Smoking Ban Case and Judicial Creation of Legislative Intent
The North Carolina Court of Appeals held that a private for-profit club (Gates City Billiards Country Club) did not have its equal protection rights violated by the state’s smoking ban law that permits smoking in private non-profit clubs but not private for-profit clubs (See Liebes v. Guilford County Department of Public Health).
To treat clubs differently based on for-profit v. non-profit status, the state must have a rational basis for the distinction. This means, as explained in the case, that the distinctions "bear some rational relationship to a conceivable legitimate governmental interest."
This is an easy standard for the government to meet.
However, what is particularly interesting is how far the court had to go to come up with a justification for allowing the distinction. Since there’s no clear legislative history or clarification within the statute as to why the distinction was made, the court analyzes the rational basis test by coming up with its own possible rational reasons why the legislature made the distinction between for-profit and non-profit private clubs.
The distinctions that the court identifies are simply guesses as to the legislature’s true motivation. Unfortunately, courts create massive hurdles for a plaintiff to strike down a possibly unconstitutional provision by starting with the presumption that the provision is constitutional.
Practically, it may not be feasible for there to be a clear indication of legislative intent for every provision, but on something of such magnitude (equal protection implications), there certainly should be some background on why parties are being treated differently.
On the federal level, more detailed legislative histories, including committee reports, help to inform courts. When there’s basically nothing to go on for a state court, the courts create a policy rationale.
The state legislature should consider developing more detailed records when constitutional issues may arise.
Voting Rights Act and Kinston
As discussed here, in 2008, Kinston voters passed a referendum by about a 2-1 margin changing municipal elections from partisan to nonpartisan.
Since Kinston is in Lenoir County, which is subject to Section 5 of the Voting Rights Act, the change made by the referendum couldn’t be implemented without the approval of the United States Department of Justice (DOJ). Section 5 requires certain jurisdictions to get pre-approval (known as "preclearance") before making changes to voting procedures. In 2006, Congress reauthorized Section 5 for 25 more years (even though Section 5 was originally only meant to exist for 5 years when passed in 1965).
DOJ decided that it wasn’t going to respect the vote of Kinston voters because, in part, "the elimination of party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice."
In a very important case, the D.C. Circuit Court of Appeals has held that private parties in Kinston do have standing to challenge the reauthorization of Section 5 of the Voting Rights Act. This means they can challenge the law as being unconstitutional in general (as opposed to challenging the specific actions taken by DOJ). The former is referred to as a "facial challenge," whereas the latter is an "as-applied challenge."
The very issue of whether or not Section 5 is constitutional may be determined by the plaintiffs from Kinston. This is a big deal because the Supreme Court has hinted in a case called Northwest Austin Municipal Utility District v. Holder that it may find Section 5 unconstitutional.
When it comes to questions of federalism, there may not be a bigger intrusion into state sovereignty than the Voting Rights Act. There’s simply no basis for requiring certain jurisdictions to get pre-approval of voting procedures more than 45 years after the Voting Rights Act was passed.
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