Ramsey County Law Library Blog

Wisconsin, North Dakota, Texas and North Carolina all had voter fraud laws struck down recently by various federal courts.  In each case, the state law in question was found to disenfranchise nonwhite voters. North Carolina was the leader of this pack, with laws that the Court found to be tailored with “surgical precision” to disenfranchise black voters. All of these cases come a mere 3 years after the U.S. Supreme Court struck down essential parts of the 1965 Voting Rights Act in  Shelby County v. Holder.  In that case, the Supreme Court determined that the Act’s more “extraordinary measures” and “disparate treatment of the states” were no longer necessary tools to combat voter discrimination.  Previously the Act had required that states identified with a history of discrimination obtain approval from the federal government before they could make changes to their election laws that might restrict voting rights.  Looking at the named four states, only parts of North Carolina had been specifically targeted by the 1965 Act.  But with the exception of Texas, the offending laws for each of these states had been enacted shortly after the Supreme Court’s Shelby County ruling.

Minnesota enjoys high voter participation, likely the result of such voter-friendly tools as same-day and online registration.  However, Minnesota’s voter registration has not always been completely inclusive.  The word “white” remained in the Minnesota statutory requirements for voter registration until 1868, and Minnesota only ratified the 15th Amendment in 1870.   Even today, Minnesota’s big voter disqualifier remains the ineligibility of felons to vote until their civil rights have been completely restored, including (sometimes lengthy) time spent on probation or parole. It can be argued that the effect of felon disenfranchisement is disproportionately race-skewed, and some might say intentionally so, given that many such laws were enacted shortly after the Civil War.

If you would like to learn more about the history and application of the Voting Rights Act, consider reading The Most Fundamental Right: Contrasting Perspectives on the Voting Rights Act edited by Daniel McCool.  It is available here in the law library.  If you would like to hear more about voter eligibility and registration in early Minnesota, be sure to attend our program this September 26, wherein Dr. William Green will present “Civil Rights in Minnesota: The Early Years.”

Last week the 8-member U.S. Supreme Court released its opinion in the much-watched Birchfield v. North Dakota, which the Court heard in a consolidation with two other cases, including Minnesota’s own Bernard v. Minnesota. Remember that Bernard started as a 2012 police encounter on the river bank in Dakota County wherein the intoxicated-appearing defendant refused the breathalyzer test.   It is significant because of Minnesota’s implied consent statute criminalizes the refusal to take a DWI test (instead of mere grounds for license revocation).  (Minnesota adopted this more punitive law in 1989.  See 1989 Minnesota Laws, Ch. 290, Art 10.) Minnesota’s statute also states that one who drives in the state consents to chemical testing of breath, blood, or urine.

In its opinion, the Court (Justice Alito and four of his colleagues) held that the breathalyzer was not an intrusive test, and therefore its administration can be part of a legitimate search incident to a lawful arrest.  The Court drew the line at blood tests, holding that they were too invasive to be part of a lawful search incident to a lawful arrest, and thus required a warrant. So, Minnesota’s implied consent statute still stands, at least as far a breath testing as concerned. Three of the justices disagreed that there was a difference in blood and breath tests for Fourth Amendment purposes.  Justice Sotomayor (joined by Justice Ginsburg) dissented, pointing out that most breath tests in Minnesota are performed about 45 minutes after a person is detained, with plenty of time to get a warrant. Arguing the reverse, Justice Thomas’ dissent objected to “splitting hairs” between breath tests and blood tests, proposing that neither tests require warrants.  The Court did not analyze the constitutionality of testing urine in this context, which one might guess falls somewhere between breath and blood in the Court’s Birchfield analysis.

So what does this ruling mean for Minnesota and other states?  Expect to continue seeing this gadget in the criminal justice arena, despite challenges to its accuracy and effectiveness.

(Legal history buffs who enjoy this blog should read the Birchfield opinion for the information treats provided by the Court.  For instance, the opinion in State v. Noble (1926), 119 Ore. 674, 250 P. 833 is from an early case analyzing early drunk driving laws on Oregon.)

The Twin Cities arts community surfaced in the news lately, but not for the sake of art. It was because last month the Institute on Metropolitan Opportunity at the University of Minnesota Law School released its report The Rise of White-Segregated Subsidized Housing,” which examined the makeup of local artist lofts and their tax credit system in comparison to more conventional subsidized housing.  The study found that subsidized artist housing in the Twin Cities is overwhelmingly occupied by white populations, in stark contrast to other local public housing.  As an example, the Tilsner Artists Cooperative in the heart of Lowertown is 92% white, according to the report.  These findings made headlines in publications including The Atlantic as well as this week’s Minnesota Lawyer.

No one suggests that there is a deliberate, conscious effort to keep these artist lofts white-occupied.  Yet the report raises questions about the nature of the use of the Low Income Housing Tax Credit (LIHTC) system utilized by the artist housing projects.  Other unspoken forces may be at play.  Neighborhood residents may be more accommodating of “artists” occupying the historic building on their block, rather than “poor people.”  And the application process itself may be subtly unfavorable to artists of color.  To be fair, not all artist housing in the Twin Cities has such racially-skewed numbers.  At the 653 Artist Lofts in Frogtown, only 50 percent of residents are white. But these accommodations are much more modest in comparison to those like the Tilsner.  Indeed, some of the housing illuminated in this report stands out in its luxury factor.  This picture from the Pioneer Press of the rooftop deck of the Schmidt Artists Lofts shows truly stunning living amenities.

Is this an unfair attack on artists lofts?  Developers and housing advocates say that artist housing projects hit a variety of city goals, such as historic preservation and redevelopment of vacant industrial sites in neighborhoods that could sometimes use an economic development boost.  They keep an artistic element in areas that are gradually gentrifying.  They also feature in very public community events like the St. Paul Art Crawl.  Artists lend a vibe to a neighborhood that affluent residents will pay money to have in their backyards, which we might call the “YIMBY” syndrome.  Also, where do artists and art communities stand in a free market setting without such subsidies as these to keep their work space affordable? The recent fate of the Jax Building gives us an idea.

Here’s a final, provocative question: Do these luxury work-life homes risk depriving artists of contact with a more diverse and representative society, which might inspire them to create more socially visible and relevant artwork?

People living with mental illness are disproportionately represented in the criminal justice system. It is estimated that 1 million people with mental illnesses are arrested and booked in the U.S. each year.  This is no surprise to anyone who reads the local news.  Criminal arrests and convictions in our community are frequently revolving around defendants with confirmed mental health issues.  After last month’s law office tragedy, we are only too aware that local attorneys frequently find themselves representing mentally ill clients who can become dangerous.

The bigger problem is that mental illness is an affliction that our society hasn’t found a perfect way to manage.  In the early days of our country, the mentally ill were cared for at home by their relatives, which was easier when people lived in rural communities with open spaces and fewer neighbors.  What became known as the “insane asylum” became more standard as our society became more urban and mobile.   (Read this interesting article about Minnesota’s history of institutionalizing the mentally ill.) These asylums developed a bad reputation in the 20th Century for their record of human rights violations, and many people understandably cheered the deinstitutionalization movement of the 1970’s.  Unfortunately, the end result was thousands of people needing help in managing their mental conditions, and not getting it.  Instead, their resulting instability often landed them behind bars.  And whereas people might feel safer when the people they consider to be dangerous are locked up,  jails seldom offer the consistent structure and treatment needed for their mental conditions.

It is  step in the right direction that lawmakers are considering the best training for law enforcement in handling mental health calls.  Other positive steps within the criminal justice system for handling the mentally ill include Minnesota’s 48 hour rule and the 2nd Judicial District Mental Health Court.  Albeit positive steps, they are no substitute for ongoing care and maintenance that the mentally ill are likely to need.  Read more about the dilemma in this recent Pioneer Press article.  The New York Times is also featuring an in-depth editorial discussion on this subject.