Reforming the Electoral Count Act

Amid partisan debates over voting rights, a bipartisan consensus is building around the need to reform the Electoral Count Act.  Congress passed this law in 1877 to establish a process for counting electoral votes and resolving electoral disputes.  The purpose of the ECA was to avoid repeating the debacle of the disastrous 1876 presidential election in which Republicans and Democrats, in southern states beset by violent voter suppression against Blacks, sent rival electoral certificates to Congress.  (The negotiated resolution allowed Republican Rutherford B. Hayes, rather than his Democratic opponent Samuel Tilden, to assume the presidency.)    

For over 140 years the Electoral Count Act operated with little fanfare.  That changed with the January 6, 2021 insurrection at the U.S. Capitol coupled with Republican demands that then-Vice President Pence subvert the 2020 election by rejecting electoral votes for Joe Biden.  (Pence reportedly considered the request but refused.) Fresh concerns about this near-meltdown of American democracy and what it might portend for the future have brought new attention to the ECA, with commentators across the political spectrum calling for a legislative fix.  While it remains to be seen what such a process might produce, for now there is guarded optimism that a fix is possible. 

The Supreme Court and Environmental Law

One of the biggest legal issues of 2022 will be how far an activist majority of the Supreme Court is willing to go to block the Biden Administration's implementation of its policy priorities. How much will the Court reshape administrative law to advance the majority's policy preferences? The range of possibilities is large. When deciding challenges to regulations, will the Court limit itself to narrow statutory grounds and existing judicial precedent? That might block some regulatory initatives but would not wreak fundamental legal change. Will the Court dispose of the Chevron doctrine, which since the Burger Court and the Reagan Administration has given deference to executive branch interpretations of ambiguous Congressional enactments? That would substantially empower the Court relative to the President, even though Chevron's application has been inconsistent. Will the Court revivify the non-delegation doctrine, which has not been the basis for holding a statute unconstitutional since the New Deal? That could augur the achievement by judicial opinion of what has been impossible to achieve  by legislation: the effective repeal of vast swaths of legislation and a major dismantling of the administrative state.

The stakes are high for many substantive areas of law, but perhaps more for environmental law than any other. With no prospect of meaningful Congressional action on climate change, the Court's view of the Administration's efforts will determine whether the United States has any likelihood of meeting its commitments to reduce greenhouse gas emissions. But a host of other environmental laws, including those that protect Americans from air pollution, water pollution, hazardous waste, wetlands destruction, and loss of endangered species -- are at risk.

Employee Rights Under the ADA

The COVID-19 pandemic exposed how one person’s rights often conflict with another person’s rights, sometimes with deadly consequences. Individuals with disabilities were especially hit hard at home and work.

Employees with disabilities are entitled to reasonable accommodations by the Americans with Disabilities Act (ADA) to enable them to perform their jobs. But the COVID-19 pandemic—and the Supreme Court’s dogged elevation of religious freedoms over other rights—have furnished employers with new arguments to resist certain workplace accommodations for employees with disabilities.

Just as addressing a pandemic requires a communal response, accommodating an employee with a disability involves employers and often co-workers. The ADA rightfully balances the communal impact of accommodations by enabling employers to deny a reasonable accommodation that would impose an undue hardship on it, including considering how accommodating an employee with a disability would affect other employees.

The pandemic has raised new conflicts. Can a reasonable accommodation for an ADA-covered employee include the requirement that non-disabled co-workers become vaccinated, wear face masks, test for contagious diseases, or take other actions that affect their personal autonomy? How will courts balance the rights of employees who seek disability accommodations with those who seek conflicting religious or personal accommodations? Will labor shortages become a catch-all defense for employers to reject disability accommodations? How courts resolve these conflicts will shape the rights of employees with disabilities in the post-COVID-19 workplace.

Barring School Segregation in New Jersey

I believe that there's another important state constitutional issue brewing in NJ. It has to do with the State's commitment to meaningfully enforce the two clauses relating most directly to public education--the thorough and efficient education clause and the clause barring school segregation.  There are pending cases regarding both in the state courts, and, in my view, the State's response has been similar--to delay resolution for as long as possible and to proffer constitutional constructions that threaten to undermine longstanding state constitutional jurisprudence. 

The most notable cases are:

• The Lakewood case, Alcantra, et al. v. Hespe, et al., which has recently been appealed to the Appellate Division from a final decision by the acting commissioner of education regarding the construction of the T&E clause and the School Funding Reform Act's constitutionality as applied to Lakewood; and
• The Latino Action Network case, LAN, et al. v. State of New Jersey, a challenge to the State's alleged maintenance of a segregated system of public education.