Author Archive for Jonathan LuriePage 2 of 15

“Charging Bull” vs. “Fearless Girl”: Could the Battle Move to Court?

The “Fearless Girl” is a statue of a little girl standing, as the name would suggest, fearlessly before the iconic “Charging Bull” of Wall Street. Just recently installed, it sends a powerful message about the power of women in leadership.  However, the sculptor of “Charging Bull” is not so happy about it.

The sculptor of the bull, Arturo Di Modica, is furious over the addition of the statue.  He says that it totally alters the message of his original statue.  While Mr. Modica says he supports gender equality and what the “Fearless Girl” stands for.  He says he always considered the bull-made and put on Wall Street in the 80’s after the stock market crashes-to represent peace.  Mr. Modica believes that the endless faceoff between the bull and the girl ruins the message-turning the bull into a threat against the “Fearless Girl.”  He’s considered turning the bull to face away from the “Fearless Girl” but has not yet done so, implying that he either would sooner have the “Fearless Girl” moved or his agreement with the city does not allow him to move the bull.

While there’s no lawsuit right now, Mr. Modica’s attorneys have been clear that if they can’t reach an agreement with the city they will be happy to sue.  So what exactly would such a lawsuit allege?  Mr. Modica’s attorneys have already been arguing that his intellectual property rights will allow him to see the “Fearless Girl” moved.  However, the case also raises an interesting issue of how moral rights are handled here as opposed to abroad.

charging bullFearless Girl a Derivative Work?

Mr. Modica has copyright and trademark protection on the “Charging Bull”-protecting his rights in his work.  What’s more, his attorneys have already said how they might assert those rights-they’ve called the “Fearless Girl” derivative.  In the art world, this may simply be a mortal insult.  However, in intellectual property law it is a precursor to a copyright infringement claim.  When you possess the copyright in a work, that copyright provides you a bundle of rights which-once registered-you can assert against an infringer in a lawsuit.  One of these rights is the exclusive right to make derivative works.

A derivative work is a work based upon your original work.  That includes adaptations, transformations, modifications and other changes so long as those changes large portions of the original copyrighted work.  In this case, that would mean that “Fearless Girl” incorporates large parts of “Charging Bull.”

In a way, that’s true.  Is the “Fearless Girl” fearless is she isn’t staring down Mr. Modica’s bull?  It could easily be said that the “Fearless Girl” incorporates the entirety of Mr. Modica’s sculpture into itself as part of its standoff.  If the was the end of the discussion, Mr. Modica would be in luck-among the remedies to copyright infringement is the ability to impound and/or destroy any infringing works.  However, there is a big asterisk on the claims of Mr. Modica’s attorneys-the defense of fair use.

Fair use provides a defense to certain limited, transformative uses of a copyrighted work. The defense is extremely fact specific, so much so as to make it nearly impossible to declare something fair use without knowing the exact circumstances of the particular use.  In making the determination, courts balance four quite complicated factors: (1) the purpose and character of the use (was it commercial, educational, transformative?); (2) the nature of the work (eg. fictional v. non-fictional); (3) how much of the work was used and how important was the part used; and (4) how the use effects the market for the copyrighted work.

Here, “Fearless Girl” almost certainly substantially changes the meaning of the work-after all that’s what Mr. Modica is so upset about.  It also creates new understanding of the work by casting what is often considered a symbol of capitalism in a more gendered light.  On the other hand, it doesn’t really parody “Charging Bull,” although it could potentially be argued that it criticizes the bull as an aggressor in the standoff between the two works.

Ultimately, while the arguments do seem to weigh in favor of “Fearless Girl” when it comes to fair use, you can never really be certain.  Fair use often comes down to which judge and jury looks at the facts and there’s definitely an argument here for both sides-perhaps part of why Mr. Modica is preferring negotiation to litigation at this point.

However, if fair use puts an infringement lawsuit out of reach for Mr. Modica, he’ll have to turn to a particularly rarely used area of U.S. intellectual property law-the moral rights of artists.

Moral Rights of an Artist in the U.S.

Turning to moral rights is something that Mr. Modica hasn’t discussed as of yet-probably because the U.S. just barely does them.  While they are a big deal abroad and especially in Europe, the U.S. has barely any moral rights in a work of art at all-instead focusing on economic rights.  In fact, we do so little that some have questioned whether what we have lives up to what we agree to in our international intellectual property treaties such as the Berne Agreement.  What we do have, and what Mr. Modica would turn to is the Visual Artists Rights Act (VARA).

VARA applies only to a very narrow subset of works including paintings, drawings, prints, sculptures and still photographs made for exhibition only where only one copy or a run of no more than 200 copies were made.  California and New York expand these limitations slightly in state law versions of VARA. Either way, under VARA or its New York equivalent, the law would include the one of a kind sculpture “Charging Bull” and give Mr. Modica rights, separate from his copyright, which will last until his copyright expires 70 years after his death (if the bull had been made after 1990 the rights would expire upon Mr. Modica’s death).

These protections allow him to, under VARA, (1) claim authorship, (2) prevent use of his name on something he didn’t make, (3) disclaim ownership of a work that his be changed, mutilated, or modified in a way that would damage his honor or reputation, or (4) prevent distortion, mutilation, or modification to the bull that would prejudice his honor or reputation.  Under New York’s law, he can also prevent public display of the bull if it is altered, defaced, mutilated, or modified in a way that might damage his reputation.  When a work is well known enough, like “Charging Bull” is, its author can also prohibit intentional or grossly negligent destruction of their work.

VARA allows an artist to, along with money damages, seek an injunction or impoundment to prevent the violation of their rights. But, Congress placed a number of exceptions on VARA rights, among these is the fact that VARA rights are still limited by a successful fair use defense.  What’s more, while VARA protects against destruction or alteration, it does not protect the ability of an author to continue creating.  In other words, New York is under no obligation to let Mr. Modica move or alter his statue.

Is Mr. Modica Out of Luck?

It does seem that, unless he can overcome a fair use defense, Mr. Modica is a bit up a creek.  However, although unlikey, there may be further rights Mr. Modica possesses through any contract agreement he made with the city when the bull was commissioned.  Contracts can waive moral rights or expand an artist’s rights-although the rights can’t be given to somebody else.  Generally, any waiver must be signed by the author and in writing to be valid.  Thus, these waivers are common terms in contracts to purchase art.  It seems more likely that any contract left Mr. Modica with less rather than more rights.

We’ll have to see how this develops.  However, at least for the meantime, it seems that the “Fearless Girl” is unlikely to be going anywhere.

FMLA: Your Rights May Have Been Expanded by the 6th Circuit

Just a few days back, the 6th Circuit Appeals Court made a ruling in the case of Marshall v. Rawling Co. which has the potential to substantially expand your rights under the Family and Medical Leave Act (FMLA).  They did this by expanding the situations in which a company can be liable for taking adverse action against you after you assert your FMLA rights.

The 6th Circuit did this by accepting cat’s paw liability in FMLA claims. Cat’s paw liability refers to a situation where one party uses another to accomplish their purpose. This has the potential to give you a case against an employer for FMLA violations where one previously didn’t exist. I’ve discussed the FMLA, and how to protect your rights under it, in a previous article. So, with that in mind, we’ll focus here on what the FMLA is and how this ruling changes your rights under this act.

What is the FMLA?

The FMLA requires employers to offer their employees at least 12 weeks of unpaid leave every year to take care of a family member. However, like all things in law, it’s not quite so simple as this.  The FMLA doesn’t apply to every employer, every employee, or even every illness. In fact, it only applies to employers with more than 50 employees at a single location. If it applies, then the employer must extend the protections of the FMLA to all their workers who are employed within 75 miles of the place they have 50 or more workers.

FMLAEven if an employer has enough employees to be held to the requirements of the FMLA, an employee has to fulfill certain conditions before the employer must allow them FMLA leave.  Only employees who have worked for at least a year and at least about 25 hours per week for the last year qualify for the leave. What’s more, employees in the top 10% of pay within the 75-mile radius the employer covers are exempted from required coverage under the FMLA. There are also a few other exceptions to the Act such as elected officials.

As you might expect from a statute, the term serious illness is not left up to common sense interpretation. Instead, it is specifically defined as “an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.”  This means that you can’t get leave for check-ups and other routine medical care or for illnesses that come and go quickly like a common chest cold.

Where an employer takes action against an employee because they exercise their rights under the FMLA that can give rise to a retaliation claim against the employer. The Act also allows for employees to sue an employer for interfering with any of their rights under the FMLA in a type of lawsuit aptly named an interference suit.

The Facts of the Marshall Case

Gloria Marshall, an employee of Rawling, suffers from depression, anxiety, and post-traumatic stress disorder.  But to find the time to receive treatment for these mental-health problems, Ms. Marshall took time off from work using FMLA leave.  When Ms. Marshall returned, she had a backlog of work due to her unexpected leave leaving her with unfinished projects when she left.  These combined with the new work assigned to her to leave her overwhelmed.  She requested help with this work and, while Rawling says she received that help, she says they refused.  Other employees in similar positions also testified that basically every employee had a backlog to some extent due to the amount of work assigned to each employee.  While Ms. Marshall eventually cleared this backlog, the Vice President of the company-Jeff Bradshaw-made it clear in emails that he was worried about another backlog arising.

Ms. Marshall was subsequently demoted after Mr. Bradshaw recommended a demotion to her division head Laura Plumley.  This demotion was apparently unrelated to the FMLA leave.  Ms. Marshall continued to take occasional FMLA leave, but apparently excelled in her new position.  Despite this, Bradshaw apparently severely criticized her performance and singled her out at work in embarrassing ways.  At a meeting, Bradshaw made it clear he was disappointed in how often she had taken FMLA leave.  Ms. Marshall eventually reported Mr. Bradshaw’s treatment of her, although she delayed out of fear of being fired. The allegations were reported to the company’s owner George Rawlings, who decided that she was making false reports to cover poor performance and fired her.  Ms. Marshall sued, saying that her firing was retaliation for her FMLA leave.

What Does the Marshall Ruling Mean For Your Rights?

This is where the cat’s paw theory of liability comes into play, and where the 6th Circuit Appeals Court’s decision comes into play. For instance, there have been cases where a company is liable for discriminatory firing where a biased subordinate uses an official decision maker as a sort of a dupe in enacting their own scheme of by asserting their own influence on that decision maker.

The idea behind cat’s paw liability is that the organizational chart of a company doesn’t necessarily reflect the true decision making process.  As in the example above, a decision maker will often rely on the recommendations of others lower on the totem pole or unrelated to the decision-as Ms. Plumley did with Jeff Bradshaw’s recommendation when she demoted Ms. Marshall.  Basically, this decision means that if somebody who doesn’t make the final decision as to your employment status mistreats you based on your FMLA rights you may still have a lawsuit despite the fact that they aren’t the ones taking adverse employment action against you.

The 6th Circuit Appeals Court is not the law over the entirety of the U.S.  However, the decision has the potential to very persuasive in other Circuits and is the law in the states of Michigan, Ohio, Tennessee, and Kentucky.  The case is even more persuasive as many other Circuits have consistently applied cat’s paw liability in other employment contexts such as Title VII discrimination cases.  The exact impact of the case is yet to be seen.  However, there is no question that your FMLA rights just got stronger.

Echo Look Revives Debate on Privacy Concerns

If you were told you could purchase a device which listens to everything you say throughout the day, and occasionally records what you say, you’d understandably be less than excited to buy now.  However, when that device comes with enormous potential for convenience–like the Amazon Echo or the Google Home–many have decided that the privacy concerns are not so bad as to put them off the device.

For those unfamiliar, the Amazon Echo (commonly referred to by the name it answers to-Alexa) and the Google Home are very similar to the Cortana or Siri devices on your phone-they take verbal commands and quickly send your request to a server which attempts to find an answer which is as responsive to your query as possible.  The main difference between the products is that while Siri is a tool you activate on your phone, the Echo and the Home are devices you place in your home and essentially leave on to respond to you whenever needed.

While on, these devices are always listening to what you say in order to listen for a “wake word” or command to start paying attention to whatever you say next.  Always listening does not mean always recording, both the Home and Alexa begin recording whatever you say as soon as you say a wake word-this recorded audio is sent to a server, associated with your personal account, and stored.

This obviously created enormous privacy concerns when these devices were initially released.  However, some but not all of the concerns were abated by the fact that you can mute the microphone when the devices are not in use-rendering the device useless until unmuted but keeping it from listening in general.  You can also disable audio recording and data sharing altogether for the Home but not the Echo.  However, doing so makes the Home completely inoperable.  Finally, you can delete your history of recorded requests online for both products-although both Google and Amazon recommend against it and neither are clear as to what data is stored after deletion.

These provisions, along with the privacy policies of both companies, have helped alleviate some-but not all of the privacy concerns since the products were released.  However, just recently, Amazon has announced the Echo Look-a product which adds a whole new layer of privacy concerns to the mix.

echo lookThe Echo Look

The Echo Look is essentially the Echo but with a camera which records and takes pictures of your outfits at your request.  At the moment, Amazon has said that the Echo Look is limited to pictures of fashion and the room you’re in.  However, they have made no assurances that this will continue to be the case.

As you might imagine, an enormous amount of information can be gleaned from any given picture and a company with as developed a machine learning algorithm for identifying what’s what in a picture as Amazon could parse the information in any given picture with great ease-then likely use that information to employ more targeted advertising for you.

Amazon Echo Look seems to be fairly secure, with numerous encryptions and security measures protecting the pictures you take and the camera itself.  This is good, cameras of this sort have a bit of history of poor security.  It was not so long ago that a search engine called Shodan was launched which allowed users to search and browse unsecured webcams.

You can see the privacy concerns raised by the Echo, Home, and Echo Look.  However, what does this mean from a legal standpoint?  The truth is, privacy law-beyond a few federal statutes-is primarily a matter of state by state legislation.  This is especially true in California where the state constitution explicitly includes a right to privacy.  However, no matter where you are, there are a few issues which could always come up as part of or as cause for a legal action.  Where your private data is breached by an outside party, an increasingly common occurrence, that can give rise to a lawsuit.  What’s more, companies are generally bound to their own privacy policies.  Where they ignore their own policy or mislead a consumer as to their privacy policies this can lead to legal hot water.    Finally, you have to ask how the data collected by these companies may be used by law enforcement.

Privacy Policies of the Echo and the Home

Both the Home and the Echo follow the privacy policies of the companies that made them-Google and Amazon respectively.  These are two companies with that gather and employ an enormous amount of data on their users.  Thus, they both have fairly robust privacy policies.  However, this does not mean that they will not and do not use or sell the data they collect about you.

Google’s privacy policy for the Home specifically states: “Google will share your information with companies, organizations, and individuals outside of Google if Google has a good-faith belief that access, use, preservation, or disclosure of the information is reasonably necessary to meet applicable law, regulation, legal process, or enforceable government request.” In short, it appears that Google doesn’t ask for your permission to share your voice recordings.”  They do promise not to share your personal information with anyone.  However, in a legal context this likely applies to personally identifiable information-information that can be used to identify you.  Other data, such as commonly sold aggregate data (information stripped of identifiers and sold to advertisers) is still fair game.  What’s more, they also do not limit their own uses of your data and likely use the information for targeted advertising purposes.

The Amazon Echo privacy policies are similar-allowing them the same leeway as Google’s policy.   However, both the Echo and the Echo Look policies promise explicitly not to use the data they collect to provide targeting advertising opportunities to  third-party companies.  They even give you the option to opt out of Amazon targeted advertising at this link.

One thing you’ll note in the Google policy, which is shared by the Amazon policy, is that it leaves the door open to share your data with law enforcement where required by law.  This makes sense, neither Amazon nor Google are looking to defy a valid court order.  However, the idea that the police might make use of all the data recorded on your device might be a bit concerning to some-and it’s a concern that has already come up in court.

Will Your Data Be Shared?

Just a few months back, Arkansas police sought a warrant demanding that Amazon turn over all the information recorded from the Amazon Echo of a murder suspect out of Bentonville by the name of James Andrew Bates.  After one Victor Collins was found dead in Mr. Bates’ hot tub, the police noted his Amazon Echo and sought the data from it.

Amazon initially resisted the demand for the evidence, arguing that the First Amendment protected the information recorded from the Echo and, because of this, the police needed to show a compelling need to access the information and no other way to get it.

At a minimum, a valid warrant requires probable cause (a fairly low standard requiring only a reasonable basis for believing evidence could be contained in the thing or place to be searched) and it must describe with particularity what the search would seek to find.

Searching through data to find evidence of a crime is nothing new, police have searched everything from cell phones to World of Warcraft chat logs.  These often require subpoenas or warrants to gather this information from a third party such as Amazon.  Here, there were a few potential issues with receiving a warrant-even beyond Amazon’s First Amendment arguments.  First, probable cause is a low bar-but it isn’t nothing.  The theory that an always-on recording device might have recorded information related to the crime is likely enough to meet the standard where it recorded near the crime.  However, the basis is a bit thin when you consider the device only records when a “wake word” is spoken.  Second, the warrant just asked for everything Amazon had ever recorded.  This in no way describes with particularity what is to be produced.  The police are very unlikely to need the times Mr. Bates asked Alexa how many feet are in a mile or for a good recipe for pork shoulder.

However, despite these issues, Amazon did end up producing the requested searches.  This was not because a court ruled against them, but rather because Mr. Bates ultimately consented to release the recordings of his own volition.  This left the issue without a satisfying conclusion as to legal precedent.  However, in the right circumstances, law enforcement could almost certainly obtain the data recorded from a Home, Echo, or Echo Look.

Is It Worth It?

As it is, trading privacy for convenience is so common in today’s online world as to be nearly unavoidable.  When it comes to the Echo or the Home, you have to ask yourself whether that trade off is worth it to use these devices.  Ultimately, all you can do is know your rights and make that decision for yourself.

ISPs Swears They Won’t Sell Your Browser History

Congress voted to take away your privacy rights when it comes to how internet service providers (ISPs) may use your data, and President Trump signed it into law. Just recently they officially repealed Obama era privacy regulations out of the FCC which required ISTs to get permission before selling a customer’s data–their browsing history, how long you spend on a given site, how often you visit a given site, app usage, email addresses, etc.

As you can imagine, removing these protections has resulted in a bit of a panic over how ISPs will proceed under these new rules. In an attempt to alleviate some of those fears, several of the largest ISPs have made statements promising not to sell the browsing history of individual clients. However, it’s hard to avoid that they have worded their promises very specifically in every case-so specifically that their promises almost amount to nothing. Let’s a take a look at the words of the biggest ISPs and what exactly they have (and haven’t) promised as well as what that means after the repeal of these privacy protections.

From The Horse’s Mouth

As mentioned, the rule changes had big ISPs quick to release statements to reassure their customers. Comcast released a statement saying “We do not sell our broadband customers’ individual web browsing history. We did not do it before the FCC’s rules were adopted, and we have no plans to do so.” Verizon’s Chief Privacy Officer told their users  “Verizon does not sell the personal web browsing history of our customers. We don’t do it and that’s the bottom line.”  An AT&T Vice President said “AT&T’s privacy protections are the same today as they were five months ago when the FCC rules were adopted. [We] will not sell your personal information to anyone, for any purpose. Period.”

These certainly sound promising, but they are very carefully worded. They promise not to sell “individual browsing history” or “personal information.”  However these promises, especially individual browsing history–perhaps intentionally–hit only the tip of the iceberg when it comes to how ISPs could and almost certainly will collect your data and metadata. The ISPs notably did not promise not to sell aggregate data (the most commonly way of selling metadata) or promise not to review and use the history for their own marketing-both potentially invasions of your privacy. Aggregate data is where they collect your browsing information, strip identifying information, then sell it along with the data of many other users–this is used for targeted advertising among other things. What’s more, once data is sold, those who buy it have no compunctions about how they must make use of that data.

This is far from a new concept, and at least one ISP has commented in the past that your browsing habits are already being collected and sold “by virtually every site you visit on the internet.”  This is true, the biggest websites-the Facebooks, Googles, and Amazons of the world-gather and sell staggering amounts of data from their users.

However, as true as it is, the situation with ISPs is fundamentally different. ISPs have the ability to monitor you literally the entire time you use the internet–something no website can boast. The difference in the level of intrusion between an ISP and any website is a matter of degrees. No website could hope to have the sheer level of access to your internet activity that an ISP has–which is literally all of it. What’s more, you can choose to go to a website–even sites as ubiquitous as Google have alternatives which do not track your internet use such as DuckDuckGo. Over half of people in the U.S. have only one choice of internet provider–a large part of the argument behind treating the internet as a utility like electricity or water. This means that your options would be to either have every action you take on the internet potentially monitored and monetized or have no internet whatsoever.

ISPs Seem to Be Forgetting Their Own History

The promises of the ISPs are also a bit hollow in light of their own past behavior regarding your data. Not so long ago, AT&T was in hot water for misleading customers by describing an opt-in agreement providing consent to track and sell its users browsing history as a “discount.” Comcast was in the news less than a year ago saying that it should be able to sell its users’ browsing information.

Back in 2014, Verizon got in trouble for including an HTTP header for its mobile customers which allowed third-party advertising companies to gather information on your browsing habits-even if you used a private browsing mode or cleared your cookies. Even after her own recent statements reassuring customers, Verizon’s Chief Privacy Officer acknowledged that Verizon intends to use your browsing habits in ways other than outright sharing your personal browsing history–specifically targeted advertising and selling data in aggregate as mentioned above.

The States May Come to Your Rescue

In this day and age, the internet is basically a necessity. While Verizon’s transparency is at least to be applauded, the very idea that your every internet action could be tracked and sold–with the alternative of never using the internet–is unlikely an attractive prospect to many. However, there has already been a move towards bridging the gap created by the recently repealed privacy protections through state law. Just a few days back Minnesota passed a law requiring ISPs to receive express written consent from a user before harvesting any of your data.

Whether this trend will spread remains to be seen, the changes to your privacy protections all still fresh. Keep an eye on state legislature, it seems likely that protecting your browser history will quickly become a hot button issue.

It’s Official: Texas Voter ID Law Violates the Voting Rights Act

On Monday April 17th,  a Federal Judge ruled that the voter ID laws enacted in Texas were enacted with not only the intent to discriminate against minorities but with the purpose of discriminating against those minorities.  This is a huge ruling with implications for both the law, S.B. 14, and the state of Texas as a whole.  This ruling has the potential to leave any law related to voting coming out of Texas subject to federal approval in the future.

However, this ruling is far from out of the blue.  The story of S.B 14 has been a back and forth saga through the courts since 2011.  Let’s take a look at the history of this bill, this most recent ruling, and what that ruling means.

Texas Voter IDThe History of S.B. 14

S.B. 14 is a law which substantially limits the acceptable types of voter IDs in Texas, often in particularly odd ways.  For instance, a hunting license is acceptable ID to vote but a student ID would not.  This is just the tip of the iceberg to what represented an enormous amount of limitations on what was acceptable identification to allow somebody to vote.  While there were suggestions to make funds available to educate the public on the details of the new restrictions and assist poorer voters to obtain sufficient identification, these suggestions were shot down at every turn and nothing of the sort made it into the final law.

When this law was initially passed in Texas in 2011, the Voting Rights Act (VRA) gave the Attorney General (AG) the power to review and shut down voting laws coming out states which had historically had discriminatory voting practices–think Jim Crow and the South.  With the effect the limitations would have and the lack of education on these effects in mind, the Attorney General at the time-Eric Holder-exercised this power and shut down the law.  While challenged this in the courts, AG Holder’s decision was upheld.

However, in 2013, a Supreme court ruling known as Shelby substantially limited the powers of the VRA.  Section 5 of the VRA allowed the federal government to pre-clear any voting laws coming out of states that previously had issues, as discussed above.  In Shelby, the Supreme Court analyzed the constitutionality of the VRA and Section 5 in particular.  They ultimately determined that, while Section 5 itself was constitutional, Section 4 was not.  Section 4 was the part of the VRA that allowed enforcement of Section 5.  Without this section, the pre-clearance requirements of the VRA were rendered essentially toothless.  The reasoning behind the Supreme Court’s decision was that justifications for the VRA’s restrictions-the history of discriminatory voting practices-was not the same concern it was when the VRA was enacted in the 60s.  Whether this is true or not, the Supreme Court decided that the provisions of the VRA needed to be reviewed by Congress if they were to remain in effect.

In the wake of this decision, many states-Texas, Mississippi, North and South Carolina-passed voting laws which had previously been shut down as potentially discriminatory by the federal government.  Among these was S.B. 14.  However, the law was immediately challenged in court.  In 2014, the law was determined to have discriminatory intent and purpose and struck down.  It was then appealed to the 5th Circuit Court of Appeals, which upheld the ruling in part, but asked the lower court to revisit the matter of discriminatory intent.

This brings us to ruling of last week.  However, as opposed to the initial ruling, there was one huge difference–AG Jeff Sessions.  Jeff Sessions has made it clear that the potential for discriminatory voting laws is not a priority under his watch, and told his attorneys at the Department of Justice to drop this case altogether.  Despite this, and a request from the DoJ plaintiffs to drop the case, Judge Ramos-the judge handling this case-looked to the facts already submitted in coming to a resounding yes on the discriminatory intent and purpose behind S.B. 14.

Discriminatory Intent and Discriminatory Purpose

Discriminatory intent is shown where racial discrimination is a-although not necessarily the only-motivation behind a governing body’s decision.  Discriminatory purpose goes a little further than intent, implying that the law was enacted because of the adverse effects on an identifiable group.  A law demonstrating discriminatory purpose or effect is unconstitutional. A discriminatory impact is not enough on its own for a law to be unconstitutional on its face, there needs to be at least a partial discriminatory motive.

Judge Ramos found such an intent and purpose behind S.B. 14.  In determining to this, she looked to a number of things.  She noted not only the disproportionate impact that the carefully chosen ID limitations had on minorities, she also pointed to racist remarks made by legislators during deliberations on the law, the bypassing of usual procedures in passing the law, and the outright refusal to include anything which would help the public understand the laws.  Additionally, any amendment proposed to make the provisions less harsh–easing registration procedures, reducing costs to purchase the IDs necessary to vote, expanding the acceptable types of identification-were all rejected with essentially no consideration.  In fact, the Texas Congress was specifically advised of the disproportionate impact that the law would have and advised on a number of ways to lessen this disproportionate impact on minorities-they rejected all of them.

The stated goal of the bill was to avoid voter fraud.  However, despite the Texas Legislature being shown evidence that in person voting happened in about two out of every twenty million cases in the last decade and provided evidence that mail-in voting was much more commonly vulnerable to fraud, the Legislature didn’t feel the need to include any provisions on mail-in voting and focused exclusively on in-person voting.

With all this in mind, Judge Ramos ruled that she could find no non-discriminatory purpose for how Texas had approached S.B. 14.

What Will This Ultimately Mean

Unfortunately, despite years of rulings saying this law was intended to prevent minority voters from being represented at the polls, there’s a good chance this law will win out in the end.  Jeff Sessions has, as Attorney General, told the attorneys of the DoJ to cease litigating the case completely.  While Judge Ramos followed through with the case, Texas will certainly appeal her decision.  This appeal will probably have no lawyers opposing Texas, unless an outside group steps in to handle the litigation.  If this is the case, the chances of beating this law drop precipitously.  However, should somebody step in to help fight the law this is a case that has a good chance to make its way to the Supreme Court.  As it stands, even with the addition of Justice Gorsuch, the makeup of the court makes it likely that this law would be struck down and Texas would continue to require preclearance from the federal government for any new law effecting voters.

This hasn’t been a particularly good year for Texas when it comes to their voting process being ruled racially discriminatory.  Two separate courts have already ruled, this year alone, that Texas’ district maps are gerrymandered to “pack and dilute” minority votes.  The determination of Shelby limited the VRA on the premise that discriminatory voting practices were a thing of past generations.  However, this ruling and many other rulings this year have shown the opposite.  It is unlikely that congress, in its current state, will pass any legislation giving teeth back to the VRA.  However, as cases like this are appealed to the Supreme Court, they have the potential to create precedent for a future court ruling reevaluating Shelby.  However, it seems unlikely in the near the future.  Only time will tell how momentous this ruling may be, for now Judge Ramos’ ruling will serve to protect voting rights for minorities in Texas.