed to the Supreme Court (“the Court”).23 After hearing oral arguments in 1989, the Court reached a verdict in 1990, ruling in favor of the defendant in a 6-3 decision, 15

Id. Id. 17 Id. 18 Austin, 494 U.S. at 656.

19 Mich. Compiled Laws § 169.201–282 (1976).

20 Id. 21 Austin, 494 U.S. at 655.

22 Id. at 654.

23 Id. at 656.

16

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

19

thus upholding the Michigan Campaign Finance Act of 1976. Supreme Court Justice Thurgood Marshall wrote the majority opinion, stating that “[b]y requiring corporations to make all independent political expenditures through a separate fund. . . the Michigan Campaign Finance Act reduces the threat that huge corporate treasuries amassed with the aid of favorable state laws will be used to unfairly influence the outcome of elections.”24 This decision was foundational in campaign finance laws throughout the United States for twenty years, as it set constitutional parameters for laws designed to curtail corporate political influence through the regulation of soft money contributions. Any state or municipal laws designed to prevent such a corporate distortion by regulating independent expenditure contributions were ruled consistent with the First Amendment. As a result, additional laws protecting the political influence and speech of those non-corporate entities were spawned. For instance, at the federal level, the BCRA’s prohibition on corporate participation in electioneering communications was based on this ruling. Indeed, the precedent of Austin was important in the formation of state and federal campaign finance law for twenty years, until the Citizens United decision in 2010.

D. Citizens United v. Federal Election Commission Citizens United v. Federal Election Commission was initially brought before the United States District Court for the District of Columbia in the lead up to the 2008 Democratic primary.25 The self-identified conservative nonprofit organization Citizens United sought to release a documentary criticizing then-Senator Hillary Clinton. However, expecting retaliatory measures from the Federal Election Commission (FEC) on the basis of the BCRA,26 the organization preemptively filed for an injunction. Through this, Citizens United asked the courts to prevent the enforcement of the BCRA. The plaintiff argued that the prohibition of corporate participation in “electioneering communications” presented a sufficiently weighty question to merit the imposition of an injunction against the BCRA.27 Id. at 657.

Citizens United v. Federal Elections Commission, 558 U.S. 310, 310 (2010).

26 Michael W. McConnell, Reconsidering Citizens United as a Press Clause Case, 123 YALE L.J. 412 (2013).

27 Jonathan Kim, Injunction, CORNELL LEGAL INFORMATION INSTITUTE (June 2017), https://www.law.cornell.edu/wex/injunction.

24 25

20

CORPORATE DISTORTION

[Vol. 5

The aforementioned documentary appeared to be in violation of the BCRA, as releasing this film would have met the criteria for illegal corporate “electioneering communications” laid out by the legislation. The documentary expressly denounced Senator Clinton and was made available in the thirty days leading up to the 2008 Democratic primary.28 The documentary targeted the electorates of states voting in the primary, and the corporation would be subject to civil and criminal penalties if the film were to be released.29 Shortly after Citizens United filed for a preliminary injunction, the Supreme Court acknowledged probable jurisdiction over this case.

The central question of this case revolved around whether the BCRA’s restrictions on Citizens United’s advertisement would serve to limit political speech more broadly.30 As such, the Supreme Court considered whether the criteria laid out by the BCRA at large served as a governmental limitation on political speech, in violation of the First Amendment. Moreover, the plaintiff’s argument would not only challenge the BCRA, but also the precedent laid out by Austin v. Michigan31 since it provided, in part, the legal foundations of the BCRA. Austin was also challenged by Citizens United32 because it established that limitations on corporate political expression were generally constitutional.

In 2010, the Supreme Court held in Citizens United that the BCRA and the precedent set by Austin were at odds with the First Amendment.33 The Court held that the First Amendment applied to all citizens of the United States, and could not discriminate based on economic status or professional identity, thus squarely finding that corporations were given equal protections under the First Amendment, comparable to any individual.34 In essence, corporations could not be subjected to limitations on the basis of their identities. The Court found that the prior precedent concerning corporate distortion of the American political process was antithetical to the intended function of the First Amendment.35 The effect of the opinion was wideCitizens United, 558 U.S. at 310.

Id. 30 Id. at 320.

31 Austin, supra note 3.

32 Citizens United, supra note 28.

33 Id. at 319.

34 Id. 35 Id. 28 29

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

21

ranging, not just overturning the BCRA and Austin, but a significant number of state campaign finance laws.

II. RAMIFICATIONS A. Legal Outcomes The Supreme Court’s decision was immediately understood to have dramatically altered campaign finance law. The implications for state and municipal laws were, however, far less appreciated at the time. As mentioned, the precedent set by Austin was foundational to state campaign finance laws for over twenty years. The Supreme Court’s authorization to limit corporate participation in political spending allowed state and municipal level lawmakers to craft legislation directed to such an end. Consequently, when this precedent was overturned in 2010, those laws were undermined. As most state campaign finance laws modeled under the precedent of Austin were rendered defunct, states were forced to default to the remaining federal laws and guidelines. Thus, in essence, Citizens United had the perhaps unintended consequence of federalizing state campaign finance law across the United States.36 And nowhere was this more impactful than the neutralizing of regulations concerning corporate soft money political spending.

Limited federal regulations have resulted in a near absence of regulatory measures concerning corporate soft money contributions. As previously mentioned, the FECA and its immediate amendments were largely concerned with limiting a corporation’s ability to directly contribute to a candidate or political party. However, no measures were taken to regulate soft money upon the law’s initial passage or within its subsequent 1974 amendments. It was not until the BCRA’s passage in 2002 that the federal government took action to regulate this form of political spending.

As such, the burden of crafting policy to achieve this was often laid upon the states, an endeavor which many states and municipalities undertook.

Whether through imposing fiscal limitations or through mandating disclosure on such contributions, many state and municipal election laws limited soft money contributions. According to the National Conference of State Legislatures, twenty-four states had laws in place regulating corporate

36

Citizens United, 558 U.S.

22

CORPORATE DISTORTION

[Vol. 5

political spending prior to this decision.37 However, most “of these states have repealed or re-written these laws to avoid legal challenges under the new standard set by Citizens United.”38 Moreover, this reversal of precedent impacted laws at the municipal level as well. For instance, a 1998 New York City law that banned corporations from politically contributing was reversed

by Citizens United.39 Yet through this decision, the Supreme Court overturned all such laws, effectively allowing unlimited corporate soft money contributions.

B. Practical Repercussions The impacts of these legal outcomes have been dramatic. However, as previously discussed, corporations cannot directly contribute to campaigns or political parties, but rather must do so through super PACs. As such, the figures of corporate political spending are obfuscated. Due to this, purely focusing on contributions to specific candidates and political parties is an inaccurate method of tracking trends in political spending. Examining the overall rise in political spending since the Citizens United verdict is necessary to accurately gauge the impact of this decision. While some may argue this rise may be attributed to confounding variables such as inflation rates or burgeoning costs to generally organize a campaign, there is real evidence to the contrary. For example, data collected from the watchdog organization Open Secrets strongly suggest that Citizens United is to blame. They gathered data on the influx of gross gains in contributions to campaigns at every level of government in the United States. They determined that a major surge in spending occurred around 2012, directly corresponding to this decision.

Since Citizens United, the inflation-adjusted rise in monetary contributions to elections at every level of government has been truly unprecedented. At the state level, from 2012 to 2020, gubernatorial and state legislative elections saw a five hundred million dollar increase in gross

Citizens United and the States, NATIONAL CONFERENCE OF STATE LEGISLATURES (July 21, 2016), https://www.ncsl.org/research/elections-and-campaigns/citizens-united-and-thestates.aspx.

38 Id. 39 History of the CFB, NEW YORK CITY CAMPAIGN FINANCE BOARD (2021), https://www.nyccfb.info/about/history/.

37

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

23

contributions.40 Escalations at the federal level during this time period were even more pronounced, representing a gross increase of over three billion dollars.41 This dramatic rise in political spending can plainly be attributed, at least in part, to the deregulation of soft money contributions. This is evidenced by the fact that super PACs have seen a nine hundred-billion-dollar gross increase in spending since 2010,42 more than any equivalent entity. This explosion in corporate contributions is the logical result of the distortion effect detailed in Justice Marshall’s majority ruling regarding Austin. Indeed, his fears concerning its impact on the passage of government policy have materialized.

C. Impact on the American Political Process The impacts of unregulated corporate soft money spending have shifted the priorities of American public officials. While many have argued this influx of corporate political contributions has done little to actually influence American politics, empirical evidence has proven otherwise. A study conducted by the Cambridge University Press gathered data on the preferences of average citizens and interest groups, and measured the probability of whether these preferences were translated in the form of changes in government policy.43 Importantly, while the study measured the preferences of interest groups, they acknowledged “that the composition of the U.S. interest-group universe is heavily tilted toward corporations.”44 Functionally, this means the political preferences of interest groups are interchangeable with those of corporations.

The results of this study revealed an alarming trend. It concluded that “the probability of policy change is nearly the same. . . whether a tiny minority or a large majority of average citizens favor a proposed policy change” meaning their preferences are rarely reflected in government policy.45 Conversely, the Karl Evers-Hillstrom, More Money Less Transparency: A Decade Under Citizens United, OPEN SECRETS (2020), https://www.opensecrets.org/news/reports/a-decade-undercitizens-united.

41 Id. 42 Id. 43 Martin Gilens & Benjamin Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 PERSPECTIVES ON POLITICS 564 (2014).

44 Id. 45 Id. 40

24

CORPORATE DISTORTION

[Vol. 5

study displayed the preferences of interest groups were greatly influential in this regard, regardless of whether they opposed or supported any change,46 Specifically, they noted that “high levels of support among . . . interest groups . . . increase[d] the probability of adopting a policy change.”47 This bias toward the political preferences of corporations quashes those of ordinary citizens. This inaccurate reflection of the broader political views of the American public displays the legal failings of Citizens United.

III. A MISGUIDED ASSIGNMENT OF LEGAL RIGHTS The legal doctrine of corporate personhood states that corporations, entirely separated from associated individuals (like shareholders or managers), are entitled to certain political rights.48 The scope of this doctrine has been hotly disputed in the United States throughout its history and came to the forefront during Citizens United. Through this narrow ruling, the Supreme Court extended the right to political expression guaranteed by the First Amendment to corporations.

The Supreme Court’s decision to grant corporations the ability to contribute unlimited amounts of soft money through super PACs was mistaken. The majority’s assertion that the imposition of limitations on corporate political spending was in violation of such entities’ right to free speech under the First Amendment lacked a comprehensive understanding of their function in the American political process. This point was not lost on the minority. The dissenting opinion, written by Justice John Paul Stevens, acknowledged distortion. He stated the majority ruling was “a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government.”49 Moreover, he added “[a] democracy cannot function effectively when its constituent members believe laws are being bought and sold.”50 Such remarks reflect the aforementioned fears Justice Marshall detailed in his majority opinion of Austin. These justices were aware of corporate distortion, and its destructive capacity for the American political process. That said, while Citizens United 46

Id. Id. 48 Nikola Bowie, Corporate Personhood v. Corporate Statehood, 132 HARVARD L. REV. 2009 (2009).

49 Citizens United, 558 U.S. (Stevens, J., dissenting).

50 Id. 47

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

25

certainly exacerbated distortion, its existence cannot solely be attributed to Citizens United.

IV. THE OVERSIMPLIFICATION OF REVERSAL Citizens United is uncompromising in its restrictions placed on lawmakers. The Supreme Court has nullified the U.S. government’s ability to regulate corporate soft money political spending. Under this precedent, any legislation designed to regulate corporate political spending will inevitably be litigated and struck down in court. However, the assertion that a reversal of Citizens United would wholly remedy American campaign finance laws is an oversimplification. Certainly, reverting to the precedent laid out by Austin would be impactful in generating an avenue for enacting policies to restrict a corporate influence in American politics. Granting states the ability to create policies to regulate corporate soft money spending would limit corporate influence in the American political process. However, so long as corporations are permitted to contribute to super PACs, the distortion effect will persist.

Such entities innately wield dramatically more monetary influence than that of almost all individuals. As such, the imposition of these monetary regulations is only so effective, as corporations can simply establish and contribute to a large number of super PACs. Acknowledging this reality generates broader questions concerning how corporations should be viewed within American campaign finance law.

There exists a dichotomous reality within this facet of American law: either disallow corporate participation in elections entirely or accept the reality of corporate distortion. The effects of the latter have been felt and previously discussed in this Note. However, it is important to realize the implications of the former. The scope of the term “corporation” is not often considered when discussing a prohibition of such entities’ ability to contribute to candidates and political parties. Under the policy of the Internal Revenue Service, the term “corporation” applies to a vast array of organizations including charitable nonprofits, small businesses, and some internet content creators. Regardless of the political beliefs such entities advocate, entirely barring their participation in American politics would require a dramatic alteration to United States policy.

26

CORPORATE DISTORTION

[Vol. 5

V. AVENUES TO ELIMINATING DISTORTION The empirical evidence displayed by the Cambridge study is the manifestation of the legal criticisms of corporate personhood in the context of campaign finance law. Put simply, granting corporations the ability to politically contribute suppresses the capacity of huge swaths of the American people from the same right of genuine political expression. As such, the Supreme Court has a simple choice: either to protect the First Amendment rights of corporations or those of the American people.

Granting legislatures at both the state and federal level a legal avenue to enact policies to limit corporate soft money contributions would likely curtail the drastic rise in political spending experienced since this decision. A reversion to the precedent of Austin would indeed be impactful in lessening the contemporary contentious climate of American campaign finance.

Nevertheless, while such judicial action would be a necessary step toward moderating corporate investments into the American political process, it alone would not be sufficient to wholly eliminate corporate distortion. Rather, a dramatic alteration to current court precedent regarding corporations’ First Amendment rights would need to be considered. Specifically, the Supreme Court would be required to alter the current application of corporate personhood concerning campaign finance law.

As previously mentioned, the late Supreme Court Justice Marshall centered his majority opinion in Austin around this very question. His acknowledgement of corporate distortion was the central premise of his disposition to regulate corporate political spending. Specifically, he argued that the aforementioned fiscal advantage corporations possess over individuals inherently suppresses the free speech of the latter. As such, Justice Marshall saw it not only as permissible, but legally necessary to offer an avenue for legislatures to enact regulations concerning corporate political spending. The application of this legal premise to contemporary campaign finance law is vital to terminating the effects of corporate distortion.

However, to fully achieve this end, a more stringent interpretation of corporate distortion would be required. This would materialize through the limitation of the aforementioned legal doctrine of corporate personhood by the courts.

However, the ability of the American judiciary to remedy the effects of corporate distortion is limited. It is within the scope of power of the Supreme Court to overturn Citizens United and to take on a novel legal precedent and

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

27

rescind corporate personhood as it pertains to their ability to politically contribute. Yet supporting legislative action is ultimately necessary to eliminate corporate distortion. As with much of campaign finance law from 1990 to 2010, legislation ultimately dictates how regulatory measures are to be enacted and enforced. If the previously stated judicial decision concerning corporate personhood were to be reached, both state and federal lawmakers would ultimately be responsible for eliminating corporate distortion. *** This Note was edited by Anthony Vu.

NOTE THE RESIST LINE 3 MOVEMENT: UNDRIP AND INDIGENOUS RIGHTS IN THE UNITED STATES Elizabeth Hartnett*

1

The rights of Indigenous peoples in the United States have long been a source of contention and debate. Issues of violence, compensation, land use, and more, have recently been at the center of numerous legal battles. Though many Indigenous plights do not often make headline news, one case has recently received significant media attention: the Resist Line 3 Movement.

Also known as Stop Line 3, this movement led by Indigenous peoples primarily in Minnesota and Wisconsin protests the expansion of the Line 3 tar sands pipeline. These activists argue that the pipeline violates treaty rights and would have numerous detrimental impacts on the Indigenous peoples in this area. They cite the United Declaration on the Rights of Indigenous People––specifically the nexus of free and prior informed consent––in their call for the United States to recognize and implement this resolution in a legally binding manner in order to protect the rights of Indigenous peoples at Line 3 and more broadly across the country. This Note argues that the federal government holds a moral and legal obligation to respect the wishes of Indigenous people in Wisconsin and Minnesota by halting the proposed pipeline expansion of Line 3. Furthermore, the federal government should also ratify the United Nations Declaration on the Rights of Indigenous People in order to legally recognize the expansion of rights for Indigenous peoples.

I. II. III.

INTRODUCTION.................................................................................. 29 LINE 3 AND ITS IMPACT ON INDIGENOUS PEOPLES ............................ 29 WHAT IS THE UNITED NATIONS DECLARATION ON RIGHTS OF INDIGENOUS PEOPLES?...................................................................... 31 A. The United States’ History with the Declaration ................. 32 B. Legal Foundations Established by UNDRIP ....................... 33

* B.A. Candidate for Political Science and Anthropology at Fordham College at Rose Hill, Class of 2022. This Note would not have been possible without the continued support of the Fordham Undergraduate Law Review Editorial Board and Senior Editors. I am so grateful for the opportunity to bring this particular topic to light and look forward to continuing my work with the Fordham Undergraduate Law Review.

1

28

2021] IV. V.

FORDHAM UNDERGRADUATE LAW REVIEW

29

C. Notable Articles Within UNDRIP ........................................ 33 FREE AND PRIOR INFORMED CONSENT VERSUS THE UNITED STATES’ DEFINITION OF CONSENT .................................................................. 35 CONCLUSION ..................................................................................... 36 I. INTRODUCTION

On September 13th, 2007, the United Nations General Assembly adopted the resolution known as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).2 An overwhelming majority of 143 countries voted in favor of the resolution, with only Australia, Canada, New Zealand, and the United States voting against the measure.3 Along with recognizing the historical injustice imposed upon Indigenous people across the world, UNDRIP allotted them free and prior consent.4 Free and prior informed consent indicates that before the federal government can take any action, Indigenous people must be consulted in any decisions which may impact their lives or land and give their full consent without any form of coercion.

This principle is critical to UNDRIP, especially when analyzing the impact of this resolution on the United States government. While current U.S. legislation requires federal officials to inform Indigenous leaders of any governmental actions which may impact their land or people, the federal government does not require any form of true consent or agreement from these leaders for action. Through this scope, Indigenous people effectively wield no control over their own lands and remain powerless in preventing the United States government from pursuing potentially harmful action. The ratification and implementation of UNDRIP into American legislation would benefit many Indigenous causes, particularly the movement to halt Line 3.

II. LINE 3 AND ITS IMPACT ON INDIGENOUS PEOPLES Currently a pipeline from Alberta, Canada to Wisconsin, United States, the new Line 3 proposal would expand the volume of tar transported by furthering the pipeline route through treaty territory.5 Along with concerns United Nations Declaration on the Rights of Indigenous Peoples, Sept. 13, 2007, https://undocs.org/A/RES/61/295.

3 Id. 4 Id. 5 Issues, STOP LINE 3 (2021), www.stopline3.org/issues.

2

30

THE RESIST LINE 3 MOVEMENT

[Vol. 5

about the detrimental socio-environmental impacts of an expanded pipeline running through their communities, Indigenous activists argue that there is no economic need for this pipeline: tar sands are widely considered a dying industry.6 In fact, the Minnesota Department of Commerce has stated that “Minnesota refineries currently have all the oil they need” and, because of this, Line 3 operations should cease without any new pipeline construction.7 While Line 3 represents many legal debates regarding tribal sovereignty, Indigenous people are ultimately protesting the pipeline because they believe it will negatively impact their community because of the detrimental impacts on their land.

Furthermore, expanding the Line 3 pipeline would lead to an influx of construction workers––who are typically white males––to their native communities.8 Most commonly inhabiting campgrounds or trailer parks, it has been cited that these individuals can cause tension in Indigenous tribes by “foster[ing] a culture of drug and alcohol abuse, violence, misogyny, and racism.”9 The rise of non-native individuals in these communities is also statistically linked to the Missing and Murdered Indigenous Women crisis, which references the abuse and sexual trafficking of Indigenous women.10 In addition, Minnesota acknowledges in their Environmental Impact Statement that the proposed project would induce “additional health stressor[s] on tribal communities that already face overwhelming health disparities and inequities.”11 By nature of the sheer amount of land implicated in the expansion, this pipeline has and will continue to impact every aspect of Indigenous life. Particularly, the Ojibwe––one of the tribes native to the region––are most likely to be impacted by the proposed Line 3 expansion and ultimately, do not hold the legal advocacy power to effectively impact the federal government’s decision.

UNDRIP seeks to address this injustice. By granting additional rights and protections for Indigenous peoples, including greater tribal sovereignty, this Act would grant Indigenous people heightened power over their own communities today.

6

Id. Id. 8 Id. 9 Id. 10 Id. 11 Id. 7

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

31

III. WHAT IS THE UNITED NATIONS DECLARATION ON RIGHTS OF INDIGENOUS PEOPLES? UNDRIP sought to promote the rights of Indigenous people based on the idea that the most effective way to increase their rights was to grant Indigenous people greater control over their land and any developments that would impact them.12 The U.S. Agency for International Development described this resolution as a “universal framework” which sets “minimum standards for the survival, dignity, and well-being of indigenous peoples and elaborates on existing human rights standards and fundamental freedoms as they apply to specific situations of Indigenous people.”13 UNDRIP addresses multiple issues which impact Indigenous peoples including, but not limited to, health, culture, language, education, and protection of land.14 This resolution also includes the concept of free and prior informed consent,15 which is critical to UNDRIP, especially when analyzing the impact this resolution would have on the United States government.

The most important aspect of UNDRIP in relation to the Resist Line 3 Movement is the definition of free and prior informed consent. The United States should update its own definition of consent in relation to Indigenous peoples in order to adhere to the definition of consent outlined by UNDRIP. The United States should begin to actively implement the policies outlined within UNDRIP, in order to protect and support the wishes of Indigenous people throughout the United States, including the Ojibwe.

Current United States legislation does require federal officials to inform Indigenous leaders of any government actions which may impact their land or people. However, the federal government does not require any form of true consent or agreement from the Indigenous leaders. Effectively, Indigenous people have no control over their own lands and are powerless to prevent the United States government from pursuing any action that it may choose.

United Nations Declaration on the Rights of Indigenous Peoples, Sept. 13, 2007, https://undocs.org/A/RES/61/295.

13 Indigenous Peoples, U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT (2020), www.usaid.gov/environmental-policy-roadmap/indigenous-peoples.

14 United Nations Declaration on the Rights of Indigenous Peoples, Sept. 13, 2007, https://undocs.org/A/RES/61/295.

15 Id. 12

32

THE RESIST LINE 3 MOVEMENT

[Vol. 5

A. The United States’ History with the Declaration The United Nations Declaration on the Rights of Indigenous Peoples was a resolution adopted by the General Assembly of the United Nations (UN) on September 13th, 2007.16 At the time, the vote on this resolution was as follows: 143 countries in favor, eleven abstaining, and four against the measure.17 One of the four countries voting against this resolution was the United States, which held the position that the declaration “risked endless conflicting interpretations and debate about its application, as already evidenced by the numerous complex interpretive statements issued by States at its adoption at the Human Rights Council, and the United States could not lend its support to such a text.”18 Since 2007, all four countries that voted ‘no’ have since expressed support for UNDRIP.19 In 2016, former President Barack Obama stated the United States would “lend its support” to the resolution at the second White House Tribal Nations Conference.20 Despite this proclamation, the United States has not officially ratified this resolution nor passed any new legislation utilizing the Declaration’s verbiage. Because UNDRIP is not currently a legally binding form of international law under the United Nations, the United States––despite having publicly supported the document––faces no legal ramifications for failure to adhere to its articles.21 However, based upon the frequent citation of UNDRIP in relation to international human rights treaties, its legal weight is continuously debated by legal scholars and politicians; there is firm ground to maintain its significance as it may become even more noteworthy in future discourse.

16

Id. General Assembly Adopts Declaration on Rights of Indigenous Peoples; ‘Major Step Forward’ Towards Human Rights for All, Says President, UNITED NATIONS GENERAL ASSEMBLY (2007), https://web.archive.org/web/20071117024621/http://www.un.org/News/Press/docs//2007/g a10612.doc.htm.

18 Id. 19 United Nations Declaration on the Rights of Indigenous Peoples, Sept. 13, 2007, https://undocs.org/A/RES/61/295.

20 White House Tribal Nations Conference, NATIONAL CONFERENCE OF STATE LEGISLATORS (2021), https://www.ncsl.org/legislators-staff/legislators/quad-caucus/whitehouse-tribal-nations-conference.aspx.

21 Sylvanus Gbendazhi Barnabas, The Legal Status of the United Nations Declaration on Indigenous Peoples (2007) in Contemporary International Human Rights Law, 6 INT’L HUM. RTS. L. REV. 242 (2017).

17

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

33

B. Legal Foundations Established by UNDRIP Since UNDRIP is not a resolution passed by the United States, it is not legally binding within the United States in any form, even after the United States publicly expressed support for the document. This would indicate that it has no legal significance and could not be used as a basis of criticism against the United States’ actions with Line 3.

However, its legal significance is not as clear cut as one may expect.

Several United Nation resolutions do carry legal weight and legal implications in international law, since any declaration may become customary international law and thus be legally binding for all parties. 22 A notable case is the Universal Declaration of Human Rights of 1948 (UDHR) which “has been widely accepted as a universal standard . . . for generally acceptable human rights norms globally.”23 In addition, “some writers have concluded that the UDHR, in whole or at least in part, has attained the status of customary international law,”24 which bodes well for the future UNDRIP. Some argue that UNDRIP is informed by international law and is “perceived as agreed interpretation of the UN human rights treaties concerning Indigenous rights”25 and that the declarations made by the UN act as “an element of good faith commitment, evidencing in some cases a desire to influence state practice or expressing some measure of law-making intention and progressive development.”26 However, others believe this still means that UNDRIP has no legal weight.

C. Notable Articles in UNDRIP UNDRIP Articles 19, 28, 29, and 32 are the four most influential UNDRIP articles in regard to the policies currently maintained by the United States in regards to the Resist Line 3 Movement.27 Article 19 holds that “states shall consult and cooperate in good faith with the Indigenous peoples 22

Id. Id. 24 Id. 25 Id. 26 Id. 27 United Nations Declaration on the Rights of Indigenous Peoples, Sept. 13, 2007, https://undocs.org/A/RES/61/295.

23

34

THE RESIST LINE 3 MOVEMENT

[Vol. 5

concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”28 Article 28’s provisions are: 1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.29

Next, Article 29 in UNDRIP contains three provisions: 1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources.

States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.

2. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.

3. States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented. 30

And finally, Article 32 states: 1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

28

Id. Id. 30 Id. 29

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

35

3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.31

IV. FREE AND PRIOR INFORMED CONSENT VERSUS THE UNITED STATES’ DEFINITION OF CONSENT The official Stop Line 3 campaign website outlines numerous issues raised by the Ojibwe people against the pipeline expansion, including increased rates of missing and murdered Indigenous women at construction sites, destruction or desecration of sacred sites, as well as health and environmental impacts.32 Particularly because Indigenous leaders did not consent to the proposed project and actively oppose the measure, one of their primary concerns relates to free and prior informed consent, as opposed in UNDRIP. Specifically, Indigenous leaders have stated that the Line 3 project violates “fundamental principles of sovereignty– the right to selfdetermination and self-government guaranteed to tribal nations by the U.S. Constitution and affirmed repeatedly by the U.S. Supreme Court.”33 Not only does Minnesota not hold the consent of impacted tribes along the Line 3 route, but according to legal codes, they do not have jurisdiction on these tribal lands which they are usurping for the project. Thus, the project has been deemed “modern-day colonialism for the purposes of resource extraction and corporate profit” by Line 3 opponents.34 Had the United States adhered to the guidelines of UNDRIP, the nation would have sought consent, as outlined in Article 19, for the Line 3 expansion.35 By definition, this consent would necessitate approval from the Ojibwe people for a full proposal from the United States government––which includes potential adverse effects––to build upon the pipeline. Considering the numerous objections the Ojibwe people have raised in regard to the pipeline,36 it is reasonable to assume that they would not freely give their consent to the United States government given the opportunity. Thus, under United Nations Declaration on the Rights of Indigenous Peoples, Sept. 13, 2007, https://undocs.org/A/RES/61/295.

32 Issues, supra note 4.

33 Id. 34 Id. 35 United Nations Declaration on the Rights of Indigenous Peoples, Sept. 13, 2007, https://undocs.org/A/RES/61/295.

36 Issues, supra note 4.

31

36

THE RESIST LINE 3 MOVEMENT

[Vol. 5

these circumstances, the government would not have been able to proceed with the proposed pipeline.

While the United States is required to alert Indigenous people of governmental imposition upon their lands, the nation does not need to obtain their permission to move forward. Under this definition, the basic act of informing Indigenous people of upcoming governmental action is considered adequate consent, regardless of whether the Indigenous people approve of the action. Although people may actively deny government interference, under this working notion, the government is free to move forward without agreement from the tribes as long as they inform them of tentative plans. This is not genuine consent by any means; the free and prior informed consent in the UNDRIP serves as a much more comprehensive and accurate portrayal of the concept. Free and prior informed consent would enable Indigenous people to protect themselves and their land from detrimental government actions.

V. CONCLUSION The United States government holds a legal and moral obligation to respect the wishes of Indigenous people in Wisconsin and Minnesota by halting the proposed expansion of Line 3. This is foundationally supported by the United Nations Declaration on the Rights of Indigenous People, which recognizes the historical injustice faced by Indigenous peoples across the world and grants them greater control over the land of their communities.37 Most importantly, the implementation of free and prior informed consent alone would halt Line 3 and hold cascading benefits for all aspects of Indigenous life. The United States should begin to actively implement the policies outlined within UNDRIP in order to protect and support the needs of Indigenous people throughout the United States. The ratification and implementation of UNDRIP into American legislation would help all aspects of Indigenous life, especially by supporting the current movement to stop Line 3. *** This Note was edited by Margarita McCoy. 37 United Nations Declaration on the Rights of Indigenous Peoples, Sept. 13, 2007, https://undocs.org/A/RES/61/295.

NOTE “WHITES ONLY”: AMERICA’S RACIAL COVENANTS IN HOUSING DEEDS Olivia Lilley*

1

Racial covenants in housing deeds began in the nineteenth century and persisted into the twentieth century. By barring certain minority groups from purchasing properties that were for “whites only,” the covenants served as a means to keep neighborhoods racially segregated by preventing non-white people from purchasing property in a white (often confluently affluent) area.

In 1948, the U.S. Supreme Court declared in Shelley v. Kraemer that the prohibition of non-Caucasians from purchasing real estate property violates the Equal Protection Clause of the Fourteenth Amendment. Following the case, Congress enacted the Fair Housing Act of 1968, which prohibits housing discrimination on the basis of race or color, religion, sex, national origin, familial status, or disability. Nonetheless, the real estate industry, lending institutions, insurance companies, and other key figures in the housing industry continue to segregate neighborhoods in the United States today through racist practices such as redlining and blockbusting. These racial housing covenants should be removed from all deeds as they violate the Fair Housing Act and actively discriminate against minorities. This Note will argue the illegality of surviving racial covenants in housing deeds, which may be resolved through state legislatures creating accessible means for homeowners to dissolve the covenants.

I. II. III. IV. V.

INTRODUCTION.................................................................................. 38 RACIST HOUSING PRACTICES TODAY................................................ 39 THE HARM OF RACIAL COVENANTS .................................................. 41 THE ROLE OF FEDERAL AND STATE GOVERNMENTS ......................... 43 CONCLUSION ..................................................................................... 45

* B.S. Candidate for Business Administration with a Concentration in Finance. Fordham University, Gabelli School of Business, Class of 2024. It has been an honor to be a part of the Fordham Undergraduate Law Review. I would like to give particular thanks to my Senior Editor, Margaret Franzreb, who provided me invaluable feedback on this Note.

1

37

38

RACIAL COVENANTS IN HOUSING

[Vol. 5

I. INTRODUCTION Title VIII of the Civil Rights Act of 1968, the Fair Housing Act, prohibits housing discrimination on the basis of race, color, religion, sex, national origin, familial status, or disability.2 Specifically, the law prevents refusing to sell or rent property; indicating “preference, limitation, or discrimination”; representing an available property as unavailable; misrepresenting for profit; attempting “to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood,” all on the basis of race, color, religion, sex, or national origin.3 Racial covenants began in the nineteenth century and spread throughout the United States by the twentieth century. In the early-to-mid 1900s, developers, the Federal Housing Administration (FHA), and other housing organizations succeeded in structuring neighborhoods to fit the desired demographics through racial covenants in deeds and other discriminatory practices. The covenants have had a lasting and detrimental effect on minority groups in the United States, especially because of the power vested in housing deeds. A real estate title deed is a “document that vests ownership in a person and conforms to various requirements imposed by state law as to what must be contained on the deed.”4 Deeds are involved in every real estate transaction; they serve as proof of ownership and title transfer, as well as a legal description of the property. Because of this, deeds rarely change.5 Essentially, deeds serve as a notification to the public, creditors, and the government of the rights and transfer of rights, and also distinguish all ownership percentages with clauses into a property.

This Note will describe discriminatory housing practices in the twentieth century which persist today, primarily through banks, real estate agents, and other organizations. Section III will examine the harm of racial covenants, including low minority homeownership and lack of resources provided to

The Fair Housing Act, THE UNITED STATES DEPARTMENT OF JUSTICE (2021), https://www.justice.gov/crt/fair-housing-act-1.

3 Fair Housing Act of 1968, 42 U.S.C. § 3601-3619.

4 Law Offices of Stimmel, Stimmel & Roeser, The Basics of Real Estate Title Deeds, https://www.stimmel-law.com/en/articles/basics-real-estate-title-deeds.

5 Id. 2

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

39

non-white people.6 Section IV will explore the obligatory roles of the federal and state governments in preventing racist housing practices and alleviating harm from existing racial covenants.

II. RACIST HOUSING PRACTICES TODAY Racist housing practices prevail today, despite efforts to counteract these practices over the past century. In Buchanan v. Warley (1917), the Supreme Court of the United States (“the Court”) ruled that municipally mandated racial zoning in Louisville, Kentucky––preventing Black people from living in a majority white neighborhood––violated the Due Process Clause of the Fourteenth Amendment in the United States Constitution.7 However, as a result of the Court’s decision, many white people adopted private racial covenants, which quickly spread across the country. The Court decided nine years later in Corrigan v. Buckley (1926) that a private restrictive covenant in a Washington, D.C. neighborhood was legally binding; therefore, upon entering into a contract with a Black individual, the contract was void.8 In the first half of the 1900s, many developers intentionally built neighborhoods to serve the racial covenants. The FHA followed suit by offering loans to neighborhoods that actively enforced these covenants.

Lenders rationalized covenants on the basis that they acted as insurance on their investments, thus allowing them to deny loans to non-white people.9 While some middle– and upper–class minorities lived in primarily white areas––regardless of the prejudiced efforts from the FHA––many were barred from integrating into white communities by means of these practices.10 See generally Diane K. Levy & Claudia Aranda, More Than 50 Years After the Fair Housing Act, More Action Is Needed to Address Housing Discrimination Against Asian Americans and Pacific Islanders, URBAN INSTITUTE (April 30, 2021), https://www.urban.org/urban-wire/more-50-years-after-fair-housing-act-more-actionneeded-address-housing-discrimination-against-asian-americans-and-pacific-islanders; see generally Housing Discrimination Against Racial and Ethnic Minorities, U.S. Department of Housing and Urban Development (June 2013), https://www.huduser.gov/portal/publications/pdf/hud-514_hds2012.pdf.

7 Buchanan v. Warley, 245 U.S. 60 (1917).

8 Corrigan v. Buckley, 271 U.S. 323 (1926).

9 What are Covenants?, REGENTS OF THE UNIVERSITY OF MINNESOTA (2020), https://mappingprejudice.umn.edu/what-are-covenants/.

10 Richard R. W. Brooks, The Banality of Racial Inequality, 124 YALE L.J. 2022, 2640 (2015).

6

40

RACIAL COVENANTS IN HOUSING

[Vol. 5

Covenants also served as a mechanism for white landowners to prevent further integration where there was already a minority population.

Although the Fair Housing Act prohibits racial housing discrimination, racist attitudes continued to perpetuate discriminatory practices, such as redlining and blockbusting. Redlining occurs when institutions do not provide services––or provide unfavorable services––to certain areas because of its racial demographics.11 Banks were complicit in redlining policies in order to avoid loaning money to minorities within affluent areas. 12 This follows the belief that preventing minorities from living in predominantly white communities would protect property values, and thus, white people’s investments. Under this practice, brokers will falsify neighborhood information to non-white people by stating there are no properties available or that they should seek out another area; this leaves Black people and other minorities to live in disadvantaged areas.13 Because the government cannot afford to supply the basic needs of these communities––education, maintenance, public transportation, etc.––due to their small tax base and low property values, these areas can be classified as quantifiably disadvantaged.

Blockbusting is exercised by real estate brokers who ignite fear in white homeowners by asserting racial integration in their neighborhoods will cause property values to decline.14 Amine Ouazad, an assistant professor of economics at the Institut Européen d’Administration des Affaires (INSEAD) in France, examined white sensitivity to racial demographic changes in their neighborhoods. In doing so, he created a model that explains when it makes “business sense for a real-estate broker to trigger white flight” in homeowners.15 Ouazad’s model explains the motives behind broker’s blockbusting practices, which predicts that brokers will “only steer transition Fred Freiberg et al., Ending Racism in Residential Real Estate, FAIR HOUSING JUSTICE Center (2020), https://www.fairhousingjustice.org/wpcontent/uploads/2020/10/EndingRacismInResidentialRealEstate2020-FNL-WEB.pdf.

12 See generally Aaron Glantz & Emmanuel Martinez, Modern-Day Redlining: How Banks Block People of Color from Homeownership, CHICAGO TRIBUNE (Feb. 17, 2018), https://www.chicagotribune.com/business/ct-biz-modern-day-redlining-20180215story.html.

13 Fair Housing Act, supra note 1.

14 Kriston Capps, How Real-Estate Brokers Can Profit from Racial Tipping Points, BLOOMBERG (2015), https://www.bloomberg.com/news/articles/2015-03-03/a-new-paperexamines-blockbusting-and-how-real-estate-brokers-can-benefit-from-stoking-racial-fearsin-white-neighborhoods.

15 Id. 11

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

41

in all-white neighborhoods when (1) they face little competition from other brokers, (2) anti-black racism of white households falls in an intermediate range, and (3) the number of offers coming in from buyers is neither too high nor too low.”16 Many real estate agencies do not examine their policies to determine whether buyers and sellers face racial discrimination.17 This is especially true considering many agencies hire brokers as independent contractors, who are therefore not as frequently scrutinized in their practices. Because real estate is a commission-based industry, this lack of oversight may heighten tendencies from brokers to racially discriminate against customers for their own profit margins. Additionally, brokers do not receive routine training to update their ethics.18 Agencies must share an active role in combatting discrimination within the industry by updating their infrastructure to prevent brokers’ racist practices.

III. THE HARM OF RACIAL COVENANTS While racial covenants were illegalized under the Fair Housing Act, they still have a lasting discriminatory effect on the impacted communities. Prior to the Fair Housing Act, states relied on third-party vendors to voluntarily enforce racial covenants under threat of economic penalty if they failed to do so.19 Because there was a high expense associated with failure to comply with the covenant regulations, the vendors would either deny property sale to a non-white party or charge a surplus for the property as means of reimbursement for covenant breach.20 By maintaining their majority presence in their communities, historically white neighborhoods continue to be predominantly white today.21 And the same principle of historical segregation applies to predominantly Black districts, such as the Twin Cities region which has held a persisting racial disparity since 1990 because of racial covenants. The first appearing in Minneapolis in 1910, racial covenants spread throughout the city by pushing 16

Id. Freiberg et al., supra note 9.

18 Id. 19 Further on Unenforceability of Racial Restrictive Covenants - Barrows v. Jackson, 14 MD. L. REV. 87, 88 (1954).

20 Id. 21 Erika K. Wilson, Monopolizing Whiteness, 134 HARVARD L. REV. 2382, 2399 (2021).

17

42

RACIAL COVENANTS IN HOUSING

[Vol. 5

Black people into very small, densely non-white communities. While partially attributable to other factors (such as age, immigration profiles, and English skills), the effects of racial covenants can be seen today through the continual difference in employment, income, and homeownership between white and Black people in Minneapolis.22 Many minority families are prevented from living in white districts–– where there are generally higher quality education systems, safety ratings,23 and access to necessary resources––specifically because of the systemic gap in generational wealth and racist housing practices. In fact, the typical Black person lives in a neighborhood that is 35% white.24 This is in part because the Fair Housing Act did not account for racist zoning protocols, which allowed municipalities to prevent prospective buyers––primarily low-income non-white people––to live in a specific area for being seemingly undesirable.25 Furthermore, the Fair Housing Act failed “to address the lost opportunities for Blacks to accumulate wealth through housing as many white Americans did.”26 With a thirty-point gap, there is a significant homeownership disparity that persists between Black and white families of today. In fact, this number is greater than it was in 1968––the year of the Fair Housing Act.27 In the first quarter of 2020, only 44% of Black families were homeowners in comparison to 74.7% of white families.28 Black homeownership for college graduates is 56.4%, which is lower than white high school dropouts at 60.5%. 29 This continuing disparity, strengthened by a lack of resources allocated to nonwhite enclaves, indicates that governmental action has not effectively alleviated the discriminatory harm induced by racial covenants.

Metropolitan Council, Diving Deeper: Understanding Disparities between Black and White Residents in the Twin Cities Region, METROPOLITAN COUNCIL (Apr. 2016), https://metrocouncil.org/getdoc/03bd679d-21a4-455b-af7a-15309b0c71ae/Diving-DeeperUnderstanding-Disparities-Between-B.aspx.

23 See Lincoln Quillian & Devah Pager, Black Neighbors, Higher Crime? The Role of Racial Stereotypes in Evaluations of Neighborhood Crime, 107 AM. J. SOCIOL. 717 (2001).

24 Michela Zonta, Racial Disparities in Home Appreciation, CENTER FOR AMERICAN PROGRESS (2019), https://www.americanprogress.org/article/racial-disparities-homeappreciation/.

25 Wilson, supra note 19 at 2398.

26 Id. 27 Freiberg et al., supra note 9.

28 Id. 29 Id. 22

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

43

Not only are non-white people significantly less likely to be homeowners than their white counterparts, but they are barred from a litany of resources, services, and investments abundantly available to white people.30 Non-white communities are the greatest victims of environmental hazards and pollution, as they are more often exposed to highways and landfills.31 Furthermore, these communities “have less access to medical care, which translates into higher rates of infant mortality and premature births.”32 Many non-white people do not have access to the resources needed to create stability and success in their homes and communities, in part because they were deprived of the generational wealth that comes from homeownership.33 In fact, nonHispanic white people’s median net worth is ten times higher than the net worth of Black people.34 IV. THE ROLE OF STATE AND FEDERAL GOVERNMENTS State and federal governments are implementing laws in order to combat racist housing practices and to ensure equal opportunities for non-white people. For instance, the Department of Justice implemented Fair Housing Testing, a program designed to find and handle inequitable housing practices.

The program consists of individuals who “pose as prospective renters, borrowers, or patrons for the purpose of gathering information.”35 Through the Fair Housing Testing program, the Department has been able to resolve 110 pattern testing cases since 1992, recovering around $14.3 million in civil penalties and other damages.36 Several states are following suit in identifying racism in real estate. A New York State Senate legislative package advanced in response to two public hearings, twenty-five subpoenas, and a ninety-seven-page investigative report regarding Long Island’s inequitable housing practices.37 The bills drafted during this hearing include provisions to “implement fair 30

Id. What are Covenants?, supra note 7.

32 Id. 33 Wilson, supra note 19 at 2398.

34 Freiberg et al., supra note 9.

35 Fair Housing Act, supra note 1.

36 Id. 37 The New York State Senate, Senate Majority to Advance Legislative Package to Combat Housing Discrimination (2021), https://www.nysenate.gov/newsroom/pressreleases/senate-majority-advance-legislative-package-combat-housing-discrimination.

31

44

RACIAL COVENANTS IN HOUSING

[Vol. 5

housing practices, implicit bias training, compensatory relief to victims of housing discrimination, create an anti-discrimination housing fund, and increase required training.”38 The bill’s programs and regulations include annual and covert fair housing testing, implicit bias training, compensatory damages for victims of housing discrimination, an anti-discriminatory fund, and further standardized client procedures.39 The bill also will identify brokers who violate the law, will increase required broker training, and will apply surcharge fees.40 While the Fair Housing Act illegalized racial covenants, it did not require the removal of pre-existing covenants. The process of removing racial covenants from deeds is highly inaccessible and time-consuming: generally, homeowners will need to hire a lawyer and appear before court. However, several states are actively simplifying the process for homeowners to reverse their housing deeds’ history. In October 2018, Maryland introduced a law which allows homeowners and nonprofit entities to have racial covenants removed for free.41 In addition, the law requires that the governing body of a homeowner’s association remove restrictive covenants based on race, religious belief, or national origin “from the common area deeds or other declarations of property in the development.”42 Similarly, the California legislature proposed a bill that further addresses the insensitivity and illegality of racial covenants. The bill requires that “a title company, escrow company, real estate broker, real estate agent, or association that delivers a copy of a declaration, governing document, or deed to a person who holds an ownership interest of record in property” to include a Restrictive Covenant Modification form. It also authorizes the aforementioned parties to record the Restrictive Covenant Modification.43 Additionally, the proposed bill requires that each county recorder establishes a restrictive covenant program by July 1, 2022, to revise unlawful racial covenants. Governor Gavin Newsom approved this bill, which was filed with the California Secretary of State in September 2021.44

38

Id. Id. 40 Id. 41 MD Real Prop Code § 11B-113.3 (2018).

42 Id. 43 CA Real Prop Code § 12956.1-3, 27282, 27388.1-2 (2021).

44 Id. 39

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

45

V. CONCLUSION While the Fair Housing Act illegalized housing discrimination and the inclusion of racial covenants in deeds, it failed to adequately address the longlasting effects of racist patterns and practices in housing. Covenants provided grounds for unjustifiable discriminatory behavior toward non-white communities. Many of these practices––which deceive, harass, and discriminate against non-white people––still exist in the real estate industry today.

Cases such as Shelley v. Kraemer, Buchanan v. Warley, and Corrigan v.

Buckley demonstrate how frequently minority communities were treated unfairly in the housing process, regardless of their equal protection under the Fourteenth Amendment.45 Although these cases, among others, were filed prior to the Fair Housing Act, many continue to bring similar cases to court today in states across the country. Many neighborhoods separated by color across the United States, such as Long Island, are partly attributable to the same racial covenants that divided them decades prior.

Many minority enclaves are subject to governmental neglect, as the government fails to provide necessary resources and services to these areas.

These communities face great impediments: they experience heightened effects of environmental pollution, significant literacy and achievement gaps, as well as higher mortality and infertility rates. Minorities are victims to the perpetual cycle of discrimination, and it is difficult to escape without governmental support and reparations. In the twentieth century and today, the real estate industry has actively barred non-white communities from flourishing through practices that statistically lower the likelihood of minority homeownership.

Thus, federal and state governments have a legal obligation to allow homeowners to remove racial covenants easily and without charge. Many wish to erase the covenants––as they violate federal law––and many minorities continue to suffer from these deeds; yet they are still prevalent across the country. Racial covenants that exist today from decades––and possibly centuries prior––represent a deeply racist period in America’s history, and it is the duty of the governments and the housing industry to ensure that this history does not continue. *** This Note was edited by Margaret Franzreb.

45

Shelley v. Kraemer, 334 U.S. 1 (1948).

NOTE THE SILENCED VOTE: THE CONSTITUTIONAL LEGITIMACY OF FELON DISENFRANCHISEMENT Samantha Scott*

1

This Note argues that the U.S. Supreme Court should consider the Eighth Amendment to the United States Constitution in regard to criminal disenfranchisement to create a precedent for the future, reintroducing Jones v. DeSantis (2020). The Note will examine arguments regarding the constitutionality of felon disenfranchisement, analyzing the Fourteenth Amendment and why an argument invoking the Eighth Amendment would be more compelling. This Note then examines the question in Jones v. DeSantis under the Eighth Amendment and considers why this approach would be beneficial in the future.

I. II.

III. IV.

V.

VI.

INTRODUCTION.................................................................................. 47 BACKGROUND ON CRIMINAL DISENFRANCHISEMENT ....................... 48 A. Historical Usage of Criminal Disenfranchisement .............. 48 B. Current State of Felon Disenfranchisement ......................... 50 C. Jones v. DeSantis ................................................................. 51 FELON DISENFRANCHISEMENT UNDER THE FOURTEENTH AMENDMENT: HUNTER V. UNDERWOOD AND THE PRECEDENT FOR RACIALLY DISCRIMINATORY INTENTION .......................................... 52 THE CASE FOR FELON DISENFRANCHISEMENT UNDER THE EIGHTH AMENDMENT..................................................................................... 54 A. The Supreme Court’s Current Understanding of the Eighth Amendment ........................................................................... 54 B. Evolving Standards of Decency, Degree of Proportionality, and the Eighth Amendment .................................................. 54 C. Challenges of Using an Eighth Amendment Approach ........ 57 THE FUTURE OF FELON DISENFRANCHISEMENT IN THE SUPREME COURT .............................................................................................. 58 A. The Future of Jones v. DeSantis .......................................... 58 B. Implications of Jones v. DeSantis for the Supreme Court ... 60 CONCLUSION ..................................................................................... 60

* B.A. in International Political Economy and Political Science, Fordham University, Class of 2024. It’s an honor to be able to write my first note for the Fordham Undergraduate Law Review. This note is dedicated to my friends and family, but especially my dad, for inspiring me every day and challenging me to further my knowledge.

1

46

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

47

I. INTRODUCTION 5.2 million Americans cannot vote.2 The reason that 5.2 million citizens, who have been given this ‘inalienable right,’ have been deprived of the right to vote boils down to the basic fact that they have been convicted of a felony.

Felon disenfranchisement has long been an issue that the U.S. Supreme Court (also “the Court”) has dealt with and heard cases about, but the Court’s rulings are often on a case-by-case basis with no sweeping judgement that sets a precedent for future laws and cases. Without this precedent, states can decide how to proceed on felon disenfranchisement, creating a disparity in the legal system. State-by-state regulation widens the disparity between felons who have the right to vote despite their conviction and those who cannot vote due to their conviction. State voting regulations disproportionately disenfranchise Black and Latinx formerly incarcerated individuals due to the high rates of incarceration among these racial groups.3 Despite the various arguments that have been put forth on the constitutionality of felon disenfranchisement, the Supreme Court has consistently upheld the practice. An argument in the Court that bears the most weight, but is clouded with ambiguity, is an argument using the Eighth Amendment. The argument is that revoking someone’s right to vote even after fulfilling a sentence is a cruel and unusual punishment, and thus, unconstitutional under the Eighth Amendment. Through various Court decisions over decades, through various justices and opinions, the relationship between this Amendment and the constitutional or unconstitutional nature of felon disenfranchisement has remained ambiguous and is decided on a case-by-case basis.

Part I of this Note addresses the background of criminal disenfranchisement. It discusses the historical usage of criminal disenfranchisement in the United States and its roots, in addition to the present state of Supreme Court decisions on felon disenfranchisement. Part I also gives background on Jones v. DeSantis (2020), a case that was struck down by the Eleventh Circuit Court of Appeals, which should be re-examined See Chris Uggen et al., Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction, THE SENTENCING PROJECT (Oct. 30, 2020), https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-peopledenied-voting-rights-due-to-a-felony-conviction/.

3 Id. 2

48

THE SILENT VOTE

[Vol. 5

by the Court. Part II of this Note discusses the racially discriminatory impact of the Fourteenth Amendment, using Hunter v. Underwood (1985).

Ultimately, Part II demonstrates how its usage can no longer be the primary amendment used to challenge felon disenfranchisement laws. Part III of this Note discusses the Supreme Court’s current understanding of the Eighth Amendment and explores how the Court’s understanding could apply to felon disenfranchisement. This section also discusses the ideas of evolving standards of decency, degree of proportionality, and narrow proportionality in relation to the Eighth Amendment. Part III also expands on how this relates to Jones v. DeSantis and how the Court’s interpretation of this case under the Eighth Amendment would create a change in the constitutional standing of felon disenfranchisement. Part IV of this Note discusses the future of criminal disenfranchisement and its constitutionality. It discusses the implications of re-examining the Eighth Amendment in Jones v. DeSantis, as well as how this could play into the future legislation of states in regard to felon disenfranchisement. This Note argues that the Court should re-examine the usage of the Eighth Amendment and the Fourteenth Amendment in regard to the constitutionality of felon disenfranchisement by looking at Jones v.

DeSantis and creating a standard for constitutional precedents in the state legislature.

II. BACKGROUND ON CRIMINAL DISENFRANCHISEMENT A. Historical Usage of Criminal Disenfranchisement Disenfranchisement, or the decision of a court or the law to strip someone of their right to vote, has a long history in the United States, but its use goes far beyond U.S. borders. The origins of disenfranchisement as punishment stem from Ancient Greece and Medieval Europe, where disenfranchisement was used as a punishment for crimes related to morality.4 In Medieval Europe, the punishment was referred to as ‘civil death,’ a description that continues to be fitting for its modern-day form, in which those who are disenfranchised are removed from participation in civil structures in American society.5 See Christopher Haner, Felon Disenfranchisement: An Inherent Injustice, 26 J. CIV. RTS. & ECON. DEV. 911, 911 (2013).

5 Id. 4

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

49

The origins of criminal disenfranchisement in the United States have been estimated to be in the early 1600s, and it was easily held as a social norm during the founding of the United States. By 1821, eleven states had criminal disenfranchisement enshrined in their state constitutions.6 There have been several waves of development and expansion of restrictions on felons’ and ex-felons’ rights: one in the 1840s and one during the Reconstruction Era, serving as an expansion of Jim Crow laws in the American South.7 While not as much is known about the first wave of felon disenfranchisement, it seemingly followed the decline of restrictions on suffrage, such as owning property. During the Reconstruction Era, the second wave of felon disenfranchisement laws in state legislation took steps to discriminate against African Americans by harshly penalizing crimes that state legislatures believed were predominantly committed by African Americans and created stricter standards to regain the ability to vote.8 Until the 1960s and 1970s, felon disenfranchisement laws were seen as commonplace, a notion that was often confirmed by Supreme Court decisions.9 At the time, eighty percent of states had some level of felon disenfranchisement laws.10 With few exceptions, the Supreme Court upheld some of the strictest laws involving felon disenfranchisement, including several lifetimes bans on voting. Richardson v. Ramirez (1974) is a prime example of a case in which the Court upheld state laws that disenfranchised ex-felons.11 The case created a significant hurdle that obstructed the legal basis for felon disenfranchisement. The Fourteenth Amendment states that representation in the House of Representatives is proportional to the number of individuals who have the right to vote, but a qualification was added that the provision does not apply for those who were convicted of “rebellion or other crimes.”12 This meant that the laws were narrowly tailored to state interests to ensure they were constitutional and to distinguish felon

Id. at 912.

See Alec C. Ewald, Civil Death: The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 WIS. L. REV. 1045, 1063 (2002).

8 Id. at 1090.

9 Ewald, supra note 4, at 1066.

10 Id. at 1065.

11 Id. at 1071.

12 U.S. CONST. amend. XIV. § 2.

6 7

50

THE SILENT VOTE

[Vol. 5

disenfranchisement from other forms of voting restrictions.13 In Chief Justice William Rehnquist’s majority opinion in Richardson, he wrote about the Equal Protection Clause and its relation to criminal disenfranchisement, stating that the Fourteenth Amendment “obviated any need to justify it with a compelling state interest” and the Section 1 of the Fourteenth Amendment “could not have meant to bar outright a form of disenfranchisement which was expressly allowed by the following section.”14 With this decision set a precedent, the Fourteenth Amendment became inapplicable as a means to justify the unconstitutionality of felon disenfranchisement.15 B. Current State of Felon Disenfranchisement The current state of felon disenfranchisement laws in the United States is ambiguous and varies from state to state. Beginning in the 1970s, some states relaxed their felon disenfranchisement laws of their own accord, but the Supreme Court has yet to make a major ruling on the constitutionality of felon disenfranchisement and has continued to rule on a case-by-case basis.16 Many states have laws allowing felon disenfranchisement to varying degrees. At the time of publication, there are four states that have laws that disenfranchise felons for life with certain convictions.17 Thirty-five states prohibit citizens with a felony conviction on parole from voting, and of those states, thirty-one states prohibit felons who are on probation from voting.18 The continuation of these practices coupled with the expansion of the criminal justice system See Richardson v. Ramirez, 418 U.S. 24 (1974); see also Lauren Latterell Powell, Concealed Motives: Rethinking Fourteenth Amendment and Voting Rights Challenges to Felon Disenfranchisement, 22 MICH. JOUR. OF RACE AND L. 383, 387 (2017).

14 Id. 15 Cf. Abigail M. Hinchcliff, The ‘Other’ Side of Richardson v. Ramirez: A Textual Challenge to Felon Disenfranchisement, 121 YALE L. J. 194, 208 (2011) ( “The Ramirez decision has been much criticized by legal scholars. The vast majority of scholarly critiques argue that Ramirez was wrongly decided or wrongly reasoned. Most post-Ramirez challenges to felon disenfranchisement statutes have urged the court to overturn Ramirez and have failed.”).

16 See Haner, supra, note 3 at 911.

17 See Felony Disenfranchisement Laws (Map), AMERICAN CIVIL LIBERTIES UNION (2021), https://www.aclu.org/issues/voting-rights/voter-restoration/felony-disenfranchisementlaws-map.

18 See Restoration of Voting Rights for Felons, NATIONAL CONFERENCE OF STATE LEGISLATURES (June 28, 2021), https://www.ncsl.org/research/elections-andcampaigns/felon-voting-rights.aspx.

13

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

51

and practice of mass incarceration has led to an increase in the number of individuals being disenfranchised and has caused the number of citizens unable to vote to rise exponentially. Denying someone the right to vote, whether the state’s intention is to be punitive or whether it is a collateral consequence of a felony, has created a punitive effect, nonetheless.

C. Jones v. DeSantis In November of 2018, sixty-five percent of Florida residents voted to approve Amendment 4, an amendment to the Florida Constitution that would restore voting rights to 1.4 million Floridians (with the exception of felons who had been convicted of murder or a sexual offense).19 Prior to this, Florida permanently disenfranchised citizens who had been convicted of any felony offense. However, in June of 2019, Florida Governor Ronald DeSantis signed Senate Bill 7066 into law, which prohibits felons from voting unless they have paid off all legal financial obligations.20 The new law disenfranchised 774,000 Florida citizens due to the overwhelming majority of felons that could not afford to pay what they owe.21 It was also found that Black Floridians were more likely to owe money and owe a larger amount of money, which is why the plaintiff in Jones v. DeSantis argued the law was unconstitutional under both the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment.22 The U.S. District Court for the Northern District of Florida issued a ruling in May of 2020 finding that Florida’s system under Senate Bill 7066 was unconstitutional in part.23 However, upon appeal to the Eleventh Circuit in E.g., Litigation to Protect Amendment 4 in Florida, BRENNAN CENTER FOR JUSTICE (Sept. 11, 2020), https://www.brennancenter.org/our-work/court-cases/litigation-protectamendment-4-florida; see also Eliza Sweren-Becker, Florida Law Throws Voter Rights Restoration into Chaos, BRENNAN CENTER FOR JUSTICE (July 11, 2019), https://www.brennancenter.org/our-work/analysis-opinion/florida-law-throws-voter-rightsrestoration-chaos.

20 Sweren-Becker, supra note 17.

21 Litigation to Protect Amendment 4 in Florida, supra note 17.

22 E.g., Kevin Morris, Expert Brief: Thwarting Amendment 4, BRENNAN CENTER FOR JUSTICE (May 9, 2019), https://www.brennancenter.org/our-work/researchreports/thwarting-amendment-4 (“Of the formerly incarcerated Floridians who register to vote between January and March, more than 44 percent self-identified as Black. By contrast, just 13 percent of all Floridians registered to vote are Black”).

23 Jones v. DeSantis, 462 F. Supp. 3d 1196 (N.D. Fla. 2020).

19

52

THE SILENT VOTE

[Vol. 5

July of 2020, an issue was ordered that reversed the District Court’s ruling.24 The application to vacate stayed the decision of the Eleventh Circuit was filed to the Supreme Court, but it was denied in a split vote. Currently, Senate Bill 7066 is still in effect and continues to disenfranchise hundreds of thousands of Floridians.25 III. FELON DISENFRANCHISEMENT UNDER THE FOURTEENTH AMENDMENT: HUNTER V. UNDERWOOD AND PRECEDENT FOR RACIALLY DISCRIMINATORY INTENTION In Hunter v. Underwood, the plaintiffs challenged Alabama’s felon disenfranchisement provision under the Fourteenth Amendment’s Equal Protection Clause, arguing that Article VIII, Section 182 of the Alabama Constitution was adopted with the intention of disenfranchising African American voters.26 The Article in question barred individuals who had committed crimes of “moral turpitude” from voting.27 The State claimed it had additional motivation to disenfranchise poor white Americans, and therefore there was not a basis to claim that it was solely discriminatory against African American voters, so the law should be upheld. 28 The Court held that normal equal protection analysis applied, and that the proper test to decide would be whether or not there was a discriminatory impact in addition to discriminatory intent.29 Using this test, the Court found that the section of the Alabama Constitution discriminated against African Americans and, therefore, the law was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.30 The case of Hunter v. Underwood affirmed that the Supreme Court could recognize racially motivated or discriminatory measures that are often present in felon disenfranchisement laws. It also affirmed a test that was But see Jones v. DeSantis, 410 F. Supp. 3d 1284 (11th Cir. 2019).

See generally Jones v. Governor of Florida: Eleventh Circuit Upholds Statute Limiting Constitutional Amendment on Felon Reenfranchisement, 134 HARV. L. REV. 2291, 6 (2021).

26 See Hunter v. Underwood, 471 U.S. 222 (1985) (Rehnquist, C.J., delivering); see generally William Walton Liles, Challenges to Felony Disenfranchisement Laws: Past, Present, and Future, 58 ALA. L. REV. 615, 621 (2007).

27 Liles, supra note 24 at 621.

28 Id. 29 Id. 30 Id. 24 25

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

53

created in Village of Arlington Heights v. Metropolitan Housing Development Corporation (1977),31 which concluded that discriminatory results alone are not sufficient to support a Fourteenth Amendment violation under the Equal Protection Clause. The Court in Village of Arlington Heights held that only state action with discrimination as a motivating factor can qualify as a violation of the Equal Protection Clause of the Fourteenth Amendment.

When looking at cases with discriminatory results, such as in the case of Jones v. DeSantis, the Court should reconsider looking at the discriminatory intent in addition to the discriminatory results of the law.

While Hunter v. Underwood helps to present key precedent about racially motivated intentions and impacts of laws, there are still few successful cases involving the Equal Protection Clause of the Fourteenth Amendment.32 After the Hunter decision, the Fifth Court of Appeals created wiggle room in the decision by determining that even if a law was enacted with discriminatory intent, the law can still be deemed constitutional if there have been actions taken since the enactment of the law in question to show that such intent no longer exists.33 This decision has made challenges to felon disenfranchisement laws under the Equal Protection Clause particularly difficult,34 and these challenges are increasingly complicated when coupled with the issues of the Court’s decision in Richardson v. Ramirez. Thus, when discussing felon disenfranchisement, it is imperative to turn to other constitutional amendments to deem such laws unconstitutional.35

See Arlington Heights v. Metropolitan Housing Dev. Corp. 429 U.S. 252 (1977) (“Official action will not be held unconstitutional solely because it results in a racially disproportionate impact. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination”).

32 Id. 33 Contra Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998); see generally Liles, supra note 16.

34 Richardson, 418 U.S. at 24.

35 See generally Lauren Latterell Powell, Concealed Motives: Rethinking Fourteenth Amendment and Voting Rights Challenges to Felon Disenfranchisement, 22 MICH. JOUR. OF RACE AND L. 383, 387 (2017).

31

54

THE SILENT VOTE

[Vol. 5

IV. THE CASE FOR FELON DISENFRANCHISEMENT UNDER THE EIGHTH AMENDMENT Even though using the Fourteenth Amendment has failed before the Supreme Court in felon disenfranchisement cases, the Eighth Amendment could be used to examine the unconstitutionality of felon disenfranchisement.

A. The Supreme Court’s Current Understanding of the Eighth Amendment The Eighth Amendment to the U.S. Constitution states that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”36 The Amendment protects U.S. citizens from the federal or state governments inflicting overly punitive measures.

The Cruel and Unusual Punishment Clause has always been the more ambiguous, and thus more controversial, part of the Eighth Amendment, especially pertaining to its application to non-capital crimes. This ambiguity stems from the open-ended nature of the clause, which leaves its interpretation up to the Court. What the Court decides to count as “cruel and unusual punishment” will never be entirely uniform since there is no standard measurement. The Court’s changes over time, particularly as the members and opinions of the Court change, have created unreliable and contradicting versions of what the Court believes is cruel and unusual punishment. This issue makes arguing for a law’s constitutionality using the Eighth Amendment particularly tricky.

B. Evolving Standards of Decency, Degree of Proportionality, and the Eighth Amendment One way in which the Court can interpret the Constitution and the Eighth Amendment is to not look at it as a fixed idea, but through the idea of evolving standards of society and a changing interpretation of the Constitution. If the Court chooses to look at the Constitution from this viewpoint, there is a strong case that a punishment that may have been viewed as constitutional when

36

U.S. CONST. amend. VIII.

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

55

enacted would not be viewed as constitutional by modern standards of decency or constitutionality.

A case that involves the Eighth Amendment and evolving standards of decency is Trop v. Dulles (1958). In Trop, the petitioner, a natural-born citizen of the United States, was declared to have lost his citizenship under Section 401(g) of the Nationality Act of 1940, a federal statute.37 Section 401(g) was a civil statute that decreed that one would be punished with the forfeiture of citizenship if one was found to have deserted his post in the military.38 The statute was based on one that was created during the Civil War, whereas the case in question occurred in the 1950s.39 The question that was posed to the Court was whether denationalization could be inflicted as punishment, and the Court found that the Eighth Amendment forbade Congress from punishing someone by revoking their citizenship, citing that it was cruel and unusual punishment.40 Trop v. Dulles speaks to several key points about the Eighth Amendment and penal, non-capital punishments, but also to the evolving standard of decency in the interpretation of the Eighth Amendment. Firstly, the decision in Trop says that denationalization is too punitive of a punishment and that taking away someone’s duties and obligations as a citizen is not something that may be taken away by Congress.41 In the majority opinion in Trop, Chief Justice Earl Warren wrote that “citizenship is not a license that expires upon misbehavior,” elaborating further that taking away even the duties of citizenship as a punitive measure is too extreme and detrimental to the wellbeing of the nation.42 Secondly, Trop v. Dulles speaks to the evolving standards of decency in regard to the Eighth Amendment. Later in the majority opinion, Chief Justice Warren wrote that “the basic concept of the Eighth Amendment is nothing more than the dignity of man.”43 The same statute that was being questioned by the Supreme Court was seen and accepted as constitutional during the Civil War. It was not until the general population believed revoking citizenship was a form of cruel and unusual punishment that this statute was Trop v. Dulles, 356 U.S. 86, 88 (1958).

Id. 39 Id. at 89.

40 Id. at 91, 114.

41 Id. at 114.

42 Id. at 92.

43 Id. at 100.

37 38

56

THE SILENT VOTE

[Vol. 5

challenged in the Court. Applying modern context to legal precedent speaks to the idea of evolving standards of decency and what it means for something that was commonly accepted in the past to evolve into something unconstitutional in the present.

However, it is important to note that felon disenfranchisement is specifically discussed in Trop v. Dulles and the use of felon disenfranchisement was not considered a punishment in the eyes of the Court.

Trop v. Dulles brings up the question of evolving standards of decency—that while it may not have been applied to the issue of disenfranchisement by the Court in the 1950s, it could be applied to it today. One can look at the current status of felon disenfranchisement and raise the same question as in Trop yet rightfully come to an entirely different conclusion.

In today’s society, 81.7% of people feel that the right to vote should be restored to convicted felons at some point.44 Only 15.5% of people feel that lifetime disenfranchisement is a valid punishment.45 This shows that in modern society, the policy of using disenfranchisement, particularly lifetime disenfranchisement, is no longer seen as acceptable. Consequently, modern public opinion shows a great shift since the 1970s and points to a change in how the courts should view felon disenfranchisement in the lens of evolving standards of decency.

Another key understanding to the Eighth Amendment is the degree of proportionality between non-capital offenses and their subsequent punishments. A key case regarding this issue is Solem v. Helm (1983), in which the petitioner was convicted of using a ‘no-account’ check for $100.46 In typical cases in South Dakota, the maximum punishment for a crime of this nature was five years imprisonment and a $5,000 fine.47 However, in this case, the petitioner was sentenced to life in prison without the possibility of parole, due to his prior convictions.48 The question posed to the Court was whether the punishment violated the Cruel and Unusual Punishment Clause of the Eighth Amendment, which the Court said that it did.49 See Brian Pinaire et al., Barred from the Vote: Public Attitudes Toward the Disenfranchisement of Felons, 30 FORDHAM URB. L.J. 1519, 1540 (2003).

45 Id. at 1541, 1544.

46 See Solem v. Helm, 463 U.S. 277 (1983); see generally Steven Grossman, Proportionality in Non-Capital Sentencing: The Supreme Court's Tortured Approach to Cruel and Unusual Punishment, 84 KY. L.J. 107, 126 (1995).

47 Solem, 463 U.S. at 281.

48 Id. 49 Id. at 279.

44

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

57

The Court held that the Eighth Amendment’s Cruel and Unusual Punishment Clause does not just prohibit barbaric punishments, but also sentences that were disproportionate to the crime that was committed.50 In the decision, the Court gave objective criteria to help guide other courts’ proportionality analysis. These criteria included the gravity of the offense, the sentences that had been imposed on other criminals in the same jurisdiction, and the sentences imposed for the same crime in other jurisdictions.51 Essentially, the Court wanted judges to look at both the individual case (the gravity of the offense) and the way it compares to related sentencing.

Using this evidence, the Court found that the punishment in Solem v.

Helm was grossly disproportionate for the crime that was committed. Using this precedent allows a court to examine the constitutionality of a punishment using the criteria established by the Supreme Court in this case.

C. Challenges of Using an Eighth Amendment Approach There are challenges associated with claiming laws to be unconstitutional under any amendment, and the Eighth Amendment is no exception. First, the Court operates on a case-by-case basis when evaluating the Eighth Amendment. In other cases such as Roper v. Simmons (2005), what has been defined as cruel and unusual punishment by the Court has changed from caseto-case. This has made it tricky to declare laws unconstitutional using Eighth Amendment precedent.

Felons also must be able to prove to the Court that the punishment of disenfranchisement is cruel and unusual or is a disproportionate punishment for their offense. Due to the case-by-case basis that the Court currently operates under, it is much harder for felons to be able to prove that the punishment of disenfranchisement, or ‘civil death,’ is a disproportionate or a cruel and unusual punishment.52 Each case is treated separately and is reviewed independently, which means the actions the Court makes are varied and not uniform.

Despite the inaction by the Supreme Court, some states have made their own choices and evolved their laws to mitigate or eliminate felon Id. at 284.

Id. at 290-291.

52 Id. at 968 (“Sole reliance on the Court’s ‘independent judgement’. . . would be standardless and potentially antidemocratic.”).

50 51

58

THE SILENT VOTE

[Vol. 5

disenfranchisement altogether. In Maine and Vermont, there are no restrictions on felons and their voting rights, even ones who are in prison.53 There are an additional seventeen states that only limit the restrictions of felon voting rights to current prisoners.54 However, the inaction in the Supreme Court enables states to have a disproportionate number of citizens who are unable to vote. The lack of uniformity at the federal level enables states to act in this way and creates high rates of felon disenfranchisement in states such as Mississippi.

V. THE FUTURE OF FELON DISENFRANCHISEMENT IN THE SUPREME COURT A. The Future of Jones v. DeSantis The key fault in Jones v. DeSantis was the usage of the Fourteenth Amendment to argue the unconstitutional nature of the law in question.55 Under the tests developed by Village of Arlington Heights and Hunter,56 discriminatory results of a law alone are not sufficient enough to violate the Equal Protection Clause of the Fourteenth Amendment. The case of Jones v.

DeSantis has to be able to prove that Senate Bill 7066 had discriminatory intent in its passage beyond the discriminatory results. Even if Black Floridians are more likely to owe money than others, the bill states that all people with felony convictions must pay their legal financial obligations before being able to vote, regardless of race or financial status. There is no discriminatory intent present, even if the bill produces discriminatory results.

Furthermore, the inapplicability of the Fourteenth Amendment in arguing against felon disenfranchisement has been present since Richardson v.

Ramirez, which has distinguished felon disenfranchisement from other forms of voting restrictions that could be seen as discriminatory in the eyes of the Court.57 The case also created the opinion that Section 1 of the Amendment was not meant to outright bar a form of disenfranchisement because it is expressly allowed in Section 2 of the Amendment. Richardson v. Ramirez reminds us that it is difficult to use the Fourteenth Amendment in felon See Restoration of Voting Rights for Felons, supra note 17.

Id. 55 Jones v. Governor of Florida, supra note 15 at 9.

56 Hunter, 471 U.S. at 22.

57 Richardson, 418 U.S. at 24.

53 54

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

59

disenfranchisement cases, given current precedent.58 It is not shocking to hear the results from the Eleventh Circuit given these previous decisions and literature.

An argument under the Eighth Amendment instead of the Fourteenth Amendment could be a far more fitting argument for Jones v. DeSantis. The Eighth Amendment, while at times ambiguous, provides several different lenses that could be argued for why Senate Bill 7066 is unconstitutional.

First, with 67% of Floridians supporting the reinstatement of felons’ voting rights with Amendment 4 in 2018, there is an argument for evolving standards of decency that was proposed in the Trop v. Dulles decision. The previous punishment of disenfranchising all felons for life is no longer viewed as a decent or necessary punishment by the citizens of Florida. This creates the argument that the punishment created is seen as cruel and unusual by the standards set in society, which would make it unconstitutional. There are also further arguments within the Eighth Amendment that can be applicable. The degree of proportionality argument, while mostly applied to individual cases that are brought before the Court, could be used to compare the punishment in Senate Bill 7066 to other punishments that states use, which would be using one of the criteria of similar cases in the judicial system. Currently, only three other states in addition to Florida have conditions for voting eligibility dependent on the repaying of legal financial obligations. This creates an argument that the punishment of payment is disproportionate, due to the fact that other states in the judicial system do not require this to regain their voting rights.59 The usage of the Eighth Amendment in the argument against felon disenfranchisement in Jones v. DeSantis could prove beneficial for the argument of the unconstitutionality of Senate Bill 7066.

58

Id. See Jean Chung, Voting Rights in the Era of Mass Incarceration: A Primer, THE SENTENCING PROject (Apr. 28, 2014), https://www.sentencingproject.org/publications/felony-disenfranchisement-laws-in-theunited-states/ (In the data provided involving voting restrictions in 2021, only three states and Puerto Rico have no restrictions on voting rights. Currently, eleven states have voting rights restrictions on all felons in prison, parole, probation, and post-sentence. Fifty-eight percent of the disenfranchised population in the United States comes from these eleven states with the most restrictive voting rights laws.).

59

60

THE SILENT VOTE

[Vol. 5

B. The Implications of Jones v. DeSantis for the Supreme Court Using the Eighth Amendment for Jones v. DeSantis is fitting, but it also presents the opportunity for the Court to create more definitive and consistent precedent involving the Eighth Amendment and the cruel and unusual punishment clause. The Eighth Amendment currently operates on a case-bycase basis with little to no precedent, which partially stems from the ambiguous nature of the clause, but the inaction of the Supreme Court to create the precedent for the states is largely to blame. There may be no standard measure that could be made that would adequately decide what is cruel and unusual, but there should be a level of uniformity or basis at the federal level to the way states choose to penalize their citizens.

If the Supreme Court would choose to look at the case of Jones v.

DeSantis upon appeal or with a new argument under the Eighth Amendment rather than the Fourteenth Amendment, the Supreme Court could create a basis that is not reliant on a case-by-case basis, but rather on a basis that has criteria that other courts can replicate in their decisions. Giving the courts the tools to interpret the Eighth Amendment would allow it to become more applicable and far less ambiguous than its current state in the Court.

V. CONCLUSION In his decision in Reynolds v. Sims (1964), Chief Justice Warren wrote, “[t]he right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restriction on that right strikes at the heart of representative government.”60 Felon disenfranchisement laws have been silencing far too many citizens from expressing their right to vote. It is time to reexamine these outdated and punitive laws and restore a voice that the government has silenced.

Felon disenfranchisement is a punishment that breaks a key pillar of democracy: the right to vote. It is a punishment that has gone on far too long, is overly punitive, and affects a disproportionate amount of people in the United States. In a country with a crisis of mass incarceration, the effects of mass incarceration have far-reaching consequences on elections and the choices being made that affect the United States.

60

Reynolds v. Sims, 377 U.S. 533, 555 (1964).

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

61

At first glance, the Fourteenth Amendment seemingly provides the basis for which felon disenfranchisement could be proven unconstitutional due to the often discriminatory consequences of these laws, but the Court has created far too much precedent and uneven decisions that make the Fourteenth Amendment inapplicable to the issue of felony disenfranchisement today. The Eighth Amendment, even though it is slightly more ambiguous in the eyes of the Court, holds the potential for cases to create a constitutional precedent to get rid of felon disenfranchisement nationally. The usage of evolving standards of decency and degrees of proportionality through the modern lens of the Constitution would allow the Court to reexamine the issue of felon disenfranchisement as a cruel and unusual punishment. Using a modern viewpoint of the Constitution, the Court should find that felon disenfranchisement is an overly punitive measure and falls under the Cruel and Unusual Punishment Clause of the Eighth Amendment, and thus is unconstitutional.

The Court should re-examine the case recently overturned in the Eleventh Circuit, Jones v. DeSantis, in which the plaintiffs made the mistake of using the Fourteenth Amendment as their key argument for the unconstitutionality of the law. Using a new argument for its unconstitutionality under the Eighth Amendment, the Court may be able to create a constitutional precedent that will diminish the ambiguity of the Eighth Amendment and create a federal standard for felon disenfranchisement. *** This Note was edited by Katherine Timofeyev.

NOTE THE EXTENT TO WHICH AMERICAN VOTING RIGHTS ARE PROTECTED Elizabeth Lebci*

1

The right to vote is a core principle of American democracy, and yet, it is not fundamentally protected by the federal government nor the Supreme Court of the United States. The Voting Rights Act (VRA) was passed in 1965 to prevent discriminatory voting laws from being passed in states as the country was witnessing an epidemic of racist voting policies. This piece of legislation and its sections have been contested in court throughout its existence. This Note will evaluate the VRA and its contested issues, as it is seen as infringing on the reserved powers of the states. However, South Carolina v. Katzenbach (1966) upheld the constitutionality of the Act’s preclearance provision in Section 5 as discrimination in this country persisted and Congress’s action was still deemed necessary. Despite this instance, the Court then exhibited a shift in protecting citizens to protecting the powers of states in Reno v. Bossier Parish School Board (1965) and Shelby County v. Holder (2013). This Note will contextualize this federalist shift with an analysis of the Court’s decision in Shelby County to strike down the Act’s Section 5 preclearance provision, leaving Section 2 vulnerable to attack and the entire VRA at risk. As a result, an influx of discriminatory voting laws were passed in these Section 5 states now as a “Post-Shelby” era of voting. As a result of Congress’s failure to secure Section 2 of the Act, the Court heard Brnovich v. Democratic National Committee (2021) and rewrote the language of the section through judicial “guideposts.” This Note will argue the precariousness of American voting rights is reflected in Supreme Court decisions in Shelby County and Brnovich exhibiting a shift in protecting states’ rights as opposed to a citizen’s right to vote, therefore demanding secure voting legislation in the Constitution of the United States.

* B.A. Candidate for Political Science and Sociology with a minor in American Studies, Fordham College at Rose Hill, Class of 2023. My time as the Vice President of the PreLaw Society and Business Administrative Assistant for the Fordham Undergraduate Law Review has been inspiring and educational. It has been an honor to write and edit for the Fordham Undergraduate Law Review and learn from my peers’ intelligence.

1

62

2021] I. II. III. IV. V.

FORDHAM UNDERGRADUATE LAW REVIEW

63

INTRODUCTION.................................................................................. 63 THE VOTING RIGHTS ACT: WHAT IS IT? ........................................... 64 A. VRA in the Court: South Carolina v. Katzenbach ................ 66 B. VRA in the Court: Reno v. Bossier Parish School Board .... 67 POST-SHELBY VOTING ERA AND ITS IMPORTANCE............................. 69 A. Shelby County v. Holder ...................................................... 69 B. Post-Shelby Era ................................................................... 70 BRNOVICH V. DEMOCRATIC NATIONAL COMMITTEE............................. 71 CONCLUSION ..................................................................................... 74 I. INTRODUCTION

The right to vote, although fundamental to our democracy, has been controversial since the framers devised the Constitution of the United States.

The right to vote carries complex conditions and the Framers struggled to determine who should be granted the right to vote. The framers were uncertain as to who to grant this power to, due to the fact that if only those who owned property were allowed to vote, the majority would be neglected.

However, if those who did not own property were allowed to vote, it would disadvantage those who owned property. This led to the beginning of American voting in which only white property-owning men could vote.2 Although the U.S. Constitution has been amended to allow all American citizens, with varying exceptions, the right to vote, it is not fundamentally protected by the American Constitution. Did the Framers construct voting rights intentionally because of the fear that American voters would be unqualified to make decisions on representation? Despite this question, voting is fundamentally a right, not a privilege. Article I Section 4 of the U.S. Constitution gives states the right to determine the time and place of elections.3 States began abusing this right when African Americans were granted the right to vote by the Fifteenth Amendment in 1870, which prohibited voting discrimination based on “race, color, or previous condition of servitude.”4 This was the first explicit protection of voting rights, but states violated the protection through discriminatory voting laws such as poll taxes, See The Founders and the Vote, LIBRARY OF CONGRESS, https://www.loc.gov/classroommaterials/elections/right-to-vote/the-founders-and-the-vote/.

3 U.S. CONST. art. I, § 4.

4 U.S. CONST. amend. XV. 2

64

PROTECTION OF VOTING RIGHTS

[Vol. 5

and literacy tests. In 1864, Congress enacted the Twenty-Fourth Amendment to prohibit election taxes.5 Despite these actions, discriminatory state voting laws continued, resulting in Congress’s enactment of the Voting Rights Act (VRA) of 1965 to reinforce the protections in the Fifteenth Amendment. The VRA was intended to strengthen the protections in the Fifteenth Amendment, specifically in the most discriminatory states at the time. The Supreme Court of the United States (also “the Court”) has been presented with the issue of voting rights and their protections on multiple occasions, but the Court’s decisions in Reno v. Bossier Parish School Board (1997), South Carolina v.

Katzenbach (1996), and Shelby County v. Holder (2013) set the most notable precedents on the issue of voting rights. Shelby County specifically lightened protections against voting discrimination and a “post-Shelby” era ensued as states began making voting harder for many Americans.6 Shelby County left Section 2 of the VRA vulnerable, and the 2021 ruling in Brnovich v.

Democratic National Committee has weakened American voting rights protections as the Supreme Court continues to reconstruct the VRA. This Note will document the history and text of the VRA and its challenges in the Court. This Note will then evaluate how the decisions in Shelby County and Congress’s failure to secure the Act has led to the Court’s weakening of Section 2 of the VRA in Brnovich. American voting rights are not fundamentally protected in the Constitution and do not appear to be adequately protected by the federal government nor the Supreme Court. This Note will argue the precariousness of American voting rights is reflected in Supreme Court decisions in Shelby County and Brnovich, exhibiting a shift in protecting states’ rights as opposed to a citizen’s right to vote, therefore demanding secure voting legislation in the U.S. Constitution.

II. THE VOTING RIGHTS ACT: WHAT IS IT? The Voting Rights Act of 1965 was passed by Congress to enforce the Fifteenth Amendment’s protections, as Congress believed the existing antidiscrimination voting laws were not effective.7 The VRA contains different U.S. CONST. amend. XXIV. See Lydia Hardy, Voter Suppression Post-Shelby: Impacts and Issues of Voter Purge and Voter ID Laws, 71 MERCER L. REV. 857 (2020).

7 See History of Federal Voting Rights Laws, THE UNITED STATES DEPARTMENT OF JUSTICE (2017), https://www.justice.gov/crt/history-federal-voting-rights-laws.

5 6

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

65

sections to ensure different protections. Section 2 and Section 5 of the VRA have been the most controversial in the Supreme Court as seen in Shelby, Katzenbach, and Brnovich. Section 2 of the VRA applies “a nationwide prohibition against the denial or abridgment of the right to vote on the literacy tests on a nationwide basis.”8 The language of Section 2 subsection (b) establishes: A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.9

The phrase “totality of circumstances” has been contested in the Supreme Court on multiple occasions to evaluate the legality of state election laws. An instance of this challenge can be evaluated in the Supreme Court’s ruling in Brnovich, which will later be analyzed. Despite the challenges to Section 2, this provision of the VRA has remained consistent in comparison to challenges to Section 5 of the VRA.10 Congress wrote Section 5 to target states in which election discrimination was highest in the country at the time.

This provision lasted five years before being revised; however, the original provision restricted the election laws passed in Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia.11 Congress utilized Section 5 to account for the states in the country where discrimination was the greatest by restricting these areas’ ability to enact changes to voting laws. In order to enact changes to their existing voting laws, these states need approval from the State Attorney General or by the United States District Court of the District of Columbia to determine “that the change did not have a discriminatory purpose and would not have a discriminatory effect.”12 This Section was highly controversial considering the targeting of specific states and the limitation of their enumerated powers to pass election laws. States have challenged this provision in the Supreme Court on varying occasions; however, South Carolina v. Katzenbach has been a more notable decision as 8

Id. Voting Rights Act of 1965, 52 U.S.C. 10301§ 2(a).

10 See History of Federal Voting Rights Laws, supra note 6.

11 Id. 12 See History of Federal Voting Rights Laws, supra note 6.

9

66

PROTECTION OF VOTING RIGHTS

[Vol. 5

the Court began revising the language of the VRA. Following Katzenbach, the Court began revising Section 5 and Section 2 in cases such as Shelby County and Brnovich. This Note will focus on Section 2 and Section 5 of the VRA due to the controversy surrounding Section 5 and the recurring threat to these provisions in the Court.

A. VRA in the Court: South Carolina v. Katzenbach In 1966, the Supreme Court was presented with a bill of complaint from South Carolina claiming provisions of the VRA violated the rights reserved to the states and sought an injunction from enforcement of the Act. South Carolina argued the provisions of the Act exceeded the powers of Congress, focusing on Section 2 and Section 5 of the VRA. The Court ruled: The Act creates stringent new remedies for voting discrimination where it persists on a pervasive scale, and in addition, the statute strengthens existing remedies for pockets of voting discrimination elsewhere in the country. Congress assumed the power to prescribe these remedies from § 2 of the Fifteenth Amendment, which authorizes the National Legislature to effectuate by ‘appropriate’ measures the constitutional prohibition against racial discrimination in voting.13

The Court’s ruling in this instance upheld the VRA under the power of the Fifteenth Amendment. The Court supported the legality of Section 5 of the VRA on the basis of the discriminatory history of the prescribed states.

Therefore, Congress’ decision to restrict these specific states was an “appropriate” action under the Fifteenth Amendment.14 This was an important ruling due to the controversy surrounding Section 5 of the VRA, supporting Congress’ protections of the Fifteenth Amendment’s intention.

The Court noted in their opinion “the Voting Rights Act of 1965 reflects Congress’ firm intention to rid the country of racial discrimination in voting.”15 Congress wrote the VRA with the intent to remove instances of racial discrimination in voting throughout the United States through the provisions of the Act, and therefore, was acting under the powers of Section 2 of the Fifteenth Amendment.16 However, South Carolina claimed that the required review of new election laws under Section 5 of the VRA infringed S.C. v. Katzenbach, 383 U.S. 301, 308 (1966) See id.

15 Id. at 315.

16 See id.

13 14

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

67

Article III of the Constitution by directing the Court to issue advisory opinions.17 The Court noted that “Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.”18 This power, as established earlier, is granted to Congress under the Fifteenth Amendment. The Court concluded the Section 5 of the VRA was constitutional due to the intense history of racial discrimination in the specified states, and as a result, the “powers of Congress under Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment, the State Attorney General is authorized and directed to institute forthwith in the name of the United States such actions, including actions against States or political subdivisions.”19 The Court’s ruling in Katzenbach upheld the constitutionality of the VRA and supported Congress’ power to enforce the Fifteenth Amendment’s protections through direct legislation. This Court ruling was important in upholding legislation intended to protect voting rights and serves as a guidepost for protections of American Voting Rights.

B. VRA in the Court: Reno v. Bossier Parish School Board Despite the Court’s upholding of the VRA in Katzenbach, their subsequent ruling in Reno v. Bossier Parish School Board did not directly protect voting rights. In Reno, the Court evaluated whether preclearance was denied under Section 5 whenever a new voting procedure violated Section 2 of the VRA, and whether evidence that a new voting procedure has a “dilutive” impact is relevant to the inquiry under Section 5.20 The Bossier Parish School Board (“the Board”) in Louisiana was subjected to preclearance requirements under Section 5 of the VRA, and therefore needed to obtain approval from the State Attorney General for new voting procedures. The Board drew redistricted lines following the 1990 census, but this conflicted with Section 2 provisions of the VRA. The Court held that preclearance under Section 5 may not be solely denied on the basis that a new voting procedure violates Section 2 because the Court has understood the sections to be independent of one another.21 The Court held Section 2 and Section 5 differ in their structure, purpose, and application, and therefore are 17

See id.

Id. at 324.

19 Id. at 348.

20 Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1977).

21 Id. 18

68

PROTECTION OF VOTING RIGHTS

[Vol. 5

independent of one another.22 The Board asked the Court to hold that a “violation of § 2 is an independent reason to deny preclearance under § 5.”23 The Court reasoned, if Section 2 violations were the basis for denying Section 5 preclearance, inevitably, compliance with Section 5 would be contingent on compliance with Section 2; therefore, the intentions and purpose of Section 5 would be replaced with those of Section 2.24 The Court ruled that this interdependence “would contradict our longstanding interpretation of these two sections of the Act,” so the Court rejected the appellants’ position.25 Additionally, to obtain preclearance, the subject jurisdiction bears the burden of proof that the change in voting procedures are not discriminatory.26 Section 2, however, was written to eradicate voting practices that prohibited or obstructed minorities from voting.27 The Court stated that Section 5 “is designed to combat only those effects that are retrogressive,”28 but “a violation of § 2 is not grounds in and of itself for denying preclearance under § 5.”29 However, the Court reasoned that the amendments of the VRA renewed Section 5 without changing its applicable standard, but stated that they “doubt that Congress would depart from the settled interpretation of § 5 and impose a demonstrably greater burden on the jurisdictions covered by § 5.”30 The Court’s reasoning here seems to fail to protect individual voting rights and instead attempts to legislate from the bench. The Court concluded preclearance under Section 5 of the VRA cannot be denied on the basis of a violation of Section 2. This ruling exemplifies the start of the Court’s descent into a shift from protecting voting rights through the VRA to weakening its protections from redesigning the Act’s language.

22

Id. Id. at 477.

24 Id. 25 Id. 26 See Voting Rights Act of 1965, 52 U.S.C. 10301§ 5.

27 Voting Rights Act of 1965, 52 U.S.C. 10301§ 2(a).

28 Reno, 520 U.S. at 480.

29 Id. at 484.

30 Id. 23

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

69

III. POST-SHELBY VOTING ERA AND ITS IMPORTANCE A. Shelby County v. Holder The landmark decision in Shelby County v. Holder not only redesigned the VRA and weakened its protections, but additionally displayed the Court’s descent into a federalist crusade. Shelby County, Alabama, was a county subjected to preclearance requirements under Section 5 of the VRA. When Shelby County was denied preclearance, it petitioned to separate Section 4(b) and 5 of the VRA, arguing it was unconstitutional.31 As the Court noted in Katzenbach, they upheld the VRA against its constitutional challenge, stating it was justified to address “voting discrimination where it persists on a pervasive scale.”32 In Shelby County, the Court argued the constraints of Section 5 placed on specific states were sensible in the 1960s, however, they do not represent an unconstitutional violation of the power to regulate elections reserved for the states by the Constitution.33 This point emphasizes the Court’s focus on states’ rights versus the responsibility of the federal government to protect voting discrimination. The Court argued in the opinion that “[n]ot only do States retain sovereignty under the Constitution, there is also a ‘fundamental principle of equal sovereignty among the State.”34 The Court maintained the argument that Section 5 was now unconstitutional because the nation is “no longer divided” along the lines of racism, but the VRA “continues to treat it as if it were.”35 The Court also noted the Fifteenth Amendment was not designed to punish for past actions, but to ensure a better future. Therefore, Congress overreached in renewing the Section 5 preclearance provision.

However, Justice Ruth Bader Ginsburg’s dissent discredits the majority’s opinion and the arguments presented by the justices in the majority. Ginsburg noted the VRA has provided protections against voter discrimination when other acts of legislation failed. She wrote: “[p]articularly effective is the VRA’s requirement of federal preclearance for all changes to voting laws in the regions of the country with the most aggravated records of rank Shelby County v. Holder, 570 U.S. 529, 539 (2013).

Id. at 538.

33 See id. at 543.

34 Id. at 543.

35 Id. at 550.

31 32

70

PROTECTION OF VOTING RIGHTS

[Vol. 5

discrimination against minority voting rights.”36 Despite the Act’s success in combatting voting discrimination, Justice Ginsburg draws great attention to the fact that all “all vestiges of discrimination against the exercise of the franchise by minority citizens” are not eradicated.37 Justice Ginsburg agrees the VRA has been successful in decreasing voting discrimination practices; however, here she notes the Court fails to recognize the continuance of discriminatory practices and the duty of the federal government to ensure every citizen has accessibility to vote. Justice Ginsburg most famously notes, “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”38 Congress did not enact the VRA to rid of discriminatory voting practices but to prevent them from occurring.

However, the “Court disregards what Congress set about to do in enacting the VRA.”39 Justice Ginsburg dissented due to the belief that “the Court errs egregiously by overriding Congress’ decision.”40 The Court utilized Shelby County as an opportunity to protect states’ rights by overriding Congress’ legislative powers B. Post-Shelby Era Discriminatory voting laws and practices were passed ensuing the Court’s decision to declare Section 5 of the VRA unconstitutional. Since the 2013 decision, “there has been a marked increase in the passage of new voting laws as well as corresponding court challenges to these laws.”41 Instead of historic discriminatory practices like poll taxes and literacy tests, voters now face complex invisible discriminatory practices like strict voter identification (ID) laws, discriminatory closure of polling locations, a lack of funding for specific polling locations, and other citizenship-based obstacles to register and vote.42 These discriminatory practices that caused the Shelby County decision were enacted at an alarming rate in states Section 5 of the VRA

Id. at 559.

Id. at 562.

38 Id. at 589.

39 Id. at 591.

40 Shelby County, 570 U.S. at 539.

41 Hardy, supra note 5, at 857.

42 Id. 36 37

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

71

required preclearance for.43 The same day the case was decided, “Texas announced that it was implementing its strict voter-ID (identification) requirement, which Section 5 had previously blocked.”44 Not only does this provide evidence that the ruling hurt the preventive measures the VRA instituted, but “the efforts subsequent to the ruling in Shelby show how very little things have changed and how relevant and necessary oversight still is.”45 The Court’s argument that the VRA was unconstitutional because the imminent threat of discrimination was no longer present is deemed invalid as seen by these post-Shelby laws. The variety of voter suppression laws utilized to disenfranchise voters on “the basis of their race, socioeconomic status, and nationality and citizenship is in direct conflict with the Supreme Court’s proclamation in Shelby that fifty years of oversight was enough to combat this country’s even longer history of racism and discrimination.”46 It is evident the Court’s holding was invalid and their decision was in support of states’ rights, not those of American citizens, as they ruled against previous voting discrimination precedents. In Shelby County, the Court “denied the legitimacy of history as a basis for subjecting state and local governments to preclearance under Section 5.”47 In addition, “the Court was unwilling to assume that state and local governments that engaged in de jure discrimination half a century ago are today more likely than other[s] . . . to discriminate unconstitutionally.”48 The Court failed to acknowledge a vast and persistent history of voter discrimination in the United States to allow greater autonomy to individual states.

IV. BRNOVICH V. DEMOCRATIC NATIONAL COMMITTEE Shelby County v. Holder left the VRA in a vulnerable position, open to attacks unless Congress passed legislation to clarify and secure Section 2 of the Act. It was “the Court’s consequential holding in Shelby County v.

Holder, effectively striking down Section 5 of the Voting Rights Act (VRA), [that] opened the floodgates for new election laws restricting the right to Id. at 858.

Christopher S. Elmendorf & Douglas M. Spencer, Administering Section 2 of the Voting Rights Act After Shelby County, 115 COLUMBIA L. REV. 2143, 2145 (2015).

45 Hardy, supra note 5, at 860.

46 Id. at 877.

47 Elmendorf & Spencer, supra note 43, at 2167.

48 Id. 43 44

72

PROTECTION OF VOTING RIGHTS

[Vol. 5

vote.”49 Consequently, “Section 2, another core pillar of the VRA—the current safeguard against most racially discriminatory voting laws—is in jeopardy.”50 Notably, the post-Shelby Section 2 “has become the bedrock of challenges to racially discriminatory voting laws in the country.”51 Despite these circumstances, Congress has failed to take action and Brnovich ensued, questioning the constitutionality of Section 2 of the VRA. Brnovich upheld certain Arizona voting policies that were argued to have violated section 2 of the VRA and the Fifteenth Amendment, and the Court presented “guideposts” to determine Section 2 violations.”52 The Court emphasized the weight of state interests and the burden placed on the states over individual voting rights, stating that “even if the plaintiffs were able to demonstrate a disparate burden caused by HB 2023, the State’s ‘compelling interest in preserving the integrity of its election procedures’ would suffice to avoid Section 2 liability.”53 By upholding Arizona’s interest, the Court displayed a blatant disregard for the plaintiff’s claimed injuries.

The Court again displays a shift in protecting state interests and powers over protecting discrimination against an individual’s right to vote by allowing a state to take action to prevent election fraud without waiting for it to occur within its own borders.54 The majority observed that prior decisions “’ha[d] made clear that action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose’ . . .

The obvious result of those premises was that facially neutral voting practices violate §2 only if motivated by a discriminatory purpose.”55 This concept allows for the Court to have a lot of power in determining what is a Section 2 violation, as a Section 2 violation “requires consideration of ‘the totality of circumstances,’” meaning “any circumstance that has a logical bearing on whether voting is ‘equally open’ and affords equal ‘opportunity’ may be considered.”56 Under this judicial concept, “the court examines whether, in considering the ‘totality of circumstances,’ a relationship exists between the challenged practice and sociohistorical conditions” and “Section 2’s totality Arturo Nava, Brnovich v. Democratic National Committee: Examining Section 2 of the Voting Rights Act, 16 DUKE L. REV. 277, 277 (2021).

50 Id. 51 Id. at 280.

52 Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2326 (2021).

53 Id. at 2328.

54 Id. at 2329.

55 Id. at 2332.

56 Id. at 2332, 2338.

49

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

73

of circumstances analysis is fact-specific.”57 The Court disclaims at the beginning of the majority opinion that they decline to make a universal judicial test for VRA Section 2 claims; however, they then proceed to present “guideposts” to govern Section 2 claims.58 The guideposts presented by the Court allocate great discretion to states in enacting policies to ensure fair elections and place great difficulty in surpassing the burden of proof displaying discriminatory intent necessary to prove a Section 2 violation.59 The Court claimed that “the mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote,” but it is the size of the disparity that matters, “and in assessing the size of any disparity, a meaningful comparison is essential.”60 The intent of these guideposts is clearly to protect a “strong state interest” because those interests “are less likely to violate §2.”61 However, the dissent clearly disagrees with the majority’s decision to protect states’ interests over minorities’ right to vote. The dissent states that Congress failed to clearly define “the totality of circumstance” in Section 2, “so the majority writes its own set of rules, limiting Section 2 from multiple directions.”62 The justices who joined the dissent clearly see the actions of the majority as doing the job of Congress and legislating from the bench. The Court has essentially rewritten this section of the VRA to protect state powers, and “what is tragic here is that the Court has (yet again) rewritten— in order to weaken—a statute that stands as a monument to America’s greatness, and protects against its basest impulses.”63 The Court’s action to protect the state has failed to uphold the intent of the VRA, which was to protect American citizens from discriminatory voting policies. Section 2 of the VRA was enacted by Congress to “strike down precisely these types of restrictions that import conditions of race discrimination into the political process and disproportionately burden minority voters.”64 And, a disputed VRA violation is focused on the effects of a policy. Essentially, it “asks not about why state officials enacted a rule, but about whether that rule results in Nava, supra note 48, at 281.

Id. at 770.

59 Brnovich, 141 S. Ct. at 2336.

60 Id. at 2339.

61 Id. at 2340.

62 Id. at 2351 (Kagan, J., dissenting).

63 Id. 64 Hayden Johnson, Vote Denial and Defense: Reaffirming the Constitutionality of Section 2 of the Voting Rights Act, 39 MINNESOTA L. REV. 47, 58 (2021).

57 58

74

PROTECTION OF VOTING RIGHTS

[Vol. 5

racial discrimination.”65 Under the context of Section 2 of the VRA, and under “the Intent Test, the initial burden rests on the plaintiff to show ‘proof of racially discriminatory intent or purpose’” and “[d]iscriminatory intent may be inferred ‘from the totality of the relevant facts.’”66 The majority’s ruling here in Brnovich has made the burden of proof on the plaintiff higher, therefore protecting the state’s power to pass potentially discriminatory legislation. However, the Court is focused on the state’s interests outweighing the degree of discriminatory nature of a rule. The dissent believed that “Section 2 is appropriately remedial and sufficiently tailored legislation to enforce the substantive Reconstruction Amendments’ right of equal suffrage in today’s voter suppression environment.”67 Yet the majority deems the guideposts necessary in determining whether an action violates Section 2.68 In these guideposts and the Court’s decision, “the majority departs from Congress’s vision, set down in text, of ensuring equal voting opportunity. It chooses equality-lite.”69 The Court does not focus on the intent of the VRA in their decision in Brnovich, “but [rather] the majority today lessens the law—cuts Section 2 down to its own preferred size . . . No matter what Congress wanted, the majority has other ideas.”70 Congress’s intent was disregarded as the Court acted with its own legislative motives. Overall, many believed the VRA was “‘the dawn of freedom,’ because, unlike the Reconstruction Amendments, the VRA offered a toolbox of incisive, prophylactic enforcement measures to extinguish disenfranchisement wherever racial animus could fester.”71 However, the Court’s decision focused on a federalism agenda rather than the intent of the VRA to protect every citizen's right to vote.72 V. CONCLUSION American citizens’ right to vote is not fundamentally and adequately protected by the U.S. Constitution, and the right no longer appears to be Brnovich, 141 S. Ct. at 2360 (Kagan, J., dissenting).

Nava, supra note 48, at 281.

67 Johnson, supra note 63, at 106.

68 Id. 69 Brnovich, 141 S. Ct. at 2362 (Kagan, J., dissenting).

70 Id. at 2373.

71 Johnson, supra note 63, at 52.

72 Id. 65 66

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

75

protected by the federal government nor the Supreme Court. Congress passed the VRA in 1965 in response to the epidemic of racial voting discrimination policies across the country. Due to the United States’ extensive history of discriminatory voting laws, Congress wrote each section of the VRA with specific intent to combat and prevent discriminatory voting policies. The most controversial was Section 5 as it required certain states to obtain preclearance before enacting new voting laws due to their state’s discriminatory history. However, Section 2 of the VRA more generally prohibited discriminatory laws on a national level. These two sections have been contested in the Court the most frequently. For instance, the 1966 Katzenbach decision upheld the constitutionality of Section 5 of the VRA, supporting Congress’s power to enact any necessary legislation. However, the Court then presented a shift toward protecting states’ rights in subsequent legislation. Reno exhibited this shift by rewriting the language of the VRA in deeming Section 5 and Section 2 as severable.

The Court’s decision in Shelby County deemed Section 5 unconstitutional, protecting the interests of states and weakening the security of the VRA. A post-Shelby era ensued directly after the decision with an influx of discriminatory voting policies in the states under the previous restrictions set forth in Section 5. Additionally, the Court’s decision left Section 2 of the VRA vulnerable to attack, and due to Congress’s failure to protect it, Brnovich occurred. The Court opinion in Brnovich showcased protection of states’ interests in rewriting the language of Section 2 through proposed “guideposts.” The Court’s opinions in Shelby County and Brnovich showcase a federalist agenda in protecting state powers and rewriting legislation. This pattern exhibits a failure of the federal government to protect Americans’ right to vote, therefore demanding secure voting legislation in the Constitution. Proceeding, it is fundamentally necessary that the government passes legislation directly protecting every citizen’s right to vote and preventing discriminatory state voting laws from occurring. Without such legislation, the United States’ voting system will continue to disproportionately disenfranchise American citizens of minority communities. *** This Note was edited by Margaret Franzreb.

NOTE TO SUE OR NOT TO SUE: PATENT PROTECTION IN THE WAKE OF COVID-19 Katerina Kutuzov*

1

The ubiquitous impact of the COVID-19 pandemic has become one of the most pertinent and rapidly expanding fields of research in modern scientific history. Within the legal sphere, the advancement and distribution of COVID19-related technologies are indissolubly intertwined with intellectual property regulations. In particular, the subject of vaccine licensing and industrial property rights has become one of the most controversial legal conflicts to date. This Note examines the extent to which patent protection and intellectual property rights have affected COVID-19 technology development and allocation, and whether complete waiver implementation is a feasible solution to vaccine research inequity. Beginning with an overview of biotechnology intellectual property and patent law, this Note subsequently delves into the subject’s role regarding the COVID-19 pandemic through an examination of its pertinence to technology related to the crisis. The Note will then analyze current examples of patent waivers and explain how these waivers have affected various socioeconomic structures on a global scale, and their reception and impact through a business and government scope.

Although suspending the enforcement of certain patent rights could assist with the realization of equitable vaccine supply (based on historical precedent) and research, this Note conclusively finds that full waiver implementation sets a dangerous precedent and could hold conceivably damaging effects throughout global pharmaceutical development.

I. II.

INTRODUCTION.................................................................................. 77 AN OVERVIEW OF BIOTECHNOLOGY INTELLECTUAL PROPERTY AND PATENT LAW ..................................................................................... 78 A. A Brief History ..................................................................... 78 B. Current Context: COVID-19 Pandemic ............................... 79

* B.S. Candidate for Integrative Neuroscience, minor in Urban Studies, Fordham College at Lincoln Center, Class of 2025. This Note would not have been possible without the support of the Fordham Undergraduate Law Review Editorial Board and Senior Editors. I am thankful to have been given the opportunity to write on such a relevant and pressing issue, and to delve into the intersection of science and law in this manner. I look forward to continuing my work with the Fordham Undergraduate Law Review in the future.

1

76

2021] III. IV.

V.

FORDHAM UNDERGRADUATE LAW REVIEW

77

CURRENT EXAMPLES OF PATENT WAIVERS AND THEIR EFFECTS ..... 80 A. Shelby County v. Holder ...................................................... 80 B. Post-Shelby Era ................................................................... 80 EXAMINING PATENT WAIVERS ON A GLOBAL SCALE........................ 81 A. POTENTIAL BENEFITS ............................................................. 81 B. THE COSTS............................................................................. 82 C. WHY GLOBAL PATENT WAIVERS ARE DANGEROUS FOR THE GLOBAL PHARMACEUTICAL INDUSTRY .................................... 86 CONCLUSION ..................................................................................... 87 I. INTRODUCTION

With wide applicability and a diverse range of clientele, intellectual property law has become increasingly relevant in modern times. In regard to this field, the COVID-19 pandemic stands as one of the most recent events in modern history with such an overarching impact on various economic and industrial fields. Being that the pandemic beckoned the development and dissemination of emerging medical innovations, there are inextricable links to intellectual property. Specifically, various patent and trade secret rights have been either enforced or publicly retracted. These decisions not only play a definitive role in shaping the landscape of biotechnology research and development in the present but will shape the medical landscape for the foreseeable future.

This Note will document intellectual property law, elucidating its history and background concerning biotechnology and patents. Subsequently, this Note will contextualize intellectual property law with reference to the COVID-19 pandemic, specifically by analyzing current examples of patent waivers and how these waivers have affected vaccine research and supply.

Overall, this Note will ultimately argue that despite the plausibility that the suspension of intellectual property rights is helpful in achieving adequate vaccine supply and promoting research on an international level, implementing a full waiver would set a dangerous precedent and could have major negative consequences beyond the scope of the pandemic.

78

TO SUE OR NOT TO SUE

[Vol. 5

II. AN OVERVIEW OF BIOTECHNOLOGY INTELLECTUAL PROPERTY AND PATENT LAW A. A Brief History Intellectual property law is one of the most eclectic and varied fields of law. Generally speaking, intellectual property law refers to any laws that are implemented to protect the rights and ownership of intellectual property creators.2 The designation of items as ‘intellectual property’ can span across multiple fields––from music, art, or inventions––so this term denotes any possible item or concept that has a manufactured origin.

Intellectual property law is generally divided into four separate categories: copyright, trademark, trade secret, and patent law.3 Within the arts, publishing, entertainment, and computer software, copyright law protects artists’ rights to their works. In practice, this means that the possession of copyright grants one legal protection from the copying, displaying, or presentation of the copyrighted concept without explicit permission from the designated creator.4 A trademark is a symbol that distinguishes one company’s goods or services from those of other companies. Thus, trademark law refers to laws that protect a term, symbol, or word that is associated with a particular company from replication or copying for another purpose. Such protection is additionally applied to any symbols that have relative similarity to another.

Trade secrets are commercial procedures, formulas, designs, or processes that are employed in a company with the purpose of giving it a competitive advantage. Thus, trade secret law aims to protect such confidential information and prevent it from being sold or licensed without explicit legal permission.5 One of the most rapidly developing fields in intellectual property law is patenting: this involves laws that protect inventions and creations, whether it be the mechanical design of the item or the concept itself.6 Most commonly, Intellectual Property Law, GEORGETOWN LAW (2021), https://www.law.georgetown.edu/your-life-career/career-exploration-professionaldevelopment/for-jd-students/explore-legal-careers/practice-areas/intellectual-property-law/.

3 Id. 4 Id. 5 Id. 6 Id. 2

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

79

patents are issued within the scientific or technological fields. Most patents granted by the United States government last twenty years, starting from when the creator first applies to patent their product. In order to fall under the scope of patent protections, an invention must meet––as defined by the United States Code––the requirement of utility: “whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.”7 The Code also requires “operability,” meaning that the invention must have the capacity to be used for its intended purpose.8 Other characteristics include “novelty,” meaning that the invention must be one that is unique in its concept, as well as “obviousness,” which is defined in Title 35 of the U.S. Code. A patent meets the “obviousness” requirement if “the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.”9 B. Current Context: COVID-19 Pandemic Biotechnology, with its increasing relevance in the scientific field, in particular is evolving with regard to intellectual property and patent law. The Biotechnology Patent Protection Act, passed in 1995, permits application for patents within this field and creates a specific distinction for such technologies.10 As true across the board, obtaining a patent for a biotechnological invention or concept allows for the monetization and legal ownership of this intellectual property. Within companies and organizations vying to create new biotechnologies in response to the current COVID-19 crisis, there has been heightened attention on patent and trade secret categories of intellectual property law. It has become undeniably apparent that there needs to be proper licensing and regulatory processes. From trade 35 U.S. Code § 101.

Andrea D. Brashear, Evolving Biotechnology Patent Laws in the United States and Europe: Are They Inhibiting Disease Research?, 12 IND. INT’L & COMP. L. REV. 183 (2001).

9 35 U.S. Code § 101.

10 Becca Alley, The Biotechnology Process Patent Act of 1995: Providing Unresolved and Unrecognized Dilemmas in U.S. Patent Law, 12 J. INTELL. PROP. L. 229 (2004).

7 8

80

TO SUE OR NOT TO SUE

[Vol. 5

secrets regarding technology development to distribution rights with regard to COVID-19 vaccines, intellectual property laws are a clearly vital framework in the legal aspect of the pandemic.

III. CURRENT EXAMPLES OF PATENT WAIVERS AND THEIR EFFECTS A. AbbVie’s Suspension of Global Patent Rights One of the earliest examples of the global suspension of patent rights in relation to the COVID-19 pandemic revolved around AbbVie, an international research-based biopharmaceutical company with a wide range of proprietary products.11 In March of 2020, the company announced that it would no longer enforce patent protections on all formulations of Kaletra (Aluvia), a human immunodeficiency virus (HIV) antiviral prescription drug.12 This statement was issued after Israel moved to issue a compulsory license for the drug combination’s use against the SARS-CoV-2 coronavirus, after which a document was released with notification of this change.13 In essence, this suspension allows for the creation of generic copies of Kaletra’s chemical formula, as well as the purchase of generic copies for usage in research and clinical trials.14 As reported by the Financial Times, the company was the first major drugmaker to suspend patent rights for one of its chemical formulations on such a global scale.15 B. Moderna’s mRNA Patent Pledge In relation to COVID-19 vaccines, one of the more recent pledges to suspend intellectual property rights comes from Modern Therapeutics (Moderna), which is one of the most widely recognized pharmaceutical companies worldwide. Following the Pfizer and BioNTech formulation, the Moderna vaccine is the second most distributed in the United States as of

AbbVie, Inc., RELATIONSHIP SCIENCE (2021), https://relationshipscience.com/organization/abbvie-inc-25236906.

12 Hannah Kuchler, AbbVie drops patent rights for Kaletra antiviral treatment, FINANCIAL TIMES (2020), https://www.ft.com/content/5a7a9658-6d1f-11ea-89df-41bea055720b.

13 Id. 14 Id. 15 Id. 11

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

81

June 2021.16 In essence, the technology in the Moderna vaccine consists of mRNA molecules that precipitate cells to produce characteristic COVID-19 spike proteins, which allows for receivers to build immunity to the virus.17 Moderna has expressed the desire to underscore the professed potential of such mRNA technology. It has also expressed the desire to superficially support the suspension of any licenses regarding their intellectual property.

As the public statement issued by Moderna states: Accordingly, while the pandemic continues, Moderna will not enforce our COVID-19 related patents against those making vaccines intended to combat the pandemic. Further, to eliminate any perceived IP barriers to vaccine development during the pandemic period, upon request we are also willing to license our intellectual property for COVID19 vaccines to others for the post pandemic period.18

IV. EXAMINING PATENT WAIVERS ON A GLOBAL SCALE A. Potential Benefits The apparent benefits of patent waivers on a global scale are explicit and fairly straightforward. Many people posit that such an act would greatly assist with the COVID-19 pandemic in a multifaceted fashion. Such conclusions make logical sense initially; as intellectual property rights are meant to enforce legal protection against external distribution and replication of material, suspending such restrictions would lead to an increased availability of any previously constrained mRNA technologies.

Some argue that resulting shortages of various materials such as medical equipment––and particularly vaccines––are due to the restraints that intellectual property rights place on trade and exchange.19 Considering that intellectual property rights restrict illegal distribution of owned property without explicit legal permission from the parent company, this argument 16 Maite Knorr-Evans, Which vaccine is the most popular in the US?, AS (2021), https://en.as.com/en/2021/06/17/latest_news/1623942127_676892.html.

17 Yetian Dong et al., A systematic review of SARS-CoV-2 vaccine candidates, SIGNAL 5 TRANSDUCTION AND TARGETED THERAPY 237 (2020).

18 Daniel Shores, Breaking Down Moderna’s COVID-19 Patent Pledge: Why Did They Do It?, JD SUPRA, https://www.jdsupra.com/post/contentViewerEmbed.aspx?fid=43d35764c22c-4fee-837d-de68957fafb7.

19 Jorge L. Contreras et al., Pledging intellectual property for COVID-19, 38 NAT BIOTECHNOL 1146 (2020).

82

TO SUE OR NOT TO SUE

[Vol. 5

postulates that waiving these rights would further the “imperative . . . to accelerate the diffusion of vaccines and other treatments.”20 In addition, many people supporting this argument believe that the suspension of patent rights would encourage research––particularly the development of vaccines––for COVID-19 technologies. Ultimately, this argument rests upon the hypothesis that free access to material such as chemical formulations would greatly aid efforts to fight the pandemic through research and development.

Overall, multiple arguments exist for the global suspension of patent waiver. From superficial analysis, such statements seem bold and effective.

However, the reality of implementing such a policy is not merely practically unrealizable but potentially dangerous.

B. The Costs It is crucial to underscore that the aforementioned potential benefits of global patent waivers exist in a theoretical, unrealized vacuum. Although the results of implementing patent waivers on a global scale may seem universally beneficial in theory, the consideration of multiple other factors leads to starkly different conclusions. For one, a policy as wide-scale and massively influential as a global patent waiver on all COVID-19 technologies, as can be imagined, would be exceedingly difficult to create, negotiate, and implement. It is important to note that there is precedent for this complication: the suspension of patent rights were previously proposed very early in the pandemic.

In October of 2020, India requested that the World Trade Organization globally suspend patent rights for COVID-19 vaccines.21 There was no conclusive decision or agreement to move forward due to the strong opposition from Germany, the United Kingdom, and the United States in confluence with representatives from various private sectors and industry leaders.22 If such a proposal would be seriously considered another time, it Brink Lindsey, Why intellectual property and pandemics don’t mix, BROOKINGS (June 3, 2021), https://www.brookings.edu/blog/up-front/2021/06/03/why-intellectual-propertyand-pandemics-dont-mix/.

21 Christoph J. Crützen & Maximilian Kücking, The Waiver of Patent Protection for COVID-19 Vaccines – On Practicability and Purpose of Such Measures, MAYER BROWN (July 7, 2021), https://www.mayerbrown.com/en/perspectivesevents/publications/2021/07/ger-the-waiver-of-patent-protection.

22 Id. 20

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

83

would take multiple months in order to come to an international agreement— one that would most likely be exceedingly scaled-down and much less influential than any initial proposal. The crux of the issue lies in the notion that manufacturers, who are implicated in such a debate, would not have the ability to produce vaccines in the intermittent period.23 This is a clearly massive setback with severe repercussions for the global population.

Lawrence Gostin, director of the O’Neill Institute for National and Global Health Law at Georgetown Law, supplements this concern by noting, “[w]e’re not talking about any immediate help for India or Latin America or other countries going through an enormous spread of the virus . . . while they’re going to be negotiating the text, the virus will be mutating.”24 As such, extensive negotiation holds the potential to be detrimental to the production of adequate manufacturing capacity and research equity––particularly as the COVID-19 pandemic evolves in real time and impacts the national climate.

In addition, it is important to recognize that many current scenarios in which companies have waived their intellectual property rights are not inherently associated with benevolence. For instance, it was proven in research studies that AbbVie’s Kaletra was not an effective COVID-19 treatment prior to the suspension of patent rights.25 Experts in support of the suspension compared the potential benefits to those offered to HIV patients, who gained ease of access and purchase following patent suspension.

However, Kaltera’s prospective benefit to patients was questionable even before the formulation’s global patent suspension. Multiple scientific outlets reported: AbbVie’s HIV med Kaletra (Aluvia), a combination of antiviral drugs lopinavir and ritonavir, failed across the board in a 199-patient clinical trial. It didn’t top the standard of care at improving clinical symptoms, extending lifespan or cutting viral shedding in

Shayerah I. Akhtar et al., CONG. RSCH. SERV., RL34292, INTELLECTUAL PROPERTY RIGHTS AND INTERNATIONAL TRADE (2020).

24 Damian Garde et al., Waiver of patent rights on Covid vaccines may be mostly symbolic, for now, STAT NEWS (May 6, 2021), https://www.statnews.com/2021/05/06/waiver-ofpatent-rights-on-covid-19-vaccines-in-near-term-may-be-more-symbolic-than-substantive/.

25 Kyle Blankenship, AbbVie gives up patent rights to HIV med Kaletra amid COVID-19 tests: report, FIERCEPHARMA (March 23, 2020), https://www.fiercepharma.com/pharma/abbvie-gives-up-patent-rights-to-hiv-med-kaletraamid-covid-19-tests-report.

23

84

TO SUE OR NOT TO SUE

[Vol. 5

patients hospitalized with severe COVID-19, results from a study published Wednesday in The New England Journal of Medicine show.26

This demonstrates that public proclamations of intellectual property waivers essentially allow for a ‘performative’ unburdening of responsibility with little discernible, tangible effects. Such a characteristic is also seen in Moderna’s patent pledge, particularly with regard to the comments made by Moderna Chief Executive Officer Stéphane Bancel. Bancel explicitly stated that “waiving COVID-19 patent protections ‘doesn’t change anything for Moderna,’ as its vaccine uses mRNA technology,”27 and that “‘[t]here is no idle mRNA manufacturing capacity in the world . . . This is a new technology.

You cannot go hire people who know how to make the mRNA. Those people don’t exist.’”28 It is thus evident that this suspension of patent rights was not an act initiated in charity, or because someone believed that these technologies would be beneficial to the development of COVID-19 technologies, but was more so a method to avoid further inquiry. Therefore, such actions set a dangerous precedent in simply avoiding responsibility.

Companies with the funds and name recognition to make such an announcement are thus highly likely to publicly proclaim such benevolence while not facilitating any actual change.

To build on the previous argument, a crucial element to recognize is that oftentimes, the implementation of patent waivers is one that brings ineffective or generally unnecessary results. This is because waivers can possess certain addendums which allow for withheld information while still nominally presenting as a rights suspension. Generally, patent waivers function through the release of previously private technical knowledge: this knowledge includes necessary materials or information for the successful reproduction of the property by external companies or persons.29

26 Angus Liu, AbbVie’s HIV drug Kaletra stumbles in COVID-19 trial, but one analyst begs to differ, FIERCEPHARMA (March 19, 2020), https://www.fiercepharma.com/pharmaasia/does-abbvie-s-hiv-drug-kaletra-also-works-covid-19-maybe-not-nejm-study-finds.

27 Moderna CEO ‘didn’t lose sleep’ over US backing of patent, FINANCIAL TIMES (2021), https://www.ft.com/content/607bf143-3360-4543-8cb4-b1a1c42fc41f.

28 Id. 29 Office of the General Counsel, Patent Waivers Overview, U.S. DEPARTMENT OF ENERGY, https://www.energy.gov/gc/services/technology-transfer-and-procurement/officeassistant-general-counsel-technology-transf-1; see also Intellectual Property Law, supra note 1.

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

85

This technical knowledge and its inclusion within the scope of global patent waivers for vaccine technologies has been a controversial point of discussion. Such a concern was at the core of Brigham Young University v.

Pfizer, Inc. (2012), which affirmed the precedent that “a trade secret ‘can be made up of known elements, if the combination itself is . . . not readily ascertainable by proper means.’”30 In previous discussion, the Trade-Related Intellectual Property Rights waiver was originally intended to broadly waive all patent rights for any “COVID medicines.”31 However, it was quickly dismissed by multiple entities, including various pharmaceutical companies as well as countries such as the United States and Germany.

Grounds for rejection of this statement are evident: first, the waiver is exceedingly vast in scope, and did not possess any specific policy proposals or legal actions to practically enact such a wide-spread shift.32 Other concerns included the waiver’s inability to suspend companies’ rights to withhold technical information, which serves as the key factor to the actual information transfer.33 This inability greatly hinders the technology transfer necessary for increased vaccine development and manufacturing to occur.

Prior attempts to mitigate the effects of this problem have been implemented without success. For example, in April of 2021, the World Health Organization established a “COVID-19 vaccine technology transfer hub as a scheme to promote the sharing of mRNA-based technology.”34 However, currently, there is no conclusive evidence that would indicate that

Rivendell Forest Prods., Ltd. v. Georgia–Pacific Corp., 28 F.3d 1042, 1046 (10th Cir. 1994) (“A trade secret can include a system where the elements are in the public domain, but there has been accomplished an effective, successful and valuable integration of the public domain elements and the trade secret gave the claimant a competitive advantage which is protected from misappropriation.”).

31 TRIPS - Trade-Related Aspects of Intellectual Property Rights, WORLD TRADE ORGANIZATION (2021), https://www.wto.org/english/tratop_e/trips_e/trips_e.htm.

32 Bryan Mercurio, “The IP Waiver for COVID-19: Bad Policy, Bad Precedent,” IIC INT. REV. IND. PROP. COPYR. LAW 1 (2021), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8223179/.

33 PhRMA Statement on WTO TRIPS Intellectual Property Waiver, PHRMA ORG. (2021), https://www.phrma.org/coronavirus/phrma-statement-on-wto-trips-intellectual-propertywaiver.

34 Establishment of a COVID-19 mRNA vaccine technology transfer hub to scale up global manufacturing, WORLD HEALTH ORGANIZATION (2021), https://www.who.int/newsroom/articles-detail/establishment-of-a-covid-19-mrna-vaccine-technology-transfer-hub-toscale-up-global-manufacturing.

30

86

TO SUE OR NOT TO SUE

[Vol. 5

any technical knowledge was shared through this database.35 Certain explanations denote the high-risk nature of the capital that this technology presents.36 Thus, generally speaking, although patent rights can be suspended, confidential information and the technological knowledge associated with it are not inherently confluent properties. Even if theoretically, a similar waiver is passed, it would not guarantee the disclosure of such particulars necessary for an uptick in vaccine research equity and manufacturing capacity.

C. Why Global Patent Waivers Are Dangerous for the International Pharmaceutical Industry Through this analysis, it is clear that global patent waivers are an ineffective means for producing vaccine research equity from an economic and socially conscious perspective. Additionally, however, it is crucial to understand that such a suspension of intellectual property rights is not just inutile but wields the potential to actively harm the global pharmaceutical industry. Because global patent waivers are not feasible without cooperation from all private sectors and companies responsible for COVID-19 vaccine development, this decision requires great lengths of deliberation and time between multiple entities. The danger of implementing a global patent waiver to the pharmaceutical industry lies in the notion that such an act sets a dangerous precedent for lack of research or propagation of undeveloped technologies.

While the general assumption that suspending patent rights would increase the production and efficacy of industries to combat COVID-19, there is deep complexity behind the ability to develop such advanced technologies.

The emphasis upon items such as access and knowledge in this regard is particularly true to the popularized mRNA COVID-19 vaccines, as this technology is exceedingly complex and expensive in comparison to the

Banri Ito, Impacts of the vaccine intellectual property rights waiver on global, VOX EU CEPR (Aug. 8, 2021), https://voxeu.org/article/impacts-vaccine-intellectual-propertyrights-waiver-global-supply.

36 Establishment of a COVID-19 mRNA vaccine technology, supra note 33.

35

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

87

quintessential vector vaccines.37 As such, simply implementing a patent waiver would do little to bolster vaccine equity or manufacturing capacity.

Along with these factors, it is also difficult to manufacture COVID-19 vaccines and technology. Therefore, it cannot be concluded that global patent waivers would permit otherwise untrained and inexperienced companies to produce vaccines at a substantial scale. Rather, a governmentally imposed patent waiver wields the potential to shape disclination for substantive research and development without extensive marketing. This is particularly true with respect to lesser-funded companies and underdeveloped economies.

In fact, such a move has actually been found to increase levels of vaccine counterfeit, as opposed to new developments.38 Generally, even if there existed a feasible reality of implementing a full waiver that would remove all COVID-19 technologies––or solely vaccines––from intellectual property rights, that exemption in and of itself would not increase manufacturing capacity nor increase the level of research or development.

V. CONCLUSION Thus, it is crucial that legal systems uphold patent protection throughout the COVID-19 pandemic, as global patent waivers are both legally impossible to enact and logistically ineffective. If a comprehensive waiver were to be implemented that would exempt all COVID-19 technologies from intellectual property protection, this move would clearly not produce higher levels of sophisticated research nor increase vaccine production. Waivers’ informational and technical limitations greatly hinder any possible benefit.

Rather than help move society forward, global waivers would invite dangerous precedents and subsequent harmful consequences to the global pharmaceutical industry; these range from the aforementioned increase in vaccine counterfeiting to lessened research and development prior to advertising.

However, there are certain positives that can be taken away from this analysis. The COVID-19 pandemic has underscored that there exists a legal Spencer Bokat-Lindell, Stop Saying 'Post-Pandemic,’ N.Y. TIMES (June 15, 2021), https://www.nytimes.com/2021/06/15/opinion/vaccination-pandemic-world.html; Akhtar et al., CONG. RSCH. SERV., supra note 22.

38 Thomas T. Kubic, Kubic: COVID vax counterfeiting a growing problem, BOSTON HERALD (Dec. 1, 2021), https://www.bostonherald.com/2021/12/01/kubic-covid-vaxcounterfeiting-a-growing-problem/.

37

88

TO SUE OR NOT TO SUE

[Vol. 5

system within which issues regarding research and development take place, and thus can be resolved. It also becomes apparent that the problems that exist are those centering around lack of information or knowledge, which patent waivers are not able to address.

Thus, systemic contractual change would be an example of an approach that has the potential to benefit the pandemic, as opposed to total waiver implementation.39 Generally, the allocation of materials and resources towards meaningful innovation and a comprehensive trade and legal system for medical technology would be beneficial in addressing the COVID-19 pandemic. *** This Note was edited by Gabriella Mangome.

The Petrie-Flom Center Staff, The COVID-19 Vaccine Patent Waiver: The Wrong Tool for the Right Goal, BILL OF HEALTH (2021), https://blog.petrieflom.law.harvard.edu/2021/05/05/covid-vaccine-patent-waiver.

39

NOTE LEGAL SMART CONTRACTS: WHAT THEY ACCOMPLISH AND THE NEED FOR A LEGAL FRAMEWORK Brian Escobar*

1

Understanding blockchain-based smart contract's impact on legal transactional work, particularly in corporate law, opens avenues of possibilities. Smart contracts enable both parties to execute a coded-based agreement without a third party (escrow). Being on a decentralized ledger allows for contractual agreements to communicate between nodes (computers), which allows for immutability. This is because these legal agreements from computer to computer rely on a predetermined code that is fully executable and verified by each node (computer). With this in mind, there is an inherent need for regulation in smart contracts. Just how traditional contracts follow certain traditional elements, smart contracts are capable of being regulated around existing frameworks that enable states to decide implementation. This Note seeks to dissect how legal smart contracts work within a relationship alongside traditional contracts in order to support the legal enforcement of smart contracts.

I. II.

III.

IV.

INTRODUCTION.................................................................................. 90 LEGAL SMART CONTRACTS............................................................... 91 A. Basic Functions: Hybrid Contracts as Smart Contracts Paired with Traditional Contracts ....................................... 92 B. Making Legal Smart Contracts Enforceable ....................... 93 LEGAL ISSUES ................................................................................... 94 A. Lack of Regulation ............................................................... 94 B. Liability in Smart Contracts ................................................. 95 C. Will Code Be Law? .............................................................. 96 1. Arizona ..................................................................... 96 2. Ohio .......................................................................... 97 3. Tennessee ................................................................. 97 CONCLUSION ..................................................................................... 97

* B.A. Candidate for Political Science and Economics, Fordham College at Lincoln Center, Class of 2023. It has been an honor to be a part of the Fordham Undergraduate Law Review as a Staff Writer. Thank you also to the FULR Editorial Board, Senior Editor Kevin James, and to my friends and family who have provided endless support.

1

89

90

LEGAL SMART CONTRACTS

[Vol. 5

I. INTRODUCTION The phrase ‘smart contracts,’ or electronic agreements, was first coined

by Nick Szabo, who was a pioneer in the field. Szabo graduated from George Washington University Law School with an undergraduate degree in computer science, and he sought to evolve contract law in the emerging digital age of the 1990s. Legal electronic agreements have existed for more than a decade.2 However, with the advent of blockchain technology, cryptography enables contracts to be executable in a deterministic manner.

This technology allows contracts to be more secure and transparent.3 To begin, ‘gas’ is defined as the monetary amount it takes to execute the computation code onto the blockchain.4 This is critical because without paying gas fees, an individual is not able to mint the smart contract onto a blockchain. Blockchain technology is built upon a system of nodes, which run mathematical equations to verify each block data set. 5 In effect, this enables fast and efficient transactions. The data becomes immutable and transparent because once computed, the cryptography is encrypted. Such a process requires a massive amount of computation.

When analyzing smart contracts, one must consider that the field is nuanced, and the legality of smart contracts remains unclear. While statutes strengthen the validity of traditional contracts and build confidence between involved parties, legal smart contracts’ code is inputted into data on the blockchain, which is then fully automated on the smart contract.6 The process through which these are computed is called “hash functions.” “Hash” means the data input onto the chain that takes the form of a “block.” Blocks created through hash functions are how the blockchain gets created.

Another important factor to note when businesses and firms are considering adopting blockchain is the difference between public and private See Eddie Pan, “Who Is Nick Szabo? 8 Things to Know About the Man Elon Musk Thinks Created Bitcoin,” NASDAQ (Dec. 29, 2021), https://www.nasdaq.com/articles/whois-nick-szabo-8-things-to-know-about-the-man-elon-musk-thinks-created-bitcoin.

3 Id. 4 See Jake Frankenfield, “Gas (Ethereum),” INVESTOPEDIA (May 26, 2021), https://www.investopedia.com/terms/g/gas-ethereum.asp.

5 Nodes are defined as computers throughout a network that act as their servers.

6 Josh Hamilton, What Is a Smart Contract, CLOUDTWEAKS (Aug. 27, 2021), https://cloudtweaks.com/2021/08/what-is-a-smart-contract/.

2

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

91

networks. Private blockchain networks allow all the abilities of a node network only within the selected nodes of the framework.7 This is ideal when firms adopt blockchain due to only having selected firm nodes the access to mint smart contracts, while a public network such as Ethereum allows any nodes around the world to innate the minting process alongside a gas fee.

Currently, the majority of smart contracts are run under the Ethereum network, which is capable of handling the massive amounts of energy required to sustain such a vast network. Thus, legal smart contracts currently can only be written and executed on the Ethereum network. With the advent of Ethereum, enterprise needs to be tailored toward businesses that need more scalability and private networks. This creates innovation in contracts in which transparency and trust are paramount in contract writing.

The enforcement of legal smart contracts is a current legal issue because there is no fundamental structure in place.8 This beckons an important question: will smart contracts ever be legally efficient to use in corporate transactional work? This Note seeks to investigate the traditional framework of contracts by exploring states’ willingness to amend their Uniform Commercial Code (UCC) or the Uniform Electronic Transactions Act (UETA) to fit smart contracts into their legal code.9 Because the UCC is also responsible for interstate commerce, heavily intertwined with traditional contractual elements,10 this Note also dissects the legal enforcement of smart contracts in relation to traditional contract law.

II. LEGAL SMART CONTRACTS When examining smart contracts, it is important to note the difference between smart contracts and legal smart contracts. Smart contracts are fully executable contracts that are programmed onto the blockchain that causes immutability. Currently, it is necessary to examine the UCC, which is responsible for interstate commerce and is heavily intertwined with traditional contractual elements. The question is whether a smart contract, essentially a piece of computer code, can satisfy the writing requirement under the UCC. This Note focuses on legal smart contracts and their legality Kevin Werbach & Nicholas Cornell, Contracts Ex Machina, 67 DUKE L.J. 313 (2017).

Id. 9 Blockchain & Cryptocurrency Regulation, GLOBAL LEGAL INSIGHTS (2021), https://www.acc.com/sites/default/files/resources/upload/GLI-BLCH21_E-Edition.pdf.

10 Id. 7 8

92

LEGAL SMART CONTRACTS

[Vol. 5

regarding contract law. The legality of a standard contract must include mutual assent, expressed by a valid offer and acceptance; adequate consideration; capacity; and legality.11 The legal issue of smart contracts arises in that there is a lack of framework in defining what a legal smart contract must contain to make it legally binding. To solve this, one must look at traditional contract framing and apply it to smart contracts. The elements of traditional contracts can be paired with smart contracts as demonstrated with hybrid contracts, which serve to balance out both the technical side of coding while dealing with the subjective terms of a traditional contract.

A. Basic Functions: Hybrid Contracts as Smart Contracts Paired with Traditional Contracts When creating a smart contractual agreement, one must satisfy certain data requirements, such as hash functions. Inputting contractual terms into data implores the use of oracles that translate language into code. The use of oracles is a nuanced technology that needs to be dissected, and there are various oracles such as Inbound Oracles, Centralized Oracles, Contract Specific Oracles, and Software Oracles. Contact Specific Oracles, Human Oracles, and Inbound Oracles are crucial because of their ability to feed realworld information such as language.12 The creation of hybrid contracts implements the utility of a smart contract alongside traditional contracts. The use of traditional contracts is for more subjective causes, such as code failure or force majeure clauses. This allows for the combination of the best parts of a smart and traditional contract, which gives more insurance and securability for transactional work. This creates a difference between weak and strong smart contracts due to the enforceability of the smart contract. Weak contracts that are coded on the blockchain can be programmed to be executable under certain conditions. Strong smart contracts contain code that is fully executable when launched.13 Weak contracts’ downsides are evident compared to traditional finance. Due to the nature of transactional agreements Mutual Assent, LEGAL INFORMATION INSTITUTE, https://www.law.cornell.edu/wex/mutual_assent.

12 Blockchain & Cryptocurrency Regulation, supra note 8.

13 Knowledge@Wharton, The Promise—and Perils—of ‘Smart’ Contracts, WHARTON SCHOOL OF THE UNIVERSITY OF PENNSYLVANIA (May 18, 2017), https://knowledge.wharton.upenn.edu/article/what-are-smart-contracts/.

11

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

93

being very stringent, smart contracts are strong due to their full executability when looking at the condition the code contains.

B. Making Legal Smart Contracts Enforceable Analyzing legal smart contracts initiates the question of how the framework can be designed for legal smart contracts to be enforceable.

Writing smart contract code reveals the process of how the data is coded. The model below depicts the framework for a legal transactional contract for a small business. The code begins with the type of coding language in which it is written, which is C++, alongside the program used. The contracts explain the status of a contract as data points: Events allow clients to react to specific // contract changes you declare event Sent(address from, address to, uint amount). The first line depicts the pre-deterministic manner the contract will be initiated, ergo: “Events allow clients to react to specific.” The “event” is the function as the “clients” are what will be impacted. Following the code, it then explains if the contract is changed then the declaration (action) will occur to the client’s wallet address. Afterwards, it explains the manner of execution for the contract: // Constructor code is only run when the contract // is created constructor() { minter = msg.sender;. “Constructor code” is the data set that controls when the contract gets fully executed. Compared to traditional contracts where both parties agree upon a set of terms that are enforceable by the law. Smart contracts are enforceable by the code that is created and determines executable conditions. The “minter” is the creator of the contract; in this case, it is the { minter = msg. sender;. The date then depicts the matter of monetary transactions via cryptocurrency while also stating the amount of that is needed by the sender: // Sends an amount of newly created coins to an address // Can only be called by the contract creaton function mint(address receiver, uint amount) public { require(msg.sender == minter); require(amount < 1e60); balances[receiver] += amount; } // Sends an amount of existing coins. This portion of code transcribes the amount of crypto required and to whom the receiver will be by creating “Contract creaton function.” This model demonstrates a basic function of a smart contract being just used for transactional purposes: // SPDX-License-Identifier: GPL-3.0 pragma solidity >= 0.7.0;

94

LEGAL SMART CONTRACTS

[Vol. 5

contract Coin {14 // The keyword "public" makes variables // accessible from other contracts address public minter; mapping (address => uint) public balances; // Events allow clients to react to specific // contract changes you declare event Sent(address from, address to, uint amount); // Constructor code is only run when the contract // is created constructor() { minter = msg.sender; } // Sends an amount of newly created coins to an address // Can only be called by the contract creator function mint(address receiver, uint amount) public { require(msg.sender == minter); require(amount < 1e60); balances[receiver] += amount; } // Sends an amount of existing coins // from any caller to an address

}

function send(address receiver, uint amount) public { require(amount <= balances[msg.sender], "Insufficient balance."); balances[msg.sender] -= amount;15 balances[receiver] += amount; emit Sent(msg.sender, receiver, amount); }

III. LEGAL ISSUES A. Lack of Regulation The regulation of smart contracts–in particular hash functions–will create a framework in which the legal enforcement of smart contracts may be Introduction to Smart Contracts, SOLIDITY, https://docs.soliditylang.org/en/v0.5.3/introduction-to-smart-contracts.html#a-simplesmart-contract.

15 Id. 14

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

95

enforced. Regulation needs to include the elements of code that enable the smart contract to be executable. Under Iowa state law, “[t]he bill defines ‘smart contract’ as an event-driven program or computerized transaction protocol that runs on a distributed, decentralized, shared, and replicated ledger that executes the terms of a contract by taking custody over and instructing transfer of assets on the ledger.”16 It is important to note the role of the Uniform Electronic Transactions Act and Electronic Signatures in the Global National Commerce Act (E-Sign Act),17 because of their ability for states to amend their versions of legal code to fit smart contracts within the existing framework. Moreover, the legal code brings upon the question of liability that smart contracts have as they are paired with traditional contracts or stand-alone electronic agreements.

B. Liability in Smart Contracts From a legal perspective, liability in smart contracts crafts a legal issue.

First, how can one codify the legal terminology of a contract that fulfills the elements of a traditional contract? These elements include mutual assent, expressed by a valid offer and acceptance; adequate consideration; capacity; and legality, while maintaining a legal liability standard within blockchainbased contracts.18 Currently, it is not possible to implement the exact legal language, however, the use of oracles, which use data translation to move language into binary code, enables contracts to be translated. Oracles are important because they aid in legal enforcement. However, can oracles, which are coded algorithms, be liable if the smart contract is weak? There is no precedent to follow this legal issue, which allows room for legal thinking.

Nonetheless, in MGM Studios v. Grokster (2005), the liability of programmers of peer-to-peer networks came into question because of the nature of how programmers can infringe on users’ data rights.19 The U.S. Supreme Court’s ruling explained programmers are liable only in certain situations, and are otherwise not liable.20 Though this case focused on Blockchain & Cryptocurrency Regulation, supra note 8.

Id. 18 Mahipal Nehra, What’s the Role of Smart Contract in the Banking Industry?, READWRITE (Aug. 26, 2021), https://readwrite.com/2021/08/26/whats-the-role-of-smartcontract-in-the-banking-industry/.

19 MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 918–19, 936–37 (2005).

20 Id. 16 17

96

LEGAL SMART CONTRACTS

[Vol. 5

“contributory infringement” of users under American copyright law, courts are still able to hold the principles in context.21 This can induce future smart contract cases that bring the issue of liability in the programmer who wrote the code or the parties that willingly entered the contract. These are premature inklings into how courts will view smart code-based contracts under American contract law.

C. Will Code Be Law? The advent of cryptography, which is fundamental to cryptocurrencies, demonstrates the new idea of legal code. Since the advent of bitcoin, which allowed for a peer-to-peer network, this deterministic code has the potential to execute without any human power. This is the essence of how code is law because smart contracts enforce agreements based on their execution, not the law. Looking at blockchain-based smart contracts that are fully run on immutable code allows for trust, transparency and accountability which are prone to error in traditional contract writing. Therefore, will courts allow code in smart contracts to be legally binding under existing legal frameworks? There is no current precedent regarding smart contract code being interpreted by federal or state courts. However, four states’ individual approaches in amending their laws to include the enforceability of blockchain-based smart contracts help make sense of this issue.

1. Arizona

The State of Arizona amended the Arizona Electronic Transactions (AETA) to address the rise of blockchain-based smart contracts. Arizona redefined blockchain technology, describing it as “distributed ledger technology that uses a distributed, decentralized, shared and replicated ledger, which may be public or private, permissioned or permissionless.”22 The new amendment thus strengthens the enforceability of smart contracts, explaining that they “may not be denied legal effect, validity or enforceability solely because that contract contains a smart contract term.”23 The purpose is to create more innovation within state lines regarding smart contracts’ capability alongside traditional contracts.

21

Id. Arizona Rev. Stat. § 44-7061 (2017).

23 Id. 22

2021]

FORDHAM UNDERGRADUATE LAW REVIEW

97

2. Ohio The State of Ohio’s amendment of the UETA is similar to Arizona’s, but Ohio’s explains the use of blockchain technology as defined as an “electronic form and to be an electronic record.”24 Moreover, it describes the enforceability that smart contracts can hold, stating that “a record or signature may not be denied legal effect or enforceability solely because . . . the contract contains a smart contracts term.”25 This further proves the Ohio legislature’s willingness to adopt blockchain-based contracts, particularly as compared to the federal system, which negates implementing policy-regulating smart contract-based systems.

3. Tennessee Tennessee’s AETA amendment parallels Arizona’s bill, in that it includes a more precise definition of the types of transactions that are legally enforceable for smart contracts. It dissects the legal question of whether a cryptographic signature can be legally binding, stating that a “cryptographic signature that is generated and stored through distributed ledger technology is considered to be . . . an electronic signature.”26 The amendment also defines the necessary elements of a transaction: first, it must take custody over and instruct the transfer of assets on that ledger; second, it must create and distribute electronic assets; third, it must synchronize information; or fourth, it must manage identity and user access to software applications. 27 This demonstrates the state’s willingness to include smart contracts by molding the current traditional contract framework, which over time will allow the federal government to implement policy.

IV. CONCLUSION As time progresses and technology innovates, smart contracts will be able to handle massive amounts of computation. The founder of Intel, Gordon E. Moore, theorizes what is known as Moore’s Law. Moore’s Law holds that Ohio Rev. Code Ann. § 1306.01(G) (2018).

Id. 26 Tenn. Code Ann. § 47-10-202(a) (2019).

27 Id. § 47-10-201(2).

24 25

98

LEGAL SMART CONTRACTS

[Vol. 5

transistors per microchip doubles every two years. This leads to faster computation due to more complex cores being implemented at the microlevel. This efficiency can increase the use of blockchain technology, primarily smart contracts because of the intense energy it takes to mint new contracts onto the chain. This will lead to more efficient types of smart contracts that might not need the hybrid packing with traditional contracts.

The foresight to see the value of smart contracts is crucial in order to view how they will fit within the contours of the law. *** This Note was edited by Kevin James.

FORDHAM UNDERGRADUATE LAW REVIEW UNDERGRADLAWREVIEW.BLOG.FORDHAM.EDU

VOL. V NO. 1

FALL 2021