Editor's Note :

Editor's Note :

This week we are hosting an online symposium about Minnesota Voters Alliance v. Mansky, in which the Supreme Court will decide whether a Minnesota statute banning political apparel at polling places is facially overbroad under the First Amendment. Contributions are available at this link.

Petition of the day

By on Jan 23, 2018 at 8:19 pm

The petition of the day is:

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Issues: (1) Whether the warrantless seizure of an individual’s internet traffic information without probable cause violates the Fourth Amendment; and (2) whether the Sixth Amendment permits judges to find the facts necessary to support an otherwise unreasonable sentence.

J. Gerald Hebert is the senior director for voting rights and redistricting at the Campaign Legal Center.

American political campaigns are extended crescendos of vitriol. Passions and tempers run high. But at the end of all the viciousness, the citizens cast their votes. They have the right to do so in a place of peaceful contemplation.

For tens of millions of Americans who vote in person, the voting process is designed to foster such contemplation. We are able to walk into the polling place without being harassed, thanks to the Supreme Court’s 1992 ruling in Burson v. Freeman that states may bar electioneering within a certain distance from each polling place. We stand in lines together (hopefully very short lines, if the election is administered and resourced properly), and we mark our ballots next to each other. We submit our votes and take our “I Voted” stickers, hoping that our preferred candidates will be victorious, but willing in any event to accept the collective judgment of our fellow citizens — the very people with whom we just stood in line.

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In its first 5-4 merits decision of the term, the Supreme Court yesterday divided on the meaning of the federal supplemental jurisdiction statute’s tolling provision. Though the question presented was quite narrow and technical, the split in Artis v. District of Columbia exposes broader differences among the justices about the scope of federal power.

In a nutshell, when a federal district court entertains claims within its usual jurisdiction, the federal supplemental jurisdiction statute, 28 U.S.C. § 1367, authorizes the court also to consider certain state claims that it could not otherwise hear — namely, claims that are part of the same case or controversy as the jurisdiction-conferring claims. If the district court later rejects the jurisdiction-conferring claims, it commonly dismisses the tag-along state claims without resolving them. The statute’s tolling provision, Section 1367(d), addresses how much time a party then has to refile the dismissed claims in state court. It states: “The period of limitations for any [supplemental state claim] … shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”

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Rodney Smolla is dean and professor of law at Widener University Delaware Law School.

The Supreme Court should strike down the Minnesota statute at issue in Minnesota Voters Alliance v. Mansky. The law provides, “A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.” The sweep of the statute is breathtaking, encompassing virtually all political messages. It precludes not only direct advocacy of a candidate’s election, but even the communication of an ideological message, such as “Please I.D. Me” buttons, or promotion of the identity of groups with recognizable political views, such as the Tea Party or MoveOn.org.

The U.S. Court of Appeals for the 8th Circuit upheld the statute in a short and mechanistic analysis. A polling place, the court reasoned, is a “nonpublic forum.” The First Amendment standard applicable to the regulation of speech in a nonpublic forum, the court held, requires merely that the law be viewpoint neutral and reasonable in light of the purpose the forum serves. The court held that the Minnesota law was viewpoint neutral. The law would equally ban the wearing of “Vote for Trump” and “Vote for Oprah,” as it would equally bar messages promoting the “Tea Party,” the “Green Party,” the “NRA” or the “NAACP.”  Ruling that the state has a legitimate interest in maintaining “peace, order and decorum” in the polling place, the court upheld the law.

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Tuesday round-up

By on Jan 23, 2018 at 7:33 am

The Supreme Court released its rulings in three cases yesterday, placating court-watchers frustrated by the slow pace of opinions this term. Mark Walsh has a “view” from the courtroom for this blog. Yesterday’s first opinion was in National Association of Manufacturers v. Department of Defense, in which a unanimous court held that challenges to the “waters of the United States” rule must be filed in federal district courts. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.] Miriam Seifter analyzes the opinion for this blog. Subscript has a graphic explainer. At E&E News, Amanda Reilly and Ariel Wittenberg note that “[t]he decision is a loss for the federal government, which had argued in court under both the Obama and Trump administrations that the Clean Water Act should be interpreted functionally, rather than literally,” and “[i]t also complicates the Trump administration’s efforts to repeal and replace the rule.” Commentary comes from NFIB, which calls it “a good day for small business.”

In Artis v. District of Columbia, the court ruled 5-4, over a dissent by Justice Neil Gorsuch, that the tolling provisions of the federal supplemental jurisdiction statute stop the clock on the state limitations period while the state claims are pending in federal court. At PrawfsBlawg, Howard Wasserman notes that “Gorsuch’s dissent emphasized a concern that arose during arguments–that state courts may now have to deal with claims that were untimely by many years,” but explains that “[s]uch timing should not be a significant concern in the mine run of cases.”

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Petition of the day

By on Jan 22, 2018 at 8:53 pm

The petition of the day is:

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Issue: Whether the Indian Child Welfare Act defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.

The federal government’s attempts to define the statutory phrase “waters of the United States” — and in turn, to establish the geographic reach of the federal government’s regulatory authority under the Clean Water Act — have repeatedly spurred litigation over the years. Most recently, when the Obama administration issued the “Clean Water Rule,” also known as the Waters of the United States Rule, over 100 parties across the country sued to challenge it. In today’s opinion in National Association of Manufacturers v. Department of Defense, written by Justice Sonia Sotomayor, the Supreme Court unanimously held that those lawsuits must be filed in federal district courts rather than federal courts of appeals. Although the decision says nothing about the rule’s merits, it resolves an important procedural and strategic quandary and will have ripple effects beyond this case.

The dispute over the appropriate federal forum is rooted in a provision of the act, 33 U.S.C § 1369(b)(1), which lists certain types of challenges that litigants must file in the federal courts of appeals rather than in the ordinary forum of federal district court. Specifically, Section 13691(b)(1) designates seven types of actions by the Environmental Protection Agency for direct appellate review. The government and its fellow respondents had argued that challenges to the WOTUS rule fell within two provisions of that list: subsection (E), which covers actions “in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title,” or subsection (F), which covers actions “in issuing or denying any permit under section 1342 of this title.” Today’s decision rejects both of those options, requiring litigants instead to file in district court.

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This morning the Supreme Court issued additional orders from last week’s conference. On Friday, the justices announced that they would review Hawaii’s challenge to the most recent iteration of the president’s “travel ban.” Today the court granted review in an environmental-law case, Weyerhaeuser Co. v. U.S. Fish and Wildlife Service.

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Today is the first weekday of the federal government shutdown, but few court-watchers are surprised that the Supreme Court is open for business.

As Andrew Hamm reported for this blog on Sunday, the court operated as usual during the 2013 and 1995 government shutdowns, even conducting its entire two-week argument session in October of 2013. Although the federal courts get some of their budgets from a congressional appropriation, they can operate for about three weeks on court-fee balances and other funds, according to the Administrative Office of the U.S. Courts.

Today is a scheduled day for orders and opinions for the Supreme Court, after which the court is taking its four-week midwinter recess.

So, the justices take the bench as normal at 10 a.m. Or at least five of them do. Four are absent, which is not unusual for these non-argument sessions.

Some justices absent for today’s opinions (Art Lien)

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Almost 10 years ago, Theodore Wesby attended a party in the northeast section of Washington, D.C., that his own attorney would later describe as “raucous.” There were strippers offering lap dances, plenty of alcohol, people having sex upstairs, and (at least the smell of) marijuana. The celebration ended abruptly, however, when police received complaints about the party from neighbors, who also told them that the house should have been empty. Police arrested the partygoers for trespassing and took them to the police station, where they were eventually charged with disorderly conduct. Those charges were dropped, but Theodore Wesby and 15 other partygoers then filed their own lawsuit, arguing that the police had lacked probable cause to arrest them because the officers didn’t have any reason to believe that the partygoers knew that they weren’t supposed to be there. The lower courts agreed, ordering the police officers to pay the partygoers nearly a million dollars in damages and attorney’s fees, but today the Supreme Court reversed.

Justice Thomas with opinion in District of Columbia v. Wesby (Art Lien)

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