President’s weekly report — January 5, 2013

Individual Rights — Equality Under the Law Project

Shelby County v. Holder on Jan. 2, 2013.  Back in the early years of the civil rights movement, federal oversight of southern voting practices was a sad necessity in order to ensure that all citizens were given a fair opportunity to freely exercise their right to vote.  Federal oversight was a drastic remedy for a drastic problem, and a remedy that necessarily impinged on state sovereignty.  Even the smallest change in electoral practices had to, and still must be, approved by federal authorities.  But surely things have changed in a half-century.  As we argue in our amicus brief, the time has come to remove the hand of the federal government from the micromanagement of voting procedures.   Let us hope the Supreme Court agrees and puts an end to federal oversight.

Individual Rights — Michigan Proposal 2

Contrary to every other jurisdiction that has looked at the issue, the Sixth Circuit recently held that a statewide initiative in Michigan that guarantees equal protection to all citizens, regardless of race, is itself a violation of the Federal Constitution’s Equal Protection Clause.  In striking down Michigan’s Proposal 2, which was modeled after California’s highly successful Proposition 209, the Sixth Circuit stands alone among courts — from Florida to Arizona and, of course, to California that have upheld such measures.  This week, in Schuette v. Coalition to Defend Affirmative Action, PLF filed an amicus brief in support of the petition for certiorari filed by Michigan The bottom line is that the Sixth Circuit’s decision creates a doctrinal conflict that can be resolved only by the Supreme Court.

Free Enterprise — Supporting Contracts

In late December, The Texas Supreme Court handed down a decision in El Paso Services v. Mastec North America.  The underlying dispute here involved the degree to which an oilfield servicing company should be responsible for the extra costs in dealing with some buried and not well-mapped pipelines on a project site.  While the contract spelled out in detail how the costs were to be allocated, one of the parties complained — saying the costs were higher than it thought they had anticipated.  They asked and a Court of Appeals agreed, that the terms of the contract should be rewritten.  As our amicus brief pointed out, parties who assume risks when entering into contracts should be responsible for those risks — absent fraud or similar circumstances.   The Texas Supreme Court agreed with our arguments that contracts should not be rewritten from the bench.