Category Archives: Judicial

Pennsylvania Redistricting

Monday, the Pennsylvania Supreme Court issued an order (with attached maps) redrawing the Congressional Districts for Pennsylvania  This order follows on last month’s decision finding that the 2011 map violate the Pennsylvania Constitution as a partisan gerrymander.  The United States Supreme Court is currently considering two cases — one argued last fall and one scheduled to be argued next month — on whether the U.S. Constitution also bars partisan gerrymanders.

I will leave it to our local experts to follow up on exactly how the new lines should impact November’s election.  The key points to make for now are:  1) this map will govern this year’s elections as filing with the Supreme Court’s including a time table for implementation of the order and candidate filing that will allow the primary to take place as scheduled; 2) the old maps were gerrymandered in such a way that the Republicans have carried 13 of the 18 districts (and the same 13) in each of the three elections so far under the old map (even though the Democrats won state-wide by 5% in 2012 and 9% in 2014 and barely lost in 2016);  and 3) in the three elections under the old map, 37 of the 39 Republican wins were by double digits (the other two involved margins of 9% and 4%).   The early numbers that I have seen from national prognosticators is that Democrats should pick up at least two seats in a 50-50 cycle and, in a cycle in which Democrats get 55% or more nationally, the Democrats would pick up an additional 2 to 3 seats (a 9-9 split or 10-8 in favor of the Democrats).  That compares to 2012 in which the Democrats got 53% nationally but still only won 5 seats in Pennsylvania.

One thing that is significantly different about the new map is that there are less weird shapes, and most of the weirder shapes in the new map comes from not splitting counties or municipalities unless such splits are absolutely necessary to maintain equality.  There is also some changes in the numbering.  As a result, some incumbents (including whomever wins the upcoming special election in Western Pennsylvania) will have to decide what district they will run in this year.  Some incumbent may be looking at a situation in which either: 1) their base is split between multiple districts; 2) they live in one district while the heart of their old district is in another district; 3) their new district contains a substantial portion of the old district of another incumbent.  As such, sitting members may have to decide between retiring, challenging another incumbent from their party, or running in a district in which they will have a difficult time running.  We may not know until filing closes on March 20 (one week after the special election) how the incumbents will reshuffle from the old seats to the new seats and whether we will have any incumbent vs. incumbent primaries or general elections.

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Supreme Court Timewarp: Revenge of the Computer Nerds

Imagine that you are back in the mid-1980s.  Most people’s knowledge of computers comes from the movie Wargames.  Some larger business and universities had computer networks with employees having work stations, but home computing was just beginning.  Apple had just introduced the McIntosh, but, if you used a Microsoft operating system, you were using MS-DOS.  Additionally, your home computer used a dial-up modem if you wanted to communicate with other computers.  To communicate with another computer, you needed to know the phone number for that computer’s modem.  (If you were just searching to see what was out there, there were techniques and programs known to hackers to find other computers and save those numbers for later use.)  A pre-internet existed through “bulletin board systems” which allowed the posting of messages and downloading and uploading information through that system.

It was in this era that Congress passed the Stored Communications Act of 1986 as Title II of the Electronic Communications Privacy Act of 1986.  While there have been some minor changes since 1986, the core provisions of that Act (codified as Sections 2701 through Section 2712 of Title 18 of the United States Code) are essentially the same as they were in 1986.

While most of the provisions of the Stored Communications Act protects the rights of those who use electronic communications, some of the sections (including Section 2703) establish the procedure by which the government can obtain stored communications when needed for a criminal investigation.  The procedures recognize that these communications might be stored in another state and require companies to honor warrants issued in the state in which prosecutors need access to those communications. Continue Reading...

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A Long December

The year comes to a close with its usual mix of good news and bad news.

On the 2020 presidential election, the Unity Reform Commission has completed its work.  Josh Putnam over at Frontloading Headquarters has posting summaries of the Commission’s decisions.   From the first two summaries, the recommendations seem to be moving toward more open primaries (a reversal of the party’s traditional support for closed primaries) and to make caucuses more like primaries with a preference toward using the primary if there is a state-run primary.  These recommendations will go to the Rules & By-laws Committee (which folks may remember from 2008).  The Rules & By-laws Committee will take these recommendations into account in drafting the 2020 Call and Delegate Selection Plan.  When the draft is concluded, the RBC’s draft goes to the full Democratic National Committee for approval.  If the Unity Reform Commission believes that the RBC is not fully implementing their recommendations in the draft, they can ask for the full DNC to intervene.  Presumably, the party will also begin its site selection process early in 2018.

As the site selection and the rule drafting process continues, there will probably be a lot of discussion here.  For now, it is important to be cautious about changes driven by the problems of the last cycle.  There is always a temptation to “fight the last war.”  But the problems in one cycle do not necessarily recur in the next cycle, and it is important not to do things that will probably make more problems than they fix. Continue Reading...

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To Bake or Not to Bake

This week, the United States Supreme Court will hear arguments in Masterpiece Cakeshop vs. Colorado Civil Rights Commission.  The case involves Colorado’s civil rights statutes which prohibit discrimination based on sexual orientation.  The petitioner — a baker — claims that he should be exempt from that requirement because he believes that gay marriage is morally wrong and, by making him sell a wedding cake to the happy couple, the Colorado law is compelling him to endorse the wedding.

In many ways, this case is similar to the Hobby Lobby case from several years ago, but, in some key ways, it is different.  The main difference requires going back thirty years to a rather infamous free exercise decision, Employment Division of Oregon vs. Smith.  In Smith, Justice Scalia all but wrote the Free Exercise Clause out of the Constitution — holding that it created no exemption based on religious belief from a generally applicable law.  In response, Congress passed the Religious Freedom Restoration Act which was intended to restore the pre-Smith interpretation of the Free Exercise Clause.  There are, however, two problems with the Religious Freedom Restoration Act.  First, as shown by Hobby Lobby, it actually created more protections than the pre-Smith decisions.  Second, the United States Supreme Court has held that it only creates a rule for interpreting federal statutes and that Congress does not have the power to impose a similar rule on the states.  Because this case involves a state law, the RFRA does not apply.  While the baker attempts to raise a free exercise claim, that claim is unlikely to succeed under Smith as the ban on discriminating against homosexuals is a law of general application.  That does, however, leave the free speech claim.

The free speech claim brings us back into the Hobby Lobby universe where the question is whose perception controls.  Besides actual speech, free speech protection extends to expressive conduct.  Furthermore, as a general matter, the government may not compel speech.  The question is thus who is speaking in this case — a question that could blow a significant whole in civil rights law. Continue Reading...

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The Future of Redistricting

At 10 a.m. on Tuesday, October 3, the Supreme Court Justices will take the bench and the Chief Justice will call for arguments in Gill vs. Whitford — a case on direct appeal from a three-judge panel in which the majority of the panel found that the legislative districts in Wisconsin were the results of an unconstitutional partisan gerrymander.  Then, on Friday, the justices will discuss the case in conference, and — depending on the vote — either Chief Justice Roberts and Justice Anthony Kennedy will assign this case to one of the justices to write the opinion.  Then — probably in February or March — we will get a series of opinions (with possibly no opinion having the support of five justices) that will define the rules for the next cycle of redistricting starting in 2021.

This case has its roots in the framing of the Constitution.  The original structure of the British parliament awarded a certain number of seats to each incorporated borough (town) and to each shire (county).  When combined with the fact that only freeholders (property owners) had the right to vote, by the middle of the Eighteenth Century, there were boroughs that were very small with only a handful of voters (so-called “rotten boroughs”).   The non-representative nature of the British Parliament was one of the reasons why colonists did not accept the argument that they were represented by the British Parliament.  In drafting the U.S. Constitution, at least for the House of Representatives, the framers decided that representation in Congress would depend upon population based on a decennial census.

By requiring that representation in the House would be based on representation, the Constitution created a de facto requirement that states draw new congressional districts (at least when a state’s representation changed).  Some, but not all, states also based representation in state legislatures on population — again requiring periodic redistricting.  In simply requiring redistricting, the U.S. Constitution was ahead of its time.  Now, most countries that use a first-past-the-post system also have periodic redistricting.  The vast majority of them also use a non-partisan commission with specific criteria to draw fair and competitive district lines.  The framers, however, did not have the extra two centuries of seeing what works and what doesn’t work in the redistricting process.  And it is some of what happened next in the U.S. that has led the other countries to have neutral agencies handle redistricting. Continue Reading...

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Supreme Court 2017-18 Term Preview: Part III (Remaining Cases)

In Part I and Part II, we looked at the cases that have already been scheduled for an argument.  This post will look at the cases for the remainder of the term.

As of this point in time, the Supreme Court has not yet announced the schedule of the cases that will be argued in December.  (The December argument session actually begins the Monday after Thanksgiving, November 27.)  There are six available dates for argument and ten cases available.  (To get to ten available cases, the Supreme Court granted review in the middle of August to replace one case that was dismissed.)  It is possible that some of the ten cases may end up in January, particularly if they do not accept many cases over the next several weeks for January.  (The briefing schedule typically requires at least three months between the Supreme Court granting review and the argument.  As such, the January argument docket will come from the cases already granted and the additional cases added between now and October 16.)

As with the previous posts, some of the cases available for argument in December are somewhat technical issues that will not get a lot of public attention. Continue Reading...

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Supreme Court 2017-18 Term Preview: Part II (November Arguments)

In Part I of this year’s Supreme Court preview, we took a look at the ten cases set for argument during the first two weeks of October.  Currently, for it’s six-day November argument session (which actually begins on October 30), the Supreme Court has eight cases.

Unlike October in which seven cases have the potential to generate headlines or impact elections or major policy issues, November looks a lot less intense.  The first week is one of those technical weeks that matter mostly to the parties and the attorneys who practice in an area — two cases dealing with the procedure for federal habeas practice (the review of state court decisions by the federal courts), one case deals with bankruptcy issues, and one case deals with the tolling of state law claims while a related federal claim is pending.  The second week starts with another two technical cases — another bankruptcy issue and a case on the disclosure requirements for companies that have publicly traded stocks and bonds (focusing mostly on when an incomplete disclosure is misleading).

The last two cases — set for November 7 and November 8 — respectively are the big political cases of the November argument session.  The first case (Patchak) involves what appears to be a growing trend — Congress passing laws to deal with pending cases.   In this case, after federal courts had found that plaintiff’s had raised colorable claims (i.e. ones that, if true, would entitle him to relief), Congress passed a law directing that the courts to dismiss the case.  While Congress does have some authority to change the laws governing certain types of claims or the procedural rules that apply to claims, the rules are a little bit less clear when Congress tries to direct the judgment in a specific case.  Adding to the complicating factors, the case involves the U.S. government taking land into trust for a tribe.  While the merits of whether the land properly belongs to the tribe is technically not the issue at this stage of the case, that may play some role in the analysis. Continue Reading...

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Supreme Court 2017-18 Term Preview: Part I (October arguments)

It’s mid-September which means that the Supreme Court will soon be returning to Washington for this year’s term.  The Supreme Court, for the most part, controls what cases it will schedule for full briefing and oral argument.  For this fall, the Supreme Court has a total of twenty-eight cases (actually a little more, but several cases have been consolidated) available for argument over seventeen argument days.  They have posted the schedule of cases for October and November with the remaining cases likely to be scheduled for December (although some may be heard in January).  It is unclear if the low number of cases is the product of the time that it took to fill the vacancy on the Supreme Court or is the continuation of the long-term trend under the last three Chief Justices to gradually reduce the number of cases heard.    However, the numbers tend to support the “reducing the docket” theory.  While the January “holdover” cases are slightly low (only three), the number of cases on which the Supreme Court granted review in February and March are close to average.  The real “below average” months are the months after Justice Gorsuch took the bench.

This part will look at the cases currently scheduled for argument in the  “October” session beginning on October 2.  As in past years, I will be focusing mostly on the “political” case, those dealing with elections or with heated public policy issues.  These cases aren’t the entirety of the Supreme Court docket.  A lot of the Supreme Court docket deals with resolving conflicts over the interpretation of interpretation of federal statutes or handling criminal justice issues.  These cases do not get a lot of media attention, but they do matter to the persons impacted by them.

Of the ten cases on the October docket, three deal with immigration issues.  Two of the cases (Dimaya) and (Jennings) are rearguments from last year.  The belief is that these cases were probably 4-4 splits, but that might not be the case for Jennings. Continue Reading...

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The Supreme Court and Immigration

The Statue of Liberty stands as a symbol that this nation was built on immigration.  This past term (and apparently this upcoming term) immigration was a significant part of the Supreme Court docket.  Of the eight cases involving immigration or the border, the Supreme Court issued decisions in five, sent one back to the lower courts (in light of one of the four decisions), and set two for re-argument in the fall (as both were argued before Justice Gorsuch joined the bench, the implication is that there was a 4-4 split or that the majority lacked a consensus on the legal theory for the result).  In addition, the Supreme Court is going to hear argument on the travel ban.

Going in chronological order, at the end of May, the Supreme Court issued a decision on the crimes that trigger deportation — narrowly interpreting the statute to limit the state offenses that trigger deportation.  The decision involved charges of sexual abuse against minors with the court defining minor as under 16 and requiring that the state offense be limited to minors under sixteen.  On the cases that were decided, as discussed in an earlier post, the Supreme Court struck down the law governing birth citizenship when a child is born abroad to parents with split citizenship (i.e. one is a U.S. citizen and the other is not) because the law discriminated based on the gender of the U.S. citizen.

In the next to last week of the term, the Supreme Court issued three more decisions.  The first case — involving a challenge to immigrants arrested after 9/11 — technically was not about immigration but about the right to sue the government and government official for civil rights violations.  While there is a federal statute authorizing individuals to sue state officials, there is no such statute for civil rights violations by federal officials.  While the Supreme Court has authorized such suits in a limited number of circumstances, the Supreme Court has been reluctant to expand that right.  The Supreme Court found that the claim in the most recent case were not similar to the previously recognized claims and decided that it was up to Congress to decide whether to enact a statute authorizing such claims.  That decision also led to the decision to send the second civil rights case (involving a cross-border shooting) back to the lower court to review whether it was the type of claim that could be brought.  (The lower court had originally decided the case on the issue of whether it was a civil rights violation.  In sending the case back, the Supreme Court raised doubts about some of that reasoning.) Continue Reading...

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Free Speech Uber Alles

The late Supreme Court Justice Hugo Black was famous for a very literal interpretation of the First Amendment — that the language in the Amendment providing that “Congress shall make no law” meant that Congress should make no law.  While the current Supreme Court does not go quite as far as Justice Black, a consistent theme of the Roberts Court has been — with the occasional exception that proves the rule — a very broad interpretation of the First Amendment to strike down any law in which the government either directly (by banning it) or indirectly (by favoring other speech) regulates speech.  Simply put, if there is a free speech component to your case, the expectation has to be that the government will lose if the Supreme Court grants review and the only question is exactly how the justices will line-up in the decision.

This week saw the last two free speech opinions of the term (there is a remaining free exercise case that could incorporate some of the recent free speech cases into that sphere of law) — both issued on Monday.  In both cases, the ultimate decision was unanimous, but there was a liberal-conservative split in the reasoning.

The more “traditional” case was Packingham v. North Carolina.  This case involved a North Carolina statute that barred registered sex offenders from accessing commercial social networking website if juveniles could also join that site.  (Under the very broad definition used by North Carolina, this site might qualify.)  All eight justices (the case was heard in February before Justice Gorsuch joined the Court) agreed that the statute was overbroad and not narrowly tailored due to the sheer number of sites covered by the statute that were not primarily designed to facilitate the type of one-on-one real world interaction that the Court saw as the legitimate purpose behind the statute.  The main disagreement in the case — between Justice Kennedy writing for the “liberal” majority and Justice Alito writing for the three conservative justices — was how to characterize the internet.  The majority described the internet as the functional equivalent of public streets and parks.  (In free speech law, streets and parks are considered “public forums” and the government’s ability to regulate is very limited — some content-neutral “time, place, and manner” restrictions like requiring parade permits are allowed, but such restrictions are closely examined to determine that they are not being used to prevent speech.)  From a factual point of view, this analysis is partly accurate.  The internet itself is arguably like a street, but the individual websites are more like private homes and offices.  The dissent — borrowing from language in the majority about the need to be cautious in applying existing legal categories to the internet to avoid inhibiting the speed at which the internet is changing — thought that it was not necessary to categorize the internet as a public forum.  (Because both opinions recognize that preventing crime is a legitimate governmental interest potentially supporting restrictions on sex offenders, there are likely to be future cases considering whether other restrictions — whether imposed on sex offenders on a case-by-case basis or statutes that apply to certain categories of sex offenders across the board — are narrowly tailored.) Continue Reading...

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