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National Jewish Community
Relations Advisory Council Guide to Program Planning Of the Constituent Organizations |
| Jewish Security and the Bill of Rights |
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Constitution Protections in a Pluralistic Democracy Changing Conditions The United States Supreme Court, in its decision in Johnson v. De Grandy, involving reapportionment under the Voting Rights Act of 1965, signaled its intention to treat equality, rather than maximization, of political opportunity as the focus of redistricting plans. Federal court cases testing districting and reapportionment will have significant implications for civil liberties and civil rights protections, and for coalitional relationships. Completing action on campaign finance reform remains a priority of the 103rd Congress. The changing face of the U. S. Supreme Court will bean important factor in shaping the contours of constitutional protections. Background Legislative Reapportionment and Redistricting While the organized Jewish community continues to support the Voting Rights Act of 1965, it has been examining the consequences of the U.S. Supreme Court interpretations of the 1982 amendments to the Act. The amendments have given sanction to legislatures and courts to redistrict, or create entire new legislative districts, for the purpose of increasing the possibility of electing minority group members. (See Joint Program Plan for 1993-94, page 53, for discussion of the Voting Rights Act of 1965 and the 1982 amendments.) In one of the first cases directly involving a Jewish community - Dade County, Florida - in this highly sensitive area, the U.S. Supreme Court expressed its reservations about the wholesale recourse to race-based districting as the centerpiece of the Voting Rights Act, but at the same time signaled that it was not prepared to abandon the use of such districting. Johnson v. De Grandy tested the validity of a redistricting plan for the state legislative seats from Dade County. The plan was developed in July 1992 by a federal district court in Florida, which found a plan previously crafted by the state legislature to be insufficient in its response to Section 2 of the Voting Rights Act, and that Hispanic and black populations were sufficiently numerous, compact, and politically cohesive to warrant additional representation for each group. (The purpose of Section 2, as amended in 1982, is to enable minority voters to shape electoral districts so as to minimize the impact of racism in those communities in which racism was yet a factor. Section 2 is violated if members of a "protected" class "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.") The Florida House of Representatives, the plaintiff in De Grandy, maintained that the district court went beyond the requirements of the Voting Rights Act, and was violative of the spirit of the Act in that it effectively disenfranchised other populations. The district court's approach was that, under Section 2, minority voting strength must be increased to the maximum extent possible. The Supreme Court, in a 7-2 decision, rejected the district court's judgement, and in effect rejected a "maximization" standard as contrary to the purposes of the Act. The maximization of minority political power, said the Court, would inevitably require one group's strength to be enhanced at the expense of another. The Supreme Court also held that in adjudicating challenges to redistricting schemes courts must examine the totality of circumstances determining whether minority groups are able to exercise a fair share of political power. Additionally, the Supreme Court accepted the fact that proportionality would continue to be an important factor in assessing Section 2 claims. The Arnerican Jewish Congress, joined by the Greater Miami Jewish Federation, filed an amicus brief in De Grandy in support of the legislature's plan. The AntiDefamation League, while not supporting any party in the case, took the position that courts are not required, in evaluating reapportionment plans under the Voting Rights Act, to maximize the number of "majority-minority" districts, that is, districts in which racial or ethnic minorities constitute a majority of the voting population. Two other cases, decided by the U.S. Supreme Court during 1993, were significant in this area as well. Voinovich v. Quilter, decided in March, strengthened the power of states to shape voting districts with overwhelming majorities of blacks and other minority groups. The High Court ruled that the Voting Rights Act did not prohibit the creation of "majority-minority" districts even if there was no showing that the new districts were necessary to remedy a pre-existing violation of the Act. The decision in Voinovich made it more difficult to challenge such districts. In a highly significant decision handed down in June, the Court ruled by a 5-4 margin in Shaw v. Reno, the "1-95" case, that state officials, attempting to justify a serpentine district drawn to boost black or Hispanic representation, may have violated the rights of white voters, and must demonstrate a "compelling" reason for such a plan in order to meet the constitutional guarantee of equal protection under the law. However, in addressing the issue of bizarrely shaped majority-minority districts in Shaw, unlike in Voinovich, the Supreme Court did not say whether the deliberate creation of majority-minority districts by itself violates the Constitution. The implications of Shaw go beyond the districting issue. The decision appeared to be consistent with the Supreme Court ruling in 1989 that racial preferences such as minority "set-asides" were unconstitutional because they violated the equal protection guarantees, unless there was distinct evidence that they were needed to correct a specific past discrimination and not a generalized discrimination in society. With respect to districting, Shaw was expected to generate challenges to minority Congressional districts across the South, and in urban states such as Illinois and New York, including areas of Jewish population. The indication of the willingness of CRCs and federations to become involved in some of these cases suggests the seriousness with which the Jewish community takes this issue. While Jewish community relations organizations did not enter Shaw as amici, many of them generally welcomed the decision. The NJCRAC does not have a position on the 1982 amendments to the Voting Rights Act. The Jewish community relations field will be called upon to continue a study process in this area, with a view toward possible participation in cases that may be brought in the courts on these matters. Further, the field will be called upon to develop tactical directions and technical approaches in advance of the next round of redistricting, following the 2000 census. The organized Jewish community will address the question of whether group rights ought be considered as part of the tactical approaches to this issue, especially whether the Jewish community should assert a right to electoral representation as a group. The traditional stance of the organized Jewish community supports the theory that American pluralist democracy assures the right of all individuals, and not groups, to full and equal participation. In examining this issue, Jewish community relations agencies will consider discomfort with remedies that appear weighted in the direction of assuring electoral success for groups, while at the same time recognizing the need to deal with a history of racially-polarized voting that has meant that blacks rarely win elections in non-"majority-minority" districts. In addition, it is necessary to consider the very real potential of strained relations with other groups who view such remedies as central to their efforts at political empowerment. To lessen potential tensions, the field will need to strengthen coalitional ties through joint efforts on projects of mutual concern. Death Penalty Public opinion surveys show that crime is the number one concern of Americans. Senate and House versions of omnibus crime legislation differed on provisions that would expand the number of federal crimes punishable by death, and that would reinstate the death penalty for other federal crimes that already call for capital punishment but whose current language fails to meet Supreme Court guidelines. The Senate version, passed in November 1993, expanded the number of crimes punishable by death to 47; the House would expand the capital punishment rubric to 66, including drive-by shootings, carjacking, and gun and drug related offenses, plus a controversial provision that would impose the death penalty for high level drug traffickers even if no death resulted from the crime. Action on the House omnibus crime bill (H.R. 4092) was expected during the second session, to be followed by a House-Senate conference. A related measure, the "Racial Justice Act," long supported by the NJCRAC, and incorporated in the House bill, was passed by a slim House margin in April 1994, but failed to pass the Senate on May 11. The measure would allow the introduction of statistical evidence in death penalty cases to show possible racial bias in sentencing. As of July 1994, there was no resolution in House-Senate conference of this matter. The Jewish community relations field has long opposed the use of capital punishment. While the NJCRAC supports habeas corpus reform, any restriction on habeas corpus, such as restricting the ability of death row prisoners in fighting the death penalty, requires close scrutiny.
Campaign Finance Reform The Congressional Campaign Spending Limit and Election Reform Act of 1993, S.3 and H.R. 3, passed in June and November 1993, respectively. While welcomed by some Jewish groups as positive steps toward comprehensive reform, these measures contain provisions that are questionable constitutionally. The Senate bill, while providing for voluntary spending limits, did not include a public financing provision, a measure strongly supported by the Jewish community relations field, and included a ban on political action committee (PAC) contributions to congressional candidates. Such a ban is generally believed to be violative of the Constitution. The House measure, H.R. 3, included provisions on voluntary spending limits; partial federal funding of those campaigns complying with optional spending limits; limits on PAC contributions to individual candidates; a limit on the PAC contributions a candidate can receive; prohibitions on "soft money" abuses, the practice by which contributors evade federal spending limits by donating to party organizations which forward the funds to candidates; and a ban on "bundling," the practice whereby an agent collects individual gifts and then contributes those gifts in a lump sum to a candidate. A protracted HouseSenate conference on campaign finance reform is expected during the second session of the 103rd Congress. The NJCRAC's position on campaign finance reform supports voluntary spending limits for Congressional elections; public financing of Congressional campaigns; prohibition of "soft-money" abuses; limits on PAC contributions to individual candidates; and limits on the aggregate PAC contributions a candidate can receive. The NJCRAC does not have a position on "bundling," the closing of the "bundling" loophole, or on the prohibition of PAC contributions to federal candidates. Term Limits The issue of term limits, emerging on the public affairs scene in the 1992 elections, was again salient in November 1993. (See Joint Program Plan for 1993-94, page 52). A number of states have adopted limits of one form or another on legislative terms, generally setting limits of twelve years for Senators and 612 years for members of the House of Representatives . Petitions were filed in Alaska, Mississippi, Massachusetts, and Maine for term limit ballot initiatives for 1994. At the initiative of House Speaker Thomas Foley, an opponent of term limits, two cases, Susan Thorsted v. Christine Gregorie and Margaret Colony v. Ralph Monroe, were brought in federal district court in Washington, challenging Washington Initiative 573, which passed in 1992. Term limits were dealt a sharp setback when, on February 10, 1994, a federal district judge ruled that the Washington law was unconstitutional. judge William L. Dwyer, in the first federal court opinion involving term limits, stated that the Washington law violated the Constitution by setting qualifications for congressional candidates that went beyond those stipulated in the Constitution: age, citizenship, and residency in the state represented. "A state may not diminish its voters constitutional freedom of choice by making would-be candidates for Congress ineligible on the basis of incumbency or history of congressional service," said Judge Dwyer. Ruling that the measure violated both the First and 14th Amendments, he described the term-limits initiative as imposing "unduly restrictive" ballot access requirements inimical to the "freedom of association" guaranteed by the First Amendment. An appeal, with eventual review by the U.S. Supreme Court, is expected. At least one state, California, has already upheld its term limit law. The organized Jewish community opposes term limits as an unconstitutional infringement on the rights of citizens to elect officials of their choice. Homosexual Rights Discrimination on the basis of sexual orientation was a ballot issue in the 1993 election in Cincinnati, where Issue 3, a measure amending the city charter to nullify that portion of Cincinnati's human rights ordinance that gives legal protection to gays, lesbians, and bisexuals, passed easily on November 2. In Lewiston, Maine, a human rights amendment that included non-discrimination for gays and lesbians was repealed by referendum. Also defeated was a non-binding referendum proposed by the Portsmouth, New Hampshire city council on human rights legislation containing provisions for non-discrimination against gays and lesbians. While two states voted on anti-gay ballot measures in 1990, at least nine states are facing efforts to place anti-gay initiatives on the November 1994 ballot. In Oregon, voters narrowly rejected a measure in 1992, reacting to blatant language in the measure equating homosexuality to bestiality. A number of communities passed laws during 1993 based upon the more innocuous language of the Colorado initiative (see joint Program Plan for 1993-94, page 52). In response, the Oregon legislature passed legislation that, while not repealing those local laws, prohibits their enforcement. With respect to the Colorado initiative, the Colorado Supreme Court ruled in 1993 that the measure was an unconstitutional violation of the "equal-protection" clause. Looking toward the November 1994 elections, anti-gay ballot-initiative petitions were circulated in a number of states, including Arizona, Florida, Idaho, Maine, Michigan, Missouri, Nevada, Oregon and Washington, with a strong possibility in Ohio as well. Most of the states targeted with ballot initiatives are those with contested U.S. Senate races in 1994. The NJCRAC opposes discrimination based on sexual orientation in employment, housing, public accommodation, and education; supports legislation to bar discrimination in these areas; and opposes ballot initiatives and other measures that would threaten these protections. The NJCRAC supports the incorporation in sexual orientation discrimination legislation of exemptions designed to protect the right of religious institutions to carry out their religious purposes. Balanced-Budget Amendment In the second session of the 103rd Congress both houses fell short of the two-thirds majority required for passage of a constitutional balanced budget amendment. The NJCRAC opposes amending the Constitution for the purpose of mandating a balanced federal budget. The organized Jewish community views amending the Constitution as a serious matter that ought not be viewed as an opening or opportunity for special interest groups. Such amendments can have chilling effects on social programs that the field has long advocated, unfairly and unrealistically transferring the burden of social needs to the states, and seriously impeding the ability of the Congress to respond quickly to crises. In addition, a balanced budget amendment would severely limit flexibility in responding to international developments and might lead to limitations in aid to Israel. (See section on Poverty and Welfare Reform.) The Federal Judiciary The expected expansion of the "moderate center" of justices David H. Souter, Sandra Day O'Connor, and Anthony M. Kennedy by the addition to the Court of justices Ruth Bader Ginsburg and Stephen Breyer is expected to continue to mitigate the effects of a federal bench that was in large measure shaped by the Reagan and Bush Administrations. The effects with respect to constitutional issues such as reproductive rights, right to privacy, and other such "unenumerated rights"; capital punishment and prisoners' rights; and First Amendment questions will be such as to strengthen the moderate center in its efforts against reversing or modifying these protections. Priority Strategic Goals The Jewish community relations field should - continue the process of monitoring and assessing nominations to the federal judiciary in the context of the fundamental premises of the Jewish community relations field; - continue to support both congressional action that would buttress constitutional guarantees and Bill of Rights protections as well as state legislation that would protect civil liberties and individual freedoms; - continue to study the impact of the 1982 amendments to the Voting Rights Act of 1965 and of federal court decisions in this area on reapportionment and redistricting in terms of disenfranchisement and other civil liberties and discrimination questions, and explore entering as amicus in cases testing these situations; and, in advance of the next decennial census, to develop technical approaches necessary to address districting questions that will arise; - advocate campaign finance reform, particularly public funding of Congressional campaigns, consistent with the NJCRAC principles of campaign finance reform; - oppose ballot initiatives in states and municipalities, explore entering as amicus in cases that infringe on the civil rights and liberties of homosexuals, and work in coalition with other groups to defeat such measures; and support anti-discrimination legislation that includes exemptions for religious institutions;
- oppose legislation that would expand the rubric of crimes punishable by death, and that would unduly restrict prisoners' ability to file habeas corpus petitions. The Union of Orthodox Jewish Congregations of America does not join in the subsection on homosexual rights. We are opposed to discrimination and vigilantism against any individual or group. The Halacha, however, prohibits homosexual activity, and we cannot join in a statement that could be misinterpreted to imply otherwise, The Jewish War Veterans of the U.S.A. dissents from the strategic goal which opposes restrictions that infringe on the civil rights of homosexuals, if this goal manifests itself in opposition to the Clinton Administration policy of "Don't Ask, Don't Tell" regarding homosexuals in the United States military, or for use in the preclusion of homosexuals from public festivities such as the Salute to Israel Parade in New York. |
