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#North Carolina GOP’s power grab

North Carolina Republicans snuck several measures into a hurricane relief bill last week, stripping power from incoming Democratic officials before they are sworn in.

Despite Trump carrying the state by 3%, Democrats won five top statewide offices in North Carolina: Attorney General Josh Stein (D) beat self-described “Black Nazi” Lt. Gov. Mark Robinson (R) to secure the governorship; State Sen. Rachel Hunt (D) defeated businessman Hal Weatherman (R) for lieutenant governor; U.S. Rep. Jeff Jackson (D) was elected the state’s attorney general, defeating U.S. Rep. Dan Bishop (R); Incumbent Secretary of State Elaine Marshall (D) held her seat against challenger Chad Brown (R); and Mo Green (D) defeated far-right candidate Michele Morrow (R) in the race for school superintendent.

Democrats also managed to flip a state House of Representatives seat, depriving Republicans of the veto-proof supermajority that they gained last year when a Democrat who ran on abortion rights switched parties and cast the decisive vote restricting abortions after 12 weeks of pregnancy. Without a veto-proof majority, a Democratic governor has the power to block legislation passed by the Republican-dominated legislature.

• Democrats could have won more legislative seats if Republicans had not redrawn extremely gerrymandered maps in 2023, with the blessing of the conservative members of the state supreme court. One of the most gerrymandered districts is District 105, held by the Democrat-turned-Republican mentioned above, state Rep. Tricia Cotham. According to a lawsuit brought by North Carolina voters, “as a direct result of the [legislature’s] apportionment of HD 105, that State House District went from a competitive, Democratic leaning district to a district leaning Republican,” violating voters’ right to a fair election. A three-judge panel dismissed the lawsuit for raising “nonjusticiable political questions,” and Rep. Cotham won re-election in her newly Republican district.

Now, faced with the imminent loss of their ability to pass legislation into law over the governor’s objection, North Carolina Republicans are embarking on a last-minute power grab. Senate Bill 382 was branded as a third round of relief following Hurricane Helene. However, in changes made public just an hour before it was debated in the House last week, Republicans added dozens of provisions that fundamentally alter how state government is structured and functions.

Most significantly, the bill transfers the power to appoint members of the state election board from the governor to the state auditor, who will be a Republican come January. The state elections board administers elections and issues guidance to county officials, who make decisions on issues like early voting and polling place locations. Currently, the Democratic governor appoints the majority of the members of the state elections board. Republican lawmakers have long sought to strip the governor of this power, including passing a bill last year that was ruled unconstitutional and attempting to amend the constitution, which voters overwhelmingly rejected.

Incoming Attorney General Jeff Jackson (D) is also being targeted by GOP lawmakers, who inserted provisions in SB 382 that prohibit the AG from taking a stance opposite of legislative leaders when they are involved in a lawsuit. This would require that AG Jackson defend in court laws that his office believes to be illegal or unconstitutional.

Additionally, SB 382 implements several voter suppression measures meant to make it harder for Democrats like Supreme Court Justice Allison Riggs to win elections. At the time of writing, Riggs is ahead of challenger Jefferson Griffin (R) by 655 votes amid a statewide recount. Griffin initially led Riggs by about 10,000 votes on Election night, but the race swung in Riggs’ favor after absentee and provisional ballots were counted. The unusually high number of provisional ballots was likely caused by the state’s new voter ID law, requiring voters who did not bring an approved ID to cast a provisional ballot and return at a later date to present the correct information.

Under SB 382, many of the voters who forgot their IDs would be prevented from having their votes counted: One clause shortens the amount of time a voter can verify a provisional ballot to just two and a half days after Election Day, and another requires election officials to count all provisional ballots within three days of the election—despite the process normally taking one to two weeks. Other measures in the bill shorten the amount of time a voter can correct their absentee ballot to two and a half days, move up the deadline to simultaneously request an absentee application and absentee ballot, and require election offices to count all absentee ballots on election night.

That’s not all: Republican lawmakers are directly targeting the judiciary, removing two elected superior court judges when they reach the end of their term in 2029. The two judges, Bryan Collins in Wake County and Todd Burke in Forsyth County, have ruled against legislative priorities in the past, with Collins calling the Republican majorities “usurpers” for passing anti-democratic laws after themselves being elected based on unconstitutionally gerrymandered maps. Unsurprisingly, the GOP legislature gave themselves the power to appoint Collins’ and Burke’s replacements.

A second part of SB 382 relating to the judiciary imposes a new requirement that nominees for a vacancy on the state supreme court and the court of appeals be from the same party as the vacated judge. In other words, a Democratic vacancy must be replaced with a Democrat, and a Republican vacancy must be filled with a Republican, regardless of which party controls the governorship.

Democratic Gov. Roy Cooper issued a veto of SB 382 yesterday, calling the bill a “sham” that “does not send money to Western North Carolina…but instead violates the constitution” and “plays politics.” Republican legislators have the numbers, for now, to override his veto if they all vote together.

#Louisiana’s regressive tax code

Republican lawmakers in Louisiana overhauled the state’s tax system last week, passing tax cuts for corporations and the rich.

Gov. Jeff Landry (R) called a special session of the legislature the day after the election, directing lawmakers to make the state’s tax code “more business friendly” and “create jobs” to reverse trends of people leaving Louisiana for other states. What legislators ultimately approved may end up making the state more attractive to corporations, but at the price of increasing inequality and pushing the poorest people further into poverty.

First, the legislature eliminated the state’s graduated-rate personal income tax structure and its top rate of 4.25 percent, replacing it with a flat 3 percent personal income tax rate.

Second, lawmakers eliminated a corporate franchise tax and cut the corporate income tax rate—which previously topped out at 7.5 percent—to a flat rate of 5.5 percent.

Third, they raised the state sales tax—already the highest in the nation—from an average of 4.45 percent to 5 percent. The burden of a high sales tax falls disproportionately on the poor because sales taxes take a larger share of income from low-income earners than from high-income earners. When combined with local sales taxes, Louisiana’s total sales tax rate will now be an average of 10.11 percent, with the highest possible rate reaching 12 percent.

All told, the Republican tax plan will result in the lowest-income Louisianans receiving an average tax cut of just $10. In contrast, the wealthiest 1 percent, with average annual incomes of $1.8 million, will receive an average tax cut of nearly $17,000.

It remains to be seen how the latest changes will impact the state’s budget. Louisiana is already one of the most federally dependent states in the nation, receiving half of its revenue from the federal government. A large portion of that federal assistance is dedicated to helping those in poverty through programs like Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), and Women, Infants, and Children (WIC). The Republican-led tax overhaul will likely only increase the state’s dependence on federal money to subsidize its regressive tax code and dismal wages.

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Author’s note: I wrote a version of this post last week but I wasn’t happy with it and deleted it shortly after posting. This is the rewritten, hopefully better, version.

The central pillar of Trump’s 2024 campaign, and likely the focus of his entire second term in office, is a dystopian crackdown on immigration. He has promised to begin the “largest domestic deportation operation in American history” on day one, with workplace raids, detention camps, and round-the-clock deportation flights.

##The people

Such a large operation, targeting 11 million undocumented immigrants, will require the coordination of multiple federal agencies encompassing hundreds of thousands of personnel and hundreds of billions of dollars. Central to Trump’s plan is former deputy chief of staff Stephen Miller, who will be reprising his role as the architect of immigration policy during Trump’s second term. Miller is a far-right nationalist who trafficks in neo-Nazi propaganda. He was responsible for crafting the Muslim travel ban, family separation policy, and imposition of Title 42 during the pandemic—and pushed for more extreme measures, including the mass family arrests of undocumented immigrants in major U.S. cities.

At the time, Secretary of Homeland Security Kirstjen Nielsen was able to impede some of Miller’s schemes. Trump’s nominee to run the agency during his second term, South Dakota Gov. Kristi Noem, should not be expected to be a similarly moderating force. She has no experience with the Department of Homeland Security and no legal background, leading some to believe she was chosen specifically because she will stay out of Miller’s way:

“The only thing I could think of is that the immigration part of DHS is basically going to be handled out of the White House, and she’ll be secretary of FEMA, TSA, Secret Service, cybersecurity — kind of an unofficial division of labor,” said Mark Krikorian, executive director of the Center for Immigration Studies, a group that pushes for less legal immigration and stricter enforcement of immigration laws.

While Miller writes the policy, Trump’s chosen “border czar” Tom Homan will carry out his orders. Homan served as the acting director of Immigration and Customs Enforcement (ICE) from 2017-2018, charged with implementing the family separation policy at the border. Under his command, immigration authorities took more than 5,500 children and infants from their families, arresting the parents and sending the minors to overcrowded border control centers and HHS shelters. At least 1,400 of those children still have not been reunited with their families.

Locating, arresting, and deporting millions of people will require far more manpower than the 20,000 ICE officers (including administrative personnel) the government currently employs. That’s where Trump’s nominee for Defense Secretary, Pete Hegseth, comes in. Hegseth is a talk show host on Fox News who served in the National Guard but has no experience running a government agency, let alone one with nearly 3 million employees and a budget of over $800 billion. He was likely chosen for the role for his staunch on-air defense of Trump, his embrace of Project 2025 goals like eliminating “woke” objectives from the military, and his apparent Christian nationalist beliefs, as indicated by his tattoos. In fact, military command found one of his tattoos—reading “Deus Vult,” a Latin phrase associated with the Crusades and adopted by extremist groups like the Proud Boys—so concerning that they pulled him from guard duty at Joe Biden’s inauguration.

We now know who will be planning, directing, and enacting Trump’s deportation machine. The final piece of the puzzle is a person to provide the legal arguments necessary to convince the courts to greenlight an unprecedented and inhumane immigration policy. That person is, apparently, Rep. Matt Gaetz—a man who has spent more time under investigation than leading one. He wasn’t chosen for his legal acumen, however. Trump nominated Gaetz for Attorney General for his loyalty. Gaetz can be expected to unquestioningly carry out Trump’s demands, from justifying military deployment in U.S. cities to prosecuting his political enemies and abolishing important civil rights offices. Never mind that he doesn’t know exactly how to do any of those things; that’s for the people under him to figure out—people like Todd Blanche, an experienced attorney who represented Trump in his New York hush money trial and is nominated to serve as deputy AG, and John Sauer, who Trump nominated to be Solicitor General after representing him before the U.S. Supreme Court during presidential immunity arguments (he’s responsible for the assertion that a president cannot be prosecuted for assassinating a political opponent while in office).

##The plan

###Declare a national emergency

Trump will probably declare a national state of emergency related to an “invasion” of undocumented immigrants on day one, giving himself the unilateral power to divert government funding to his deportation scheme. In interviews over the last year, Stephen Miller has outlined how he plans to use repurposed military funds to build “vast holding facilities that would function as staging centers” on “open land in Texas near the border.” Trump’s transition team is also looking at reopening closed detention centers and building new ones around cities with large populations of migrants, like Los Angeles, Chicago, and Miami.

The for-profit prison industry is already jumping at the chance to obtain government funding in exchange for housing detainees. GEO Group Executive Chairman George Zoley called the mass deportation plan an “unprecedented opportunity” for his company, telling investors, “we’re looking at a theoretical potential doubling of all of our services.”

“It feels like with this election this year, we’re heading into an era that we really haven’t seen, maybe only once or twice in the company’s history, where the value proposition of the private sector for both our state partners and our federal partners are going to be not only strong today, but even stronger as we go in the next couple of years,” Damon Hininger, CEO of CoreCivic, formerly known as Corrections Corporation of America, said on that company’s own earnings call. Hininger noted he’d been with the company over 32 years. “We do think that there’s going to be increased need for detention capacity,” he added later.

###Invoke the Alien Enemies Act

The use of the word “invasion” (above) is important because Trump has promised to invoke the Alien Enemies Act in order to detain and deport immigrants en masse without due process. The Alien Enemies Act was passed by a Federalist-controlled Congress in 1798 as part of the Alien and Seditions Acts, ostensibly to increase security amid anxiety over tensions with France. In practice, however, the Acts were used to induce fear in noncitizens, suppress free speech and dissent, and intimidate members of the Democratic-Republican party, which was seen as too friendly to the French.

Unlike the rest of the Alien and Seditions Acts, the Alien Enemies Act was not repealed or allowed to expire and remains in effect today as 50 U.S.C. ch. 3. It states that in times of “declared war” or “any invasion or predatory incursion…by any foreign nation or government,” the president may “apprehend” and “remove” all “natives, citizens, denizens, or subjects of the hostile nation or government.” It does not contain any requirement that noncitizens receive a hearing prior to deportation. Presidents have invoked the Alien Enemies Act three times: during the War of 1812, during WWI, and, most famously, during WWII to intern tens of thousands of German, Italian, and Japanese immigrants.

• Note the Act contains the term “natives,” which can be read to include people who were born abroad but are long-term residents of the United States, potentially with legal status.

The legal challenge of invoking the Alien Enemies Act to detain and deport immigrants under a second Trump administration should be obvious: America is not at war and, even if one accepts that migration is an “invasion,” it is not directed by a hostile foreign government. Nevertheless, a Justice Department led by a loyalist like Matt Gaetz would likely try to persuade the conservative Supreme Court justices to let them enforce the Act anyway.

###Invoke the Insurrection Act

To supplement the existing ranks of ICE officers, Trump intends to deploy National Guardsmen and federal troops on domestic soil. Part of this plan is not unprecedented: President Biden has already sent approximately 2,500 National Guard personnel to the U.S.-Mexico border. What Trump reportedly wants to do is use the military as civil law enforcement beyond the border, possibly to carry out mass arrests and detentions. The president would have the power to do this, even in states that oppose his extreme immigration policies, under the Insurrection Act.

First passed in 1792, the Insurrection Act is a statutory exception to the Posse Comitatus Act (which prohibits active-duty military personnel from performing law enforcement functions) and has historically been wielded to suppress slave rebellions, labor strikes, gang fights, and to enforce desegregation orders. There are two sections of the Act that Trump could hypothetically invoke:

• Section 252 allows the president to deploy the military if the president “considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.”

• Section 253 allows the president to deploy the military if the president deems it “necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy” if it “(i) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution” or “(ii) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”

Crucially, the Act does not define what qualifies as an “insurrection,” “rebellion,” or “domestic violence,” and the U.S. Supreme Court has historically ruled that “the authority to decide whether the exigency has arisen [to call up a militia under the Act] belongs exclusively to the President.”

###Take control of the military

You may remember that Trump previously threatened to invoke the Insurrection Act during the racial justice protests in 2020. Then-Secretary of Defense Mark Esper prevented the president from following through. Trump is making sure that won’t happen this time around, moving not only to install a loyalist as the head of the department but also to replace the entire upper echelon of the military.

According to Reuters, members of Trump’s transition team are drafting a list of military officers to be fired, potentially including the Joint Chiefs of Staff—a body of the nation’s most senior uniformed leaders that advises the president. Defense Secretary nominee Pete Hegseth endorsed such a plan in his 2024 book, saying that “the next president of the United States needs to radically overhaul Pentagon senior leadership to make us ready to defend our nation and defeat our enemies. Lots of people need to be fired.” One of those Hegseth has singled out is Joint Chiefs of Staff Chairman, Air Force General Charles Q. Brown. Hegseth questioned Brown’s qualifications, suggesting that he would not have gotten the job if he were not Black.

Another avenue Trump may take to purge military leaders is an executive order creating a so-called “warrior board” to quickly identify and remove officials “lacking in requisite leadership qualities.”

“This looks like an administration getting ready to purge anyone who will not be a yes man,” former Army lawyer Eric Carpenter told The Wall Street Journal. “If you are looking to fire officers who might say no because of the law or their ethics, you set up a system with completely arbitrary standards, so you can fire anyone you want.”

It is easy to guess who Trump would install in place of fired generals: loyalists who won’t question or stymie his fascist goals.

###Limit citizenship pathways

In addition to taking measures meant to curtail and discourage illegal immigration, a second Trump administration promises severe restrictions of legal pathways to obtain citizenship or immigrate to America.

The first of Trump’s targets will probably be the Temporary Protected Status (TPS) program, covering more than 1 million people from 17 countries like Haiti, Venezuela, Afghanistan, and Ukraine. Immigrants in America under TPS are allowed to stay and work legally until their homelands are deemed safe enough to return. However, critics say that TPS too often results in indefinite grants of “amnesty” disconnected from the original reason for the designation:

In an email, Karoline Leavitt, a Trump campaign spokeswoman, defended Mr. Trump’s stance, saying the initiative that has given at least 200,000 Haitians legal status since 2010 — known as the Temporary Protected Status — had run its course. “Temporary Protected Status is by definition a TEMPORARY program. Under the Trump Administration, Haitian ILLEGAL immigrants will be returned to their home country,” Ms. Leavitt said.

Trump has also pledged to put an end to birthright citizenship, or the right to citizenship for nearly all children born in the United States regardless of their parents’ legal status. The right is guaranteed by the 14th Amendment, adopted in 1868 to extend citizenship and all attendant rights to formerly enslaved people and their children. The relevant clause reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

According to the Heritage Foundation, the organization behind Project 2025, the citizenship clause has been misinterpreted for centuries. By their reading—and the one likely to be argued by Trump’s administration—undocumented migrants are not “subject to the jurisdiction” of the United States because they owe their allegiance to their birth country:

Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.

The fact that a tourist or illegal alien is subject to our laws and our courts if they violate our laws does not place them within the political “jurisdiction” of the United States as that phrase was defined by the framers of the 14th Amendment.

This amendment’s language was derived from the 1866 Civil Rights Act, which provided that “[a]ll persons born in the United States, and not subject to any foreign power” would be considered citizens. Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country.

The U.S. Supreme Court has ostensibly already settled the issue in U.S. v. Wong Kim Ark (1898), holding that “a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China” automatically became a U.S. citizen at birth “by virtue of the first clause of the Fourteenth Amendment of the Constitution.” If Trump pursues his plan to revoke birthright citizenship, his administration will likely argue that the Wong Kim Ark precedent does not apply when foreign parents are in the country illegally.

• 5th Circuit hyper-conservative justice James Ho is already walking back his previously staunch defense of birthright citizenship in the hopes of clinching a Trump nomination for the U.S. Supreme Court. “Birthright citizenship is a constitutional right, no less for the children of undocumented persons than for descendants of passengers of the Mayflower," Ho wrote in 2007. Since Trump’s re-election, however, Ho has reformulated his position to exempt “children of invading aliens,” likening them to “unlawful combatants” during war.

Note added 11/6: Keep_Track will be back next week (and the week after that and the week after that).

Take a break from scrolling, practice self-care, grieve what could have been, and come back stronger. Onwards.

If you are in the position to support my work, I have a patreon, venmo, and a paypal set up. Just three dollars a month makes a huge difference! These posts will never be paywalled.

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###Election Day is finally here. If you have not voted yet, go to USA.gov’s voting information page to find your polling location.

Remember, if you are in line before polls close, you are entitled to cast a ballot. If a poll worker says you are not on the registration list, cast a provisional ballot. If you experience a civil rights violation, file a report with the Department of Justice.

###Timing

It is impossible to predict with certainty when the presidential race will be called due to the large number of factors involved. The best we can do is make educated guesses based on past experience.

Of the swing states, North Carolina and Georgia are expected to be the first to report results, likely late Tuesday. Pennsylvania, Michigan, and Wisconsin could potentially be called sometime on Wednesday. Arizona and Nevada, on the other hand, could take over 3 days to report enough results to make a final call.

• Fox News and the AP correctly called the 2020 presidential race in Arizona within hours. But other outlets were not confident in projections and waited nine days to confirm Biden’s victory in the state. Officials in Arizona told the New York Times that Maricopa County could take 10 to 13 days to fully tabulate.

• In Nevada, both the 2020 and 2022 election results were known four days later.

Because results from North Carolina and Georgia are expected early, keep in mind that a Trump win in both states is not necessarily a bad sign for Harris. However, a Harris win in either state would be a bad sign for Trump. This is because Trump can win North Carolina and Georgia but still not reach 270 electoral votes if Harris wins Pennsylvania, Michigan, and Wisconsin. I recommend experimenting with different outcomes on 270towin to better understand the different paths to victory.

Resources:

When polls close by state

When to expect results by state

###Other races to watch

Winning the presidential race is only one-third of the battle for control of the federal government. To govern as effectively as possible, a party needs to control the House of Representatives and Senate, as well.

In the U.S. House, Democrats need a net gain of five districts to win a majority in the chamber. Republicans can only lose a net of five districts and maintain their majority or pick up one or more districts to increase their majority. There are 22 seats rated as toss-ups, 10 held by Democrats and 12 held by Republicans.

• Alaska: At large district held by Rep. Peltola (D)
• Arizona: AZ-01 held by Rep. Schweikert (R) and AZ-06 held by Rep. Ciscomani (R)
• California: CA-13 held by Rep. Duarte (R), CA-22 held by Rep. Valadao (R), CA-27 held by Rep. Garcia (R), CA-41 held by Rep. Calvert (R), and CA-45 held by Rep. Steel (R)
• Colorado: CO-08 help by Rep. Caraveo (D)
• Iowa: IA-01 held by Rep. Miller-Meeks (R) and IA-03 held by Rep. Nunn (R)
• Maine: ME-02 held by Rep. Golden (D)
• Michigan: MI-08 an open seat
• New Mexico: NM-02 held by Rep. Vasquez (D)
• New York: NY-19 held by Rep. Molinaro (R)
• North Carolina: NC-01 held by Rep. Davis (D)
• Oregon: OR-05 held by Rep. Chavez-DeRemer (R)
• Pennsylvania: PA-07 held by Rep. Wild (D), PA-08 held by Rep. Cartwright (D), and PA-10 held by Rep. Perry (R)
• Virginia: VA-07 an open seat
• Washington: WA-03 held by Rep. Perez (D)

Additionally, there are 13 seats that are rated as lean-Democrat, three of which have Republican incumbents: NE-02, held by Rep. Bacon, NY-04, held by Rep. D’Esposito, and NY-22, held by Rep. Williams. There are 8 seats rated as lean-Republican, one of which is held by a Democratic incumbent: MI-07, held by Rep. Slotkin.

In the Senate, Democrats need to defend the lean-Democrat seats, hold Sen. Jon Tester’s Montana seat, win all of the toss-up races, and flip a Republican seat in order to control the chamber. Winning the toss-up races and Tester’s seat while failing to flip a Republican seat will result in a 50-50 tie.

Toss-up races: Michigan’s open seat, Sen. Sherrod Brown’s Ohio seat, Sen. Bob Casey’s Pennsylvania seat, and Tammy Baldwin’s Wisconsin seat.

The most vulnerable Republican-held seats are Sen. Ted Cruz in Texas and Sen. Deb Fischer in Nebraska.

###What to expect

What should we expect in the coming days and weeks? In short: tons of disinformation. We have already seen Trump and his surrogates spread numerous false claims of voter fraud. This will only increase after the election, especially with the assistance of Elon Musk boosting conspiracies on Twitter/X.

• Musk created an “election integrity” community on X that is rife with false claims of voter fraud, fake photos, and misinformation. One of these misleading tweets, posted by a Trump supporter, featured a video of a “very suspect” man dropping off “an insane amount of ballots” in Pennsylvania. As of last weekend, the video had been viewed 6 million times. People in the comments made death threats against the man. It turns out, he was just a USPS employee doing his job. Confronted by this information, the man who posted the video said, “So working for the post office means you’re incapable of committing any sort of election fraud?”

We’ll likely also see more concerted foreign disinformation campaigns. Over the past month, U.S. officials have identified several Russian-made videos designed to encourage claims of voter fraud. In one, a person is seen destroying what are purported to be filled-out ballots in Bucks County, Pennsylvania. In another, people claiming to be Haitians say they illegally voted for Kamala Harris in Georgia. An American pro-Trump influencer recently admitted to being paid $100 by a pro-Kremlin propagandist to post the latter video.

And, of course, we should expect lawsuits aplenty. The RNC and Trump campaigns have worked to assemble a more professional legal team than in 2020, gearing up for election challenges. There will be attempts to disqualify certain votes. There will be requests to prevent ballot-curing. There will be partisan poll watchers who claim to see fraud and mismanagement. There will probably be election deniers in positions of power attempting to say it is their right not to certify the election. The success of these measures largely depends on the courts. Luckily, despite the many Trump appointees on the bench, Trump’s campaign lost its election challenges in 2020.

If you are in the position to support my work, I have a patreon, venmo, and a paypal set up. Just three dollars a month makes a huge difference! These posts will never be paywalled.

Subscribe to Keep Track’s Substack (RSS link) or monthly digest. Also on Bluesky.

#U.S. Supreme Court

Numerous cases challenging state election laws are currently pending or about to be brought before the U.S. Supreme Court.

Edit: see updated Virginia section below

###Pennsylvania

On Monday, the Republican National Committee (RNC) asked the U.S. Supreme Court to overrule the Pennsylvania Supreme Court and disenfranchise potentially thousands of voters who make a mistake in mailing their ballots. According to state law, mail-in ballots must be placed in an inner secrecy envelope before putting them in an outer envelope. Ballots without the inner secrecy envelope are considered void and not counted.

The case centers on what happens next: can a voter whose ballot was missing the inner envelope then cast a provisional ballot on Election Day, or is the initial mistake (forgetting the inner envelope) incurable under state law? After a lengthy back-and-forth at the lower courts, the Pennsylvania Supreme Court ultimately ruled 4-3 that counties must count provisional ballots cast in person by voters who submitted mail-in ballots lacking an inner envelope:

Here, as the Commonwealth Court correctly discerned, the casting of a provisional ballot is specifically authorized in the Election Code…Provisional ballots exist as a failsafe to preserve access to the right to vote….A provisional ballot is intended to alleviate potential disenfranchisement for eligible voters. Counting Electors’ provisional ballots, when their mail ballots are void for failing to use a Secrecy Envelope, is a statutory right…

It is difficult to discern any principled reading of the Free and Fair Election Clause that would allow the disenfranchisement of voters as punishment for failure to conform to the mail-in voting requirements when voters properly availed themselves of the provisional voting mechanism.

• I recommend reading the majority’s case summary for more information. The case is complex, as it involves ambiguous laws that conflict with a previous state supreme court ruling, and the details are beyond the scope of this post.

The dissenting judges argued that the majority “exceeded the bounds of statutory interpretation and supplanted the power vested in our General Assembly to regulate elections.” According to their interpretation, the initial mail-in ballots that do not contain a secrecy envelope are invalid but qualify as the voter’s one and only ballot. They say that the legislature did not intend to give voters a “second ballot” in these instances.

The RNC appealed to the Supreme Court Monday, arguing that Pennsylvania’s highest court usurped power reserved to the state legislature—a claim that is central to the independent state legislature theory and threatens the ability of state courts to safeguard democracy. The legislature, the RNC says, wrote the law to forbid ballot curing. “When the legislature says that certain ballots can never be counted, a state court cannot blue-pencil that clear command into always,” the RNC wrote.

This Court should enter a stay. This case is of paramount public importance,

potentially affecting tens of thousands of votes in a State which many anticipate could be decisive in control of the U.S. Senate or even the 2024 Presidential Election. Whether that crucial election will be conducted under the rules set by the General Assembly or under the whims of the Pennsylvania Supreme Court is an important constitutional question meriting this Court’s immediate attention. Moreover, if this Court fails to act in the face of such egregious judicial usurpation, Moore’s promised enforcement of the Elections and Electors Clauses will become a dead letter that state courts can safely ignore.

• “Moore” refers to Moore v. Harper, which, as you may recall, was the central vehicle to advance the independent state legislature theory. While the U.S. Supreme Court rejected the most extreme interpretation of the theory, the conservative justices left open the door to review state courts’ decisions regarding matters of state election law. “[S]tate courts,” Roberts wrote, “may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”

A U.S. Supreme Court ruling in favor of the RNC could impact more than just voters who mail back ballots missing an inner envelope. The RNC argues that other mistakes on mail-in ballots, like the “lack of signature” or “date,” also cannot be cured. How such a ruling would affect the election is unclear and depends on various factors including the margins of the race and the partisan breakdown of ballots deemed invalid.

###Virginia

UPDATE 7AM: SUPREME COURT RULES IN FAVOR OF VIRGINIA, ALLOWING VOTER PURGE

Virginia election officials are asking the U.S. Supreme Court to overturn a lower court ruling that ordered the state to stop its voter purge and reinstate the registrations of roughly 1,600 voters that were illegally removed.

In an executive order in August, Gov. Glenn Youngkin (R) ordered state election officials to expedite the use of DMV data to cancel the voter registration of suspected noncitizens unless they could verify their citizenship within 14 days. The U.S. Department of Justice, along with a coalition of civil and immigrant rights groups, sued, arguing that the program is illegal under the National Voter Registration Act (NVRA), which bans the systematic cancellation of voter registrations during the 90-day “quiet period” before an election.

Additionally, the plaintiffs pointed out many examples of citizens wrongly removed from the voter rolls under the program. They were likely flagged as noncitizens for simply checking the wrong box on DMV paperwork or because they became citizens after obtaining a driver’s license.

Defendants’ Purge Program is far from such a well-designed, well-intended list maintenance effort. It is an illegal, discriminatory, and error-ridden program that has directed the cancellation of voter registrations of naturalized U.S. citizens and jeopardizes the rights of countless others. In a purported effort to flag potential noncitizens, Defendants’ Purge Program relies on out-of-date information provided to the Department of Motor Vehicles, and perhaps other sources, stretching back twenty years. The State knows or should know that countless individuals

who obtained drivers’ licenses while legal permanent residents have become naturalized citizens, many even registering to vote during naturalization ceremonies. But Defendants make no effort to conduct any individualized analysis. Instead, they have classified any person who has ever indicated they were a noncitizen as presumptively ineligible to vote unless they receive and respond to a State missive within fourteen days and provide more evidence of their citizenship.

District Judge Patricia Giles, a Biden appointee, issued an order prohibiting the state from “continuing any systematic program intended to remove the names of ineligible voters from registration lists less than 90 days” before the election. She also ordered Virginia officials to restore the registrations they had canceled under Youngkin’s order.

Virginia appealed to the 4th Circuit, which upheld Judge Giles’ ruling. Now, the state is asking the U.S. Supreme Court to intervene to reinstate its voter purge program and halt the order reinstating the removed voter registrations. “Given that the General Removal Provision does not apply to the removal of noncitizens, who were never ‘eligible applicants’ or ‘registrants’ to begin with, it follows that the adjacent Quiet Period Provision does not apply to noncitizens either,” Virginia argues.

###Upcoming appeals

The RNC and Trump campaign may appeal a ruling issued by the Nevada Supreme Court on Monday that allows the state to continue to count mail ballots with no postmark received as many as three days after Election Day.

It is also possible that the RNC will attempt to get the Supreme Court to consider its lawsuit in North Carolina, challenging the registration of over 220,000 voters. However, the case is still in the lower courts and may not progress further before the election.

#Fifth Circuit

A three-judge panel of the 5th Circuit, made up entirely of Trump appointees, issued a ruling last week that threatens mail-in and absentee ballot laws across the nation.

Earlier this year, the RNC and Mississippi Republican Party sued Mississippi state officials, challenging a law that allows mail-in ballots postmarked on or before Election Day to be counted if they are received within five business days of the election. The law, the plaintiffs claimed, is invalid because it “extends Mississippi’s federal election past the Election Day established by Congress.”

Congress established one specific day as the uniform, national Election Day for federal office. Federal law prohibits holding voting open after Election Day. A qualified ballot for federal office is not a legal vote unless it is received by the proper election officials by Election Day…Under Mississippi’s current law, mail-in ballots for the November 5 election will be counted if received on or before November 12, 2024…By holding voting open beyond the federal Election Day, Mississippi violates federal law and harms Plaintiffs.

Accepting mail-in ballots after Election Day specifically harms Republicans, the lawsuit continued, because the late-arriving “fraudulent votes” tend to be from Democratic voters:

Because voting by mail is starkly polarized by party, that dilution directly harms Plaintiffs. For example, according to the MIT Election Lab, 46% of Democratic voters in the 2022 General Election mailed in their ballots, compared to only 27% of Republicans. That means the late-arriving mail-in ballots that are counted for five additional days disproportionately break for Democrats. Mail-in ballots from Democratic voters also tend to arrive late, in part because “Democratic get-out-the-vote drives—which habitually occur shortly before election day—may delay maximum Democratic voting across-the-board, and produce a ‘blue shift’ in late mail ballots.” [...]

Counting mail-in ballots received after Election Day doesn’t just dilute the valid ballots—it specifically and disproportionately harms Republican candidates and voters.

District Judge Louis Guirola, a G.W. Bush appointee, ruled in favor of the state, upholding the receipt of mail-in ballots after Election Day. Guirola reasoned that the existence of the Uniformed and Overseas Citizens Absentee Voting Act of 1968, which allows states to accept ballots from military and overseas voters after the election, proves that Congress did not intend to limit states from enacting similar laws for all mail-in ballots:

...courts must strongly presume that acts of Congress addressing the same topics are in harmony rather than one statute’s impliedly repealing the other in whole or part. So if one federal statute implicitly allows post-election receipt of overseas ballots mailed by election day, that statute is presumed not to offend against the election-day statutes, from which one may infer that the similar Mississippi statute on postelection receipt is likewise inoffensive.

The GOP plaintiffs appealed to the 5th Circuit, drawing a panel made up of Judges Andy Oldham, James Ho, and Kyle Duncan—all Trump appointees. The far-right panel unsurprisingly reversed the lower court’s ruling while adopting the RNC’s arguments as fact:

Congress statutorily designated a singular “day for the election” of

members of Congress and the appointment of presidential electors. Text, precedent, and historical practice confirm this “day for the election” is the day by which ballots must be both cast by voters and received by state officials. Because Mississippi’s statute allows ballot receipt up to five days after the federal election day, it is preempted by federal law.

What happens next is up in the air. The 5th Circuit remanded the case back to the district court “to fashion appropriate relief” with “due consideration to ‘the value of preserving the status quo in a voting case on the eve of an election.’” Given Judge Guirola’s initial ruling in the case, it does not seem likely that he will rush to prevent Mississippi from accepting ballots received after this Election Day. The 5th Circuit’s threat to mail voting is, therefore, an ominous warning for ballot access in future elections. Nearly 20 states and jurisdictions allow the counting of mail-in ballots after the polls close.

#Voter fraud, arson, and other crimes

Two ballot drop boxes—one in Vancouver, Washington, and another in Portland, Oregon—were set on fire early Monday morning. Authorities say a suspect driving a dark-colored 2004 Volvo S-60 dropped an incendiary device in both boxes. The fire suppressant system in the Portland drop box effectively extinguished the fire, with only a handful of ballots damaged. However, the drop box in Vancouver, WA, was engulfed in flames, potentially destroying hundreds of ballots.

• For Vancouver (Clark County) voters who deposited ballots into the drop box at the Fisher’s Landing C-Tran Transit Center over the weekend: Check the state voting portal to see if your ballot was received. If it was not, the county advises that you visit the Elections Office at 1408 Franklin Street and request a replacement ballot, or go online at votewa.gov and print out a replacement ballot.

• Vancouver is part of Washington’s 3rd District, where incumbent Marie Gluesenkamp Perez (D) is in an incredibly close race against far-right candidate Joe Kent.

Last week, a USPS mailbox in Phoenix, Arizona, was set on fire, damaging approximately 20 ballots and other pieces of mail. A 35-year-old man was arrested and charged with arson.

Officials in Colorado uncovered a voter fraud scheme in Mesa County, a Republican-leaning area on the western edge of the state. According to the Secretary of State’s office, approximately a dozen ballots were intercepted before being received by the intended voters, were fraudulently filled out and signed, and then submitted. The stolen ballots were identified as fraudulent by the signature validation process.

Meanwhile, in Pennsylvania, Lancaster County officials claim to have identified as many as 2,500 fraudulent voter registration applications. Election workers noticed false names, suspicious handwriting, questionable signatures, and incorrect addresses on numerous forms within a large batch that was dropped off a little over a week ago. District Attorney Heather Adams (R) characterized the alleged fraud as “an organized effort,” adding “we’ll be looking into who exactly participated in it and how far up it goes.”

In Indiana, a GOP candidate who lost the primary election was arrested yesterday for stealing several ballots during a test of election equipment that was open to the public.

A Minnesota woman was arrested for fraudulently casting a ballot on her dead mother’s behalf. The woman said her mother was an “avid Donald Trump supporter” who wanted to vote for him in the 2024 presidential election, but died in August.

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Donald Trump is a stochastic terrorist. He uses dehumanizing and vilifying speech that increases the likelihood that his followers will violently and unpredictably attack the people he targets. This shouldn’t be controversial to say—on January 6, the whole nation watched as Trump sicced his supporters on Congress in the hopes of illegally remaining in power. He knew what would happen when he demonized his opponents, Democrat and Republican, before thousands of supporters, telling them to march “to the Capitol building” and “fight like hell.” He “gleefully watched” the scenes unfold on television as the building was surrounded, police officers were injured, and lawmakers fled.

Yet, according to some, it is Democrats who have to “tone down the rhetoric.” Following the assassination attempt at Trump’s Pennsylvania rally, the media was awash with statements blaming Joe Biden, “the radical left,” and, more recently, Kamala Harris, for using alleged inflammatory language that incited the shooter. Never mind that the rhetoric in question is the truth: Trump is a threat to democracy, as January 6 demonstrated. Trump is advancing fascist policies, as Project 2025 promises. And, as the following examples illustrate, Trump is also a stochastic terrorist.

#FEMA

Hurricane Helene made landfall in the Big Bend region of Florida as a Category 4 storm on September 26, causing catastrophic flooding as it moved through Georgia, South Carolina, North Carolina, and Virginia. More than 250 people were killed, with nearly 100 still missing.

The federal government responded quickly, sending FEMA teams to affected areas to assist in recovery efforts, perform search and rescue missions, and deliver essential supplies like food, water, and fuel. To date, the government has approved nearly $2 billion in aid, including direct payments and expense reimbursements for disaster survivors.

Nevertheless, Trump immediately began spreading lies about the federal response, turning his followers against officials and putting them in danger. He claimed to be getting “reports” that the federal government was “going out of their way to not help people in Republican areas,” then falsely claimed that “Kamala spent all her FEMA money, billions of dollars, on housing for illegal migrants.”

Excerpt of Trump’s rally in Michigan, October 3:

The Harris-Biden administration says they don’t have any money. They’ve spent it all on illegal migrants…They stole the FEMA money, just like they stole it from a bank, so they could give it to their illegal immigrants that they want to have vote for them this season. You know they’re trying to get them on the voter rolls. We cannot let that happen. This is the worst response in the history of hurricanes…Vote for Trump and we will take care of the American people first.”

Needless to say, Trump’s claims are completely false. But his supporters believe every word. A little over a week ago, FEMA aid workers were forced to pause their mission and relocate from Rutherford County, North Carolina, after U.S. military personnel warned of finding “trucks of armed militia saying they were out hunting FEMA.”

Rutherford sheriff's officers later arrested William Parsons, 44, for allegedly threatening to harm FEMA workers. He was found parked outside a grocery store functioning as a storm relief site, armed with a handgun and an AR-style rifle. According to Parsons, he believed the lie that FEMA was withholding aid from people in need:

“I viewed it as if our people are sitting here on American soil, and they’re refusing to aid our people,” he said. “So we were going to go up there and forcefully remove that fence.”

Days later, in a remote part of eastern Tennessee, an armed group of people “surrounded” FEMA workers, “yelling and threatening them.” A volunteer with the International Alliance of Community Chaplains, an organization working side-by-side with FEMA at a local command center, recounted how she intervened and diffused the situation.

“They were all armed, open carry not guns drawn, but they had surrounded them and there was a lady there that was yelling and threatening them,” Elder said. She explained that she listened to their grievances about FEMA but explained that her organization was not associated with the federal agency. Elder said she felt the group was frustrated and she was able to hear them out but was firm in that the behavior wasn’t appropriate.

“People just need to be heard, and then some of that does take a skill that doesn’t take a confrontation,” Elder said. “I said, ‘hey I hear you. You can say there’s no volunteers but I’m standing right in front of you honey and I’m here and we’re helping.'”

Elder said once the group realized that FEMA wasn’t taking those donations and that the command center was run by volunteers, they left and surprisingly returned later with supplies to donate.

Just earlier this week, Trump was asked about the threats to FEMA and if his rhetoric was to blame. He refused to condemn the threats, repeating the claims that FEMA is doing a “poor job” and spent all of the hurricane relief money on immigrants.

#Springfield, Ohio

Roughly midway between Dayton and Columbus lies Springfield, Ohio, a town of approximately 60,000 people. After decades of population decline, the area recently experienced an influx of immigration that revitalized the job market and filled hard-to-staff positions in produce factories and manufacturing plants.

Many of the immigrants settling in Springfield are from Haiti, an island nation in the Caribbean devastated by an earthquake in 2010, another in 2021, the assassination of its president, and an ongoing gang war that often claims the lives of innocent civilians—all exacerbated by crippling poverty, food insecurity, and a lack of basic resources. Every administration of the past 14 years has approved and extended Temporary Protected Status for Haitian nationals, allowing them to legally live and work in the U.S. until the federal government determines that conditions in Haiti have improved enough to safely return.

At some point during the summer, rightwing agitators and neo-Nazis began posting about Springfield being “flooded” with Haitian immigrants who were hunting and eating local birds, like geese and ducks. These claims were picked up by large social media accounts, like Libs of TikTok, eventually mutating into the completely false narrative that migrants in Springfield were butchering local pets. By September, Trump’s running mate J.D. Vance, a senator from Ohio, came across the stories and tweeted that “people have had their pets abducted and eaten by people who shouldn’t be in this country.”

Then, Trump went on stage at the presidential debate and parroted the racist lie to a national audience, saying that Haitian migrants are “eating the dogs” and “eating the cats” in Springfield. What followed was weeks of violent threats, shutting down public services in the area and instilling fear in the migrant community. City hall was evacuated. Schools closed. Hospitals locked down. All based on a lie that Trump repeated despite city officials disproving the claim before the debate.

Let’s return to the inception of the “eating the pets” story. A neo-Nazi group active in Ohio called Blood Tribe has taken credit for creating and spreading the rumor with the intent of demonizing Haitian immigrants and “making sure” they “are all repatriated.” It follows a long tradition in America of dehumanization, a particularly powerful tool in maintaining the racial hierarchy of slavery and Jim Crow. And it is being deployed again in 2024 to frame immigrants as threats to public morality and safety, in the pursuit of winning an election.

#El Paso and Buffalo

In 2019, a man drove over 600 miles to a Walmart in El Paso, Texas, to carry out a mass shooting targeting Latinos. He killed 23 people and injured 22 others. Three years later, a different shooter drove 200 miles to a grocery store in Buffalo, New York, to target Black people. He killed 10 people and injured three others. Both shooters left behind manifestos referencing the “Great Replacement” conspiracy theory.

The Great Replacement theory is the idea that political elites—usually left-leaning—are purposefully seeking to increase the number of racial minorities in the country in order to displace the white—usually Christian, conservative—population. The increased immigration, the theory goes, combined with higher birth rates of non-white populations, will enable non-white people to take control of political and economic institutions and eventually eliminate America’s white population in what some call “white genocide.”

This idea used to be confined to the darkest fringes of the far-right, but the rise of Trump has brought the Great Replacement to the GOP mainstream. Compare the following statements:

El Paso shooter manifesto: “This attack is a response to the Hispanic invasion of Texas…They are the instigators, not me. I am simply defending my country from cultural and ethnic replacement brought on by an invasion.”

Buffalo shooter manifesto: “Mass immigration and the higher fertility rates of the immigrants themselves are causing this increase in population. We are experiencing an invasion on a level never seen before in history. Millions of people pouring across our borders, legally.”

Donald Trump in 2018: “The US is ill-prepared for this invasion and will not stand for it. They are causing crime and big problems in Mexico. Go home!”

Donald Trump in 2019: “Humanitarian Crisis at our Southern Border. I just got back and it is a far worse situation than almost anyone would understand, an invasion! I have been there numerous times - The Democrats, Cryin’ Chuck and Nancy don’t know how bad and dangerous it is for our ENTIRE COUNTRY…”

Even after racist mass shooters used the same language, Trump not only continued to fear-monger about an “invasion”—he shifted to a more explicit endorsement of the Great Replacement. “A lot of these illegal immigrants coming in, they're trying to get them to vote,” Trump said at the presidential debate this summer, referring to the Biden administration. “[The immigrants] can't even speak English. They don't even know what country they're in practically. And these people are trying to get them to vote. And that's why they're allowing them to come into our country.”

#Government officials

The only theme that might be more common in Trump’s repertoire than stoking fear and hate of immigrants is airing his own feelings of victimization. Perceived enemies are everywhere. They threaten him, his followers, and the entire “traditional” American way of life. And they must be punished, whether with prosecutions, jail time, or violence.

More often than not, these “enemies” are people who have the gall to criticize Trump: Democrats, the media, protestors, even judges. We heard him suggest that “second amendment people” assassinate Hillary Clinton eight years ago. We suffered through countless tweets accusing Democratic leaders of treason and calling for their immediate arrest during his presidency. We listened as Trump threatened to deploy the military to suppress racial justice protests in 2020. And, most recently, we read his promise to jail election officials if he wins in November.

Language like this has consequences. Nearly every person Trump targets has subsequently been threatened or attacked by his followers. For example, in 2018 a diehard Trump supporter named Cesar Sayoc mailed pipe bombs to Hillary Clinton, Barack Obama, Joe Biden, Kamala Harris, Eric Holder, Maxine Waters, Cory Booker, and CNN, among others. Trump brought up all of them in a negative light, either in speeches, in interviews, or on social media, before Sayoc’s terror campaign.

During his trial, Sayoc’s lawyers blamed Trump and the rightwing mediasphere for their client’s actions, saying that in the “darkness” of mental illness, “Mr. Sayoc found light in Donald J. Trump.”

The defense filing draws a thread through Sayoc's "religious" viewing of Fox News programs like "Fox and Friends" and "Hannity," to his following of Trump supporters on social media and his connection to hundreds of right-wing Facebook groups, many of which "promoted various conspiracy theories, and more generally, the idea that Trump’s critics were dangerous, unpatriotic, and evil."

Sayoc was an avid follower of Trump's Twitter account and his federal public defenders point to Trump throughout the filing. "In his statements, Trump specifically blamed many of the individuals whom Mr. Sayoc ultimately targeted with his packages," they write.

Sayoc was not the only mentally ill person inspired to violent action by Trump’s rhetoric. Two years ago, David DePape beat Paul Pelosi, the husband of former House Speaker Nancy Pelosi (D), with a hammer during a home invasion. DePape’s lawyers told the court that he believed that Nancy Pelosi was part of a plot to “steal votes from Donald Trump” and wanted to take her hostage. Trump spent years demonizing Nancy Pelosi and, in the aftermath of the hammer assault, mocked the couple for being victims of an assailant he inspired.

Then there was the time that Trump posted what he said was Barack Obama’s address on Truth Social; later that day, an armed man was arrested near the property, live-streaming himself looking for “entrance points” and a “good angle on a shot.” Or the time Trump repeatedly attacked Judge Tanya Chutkan, who is overseeing the January 6-related case against him. A woman was later charged with threatening to kill Chutkan and “anyone who went after former President Trump.” Or when Trump posted online attacks against New York District Attorney Alvin Bragg, who was investigating him for fraud, and urged his followers to “protest” his impending arrest. Bragg’s office received hundreds of threats in the following days, including a letter containing white powder with the message “ALVIN: I AM GOING TO KILL YOU!!!!!!!!!”

Notice a pattern?

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#State Supreme Court elections

State courts tend to be overlooked amid the politicization of the federal courts, yet often play a bigger role in protecting rights and liberties enshrined in state constitutions. This year’s state supreme court races are particularly important, with implications for post-Dobb’s reproductive rights and the next decade’s redistricting cycle.

Five seats on the all-Republican Alabama Supreme Court are up for election this November. Four are going to be filled by candidates running unopposed. All eyes are on the only contested seat: Chief Justice Tom Parker, who wrote the far-right Christian nationalist opinion endangering IVF in February, is retiring. The race to replace him is between Democrat Greg Griffin, an Alabama Circuit Court judge, and current Supreme Court Justice Sarah Stewart (R).

One seat on the Arkansas Supreme Court will be on the ballot next month. Two sitting justices—Karen Baker and Rhonda Wood, both conservatives—are in a runoff election for the chief justice position. The winning candidate must resign from their current seat, allowing Governor Sarah Huckabee Sanders (R) to appoint a replacement.

Two justices on the all-Republican Arizona Supreme Court are up for retention election to serve another six years. Both justices—Clint Bolick and Kathryn King—signed onto the Court’s April opinion resurrecting an 1864 ban on abortion. If either loses the election, Democratic Gov. Katie Hobbs will appoint their replacement.

Three justices are running in retention elections on Colorado’s Supreme Court. The trio—Maria Berkenkotter, Brian Boatright, and Monica Márquez—were all appointed by Democratic governors. Márquez signed onto the Court’s December ruling barring Trump from appearing on the state’s ballot. Berkenkotter and Boatright dissented.

Two Florida justices who voted to uphold the state’s six-week abortion ban are up for retention election: Renatha Francis and Meredith Sasso, both appointed by Gov. Ron DeSantis (R). If either loses the election, DeSantis will choose their replacement. However, no judge has lost a retention election in Florida.

Kentucky Supreme Court Chief Justice Laurance VanMeter, a conservative, is retiring, leaving an open seat on the ballot. Unlike many other states, Kentucky does not hold statewide elections for justices. The court consists of seven justices, each elected from one of the seven appellate districts on a nonpartisan ballot. VanMeter’s seat is District 5, composed of Lexington and surrounding counties. In 2020, the district narrowly voted for Trump, but swung in Democratic Gov. Andy Beshear’s favor in 2023.

While the election is nonpartisan, the two candidates running to replace VanMeter can be broadly cast as more left-leaning and more right-leaning. Current Court of Appeals Judge Pamela Goodwine is a registered Independent with a long judicial career, has appeared at Democratic events, is endorsed by Gov. Beshear, and is supported by unions. Her opponent, lawyer Erin Izzo, has attended far-right political events and supports crisis pregnancy centers.

Two seats on Michigan’s Supreme Court are on the ballot next month—and the results could flip control to a GOP majority. Current Democratic Justice Kyra Harris Bolden is running in a special election to keep her seat after being appointed by Gov. Gretchen Whitmer (D) last year. Republicans nominated Circuit Court Judge Patrick O’Grady to challenge her. Meanwhile, Republican Justice David Viviano is retiring, giving Democrats a chance to flip the seat and increase their 4-3 majority. Democrats nominated Kimberly Thomas, a law professor, for the position, and Republicans nominated state Rep. Andrew Fink.

If O’Grady and Fink both win their races, Republicans will again control Michigan’s Supreme Court.

Two appointees of Democratic Gov. Time Walz are running in contested races for re-election this year. Justice Natalie Hudson is being challenged by Stephen Emery, a self-described conservative who has promoted election-denier content. Justice Karl Procaccini, appointed by Walz last year, faces Trump supporter Matthew Hanson.

Two justices on Mississippi’s Supreme Court are running in contested elections. James Kitchens is one of three justices to dissent from the Court’s contentious 2021 ruling invalidating the state’s ballot initiative process. The legislature has since refused to rewrite the law to reinstate citizen-led direct democracy. Next month, Kitchens faces four challengers in a District 1 (including Jackson) election: attorney Abby Gale Robinson, attorney Bryon Carter, former state Court of Appeals Judge Ceola James, and Republican state Sen. Jenifer Branning. Of the four, James is the only challenger with judicial experience.

Justice Dawn Beam, who voted with the majority to nullify the initiative process, is facing attorney David Sullivan in the state’s southern District 2 election. While both describe themselves as conservatives, Sullivan has experience as a criminal defense lawyer and works with public defender’s offices in multiple counties, giving him an important perspective in a state with the highest incarceration rate in the nation.

Two justices on Montana’s Supreme Court are retiring, opening the door for conservatives to reign in a court that often rules against GOP priorities. For example, this year the court ruled that minors do not require parental permission to obtain abortion care and struck down a slate of voter suppression laws. The race to replace Chief Justice Mike McGrath is between Democratic-supported Jerry Lynch and Republican-supported Cory Swanson. The candidates running for Justice Dirk Sanefur’s seat are Katherine Bidegaray, backed by Democratic interests, and Dan Wilson, backed by Republicans.

Both McGrath and Sandfur are seen as liberal-leaning justices. The court will have a conservative-leaning majority if Swanson and Wilson win their elections next month.

North Carolina Justice Allison Riggs, one of only two Democrats left on the court, is up for re-election. If her challenger, Republican judge Jefferson Griffin, wins, Democrats will have very little chance to take back the majority before the end of the decade.

• If there is any doubt about the significance of state supreme court elections, just look to North Carolina. Republicans took control of the court when they gained a 5-2 majority in 2022, wasting no time reversing past civil and voting rights rulings. In just two years, the conservative bloc has approved of GOP gerrymandering, upheld the state’s felony disenfranchisement law, and undermined laws prohibiting racial discrimination in jury selection.

Three seats on the Ohio Supreme Court are on the ballot this year as the GOP tries to consolidate its power. Two of three Democratic justices, Melody Stewart and Michael Donnelly, are up for re-election. Common Pleas Court Judge Megan (R) is challenging Donnelly while Justice Joe Deters (R) is stepping down from his seat in order to challenge Stewart. Two lower-court judges, Lisa Forbes (D) and Dan Hawkins (R), are running for the seat Deters is vacating.

Republicans currently hold a 4-3 majority on the court. The Ohio GOP is hoping that a recent law adding party labels to judicial races on ballots will give them an advantage in the state, which leans right.

Three justices on the Texas Supreme Court and three justices on the Texas Court of Criminal Appeals are running for re-election. Despite the scarcity of Democratic wins in the state, SCOTX Justices Jimmy Blacklock, John Devine, and Jane Bland may be vulnerable due to their votes in favor of the state’s extreme anti-abortion laws. Meanwhile, the Appellate races are clouded with unusual uncertainty after Attorney General Ken Paxton (R) helped oust the three incumbent judges in revenge for previous rulings against his office.

DaSean Jones (D) is challenging Blacklock, Christine Weems (D) is challenging Devine, and Bonnie Goldstein (D) is challenging Bland. In the Court of Criminal Appeals, Holly Taylor (D) is facing David Schenck (R), Nancy Mulder (D) is facing Gina Parker (R), and Chika Anyiam (D) is facing Lee Finley (R).

One seat is in contention on the Washington Supreme Court as Justice Susan Owens steps down due to mandatory retirement age. Attorney Sal Mungia and Judge Dave Larson advanced from the primary with 42% and 37% of the vote, respectively. Mungia is backed by Gov. Jay Inslee (D) and eight of the nine sitting justices. Larson, on the other hand, has failed to garner significant endorsements amid his criticism of the court as too progressive.

#Secretary of State elections

Missouri: Far-right state Sen. Denny Hoskins is running against Democratic state Rep. Barbara Phifer to replace outgoing Secretary of State Jay Ashcroft (R). Hoskins has pledged to eliminate absentee voting and implement mandatory hand counting of ballots to “protect our elections from Chinese/Russian interference.” As a senator, Hoskins backed a bill to make it harder to pass citizen-led ballot initiatives—a trend among Republicans seeking to prevent the re-establishment of abortion rights.

Montana: Newspaper publisher Jesse Mullen (D) is challenging current Secretary of State Christi Jacobsen (R), who has backed voter suppression measures and undermined citizen-led ballot initiative measures.

Oregon: Current Secretary of State LaVonne Griffin-Valade (D) is not running for re-election. State Treasurer Tobias Read (D) is seeking to continue Oregon’s progressive voting policies while his opponent, state Sen. Dennis Linthicum, is campaigning to ban mail voting and investigate alleged voter fraud.

Vermont: Current Secretary of State Sarah Copeland Hanzas (D) is facing perennial Republican candidate H. Brooke Paige.

Washington: After over 50 years of Republican secretaries of state, Democrat Steve Hobbs won the office in a special election in 2022 (to complete the remainder of the previous secretary’s term). This year, Hobbs faces Republican Dale Whitaker, an accountant and former executive of a Spokane-based conservative organization.

West Virginia: Republican Kris Warner, the brother of outgoing Secretary of State Mac Warner, is running against Democrat Thornton Cooper. Despite the Warner’s embrace of election conspiracies and voter suppression tactics, the family seems sure to hold onto power in one of the Trumpiest states.

Not all states hold elections for their secretary of state; some instead are appointed by the governor or legislature. Electing people to these offices who support voting rights and ballot access is essential to ensure that they appoint a chief elections officer with the same values.

• Delaware: The governor appoints a secretary of state. This year, the candidates for governor are Democrat Matt Meyer, who seeks to expand access to mail voting, and Republican House Minority Leader Michael Ramone, who opposes mail voting.

• Maine: The legislature appoints a secretary of state. Republicans have a marginal shot at retaking control of the legislature. If they succeed, they will surely oust current Secretary of State Shenna Bellows for her decision to take Trump’s name off the state’s ballot earlier this year.

• New Hampshire: The legislature appoints a secretary of state. If Democrats can win control of the state House and Senate, they could potentially replace current Republican Secretary of State David Scanlan. However, Scanlan was initially appointed with dozens of Democratic crossover votes, raising doubts that he would be replaced despite his support for voter suppression measures.

• North Carolina: The state board of elections and the director of elections, not the secretary of state, conduct election administration in North Carolina. Last year, the Republican-controlled legislature gave themselves the power to appoint these positions. Unfortunately, there is little chance of Democrats retaking the legislature this year—but the party can take away the GOP’s supermajority, preventing them from overriding the governor’s veto.

• Utah: The Lieutenant Governor performs the functions of secretary of state. Current Lt. Gov. Deidre Henderson (R) is running with Gov. Spencer Cox (R) for re-election. Their challengers, gubernatorial nominee Brian King (D) and Rebekah Cummings (D), a librarian, are unlikely to win the statewide race in Utah.

#Ballot measures

##Electoral systems

Voters in Colorado (Prop. 131), Idaho (Prop 1), Nevada (Q. 3), and Oregon (Meas. 117) will be considering ballot measures to establish ranked-choice voting for federal and state offices (and, in Idaho, certain local offices). Ranked-choice voting (RCV) allows voters to rank candidates by preference rather than casting a ballot for a single candidate.

In Alaska, voters will decide on Ballot Measure 2, an initiative to repeal RCV and open top-four primaries, returning the state to partisan primaries and first-past-the-post voting. Alaskans first approved RCV via ballot initiative in 2020 by roughly one percentage point, amounting to nearly 3,800 votes, and used the system for the first time in 2022. Groups who support repealing RCV argue that the method is “confusing” to voters and “disenfranchised” Republicans. Advocates for keeping RCV say that it gives voters more choices at the ballot box and leads to candidates with broader appeal.

• Native American leaders in Alaska are organizing to defeat Ballot Measure 2, arguing that keeping RCV will lead to greater representation at the state and federal level. Rep. Mary Peltola (D) became the first Alaska Native member of Congress, defeating former Gov. Sarah Palin (R) and businessman Nick Begich (R), in the state’s 2022 RCV election.

The Republican-controlled Missouri legislature is asking voters to amend the state constitution to ban the use of ranked-choice voting for any election in the state. Lawmakers wrote the provision into Amendment 7, which includes a ban on non-citizen voting—something that is already illegal—in order to boost its chances of passing.

• The legislatures of seven other states are also asking voters to approve constitutional amendments that ban state and local governments from allowing noncitizens to vote: Iowa, Idaho, Kentucky, North Carolina, Oklahoma, South Carolina, and Wisconsin. These ballot measures are intended to advance the false narrative, pushed by Trump and other Republicans, that non-citizens are voting in U.S. elections in favor of Democrats. Politicians who push this lie are using it as an excuse to disenfranchise actual U.S. citizens, often with Spanish-sounding names, and to lay the groundwork to claim fraud if Trump loses the election.

Arizona voters will have a choice between two competing ballot measures: Proposition 140, a citizen-led initiative establishing open primaries and ranked-choice voting in general elections when three or more candidates advance, and Proposition 133, put on the ballot by the Republican-led legislature to require partisan primary elections.

Montanans will be voting on two potentially complementary citizen-led amendments. The first, CI-126, would establish top-four primaries for federal and state offices. The second, CI-127, would require that candidates for many state offices win a majority of the vote (i.e. over 50%) rather than a plurality. If CI-127 passes, the state legislature would need to create a law allowing for an electoral system with majority vote winners, like run-off elections or ranked-choice voting.

Voters in South Dakota will have the chance to approve Constitutional Amendment H to establish top-two primaries for federal, state, and certain local offices.

##Other election measures

Ohioans will be voting on Issue 1, a measure to establish an independent citizen-led redistricting commission. The current commission, composed entirely of politicians, has refused to draw fair maps, instead running out the clock and counting on Republican judges to leave partisan gerrymanders in place. A vote in favor of Issue 1 would establish a 15-member panel of citizens split equally between Democrats, Republicans, and Independents to create maps that “correspond closely to the statewide partisan preferences” of voters.

Voters in Connecticut can approve of the “No-excuse Absentee Voting Amendment,” which would do exactly what it says: authorize the legislature to provide by law for every citizen to vote by mail.

Nevada voters will be faced with Question 7, a measure to require photo identification when voting in person and a drivers license or social security number when voting by mail.

The Republican-controlled Arizona legislature is asking voters to approve three anti-democratic amendments. Proposition 137 would end term limits for state supreme court justices and superior court judges, therefore also ending retention elections for justices and judges. Proposition 134 would make it more difficult for citizen-led initiatives to qualify for the ballot by establishing a signature distribution requirement. Finally, Proposition 136 would create new pathways for challenging proposed amendments and measures.

The Republican-controlled legislature in North Dakota is also asking voters to raise the bar for citizen-led initiatives to qualify for the ballot by (a) increasing the signature requirement and (b) mandating that a proposed constitutional initiative be approved twice—once on the primary ballot and again on the general election ballot.

And in Florida, the Republican-controlled legislature is asking voters to approve two election-related amendments. The first, Amendment 1, would make all school board elections partisan beginning in 2026. The second, Amendment 6, would repeal the provision of the Florida Constitution that provides public campaign financing to those running for statewide office.

Voters in Maine can vote for Question 1, which sets a $5,000 contribution limit to Super PACs.

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#Digital voter registration

The 8th Circuit Court of Appeals reversed a lower court ruling that had blocked Arkansas from rejecting digital voter registration forms.

Get Loud Arkansas (GLA), a nonprofit that registers people to vote, created an online tool that allowed prospective voters to fill out a voter registration application, sign the form electronically, and authorize GLA to print and submit the completed application to county clerks. Election officials “assured GLA that this online process was lawful,” with Secretary of State John Thurston (R) even stating “on multiple occasions that an electronic signature should not be treated any differently than a wet signature.”

However, according to GLA, once the media began reporting on the nonprofit’s success at registering young and minority voters with the online tool, Thurston “abruptly reversed himself and recommended for the first time that counties reject electronic signatures.” The State Board of Election Commissioners then issued a rule requiring all voter registration forms to be signed with pen and ink—a so-called “wet signature” rule.

• Arkansas has the lowest voter registration rate and voter turnout rate in the nation. A study conducted by the National Conference of Citizenship found just 54% of eligible Arkansas voters participated in the 2020 election, compared to 66% nationally.

GLA, Vote.org, and several voters sued Thurston, the Board, and local county clerks, alleging that the rule is “an arbitrary restriction that is irrelevant in determining voter qualifications but denies eligible citizens the right to vote.” The defendants countered that the rule is necessary to “create uniformity in the administration of voter registration processes” and “prevent fraudulent voting.”

District Judge Timothy Brooks, an Obama appointee, ruled in favor of GLA in August, finding that the wet signature rule likely violates the Materiality Provision of the Civil Rights Act of 1964. He issued an injunction blocking the rule.

If the only way an applicant can register is by complying with an immaterial requirement—and failure to do so will result in the applicant remaining unregistered—then the applicant is, by definition, being denied the statutory right to vote due to an error or omission that is immaterial to determining their qualifications to vote under state law, in violation of the Materiality Provision. The Court finds it likely that enforcement of the Rule constitutes a denial of the right to vote based on an error or omission on a record or paper…Defendants do not present argument or evidence as to how a wet signature—as compared to a digital signature—aids in determining whether a person is a U.S. citizen, is an Arkansas resident, is eighteen years or older, has a prior felony, or has been adjudged incompetent.

The state appealed to the 8th Circuit, arguing in part that Brooks’ injunction “offends the Purcell principle, which generally disfavors last-minute changes to election rules.”

On Friday, the Court issued a stay pending appeal, allowing the state to again reject electronic signatures on voter registration forms.

#Digital IDs

A North Carolina appeals court blocked students at the state’s flagship public university from using their digital IDs to vote in elections.

In August, the North Carolina State Board of Elections voted 3-2, with Republican members in the minority, to allow UNC-Chapel Hill’s digital student identification to be used as a valid form of voter ID. Called “Mobile One Cards,” the digital student ID is a cryptographically secured card housed in Apple Wallet, similar to digital credit cards, that the university is phasing in to replace physical ID cards.

The Republican National Committee (RNC) and North Carolina Republican Party filed a lawsuit, alleging that state law requires all approved forms of identification to be a “physical, tangible item that can be held in a person’s hands and inspected.” The State Board responded that nothing in the law mandates an identification card be a physical object:

Plaintiffs do not dispute that Mobile One Cards satisfy the substantive criteria set forth in N.C.G.S. § § 163-166.17 and -166.18. Instead, their case hinges almost entirely on the meaning of one phrase: “identification card.” In Plaintiffs’ view, an “identification card” must be a physical, handheld document. Mobile or digital identification cards like the Mobile One Card, they say, cannot qualify.

But Plaintiffs’ tangibility requirement is entirely of their own invention. The governing statutes do not define “identification card.” And they certainly do not include any express requirement that a photo identification be a tangible, physical object. Because the State Board’s decision to approve the Mobile One Card was consistent with state law, Plaintiffs are unlikely to succeed on the merits of their claim.

Superior Court Judge Keith Gregory agreed with the Board, finding that “the controlling statutes contain no such requirement” for a “physical, tangible” identification card. Gregory also rejected the RNC’s claim that Mobile One Cards are more susceptible to fraud than physical cards and criticized the plaintiffs for waiting weeks to file the lawsuit in the first place.

The RNC appealed, arguing that despite the security built into Mobile One cards, they are no different than an “image of a photo ID” like a photocopy, which is not considered valid ID for voting in North Carolina.

A three-judge panel of the North Carolina Court of Appeals unanimously sided with the RNC last month, issuing an injunction preventing Mobile One cards from being used in the November election. The ruling could still be appealed to the majority-Republican state Supreme Court.

#Ohio drop boxes

The Ohio Democratic Party and two voters are suing the state over a directive restricting the use of ballot drop boxes.

Secretary of State Frank LaRose (R) issued new guidance last month prohibiting people who are assisting others in returning their ballot from using ballot drop boxes. Under LaRose’s policy, the voter is the only individual allowed to use the drop boxes. Ohioans returning a ballot for a relative or a disabled person must now take it to an elections office and sign a form attesting that they are legally authorized to do so.

LaRose claims the change is necessary to prevent so-called “ballot harvesting”—commonly referring to the mass collection of ballots but used by the right wing to outlaw returning ballots for friends and family.

“It is important to ensure the integrity of each vote delivered on behalf of an absent voter,” the directive states. “The security of the delivery of absentee ballots remains paramount, especially as it applies to the use of unattended drop box receptacles.”

LaRose, a Columbus Republican, stated in a letter to Republican legislative leaders that he issued the directive in response to a federal court ruling in July striking down part of a 2023 law that limited who could turn in a disabled voter’s ballot. LaRose asserted that the ruling creates a ballot-harvesting “loophole” that could be exploited by ballot harvesters operating “under the guise of assisting the disabled.”

The Ohio Democratic Party sued, asking the state Supreme Court to direct LaRose to rescind his guidance:

The Secretary’s duty is to enforce Ohio’s election laws as written by the General

Assembly, and as cabined by federal law, not to lawlessly redraft those laws on the eve of an election. The Revised Code unambiguously provides for a voter’s family member to return that voter’s absentee ballot inside the board’s office or via drop box. The Ohio Constitution requires the State to treat all similarly situated voters equally. And, as Secretary LaRose recognizes, a federal court order allows any voter with disabilities to designate a person of their choice to return their absentee ballot. The law does not permit the Directive’s haphazard, discriminatory approach to absentee ballot delivery.

Litigation in the case is ongoing.

LaRose is also pushing the legislature to ban drop boxes completely after a federal court invalidated an Ohio law that prohibited returning an absentee ballot for a disabled non-relative.

“It hurts working people and working families and college students — the people, of course, who don’t vote for Republicans,” [State Sen. Bill DeMora, D-Columbus] said. “They make it tougher for people to vote, make it tougher for people to take their own spouse’s ballot to the one box in the county that they’re allowed to have to drop off their ballots, anything they can do to make it tougher to vote.”

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The U.S. Supreme Court’s 2024-2025 term begins next week, kicking off the year with a string of consequential cases that could impact every aspect of American life.

#Oct. 7: Civil rights

Williams v. Washington is about whether states may force civil rights litigants who bring claims against state officials in state court under Section 1983 to first exhaust their administrative remedies.

Background: The plaintiffs in the case filed for unemployment benefits in Alabama during the height of the coronavirus pandemic. Some were not given a hearing to determine their eligibility, some had their applications denied without explanation, and others did not hear back from the Alabama Department of Labor at all. Eventually, the plaintiffs sued in state court under Section 1983, claiming their right to due process was violated. The Alabama Supreme Court ultimately dismissed the lawsuit, ruling that the plaintiffs must first exhaust their administrative remedies in the Department of Labor—the agency that failed to adjudicate their claims in the first place.

Implications: Section 1983 was created as part of the Klu Klux Klan Act during the Reconstruction era to empower the federal government to protect the rights of newly emancipated Black Americans, even in the face of a contrary state law. Today, it is often invoked in cases of police misconduct and unreasonable search and seizure, but the law applies to any government official. For the last 40 years, the U.S. Supreme Court has been hostile to Section 1983, limiting what entities can be held accountable for violating a person’s constitutional rights, expanding absolute immunity for officials, and inventing qualified immunity. Williams v. Washington provides another opportunity for the Supreme Court to restrict Section 1983 claims by closing access to the courts for those who have not exhausted administrative remedies.

As explained by a coalition of public interest groups, including the National Health Law Program and National Center for Law and Economic Justice, in a “friends of the court” brief, Section 1983 is used to remedy violations of various public benefit programs—from Medicare to Social Security to the Housing Act. Ruling in favor of Alabama would permit inconsistent application of the law and erode the people’s right to remedy constitutional violations.

If upheld by this Court, [Alabama’s] decision would undermine precedent established by this Court four decades ago that allows plaintiffs to access courts without having to first exhaust administrative remedies, which may in and of themselves be contributing to—or exacerbating—the systemic violations.

#Oct. 8: Gun control

Garland v. VanDerStok is about whether ghost gun kits can be regulated under the Gun Control Act of 1968.

Background: The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) issued a regulation in 2022 that required companies selling “firearm parts kits,” intended to be assembled by the customer into functional firearms using basic hand tools, to (a) include a serial number on the components, (b) conduct a background check on purchasers, and (c) obtain a federal gun dealer’s license. A coalition of firearm owners and firearm component manufacturers sued, with the case landing before far-right District Judge Reed O’Connor.

O’Connor ruled in favor of the plaintiffs, finding that only a fully complete firearm is a “weapon” under the law. Weapon parts are not legally a “weapon,” no matter how easily assembled they may be, and therefore cannot be regulated under the Gun Control Act. O’Connor then issued a nationwide injunction—upheld by the 5th Circuit—preventing the Biden administration from enforcing the ghost gun rule.

The Department of Justice appealed to the U.S. Supreme Court, which overturned O’Connor’s injunction in a 5-4 vote (Chief Justice Roberts and Justice Coney Barrett joined with the liberal justices in the majority). A month later, O’Connor tried again to undermine federal law, issuing another nationwide injunction but limiting it to the plaintiffs in the case. Practically, O’Connor’s order had the same effect as the first; because the manufacturers sell ghost guns online, anyone in America could circumvent the ATF’s regulation. The Supreme Court again stepped in, invalidating the second injunction with no noted dissents.

A three-judge panel of the 5th Circuit (made up entirely of Trump-appointed judges) weighed in on the merits of the case in November 2023, ruling unanimously that the ATF exceeded its statutory authority in regulating ghost gun kits.

Implications: There are numerous ways the Supreme Court could resolve VanDerStok. The most expansive ruling could broaden Second Amendment protections from the right to own and carry a firearm to the right to make and sell firearms, with limited regulation. A more narrow ruling in favor of VanDerStok might be restricted to legally defining a “firearm” as a whole, fully-assembled weapon. Even that holding, however, would lead to tragic consequences. According to the ATF, between 2016 and 2022, law enforcement recovered more than 72,000 ghost guns—more than 1,200 of which were discovered in connection to homicides and attempted homicides.

• For a hint on the direction the justices may take in VanDerStok, we can look at a comparable case decided last term. In Garland v. Cargill, Justice Clarence Thomas wrote for the conservative bloc that the ATF cannot extend the federal ban on machine guns to apply to bump stocks, which essentially turn semi-automatic guns into “automatically” firing weapons. According to Thomas, Congress would have to enact a broader law to ban bump stocks. Similarly, the rightwing members of the Court may rule that the ATF cannot extend the federal definition of a firearm to include unassembled gun parts, requiring Congress to amend the law to explicitly regulate ghost gun kits. Without a Democratic majority in the House and—assuming the filibuster is still around—a supermajority in the Senate, there is no chance of that happening any time soon.

#Oct. 9: Criminal justice

Glossip v. Oklahoma is a complicated case about the flawed prosecution and subsequent death sentence of Richard Glossip. The Court will consider numerous questions primarily centered on (1) whether state suppression of prosecution witness testimony violated due process and (2) whether “due process of law requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it.”

Background: In 1997, a hotel maintenance worker, Justin Sneed, beat hotel owner Barry Van Treese to death with a baseball bat. Richard Glossip, a manager at the hotel, was convicted of the murder in 2004 under the theory that he hired Sneed to kill Van Treese. He was sentenced to death.

Subsequent investigations coordinated by Republican lawmakers and officials uncovered comprehensive failures that tainted Glossip’s conviction and sentence. First, the only evidence implicating Glossip in Van Treese’s death was the testimony of Sneed, obtained after prosecutors promised not to seek the death penalty if he testified against Glossip. Second, police interrogation transcripts suggest that detectives planted the idea of a murder-for-hire plot in Sneed’s head, guiding Sneed to name Glossip as the mastermind. Third, police lost or destroyed several pieces of physical evidence in 1999 that could have helped exonerate Glossip.

None of these issues are before the Supreme Court, however. Glossip’s current case centers on information surfaced last year by Oklahoma Attorney General Gentner Drummond (R) that prosecutors withheld evidence that could have undermined Sneed’s credibility as a witness:

Glossip’s attorneys say they found evidence Sneed told prosecutors he was under the care of a jail psychiatrist who had diagnosed him with bipolar disorder and prescribed him lithium. The doctor also believed Sneed’s methamphetamine use could have made him “potentially violent.”

But at Glossip’s second trial, under questioning by prosecutors, Sneed said he had never seen a psychiatrist and suggested the lithium was prescribed after he asked for Sudafed to treat a cold, court records show. The state did not contradict him.

The withholding of evidence, in violation of the Due Process Clause of the Constitution, convinced AG Drummond to try to vacate Glossip’s conviction. Both the Oklahoma Court of Criminal Appeals and the state’s Pardon and Parole Board rejected Drummond and Glossip’s requests.

Implications: Glossip is one of the only cases in recent memory where the courts are ordering the state to execute a man that the state does not want to kill. As AG Drummond wrote in a brief in support of Glossip before the Supreme Court, the refusal of the Oklahoma Court of Criminal Appeals (OCCA) to accept the “State’s confession of prosecutorial misconduct…cannot stand.” If the highest court in America forces Oklahoma to execute Glossip despite admitted error, it will implicitly greenlight misconduct just as bad, or worse, in all criminal cases.

It is undisputed that the State not only withheld evidence of its star witness’s mental illness and perjury, but knowingly elicited false testimony providing an innocuous explanation for the disclosed facts. The withheld evidence cannot be dismissed as immaterial given the centrality of the witness to the entire prosecution. Nor can the false testimony be deemed truthful based on speculation that the witness was in denial. That is at best a theory of why he lied, not that he told the truth. And the OCCA’s refusal to give any weight to the State’s confession of error is equally troubling. It not only trivializes the considered views of a sovereign official duty-bound by the Oath Clause to uphold the Constitution, but sends a terrible signal to litigants by suggesting that the courts have a vested interest in preserving their “own” convictions.

#Oct. 16: Clean Water Act

San Francisco v. EPA is about how the Environmental Protection Agency (EPA) is allowed to regulate pollutant discharge into open waters.

Background: The city of San Francisco, California, is contesting the EPA’s National Pollutant Discharge Elimination System (NPDES), a program under the Clean Water Act that permits localities “to discharge a specified amount of a pollutant into a receiving water under certain conditions.” San Francisco, like many U.S. cities, handles sewage and stormwater through the same system. During a heavy rain event, when the stormwater overwhelms what treatment plants can process, a mixture of stormwater, untreated sewage, and other pollutants is discharged into surrounding waters.

At issue in this case is the city’s Oceanside system, which releases overflow pollutants into the Pacific Ocean. San Francisco contends that the standards in the EPA’s NPDES permit for the Oceanside system in specific, and for the program in general, are too vague. Instead of specifying exactly how much stormwater/wastewater Oceanside is allowed to discharge, the permit uses standards based on California’s water control plans that define the quality the state seeks to uphold in its native waters. Therefore, to be in compliance with its permit, the Oceanside treatment plant cannot cause the nearby waters of the Pacific Ocean to exceed a level of certain pollutants or visibly degrade the water quality (like with sewage debris).

The Generic Prohibitions make compliance with the CWA elusive, because a water body’s ability to meet water quality standards at any time depends on pollutants that all sources—not just San Francisco—contribute. San Francisco consequently lacks advanced notice of how much it must control its discharges without violating the Generic Prohibitions.

Numerous pro-business organizations, including the U.S. Chamber of Congress, the National Mining Association, the American Fuel and Petrochemical Manufacturers, and the American Gas Association, support San Francisco’s case.

Implications: The Supreme Court has already decimated numerous provisions of the Clean Water Act, including most recently its decision revoking protections for over 115 million acres of wetlands across the country. A similar decision limiting the ability of the EPA to regulate pollutant discharge into U.S. waters would allow local governments—and, potentially, corporations—to dump untold quantities of contaminants into our waterways, threatening to take the country back to the days of rivers of fire.

San Francisco lawmakers and citizens recognize the danger of the city’s lawsuit, especially in light of the conservative justices’ zeal for overruling agency expertise. The Board of Supervisors is attempting to draft and pass a binding ordinance calling on the city to drop the case before oral arguments take place:

“Many of us in the legislative body of the city and county of San Francisco don’t agree with this strategy,” [San Francisco Supervisor Myrna] Melgar said in an interview. “We think it’s really risky. We had many people come yesterday at a public comment for this item.” [...]

Local environmental groups in San Francisco, meanwhile, voiced concern about the lawsuit at the San Francisco Board of Supervisors meeting Tuesday, said Scott Webb, vice chair of Sierra Club San Francisco Bay Chapter. Those opposing the lawsuit include surfers, swimmers and groups pushing for less pollution in disadvantaged communities, he said.

“This is a very selfish move that will affect the country at large and lays out a big playbook for other municipalities and polluters who want to take a round at the Supreme Court on environmental protections,” Webb said of the city’s lawsuit.

Ian Fein, senior counsel at the Natural Resources Defense Council, said San Francisco’s arguments “don’t account for how water pollution often works in the real world.”

“I find it disappointing that San Francisco, of all places, is asking this Supreme Court to undermine important clean water protections,” Fein said.

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#Georgia

The Georgia State Board of Elections continued its streak of passing unprecedented—and potentially illegal—election rules last week, adding yet another pretext for conservatives to undermine a Harris victory in the state.

In a 3-2 vote, the Board mandated that county election boards must hand count all ballots in addition to using standard voting machines. While hand counts are often used in post-election audits, requiring a full hand count prior to official reporting of the results is a time-consuming and error-prone process that risks delaying and undermining election results.

"Counting thousands of ballots by hand will be incredibly tenuous, expensive and possibly error-prone process," said Kristin Nabers, state director for All Voting is Local Action, a group that advocates expanding voter access. "Any human errors can be exploited by election deniers to sow distrust and decrease confidence in our elections." [...]

The Georgia Association of Voter Registration and Election Officials weighed in this week with a letter to board members objecting to changing the rule on hand-counting ballots, citing its potential to "delay results, set fatigued employees up for failure, and undermine the very confidence the rule's author claims to seek."

Georgia Attorney General Chris Carr (R) warned the Board before Friday’s meeting that compelling the hand count of ballots “very likely exceed[s] the Board’s statutory authority” and “appear[s] to conflict with the statutes governing the conduct of elections.” A lawyer for Georgia Secretary of State Brad Raffensperger (R) also attempted to dissuade the Board, cautioning that it is “far too late in the election process for counties to implement new rules and procedures, and many poll workers have already completed their required training.”

The three members who voted to approve the new rule—Janice Johnston, Rick Jeffares, and Janelle King—have been praised by Trump as "pit bulls fighting for honesty, transparency and victory.” The same trio is behind a slew of other rules that could wreak havoc in November, including a requirement that local election officials conduct a “reasonable inquiry” into results before certifying the election and another granting them unprecedented power to access “all election related documentation.”

This upends the longstanding rule that superintendents merely perform the ministerial task of tabulating votes, and it would give these local superintendents broad new authority to search for supposed irregularities in an election and to refuse to certify an election if they claim to find some…

The state board’s new rules…allow local elections officials to dig through documents looking for something they think could be an irregularity, and then to refuse to certify the results based on their own idiosyncratic conclusion that the election was not conducted properly. If Trump loses Georgia in November, moreover, his campaign will very likely lobby local officials to use this power aggressively in an effort akin to the pressure Trump and his allies put on local officials in 2020.

A potential Trump-led effort to overturn Georgia’s election results (again) would find a not insignificant number of friendly ears. According to the Atlanta Journal-Constitution, “at least 19 election board members across nine Georgia counties…have objected to certifying an election over the past four years.” Some of these board members are part of a “behind-the-scenes network” of election deniers “coordinating on policy and messaging to both call the results of November’s election into question before a single vote is cast,” as detailed by The Guardian:

The group – which includes elections officials from at least five counties – calls itself the Georgia Election Integrity Coalition…They include Michael Heekin, a Republican member of the Fulton county board of elections who refused to certify results this year; his colleague Julie Adams, who has twice refused to certify results this year and works for the prominent national election denier groups Tea Party Patriots and the Election Integrity Network; and Debbie Fisher of Cobb county, Nancy Jester of DeKalb county and Roy McClain of Spalding county – all of whom refused to certify results last November…

The group has heard from speakers at their meetings that include the state election board member Dr. Janice Johnston, an election denier who smiled and waved to the crowd at Trump’s 3 August rally in Atlanta in which he praised her and two other Republicans on the board as “pit bulls” “fighting for victory”.

The Democratic National Committee (DNC) joined with a coalition of local election board members to sue the Georgia State Election Board (SEB), seeking to block the earlier rules passed by the MAGA majority. Certifying election results is mandatory, the plaintiffs argue, and contesting the results is meant to be handled by the courts, not certifying officials.

Through rulemaking, SEB has attempted to turn the straightforward and mandatory act of certification—i.e. confirmation of the accurate tabulation of the votes cast—into a broad license for individual board members to hunt for purported election irregularities of any kind, potentially delaying certification and displacing longstanding (and court-supervised) processes for addressing fraud. Under two rules each passed by a 3-2 vote, election officials must now (1) conduct a “reasonable inquiry” prior to certification and (2) permit individual county board

members “to examine all election related documentation created during the conduct of elections.” According to their drafters, these rules rest on the assumption that certification of election results by a county board is discretionary and subject to free-ranging inquiry that may delay certification or foreclose it entirely. But that is not the law in Georgia. Rather, election officials have a non-discretionary duty to certify results by 5 p.m. six days after election day. Allegations of fraud or election misconduct are then resolved by the courts in properly filed challenges, not by county boards in the counting process.

A bench trial is scheduled for October 1 in Fulton County Superior Court.

#Nebraska

Congressional Republicans are ramping up the pressure on Nebraska lawmakers to change their state’s method of allocating electoral votes to benefit Donald Trump.

Instead of the winner-take-all system that 48 states use, Nebraska divides three of its electoral votes between congressional districts and awards the final two to the statewide winner. Its two rural districts are solidly Republican; only the 2nd district, containing Omaha and its suburbs, has a chance of trending Democratic. For example, Biden won the district by over 6 points in 2020, capturing one of the state’s five electoral votes.

Now, with the presidential race tightening, national Republicans are hoping the state will issue a last-minute change to ensure Omaha’s electoral vote won’t go to Kamala Harris. South Carolina Sen. Lindsey Graham (R), acting on behalf of the Trump campaign, visited Nebraska last week to meet with Gov. Jim Pillen (R) and “encourage [him] to call a special legislative session at which lawmakers could consider changing the state's apportionment of electoral votes”:

Pillen, a Republican, was "receptive" to Graham's overtures Wednesday and indicated that he would call a special session if he thought he had the votes, the source said…"As I have consistently made clear, I strongly support statewide unity and joining 48 other states by awarding all five of our electoral college votes to the presidential candidate who wins the majority of Nebraskans’ votes," Pillen said in a statement last week. "As I have also made clear, I am willing to convene the Legislature for a special session to fix this 30-year-old problem before the 2024 election."

Two-thirds of Nebraska’s unicameral legislature, or 33 senators, are required to vote to change the state’s electoral vote apportionment method. It appears, based on news reports, that just one lawmaker is standing in the way: Sen. Mike McDonnell of Omaha, a former Democrat who switched to the GOP earlier this year after being censured for his anti-abortion and anti-LGBTQ+ votes. Despite the mounting local and national pressure, McDonnell says he will not vote for a winner-takes-all system this year:

“Elections should be an opportunity for all voters to be heard, no matter who they are, where they live, or what party they support,” McDonnell said in a statement. “I have taken time to listen carefully to Nebraskans and national leaders on both sides of the issue. After deep consideration, it is clear to me that right now, 43 days from Election Day, is not the moment to make this change.”

McDonnell said he told Pillen his stance and suggested that the Legislature put winner-take-all to a vote of the people, as a proposed constitutional amendment, so people can decide the issue “once and for all.”

Should McDonnell change his mind, and if Nebraska changes its apportionment method, the odds will increase that Trump and Harris both receive 269 electoral votes. In that scenario, the race would be thrown to the U.S. House, where each state delegation would get one vote for president.

#Third party candidates

The Republican party is continuing its attempts to remove third party candidates from the ballot where they believe votes will be siphoned from Trump, while boosting third party candidates in states where another option on the ballot will hurt Harris.

On August 23, Robert F. Kennedy Jr. suspended his independent presidential campaign and endorsed Trump. In the following days and weeks, Kennedy began filing lawsuits to get his name off the ballot despite missing the deadline in multiple instances.

First, in North Carolina, the state Supreme Court ruled 4-3 in Kennedy’s favor, ordering election administrators to destroy nearly 3 million already-printed ballots and restart the design and printing process. Kennedy did not file his request for removal until August 27, five days after the state’s deadline, and should have been forced to stay on the ballot under state law. The Court’s conservative majority disagreed, writing that keeping Kennedy on the ballot would “infringe” on “voters’ fundamental right to vote their conscience and have that vote count.” Consequently, absentee ballots for tens of thousands of voters were delayed by two weeks, with the first being mailed tomorrow.

Meanwhile, in Michigan, both the state’s Supreme Court and a federal judge reached the opposite conclusion, determining that it is too late to remove Kennedy’s name from the ballot. “Reprinting ballots at this late hour would undoubtedly halt the voting process in Michigan and cause a burden to election officials,” U.S. District Judge Denise Hood ruled last week. Kennedy appealed to the Sixth Circuit yesterday, arguing that it is “irrelevant” that more than 90% of the ballots have already been printed.

Kennedy’s third attempt to have his name removed from the ballot is taking place in Wisconsin, where the state’s Supreme Court announced on Friday that it will decide the issue as “expeditiously as possible.” Election clerks in Wisconsin have already begun sending absentee ballots with Kennedy’s name.

What do all of the above states have in common? They’re swing states where Kennedy’s name could draw potential Trump voters away from voting for the former president. In blue states, like New York, Kennedy is seeking the opposite result: he is suing to stay on the ballot. In a filing to the U.S. Supreme Court yesterday, Kennedy asked for an emergency order to restore his name to the ballot, arguing that voters who signed petitions supporting him “have a constitutional right to have Kennedy placed on the ballot – and to vote for him, whether he is campaigning for their vote or not.”

The cynical effort to pick and choose on which state ballots Kennedy appears follows the GOP campaign to get Green Party candidate Jill Stein on Nevada’s ballot in the hopes of siphoning votes from Harris. Trump attorney Jay Sekulow represented the Green Party pro bono during its litigation before the U.S. Supreme Court, ultimately losing the fight to appear on the Nevada ballot. Similarly, Trump lawyer Michael D. Dean represented the Green Party in Wisconsin, where the state Supreme Court ruled to keep Stein on the ballot.

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###Check your voter registration status

Rightwing efforts to disenfranchise voters ahead of the 2024 general election are accelerating, with many attempts focusing on the removal of voters from registration databases. The movement is widespread and organized enough to gain the U.S. Department of Justice’s attention: Earlier this month, the DOJ issued new guidance emphasizing that it is against federal law to “conduct a general list maintenance program” within 90 days of a primary or general election.

Examples of list maintenance activities that may violate the [law] include comparing voter files to outdated or inaccurate records or databases, taking action that erroneously affects a particular class of voters (such as newly naturalized citizens), or matching records based solely on first name, last name, and date of birth. The prohibitions…extend to any list maintenance activity based on third-party submissions.

Conservative organizations, including the Republican National Committee and the Trump campaign, are turning to the courts to try to force states to purge voters anyway.

#Georgia

In May, Gov. Brian Kemp (R) signed Senate Bill 189 into law, encouraging baseless mass voter challenges and making it easier to invalidate a voter’s registration. The new law, in combination with one enacted in 2022, allows an individual to challenge the legitimacy of an unlimited number of voters based on a suspicion that the voters do not actually live in the jurisdiction.

Since SB 189 took effect over the summer, county officials have seen an increase in voter challenges that “appear to be part of an organized effort across the state” by Republicans who falsely believe the 2020 election was stolen from Donald Trump. A single Republican Party activist, Helen Strahl, challenged the registrations of nearly 900 voters in Chatham County (home to Savannah), succeeding in getting 641 removed from the voter rolls. Strahl claimed the majority of the voters had moved out of the county and registered to vote elsewhere but it is unclear how she compiled the list or how accurate it is. Unhoused people, seasonal workers, and students are among those caught up in purges:

A longtime compliance officer, Strahl had found her political voice during the last few years by taking advantage of a new Georgia law that allows private citizens to file mass challenges against other people’s eligibility to vote. She has legally challenged more than a thousand voters in Chatham County during the past 18 months, quietly reshaping the electorate in a crucial stretch of coastal Georgia and amplifying conspiracy theories about widespread voter fraud. She wrote to elections officials to question the eligibility of seasonal workers who moved temporarily out of state, homeless residents who didn’t have a proper address and almost 700 students or former students who were registered to vote at Savannah State University, one of the country’s oldest historically Black colleges.

“I live in this county,” she later explained. “I’d like to know my vote is going to count and not be diluted. It’s in my interest to help maintain a clean and accurate voting roll.”

Voting rights groups filed a lawsuit seeking to block SB 189, arguing that the law violated the National Voter Registration Act of 1993 (NVRA):

Under Section 8(d) of the National Voter Registration Act of 1993 (“NVRA”), an election official may only remove voters from the registration list on

the basis that they have moved if one of two requirements are met. First, voters may be removed if the voter confirms in writing that they have moved. Second, voters may be removed if they receive written notice that their address needs to be confirmed and they fail to vote or otherwise confirm their address with election officials during the next two federal election cycles.

Election officials in Chatham, Gwinnett, Forsyth, and Spalding Counties are violating Section 8(d) by removing voters who have been subjected to mass

challenges based on an alleged change of address without meeting either of these requirements. These county boards have purged voters based on unvetted documentation and unreliable information provided by private citizens, such as screenshots of purported property records or social media posts.

The lawsuit also challenges a second provision of SB 189 that prohibits unhoused voters from using their preferred mailing address (for example, a P.O. box or homeless shelter), forcing them to receive their election mail at the county registrar’s office or be removed from the voter rolls.

SB 189 Section 4’s unhoused voter mailing address restriction, which

amends O.C.G.A. § 21-2-217(a), violates Section 8(b) of the NVRA. Section 4 of SB 189 explicitly identifies and places unnecessary, discriminatory, and unreasonable requirements solely on unhoused voters without a permanent address by restricting their mailing address for election purposes to their county registrar’s office. No other voters are subject to this restriction. Nor are any other voters subjected to having their election mail involuntarily directed to a location other than where they receive their other mail…By solely targeting unhoused voters without a permanent address in this way, Defendants burden their rights in violation of the First and Fourteenth Amendments to the U.S. Constitution.

The Republican National Committee filed a motion to intervene last month, telling the court that the Republican Party has a clear interest “in protecting their candidates, voters, and resources from plaintiffs’ attempt to invalidate Georgia’s duly enacted election rules.”

#Arizona

Arizona Republican Party leaders and a conservative dark money group filed a lawsuit to force the removal of 500,000 people from voter rolls in a state that President Joe Biden won by less than 1,000 votes.

Arizona GOP chair Gina Swoboda, Arizona Free Enterprise Club president Scot Mussi, and failed Republican candidate Steve Gaynor allege that the state has not kept an accurate count of registered voters. According to the lawsuit, at least four counties have more registered voters than adults over the age of 18, and many others have “implausibly high” voter registration rates. The plaintiffs allege that they have suffered irreparable injuries as a result of “inaccurate” voter rolls, including the risk of vote dilution “any time an ineligible voter casts a ballot” and the undermining of “confidence in Arizona’s electoral system.”

Arizona Attorney General Kristin Mayes filed a motion to dismiss, arguing that the plaintiffs lack standing to sue because their alleged injuries do not exist:

Plaintiffs’ next allegation, that “ineligible voters have an opportunity to vote,”

which “risk[s] the dilution of Plaintiffs’ legitimate vote” is both too speculative and not a cognizable claim. Plaintiffs’ own Complaint admits that “[t]here is no evidence that these counties experienced above-average voter participation compared to the rest of the country or state.” They acknowledge that their claimed harm does not exist.

The state, Mayes continued, follows all relevant laws to maintain its voter registration rolls. Any perceived discrepancy identified by the plaintiffs is attributable to their own misunderstanding of statistics: the lawsuit’s claims are based on total registered voters instead of active registered voters. Total registered voters includes inactive voters - mainly those who may have moved but cannot legally be removed from the rolls until they fail to vote in two consecutive election cycles. Therefore, the total registered voters count may always be higher than the voting-age population because it includes people who moved away and were placed on inactive status.

• Note: People on the inactive list can still vote if it is within two election cycles of moving and/or of when the election agency had election materials returned undeliverable.

The case was assigned to District Judge Dominic Lanza, a Trump appointee, and is still pending.

Meanwhile, Trump-aligned America First Legal Foundation (created by former advisor Stephen Miller) is pursuing a lawsuit against Arizona alleging that the state is not thoroughly checking the citizenship of people registered to vote in federal elections. The plaintiffs provide no evidence of their claim that noncitizens are signing up to vote in Arizona. It appears the lawsuit is instead a vehicle to spread one of Donald Trump’s favorite racist conspiracy theories: that Democrats are bringing nonwhite immigrants into the United States to replace white voters and enact a political agenda.

• Noncitizens illegally voting is exceedingly rare. A 2016 national study found that in 42 jurisdictions accounting for 23.5 million votes, there were only 30 estimated cases of suspected noncitizen voting.

#North Carolina

The RNC filed a lawsuit against North Carolina’s State Board of Elections seeking the removal of over 225,000 people from voter rolls—in a state that Biden lost in 2020 by roughly 75,000 votes.

The lawsuit stems from a mistake on voter registration forms used last year that failed to require a driver’s license number or the last four digits of a Social Security number. Instead of using red text, denoting required information, the forms used black text, denoting optional information, for the identification section. The state processed approximately 225,000 applications before being made aware of the error and fixing the forms.

The RNC and the North Carolina Republican Party are asking the court to remove everyone registered with the erroneous forms from the voter rolls. The State Board contends that the plaintiffs waited too long to bring the lawsuit, as the NVRA prohibits the removal of voters within 90 days of an election. And, even if it were legal to cancel their registration, it would be unnecessary because North Carolina has a voter ID law; in order to vote, the 225,000 people must provide the same information that the registration forms should have required.

A second lawsuit, also filed by the RNC, alleges that the State Board of Elections has failed to use jury data to remove noncitizens from its voter rolls. According to SB 747, passed last year over Gov. Roy Cooper’s (D) veto, county clerks must notify the Board when a person called for jury duty informs the courts that they cannot serve because they are not U.S. citizens. The Board must then investigate and remove that person from the voting rolls if they (a) are not a citizen and (b) are registered to vote.

The state has not yet filed an official response but told the media that the accusation is “categorically false.”

Pat Gannon, a spokesperson for the board, said this accusation was “categorically false” and that the agency has already worked with superior courts across the state to implement the new law. The elections board asked the NC GOP and the RNC to rescind their press releases on the lawsuit “as they will undermine voter confidence on an entirely false premise.”

#Michigan

There are two ongoing cases regarding voter registration in Michigan, both initiated by the national Republican party:

The Republican National Committee (RNC) and two Republican voters are suing Michigan, alleging that the state has failed to maintain accurate voter rolls. As evidence, the plaintiffs claim that at least 53 counties have more registered voters than adults over the age of 18. However, Secretary of State Jocelyn Benson (D) replied that the RNC is using the wrong data: to determine how many voting-age residents live in each county, the RNC relied on census data, which shows where people were living at a specific time in 2020 but not where they are legally allowed to be registered to vote. The RNC also used numbers that include inactive voters, producing an unreliable count of the number of people currently living in and registered to vote in each county. With the correct numbers, using the RNC's methodology, no county has more than 95% of residents registered to vote.

The RNC, the Trump campaign, and the Michigan Republican Party are also suing the state over Gov. Gretchen Whitmer’s (D) executive order expanding the locations that can register people to vote to include agencies like Veterans Affairs offices and Small Business Administration offices. The governor’s order was illegal, the plaintiffs allege, because only the legislature may designate new voter registration agencies.

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#Texas

Texas Attorney General Ken Paxton (R) conducted a series of raids last week targeting purported “voter fraud” by Latino activists. According to warrants obtained by the Texas Tribune, the AG’s Election Integrity Force seized cell phones and laptops belonging to several members of LULAC, the nation’s oldest Latino civil rights organization, including Democratic candidate Cecilia Castellano and legislative aide Manuel Medina. Paxton’s office claimed in a sworn affidavit that Medina was involved in an illegal scheme to harvest votes for Castellano.

“The vote harvesting services that [the woman] and Medina agreed to are for [the woman] to complete [applications for ballots by mail] for voters and then make contact with the voter when they receive the mail so that she can collect the mail ballot,” the affidavit says. “Based on this conversation, [the investigator] concluded that the vote harvesting services to be performed involve [the woman] being in the physical presence of an official ballot or a ballot voted by mail, intended to deliver votes for Castellano.”

“Vote harvesting” consists of fraudulently collecting and casting other peoples’ ballots without their knowledge, but is often used by the GOP to refer to the entirely legal practice of organizations helping senior and disabled citizens access, fill out, and drop off their ballots. Case in point: Lidia Martinez, an 87-year-old member of LULAC who helps older Latinos register to vote. Her home was one of those raided by Paxton’s agents:

She said she heard a knock on her door right before 6 a.m. on Tuesday…Nine officers, seven of them men, some with guns in their holsters, then pushed open the door and marched past a living room wall decorated with crucifixes, she said.

“I got scared,” she recalled in an interview on Sunday, speaking in both English and Spanish. “They told me, ‘We have a warrant to search your house.’ I said, ‘Why?’ I felt harassed.”

Ms. Martinez said that the officers told her they came because she had filled out a report saying that older residents were not getting mail ballots…The officers said they were looking for voter cards that residents had filled out, she said. “I told them, I don’t have them here,” she said…

Two of the agents went to her bedroom and searched everywhere, “my underwear, my nightgown, everything, they went through everything,” Ms. Martinez recalled. They took her laptop, phone, planner and some documents…The officers questioned her for about three hours, she said.

LULAC CEO Juan Proaño and President Roman Palomares are asking the U.S. Justice Department to investigate Paxton for violating the Voting Rights Act in connection with the raids. "These actions echo a troubling history of voter suppression and intimidation that has long targeted both Black and Latino communities, particularly in states like Texas, where demographic changes have increasingly shifted the political landscape,” the letter says.

Meanwhile, Paxton is suing two Democratic counties over contracts to conduct voter registration outreach. Commissioners of Bexar County, home to San Antonio, and Travis County, home to Austin, recently voted to hire Civic Government Solutions to identify eligible, unregistered voters and offer to register them to vote with the county.

According to Paxton’s lawsuits, the counties have “no authority…to print and mail unsolicited voter registration forms,” and doing so would “create confusion, facilitate fraud, [and] undermine confidence in elections.” He is asking the courts to block Bexar and Travis counties from going forward with the plan.

• Reminder: Just a few weeks ago, Paxton opened an investigation into unsubstantiated reports promoted by Fox News that migrants were registering to vote outside a drivers license office in Texas. By announcing the investigation, Paxton himself undermined confidence in elections based on apparent disinformation from known conspiracy theorist Maria Bartiromo.

#Florida

Florida organizers collected nearly a million signatures over the past year to get an abortion rights amendment on the ballot in November. Now, Gov. Ron DeSantis is sending police after voters who signed the petition.

The deadline in state law to challenge the validity of the signatures has long passed, but election administrators across Florida have been receiving requests from state officials to turn over petition signatures that their offices have already verified.

Since last week, DeSantis’ secretary of state has ordered elections supervisors in at least four counties to send to Tallahassee at least 36,000 petition forms already deemed to have been signed by real people. Since the Times first reported on this effort, Alachua and Broward counties have confirmed they also received requests from the state.

One 16-year supervisor said the request was unprecedented. The state did not ask for rejected petitions, which have been the basis for past fraud cases.

One of the people who signed the petition last year, Isaac Menasche, told the Tampa Bay Times that law enforcement officers showed up at his house to question him about his signature:

Menasche later posted on Facebook that it was “obvious to me that a significant effort was exerted to determine if indeed I had signed the petition.” He told the Times that the officer who showed up at his door had a copy of Menasche’s driver’s license and other documents related to him.

Another voter, Becky Castellanos, was visited by a state police officer who interrogated her about a family member’s petition signature. The officer said he had been questioning other voters about their signatures, as well.

Castellanos said she felt intimidated by having a law enforcement officer come to her door. And she said she was “surprised but not surprised” when she learned it was about Amendment 4…“It didn’t surprise me that they were doing something like this to try to debunk these petitions to get it taken off of the ballot,” she said.

According to DeSantis, officers were sent to question voters after his Election Integrity Unit allegedly found some verified petitions not signed by the actual voter. The state has not provided any evidence to support the governor’s claim.

• The Election Integrity Unit, created in 2022 by DeSantis, was previously embroiled in controversy for arresting people with felonies who cast ballots after being led to believe that they were eligible to vote. Charges were later dismissed in numerous cases.

#Arizona

Arizona Secretary of State Adrian Fontes (D) released new guidance last year designed to prohibit voter intimidation after people, sometimes masked and armed, staked out ballot drop boxes during the 2022 midterm elections. The provisions, outlined in the state’s Election Procedures Manual (EPM), include limits on repeatedly monitoring individuals near a drop box or polling place; intentionally following individuals delivering ballots to a drop box; directly confronting, questioning, photographing, or videotaping voters or poll workers in a “harassing or intimidating manner”; and posting signs or communicating messages in a “harassing or intimidating manner” near a drop box or polling place.

Arizona Free Enterprise Club (AFEC), a conservative nonprofit that has issued previous challenges to election rules, and America First Policy Institute, a Trump-aligned think tank, sued the state to block the regulations on free speech grounds:

By regulating conduct such as observing a drop box within 75 feet of the drop box,

speaking to voters and election workers, and photographing activity at election sites, the EPM has criminalized activity which is plainly protected by the First Amendment and article 2, sections 5-6 of the Arizona Constitution.

These activities—watching drop boxes, speaking to people at election sites, and

photographing activity at election sites—all constitute forms of speech.

For example, AFEC members are not only interested in observing activity at drop

boxes, but they are also just as interested in conveying a message to others that the drop boxes are being watched and should be watched…Even if AFEC’s speech might be incorrect or unpopular, it is no less protected by the First Amendment, as erroneous statements and unpopular opinions are inevitable in free debate.

Judge Jennifer Ryan-Touhill of the Maricopa County Superior Court ruled in favor of the conservative groups, blocking the state from enforcing the challenged voter intimidation provisions. While the state is allowed to ban threatening behavior in the immediate area around a polling place, Ryan-Touhill wrote, Secretary Fontes’s rules went too far and violated the First Amendment:

Plaintiffs’ speech is not protected when it violates the law—members of the organizations are legally prohibited from saying many things (e.g., “vote for this person or else”-type of threats) and doing many things (e.g., electioneering within 75 feet of a polling place). But many of the prohibitions listed in the EPM are free speech and protected by both the Arizona Constitution and the U.S. Constitution. What, for example, constitutes a person communicating about voter fraud

in a harassing manner? Or, for that matter, “posting” a sign in an intimidating manner? How does a person either do this behavior—whatever it means—or avoid it? And what content printed on a t-shirt might be offensive or harassing to one and not another? What if the t-shirt says, “I have a bomb and I intend to vote!”? Where does the Secretary draw the line?

Fontes plans to appeal the order, calling the court’s injunction too far-reaching.

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#Student loan relief

Last week, the Supreme Court approved a nationwide injunction against Biden’s student loan relief plan despite previously condemning their use.

###Background

The Biden administration announced a new debt relief program for student borrowers last year, called the SAVE plan, after a pandemic-era pause on student loan payments expired. Under the SAVE plan, monthly payments are calculated based on a borrower’s discretionary income (income minus the cost of necessities); borrowers who earn less than $32,800 a year are eligible to have their monthly loan repayments waived completely; accrued interest not covered by the monthly payment won’t be added to the principal balance; and payments on undergraduate loans are capped at 5% of discretionary income.

Most of these features are not new and have been approved by Congress numerous times since the Student Loan Reform Act of 1993, including most recently with the creation of the REPAYE plan in 2015. The SAVE plan modifies the earlier programs to offer more generous terms, particularly for low-income borrowers.

###The case

Seven states, led by Missouri, filed a lawsuit earlier this year alleging that the federal government exceeded its authority by forgiving the repayment of student loans without congressional authorization.

Separation-of-powers principles prohibit an agency from deciding an issue of great economic or political significance, or issues traditionally governed by state or local law, absent clear authorization from Congress to do so, under what Courts have recognized as the “major questions doctrine.” [...]

The Final Rule concerns matters of vast political significance and salience because its provisions and outcomes relate to issues subject to earnest and profound debate in the American body politic for several decades where Congress has actively legislated… The Final Rule also concerns matters of great economic significance because the net updated cost of its provisions are projected to be at least $475 billion over a ten-year period…

The states argue that the SAVE plan is no different from Biden’s attempt at student loan cancellation, which the Supreme Court rejected last year in Biden v. Nebraska using the major questions doctrine. Like in Nebraska, Missouri argues the SAVE plan would harm the state because the quasi-governmental loan servicing company MOHELA would lose revenue generated by federal student loans.

• MOHELA’s inclusion in Biden v. Nebraska generated significant controversy because the states would not have had standing to sue in the first place without the company. Documents obtained by the media revealed that MOHELA did not even know former Missouri Attorney General Eric Schmitt was using the company in the lawsuit until after he filed it.

District Judge John Ross, an Obama appointee, denied the states’ request for an injunction against the entire SAVE plan, opting to simply block the federal government from forgiving loans. In doing so, Ross mentioned that Missouri is the only state with standing, due to the invocation of MOHELA and the Supreme Court’s previous Biden v. Nebraska ruling. Just one state needs standing, though, for the case to survive.

The states were unsatisfied and appealed to the 8th Circuit for an injunction against the entire SAVE plan, drawing a three-judge panel of G.W. Bush appointee Raymond Gruender, Trump appointee Judge Ralph Erickson, and Trump appointee Steven Grasz. Unsurprisingly, given its composition, the panel granted the states’ request and issued a universal injunction preventing the Education Department from enacting “any further forgiveness of principal or interest, from not charging borrowers accrued interest, and from further implementing SAVE’s payment-threshold provisions.” In other words, the 8th Circuit panel blocked not only the entire SAVE plan but also provisions of other income-driven plans nationwide.

• The 10th Circuit heard a different challenge to the SAVE plan, brought by Alaska, South Carolina, and Texas. The three-judge panel in that case, comprised of a G.W. Bush appointee, a Reagan appointee, and an Obama appointee, allowed the Education Department to implement the SAVE plan while litigation continued. However, due to the 8th Circuit’s nationwide injunction, the 10th Circuit’s opinion was effectively nullified.

The Biden administration appealed the 8th Circuit’s ruling to the Supreme Court, asking the justices to “vacate, or at a minimum narrow, the injunction” while litigation plays out in the lower courts:

…the Eighth Circuit improperly issued a universal injunction. Article III and traditional principles of equity require

that injunctive relief be “limited to the inadequacy that produced [the plaintiff’s] injury.” This Court recently “remind[ed] lower courts of th[at] foundational rule” by staying a “universal injunction” that swept more broadly than necessary to prevent harm to the plaintiffs. Any injunctive relief in this case thus should have been tailored to prevent harm to Missouri -- the only State found to have standing by either the Eighth Circuit or the district court.

Instead, the Eighth Circuit entered a universal injunction

barring the application of the REPAYE plan’s preexisting provision of forgiveness, as well as the rule’s major changes to the REPAYE plan, to millions of borrowers throughout the country -- most of whom have no connection whatsoever to MOHELA. That injunction imposes all of the now-familiar harms associated with universal relief. And here, those harms are particularly acute because the Eighth Circuit’s injunction effectively nullifies the Tenth Circuit’s order in Alaska and grants the plaintiffs in that case the very relief they were denied in their own suit.

Without explanation, the Supreme Court denied the federal government’s request, leaving the 8th Circuit’s sweeping nationwide injunction against student loan relief in place. The unsigned two-sentence order contains no dissents; not from Justice Clarence Thomas, who previously wrote that “universal injunctions are legally and historically dubious” when used against the Trump administration’s travel ban, and not from Justice Neil Gorsuch, who decried universal injunctions for “sowing chaos” when used against the Trump administration’s public charge rule.

#Non-compete agreements

A Texas judge issued a nationwide injunction last month preventing the Federal Trade Commission (FTC) from enforcing its new ban on non-compete agreements.

###Background

The FTC adopted a final rule in April 2024 that prohibits most employers from entering into or enforcing non-compete agreements with workers, with exceptions for senior executives like CEOs. Non-compete agreements are commonly included in contracts to prevent employees from working for a competitor after their employment ends. According to the FTC, the rule will free approximately 30 million people from non-compete agreements, generate over 8,500 new businesses each year, result in higher earnings for workers, and lower healthcare costs by up to $194 billion over the next decade.

###The case

Ryan, LLC, a Texas-based tax services firm, filed a lawsuit in the Northern District of Texas seeking an injunction to block the FTC from enforcing its ban on non-compete clauses because the agency allegedly exceeded its authority. The U.S. Chamber of Commerce and various business groups intervened, arguing that the FTC is limited to addressing unfair-competition practices on a case-by-case basis. By banning all non-competes nationally, the Chamber continues, the FTC has exceeded its statutory power and violated the major-questions doctrine:

It is hard to imagine a more major question than

whether an agency may assert rulemaking authority to decide what constitutes fair competition throughout the entire country. This case shows how awesome that power is: by a vote of 3-2, the Commission has overridden the laws of at least 46 States and declared tens of millions of noncompete agreements unenforceable. And of course if the Commission may declare that all noncompetes are unfair methods of competition, it may take the same approach to any other business practice or category of conduct. The Commission’s approach would break from decades of its own case-by-case adjudication, and (as here) potentially centuries of state law. The Commission has nothing remotely resembling clear congressional authorization to assert powers of such vast “political and economic significance.”

Judge Ada Brown, a Trump appointee, sided with the business groups and issued a nationwide injunction preventing the FTC ban from taking effect for all workers last month. "The FTC lacks substantive rulemaking authority with respect to unfair methods of competition,” she wrote. "The role of an administrative agency is to do as told by Congress, not to do what the agency think[s] it should do.” Brown cites Loper Bright v. Raimondo, the recent Supreme Court case striking down Chevron deference, numerous times in her opinion.

The FTC is considering an appeal, which would occur at the hyper-conservative 5th Circuit. In the meantime, the agency will address non-compete agreements on a case-by-case basis.

• Note that the U.S. Chamber of Commerce objects to regulations made by a 3-2 vote of FTC Commissioners, who are nominated by the president and confirmed by the Senate to serve a seven-year term, but praised the nationwide overruling of the FTC by a single Texan judge appointed to a lifetime position by a president who lost the popular vote.

#Sex and gender discrimination

The Supreme Court issued a preliminary injunction blocking the entirety of the Biden administration’s new rule protecting LGBTQ+ students in 26 states.

###Background

Title IX is a 50-year-old law that prohibits schools that receive federal funds from discriminating on the basis of sex. Under a proposed rule released in April, Title IX protections would be extended to cover discrimination on the basis of sexual orientation and gender identity. The revised rule also contains accommodations for pregnant students, updated procedures for investigating sexual discrimination (including harassment and assault), and universal staff training standards to recognize and report sex discrimination, among other measures meant to protect students.

###The case

26 states filed seven separate lawsuits against the Education Department, challenging three specific provisions that relate to protections for transgender and nonbinary students: (1) the definition of sex to include gender identity, (2) the expansion of “hostile-environment harassment” to include harassment based on gender identity, and (3) the prohibition on schools banning students and teachers from using restrooms that align with their gender identities.

All of the cases resulted in injunctions blocking enforcement of the entire 423-page rule, even though the states challenged only the above provisions. The 5th and 6th Circuits rejected the DOJ’s requests to pare back the injunctions to only the three challenged provisions.

In July, the DOJ asked the Supreme Court to allow the Education Department to enforce the new rule, minus the challenged provisions, while the legal process plays out in lower courts.

Just a few months ago, this Court granted a partial stay because a district court had entered a sweeping preliminary injunction that flouted the fundamental principle that equitable relief “must not be ‘more burdensome to the defendant than necessary to redress’ the plaintiff’s injuries.” Labrador v. Poe, 144 S. Ct. 921, 927 (2024) (Gorsuch, J., concurring). Several Justices warned that “[l]ower courts would be wise to take heed” of that reminder about the limits on

their equitable powers. The lower courts here ignored that warning, and this Court’s intervention is again needed.

In the referenced case, Labrador v. Poe, lower courts issued an injunction preventing Idaho from enforcing its ban on gender-affirming care for minors in its entirety, for all citizens. The conservative members of the Supreme Court intervened, limiting the injunction to apply only to the parties who brought the lawsuit and scolding lower courts for issuing overly broad injunctions.

Yet, five justices did the exact opposite in the Title IX case: Justices Roberts, Thomas, Alito, Kavanaugh, and Barrett voted to uphold the lower courts’ injunctions against the entirety of the Biden administration’s new rule. The only difference in the cases appears to be whose rights the injunction limits. In Labrador, the injunction limited the ability of a far-right state government to impose restrictions on LGBTQ+ people. In the Title IX cases, the injunctions limited the federal government from expanding protections for LGBTQ+ people.

Justice Gorsuch joined the three liberals in a dissent written by Justice Sotomayor:

By blocking the Government from enforcing scores of regulations that respondents never challenged and that bear no apparent relationship to respondents’ alleged injuries, the lower courts went beyond their authority to remedy the discrete harms alleged here. The injunctions this Court leaves in place will burden the Government more than necessary. The injunctions will also affect the public. Individuals in the respondent states will be deprived of guidance related to their rights under Title IX, of updates to the processes schools must follow in investigating their complaints of sex discrimination, of protections from retaliation should they file a complaint, and of much more. On the present record, more tailored relief focused on the three challenged provisions would have redressed respondents’ alleged injuries without depriving the public of the Rule’s other provisions. Because the majority of this Court nonetheless leaves the overly broad injunctions in place, I respectfully dissent in part.

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“Any book worth banning is a book worth reading.” — Isaac Asimov

Book bans have been rapidly spreading across the country, touching districts in 42 states since 2021. In the 2022–23 school year alone, PEN America recorded 3,362 instances of book bans in public school classrooms and libraries, removing access to over 1,500 unique book titles. The majority of the targeted books discuss race or racism or include LGBTQ+ characters or themes. Other frequently banned materials contain references to sexual assault or abortion, removing an important lifeline for young women dealing with traumatic situations:

According to PEN America data from the 2021–22 and 2022–23 school years, 19 percent of books banned through June 2023 include depictions of rape and sexual assault. Many of these books were specifically written for young adult audiences; YA as a genre commonly explores challenging topics, including sexual assault and rape, to help educate young readers and in some cases to help them understand their own feelings or experiences. And when it comes to sexual assault, that understanding can be crucial: according to RAINN, 1 in 9 girls and 1 in 20 boys under the age of 18 experience sexual abuse or assault. For those millions of students, books can be a lifeline.

In response to her book Milk and Honey being banned across the country, poet Rupi Kaur said on her Facebook page, “i remember sitting in my school library in high school, turning to books about sexual assault because i didn’t have anyone else to turn to.”

The states that have banned the most books are those that have enacted either explicit book bans, critical race theory bans, or “Don’t Say Gay”-type legislation, some containing the threat of civil and criminal charges. These states also tend to have the most aggressive extremist groups, like Moms for Liberty, that instruct parents on how to challenge the inclusion of books in libraries and schools. In combination, these two forces result in (a) policies that require the removal of specific titles, (b) a snowball effect once one district removes a specific title, and (c) the preemptive removal of any book that might potentially be challenged.

• Groups like Moms for Liberty have been highly effective at weaponizing the concerns of a handful of parents to ban books for all students in districts across the country. For example, an analysis by the Washington Post found that “just 11 people were responsible for 60 percent” of book challenges in 2021-2022. “In some cases,” the Post continues, “these serial filers relied on a network of volunteers gathered together under the aegis of conservative parents groups such as Moms for Liberty.”

• American Library Association’s Top 10 Most Challenged Books of 2023

###Utah

A new law took effect in Utah last month, expanding a 2022 law that prohibits “sensitive materials,” defined as “pornographic or indecent,” in public schools. The expansion, HB29, signed into law by Gov. Spencer Cox in March, allows a book to be removed from schools across the state if at least three school districts (or two school districts and five charter schools) determine that it contains sensitive material.

Opponents argued that the new law gives too much power to a handful of school boards to ban books statewide while standards may vary from community to community.

“This is the antithesis of local control,” Rep. Carol Spackman Moss, D-Holladay, who has worked as a teacher, said on the House floor on Jan. 30 while arguing against it. “With this bill, just a couple of individuals can take away the rights of parents statewide to make choices that best fit their children’s needs.”

HB29 also applies retroactively to all books banned before the law took effect on July 1, leading to an automatic statewide ban of 13 books before the school year even begins. The titles include "Forever" by Judy Blume, a coming-of-age book that touches on sexuality; "Oryx and Crake" by Margaret Atwood, a post-apocalyptic novel; and "Milk and Honey" by Rupi Kaur, a poetry book about "violence, abuse, love, loss, and femininity."

Whereas school boards were previously permitted to take into consideration whether a book containing sensitive material had artistic merit, HB29 now requires education agencies to prioritize “protecting children from the harmful effects of illicit pornography over other considerations.” The new provision will likely lead to more local bans, which will, in turn, lead to more statewide bans.

###Idaho

A new law went into effect in Idaho last month requiring libraries to create a separate adults-only area for materials “harmful to minors,” which can include topics like “masturbation, homosexuality, [and] sexual intercourse.”

HB710, signed into law by Gov. Brad Little (R) in April, also allows parents to sue libraries if they find material “harmful to a minor” in an unrestricted section and the library does not relocate that material to an adults-only area within 60 days. If the library fails to comply, the parent is entitled to $250 in statutory damages. Nothing in the law allows the library to challenge the charge that a book is harmful to minors.

As a result, some Idaho libraries have become entirely “adult only,” not admitting people under 18 years old without a parent present or a parent-signed permission slip waiving their right to sue under HB710.

A coalition of independent schools, libraries, parents, students, and patrons sued the state, seeking to block the enforcement of HB710 on 1st and 14th Amendment grounds:

On its face, the Act encompasses works of significant cultural, historical, literary

and scientific import that are central to an informed education. Indeed, the broad language of the Act subjects the Private Entity Plaintiffs to suit for providing minors with health education textbooks, images of canonical works of art like Michelangelo’s David, significant works of literature like Toni Morrison’s The Bluest Eye, and even the Bible, if a Defendant or citizen complainant subjectively believes members of their community would find them offensive. The Constitution does not permit the State to engage in content-based censorship to mollify a community’s most sensitive and censorious members.

###South Carolina

The South Carolina State Board of Education imposed new regulations in June that require every public school to remove all books that include “descriptions or visual depictions of ‘sexual conduct,’” no matter the intended age group. Under this standard, 18-year-olds are banned from reading common high school books like “The Color Purple” and “1984.”

• The Board of Education is under the purview of the Department of Education, led by Superintendent Ellen Weaver—an ally of Moms for Liberty who spoke at their national conference last year.

The regulations were supposed to be voted on by the legislature before the regular session ended in May. However, lawmakers claim that they didn’t realize that not holding a vote would result in automatic approval of the regulations.

“We were all operating under the belief it would time out,” [Senate Education Chairman Greg Hembree] told the SC Daily Gazette…

As initially filed, the regulation itself indicated legislators had until March 2025 to reject or approve it. It was assumed — wrongly, it turned out — that the normal 120-day window wouldn’t apply once the regular session ended. And then someone — it’s not clear to the Gazette who — realized the language to stop that clock was missing from the legislation governing the session’s adjournment…

...if the regulation does cause problems, [Hembree] said, legislators will fix it when they return in January with a law that would override the agency’s regulation.

Parents of children in the public school system can challenge up to five books a month. If a local school board decides to keep the book in the library against the parent’s wishes, the parent can appeal to the State Board of Education. The Board’s decision to remove a book will apply to every public school in the state.

###Tennessee

A new law took effect in Tennessee last month introducing a blanket ban on any books containing scenes with nudity, “sexual excitement,” “sexual conduct,” or “excess violence” in public schools. Like in South Carolina, the rule applies no matter the intended age group.

HB843, signed into law earlier this year by Gov. Bill Lee (R), also prohibits material that is “patently offensive” or “appeals to the prurient interest”—vague terms that can be used to ban books dealing with LGBTQ+ issues and racism. Moms for Liberty members spoke in favor of the law during hearings in June:

"I don't trust district leadership or the library science department," said Sheri Super, Chair of Knox County Moms for Liberty. "They are clearly aware that these materials are available in our school libraries and have done nothing about it."

Super went on to read an excerpt from "Queer" by Kathy Belge and Marke Bieschke that depicted anal sex. This book is available in a Knox County school, she said.

Furthermore, school boards are required to evaluate all books challenged by parents within 60 days to determine “whether the material is appropriate for the age and maturity level of the students who may access the materials.” Failure to make a determination within 60 days will result in the Tennessee Textbook and Instructional Materials Quality Commission, staffed entirely by Republican appointees, making a decision for the district.

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The National Labor Relations Board was created in 1934 by President Franklin D. Roosevelt to protect workers’ right to unionize and remedy unfair labor practices. Now, 90 years after the agency’s inception, corporations are taking advantage of the far-right capture of the judicial system to push for its destruction.

#A quick history of labor rights

Labor rights in the 18th and early 19th centuries were nearly non-existent until industrial-era workers began organizing and demanding higher pay, safer working conditions, and shorter workdays. One of the first widespread labor groups, the Knights of Labor, founded in 1869, fought for an eight-hour workday, legislation to end child and convict labor, and a graduated income tax. A series of national strikes ensued in the following decades, often resulting in violent resistance and eventual suppression by state forces. The courts during this era were not hospitable to labor rights, issuing injunctions against strikes and sometimes even jailing union leaders.

It wasn’t until the depths of the Great Depression that organized labor began gaining protections from the government, insulating unions from the meddling of employers and courts alike. First, Republican President Herbert Hoover’s Norris–La Guardia Act limited the issuance of court injunctions during labor disputes. Then, President Roosevelt signed the National Industrial Recovery Act of 1933 into law, explicitly recognizing that employees “have the right to organize and bargain collectively through [a] representative of their own choosing, and shall be free from the interference, restraint, or coercion of employers." Roosevelt created the NLRB a year later and vested it with the authority to issue subpoenas, hold elections, and mediate labor disputes.

Union membership skyrocketed throughout WWII, growing to more than 14 million in 1945. However, numerous strikes in the immediate post-war period, combined with conversion to peacetime production, damaged public perception of unions and paved the way for Senator Robert A. Taft (R-OH) and Representative Fred Hartley (R-NJ) to pass legislation limiting union protections. Called the Labor Management Relations Act of 1947, the new law required all union officials to sign an affidavit that they were not Communists, prohibited certain kinds of strikes, repealed a ban on captive audience meetings, and authorized individual states to enact right-to-work laws banning union security agreements. Today, more than half of the states have enacted right-to-work laws.

Union membership fell over the succeeding decades, spurred on by weaknesses in labor law exploited by management and permitted by the courts:

Employers were able to squeeze unions so effectively because, over the years, labor law had become heavily tilted against workers and toward employers. Though these employer-friendly laws were on the books in the 1940s, 1950s, and 1960s, it was not until the 1970s that employers began to take full advantage of their power. Several key developments set the stage for this 1970s unraveling of workers’ bargaining power under the law. First, a Republican Congress largely neutered workers’ leverage in passing the 1947 Taft-Hartley Act over President Truman’s veto. Second, Taft-Hartley forced the NLRB to prioritize, over all other cases, including cases involving illegal firings of union supporters, litigation against unions for engaging in so-called secondary activity. Third, the law’s ineffective remedies became obvious, and the NLRB’s efforts to hold employers accountable for violating the law were stymied in the courts. Fourth, employers increasingly found an ally in the U.S. Supreme Court, which issued a series of decisions restricting workers’ rights, expanding employer power, and limiting employers’ bargaining obligations. Finally, employers started making greater use of replacement workers during strikes—a trend that grew in the 1970s and 1980s and significantly undermined workers’ right to strike. The cumulative impact of these factors meant that by the 1970s the law did not effectively protect workers’ bargaining power and gave employers a wealth of tools to resist unionization.

Today, just 10% of wage and salary workers are members of a union. Congress has failed to shore up labor protections as the U.S. Supreme Court issues ruling after ruling after ruling that boosts corporate power and chips away at union rights.

#SpaceX

Eight former employees of SpaceX, an aerospace company owned by Elon Musk, filed complaints with the NLRB alleging that SpaceX unfairly fired them for circulating a letter objecting to Musk’s “inappropriate, disparaging, sexually charged comments on Twitter.”

In the past six months SpaceX has violated the NLRA [National Labor Relations Act] by terminating employees for engaging in the core concerted protected activity of speaking up against SpaceX’s failure and refusal to address the culture of sexism, harassment and discrimination that pervades the workplace…

A day after the NLRB informed SpaceX that an administrative law judge (ALJ) would hear the case, the company filed a lawsuit in the Southern District of Texas—despite being headquartered and committing the alleged violations in California. The suit argues that the structure of the agency’s administrative proceedings is unconstitutional because:

• the agency’s ALJs are “removable only for cause, by officials who themselves are removable only for cause,” unconstitutionally insulating them from the President’s oversight

• “the NLRB has recently claimed for itself the authority to award a broader range

of relief, including traditional forms of legal relief that go far beyond the equitable restitutionary backpay remedy permitted by the statute,” in violation of the right to a jury trial

• NLRB members exercise prosecutorial, legislative, and adjudicatory authority within the same proceedings, in violation of the separation of powers and right to due process

The case was assigned to Judge Jose Rolando Olvera Jr., an Obama appointee. Olvera granted the NLRB’s motion to transfer the case to California in February, finding that it “concerns a California administrative proceeding regarding the actions of a California company and its California employees in California.” SpaceX appealed to the 5th Circuit, which spent months to ultimately issue a one-sentence order blocking Olvera’s transfer, keeping the case under its own purview. This is important because a key portion of SpaceX’s argument that the NLRB is unconstitutional relies on a previous 5th Circuit case, SEC v. Jarkesy, which found a federal agency’s similar structure unconstitutional.

• Relevant background: The 5th Circuit ruled in Jarkesy that the Securities and Exchange Commission’s (SEC) use of ALJs to adjudicate fraud claims violated the Seventh Amendment’s right to a jury trial and the two layers of for-cause removal protections of ALJs violated Article II's Take Care Clause. Earlier this year, the U.S. Supreme Court upheld the 5th Circuit’s ruling regarding the Seventh Amendment, but did not address the for-cause removal protections.

Meanwhile, the 5th Circuit granted SpaceX’s request for a preliminary injunction to block the NLRB from proceeding with its administrative case while the legal challenge plays out in federal court.

That’s not the end of SpaceX’s crusade to destroy the NLRB, however. A ninth former employee filed an additional complaint, accusing the company of forcing employees to sign severance agreements containing unlawful confidentiality and non-disparagement clauses. SpaceX sued, this time in the Western District of Texas, where all non-patent cases are assigned to Judge Alan Albright (a Trump appointee), arguing again that NLRB judges and members are unconstitutionally shielded from firing by the president.

Albright quickly issued an injunction against the NLRB, preventing it from pursuing its case against SpaceX.

The questions faced by this Court are whether SpaceX Exploration Technologies Corp. (“SpaceX”) is likely to succeed on the merits in demonstrating that the NLRB Members are unconstitutionally protected from removal and whether NLRB ALJs are likewise unconstitutionally protected from removal. Under binding precedent, this Court is satisfied that SpaceX has demonstrated a substantial likelihood of success on its claims that Congress has impermissibly protected both the NLRB Members and the NLRB ALJs from the President’s Article II power of removal.

For this and other reasons enumerated below, the Court finds it necessary to issue a preliminary injunction to prevent the irreparable harm of being subject to the unconstitutional administrative proceeding.

The NLRB filed a notice of appeal earlier this month, though it is unlikely to succeed at the hyper-conservative 5th Circuit. Both cases appear destined to go before the U.S. Supreme Court sooner or later.

#Trader Joe’s

Trader Joe’s, a grocery store chain based in California, raised a legal argument challenging the constitutionality of the NLRB shortly after SpaceX, using the same law firm as Elon Musk’s company.

Employees at numerous Trader Joe’s locations across the country have begun unionizing in recent years, starting with a store in Hadley, Massachusetts, in July 2022. Workers in Minneapolis, Brooklyn, Louisville, and Oakland soon followed suit. At nearly every store that unionized, employees alleged—and the NLRB substantiated—that management engaged in union-busting activities.

For example, an NLRB complaint at the Oakland location accused management of threatening workers by equating their desire for a union with disloyalty, disparaging those who delivered a union petition as a “gang,” “interrogating” workers about the union and their social media posts, and telling workers that support for the union would result in a reduction of hours and the possible closure of the store.

The company defended itself against the allegations at a hearing before NLRB administrative judge Charles Muhl earlier this year. Christopher Murphy of the management-side law firm Morgan Lewis told Muhl that he intends to argue, before the Board and the federal courts, that the “structure and organization of the National Labor Relations Board and the agency’s administrative law judges is unconstitutional.”

#Amazon

Amazon similarly informed the NLRB that it would argue that the agency’s structure is unconstitutional while defending itself against hundreds of complaints of unfair labor practices nationwide.

The first Amazon warehouse unionized in Staten Island in 2022. Amazon challenged the employees’ union vote, telling the NLRB that the organizers "intimidated employees," "recorded voters in the polling place," and "distributed marijuana to employees in exchange for their support." Last year, an NLRB regional director rejected the company’s allegations and certified the Amazon Labor Union.

Since then, unionization efforts have stalled amid forceful pushback and alleged union-busting from the company.

Photographs shared with the Guardian reveal how Amazon pushed back against an organizing drive inside ONT8 with anti-union messaging. “Unions run their business with your money,” and deduct dues “regularly” from paychecks, employees were warned on TV screens installed in the warehouse…Amazon workers in Moreno Valley filed for a union vote in October 2022, only to pull the election petition after significant opposition from the company. Those who led the campaign allege managers violated labor laws to halt it in its tracks.

Managers at ONT8 “directed employees not to discuss the union on the work floor during work time”, but permitted discussion of other, non-work subjects, according to the complaint, which also alleges the company held “‘captive audience’ meetings with workers…“They would say, ‘Be careful, because this is a government form you are signing,’ and basically they would go on about how it’s not good to unionize. They would tell us we would lose all our benefits and start all over again.”

There are over 200 open or settled unfair labor practice complaints against Amazon in 26 states. In a filing defending itself against the charges in Staten Island, the company argued that “the structure of the N.L.R.B. violates the separation of powers” and the administrative proceedings deprive companies of their right to a jury trial. Amazon repeated its defense in another legal filing last month in response to an NLRB complaint in Georgia.

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#Georgia’s Election Board

A Trump-aligned majority on Georgia’s State Election Board voted last week to allow county election officials to delay or potentially refuse to certify the 2024 election if it does not go to their preferred candidate.

The Georgia State Election Board is made up of five members, with the state Senate, House, Republican party, Democratic party, and Governor each appointing one individual. The current makeup of the Board is as follows:

• Janice Johnston, a retired obstetrician with a history of spreading election conspiracies, appointed by the state Republican party in 2022

• Janelle King, a conservative media personality, appointed to the board by the House last month

• Rick Jeffares, former Republican state senator, appointed by the Senate earlier this year

• Sara Tindall Ghazal, an attorney and voting rights advocate, appointed by the state Democratic party in 2021

• John Fervier, a Waffle House executive, appointed as the non-partisan chair by Gov. Brian Kemp (R) earlier this year. Secretary of State Brad Raffensperger (R) was previously the chair, but the legislature removed him from the Board in retaliation for defending Biden’s 2020 victory.

The Board is charged with promulgating fair election rules, investigating complaints, and recommending new laws to the legislature. Normally, election board meetings are sedate administrative affairs conducted outside the fray of politics. Since King’s and Jeffares’ appointments, however, the new MAGA majority has turned its assemblies into a sideshow—attracting Donald Trump’s attention.

When the Georgia State Board of Elections convened this week to consider new rules for the November vote, some in the crowd stood and cheered.

“She’s the hero,” one attendee whispered in the packed, wood-paneled room in the state Capitol in downtown Atlanta. “Hero!” a second person said.

They were talking about Janice Johnston, a retired obstetrician who has repeatedly claimed without evidence that falsified data in the state’s largest county tainted President Joe Biden’s 2020 victory in the state. Along with two fellow board members [King and Jeffares] who form a conservative majority on the five-member board, she was celebrated by name at Donald Trump’s Atlanta rally over the weekend, with the former president calling them “pit bulls fighting for honesty, transparency and victory.”

The conservative bloc began its push to overhaul the state’s election laws last month during a last-minute meeting scheduled in violation of the Georgia Open Meetings Act. At that meeting, the three GOP appointees advanced a pair of rules proposed by the Georgia Republican Party that would (1) increase the number of partisan poll watchers permitted at tabulation centers and (2) require counties to spend time and manpower to post election results that the Secretary of State’s office already reports.

Government watchdog American Oversight sued the Board, asking the court to declare all actions taken at the unlawful meeting invalid.

This case arises from an unlawful convening of the Georgia State Election Board, called by the Individual Defendants—Johnston, Jeffares, and King—to push through controversial election administration proposals without full transparency as required by the Open Meetings Act. In scheduling and holding this purported meeting on July 12, 2024, the Individual Defendants knowingly and willfully violated multiple procedural safeguards of the statute— enacted to ensure that government actions are conducted in public view—in an effort to avoid participation by the full Board and the public in considering and acting on these proposals.

To that end, the Individual Defendants scheduled a meeting for 4:00 pm on a Friday afternoon, knowing that Chair Fervier and Member Tindall Ghazal were unavailable (and indeed that Defendant Johnston could not attend in person), with virtually no notice to the public. After hearing not only that their colleagues were unavailable, but also knowing that the Attorney General’s office had instructed them that their plans were likely unlawful under the Open Meetings Act, the Individual Defendants nonetheless charged forward.

Johnston, Jeffares, and King backed down, rescinding their approval before eventually passing the rules at a properly noticed and attended meeting last week.

During the same meeting, the trio also voted in favor of a controversial new rule allowing county boards of election to conduct a “reasonable inquiry” before certifying the election results. The resolution does not define what a “reasonable inquiry” entails or impose a time limit on such investigations, leading experts to warn that it will be used to delay or outright deny election results that local officials dislike.

The obligation of county boards to certify elections is mandatory and ministerial. Nothing in Georgia law permits individual members to interpose their own investigations or judgment into a largely ceremonial function involving basic math.

For Trump, these legal niceties are beside the point. He wants to be able to pick and choose which election results are accepted based solely on the outcome. This rule is a step in that direction.

The scenario is not hypothetical—earlier this year, Fulton County (Atlanta) Election Board member Julie Adams, appointed just weeks earlier by the Republican party, refused to certify the May primary results. Adams, a regional coordinator of the Trump-aligned Election Integrity Network, was outvoted by other members of the Board, and the results were ultimately certified. She then filed a lawsuit against the county, seeking a court order allowing boards of election members the discretion not to certify an election. America First Policy Institute, a pro-Trump group, is representing her in the case.

• Republican-appointed election board members in Cobb, DeKalb, and Spalding counties also refused to certify last year’s elections but were similarly outvoted.

Underlining the Board’s true intentions, a day after finalizing the “reasonable inquiry” rule, the panel voted 3-2 to reinvestigate Fulton County’s handling of the 2020 election. The right-wing members of the Board allege inconsistencies and mishandling of election equipment that warrant more investigation than was conducted during the state’s previous three-year-long probe.

Johnston said that Fulton officials have made it difficult for her to inspect election materials that might reveal information about the missing election documents and other issues related to the case.

“It seems to me that somebody is moving heaven and earth to not allow anyone to review the paper ballots,” she said. “I don’t know why that is. I’m just interested in the data and interested in the numbers. I’m not interested in who got more votes.”

The case is now referred to the Republican Attorney General Chris Carr, whose office is to report on its findings within 30 days.

#Felony disenfranchisement

Felony disenfranchisement laws, stripping voting rights from people with past criminal convictions, used to be the norm in America following the civil war and the expansion of Black suffrage. In 1840, only four states had codified felony disenfranchisement schemes. By 1870, 24 out of 37 states deprived citizens of the right to vote based on a felony conviction (PDF). Though states across the nation (e.g. New York and Oregon) contributed, the majority of the increase was driven by southern states seeking to reenact the institution of slavery in all but name:

The exception in the 13th Amendment allowing slavery as punishment for a crime was paired with “Black Codes,” which basically criminalized Black life. Blacks convicted under Black Code laws were leased out to do work, providing cheap labor to boost the South’s faltering economy. In 1850, 2% of prisoners in Alabama were non-white. By 1870, it was 74%. At least 90% of the “leased” prison laborers were Black…The theory was simple — convict them of crimes, strip away the right to vote, imprison them, and lease them out as convict labor and Blacks would be returned to a condition as close to slavery as possible.

Despite reform efforts in the latter half of the 20th and the beginning of the 21st centuries, more than 5 million people, or 1 in 44 citizens, with a felony conviction remained disenfranchised during the 2020 election. Today, 10 states still impose significant—and, in some cases, insurmountable—barriers to regaining the right to vote: Alabama, Arizona, Delaware, Florida, Iowa, Kentucky, Mississippi, Tennessee, Virginia, and Wyoming.

###Mississippi

The 5th Circuit recently upheld Mississippi’s harsh felony disenfranchisement law, overturning a previous ruling by a three-judge panel of its own members.

Section 241 of the Mississippi Constitution contains a lifetime voting ban for anyone convicted of “murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement, or bigamy” (in modern criminal law, the list covers 23 specific crimes). The only ways an individual convicted of these crimes can regain the right to vote is by (a) receiving a gubernatorial pardon or (b) contacting their legislator, persuading them to submit a bill on their behalf, winning at least two-thirds of the vote in both legislative chambers, and hoping the governor does not issue a veto. As a result of the state’s labyrinthian process, over 10 percent of the state’s voting-age population is excluded from voting, including one in every six Black adults.

The Southern Poverty Law Center sued in 2018 on behalf of disenfranchised citizens, arguing that the provision violates the 8th Amendment’s ban on cruel and unusual punishment. The District Court granted summary judgment to the state, and the plaintiffs appealed.

Last year, a three-judge panel of the conservative 5th Circuit ruled 2-1 to reverse the district court, agreeing with the plaintiffs that the 8th Amendment prohibits the state’s lifetime ban on voting. Judge James Dennis (a Clinton appointee), joined by Judge Carolyn King (a Carter appointee), wrote that “permanent disenfranchisement serves no legitimate penological purpose” and “ensures that [offenders] will never be fully rehabilitated.”

Mississippi denies this precious right [to vote] to a large class of its citizens, automatically, mechanically, and with no thought given to whether it is proportionate as punishment for an amorphous and partial list of crimes. In so excluding former offenders from a basic aspect of democratic life, often long after their sentences have been served, Mississippi inflicts a disproportionate punishment that has been rejected by a majority of the states and, in the independent judgment of this court informed by our precedents, is at odds with society’s evolving standards of decency. Section 241 therefore exacts a cruel and unusual punishment on Plaintiffs.

Mississippi appealed to the full 5th Circuit, which overturned the panel’s decision last month. All 12 Republican appointees and one Democratic appointee, Judge Irma Ramirez (a Biden appointee), ruled in favor of the state, citing an 1898 Supreme Court opinion that “felon disenfranchisement laws are a type of measure designed to protect the public, and not punish for past offenses.” Because it is not a punishment, the law cannot be a violation of the 8th Amendment.

All of the Democratic appointees, minus Ramirez, dissented:

Even a cursory review of Section 241’s legislative history reveals that the delegates of the Mississippi Constitutional Convention of 1890 intended Section 241 to be nothing else but punitive…Under the plain language of the Readmission Act, Mississippi may only alter its Constitution to authorize disenfranchisement if it does so as a punishment for a common law felony offense…Section 241 of Mississippi’s 1890 Constitution—a post-Readmission Act felon disenfranchisement provision—must be construed as a punitive measure for felony convictions in order for the provision to comply with binding federal law…

The majority strains to disregard this reality, theorizing that “punishment” as used in the Readmission Act cannot mean “punishment” as it is used in the Eighth Amendment but instead likely means “consequence”—in other words “punishment” does not mean “punishment.”

###Virginia

A federal judge rejected a lawsuit challenging Virginia Gov. Glenn Youngkin’s (R) process for restoring voting rights to people convicted of a felony, leaving the Governor’s discretionary and arbitrary scheme in place.

Virginia is the only state that automatically disenfranchises every single person who is convicted of a felony and empowers only the governor to restore rights on a case-by-case basis. Previous governors, both Democratic and Republican, have sought to expand the restoration process. For example, in 2013, then-Gov. Bob McDonnell (R) automatically restored the voting rights of people convicted of nonviolent felonies as soon as they served their sentence, eliminating a two-year waiting period.

Gov. Youngkin bucked the trend, reversing his predecessors’ expansion of the restoration system by requiring a case-by-case review of each offender’s petition on an undefined timeline. His office has not revealed how it determines which person’s rights are restored and which are denied.

A non-profit organization and a person who lost their civil rights due to a conviction sued the Governor last year, arguing that Youngkin’s system is an “unconstitutional arbitrary licensing scheme regulating the exercise of the right to vote.”

U.S. Supreme Court precedent prohibits the arbitrary licensing of First

Amendment-protected expression or expressive conduct. This is because the risk of viewpoint discrimination is highest when a government official’s discretion to authorize or prohibit First Amendment-protected activity is entirely unconstrained by law, rules, or criteria. Officials with unfettered authority to selectively enfranchise U.S. citizens with felony convictions may grant or deny voting rights restoration applications on pretextual grounds while secretly basing their decision on information or informed speculation as to the applicant’s political affiliations or views.

Earlier this year, District Judge John Gibney Jr. (an Obama appointee) rejected the lawsuit, finding that it was filed under an incorrect section of law. Permitting speech, Gibney ruled, involves exercising an existing right, while felon restoration involves re-establishing a lost right.

No one would suggest that Governor Youngkin's "fully implemented" system is

transparent, or that it gives the appearance of fairness. Much like a monarch, the Governor receives petitions for relief, may or may not rule upon them, and, when he does rule, need not explain his reasons. But transparency and the appearance of fairness are not the issues in this case.

Rather, this case turns on whether Governor Youngkin's rights restoration system is an administrative licensing scheme subject to the First Amendment's unfettered discretion doctrine…Because Governor Youngkin's rights restoration

system is not a licensing scheme subject to the unfettered discretion doctrine, the Court will grant the defendants' motion for summary judgment and deny Hawkins's motion for summary judgment.

A separate lawsuit challenging the constitutionality of the felon disenfranchisement provision in Virginia’s constitution is ongoing.

###Nebraska

Civil rights advocates are suing the state of Nebraska after Republican officials directed elections offices not to comply with a recently passed law restoring the right to vote to people with felony convictions.

Nebraska law before this month required everyone with a past felony conviction to wait two years after finishing their sentence to have their voting rights restored. A bipartisan majority of the Republican-controlled legislature passed LB 20 earlier this year, eliminating the waiting period and automatically restoring voting rights when a person has served their sentence. Gov. Jim Pillen (R) declined to sign or veto the bill, allowing it to become law and take effect in July.

However, Attorney General Mike Hilgers (R) issued a legal opinion just days before the law was set to take effect, asserting that only the Nebraska Board of Pardons has the power to restore Nebraskans’ voting rights after a felony conviction. Secretary of State Robert Evnen (R) then directed county election officials to refuse to register Nebraskans with past felony convictions.

The ACLU and other organizations sued in the state supreme court, pointing out that the law creating the two year waiting period was itself created by the legislature.

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Trump’s Vice Presidential pick, Sen. J.D. Vance, has provoked outrage with past and present comments denigrating women, prompting opponents to characterize him as “weird” and “creepy.” While he may indeed be weird and creepy, his beliefs are hardly fringe in today’s Republican party. What was once extreme is now mainstream as the far-right MAGA wing gained control over one-half of the U.S. legislature, a majority of the U.S. Supreme Court, and trifectas in nearly half of state governments. This week, Keep_Track takes a look at how Vance’s beliefs are an expression of the misogyny coursing through the entire GOP.

Vance in 2022 said, “I certainly would like abortion to be illegal nationally.” He also argued against the need for exceptions for rape and incest, calling those situations “inconvenient” and saying fetuses have a “right to life” above all else.

Republican National Committee passed a party-wide resolution last year embracing fetal personhood (which would make any abortions equivalent to murder). After realizing the massive unpopularity of abortion bans, the 2024 GOP platform buried the party’s intention to ban abortion nationally by using veiled legal language to express support for fetal personhood without directly using the phrase.

Republican Study Committee (includes ~80% of all House GOP): Calls for the passage of the Life at Conception Act, which would federally ban all abortions through fetal personhood.

House Speaker Mike Johnson and 131 other Republicans co-sponsored a bill to federally ban abortion at 6 weeks of pregnancy, before many people even realize they’re pregnant and before the embryo has developed into a fetus.

Senate Minority Leader Mitch McConnell said in 2022 that a federal abortion ban “is possible” if the GOP regained control of the Senate. Since then, perhaps recognizing the potential anger of voters post-Dobbs, McConnell has refused to take a public position on the matter.

14 Republican-led states have total bans on abortion: Alabama (no rape or incest exceptions), Arkansas (no rape or incest exceptions, no exception for fatal fetal anomalies), Idaho (no exception for fatal fetal anomalies), Indiana, Kentucky (no rape or incest exceptions, no exception for fatal fetal anomalies), Louisiana (no rape or incest exceptions), Mississippi (no exception for fatal fetal anomalies), Missouri (no rape or incest exceptions, no exception for fatal fetal anomalies), South Dakota (no rape or incest exceptions, no exception for fatal fetal anomalies), Tennessee (no rape or incest exceptions, no exception for fatal fetal anomalies), Texas (no rape or incest exceptions, no exception for fatal fetal anomalies), and West Virginia (no rape or incest exceptions after 8 weeks of pregnancy).

The majority of Arizona Republican lawmakers voted to uphold the state’s 160-year-old territorial ban on abortion, after the all-Republican state Supreme Court voted to reinstate the Civil War-era law.

Former Republican presidential candidate Nikki Haley promised to sign a federal abortion ban if she won the nomination and the 2024 election.

Vance signed onto a letter demanding that the Department of Justice enforce the more than 150-year-old Comstock Act to ban the mailing of abortion medication.

40 other Republican lawmakers signed the same letter, including Sens. James Lankford, Cindy Hyde-Smith, Marsha Blackburn, Ted Cruz, Marco Rubio, and Josh Hawley.

Project 2025: Calls for the DOJ to enforce the Comstock Act and the FDA to stop the approval of “mail-order abortions.”

Supreme Court Justice Samuel Alito on the Comstock Act: “This is a prominent provision. It’s not some obscure subsection of a complicated, obscure law,” Alito said during oral arguments earlier this year.

District Judge Matthew Kacsmaryk overruled the FDA’s approval of the abortion medication mifepristone, relying in part on the Comstock Act.

20 Republican Attorneys General sent a letter to Walgreens and CVS last year invoking the Comstock Act to warn the chains against plans to make mifepristone available through the mail.

Vance called for a “federal response” to block women from traveling for abortions and signed a letter urging the Department of Health and Human Services not to shield reproductive care records from law enforcement.

29 other Republican lawmakers signed the same letter, declaring that “Abortion is not health care—it is a brutal act that destroys the life of an unborn child and hurts women.” Shielding reproductive records from police and prosecutors in states with abortion bans “thwarts the enforcement of compassionate laws protecting unborn children,” the letter continues.

Senate Republicans blocked a bill last month that would have prohibited states and localities from criminalizing out-of-state abortion travel.

Idaho Republicans created a new crime called “abortion trafficking” that makes it illegal for adults to “harbor” or “transport” minors to get abortions without parental consent.

Tennessee Republicans followed Idaho’s example, enacting a law making “abortion trafficking” illegal.

Oklahoma House Republicans passed a bill to criminalize “abortion trafficking,” but it died in the Senate.

Over a dozen localities in Texas have passed ordinances that ban traveling through their jurisdiction to obtain an out-of-state abortion. These include the cities of Athens, Abilene, Plainview, San Angelo, Odessa, Muenster, and Little River-Academy, and Mitchell, Goliad, Lubbock, Dawson, Cochran, and Jack counties.

Alabama’s Republican Attorney General Steve Marshall said he would prosecute abortion funds for helping people travel to other states for an abortion. Marshall argued in court that he can prosecute people for helping others get abortions out-of-state because it would amount to a “criminal conspiracy” to commit conduct elsewhere that is illegal in Alabama.

Vance advocated for the end of no-fault divorce in 2021: “This is one of the great tricks that I think the sexual revolution pulled on the American populace, which is the idea that like, ‘well, OK, these marriages were fundamentally, you know, they were maybe even violent, but certainly they were unhappy. And so getting rid of them and making it easier for people to shift spouses like they change their underwear, that’s going to make people happier in the long term.’”

• No-fault divorce is the dissolution of a marriage that does not require a showing of wrongdoing by either party and can be initiated unilaterally. Common reasons for no-fault divorce are “incompatibility” or “irreconcilable differences.” Fault divorce, which was the standard across America before the 1970s, requires one party to legally prove in court that the other committed a wrongdoing like adultery before a divorce would be granted.

• National Organization for Women: Prior to no-fault divorce laws, “women had to prove that their husbands had committed some wrongdoing – such as adultery, domestic violence, cruelty, or abandonment – or persuade them to agree to a divorce…A 2004 paper by economists Betsey Stevenson and Justin Wolfers found an 8 to 16% decrease in female suicides after states enacted no-fault divorce laws. They also noted a roughly 30% decrease in intimate partner violence among both women and men and a 10% drop in women murdered by their partners.”

House Speaker Mike Johnson said he believes that no-fault divorce laws are partly to blame for our “completely amoral society” that causes a young person to go “into their schoolhouse and open fire on their classmates.”

• Johnson has advocated for more states to adopt covenant marriages, a religiously influenced legal union that makes divorce very difficult.

2022 Texas Republican Party platform: “We urge the Legislature to rescind unilateral no-fault divorce laws, to support covenant marriage…”

Current Nebraska Republican Party platform: “We believe no-fault divorce should be limited to situations in which the couple has no children of the marriage.”

Louisiana state Republicans considered adopting a resolution encouraging lawmakers to repeal the state’s no-fault divorce law: “Louisiana marriage laws have destroyed the institute of marriage over the past thirty to fifty years,” an initial draft of James’ resolution reads. “The destruction of marriage has resulted in widespread child poverty in Louisiana.”

U.S. Sen. Tom Cotton (R-AR) wrote a 1997 article in The Harvard Crimson blaming feminists for the adoption of no-fault divorce laws: “Men are simple creatures. It doesn’t take much to please us. The problem is women…Talk to a psychologist, a sociobiologist or a mother and you learn that men are naturally restless and rowdy, maybe even a little incorrigible. Throughout time, though, women and social institutions have conspired to break man’s unruliness. In the past few decades, however, they have largely abandoned that noble and necessary project.”

Project 2025: At least 22 Project 2025 advisory board members have called for restricting or eliminating no-fault divorce.

Vance voted against the Right to IVF Act, which would have protected the accessibility and affordability of in vitro fertilization (IVF) services nationwide.

Every other Republican senator present also voted against the Right to IVF Act.

The Idaho GOP’s current party platform opposes not just all abortions, for any reason, but also IVF: “We oppose all actions which intentionally end an innocent human life, including abortion, the destruction of human embryos, euthanasia, and assisted suicide.”

• In order to have a chance at creating a single successful birth, IVF requires the fertilization of as many embryos as possible; embryos are often cryogenically preserved for extended periods but, once a patient decides their family is complete, they can be donated or destroyed. Banning the destruction of embryos, either directly like Idaho Republicans want to do or indirectly through fetal personhood laws, would end IVF due to legal liability and financial costs.

The Alabama Supreme Court ruled earlier this year that frozen embryos are “extra-uterine children” subject to the state’s wrongful death law.

Texas’s current Republican party platform promises “equal protection for the preborn,” and asserts fertilized eggs are entitled to “the right to life … from the moment of fertilization.” The platform also details the party’s aim to ban “human embryo trafficking” — a measure that could prevent patients from transporting their embryos out of state for IVF treatment.

North Carolina’s current Republican party platform states: “We oppose… the destruction of human embryos.”

Sen. James Lankford (R-OK) and Sen. Cindy Hyde-Smith (R-MS) introduced a bill called the RESTORE Act to promote natural family planning as an alternative to IVF. “There are so many embryos created and frozen that are then abandoned [in IVF], that becomes an issue for someone — just a moral, ethical issue,” Lankford said.

If you are in the position to support my work, I have a patreon, venmo, and a paypal set up. Just three dollars a month makes a huge difference! No pressure though, I will keep posting these pieces publicly no matter what - paywalls suck.

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Author’s note: I'm sorry for the long wait since the last post. We’ve been dealing with housing issues (leaky pipe, damaged floor, asbestos, etc.) that have taken up a lot of my time.

#Arkansas

Arkansas Secretary of State John Thurston (R) is facing pushback from organizers of a proposed measure to expand abortion access after he disqualified thousands of signatures.

Arkansans for Limited Government (AFLG) collected over 100,000 signatures for a proposed constitutional amendment that would establish a right to abortion at up to 18 weeks of pregnancy, with exceptions included in cases of rape, incest, fatal fetal anomaly, or to save the life of the mother. The state currently bans all abortions at any stage of pregnancy.

To appear on the November ballot, a petition for a proposed constitutional amendment must contain at least 90,704 total signatures collected from 50 of the state’s 75 counties—a requirement instituted by the GOP last year to make it harder to pass citizen-led amendments (after voters rejected raising the threshold to 45 counties in 2022).

There is no indication that AFLG failed to meet the signature and geographic requirements. Instead, Thurston claimed that the group did not submit a document naming paid canvassers and a signed statement confirming that paid canvassers had been provided with required information about their role. AFLG contends that it submitted the necessary forms on more than one occasion—a claim that appears to be supported by Thurston’s own office, which provided the media with all of the documents submitted by AFLG. Included was a list of paid canvassers “with a stamp from the Secretary of State’s office indicating it was filed July 5” and a sponsor affidavit “submitted to Thurston’s office June 27.”

• Family Council, the conservative group opposing AFLG’s amendment proposal, published the names of paid canvassers online earlier this year in what AFLG called an “intimidation” tactic.

Thurston eventually responded to requests for clarification, backtracking on his original rationale for rejecting the petition. The real reason he rejected the petition, Thurston explained, was (1) the sponsor affidavit was not signed by the sponsor but instead by a paid canvasser, and (2) the sponsor affidavit was not submitted at the same time as the petitions. Because of these “insufficiencies,” Thurston’s office refused to count any of the signatures.

AFLG sued the Secretary earlier this month, asking the state Supreme Court to rule that Thurston’s rejection of the petition was incorrect or to allow the organization to correct the insufficiencies Thurston identified.

AFLG did not submit a Sponsor Affidavit with the July 4 list because the Secretary’s office specifically told AFLG that such an affidavit was not required…

Before the filing, AFLG had asked the Secretary’s office exactly what

it would need to sign and submit to the Secretary on the day of filing. In response, the Secretary’s office sent AFLG one attachment, the Receipt for Initiative or Referendum Petition, but did not include any other documents. At the filing, the Secretary’s attorneys and representatives assured Cowles that she had filed the necessary paperwork with her submission.

Last week, the court ordered the state to perform an initial count of signatures gathered by AFLG volunteers but not paid canvassers—leaving the proposed amendment over 2,000 signatures short of the threshold for approval. The court’s ruling on the merits of the case, determining the ultimate fate of the amendment, is expected in the coming weeks.

#Florida

Meanwhile, in Florida, a panel of Republican appointees voted to attach a financial warning to an abortion ballot measure this November, a move that reproductive rights proponents call “a dirty trick.”

Amendment 4, which would establish a constitutional right to abortion before fetal viability (estimated to be around 24 weeks), garnered almost a million signatures and was approved by the state in January and by the state supreme court in April to appear on this year’s ballot. Currently, it is illegal for Florida physicians to perform abortions after six weeks of pregnancy.

The last step to finalize the measure was a “financial impact statement” to provide an estimated total cost to the state budget if it passes. Expecting the panel would play a key role in determining the amendment’s success or failure, Republicans appointed anti-abortion advocates like Rachel Greszler, a senior research fellow at the far-right Heritage Foundation. The impact statement the panel released last week was immediately criticized for sounding “more like an opposition ad than information on the fiscal impacts of the amendment.”

...the statement that is set to be printed on the ballot next to Amendment 4 predicts the measure will significantly increase the number of abortions and decrease the number of “live births” that occur in the state, and says the measure would also strip other regulatory controls. “The increase in abortions could be even greater if the amendment invalidates laws requiring parental consent before minors undergo abortions and those ensuring only licensed physicians perform abortions,” the statement said.

The newly finalized statement, which was sent to the Florida Secretary of State Cord Byrd and state Attorney General Ashley Moody on Tuesday, also warns voters that Amendment 4 could compel taxpayers to start covering the costs of abortion through Medicaid…

[DeSantis appointee Chris] Spencer believed much of that litigation would come after pro-abortion rights groups sued the state’s Medicaid program to start covering the cost of abortion. He also warned that the ambiguity of the amendment would lead more medical professionals to begin performing illegal abortions, increasing law enforcement costs. He also argued that local school districts could see a drop in revenue with fewer students due to Amendment 4.

Florida Office of Economic and Demographic Research Coordinator Amy Baker, a member of the panel, refused to sign on to the impact statement because it sounded too political. “I would, personally, feel more comfortable if we just did it clean and crisp,” Baker said. “We’re not making a political statement here. We are not trying to frighten people.”

Floridians Protecting Freedom, a political committee sponsoring the proposed constitutional amendment, filed a lawsuit last week challenging the state’s process to write the financial impact statement.

#Arizona

Arizona for Abortion Access, the group behind a proposed constitutional amendment to protect abortion, is suing the state over biased language set to appear in a voter information pamphlet in November.

The amendment, which gained more than double the number of signatures required to qualify, would establish a constitutional right to abortion before viability. The Secretary of State’s office, headed by Democrat Adrian Fontes, is verifying the signatures. Abortion is currently illegal in the state after 15 weeks of pregnancy, with no exceptions for rape and incest.

Earlier this month, the Arizona Legislative Council met to draft language for a voter information pamphlet containing details on the abortion amendment as well as other initiatives. The Council, made up of eight Republican members of the legislature and six Democratic members of the legislature, decided to use the phrase “unborn human being” when describing Arizona’s current law and “fetus” (or “fetal”) when describing what the abortion amendment would do if approved by voters.

The relevant part of the draft reads as follows:

Current state law prohibits a physician from performing an abortion if the probable gestational age of the unborn human being is more than 15 weeks…

Proposition ___ would amend the Arizona Constitution to:

[...]

2. Prohibit this state, any agency of this state or any political subdivision of this state from enacting, adopting or enforcing any law, regulation, policy or practice that would do any of the following:

(a) Deny, restrict or interfere with the fundamental right to abortion before fetal viability…unless justified by a compelling state interest that is achieved by the least restrictive means…

(b) Deny, restrict or interfere with an abortion after fetal viability that, in the good faith judgment of a treating health care professional, is necessary to protect the life or physical or mental health of the pregnant individual….

Lawyers representing Arizona for Abortion Access attended the Council’s meeting, arguing that the term “unborn human being” is biased in favor of “anti-abortion activists” and, therefore, in violation of Arizona law requiring neutral language. House Speaker Ben Toma (R), a member of the Council, responded that “fetus” is just as political as “unborn human being” and that having both phrases in the information pamphlet is a compromise.

When pressed by [Democratic Committee member] Stahl Hamilton, Defendant Toma – in a moment of candor [Arizona for Abortion Access] appreciates – said: “I’m not a doctor” and “I don’t care what the medically accurate term is.” He reiterated his belief that both “fetus” and “unborn human being” are “charged depending on what side you’re on.”

Representative Stahl Hamilton eventually offered a voice amendment to replace the term “unborn human being” in the Staff Draft with the neutral, objective, and medically accurate term “fetus.”

The Legislative Council rejected the Stahl Hamilton Amendment on a partisan

voice vote.

Arizona for Abortion Access sued in state court, asking for an order requiring the Council to write an “impartial analysis” of the abortion amendment for the information pamphlet. The Maricopa County Superior Court ruled in the organization’s favor on Friday, finding that “[t]he term ‘unborn human being’ is packed with emotional and partisan meaning.” Lawmakers are expected to appeal to the state’s supreme court.

#Montana

Montana Republicans’ scheme to stop a proposed constitutional amendment to enshrine abortion rights was reversed by the courts earlier this month in the latest controversy surrounding the initiative.

Supporters of the Montana Right to Abortion Initiative, which would make permanent the state’s current law allowing abortion before viability, collected enough signatures to qualify for the November ballot. However, a week after the deadline to turn in petitions, Republican Secretary of State Christi Jacobsen instructed counties to reject the signatures of inactive voters.

Montana’s constitution says petitions may be signed by qualified electors, which it defines as a citizen of the United States, who is at least 18 years old and who meets the registration and residency requirements.

The secretary of state argues that inactive voters are not “qualified electors” whose signatures may be accepted. Her office says inactive voters must take steps, such as showing up to vote, confirming their address or requesting an absentee ballot to restore themselves to active voter, and thus “qualified elector,” status.

Montanans Securing Reproductive Rights (MSRR) sued, arguing that inactive voters are entitled to have their signatures verified under the Montana Constitution. State Judge Mike Menahan ruled against the state earlier this month, ordering county election offices to include the signatures of inactive voters in the petition’s final tally.

Menahan said Montana’s constitution offers a robust provision for citizens to pass initiatives and constitutional amendments. “When you’re talking about the rights of people to participate in government, that’s a fundamental right that I think, as a judge, my duty is to uphold that right and give life to it and preserve it,” Menahan said in saying he would grant a temporary restraining order.

The state’s attempt to disqualify signatures is just the latest ploy by Republicans to prevent the proposed amendment from appearing on the November ballot. Earlier this year, Attorney General Austin Knudsen (R) declared that the amendment initiative is legally insufficient because it “logrolls multiple distinct political choices into a single initiative.” The Montana Supreme Court reversed his decision. Then, weeks later, Knudsen rewrote the ballot statement to misrepresent the amendment’s purpose and doom its prospects of passing.

The original ballot statement read:

CI-___ affirms the right to make and carry out decisions about one’s own pregnancy, including the right to abortion, in the Montana Constitution. This constitutional amendment prohibits the government from denying or burdening the right to abortion before fetal viability. Additionally, the amendment ensures that the government cannot deny or burden access to an abortion when it is necessary to protect the pregnant patient’s life or health. CI-___ prevents the government from punishing patients, healthcare providers, or anyone who assists someone in seeking reproductive care, including abortion care.

Knudsen’s rewritten version read:

CI-*** amends the Montana Constitution to allow post-viability abortions up to birth and prohibits any State requirement for parental notice for a minor’s girl’s abortion. CI-*** leaves “fetal viability” and “extraordinary medical measures” to the subjective judgment of an abortion provider rather than objective legal or medical standards. CI-*** prohibits the State, or the people by referendum, from enacting health and safety regulations related to pregnancy care, except upon a narrow set of compelling interests. CI-*** eliminates the State’s compelling interest in preserving prenatal life. The State or the people may not enforce post-viability abortion regulations if an abortion provider subjectively deems the procedure necessary. CI-*** prohibits the State and the people from enforcing medical malpractice standards against providers for harms caused in providing pregnancy/abortion care. CI-*** may increase the number of taxpayer-funded abortions.

Montanans Securing Reproductive Rights sued and the Supreme Court again rejected Knudsen’s decision.

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#Wrong house raids

A rash of recent incidents of SWAT teams raiding the wrong house is bringing fresh scrutiny to police policy in cities across the country, highlighting how little evidence most departments require to conduct a raid and how difficult it is for victims to obtain compensation.

###Texas

In a small town south of Dallas, Texas, a SWAT team set out to execute a search warrant on a suspected methamphetamine stash house. They assembled on the front porch of what they believed was their target house when Commander Mike Lewis noticed the house did not match intelligence photos—the police were at 583 8th Street, not at the target house at 573 8th Street.

Looking around, Lewis identified a house nearby as the correct location and ordered the SWAT team to “break and rake” that house. Officers shattered the front windows, threw flashbangs into the house, and breached the door. Karen Jimerson, her partner James, and their children were held at gunpoint:

According to Plaintiffs, at the time of entry, Mother was taking a bath, Daughter was in bed in her room, and Father was putting Sons to bed in another bedroom. Police officers met Mother in the hallway near the bathroom and “made [her] lay down on the floor” “for at least 15 minutes.” She was undressed from the waist down, but the officers did not allow her to put on clothes. The officers went into Daughter's room, grabbed her from her bed, and threw her down on the glass-covered floor, injuring her knee. They zip-tied her hands behind her back and made her stay on the ground for “more than 20 minutes.” They searched her room without her permission and made a mess tossing things around her room. The officers entered the other bedroom with Father and Sons, made them leave the bedroom, and then searched the bedroom. Pieces of glass from the broken windows got into Sons' eyes.

At some point during the raid, officers realized they were again at the wrong house: The house Lewis identified, belonging to Jimerson, was 593 8th Street, two doors down from the target house (573 8th Street). Jimerson sued all the cops involved, alleging violations of her family’s Fourth Amendment right to be free from unreasonable searches and seizures. District Judge Sam Lindsay (Clinton appointee) granted qualified immunity to all officers except Lewis, finding that there is “ample evidence for a reasonable jury to conclude that Commander [Lewis] acted objectively unreasonable prior to the execution of the search warrant.”

First, the undisputed evidence before the court reveals the search warrant noted that “the numbers ‘573' [were] painted on the curb directly in front of the [target] residence and [also] affixed to a wooden post that supports the front porch.” Simply checking the warrant and looking down at the curb would have avoided Commander's mistaken order to enter the wrong house. Second, the search warrant further noted that the target residence “is the thirteenth residence west from Elm Street.” Commander, prior to the execution of the warrant, also had the option to count the houses as he and his team proceeded down 8th Street. The record does not reveal that Commander took any of these precautionary measures.

Third, while there are a few similarities between the target house and Plaintiffs' residence, the undisputed evidence shows a glaring difference between Plaintiffs' residence and the target location. Most notable is the uncontroverted evidence that Plaintiffs' residence had two wheelchair ramps in front of it, complete with handrails, and the target location did not. This handicap structure had ramps projecting from the front door of the house towards the sidewalk in the front and to the side towards the driveway. Commander does not address, or even mention in passing, that Plaintiffs' residence had a protruding handicap ramp when he observed the home before directing his team to execute the search warrant on it.

Lewis appealed to the 5th Circuit, where a three-judge panel ruled 2-1 in his favor and dismissed the lawsuit. “Lewis erred,” Judge Leslie Southwick (G.W. Bush appointee) wrote for the majority, “but he made significant efforts to identify the correct residence,” including reviewing the search warrant and “debriefing with DEA agents twice.” Southwick does not mention Lewis’ failure to notice the massive wheelchair ramp or the missing ‘573’ address painted on the curb.

Jimerson is appealing for an en banc (full bench) rehearing of the case, arguing that “an UberEats driver would be expected to do more before dropping off a bag of Chinese food than Lewis did before launching a no-knock SWAT raid.”

###Indiana

The South Bend Police Department raided the wrong house in 2022 after one of their officers misidentified the location as harboring a fugitive. According to police, they were tracking the wanted man, John Parnell Thomas, through his Facebook account. Somehow—it is not clear how—officers identified the IP address Thomas was allegedly using as belonging to a house owned by Amy Hadley. They obtained a search warrant for the property based on this incorrect information.

The SWAT team raided the Hadley residence after conducting hours of surveillance and seeing no sign of the suspect. Using a bullhorn, officers ordered everyone to exit with their hands up. Only Hadley’s 15-year-old son and kitten were inside the residence:

Confused and scared, Noah complied, walking out the front door with

his hands up. Officers immediately acknowledged, “That’s not him”—“him” referring to the fugitive—“That’s a kid.” Still, officers aimed their guns at 15-year-old Noah as he walked toward them with his hands high in the air…Noah clearly posed no threat to the officers, who told Noah he was not suspected of a crime. Still, officers placed Noah in two sets of handcuffs and into the back of a caged squad car. They took him to a police station without allowing him to call his mom.

For about 40 more minutes, officers directed orders at the house through

a bullhorn. During this time, officers saw nobody entering or exiting the house. Some officers asked each other how sure they were that the fugitive was inside the house…

Amy, alerted by neighbors to the scene at her house, arrived and informed officers that (1) she did not know Thomas and (2) no one was in her house after her son was removed. Still, without seeing or hearing the fugitive inside Hadley’s house, the officers launched “upwards of 30” tear gas grenades through the windows of the home, fired flash bangs, and stormed the residence:

Among other things, officers destroyed Amy’s security cameras, tossed

furniture, tore window curtains down, broke a mirror and storage bins, ripped a bathroom fan fixture from the ceiling and a wood panel from the wall, removed drawers, and generally ransacked the whole house. Officers searched every room, the refrigerator, oven, clothes washer and dryer, cupboards, drawers, vents, and closets. One officer crawled through the attic space. Another punched holes in the basement’s exterior wall. The fugitive—never having been there—was not found.

All told, the raid caused more than $16,000 in damages. Hadley attempted to get the police department and city to pay for the cost of repairs but “the agencies directed [her] to each other,” giving her “the runaround.” In December, Hadley filed a lawsuit seeking compensation under Indiana state law and the Fifth Amendment’s Taking Clause. The case has been assigned to District Judge Damon Leichty (Trump appointee).

###Ohio

Officers in a town called Elyria, east of Cleveland, raided the wrong house earlier this year and allegedly injured a baby with a flash bang. According to the mother, Courtney Price, police arrived at the home with a search warrant looking for a person who hadn’t lived at the address for more than a year. The Elyria police department said an earlier arrest related to stolen guns led to the search warrant for Price’s residence.

The SWAT team assembled on Price’s front porch and, by their account, gave the occupants a “reasonable” ten seconds to open the door before using a battering ram to force their way inside. Price, on her way to the door, was taken outside at gunpoint:

"I froze at the top of the steps. I kept saying, 'I'm scared. My baby's in here, he’s on a ventilator.' Then I came down the steps and they put me in handcuffs," she said Tuesday.

From on the steps, she said she could see a flash at the window and smoke come through. Waylon, who was born premature and has pulmonary hypertension — a severe lung disease — and an atrial septal defect — which is a hole in the heart, was in his swing on the floor by the window. Glass got on him when the windows blew out, Price said.

Paramedics cleared the baby at the scene, but the following day, he stopped breathing and was rushed to the hospital:

"Then at [UH Rainbow Babies & Children’s Hospital] we were told that he needed six more liters of oxygen, his ventilator needed turned up ... he had chemical pneumonitis, which is inflammation of the lungs and irritation of the lungs, and he had a chemical reaction and in and around his eyes," Price said. She shared video with NBC News on Wednesday showing a doctor explain that Waylon's lungs were irritated and the chemical pneumonitis diagnosis.

Police contest that the baby was injured by the raid, telling local media that “flash bangs don’t produce a continuous burn and don't contain chemical agents.”

#Illegal profits from inmate labor

The sheriff of Gibson County, a rural part of Tennessee located between Memphis and Nashville, was indicted last month for illegally profiting from inmate labor.

Sheriff Paul Thomas, who has been in the position for 10 years, allegedly created three for-profit businesses with a group of local investors in 2020. The first, Alliance Housing, housed roughly 80 inmates at a facility called the Orchard House without proper approval. Inmates were charged $40 per day. The second, Alliance Staffing, “rented” out the inmates living at Orchard House, selling their labor to employers for a $4-10 an hour markup. The third, Alliance Transportation, drove Orchard House inmates to job sites and back for a mandatory $18 per day fee.

In total, Thomas’ scheme brought in nearly $1.5 million over two years, split between him and his business partners. Thomas additionally lied to the Department of Corrections to obtain over $500,000 in state funds for the care of inmates purported to be held in Gibson County Jail, but actually housed at Orchard House.

A grand jury in Gibson County indicted Thomas on 18 counts of Official Misconduct; a grand jury in Davidson County, where the Department of Corrections is headquartered, indicted Thomas on charges of theft, computer crimes, and forgery. He was booked into jail and released on bond.

#Phoenix civil rights investigation

The U.S. DOJ released a report on civil rights violations by the Phoenix Police Department (PhxPD) last month, wrapping up a nearly three-year-long investigation stymied by city officials.

According to the federal government, the department has engaged in a “pattern or practice” of using excessive force, including “unjustified deadly force and unreasonable less-lethal force.” The report cites numerous incidents where officers shot nonthreatening suicidal individuals, fired additional shots at wounded people already on the ground, put themselves in situations where deadly force would not otherwise have been necessary (e.g. stepping in front of a moving car), failed to perform medical aid on wounded individuals, fired projectile weapons and Tasers without warning or de-escalation, and used force to punish handcuffed suspects.

Sometimes, officers not only delayed providing medical aid, but used significant force

on people who were incapacitated after being critically wounded. Officers can reasonably seek to ensure that a downed suspect no longer poses a threat. But it is unreasonable to use significant force on an immobile suspect merely to see if they are conscious. In one incident, after shooting a man, officers fired multiple rounds from a less-lethal projectile launcher and sent a police dog to drag the man back to the officers. Video shows the object that had been in the man’s hand landed approximately eight feet away from him and he made no significant movement toward it. Yet over nine minutes passed from when officers shot the man to when they moved in to complete the arrest and render aid. At least a dozen officers were on the scene who could have provided lethal cover for other officers to approach and secure the man without further use of force. Instead, they released a dog that bit the man’s leg and dragged him back to the waiting officers. The man did not survive the shooting.

In a first finding of its kind against any US police department, the Justice Department concluded that the police and city unlawfully detained and arrested people who are homeless without reasonable suspicion that they engaged in criminal activity. “Policing homeless people has been a central pillar of PhxPD’s enforcement strategy,” the report states. Less than 1% of all Phoenix residents are homeless, but they account for over one-third of misdemeanor arrests and citations. Officers also routinely destroy unhoused peoples’ property without due process, sometimes following unlawful detentions in violation of the Fourth Amendment.

The DOJ further found that the Phoenix police “engages in racial discrimination,” enforcing traffic, drug, and quality-of-life (e.g. loitering) laws more severely against Black, Hispanic, and Native American people than against white people engaged in the same behaviors. For example, among drivers who speed near school-zone speeding cameras, Black drivers are 90% more likely to be cited or arrested by PhxPD officers compared to white drivers.

We compared PhxPD data on officers’ traffic stops to data from Phoenix traffic cameras. Traffic cameras offer a unique opportunity for “benchmarking,” or establishing a baseline against which to compare police enforcement. This is because these machines record traffic violations without regard to the race of the driver…Among drivers who speed near school-zone speeding cameras, Hispanic drivers are 51% more likely to be cited or arrested by PhxPD officers, compared to white drivers…Among drivers who speed near school-zone speeding cameras, Black drivers are 90% more likely to be cited or arrested by PhxPD officers, compared to white drivers…Among drivers who engage in low-level moving violations near red light cameras, Hispanic drivers are 40% more likely to be cited or arrested by PhxPD officers, compared to white drivers…These are statistically significant differences, and we ruled out all plausible race-neutral explanations for the difference between police enforcement and neutral enforcement by cameras.

Residents of Phoenix, which has the highest rate of deadly force incidents among large cities, expressed vindication with the report’s release. Top police officials, on the other hand, blasted the investigation as a “farce” and warned that a consent decree (a court-ordered reform plan) would hurt officer morale.

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The U.S. Supreme Court wrapped up its 2023-2024 term yesterday, bringing an end to one of the most consequential sessions in recent memory. You’ve probably seen all the legal coverage, breaking down the fine details of statutory interpretation and dueling constitutional theories (if you’ve somehow managed to avoid it and wish to delve deeper, check out SCOTUSblog, Vox, or Slate). This week, Keep_Track will take a step back and look at whose rights this Court believes are worth protecting and whose rights it prefers didn’t exist.

##Whose rights matter

Are you a corrupt public official accepting money in exchange for favorable official acts? Those aren’t illegal bribes, the Supreme Court said in Snyder v. U.S., but completely legal “gratuities” and “tokens of appreciation” that “reward” a past decision. Your right to accept these convenient gifts cannot be infringed by anti-corruption statutes, just as public official Clarence Thomas’ right to accept the “personal hospitality” of billionaire Harlan Crow cannot be questioned.

But maybe you are a hedge fund manager defrauding investors. The government cannot use a standard in-house administrative law judge to evaluate the civil claims against you, the Court said in SEC v. Jarkesy. And the dozens of other federal agencies—from the EPA to OSHA—who use these judges to enforce laws in the public interest? They also must go to federal court to seek civil penalties, an expensive and time-consuming endeavor beyond the capacity of many departments. If, however, you are a lowly worker bee not funded by the likes of Elon Musk, the Court ruled in 2018 that you are not guaranteed a jury trial and can be forced to give up your right to collective litigation against your employer.

Or, better yet, let’s say you are a powerful multi-billion dollar corporation engaged in union-busting. The independent federal agency empowered to stop you is not so independent anymore after the Court gave itself more power to stymie enforcement decisions in Starbucks v. McKinney. Never mind that Congress expressly authorized the agency to protect labor rights through its own internal process, the majority of justices think they deserve more say in protecting corporate power.

Perhaps you have exceeded petty white-collar crimes and graduated to orchestrating a literal insurrection in a desperate attempt to hold onto the presidency. Good news for you, too: The conservative majority ruled in Trump v. United States that you cannot be charged for any crimes committed using the official powers of your office. You are a king above the law…but still subject to the wisdom of the Supreme Court justices, who granted themselves the power to determine whether the crime you committed is “official” and protected or “unofficial” and free to be prosecuted.

In sum, if you accept bribes, swindle investors, suppress labor rights, or stage a coup, you will find a bench of friendly ears at the Supreme Court. If you commit the heinous crime of sleeping outside when homeless, though, don’t expect a warm reception. The conservative justices ruled last week that the Eighth Amendment prohibition on cruel and unusual punishment does not bar localities from criminalizing the necessary bodily functions of unhoused people. Earlier in the term, those same justices held that excessive time in solitary confinement, an execution that is nearly guaranteed to cause pain, and execution by an untested method likewise do not violate the Constitution.

You should also reconsider seeking redress at the Supreme Court if you have had the misfortune of being born in Central or South America. According to the majority of justices, the government can deport you without proper notice of the time and place of your deportation hearing—prior precedent (in Pereira v. Sessions and then Niz-Chavez v. Garland) and due process be damned. You can also be permanently separated from your U.S. citizen spouse and family through an arbitrary visa denial process plagued by bias and stereotyping (see Sotomayor’s dissent). Or, you can be arrested by local police in Texas who suspect, based on nothing more than racial profiling, that you are in the country illegally (the Supreme Court allowed Texas to enforce its law; the 5th Circuit later issued a stay temporarily blocking enforcement).

##Power grab

At the root of these decisions about whose rights should be protected are the mightiest people of all: the conservative justices. In a series of cases released during the final two days of its term, the Supreme Court committed to a radical reordering of the separation of powers, bestowing upon itself much of the power that Congress had vested in the executive branch. First, in Loper Bright v. Raimondo, the six conservative justices overturned Chevron deference, a doctrine in place for 40 years that required courts to respect the expertise of federal agencies like the EPA, FDA, or FCC. Unelected judges serving life terms are now the final experts on all matters of U.S. governmental policy, from medicine to immigration to climate change to education to tax enforcement, with the ability to veto any federal agency’s attempt to apply statutory law to the facts on the ground. We have seen how well judges have played at being firearms historians (hint: not well), and, on Thursday, we got to see what a sharp scientist Justice Neil Gorsuch is when he confused nitrous oxide (laughing gas) with nitrogen oxide (a smog-causing emission). Surely, they will only do better with a more extensive and varied caseload.

To complete their aggrandizing power grab, the majority then made their Loper Bright ruling retroactive by allowing plaintiffs to challenge an agency action long after it had been finalized. As Justice Jackson explained in her dissent, “every legal claim conceived of in the last four decades—and before—can [...] be brought before courts newly unleashed from the constraints of [Chevron deference].”

Put differently, a fixed statute of limitations, running from the agency’s action, was one barrier to the chaotic upending of settled agency rules; the requirement that deference be given to an agency’s reasonable interpretations concerning its statutory authority to issue rules was another. The Court has now eliminated both. Any new objection to

any old rule must be entertained and determined de novo by judges who can now apply their own unfettered judgment as to whether the rule should be voided…At the end of a momentous Term, this much is clear: The tsunami of lawsuits against agencies that the Court’s holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the Federal Government.

Jackson ends her dissent with a plea to Congress to clean up the mess the justices created and “forestall the coming chaos.” It is a futile appeal given Congress’ record low productivity, created in part by the dysfunctional GOP in the House of Representatives and in part by the anti-democratic filibuster in the Senate. Without a fix from Congress, we are left waiting for the conservative justices to either step down or die, and hoping that a Democratic president is in office at the time.

Until then, we are all under the tyranny of six unelected unaccountable justices. The Supreme Court may have made Donald Trump a king on Monday, but they made themselves gods this term.

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The U.S. Supreme Court is nearing the end of its term, with three opinion days scheduled this week and 14 cases left to resolve. The court released nine rulings last week, including one of the most important in recent years: United States v. Rahimi, in which eight of the justices upheld a federal law barring domestic abusers from possessing firearms. While the outcome was welcomed by gun control advocates, the process was not. The conservative justices, led by Chief Justice John Roberts, doubled down on their “history and tradition” approach requiring all modern gun regulations to have historical analogues, creating an even more confusing maze for lower courts.

Rahimi received the vast majority of the media coverage, overshadowing two other rulings we’ll examine today in Keep_Track. The first, an erosion of marriage rights, and the second, a loss for labor rights.

#Marriage rights

The most alarming Supreme Court opinion released last week was a 6-3 ruling against the right to marriage in an immigration context—a signal, Justice Sonia Sotomayor says, that the conservative majority aims to one day erase the right to same-sex marriage across the country.

The case, Department of State v. Muñoz, involves U.S. citizen Sandra Munoz and her husband, El Salvadorian citizen Luis Asencio-Cordero. Roughly three years after getting married in the United States, the couple began the process of Asencio-Cordero becoming a lawful permanent resident. Because he initially entered the country without inspection, that process required him to return to his country of origin and sit for an interview with the State Department’s consular officer, who then determines whether to grant a visa to enter the U.S. lawfully.

In Asencio-Cordero’s case, the consular officer denied his visa without providing a reason—a common occurrence and one without much recourse:

Consular officers fall under the State Department, see §1104(a), not DHS, which oversees USCIS, see 6 U. S. C. §271(a). Even though DHS officers and consular officers make admission determinations under the same substantive laws, see §1182, in reality, a noncitizen seeking admission via consular processing faces a far higher risk of arbitrary denial with far less opportunity for review than a noncitizen seeking admission from DHS…Former consular officers tell this Court that this lack of accountability, coupled with deficient information and inconsistent training, means decisions often “rely on stereotypes or tropes,” even “bias or bad faith.” Visa applicants may “experience disparate outcomes based on nothing more than the luck or misfortune of which diplomatic post and consular officer . . . they happen to be assigned.”

After years of litigation (with Asencio-Cordero stuck in El Salvador), the State Department finally gave the couple the reason for denying his application: a “criminal review” and “review of [his] tattoos” led the consular officer to believe that Asencio-Cordero was a member of MS-13. The courts did not substantially grapple with the veracity of the consulate’s claims—Asencio-Cordero demonstrably does not have a criminal record, and gang experts allegedly analyzed his tattoos, not finding any gang affiliation—but instead looked at the constitutionality of the consulate’s denial. The 9th Circuit Court of Appeals ruled that U.S.-citizen spouses of visa applicants have a due process right to be provided a factual reason why the government denied their spouse’s visa, and that the reason must be provided in a timely manner.

Last week, the six conservative justices reversed that ruling, with Justice Amy Coney Barrett writing that “Munoz is not constitutionally entitled” to “a ‘facially legitimate and bona fide reason’ for why someone else’s visa was denied,” even if that person is her husband. The justices could have stopped there but chose to go further and rule for the first time that there is no constitutional liberty interest for an American citizen “to live with her spouse in her country of citizenship.”

Justice Neil Gorsuch concurred in judgment but disagreed with the five other conservative justices’ decision to answer constitutional questions that “no longer have any practical relevance here.” Munoz obtained the reason for her husband’s visa denial; that should have ended the case, Gorsuch said.

Justice Sotomayor, joined by Kagan and Jackson, dissented. They agreed with Gorsuch that “the majority could have resolved this case on narrow grounds under longstanding precedent” and should have stopped there:

Instead, the majority today chooses a broad holding on marriage over a narrow one on procedure. It holds that Muñoz’s right to marry, live with, and raise children alongside her husband entitles her to nothing when the Government excludes him from the country. Despite the majority’s assurance two Terms ago that its eradication of the right to abortion “does not undermine . . . in any way” other entrenched substantive due process rights such as “the right to marry,” “the right to reside with relatives,” and “the right to make decisions about the education of one’s children,” the Court fails at the first pass. Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215, 256–257 (2022). Because, to me, there is no question that excluding a citizen’s spouse burdens her right to marriage, and that burden requires the Government to provide at least a factual basis

for its decision, I respectfully dissent.

The majority’s opinion, Sotomayor warns, imperils the constellation of liberties that accompany the right to marriage in the U.S., undermining important precedents established in Obergefell (the right to same-sex marriage) and Loving (the right to interracial marriage):

Almost 10 years ago, this Court vindicated the expansiveness of the right to marriage. It upheld the right of James Obergefell and his terminally ill husband, John Arthur, to

have their marriage from Maryland recognized in Ohio. Rejecting the idea that “Ohio can erase [Obergefell’s] marriage to John Arthur for all time” by declining to place Obergefell as the surviving spouse on Arthur’s death certificate, this Court reasoned that “marriage is a right ‘older than the Bill of Rights.’” Obergefell, 576 U. S., at 666, 678. Marriage “‘fulfils yearnings for security, safe haven, and connection that express our common humanity.’” Id., at 666. “Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.” …

Obergefell rejected what the majority does today as “inconsistent with the approach his Court has used in discussing [the] fundamental rights” of “marriage and intimacy.” Cataloguing a half century of precedent on the right to marriage, the Court stressed that “Loving did not ask about a ‘right to interracial marriage’; Turner did not ask about a ‘right of inmates to marry’; and Zablocki did not ask about a ‘right of fathers with unpaid child support duties to marry.’” Instead, “each case inquired about the right to marry in its comprehensive sense” of “marriage and intimacy.” Similarly, Muñoz does not argue that her marriage gives her the right to immigrate her husband. She instead advances the reasonable position that blocking her from living with her husband in the United States burdens her right “to marry, establish a home and bring up children” with him.

Crucially, Sotomayor explains, “the burden” of the majority’s opinion “will fall most heavily on same-sex couples”:

Muñoz may be able to live in El Salvador alongside her husband or at least visit him there, but not everyone is so lucky. The majority’s holding will also extend to those couples who, like the Lovings and the Obergefells, depend on American law for their marriages’ validity. Same-sex couples may be forced to relocate to countries that do not recognize same-sex marriage, or even those that criminalize homosexuality.

#Labor rights

Also last week, the U.S. Supreme Court released an 8-1 decision siding with Starbucks in a loss for unions nationwide.

The case revolves around the judicial process when the National Labor Relations Board (NLRB) seeks an injunction to stop a company’s unfair labor practices and retaliation while the agency’s in-house proceedings play out. Some circuit courts determined whether to grant an injunction using a two-part test that considers if: (1) there is reasonable cause to believe that unfair labor practices have occurred; and (2) injunctive relief is just and proper. Other circuits used a more traditional four-part test considering: (1) the likelihood of success on the merits; (2) irreparable harm if the injunction is not granted; (3) whether a balancing of the relevant equities favors the injunction; and (4) whether the issuance of the injunction is in the public interest.

In 2022, the NLRB won an injunction against Starbucks for firing seven union activists (the Memphis Seven) at a Tennessee store. District Judge Sheryl Lipman, an Obama appointee, found sufficient evidence to support the NLRB’s claims that Starbucks had interfered with its employees’ union activity and had discriminated against employees to discourage union membership. Using the two-part test, Lipman granted an injunction barring Starbucks from interfering with any union activities and ordering the company to reinstate the fired employees.

All of the Supreme Court justices agreed that the lower courts should use the four-factor test to decide whether the NLRB is justified in asking for an injunction; therefore, they lifted the injunction and sent the case back to the lower courts for reevaluation. The eight-justice majority, led by Justice Clarence Thomas, went further, limiting the courts' ability to give deference to the NLRB’s expertise and in-house administrative proceedings. In practice, the majority’s ruling will impede the agency’s ability to quickly halt union-busting activities and increase the likelihood that unfair labor practices will go unpunished.

Justice Ketanji Brown Jackson dissented in part, explaining that Congress intentionally gave the NLRB more power than typical civil litigants in order to protect workers’ rights:

Crucially for present purposes, Congress recognized that delay in vindicating labor rights “during the ‘notoriously glacial’ course of NLRB proceedings” can lead to their defeat… a district court’s preliminary look at the merits when considering the Board’s petition for interim relief under §10(j) should be far less searching than normal. A §10(j)

injunction request simply does not present the district court with an opportunity to wade into the midst of an ongoing labor dispute (over which it otherwise has no say) and offer its own take about how the merits should be decided. Instead, in deference to Congress’s choices as codified in the NLRA, the district court’s task is much simpler: to evaluate a petition for a §10(j) injunction in a manner that accounts for the statutory scheme authorizing such relief and the district court’s proper role within it. Thus, so long as the Board has presented “some evidence to support the unfair labor practice charge, together with an arguable legal theory,” a district court should find this final factor satisfied…

Today, the majority casts a district court’s decision regarding a §10(j) request as one

that invokes the full sweep of a court’s traditional equitable discretion—without regard for the Board’s authority or the statutory scheme that authorizes courts to issue such interim relief in the first place. In doing so, “the Court unnecessarily and casually substitutes the chancellor’s clumsy foot for the rule of law.” Weinberger, 456 U. S., at 335 (Stevens, J., dissenting). I am loath to bless this aggrandizement of judicial power where Congress has so plainly limited the discretion of the courts, and where it so clearly intends for the expert agency it has created to make the primary determinations about both merits and process.

Some of the other opinions that you may be interested in:

• Diaz v. United States, about expert testimony in a criminal trial

• Chiaverini v. City of Napoleon, about malicious prosecution

• Moore v. United States, about issues adjacent to instituting a wealth tax

• Texas v. New Mexico, about water rights to the Rio Grande

And, of course, the two big opinions released the week prior:

• Garland v. Cargill, legalizing bump stocks

• FDA v. Alliance for Hippocratic Medicine, lifting a 5th Circuit injunction on the FDA’s approval of mifepristone

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The Republican party, with the assistance of the Federalist Society, has crafted a cheat code to block any Biden administration policy they disagree with—and it works more often than not. All that’s needed is a cadre of willing Attorneys General, a bench of friendly judges, and a Supreme Court ready to create new legal doctrines out of thin air to reach the party’s desired outcome. The Republican Attorneys General Association (RAGA) has already taken care of the first step by funding (with the support of the Federalist Society’s Leonard Leo) the election of culture warrior lawyers seeking to make a name for themselves. With a monumental assist from Sen. Mitch McConnell, Trump took care of the second step by installing over 230 judges in the appellate and district courts across the country. Republican Attorneys General can maximize their chances of drawing these extremist judges by filing in specific districts, a strategy called judge shopping used to great effect by Texas AG Ken Paxton.

And finally, the U.S. Supreme Court tackled the third step in 2022 with the invention of the major questions doctrine. While components of the doctrine can be traced back to the 2000s, the conservative justices first gave name to it in West Virginia v. EPA (2022), a case brought by RAGA member Patrick Morrisey. In ruling that the EPA does not have the authority to regulate emissions from existing plants based on generation shifting mechanisms, Chief Justice John Roberts wrote:

[I]n certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us “reluctant to read into ambiguous statutory text” the delegation claimed to be lurking there. Utility Air, 573 U. S., at 324. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to “clear congressional authorization” for the power it claims…As for the major questions doctrine “label[],” post, at 13[a], it took hold because it refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.

In other words, federal agencies cannot resolve questions of “vast economic and political significance” without clear statutory authorization. What constitutes “vast” significance and how “clear” Congressional language must be still have not been fully explained by the Court, leading many to view the doctrine as nothing more than a judicial power grab used to effectively veto policies that don’t match the justices’ own political preferences. Indeed, even the conservative justices themselves disagree on how the major questions doctrine operates—something they really should have figured out before pulling the metaphorical rabbit from the hat.

We can see how the process works by looking at past cases like Biden v. Nebraska, in which six Republican Attorneys General sued the Biden administration to stop student loan forgiveness. The district court initially dismissed the case for lack of standing. Then, the 8th Circuit—a court with only a singular Democratic appointee—granted an injunction, and the federal government appealed to the U.S. Supreme Court. Last year, in a 6-3 decision, the conservative majority blocked Biden’s student loan forgiveness plan, writing that “a decision of such magnitude and consequence” on a matter of “‘earnest and profound debate across the country’” must “res[t] with Congress itself.”

In this post, we will look at the cases filed by RAGA members against the Biden administration in just the first six months of 2024.

#LGBTQ+ rights challenges

###Subject: Workplace discrimination

Title: Tennessee et al. v. Equal Employment Opportunity Council et al.

Filed in the Eastern District of Tennessee, assigned to Judge Charles Atchley (Trump appointee)

States suing: Tennessee, Alabama, Alaska, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Ohio, South Carolina, South Dakota, Utah, Virginia, and West Virginia

Eighteen Republican Attorneys General sued the Equal Employment Opportunity Council (EEOC) last month, seeking an injunction against rules to protect transgender Americans from workplace discrimination. In April, the Council released guidance that Title VII of the Civil Rights Act prohibits employers from misgendering employees, harassing an employee for not “present[ing] in a manner that would stereotypically be associated with that person’s sex,” and denying access to a bathroom consistent with the employee’s gender identity. The guidance, the states claim, violates the major questions doctrine, exceeds the EEOC’s statutory authority, and infringes on state sovereignty.

• Judge Atchley already ruled against a previous version of the Biden administration’s transgender discrimination protections in 2022, writing that extending those protections under Title VII and IX “directly interferes with and threatens Plaintiff States’ ability to continue enforcing their state laws.”

Title: Texas v. Equal Employment Opportunity Council

Filed in the Northern District of Texas, assigned to Judge Matthew Kacsmaryk (Trump appointee)

States suing: Texas

Texas Attorney General Ken Paxton brought a separate lawsuit against the EEOC’s guidance on similar grounds. Like Judge Atchley, Judge Kacsmaryk previously ruled against the Biden administration’s LGBTQ+ protections.

###Subject: Healthcare Discrimination

Title: Tennessee et al. v. Xavier Becerra et al.

Filed in Southern District of Mississippi, assigned to Judge Travis McDonough (Obama appointee)

States suing: Tennessee, Mississippi, Alabama, Georgia, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Virginia, and West Virginia

Fifteen states sued the Department of Health and Human Services (HHS), seeking to block a rule that expands the Affordable Care Act's definition of sex discrimination to include gender identity. Under the new regulations, healthcare providers and insurers must treat people consistently with their gender identity and cannot categorically exclude gender affirming care. According to the states, HHS exceeded its authority by redefining “sex,” as found in Section 1557 and Title IX of the Educational Amendments Act, to encompass “gender identity” in violation of the major questions doctrine.

###Subject: Education discrimination

Title: (1) Tennessee et al. v. Miguel Cardona et al., (2) Arkansas et al. v. Dept. of Education et al., (3) Texas et al. v. U.S. et al., (4) Louisiana et al. v. Dept. of Education et al., (5) Alabama et al. v. Miguel Cardona et al., (6) Oklahoma v. Miguel Cardona et al.

Filed in: (1) Eastern District of Kentucky, assigned to Judge Danny Reeves (G.W. Bush appointee); (2) Eastern District of Missouri, assigned to Judge Rodney Sippel (Clinton appointee); (3) Northern District of Texas, assigned to Judge Matthew Kacsmaryk (Trump appointee); (4) Western District of Louisiana, assigned to Judge Terry Doughty (Trump appointee); (5) Northern District of Alabama, assigned to Judge Annemarie Carney Axon (Trump appointee); (6) Western District of Oklahoma, assigned to Judge Jodi Dishman (Trump appointee)

States suing (combined): Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Virginia, and West Virginia

Twenty-two Republican-led states are suing the Biden administration, in at least six separate lawsuits, seeking to block the Education Department’s expansion of Title IX federal civil rights rules to protect LGBTQ+ students from discrimination. Under the new rule, public schools would be required to allow students to use bathrooms consistent with their gender identity, must refer to students by their preferred pronouns, and could not require medical documentation to prove a student’s sex. Broadly, all the lawsuits argue that the Department exceeded its authority by rewriting “sex” to include “gender identity” in violation of the major questions doctrine.

• Last week, Judge Doughty (Trump appointee) ruled in favor of Louisiana et al., enjoining the Department’s rule from taking effect. “Because the Final Rule is a matter of both vast economic and political significance, the Court finds the enactment of this rule involves a major question pursuant to the major questions doctrine,” Doughty wrote. “Therefore, Congress must have given “clear statutory authorization” to the applicable agency. The Court finds that Congress did not give clear statutory authorization to this agency.”

• On Monday, Judge Danny Reeves (G.W. Bush appointee) blocked the Department’s rule from taking effect in the Kentucky et al. case, writing that it would violate the free speech and religious freedom of teachers by requiring them to use pronouns consistent with a student’s gender identity.

#Reproductive rights challenges

###Subject: Abortion accommodations

Title: Tennessee et al. v. Equal Employment Opportunity Commission

Filed in Eastern District of Arkansas, assigned to Judge D. Price Marshall (Obama appointee)

States suing: Tennessee, Arkansas, Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah, and West Virginia

Seventeen Republican-led states are suing the EEOC to challenge the Commission’s rule requiring that employers provide “reasonable accommodations” for employees who seek abortion care. The rule was created to provide practical guidelines for implementing the Pregnant Workers Fairness Act, which mandates protections for “pregnancy, childbirth, or related medical conditions.” According to the states, Congress did not intend for abortion to be included in the Act, and the EEOC is violating the major questions doctrine by acting without “clear congressional authorization.” They also argue that the EEOC’s rule violates state sovereignty by requiring employers to give workers time off for an abortion, even in states where the procedure is illegal.

• Demonstrating the importance of drawing a Democratic-appointed judge, Obama-appointee D. Price Marshall dismissed Tennessee’s lawsuit law week, writing that “the States lack standing and haven't shown a likelihood of irreparable harm.” He continued, “Beyond the intense controversy surrounding abortion, there are no signs that this is a major questions case.” The coalition can appeal to the 8th Circuit, a court with only one Democratic appointee on the bench.

Title: Louisiana and Mississippi v. Equal Employment Opportunity Commission

Filed in Western District of Louisiana, assigned to Judge David Joseph (Trump appointee)

States suing: Louisiana and Mississippi

Louisiana and Mississippi make many of the same claims as the 17-state coalition, writing that “The Proposed Rule proposed to transform the [Pregnant Workers Fairness] Act’s pro-pregnancy mandate into an anti-pregnancy mandate.”

#Environmental challenges

###Subject: Mining regulations

Title: Indiana et al. v. Haaland, Secretary of the Interior et al.

Filed in District of Columbia District Court, no judge assigned yet

States suing: Indiana, West Virginia, Alabama, Alaska, Arkansas, Kentucky, Louisiana, Montana, North Dakota, Ohio, Texas, Utah, Virginia, Wyoming

Indiana and West Virginia are leading a lawsuit filed last week against the Interior Department challenging a rule that makes it easier for citizens to report environmental violations by coal mining operations. The old rule, finalized in 2020 by the Trump administration, reduced federal participation in investigations of reported mining pollution violations, potentially allowing states to delay and stymie enforcement of federal environmental laws. Republican Attorneys General sued to keep Trump’s rule in place, arguing that the Biden administration’s change is “arbitrary and capricious” and erodes states’ rights.

###Subject: Energy permitting

Title: Iowa et al. v. Council on Environmental Quality

Filed in District of North Dakota, assigned to Judge Daniel Traynor (Trump appointee)

States suing: Iowa, North Dakota, Alaska, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming

Iowa is leading a 20-state lawsuit against an overhaul of the National Environmental Policy Act (NEPA) finalized in May and set to go into effect on July 1. The policy changes will “accelerate the deployment of clean energy,” "address climate change,” and “advance environmental justice,” according to the Biden administration. The Republican Attorneys General argue that the final rule “creates distinctions between favored and disfavored projects that are intended to reshape national policy” and “therefore violates the major questions doctrine.” The states also challenge the inclusion of environmental justice in NEPA, saying that it is “untethered to any federal statutory basis,” and the addition of climate change and indigenous knowledge considerations when evaluating a proposed project.

Iowa et al. ask the court to declare the changes “arbitrary and capricious” and in violation of the major questions doctrine.

###Subject: Fossil fuel regulation

Title: West Virginia et al. v. EPA, consolidated with Ohio and Kansas v. EPA, National Rural Electric Cooperative Association v. EPA, and National Mining Association v. EPA

Filed in the U.S. Court of Appeals, D.C. Circuit

States suing: Alaska, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and West Virginia, and Wyoming; Ohio and Kansas

Nearly every state with a Republican Attorney General sued the EPA last month, seeking to block a rule requiring that gas and coal power plants install emissions control technologies (e.g. carbon capture and sequestration) that reduce greenhouse gas emissions. These technologies, the states argue, are unproven and impossible to implement on the scale and timetable demanded by the EPA. The Biden administration’s real aim, they say, is to create “a backdoor avenue to forcing coal plants out of existence—a major question that no clear constitutional authority permits.”

• 44 senators (43 Republicans and Joe Manchin, Independent) sponsored legislation to repeal the EPA’s rule. 143 representatives (all Republican) sponsored a similar bill in the House.

###Subject: Pebble Mine

Title: Alaska v. EPA

Filed in District Court of Alaska, assigned to Judge Sharon Gleason (Obama appointee)

States suing: Alaska

Alaska is suing the EPA to overturn its decision to prohibit mining waste discharge into Bristol Bay, a move that effectively blocked the development of a copper and gold mine called Pebble Mine. According to the EPA, nearby aquatic habitat, including over 8.5 miles of streams used by salmon for spawning, would be irreparably damaged by the mining operation and its auxiliary roads and power plants. The state contends that the mine would not “have a measurable effect on fish numbers” and “the loss of fish habitat and wetlands in the upper [watersheds]...are not expected to have measurable effects on Pacific salmon and other anadromous fish downstream.”

Alaska argues that the EPA’s decision should be reversed because the agency did not properly weigh the economic benefits the mine would bring to the area. Nothing in “any provision of the [Clean Waters Act], gives EPA the authority to resolve this major policy question and act as a roving zoning commission to regulate and restrict mining or other land use activities,” they continue.

###Subject: Fossil fuel regulation

Title: North Dakota et al. v. Department of Interior

Filed in District Court of North Dakota, assigned to Judge Daniel Traynor (Trump appointee)

States suing: North Dakota, Montana, Texas, and Wyoming

North Dakota is leading a lawsuit against the Biden administration over a new rule requiring fossil fuel producers to curb methane leaks from oil and gas drilling on public lands. The regulation imposes limits on the practice of flaring, when methane is burnt off at drilling sites, and venting, when methane is directly released into the atmosphere. Any excess methane that is combusted, released, or leaked will trigger additional royalties that producers must pay to the federal or tribal government that owns the land. According to the Bureau of Land Management, the rule is expected to bring in $51 million per year.

The states argue that the rule will make oil and gas development more expensive, ultimately reducing production and costing them millions of dollars in lost royalties and taxes each year. They also say that the Interior exceeded its authority by “upend[ing] the Clean Air Act’s cooperative federalism framework” and “usurp[ing] the authority to regulate air emissions Congress expressly delegated to the EPA and States.”

###Subject: Liquified Natural Gas Exports

Title: Lousiana et al. v. Biden et al.

Filed in District Court of Louisiana, assigned to Judge James Cain (Trump appointee)

States suing: Louisiana, Texas, Mississippi, Alabama, Alaska, Arkansas, Florida, Georgia, Kansas, Montana, Nebraska, Oklahoma, South Carolina, Utah, West Virginia, and Wyoming

Sixteen Republican-led states are suing the Biden administration for halting the approval of new permits to export liquefied natural gas (LNG) to study the economic and environmental impacts of proposed projects.

In recent years, [Professor Robert Warren] Howarth has demonstrated that, domestically, natural gas is no better for the climate than coal, largely owing to the methane leaks associated with it; now, though, it appears that exporting L.N.G., because of the extra leakage of the supercooled gas during transit, could allow even larger amounts of methane to escape into the atmosphere and, hence, could do much more damage to the climate than coal does. The leaks come at every stage of the process, Howarth explains…According to the energy consultant and former Environmental Protection Agency climate-policy adviser Jeremy Symons, if all [proposed LNG export terminals] are built, they will be associated with an extra 3.2 billion tons of greenhouse-gas emissions annually, which is close to the entire annual emissions of the European Union

Calling the ban an election year stunt brought on by the “whims of activists,” the lawsuit claims that the pause on approvals violates the major questions doctrine.

###Subject: Climate disclosures

Title: West Virginia et al. v. U.S. Securities and Exchange Commission

Filed in the 11th Circuit Court of Appeals, consolidated in the 8th Circuit

States suing: West Virginia, Georgia, Alabama, Alaska, Indiana, New Hampshire, Oklahoma, South Carolina, Virginia, and Wyoming

A coalition of states, all led by Republican Attorneys General, filed a lawsuit against the Securities and Exchange Commission (SEC) to block the agency’s rule requiring that companies disclose their greenhouse gas emissions, climate-related risks, and plans to manage or mitigate them. The states argue that the rule is “arbitrary and capricious” and fails the major questions doctrine.

The SEC agreed to put the rule on hold while the judicial process plays out.

Title: Iowa v. U.S. Securities and Exchange Commission

Filed in the 8th Circuit Court of Appeals

States suing: Iowa, Arkansas, Idaho, Missouri, Montana, Nebraska, North Dakota, South Dakota, and Utah (as well as the American Free Enterprise Chamber of Commerce)

Nine more states filed a similar lawsuit against the SEC’s climate disclosure rule in the 8th Circuit.

• Note: Environmental groups also sued the SEC, arguing that the Commission’s “arbitrary decision to remove robust emissions disclosure requirements and other key elements from the proposed rule falls short of what the law requires.” For example, the SEC doesn’t require companies to report some indirect emissions (e.g. pollution that occurs along its supply chain) and allows businesses to decide whether they need to disclose certain emissions without any oversight.

#Other challenges

###Subject: Student loan debt

Title: Kansas et al. v. Joe Biden et al.

Filed in District of Kansas, assigned to Judge Daniel Crabtree (Obama appointee)

States suing: Kansas, Alabama, Alaska, Idaho, Iowa, Louisiana, Montana, Nebraska, South Carolina, Texas, and Utah

Eleven Republican-led states sued the Biden administration, seeking a court order blocking student loan debt relief. Under the SAVE Plan, borrowers who earn less than $32,800 a year will be eligible to have their monthly loan repayments waived, those who make their monthly payments won’t have to pay interest, and payments on undergraduate loans will be capped at 5% of discretionary income. The plan, the states argue, is no different from Biden’s first attempt at student loan cancellation, which the Supreme Court rejected last year in Biden v. Nebraska (using the major questions doctrine). However, the Biden administration says the SAVE plan simply offers more generous terms to already existing income-driven repayment plans.

Title: Missouri et al. v. Joe Biden et al.

Filed in Eastern District of Missouri, assigned to Judge Sarah Pitlyk (Trump appointee)

States suing: Missouri, Arkansas, Florida, Georgia, Ohio, and Oklahoma

Like in the Kansas-led lawsuit, Missouri et al. argues that the SAVE plan is the same as Biden’s first student loan cancellation project—even bringing up MOHELA, a student loan servicer that played a controversial role in Biden v. Nebraska. “The Final Rule triggers the major questions doctrine and violates principles of separation of power by seizing broad authority over matters of great economic and political significance without clear congressional authorization,” the states claim.

###Subject: Gun show sales

Title: Texas et al. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives et al.

Filed in Northern District of Texas, assigned to Judge Matthew Kacsmaryk (Trump appointee)

States suing: Texas, Louisiana, Mississippi, and Utah

Four conservative states sued the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) earlier this year seeking to block a federal rule requiring individuals who sell firearms online and at gun shows to conduct background checks on customers. The rule exceeds the ATF’s authority, the states say, and violates the Second Amendment. The ATF cannot “justify its regulation because there is no early American tradition of requiring licensure of gun sellers,” they continued.

• Last week, Judge Kacsmaryk issued a preliminary injunction preventing the government from enforcing the background check rule in Texas, Louisiana, Mississippi, and Utah.

Title: Kansas et al. v. Merrick Garland et al.

Filed in Eastern District of Arkansas, assigned to Judge James Moody (Obama appointee); transferred to District of Kansas, assigned to Judge Toby Crouse (Trump appointee)

States suing: Kansas, Arkansas, Iowa, Montana, Alabama, Alaska, Georgia, Idaho, Indiana, Kentucky, Missouri, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Virginia, West Virginia, and Wyoming

Twenty states filed a separate lawsuit to block the ATF’s rule closing the gun show loophole, arguing that “if one's ability to obtain and dispose of firearms is restricted, one's right to keep and bear arms is hindered and burdened.” They continue: “Whether the federal government should conduct universal background checks on firearms purchases is an issue of major political significance” triggering the major questions doctrine.

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#Trump’s latest quid pro quo

At a high-dollar fundraiser at Donald Trump’s Mar-a-Lago Club in April, the former president promised top oil executives that he would reverse Biden’s environmental rules and policies in exchange for $1 billion in donations to reclaim the presidency. Those in attendance reportedly included representatives from Chevron, Exxon, Occidental Petroleum, Continental Resources, Venture Global, and Cheniere Energy.

Yet oil giants will see an even greater windfall — helped by new offshore drilling, speedier permits and other relaxed regulations — in a second Trump administration, the former president told the executives over the dinner of chopped steak at Mar-a-Lago.

Trump vowed at the dinner to immediately end the Biden administration’s freeze on permits for new liquefied natural gas (LNG) exports — a top priority for the executives, according to three people present. “You’ll get it on the first day,” Trump said, according to the recollection of an attendee…Trump told the executives that he would start auctioning off more leases for oil drilling in the Gulf of Mexico, a priority that several of the executives raised…At the dinner, Trump also promised that he would scrap Biden’s “mandate” on electric vehicles…

Trump then repeated his pro-fossil fuel promises at a Houston fundraiser a couple of weeks ago, raising tens of millions of dollars from executives of many of the same companies that attended the Mar-a-Lago event. Harold Hamm, the executive chairman and founder of Continental Resources, hosted the fundraiser with Vicki Hollub of Occidental Petroleum, Jeff Hildebrand of Hilcorp Energy, George Bishop of GeoSouthern Energy, and Kelcy Warren of Energy Transfer Partners.

Trump drew standing ovations when he promised to get more natural gas pipelines built if elected and to restore fracking to areas barred under Biden, said Mark Carr, a Houston entrepreneur who was in attendance…Trump has emphasized tax cuts for the industry, "streamlining" the permitting process, and removing certain regulations, said donor and oil executive Dan Eberhart, who was in Houston for the event. "We can drill our way to energy security and low gas prices," said Eberhart…

The Texas events were pricy affairs: Host committee members were asked to pay $250,000 per couple and agree to raise another $500,000, according to the invitations. The chair was asked to donate about $845,000 per couple and raise another $1.69 million.

While offering increased permits for controversial drilling and pipeline projects is most likely to capture headlines, an analysis found that fossil fuel companies would profit more from Trump’s pledge to halt the Biden administration’s elimination of tax breaks. According to The Guardian, preserving the tax breaks would save oil and gas giants $110 billion—11,000% more than the amount Trump allegedly asked the executives for in contributions.

But the analysis shared with the Guardian shows that the biggest motivation for oil and gas companies to back Trump appears to be in the tax system, with about $110bn in tax breaks for the industry at stake should Joe Biden be re-elected in November’s election. Biden wants to eliminate the tax breaks, which include long-standing incentives to help drill for oil and gas, with a recent White House budget proposal targeting $35bn in domestic subsidies and $75bn in overseas fossil fuel income.

“Big oil executivess are sweating in their seats at the thought of losing $110bn in special tax loopholes under Biden in 2025,” said Lukas Ross, a campaigner at Friends of the Earth Action, which conducted the analysis…Lobbying records show that Chevron, Exxon, ConocoPhillips, Occidental, Cheniere and the American Petroleum Institute (API) have all met lawmakers this year to discuss this tax situation, likely encouraging them to ignore Biden’s plan to target the fossil fuel industry’s own carve-outs.

Trump’s quid pro quo offer has already reached receptive ears, with fossil fuel lawyers and lobbyists drafting “ready-to-sign executive orders” for his administration to enact should he win a second term.

Industry representatives have already prepared some executive orders for Trump to sign if he reaches the White House, said Stephen Brown, director of energy consulting firm RBJ Strategies and a former refining industry lobbyist. Undoing Biden’s actions would be a major target. “You’ll see a lot of Biden regulations that have come out in the past six months checked one way or another,” Brown said in an interview. “It’s going to be like shooting fish in the barrel — there’s just so much to go after.” [...]

“Supportive industries are going to have to prop up a second Trump administration with expertise,” said the person, who was granted anonymity to discuss confidential planning. “We’re going to have to write exactly what we want, actually spoon feeding the administration. There’s 27-page drafts moving around Washington.”

Meanwhile, Senate Democrats have launched an investigation into Trump’s “policies-for-money” scheme, seeking documents from the fundraising events, draft executive orders, and information on donations made by attendees to the Trump campaign and related PACs. This follows a previous investigation, opened by Democrats on the House Committee on Energy and Commerce last month, into allegations that American oil executives have been “colluding” with each other and OPEC to “manipulate global oil markets,” and another years-long probe into the fossil fuel industry’s campaign of misinformation about climate change.

#Michigan’s pipeline

The long-running legal saga of Line 5, dubbed “America’s most dangerous pipeline” by environmental groups, reached both the 6th and 7th Circuit Courts of Appeal in recent months. No matter the outcome of either case, it is almost guaranteed to be appealed to the U.S. Supreme Court in the near future.

###Background

Line 5 is a 645-mile oil pipeline owned by the Canadian multinational corporation Enbridge, carrying crude oil from Western Canada through Wisconsin and Michigan to Ontario, Canada (map). According to data obtained by the Freedom of Information Act, the 70-year-old pipeline has spilled more than 1.1 million gallons of oil in approximately 30 incidents over the years. One of the riskiest segments of the pipeline crosses the Mackinac Straits, through the Great Lakes, endangering the drinking water of more than 30 million people. Enrbidge’s own analysis indicated that at least one section of the pipeline has lost 26% of its wall thickness due to corrosion, heightening the likelihood of a crack or rupture.

In 2018, a ship’s anchor accidentally struck the portion of Line 5 that runs through the Straits, leaving deep gouges in the metal’s outer protective coating. To placate a worried public, Enbridge and outgoing Republican Gov. Rick Snyder’s administration set out to install a tunnel in the bedrock beneath the Straits and replace the underwater pipeline with a new portion. Construction has yet to begin, mainly due to legal challenges (see below), but a Michigan utility regulator granted the company permission to build the tunnel in December.

###Cases

There are numerous ongoing legal cases involving Line 5, spanning across multiple state and federal court jurisdictions. Today, we’ll look at the two cases that have recently been argued in federal appellate courts.

First, the 6th Circuit is considering whether arguments over the pipeline’s future in Michigan were properly moved to federal court. The case, Nessel v. Enbridge, originated in 2019 when Attorney General Dana Nessel (D) sued Enbridge in Ingham County Circuit Court to force the shutdown of Line 5. The 1953 easement granting Enbridge permission to lay the pipeline across the bottom of the Straits of Mackinac violates the public trust doctrine, the state said, and therefore was invalid from its inception. Evidence obtained by Nessel also proves Enbridge has committed numerous violations of the easement that give the governor the authority to terminate the agreement, the AG’s office claimed.

Paragraph A.(10) of the Easement requires that each Pipeline must be physically supported (i.e., either rest on the lakebed or be supported by some other structure/device) at least every 75 feet…For virtually the entire life of the Easement, Enbridge disregarded its obligation to comply with the 75' pipe span requirement, and even failed to take corrective action when pipe spans exceeded 200' in length…

Paragraph A.(9) of the Easement requires Enbridge to maintain a multi-layer coating on the Pipelines. This protective coating is intended to prevent the steel from being exposed to environmental factors that could cause corrosion or other physical damage…in August 2017, Enbridge informed State officials that there were three small areas of bare metal exposed, and later was forced to acknowledge both that it had known of these coating gaps since 2014 and that some were apparently caused by Enbridge…Subsequent inspections showed dozens more areas of coating damage.

Enbridge moved the case to the Western District of Michigan federal court, where District Judge Janet Neff (a G.W. Bush appointee) denied Nessel’s request to return the case to state court in 2021. Nessel appealed to a 6th Circuit panel made up of two Trump appointees and a G.W. Bush appointee. The district court erred, Nessel’s office argued, by granting Enbridge’s request to move the case to federal court two years after the lawsuit was filed. Enbridge contended that the case should remain in federal court because federal issues—like the pipelines treaty with Canada—dominate the case.

The panel has yet to release its decision.

A separate court of appeals is hearing the second case because it involves a portion of the pipeline that crosses Wisconsin in the jurisdiction of the 7th Circuit. Approximately 12 miles of Line 5 run through the Bad River Band reservation, alongside the namesake river that flows into Lake Superior. At the time of the pipeline’s original construction, the owners of that land—a mix of Bad River Band members, non-members, and the tribe as a whole—granted Enbridge long-term easement agreements that were renewed over the decades. Then, in 2013, the Band decided it did not wish to renew the easements on 15 allotment parcels. Their decision was influenced by recent evidence of Enbridge’s deliberate indifference to pipeline damage and corrosion, eventually causing the second-largest inland oil spill in U.S. history in the Kalamazoo River, Michigan.

The Band sued Enbridge in 2019 for its refusal to remove the pipeline from their land; Enbridge countersued alleging that an agreement on different land parcels requires the Band to consent to renewed easements over all parcels. District Judge William Conley ruled in favor of the Band in 2022, writing that Enbridge had been trespassing on the tribe’s land for years and must pay $5 million in compensation. However, Conley did not grant the Band’s request to immediately shut down Line 5, instead giving the company three years to reroute the pipeline around Bad River land.

Both parties were unsatisfied with the ruling and appealed to the 7th Circuit, where a three-judge panel made up of two Trump appointees and a Reagan appointee heard arguments in February:

In its appellate brief the Band made clear that it wants Line 5 off its land immediately, not in three years, and that it wants a greater share of the estimated $1.1 billion in profits the company has made by running oil through Line 5 since 2013. It also rejected Enbridge's proposed reroute of the pipeline, which hugs the borders of the reservation and still runs through the Bad River watershed…The judges accused the Band of not taking any independent steps to address its environmental concerns over the Bad River meander, where the soil that covers the pipeline is eroding. [Judge] Easterbrook also took issue with [the Band’s attorney Paul] Clement's environmental arguments, claiming that to move the pipeline out of the Bad River watershed would only move it into "some other watershed."

Clement pushed back against this argument, as did the Bad River Band's Tribal Council Vice Chairman Patrick Bigboy after the hearing. Both claimed that the Band should not responsible for alleviating an environmental problem Enbridge's pipeline created, and further argued that to shore up barriers at the meander would only extend the company's trespass…[Enbridge attorney Alice] Loughran meanwhile accused the Band of refusing to work with Enbridge in order to find a solution to the issue.

While awaiting the panel’s decision, spring flooding further eroded the banks of the Bad River, bringing the waterway to within 12.5 feet of the pipeline. The Band filed an emergency motion with Judge Conley, warning him that erosion presents “an imminent threat” to the watershed, Lake Superior, and the reservation should the pipe be exposed and rupture. Conley denied their request to shut down the line:

Judge Conley stated that he would prefer to see more cooperation between the company and the tribe. Conley said that, “there will come a time when there will be an imminent risk.” Yet, Conley said, he was “disinclined” to find that the risk is imminent at this time, even though “I think it’s going to be increasingly likely.”

#Cancer alley

Earlier this year, a Louisiana state appellate court ruled in favor of air pollution permits for a planned petrochemical plant situated among disadvantaged Black communities in “Cancer Alley.”

The plant, set to be built by Taiwanese company Formosa Plastics, would be the largest complex of its kind in the country and produce thousands of tons of toxic air pollution per year and more than 13.6 million tons of greenhouse gases per year. According to ProPublica, the complex—located just one mile from an elementary school—will “double to triple the levels of cancer-causing pollutants currently harming the community from existing industrial plants.”

The Louisiana Department of Environmental Quality (LDEQ) granted Formosa over a dozen air permits in 2020 despite the company’s admission that if the chemical complex begins operations, the air in parts of St. James Parish would violate the Environmental Protection Act’s national, health-based limits for soot and ozone-forming nitrogen dioxide.

• Read more: “Air Quality Regulators in ‘Cancer Alley’ Have Fallen Dangerously Behind,” ProPublica

Residents and environmental groups sued, arguing that “LDEQ’s decision violates the Clean Air Act” by granting the permits “even though Formosa Plastics failed to demonstrate that its emissions would not ‘cause or contribute to’ violations of certain national standards.” Judge Trudy White, a Democratic judge in the Baton Rouge-based 19th Judicial District Court, ruled against the state and Formosa, finding that LDEQ failed to offer evidence that “it had avoided the risk [of public health violations] to the maximum extent possible.”

LDEQ admits that it did not do a cumulative assessment of [Formosa]’s toxic emissions together with other sources…LDEQ does not explain how analyzing data about [Formosa]’s facility alone could support its conclusion on the cumulative emissions, i.e., that “emissions from the [Formosa] Complex, together with those of nearby sources, will not allow for air quality impacts that could adversely affect human health or the environment.” [...]

LDEQ failed to act “with diligence, fairness and faithfulness” as its constitutional duty requires when making a decision that affects environmental resources (here the very air people living near the [Formosa] site will be forced to breathe), LDEQ failed to conduct any kind of meaningful cost-benefit analysis. LDEQ’s failure to weigh, or in some cases even acknowledge, the full range of environmental harms resulting from its permit action, renders its conclusion that “the social and economic benefits of the proposed project will greatly outweigh its adverse environmental impacts” arbitrary and capricious.

The state and Formosa appealed, drawing a panel of Republican judges on Louisiana’s First Circuit Court of Appeals that reversed Judge White’s ruling. “DEQ is entitled to considerable deference in its conclusion that the social and economic benefits outweigh the environmental impact costs,” the panel wrote, “and we cannot say that its analysis or conclusion in this regard was arbitrary and capricious or otherwise characterized by an abuse of discretion.” In other words, the appellate court found that the LDEQ did not err by giving the creation of jobs, tax benefits, and community improvements (including the so-called “beautification of the nearby public park”) more weight than the environmental and public health harms in its decision to grant Formosa air pollution permits.

Residents and environmental groups asked the Louisiana Supreme Court to take up the case in March. The court, which consists of five Republican judges, one Democratic judge, and one independent judge, has not announced whether it will hear the case.

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The U.S. Supreme Court ruled 6-3 along party lines yesterday to approve of a racially gerrymandered map in South Carolina, making it significantly harder to bring similar claims in the process.

###Background

After the 2020 census, the Republican-controlled South Carolina legislature enacted new congressional maps that divided up Charleston between two districts: The 6th district, combining the city of Charleston with the Midlands Region nearly 100 miles away, and the 1st district, containing the coastal portion of Charleston County, Beaufort County, Berkeley County, and a portion of Dorchester County. The resulting map packed and cracked Black voters between the districts in order to increase Republican voters in the 1st district.

Voters and civil rights groups sued, alleging that legislators violated the 14th Amendment by enacting a racially gerrymandered map and the 14th and 15th Amendments by using racial discrimination. A three-judge panel made up of Democratic appointees ruled against the state, finding that the 1st district is an unconstitutional gerrymander and ordering the legislature to draw a new map. Below is an excerpt of the court’s opinion to give readers an idea of the immense amount of research behind the ruling:

The General Assembly was provided a number of proposed congressional plans by

various interested parties…These various plans differed on the African American percentage of the total votes in Congressional District No. 1, with Senator Campsen’s plan providing for 17%, Senator Harpootlian’s plan for 21%, the League of Women Voters’ plan providing for 23%, and one of the NAACP’s plans providing for 24%. Analyses of partisan voting patterns within Congressional District No. 1 provided by both Plaintiffs and Defendants indicated that a district in the range of 17% African American produced a Republican tilt, a district in the range of 20% produced a “toss up district,” and a plan in the 21-24% range produced a Democratic tilt. The Court finds that this data demonstrating the need to limit the African American population to a certain level to produce the desired partisan tilt resulted in a target of 17% African American population for Congressional District No. 1…

Reducing the African American population in Charleston County so low as to bring

the overall black percentage in Congressional District No. 1 down to the 17% target was no easy task and was effectively impossible without the gerrymandering of the African American population of Charleston County…

The movement of over 30,000 African Americans in a single county from Congressional District No. 1 to Congressional District No. 6 created a stark racial gerrymander of Charleston County…[cartographer Will] Roberts’ changes in Charleston County in the 2022 plan…doubl[ed] down on the racial division of Charleston County by the movement of 62% of the African American residents of Congressional District No. 1 into Congressional District No. 6. These actions by Roberts made a mockery of the traditional districting principle of constituent consistency. As a result of these changes, 79% of Charleston County’s African American population was placed into Congressional District No. 6 and 21% was placed into Congressional District No. 1, and the percentage of African Americans in Charleston County in Congressional District No. 1 fell from 19.8% at the time of the enactment of the 2011 plan to 10.3% in the 2022 plan.

The state appealed to the U.S. Supreme Court, under the case name Alexander v. South Carolina State Conference of the NAACP.

###The ruling

Justice Samuel Alito wrote the court’s majority opinion, joined by Justices Gorsuch, Kavanaugh, Barrett, Thomas (in part), and Chief Justice Roberts. While the court had previously ruled in Rucho v. Common Cause (2019) that the federal judiciary has no jurisdiction to hear partisan gerrymandering claims, it had never outright endorsed the practice. Alito and the court’s conservatives pulled back the curtain with yesterday’s ruling, giving their unambiguous support to politicians choosing their voters:

The Constitution entrusts state legislatures with the primary responsibility for drawing congressional districts, and redistricting is an inescapably political enterprise. Legislators are almost always aware of the political ramifications of the maps they adopt, and claims that a map is unconstitutional because it was drawn to achieve a partisan end are not justiciable in federal court. Thus, as far as the Federal Constitution is concerned, a legislature may pursue partisan ends when it engages in redistricting.

Rucho, no matter how incorrect, drew a clear line between partisan and racial gerrymandering, with Chief Justice Roberts writing that “it is illegal for a jurisdiction to engage in racial discrimination in districting” but “a jurisdiction may engage in constitutional political gerrymandering.” The South Carolina map contained both: lawmakers, assuming that race is closely correlated with political voting patterns, used racial demographics to move voters between districts and create their desired partisan outcome.

Before Alexander, using race in this way was illegal. Now, Alito writes, the courts must give lawmakers a “presumption of legislative good faith” when they are accused of racial gerrymandering. The clear line between partisan and racial gerrymandering is suddenly very murky. Under the majority’s reasoning, racial discrimination in redistricting is “simply a side effect of the legislature’s partisan goal” and, therefore, permissible.

And what the [district] court did—inferring bad faith based on the racial effects of a political gerrymander in a jurisdiction in which race and partisan preference are very closely correlated—would, if accepted, provide a convenient way for future litigants and lower courts to sidestep our holding in Rucho that partisan gerrymandering claims are not justiciable in federal court. Under the District Court’s reasoning, a litigant could repackage a partisan-gerrymandering claim as a racial gerrymandering claim by exploiting the tight link between race and political preference. Instead of claiming that a

State impermissibly set a target Republican-Democratic breakdown, a plaintiff could simply reverse-engineer the partisan data into racial data and argue that the State impermissibly set a particular [Black voting age population] target. Our decisions cannot be evaded with such ease.

To bring a claim of illegal racial gerrymandering in the future, litigants must provide a “substitute map” showing “how the state could have achieved its legitimate political objectives…while producing significantly greater racial balance.”

###Concurrences and dissent

Justice Clarence Thomas wrote his own concurrence, arguing that federal and state courts should be banned from ever hearing claims of racial gerrymandering again (and attacking Brown v. Board along the way).

The liberal justices, led by Justice Elena Kagan, passionately pushed back against the conservative opinion, pointing out how much easier it will be for legislators to draw unfair districts:

In every way, the majority today stacks the deck against the Challengers. They must lose, the majority says, because the State had a “possible” story to tell about not considering race—even if the opposite story was the more credible. And they must lose again, the majority says, because they failed to offer a particular form of proof—

which they did not know would be relevant and which this Court recently told plaintiffs was not required. It does not matter that the Challengers offered extensive evidence, including expert statistical analyses, that the State’s districting plan was the product of racial sorting. It does not matter that the State, by way of response, offered little more than strained and awkward denials. It does not matter that three judges—entitled to respect for their factual findings— thought that those denials were not believable, and did not put a dent in the plaintiffs’ proof. When racial classifications in voting are at issue, the majority says, every doubt must be resolved in favor of the State, lest (heaven forfend) it be “accus[ed]” of “offensive and demeaning” conduct.

What a message to send to state legislators and mapmakers about racial gerrymandering. For reasons I’ve addressed, those actors will often have an incentive to use race as a proxy to achieve partisan ends. And occasionally they might want to straight-up suppress the electoral influence of minority voters. Go right ahead, this Court says to States today. Go ahead, though you have no recognized justification for using race, such as to comply with statutes ensuring equal voting rights. Go ahead, though you are (at best) using race as a short-cut to bring about partisan gains—to elect more Republicans in one case, more Democrats in another. It will be easy enough to cover your tracks in the end: Just raise a “possibility” of non-race-based decision-making, and it will be “dispositive.” And so this “odious” practice of sorting citizens, built on racial

generalizations and exploiting racial divisions, will continue. In the electoral sphere especially, where “ugly patterns of pervasive racial discrimination” have so long governed, we should demand better— of ourselves, of our political representatives, and most of all of this Court. Respectfully, I dissent.

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##Arizona

Supporters of an abortion rights initiative in Arizona have reportedly obtained enough signatures to appear on the November ballot, though it still needs to be verified by the secretary of state this summer. Abortion is currently legal during the first 15 weeks of pregnancy. The proposed ballot measure would amend the Arizona Constitution to establish a fundamental right to abortion before the point of fetal viability (generally around the 24th week of pregnancy).

• The initiative gained steam after the Arizona Supreme Court ruled last month that an 1864 territorial ban on abortions is enforceable. Following several attempts by Republicans to block the bill, a coalition of Democrats and several conservatives passed a repeal of the 160-year-old ban earlier this month, reinstating the state’s previous 15-week limit on abortions.

Now, Republican legislators are trying to limit future ballot initiatives—like the one aiming to enshrine abortion rights—with a measure of their own. If passed, the Arizona Signature Distribution Requirement for Initiatives Amendment would change the threshold for petitioners to get a measure on the ballot: instead of requiring 10-15% of all votes cast in the most recent governor’s race (a statewide threshold), the proposed change would force citizen-led efforts to collect 10-15% from each of the state’s 30 legislative districts.

This would require tremendous logistical feats from any citizen-led effort. Canvassers would need to dramatically scale up their presence in the most remote parts of Arizona, unable to rely on high-traffic areas and denser population centers.

Arizonans who have experience working on signature-gathering told Bolts that this requirement could prove insurmountable to them given the resources and capacity it would call for. “This is nothing but a backdoor way to shut down the initiative process,” said Jim Barton, an election law attorney who has been involved in numerous legal fights over the rules of initiatives in Arizona.

If voters approve the Signature Distribution measure, citizens will be left without a valuable tool to affect change in a state whose legislature has been controlled by Republicans for several decades. Arizonans used the ballot initiative process to enact important policies in recent years, including raising the minimum wage in 2016, legalizing marijuana in 2020, and requiring campaign donor transparency in 2022.

##Mississippi

Meanwhile, Republicans in Mississippi again rejected legislation to restore citizens’ ability to put measures on the ballot three years after a court ruling took away that right. According to a provision of the state’s constitution written in 1992, a proposed constitutional amendment may be approved to appear on the ballot if organizers gather one-fifth of their signatures from each of the state’s five congressional districts. However, in the 2000 reapportionment process, Mississippi lost one congressional seat due to a decrease in population.

Two decades and numerous ballot initiatives later, a medical marijuana group collected enough signatures to appear on the 2020 ballot. Voters approved the measure with an overwhelming 74% majority, allowing people with debilitating conditions like cancer, PTSD, epilepsy, and Parkinson’s disease to access medical marijuana. Mary Hawkins Butler, the Republican mayor of Madison (a suburb of Jackson), sued to block the initiative, arguing that organizers did not meet the signature requirement: instead of collecting an equal number of signatures from the mandatory five congressional districts, they could only collect signatures from four, because Mississippi has only had four since 2001.

The state Supreme Court ruled in Mayor Butler’s favor in 2021, voiding not just the medical marijuana initiative but also the state’s entire citizen-led ballot initiative process unless and until the legislature amended the relevant provision of the constitution. Justice Josiah Coleman, writing for the six justice majority, said, “the loss of congressional districts did, indeed, break (the ballot initiative provision) so that, absent amendment, it no longer functions.”

Every year since, the Republican-controlled legislature has killed bills to reinstate voters’ right to place measures on the ballot. The most recent bills, crafted by Republicans themselves, were extremely favorable to the legislature and introduced new barriers to citizen initiatives—and still did not receive consideration.

##Missouri

Democrats in Missouri successfully filibustered a bill that would make it harder to pass citizen-led ballot initiatives ahead of a potential measure to enshrine a right to abortion prior to viability. Under current law, a proposed constitutional amendment must be approved by a simple majority of votes cast statewide. The Republican-backed bill, SJR 74, would require proposed amendments to receive a majority of the votes cast statewide as well as a majority of the votes cast in at least a majority of the Congressional districts. Not only would the change institute additional onerous steps for organizers, but it would virtually ensure only conservative amendments succeed due to Missouri’s partisan gerrymandered districts.

In order to entice voters to support their amendment limiting direct democracy, the state GOP attempted to insert what opponents call “ballot candy”: unrelated and superfluous content intended to trick people into voting for a measure they would otherwise oppose. In this case, the ballot candy was a provision banning non-citizens from voting on constitutional amendments and another prohibiting foreign governments from sponsoring initiatives—both of which are already illegal in the state.

Democrats twice filibustered the bill, forcing the Republican supermajority to abandon the measure during the final day of session last week.

##Louisiana

Louisiana legislators advanced a proposal (HB 800), backed by Gov. Jeff Landry (R), earlier this month to call a convention to change the state’s 50-year-old constitution. The document is roughly 35,000 words longer than the average state constitution and has been amended more than 200 times. Most people would agree it could be trimmed and streamlined. However, the governor and his Republican allies are pursuing a rewrite for political purposes with little oversight.

First, the timeline: The legislature intends to convene a convention in the next three months, with a two week deadline and no time for public input. The 1973 convention, by contrast, held a series of public meetings across the state for an entire year before writing the state constitution.

Second, the participants: The 1973 convention was composed of elected delegates, many of them average citizens who took an interest in crafting their state’s charter. Landry’s planned convention would be limited to current lawmakers and delegates chosen by Landry himself.

Third, the guidelines: While HB 800 states that delegates cannot change the meaning of certain sections, like retirement benefits for public employees and pay for sheriffs, it lacks any other controls on what they can edit. Furthermore, experts question whether the limits in HB 800 would even be legally binding.

It’s not clear legislators even have the ability to restrict what is discussed during a constitutional convention. Legal experts have said once a convention is called, the entire document can be opened up and altered, regardless of what limitations the lawmakers place on it ahead of time.

Landry and his allies claim they do not have any immediate changes planned and would simply like to move portions of the constitution into the legal code as statutes. However, this would make it easier for the Legislature to change provisions it doesn’t like because of the lower threshold to edit a law versus the constitution. Rep. Beau Beaullieu (R), the author of HB 800, said last week that the provisions he wants to remove from the constitution include sales tax breaks for residential utilities, prescription drugs, and food purchased for home consumption.

“I think all of those tax items should be in statute,” he said. “If there is a better way to bring in revenue for the state, we need to be able to have that on the table.” …The sales tax breaks on food, residential utilities and prescription drugs could be more easily repealed if those provisions were shifted from the constitution into regular law as Beaullieu and Tucker suggested…

[S]ome conservatives in the Legislature want to expand the state sales tax base in exchange for lowering or eliminating the income tax… Advocates for low-income people have opposed proposals to swap out the income tax for broader sales taxes. Wealthy people and businesses pay the state income tax, but poor people do not. People who are struggling would carry a larger share of the financial burden of a sales tax on essentials like food, utilities and prescription drugs, according to the advocates.

One provision Beaullieu has committed to retaining untouched in the constitution: The “Defense of Marriage” section, defining marriage as between a man and woman, would be retained in case the U.S. Supreme Court overturns Obergefell v. Hodges, making same-sex marriage immediately unlawful again in Louisiana.

If HB 800 passes the Senate, and the convention successfully creates a new constitution, voters will be able to approve or reject the revised document in November.

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##Kansas

Despite voters overwhelmingly rejecting a constitutional amendment that would have allowed abortion restrictions in the state, Kansas Republicans passed several anti-abortion bills into law late last month, overriding the governor’s veto.

The first bill, HB 2436, makes it a crime to “coerce” someone into having an abortion. Democrats attempted to widen the scope of the bill to include all kinds of reproductive coercion, like pressuring someone to become or stay pregnant and prohibiting their access to birth control, and enshrine a right to “reproductive autonomy.” Republicans voted down the amendment.

The second bill, HB 2749, requires medical facilities and providers to (1) ask patients their reason for having an abortion and (2) report the data, including personal information about the patient, to the legislature every other year. Gov. Laura Kelly (D) agreed with the objections of Democrats and reproductive rights advocates, saying when she vetoed the bill that there is “no valid reason to force a woman to disclose to the legislature why she is seeking an abortion.”

• Democrats offered numerous amendments to HB 2749, including one to require men to report to the legislature their reasons for having a vasectomy and another requiring men to report why they are seeking treatment for erectile dysfunction. Republicans rejected all of them.

Finally, the Republican legislature overrode Kelly’s line-item veto allocating $2 million to the Pregnancy Compassion Awareness Program, created last year with a different veto override. The program is run by an anti-abortion group called the Kansas Pregnancy Care Network, which refers pregnant people to crisis pregnancy centers designed to use misleading information to discourage them from obtaining an abortion.

##Louisiana

Louisiana’s legislature is doubling down on its anti-abortion laws, passing bills to increase criminalization and refusing to add exemptions to its abortion ban.

Earlier this month, the Louisiana House took up a bill passed by the Senate that would make it a crime, punishable by jail time, to possess abortion-inducing medication. SB 276, sponsored by 23 Republicans and one Democrat, was initially written to create a punishment for coercing someone into an abortion without their knowledge or consent (e.g. spiking a drink). However, House legislators recently added an amendment to the bill that classifies mifepristone and misoprostol as Schedule IV substances alongside some opioids and benzodiazepines. A pregnant person possessing the drugs for their own use could not be charged, but others who intend to distribute them to pregnant people seeking an abortion or store them for their own potential future use would face up to ten years in prison.

“Neither is a drug of abuse or dependence, and that is what the controlled drug schedule is for,” said [emergency room Dr. Jennifer] Avegno of the abortion drugs. “It makes no scientific or medical sense to put these drugs in the same category as Xanax or Valium.”

Mifepristone is a drug that blocks a hormone called progesterone, which is necessary for a pregnancy to continue. Misoprostol causes uterine contractions, causing the body to expel the pregnancy tissue. Mifepristone is also used to treat Cushing’s disease, a hormonal disorder. Misoprostol is also used to induce labor, manage a miscarriage and in the treatment of ulcers. Neither are addictive. “People do not go around taking them and getting dependent and having bad outcomes because of it,” said Avegno. “It’s like saying your blood pressure medicine or insulin is a drug of abuse.”

A week later, Republicans on the House Criminal Justice Committee voted 7-4 to reject a bill to add rape and incest exceptions to the state’s total abortion ban. House Bill 164, written by Democratic Rep. Delisha Boyd, would have allowed girls younger than 17 to have abortions if they became pregnant as the result of sexual assault.

“That baby [in the womb] is innocent … We have to hang on to that,” said committee member Rep. Dodie Horton, R-Haughton, who voted against the bill. Rep. Lauren Ventrella, R-Greenwell Spring, also voted against the legislation, saying the proposed law would be difficult to enforce. Teenagers who had consensual sex might feign rape or incest in order to get access to abortion services, she suggested…

Dr. Neelima Sukhavasi, a Baton Rouge doctor specializing in obstetrics and gynecology, also implored the lawmakers to approve Boyd’s proposal. She and her colleagues have delivered babies for pregnant teenagers, including mothers as young as 13, since Louisiana’s abortion ban went into effect two years ago. These young pregnant people can experience health complications that affect them for the rest of their lives, Sukhavasi said, and sometimes don’t have the mental capacity to handle the births. “One of these teenagers delivered a baby while clutching a teddy bear,” she told the committee.

The Committee also killed three other bills: HB 56, to allow abortions in cases of spontaneous miscarriage or nonviable pregnancy; HB 63, to clarify that the removal of an ectopic pregnancy is not an abortion under state law; HB 293, to add protection for physicians who do not intend to induce abortion by prescribing certain medications.

##Texas

Meanwhile, in Texas—a state that pioneered the war on women and reproductive rights—a man initiated legal action to sue people who helped his former partner obtain an out-of-state abortion.

The man, Collin Davis, filed a petition in a state district court seeking permission to launch legal depositions to collect evidence for a potential lawsuit under a Texas law that contains civil liability for anyone who “aids and abets” an abortion. According to his lawyer, Jonathan Mitchell (who crafted the anti-abortion law), Davis is seeking to sue “co-conspirators and accomplices…involved in the murder of [his] unborn child.”

“Fathers of aborted fetuses can sue for wrongful death in states with abortion bans, even if the abortion occurs out-of-state,” he wrote. “They can sue anyone who paid for the abortion, anyone who aided or abetted the travel, and anyone involved in the manufacture or distribution of abortion drugs.”

Molly Duane, a senior staff attorney with the Center for Reproductive Rights, described Mitchell’s statement and general approach as misleading “fearmongering.”

“People need to understand that it is not a crime to leave Texas or any other state in the country for an abortion,” said Duane, who is working with lawyers from the firm Arnold & Porter to represent the woman and others targeted in the Davis case. “I don’t want people to be intimidated, but they should be outraged and alarmed.” Duane described the woman’s relationship with Davis as “toxic and harmful.”

Mitchell also represents a different man who pursued a similar claim last year: Marcus Silva engaged Mitchell to sue the friends of his estranged wife for allegedly helping her obtain abortion pills. Evidence later revealed that Silva knew about the plans beforehand and did not intervene, likely intending to use the threat of legal action as a way of forcing his partner to halt divorce proceedings.

Monday’s counterclaim illustrates, in painstaking detail, exactly how Silva—aided by Mitchell—allegedly deployed this tactic. It was only after Brittni’s abortion was complete that Silva revealed he knew about the plan and, according to the lawsuit, threatened to turn her in if she didn’t submit to his continued abuse. He even showed the police photographs of messages discussing the possibility of an abortion. “Once I finally got home with the girls he had been drinking and he told me that he knew,” Brittni texted one friend. “He’s using it against me.” In another message, she wrote, “Now he’s saying if I don’t give him my ‘mind body and soul’ until the end of the divorce, which he’s going to drag out, he’s going to make sure I go to jail for doing it.” […]

The counterclaim points out another flaw in his argument: Silva himself “is responsible for the alleged injury for which he seeks to recover.” He “knew that Brittni planned to terminate her alleged pregnancy and acquiesced in accepting Brittni’s actions,” so “it would be unconscionable to permit him to benefit by changing his position now.” His claims, in short, are barred “by unclean hands,” because he effectively entrapped his estranged wife—covertly discovering her plan to terminate the pregnancy, then allowing her to go through with it for the express purpose of blackmailing her into staying with him.

##Indiana

A three-judge panel of the Indiana Court of Appeals last month unanimously recognized a religious freedom challenge to the state’s complete ban on abortion.

The case, brought by Hoosier Jews for Choice and four anonymous women of various faiths, alleges that the ban interferes with “their sincere religious beliefs that require and direct them to obtain abortions” criminalized since the law took effect in 2023. According to Jewish law, a fetus does not have personhood until birth, and abortion is required if the pregnancy endangers the life or health of the mother.

Brief of Hoosier Jews for Choice (and other plaintiffs): As indicated by the declarations of numerous rabbis, Judaism teaches that a fetus becomes a living person only at birth, and prior to that is considered part of the woman’s body, without independent rights. Abortion should occur and is mandated to end a pregnancy that may cause serious consequences to a woman’s mental or physical heath. Judaism also recognizes that physical health risks are not limited to those likely to cause substantial and irreversible impairment of a major bodily function. Judaism stresses the necessity of protecting the physical and mental health of the woman—a life—over the potential for life present in a zygote, embryo, or fetus. Therefore, restrictions that prevent a woman from obtaining an abortion where compelled by Jewish law, which mandates that the woman act to protect her physical or mental health, impose a substantial burden on that person’s religious exercise.

Under Indiana’s Religious Freedom Restoration Act (RFRA), “a governmental entity may not substantially burden a personʹs exercise of religion,” defined to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” This means that arguments about whether plaintiffs are strictly observant are irrelevant; the law protects sincerely held religious views regardless of whether that view is idiosyncratic or unorthodox. However, even a law that imposes a substantial burden on the exercise of religion can be enforced if it is “the least restrictive means of furthering [a] compelling governmental interest” (the strict scrutiny test).

The state argued that abortion does not carry “religious significance” and, even if it did, the abortion ban satisfies strict scrutiny because it is “sufficiently narrowly tailored” to “further the State’s interest” in “protecting human lives in the womb.” Throughout Indiana’s brief, the state attempts to use science to back up fetal personhood, extending developmental physiology to make unfounded claims that protected life unquestionably begins at conception:

In lower courts, the State’s compelling interest is not up for debate. In Cheaney

v. State, the Indiana Supreme Court held that the State’s interest in protecting unborn children is “valid and compelling” from “the moment of conception.” …A basic understanding of biology supports these holdings. “That human fetuses are human beings is a scientific fact, not a theological claim.” Regardless whether an individual person believes this, “the scientific consensus” is that “[d]evelopment begins at fertilization,” after which the newly created “unicellular zygote divides many times and becomes progressively transformed into a multicellular human being through cell division, migration, growth, and differentiation.” …. Science thus tells us that “[t]he act of performing an induced abortion during any stage of pregnancy, from fertilization up to birth, ends the life of an innocent human being.” The State’s interest in protecting unborn fetal life at any stage from intentional destruction accordingly is nothing less than “compelling.”

A panel of the Indiana Court of Appeals—made up of a Republican appointee and two Democratic appointees—unanimously ruled against the state, upholding a lower court’s injunction against the abortion ban as it applies to the plaintiffs. In the process, the court laid out a path for religious freedom challenges to abortion bans in other states and at the federal level.

The trial court found that absent a preliminary injunction, Plaintiffs would be irreparably harmed by the loss of their religious freedoms guaranteed by RFRA. A loss of First

Amendment freedoms, which include the right to free exercise of religion, “for even minimal periods of time, unquestionably constitutes irreparable injury.”... Without a preliminary injunction, Plaintiffs will suffer the loss of their right to exercise their sincere religious beliefs by obtaining an abortion when directed by their religion and prohibited by the Abortion Law. They also have shown their sexual and reproductive lives will continue to be restricted absent the injunction and as a result of the Abortion Law.

• Briefs can be found under case number 22A-PL-2938 on Indiana’s Appellate docket

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#Trump immunity

On Thursday, the U.S. Supreme Court heard arguments in Trump’s challenge to Special Counsel Jack Smith’s prosecution for crimes committed while attempting to overturn the 2020 election.

###Background

A grand jury indicted Trump in August 2023 on charges of obstructing Congress’ certification of the electoral vote, attempting to defraud the U.S. through obstructing the certification, and participating in a conspiracy to deprive citizens of the right to vote and have one’s vote counted. Trump filed a lawsuit to block Smith’s prosecution late last year, arguing that he is immune to all criminal charges for actions taken while president. A three-judge panel of the DC appellate court quickly dismissed the idea, writing, “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant…any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”

We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.

At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential

immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment. In so holding, we act, “not in derogation of the separation of powers, but to maintain their proper balance.” See Fitzgerald, 457 U.S. at 754.

###Arguments

Representing Trump: John Sauer

Representing Smith: Michael Dreeben

Links Transcript and audio

Sauer opened arguments by claiming that allowing a former president to be prosecuted for “official acts” would expose “every current president” to “de facto blackmail and extortion by his political rivals while he is still in office.” The conservative members of the court latched onto Sauer’s distinction between official and personal acts, saying that they do not have the information to determine what is and is not an official act: “What concerns me is, as you know, the court of appeals did not get into a focused consideration of what acts we're talking about,” Chief Justice John Roberts told Dreeban after an extended back-and-forth worrying about whether prosecutors bringing charges against former presidents “will act in good faith.”

Justice Gorsuch echoed Roberts’ concern about unfair prosecution, saying he is “concerned about future uses of the criminal law to target political opponents based on accusations about their motives.” Justice Kavanaugh, meanwhile, suggested that Congress must include a “clear statement” in legal statutes saying that they directly apply to the president:

Kavanaugh: Well, it's a serious constitutional question whether a statute can be applied to the president's official acts. So wouldn't you always interpret the statute not to apply to the president, even under your formulation, unless Congress had spoken with some clarity?

Dreeben: I don't think -- I don't think across the board that a serious constitutional question exists on applying any criminal statute to the president.

Kavanaugh: The problem is the vague statute, you know, obstruction and 371, conspiracy to defraud the United States, can be used against a lot of presidential activities historically with a creative prosecutor who wants to go after a president.

The most eyebrow-raising statements came from Justice Alito, who said that holding presidents accountable for criminal acts would only encourage more criminal acts to stay in power:

Alito: All right. Let me end with just a question about what is required for the functioning of a stable democratic society, which is something that we all want. I'm sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully if that candidate is the incumbent.

Dreeben: Of course.

Alito: All right. Now, if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy? And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail.

Dreeben: So I think it's exactly the opposite, Justice Alito. There are lawful

mechanisms to contest the results in an election. And outside the record but I think of public knowledge, Petitioner and his allies filed dozens of electoral challenges and, in my understanding, has lost all but one that was not outcome determinative in any respect. There were judges that -- that said, in order to sustain substantial claims of fraud that would overturn an election result that's certified by a state, you need evidence, you need proof. And none of those things were manifested. So there is an appropriate way to challenge things through the courts with evidence. If you lose, you accept the results. That has been the nation's experience. I think the Court is well familiar with that.

The liberal justices were highly skeptical of Sauer’s arguments, with Justice Sotomayor getting him on record (again) that a president could be immune from prosecution for assassinating a political rival.

Justice Barrett seemed amenable to granting some form of immunity for “official acts,” but allowing Smith’s prosecution to move forward for acts classified as “private”:

Barrett: So you concede that private acts don't get immunity?

Sauer: We do.

Barrett: Okay. So, in the Special Counsel's brief on pages 46 and 47, he

urges us, even if we were to decide or assume that there was some sort of immunity for official acts, that there were sufficient private acts in the indictment for the case to go back and the trial to begin immediately. And I want to know if you agree or disagree about the characterization of these acts as private. ‘Petitioner turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results.’ Private?

Sauer: As alleged. I mean, we dispute the allegation, but --

Barrett: Of course.

Sauer: -- that sounds private to me.

One possible outcome (though definitely not certain) is that the majority of justices will deny absolute immunity for Trump, but may send the case back to the lower courts to determine whether any of Trump’s crimes fall under an “official act” that cannot be prosecuted. However, even if the court denies all immunity—for all acts—their timing will be critical to whether Trump faces trial before the election.

#Emergency abortion care

On Wednesday, the Supreme Court heard arguments in the Biden Administration’s challenge to Idaho’s anti-abortion law preventing doctors from providing a standard of medical care consistent with federal law.

###Background

Idaho's Defense of Life Act, which took effect in 2022, makes it a crime, punishable by up to five years in prison, to perform or assist in performing an abortion in the state. The law contains an exception when a physician determines in “good faith medical judgment” that the abortion “was necessary to prevent the death of the pregnant woman,” but as we’ve seen in other states , this exception has little effect in practice. In Idaho, doctors are unable to provide an abortion to preserve a woman’s health and have resorted to airlifting patients to neighboring states for emergency pregnancy terminations.

“Is she sick enough? Is she bleeding enough? Is she septic enough for me to do this abortion and not risk going to jail and losing my license?” Souza said doctors ask themselves, during a press call ahead of the Supreme Court hearing. “And when the guessing game gets too uncomfortable, we transfer the patients out at a very high cost to another state where the doctors are allowed to practice medicine.” Sending patients away is a wasteful use of hospital resources and is dangerous to patients, he added.

The U.S. Department of Justice sued Idaho shortly after the law took effect, arguing that the federal Emergency Medical Treatment & Labor Act (EMTALA) preempts the state’s ban on abortion care in emergency situations. According to EMTALA, any hospital with an emergency room that receives Medicare funds (which is virtually all hospitals) is required to provide stabilizing treatment to all patients—even when that treatment is an abortion. Both the district and appellate courts sided with the federal government, issuing and upholding an injunction blocking Idaho’s law.

Idaho appealed to the U.S. Supreme Court, which agreed to hear the case and lifted the injunction, putting the abortion ban back into effect.

###Arguments

Representing Idaho: Idaho Solicitor General Joshua Turner

Representing the federal government: U.S. Solicitor General Elizabeth Prelogar

Links: Transcript and audio

Anyone who has paid attention to the Supreme Court could accurately guess where most of the justices stand in the case. The three liberals—Justices Kagan, Sotomayor, and Jackson—were highly skeptical of Turner’s arguments, pressing him to explain why Idaho’s law isn’t subject to the Supremacy Clause of the U.S. Constitution:

Justice Jackson: I had thought that this case was about preemption and that the entirety of our preemption jurisprudence is the notion that the federal government in certain circumstances can make policy pronouncements that differ from what the state may want or what anybody else may want, and the Supremacy Clause says that what

the federal government says takes precedent. So you've been saying over and over again Idaho is, you know, a state and we have healthcare policy choices and we've set a standard of care in this situation. All that's true. But the question is to what extent can the federal government say: No, in this situation, our standard is going to apply? That's what the government is saying, and I don't understand how, consistent with our preemption jurisprudence, you can be saying otherwise.

Turner: Yeah, if I can put a finer point on it. I don't think the question is necessarily what can Congress do but what did Congress do here with EMTALA, and --

Justice Jackson: All right. So what did it do here?

Turner: It opened the Medicare Act by saying the federal government shall not control the practice of medicine. And then, in EMTALA itself, it says state laws are not preempted. And then, when you get to --

Jackson: State laws are only preempted to the extent of a direct conflict. And so now we are identifying a direct conflict. So why is preemption not working there?

Turner: Whether there's a direct conflict based on this Court's longstanding precedent includes clear statement canons that we think we win on the text…So the Spending Clause condition nature of this requires Congress to speak clearly and unequivocally that it is imposing a abortion mandate. That's not here in the statute.

Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch appeared to agree with Turner, expressing skepticism that EMTALA—as spending legislation that encapsulates an agreement between the government and hospitals that receive Medicare funds—should be allowed to interfere with an outside party: the state. “How does the Congress’ ability to do that authorize it to impose duties on another party that has not agreed to accept this money?” Alito asked. He later went on an extended line of questioning designed to defend the “unborn child,” who, he contended, takes precedence over the life of the mother:

Alito: We've now heard an hour and a half of argument on this case, and one potentially very important phrase in EMTALA has hardly been mentioned. Maybe it hasn't even been mentioned at all. And that is EMTALA's reference to the woman's

"unborn child." Isn't that an odd phrase to put in a statute that imposes a mandate to perform abortions? Have you ever seen an abortion statute that uses the phrase "unborn child"?

Prelogar: It's not an odd phrase when you look at what Congress was doing in 1989. There were well-publicized cases where women were experiencing conditions, their own health and life were not in danger, but the fetus was in grave distress and hospitals weren't treating them. So what Congress did --

Alito: Well, have you seen abortion statutes that use the phrase "unborn

child"? Doesn't that tell us something?

Prelogar: It tells us that Congress wanted to expand the protection for

pregnant women so that they could get the same duties to screen and stabilize when they have a condition that's threatening the health and well-being of the unborn child. But what it doesn't suggest is that Congress simultaneously displaced the independent preexisting obligation to treat a woman who herself is facing grave life and health consequences.

…

Alito: Under (e)(1), the term "emergency medical condition" is defined to include a condition that places the health of the woman's unborn child in serious jeopardy. So, in that situation, the hospital must stabilize the threat to the unborn child. And it seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child, but performing an abortion is antithetical to that duty…Doesn't what I've read to you show that the statute imposes on the hospital a duty to the woman certainly and also a duty to the child? And it doesn't tell the hospital how it is to adjudicate conflicts between those interests and it leaves that to state law… what you're asking us to do is to construe this statute that was enacted back during the Reagan administration and signed by President Reagan to mean that there's an obligation under certain circumstances to perform an abortion even if doing that is a violation of state law.

The result of the case is likely to come down to Chief Justice John Roberts and Justice Amy Coney Barrett, both of whom questioned how doctors were supposed to determine when it is legal to provide an abortion under Idaho’s law. In the following exchange, Justice Sotomayor went through a long list of examples of women who were denied abortions and forced to bleed out while they waited for doctors to be “medically certain” that they were actively dying:

Sotomayor: Let me go to another one. Imagine a patient who goes to the

ER with PPROM 14 weeks. Again, abortion is the excepted. She's up -- she was in and out of the hospital up to 27 weeks. This particular patient, they tried -- had to deliver her baby. The baby died. She had a hysterectomy, and she can no longer have children. All right? You're telling me the doctor there couldn't have done the abortion earlier?

Turner: Again, it goes back to whether a doctor can in good-faith medical

judgment make --

Sotomayor: That's a lot for the doctor to risk when Idaho law

changed to make the issue whether she's going to die or not or whether she's going to have a serious medical condition. There's a big daylight by your standards, correct?

Turner: It is very case by case.

Sotomayor: That's the problem, isn't it?

Barrett: Counsel, I'm kind of shocked actually because I thought your own

expert had said below that these kinds of cases were covered.

Turner: Yeah.

Barrett: And you're now saying they're not?

Turner: No, I'm not saying that. That's just my point, Your Honor, is that --

Barrett: Well, you're hedging. I mean, Justice Sotomayor is asking you ‘would this be covered or not’, and it was my understanding that the legislature's witnesses said that these would be covered.

Turner: Yeah, and those doctors said, if they were exercising their medical judgment, they could in good faith determine that life-saving care was necessary. And that's my point. This is a subjective standard.

Barrett: But some doctors might reach a contrary conclusion, I think

…What if the prosecutor thought differently? What if the prosecutor thought, well, I don't think any good-faith doctor could draw that conclusion, I'm going to put on my expert?

Turner: And that, Your Honor, is the nature of prosecutorial discretion

#Homelessness

On Monday, the Supreme Court heard arguments in a case that could allow localities to jail people experiencing homelessness even if no available shelter exists.

###Background

The city of Grants Pass, in southern Oregon, has experienced a “population explosion” that far outpaced the development of affordable housing. With a minuscule vacancy rate and high rental costs, hundreds of residents became homeless. Instead of addressing the crisis with direct solutions like homeless shelters, increased housing, and rental assistance programs, city leaders crafted a multi-layered system that effectively makes it a crime to be homeless by fining, then jailing, people who sleep outdoors with as little as a blanket.

Excerpt from the respondent’s brief: Two “anti-camping” ordinances prohibit “occupy[ing] a campsite” on “any … publicly-owned property” at any time, with “campsite” defined expansively

as “any place where bedding, sleeping bag, or other material used for bedding purposes … is placed … for the purpose of maintaining a temporary place to live.” The ordinances also prohibit sleeping in a car in a parking lot for two or more consecutive hours between midnight and 6:00 am. And an “anti-sleeping” ordinance prohibits sleeping “on public sidewalks, streets, or alleyways at any time” or “in any pedestrian or vehicular entrance to public or private property abutting a public sidewalk.”

These ordinances collectively “prohibit individuals from sleeping in any public space in Grants Pass while using any type of item that falls into the category of ‘bedding’ or is used as ‘bedding’”—language that extends far beyond “camping” to prohibit sleeping with so much as a blanket or “a bundled up item of clothing as a pillow.”

The president of Grants Pass City Council even admitted that the scheme’s goal was to “make it uncomfortable enough for [homeless persons] in our city so they will want to move on down the road.” This seems to also be the principle of the only transitional housing service in town, with only about 100 beds, that forces participants to attend Christian religious services, requires them to work full-time without pay, discriminates against the disabled and LGBTQ+, and limits stays to 30 days.

The district court and 9th Circuit ruled against Grants Pass, holding that the city’s policies violate the Eighth Amendment’s prohibition on cruel and unusual punishment by (a) punishing people based on an involuntary status and (b) imposing excessive fines that are “grossly disproportionate to the gravity of the offense.” The most relevant case law comes from the U.S. Supreme Court itself, which ruled in Robinson v. California (1962) that the criminalization of the status of being an addict violates the Eighth Amendment. There, the court ruled, an act—using drugs—could be punished, but a person’s condition as an addict may not. As summarized by the respondent’s brief:

The district court further noted this Court’s recognition in the cruel and unusual punishment context that “‘even one day in prison would be cruel and unusual punishment for the “crime” of having a common cold.’” Id. (quoting Robinson v. California, 370 U.S. 660, 667 (1962)). In other words, the district court explained, “[a]ny fine is excessive if it is imposed on the basis of status and not conduct.” Id. Here, the conduct for which the class members face punishment—“sleep[ing] outside beneath a blanket because they cannot find shelter”—is “inseparable from their status as homeless individuals, and therefore, beyond what the City may constitutionally punish.”

• Note that neither court barred Grants Pass from implementing restrictions on entire homeless camps (e.g. with tents) in public areas, on the time of day that bedding may be used, or on the amount of bedding allowed per individual. Furthermore, according to a previous 9th Circuit ruling (Martin v. Boise), an individual may be cited under anti-camping laws when shelter beds are available but they do not accept the offer.

###Arguments

Representing Grants Pass: Theane Evangelis

Representing respondents (a class of plaintiffs of involuntarily unhoused persons living in Grants Pass): Kelsi Corkran

Links: Transcript and audio

The court’s three liberal justices unsurprisingly came out swinging against the city, questioning how it squares criminalizing homelessness with the precedent in Robinson that a status cannot be punished:

Kagan: Could you criminalize the status of homelessness?

Evangelis: Well, I don't think that homelessness is a status like drug

addiction, and Robinson only stands for that.

Kagan: Well, homelessness is a status. It's the status of not having a home.

Evangelis: I actually -- I disagree with that, Justice Kagan, because it is

so fluid, it's so different. People experiencing homelessness might be one day without shelter, the next day with. The federal definition contemplates various forms.

Kagan: At the period with which -- in the period where -- where you don't

have a home and you are homeless, is that a status?

Evangelis: No.

When Evangelis attempted to argue that the law doesn’t criminalize homelessness, just sleeping outside, Kagan fired back that unhoused people cannot avoid a “biological necessity” like sleeping just because they don’t have a shelter over their head:

Evangelis: The statute does not say anything about homelessness. It's a

generally applicable law. It's very important that it applies to everyone--

Kagan: Yeah, I got that.

Evangelis: -- even people who are camping.

Kagan: But it's a single person with a blanket. You don't have to have

a tent. You don't have to have a camp. It's a single person with a blanket.

Evangelis: And sleeping in public is considered conduct. And this Court --

this Court in Clark discussed that, that that is conduct.

Kagan: Well, sleeping is a biological necessity. It's sort of like breathing. I

mean, you could say breathing is conduct too, but, presumably, you would not think that it's okay to criminalize breathing in public.

Evangelis: I would like to point to the federal regulations which I brought up.

Kagan: And for a homeless person who has no place to go, sleeping in

public is kind of like breathing in public.

After Evangelis attempted to argue that the law applies to everyone, Justice Sonya Sotomayor pointed out that Grants Pass police officers admitted they selectively fine and arrest homeless people who fall asleep outside:

Evangelis: We think Robinson was wrongly decided and should not be extended, but we don't think that the Court needs to overrule it here because it's still saying --

Sotomayor: All right. Assuming it's there, it prohibits you criminalizing homelessness, right? So what you do is say only homeless people who sleep outdoors will be arrested? That's the testimony of your chief of police and two or three officers, which is, if you read the crime, it's only stopping you from sleeping in public for the purpose of maintaining a temporary place to live. And the police officers testified that that means that if a stargazer wants to take a blanket or a sleeping bag out at night to watch the stars and falls asleep, you don't arrest them. You don't arrest babies who have blankets over them. You don't arrest people who are sleeping on the beach, as I tend to do if I've been there a while. You only arrest people who don't have a home. Is that correct?

Evangelis: So, no. These laws are generally applicable. They apply to everyone.

Most of the conservative justices appeared ready to side with the city, with Chief Justice John Roberts comparing Corkran’s argument that homelessness is a status to saying that being a “bank robber” is a status. Justices Samuel Alito and Clarence Thomas embraced Evangelis’ claim that because the law does not explicitly state it is illegal to be homeless, it must not be criminalizing homelessness. And Justice Brett Kavanaugh worried that the 9th Circuit’s limitation on banning homeless people from sleeping outside is handcuffing cities from creating “effective homeless policy.”

Justices Amy Coney Barrett and Neil Gorsuch posited what some might call a middle ground that seemed appealing to Kavanaugh, as well: unhoused people charged under Grants Pass law could invoke the necessity defense, allowing a person to claim in court that they had no choice but to violate the law. The problem with this approach, as mentioned by Justice Kagan, would be the increased police interactions with unhoused people and hardships faced by having to go to court and defend themselves against a law they had no choice but to break.

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#Hush money case

Brought by: Manhattan District Attorney Alvin Bragg

Overseen by: Judge Juan Merchan

Charges: 34 felony counts of falsifying business records

Just a month before the 2016 election, Trump orchestrated a scheme to pay adult film actress Stormy Daniels for her silence about an alleged affair in the mid-2000s. His lawyer and fixer, Michael Cohen, transferred $130,000 from his own home equity line of credit into a Delaware shell company and wired it to Daniels. Trump then reimbursed Cohen when he was in office, including an additional $180,000 to offset taxes and a $60,000 bonus.

Fast forward to 2018: Cohen pleaded guilty to eight criminal charges related to the payment to Daniels (as well as a payment to former Playboy model Karen McDougal). The payments, Cohen admitted, were made at Trump’s behest “for the principal purpose of influencing the election.” Cohen was sentenced to three years in prison but was released early due to Covid-19 in 2020 to serve the remainder of his sentence under house arrest.

Former Manhattan District Attorney Cyrus Vance Jr. opened an investigation into the Trump Organization following Cohen’s guilty plea. After years of delay and legal wrangling, current D.A. Alvin Bragg impaneled a grand jury last year, ultimately indicting Trump with 34 felony counts of falsifying business records in the first degree. The charges stem from Trump’s decision to list the payments in business records as corporate legal expenses with the intent to disguise the hush money payments:

The defendant DONALD J. TRUMP repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election.

From August 2015 to December 2017, the Defendant orchestrated a scheme with

others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant’s electoral prospects. In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York. The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.

Critically, the grand jury found reason to believe that Trump’s conduct rose to the felony level. Falsification of business records is normally a misdemeanor offense under New York law. But when done with the “intent to commit another crime or to aid or conceal the commission thereof,” such conduct rises to the level of a felony. Bragg alleges that Trump intended to violate two election laws: The first, the Federal Election Campaign Act, by making unlawful campaign contributions (the hush money payments) at a candidate’s direction, and the second, a New York election law banning efforts “to promote or prevent the election of any person to a public office by unlawful means”.

Judge Merchan issued a gag order last month prohibiting Trump from attacking witnesses, prosecutors, and jurors. “The uncontested record reflecting the Defendant’s prior extra-judicial statements establishes a sufficient risk to the administration of justice…and there exists no less restrictive means to prevent such risk,” Merchan wrote. He later expanded the order, at the prosecution’s request, to include “family members of any counsel, staff member, the Court or the District Attorney.” Trump had spent weeks attacking Merchan’s daughter for her work on Democratic digital campaigns and a fake social media account made to appear anti-Trump.

Jury selection for the expected 6-8 week trial concluded on Friday with opening arguments set to begin today. Prosecutors separately asked Merchan to sanction Trump for violating the gag order with social media posts referencing Michael Cohen and Stormy Daniels, both witnesses in the trial. A hearing on the matter is set for April 23.

• Further reading: “Judge in Trump case orders media not to report where potential jurors work,” AP, “Trump jurors face MAGA's microscope,” Axios, “Trump juror quits over fear of being outed after Fox News host says she should scare Trump,” Salon.

#Federal election obstruction case

Brought by: Special Counsel Jack Smith

Overseen by: Judge Tanya Chutkan

Charges: Conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights

Special Counsel Jack Smith was appointed by U.S. Attorney General Merrick Garland in November 2022 to investigate Trump’s attempts to overturn the 2020 presidential election, culminating in the January 6 insurrection. A grand jury indicted Trump in August 2023 on charges of obstructing Congress’ certification of the electoral vote, a scheme to defraud the U.S. through obstructing the certification, and a conspiracy to deprive citizens of the right to vote and have one’s vote counted.

Despite having lost, the Defendant was determined to remain in power. So for more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false. But the Defendant repeated and widely disseminated them anyway—to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election…

Shortly after election day, the Defendant…pursued unlawful means of discounting legitimate votes and subverting the election results. In so doing, the Defendant perpetrated three criminal conspiracies…Each of these conspiracies—which built on the widespread mistrust the Defendant was creating through pervasive and destabilizing lies about election fraud—targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election.

Six co-conspirators were mentioned in the indictment. Though unnamed, because they were not charged, five were identified by public information: Trump lawyer Rudy Giuliani, Trump lawyer John Eastman, Trump lawyer Sidney Powell, former DOJ official Jeffrey Clark, and pro-Trump lawyer Kenneth Chesebro.

Judge Chutkan set an aggressive schedule, planning the trial for March 2024. However, in December 2023, Trump filed a lawsuit before the DC Circuit Court of Appeals, arguing that he is immune to all criminal charges for actions as president. A three-judge panel heard arguments in the case and quickly issued an opinion denying Trump immunity in February.

Trump appealed to the U.S. Supreme Court, which scheduled arguments for April 25. A ruling may not come until the end of the court’s term in July, leaving the trial in limbo and likely delaying it past the 2024 election.

#Classified documents case

Brought by: Special Counsel Jack Smith

Overseen by: Judge Aileen Cannon

Charges: 32 counts of violating the Espionage Act by retaining and failing to deliver national defense documents, 6 counts of obstructing justice and withholding or altering documents and records, and 2 counts of making false statements

The FBI began investigating Trump’s handling of government documents in March 2022 after the National Archives and Records Administration (NARA) notified the Justice Department that Trump kept classified documents after he was out of office. Trump vowed that he had returned all documents in June 2022 after receiving a grand jury subpoena. However, the FBI soon learned that he had intentionally moved documents to hide them, leading to a search of Mar-a-Lago in August 2022. Agents recovered over 300 classified documents including ones “regarding defense and weapons capabilities of both the United States and foreign countries,” “United States nuclear programs,” “and plans for possible retaliation in response to a foreign attack.”

U.S. Attorney General Merrick Garland appointed Special Counsel Jack Smith in November 2022. A little over half a year later, in June 2023, a grand jury indicted Trump for violating the Espionage Act by keeping classified documents, obstructing justice by hiding the documents, and making false statements when he lied to investigators about the documents. An aide to Trump named Walt Nauta was also charged with obstructing justice and making false statements.

After Trump’s presidency, the Mar-a-Lago Club was not an authorized location for the storage, possession, review, display, or discussion of classified documents. Nevertheless, Trump stored his boxes containing classified documents in various locations at the Mar-a-Lago Club—including in a ballroom, a bathroom and shower, an office space, his bedroom, and a storage room.

The indictment states that on at least two occasions, Trump showed classified documents to others. Smith obtained an audio recording of one of these incidents, during which Trump “showed and described a ‘plan of attack’” to multiple people, admitting that “as president I could have declassified it,” and, “Now I can’t, you know, but this is still a secret.”

In the midst of the FBI’s investigation, Trump allegedly attempted to “conceal his continued retention of classified documents” by suggesting that his attorneys lie to the FBI, suggesting that his attorneys hide the documents, directing Nauta to hide documents, and lying to the FBI that all documents had been turned over.

A later superseding indictment charged Carlos De Oliveira, the maintenance chief at Mar-a-Lago, with destroying or concealing a record, obstructing justice, and making false statements for attempting to help Trump and Nauta delete security camera footage at Mar-a-Lago.

Southern District of Florida Judge Aileen Cannon, a Trump appointee with a history of ruling in his favor, was randomly assigned to preside over the case. Cannon has little criminal trial experience and has been routinely criticized for her decisions in the complex classified documents case. Even the conservative 11th Circuit Court of Appeals reversed one of her rulings, writing that “we cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so.”

A trial was tentatively scheduled for May 2024, but months of delay by Trump combined with Cannon’s leisurely pace has led to the near guarantee of the trial being postponed until at least fall 2024. Trump, as usual, asked to delay an upcoming May deadline to review classified information in the case due to the ongoing trial in New York. “The May 9 deadlines will require lengthy classified submissions and extensive time in a SCIF to prepare and discuss those submissions, which is time President Trump and his attorneys simply do not have during the trial that is about to begin in New York,” his lawyers wrote.

Jack Smith replied that “[t]he defendants have had ample notice that these deadlines would be scheduled and have already had months to complete the work,” urging Cannon to “reject the defendants’ latest delay tactic.”

The claimed rights to counsel of choice and adequate preparation are not implicated at all here because defendants’ counsel of choice has had months to prepare the submissions at issue…Each time the Court sets a new deadline in this case and attempts to keep it moving toward trial, the defendants reflexively ask for an adjournment. That must stop.

#Georgia racketeering case

Brought by: Fulton County District Attorney Fani Willis

Overseen by: Judge Scott McAfee

Charges: 1 count of violating the Racketeer Influenced and Corrupt Organizations Act, 1 count of conspiracy to commit impersonating a public officer, 2 counts of conspiracy to commit forgery in the first degree, 2 counts of false statements and writings, 2 counts of conspiracy to commit false statements and writings, 1 count of filing false documents, and 1 count of conspiracy to commit filing false documents

Fulton County District Attorney Fani Willis began investigating Trump and his associates shortly after she took office in January 2021 for their involvement in a scheme to overturn Georgia’s 2020 election results. By May, she had impaneled a special purpose grand jury to issue subpoenas to collect evidence and testimony from witnesses. A separate grand jury with the power to indict brought charges against Trump and 18 other co-defendants in August 2023.

The defendants, the indictment alleges, “refused to accept that Trump lost [the election], and they knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump.” The charges are based on Georgia’s Racketeer Influenced and Corrupt Organizations Act (RICO) modeled after a federal law of the same name, originally used to dismantle criminal enterprises like the mob. In this case, D.A. Willis must prove under RICO that Trump and his co-defendants organized to engage in criminal activity—like conspiracy to commit forgery and filing false documents—to reach a common objective: overturning the election.

At all times relevant to this Count of the Indictment, the Defendants, as well as others not named as defendants, unlawfully conspired and endeavored to conduct and participate in a criminal enterprise in Fulton County, Georgia, and elsewhere. Defendants Donald John Trump…[and others]...constituted a criminal organization whose members and associates engaged in various related criminal activities including, but not limited to, false statements and writings, impersonating a public officer, forgery, filing false documents, influencing witnesses, computer theft, computer trespass, computer invasion of privacy, conspiracy to defraud the state, acts involving theft, and perjury.

The indictment revolves around four interconnected axes: [a] efforts to pressure Georgia state officials to overturn the election (e.g., by throwing out ballots), [b] the creation of a slate of fake electors, [c] a breach of voting equipment in Coffee County, and [d] the harassment of Fulton County election workers.

• Those whose charges are primarily based on schemes [a] and [b] are Trump lawyer Rudy Giuliani, Trump lawyer John Eastman, former White House Chief of Staff Mark Meadows, lawyer Kenneth Chesebro, former DOJ official Jeffrey Clark, Trump campaign legal advisor Jenna Ellis, campaign staffer Mike Roman, lawyer Ray Smith III, lawyer Robert Cheeley, state GOP chair and fake elector David Shafer, and state senator and fake elector Shawn Still.

• Those whose charges are primarily based on scheme [c] are Trump lawyer Sidney Powell, Coffee County GOP leader and fake elector Cathy Latham, Coffee County elections supervisor Misty Hampton, and bail bondsman Scott Hall.

• Those whose charges are primarily based on scheme [d] are publicist Trevian Kutti, pastor Steve Lee, and Black Voices for Trump leader Harrison Floyd.

In January, defendant Mike Roman (and later, Trump) accused D.A. Willis of a conflict of interest arising from a romantic relationship with special prosecutor Nathan Wade. According to Roman—and based on allegations from Wade’s estranged wife—Wade purchased vacations for himself and Willis after being hired to work on the Trump case, constituting an improper benefit for Willis. Judge Scott McAfee ruled in March that Roman’s team did not prove an actual conflict of interest but due to a “significant appearance of impropriety” either Willis or Wade must leave the case. Wade resigned from the case the same day.

Trump is currently appealing McAfee’s decision to allow Willis to remain on the case.

#Civil fraud case

Brought by: New York Attorney General Letitia James

Overseen by: Judge Arthur Engoron

Charges: No criminal charges; civil complaint alleging seven violations of New York Executive Law § 63(12)—persistent and repeated fraud, falsifying business records, conspiracy to falsify business records, issuing false financial statements, conspiracy to falsify false financial statements, insurance fraud, and conspiracy to commit insurance fraud.

James began her investigation of the Trump Organization in early 2019, pursuing allegations that Trump regularly overvalued his properties to lenders to receive larger loans and undervalued his properties to tax officials to reduce real estate taxes.

After deposing Chief Financial Officer Allen Weisselberg, Trump’s adult children, and Trump himself, James brought a civil lawsuit in 2022 alleging seven violations of New York Executive Law including engaging in “a conspiracy to issue false financial statements,” “a conspiracy to falsify business records," and “a conspiracy to commit insurance fraud.”

These acts of fraud and misrepresentation grossly inflated Mr. Trump's personal net worth as reported in the Statements by billions of dollars and conveyed false and misleading impressions to financial counterparties about how the Statements were prepared . Mr. Trump and the Trump Organization used these false and misleading Statements repeatedly and persistently to induce banks to lend money to the Trump Organization on more favorable terms than would otherwise have been available to the company, to satisfy continuing loan covenants, and to induce insurers to provide insurance coverage for higher limits and at lower premiums

The trial lasted 11 weeks, during which time Judge Engoron heard testimony from current and former Trump Organization employees, expert witnesses, bank staffers, and the Trump family. Trump spent most of the trial attacking Engoron, Engoron’s wife, AG James, and court staff. The latter action led to a gag order and two violations totaling $15,000.

In February 2024, Engoron ruled that Trump fraudulently inflated his assets on statements of financial condition by hundreds of millions or billions of dollars. The judge issued a $354.8 million judgment against Trump, totaling the approximate amount that he illegally gained from lying about his assets, plus an additional $98 million interest.

Despite claiming that he had more than enough “cash on hand” to pay the judgment, Trump asked the court to lower the bond amount while he pursued an appeal. Last month, a panel of state appellate division judges reduced the bond to $175 million in an unexplained order, saving him from having to pay the full amount or have his assets (e.g. properties) seized by the NY Attorney General. Knight Specialty Insurance Company, known for providing shady high-interest car loans, underwrote the bond for Trump. However, AG James questioned the “sufficiency of the surety” and will challenge the company’s qualifications at a hearing on April 22.

Trump filed a notice of appeal on February 26. Arguments are not expected to be heard until September 2024 at the earliest.

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#Background

PFAS, or per- and polyfluoroalkyl substances, are a group of thousands of synthetic chemicals used in consumer products around the world. Due to their molecular structure, PFAS do not easily degrade and can last for millennia, leading to the moniker “forever chemicals.”

PFAS, a group of manufactured chemicals commonly used since the 1940s, are called “forever chemicals” for a reason. Bacteria can’t eat them; fire can’t incinerate them; and water can’t dilute them. And, if these toxic chemicals are buried, they leach into surrounding soil, becoming a persistent problem for generations to come…The secret to PFAS’s indestructibility lies in its chemical bonds. PFAS contains many carbon-fluorine bonds, which are the strongest bonds in organic chemistry. As the most electronegative element in the periodic table, fluorine wants electrons — and badly. Carbon, on the other hand, is more willing to give up its electrons. “When you have that kind of difference between two atoms — and they are roughly the same size, which carbon and fluorine are — that’s the recipe for a really strong bond,” Dichtel explained.

Today, PFAS are mostly used for their chemical and thermal stability and capacity to repel water and grease. Variants are found in food packaging, the coating of nonstick pans, stain-resistant furniture and carpets, water-resistant fabrics, personal care products, electronics, automobiles, and the aerospace and defense industries.

With such pervasive use, it was inevitable that PFAS would spread throughout the environment. Studies identified high concentrations in soil, air, water, seafood, processed foods (likely due to the packaging), wild animals, and humans. In fact, according to the U.S. Agency for Toxic Substances and Disease Registry, “most people in the United States have been exposed to PFAS and have PFAS in their blood.”

Research into the effects of PFAS exposure in humans is ongoing. Epidemiological studies, summarized in the academic journal Environmental Toxicology and Chemistry, “revealed associations between exposure to specific PFAS and a variety of health effects, including altered immune and thyroid function, liver disease, lipid and insulin dysregulation, kidney disease, adverse reproductive and developmental outcomes, and cancer.” While animal studies do not always correlate with human health effects due to physiologic differences between species, laboratory animal research indicates PFAS can cause damage to the liver and the immune system as well as low birth weight, birth defects, delayed development, and newborn deaths.

#Fifth Circuit

A three-judge panel of the 5th Circuit overturned a ban last month on plastic containers contaminated with a PFAS compound known to cause cancer. Inhance Technologies, based in Houston, Texas, produces approximately 200 million fluorinated high-density polyethylene (HDPE) plastic containers using a process that creates a toxic PFAS called PFOA. According to the Environmental Protection Agency (EPA), there is no safe level of exposure to PFOA. Neither the EPA nor, allegedly, Inhance were aware that the company’s fluorination process created PFAS until 2020, when an environmental group notified the agency.

The EPA ordered Inhance to cease manufacturing PFAS under TSCA section 5(f), which allows the EPA to regulate any “significant new use” of a chemical substance.

...EPA has determined that three of the PFAS (PFOA, perfluorononanoic acid (PFNA) and perfluorodecanoic acid (PFDA)) are highly toxic and present unreasonable risks that cannot be prevented other than through prohibition of manufacture. Therefore, under TSCA section 5(f), EPA is prohibiting the continued manufacture of PFOA, PFNA and PFDA that are produced from the fluorination of HDPE. EPA also determined that the remaining six of the nine PFAS chemicals manufactured by Inhance may present an unreasonable risk of injury to health or the environment and, under TSCA section 5(e), is requiring the company to cease manufacture of these chemicals, and to perform additional testing if it intends to restart production.

Inhance sued the EPA, arguing that its manufacturing process is not a “new use” because it has been creating fluorinated containers using the same process since 1983. The EPA countered that a “significant new use” is any use “not previously known to” the agency. When crafting rules to regulate PFAS in 2015, the EPA required companies to submit their prior manufacture or use of PFAS for approval—a step that Inhance did not take, as it claims it was unaware it was creating PFAS. Without approval for an “ongoing use,” the EPA treated Inhance’s process as a “significant new use” enabling the agency to use Section 5 for an expedited review.

• See this amicus brief for a more in-depth explanation of how the EPA handled the PFAS rule-making and exempted certain pre-existing uses from the rule.

• It is worth noting that Inhance’s claimed ignorance that it was producing PFAS is suspect because a 2011 scientific study, conducted three years before the EPA’s rule, found PFAS in their company’s containers. Additionally, according to The Guardian, “Since 2020, Inhance appears to have repeatedly lied to regulators and customers about whether PFAS leached from its containers, and for several years resisted EPA’s demands to submit its process for review.”

A 5th Circuit panel (made up of a G.W. Bush appointee, an Obama appointee, and a Trump appointee) sided with Inhance last month, vacating the EPA’s orders to stop producing PFAS. The judges did not dispute that the manufactured chemicals present an unreasonable risk of injury to human health and the environment but said that the EPA used the wrong rule to limit production:

...because Inhance did not possess “extraordinary intuition” or the “aid of a psychic” to foresee that the EPA would regulate the fluorination industry, Inhance faces being shuttered by the agency’s belated “discovery” of its process. Fortunately for Inhance, such foresight is “more than the law requires.” We therefore eschew the EPA’s interpretation of “significant new use” and instead adopt Inhance’s more straightforward interpretation of the statute. And that dooms the EPA’s orders at issue here, because Inhance’s fluorination process was not a significant new use within the purview of Section 5.

Instead, the EPA will have to use Section 6 to regulate chemicals, including PFAS, that are already in use even if there is a serious threat to public health. Section 6 is a years-long process that requires a cost-benefit analysis, weighing the negative effects of the chemical substance against the economic consequences of prohibiting the substance. This would likely result in a more favorable outcome for Inhance, which argued before the 5th Circuit that if the EPA’s orders were to stand, the company would go bankrupt.

As a result of the court’s decision, the EPA has limited power to regulate ongoing, but as yet unidentified, uses of dangerous chemicals in Texas, Louisiana, and Mississippi—already one of the most polluted areas in the nation. Inhance will be free to continue producing PFAS as part of its fluorination process while Section 6 plays out (pending further legal action).

#Wisconsin

Wisconsin is in the middle of a PFAS crisis: Numerous areas around the state are so contaminated that their water is unsafe to drink, the Department of Natural Resources (DNR) is frozen by “excessive costs,” and Republican lawmakers are playing games with funding meant to assist with clean up efforts.

A 2022 survey of hundreds of private wells across the state found nearly three-quarters contained at least one PFAS chemical. The highest concentrations have been found in communities near companies and utilities that employed firefighting foam containing PFAS, called aqueous film-forming foam (AFFF). In Marinette and Peshtigo, for example, a company now known as Tyco Fire Products tested AFFF outdoors for over 50 years, allowing the chemicals to wash into the groundwater and sewer system.

In 2017, the state learned that Tyco, a subsidiary of global chemical conglomerate Johnson Controls International and one of the largest employers in the region, had been discharging PFAS into local streams and ditches in the region. According to state records, Tyco knew about these elevated levels at least four years earlier and failed to warn residents…The pollution stems from Tyco’s operations at a fire testing center that operated from the 1960s to 2017. This facility is located on the southern edge of the city of Marinette, roughly a mile from the town of Peshtigo.

First responders and military personnel would light planes, automobiles, and other heavy-duty equipment on fire at a location near the area high school, and then test the fire-suppressant foam Tyco sold. Afterward, gallons of foam would be washed away off the pavement into nearby streams where it would seep into the surrounding groundwater, eventually making its way into Peshtigo drinking wells.

Testing found more than 400 parts per trillion of PFOA and more than 5,000 parts per trillion of PFOS in the area’s water, far above the state’s standard of 70 parts per trillion and the EPA’s proposed limit of 4 parts per trillion. Residents have been drinking and cooking with bottled water for years with no clear end in sight.

Meanwhile, a “toxic plume” of PFAS 2.5 kilometers wide originating from the Tyco site was detected last year in Green Bay, part of Lake Michigan and the Great Lakes. Roughly 40 million people get their drinking water from the Great Lakes, an area already containing PFAS as reflected by elevated levels in local freshwater fish.

• For more information on the geographical spread of PFAS in Wisconsin, see the DNR’s interactive map

Tyco denies responsibility for most of the contaminated area, only covering water costs for approximately 170 households and health care costs for 270 households. Gov. Tony Evers (D) and Wisconsin Attorney General Josh Kaul (D) are suing Tyco, among other companies, seeking funding to clean up the PFAS spread across the state by their products and actions.

The ongoing legal fight over financial liability for remediation is common in hazardous material spills and gets even more complicated when governmental organizations lack clear oversight. In Wisconsin, the DNR was prevented from setting groundwater limits for PFAS by a Republican law called the REINS Act. Signed in 2017 by then-Gov. Scott Walker (R), the REINS Act requires agencies to stop work on any rule if an economic impact analysis indicates that compliance and implementation costs will exceed $10 million in any two-year period. Because the DNR determined that the cost of compliance for industrial facilities and wastewater treatment plants would be $33 million over the first two years, it was forced to stop working on the PFAS limits and seek permission to continue from the Republican-led legislature. Two Democrat-sponsored bills (SB 1022 and SB 1119) would have allowed the DNR to resume its work no matter the projected compliance costs, but the GOP majority did not take action on either bill before the 2024 session adjourned.

A state court ruling last month also constrained the DNR’s ability to regulate PFAS. Two conservative-aligned judges on the Wisconsin Court of Appeals ruled that the agency cannot force polluters to clean up hazardous contamination without first going through the legislature to establish specific limits on the compounds—a step never before required under the Spills Law. Judge Lisa Neubauer, appointed by former Democratic Governor Jim Doyle, dissented:

Wisconsin’s Spills Law imposes certain obligations on parties who are responsible for discharges of substances that are hazardous to human health or the environment. Since the law’s enactment in 1978, the Wisconsin Department of Natural Resources (DNR) has overseen more than 40,000 hazardous substance cleanups. Today, for the first time since the statute was enacted, the court holds that the DNR must promulgate rules identifying certain substances as hazardous before the Spills Law applies to

discharges of those substances…The statute defines hazardous substance in broad, fact-specific terms and leaves it to responsible parties, in the first instance, to identify and notify the DNR of discharges of such substances. No provision in the Spills Law requires the DNR to promulgate a rule identifying a substance as a hazardous substance before the law’s investigation and remediation obligations apply to it. The majority errs in imposing such a requirement today. I respectfully dissent.

To make matters worse, the Republican legislature is withholding $125 million passed in last year’s budget to help local governments and landowners clean up PFAS pollution. Joint Finance Committee co-chairs Sen. Howard Marklein (R) and Rep. Mark Born (R) are insisting that Gov. Evers first sign SB 312, a bill laying out the legislature’s rules for spending the funds. However, Evers has promised to veto SB 312 due to “‘poison pill’ provisions designed to benefit polluters that could functionally give polluters a free pass from cleaning up their own spills and contamination.”

Under Wisconsin’s existing environmental protection laws, any party causing, possessing, or controlling a hazardous substance that has been released into the environment is required to clean it up. SB 312 specifically prohibits the Wisconsin Department of Natural Resources (DNR) from taking enforcement action against polluters and contaminators so long as the polluter allows the DNR to remediate the site at the DNR’s own expense. That is, under SB 312, as passed by Republicans, so long as a polluter allows the DNR to clean up the contamination using Wisconsin taxpayer dollars, the DNR may not take enforcement action against the polluter…

Importantly, as noted above, SB 312 does not release or impact in any way the existing $125 million biennial budget investment to fight PFAS statewide. Thus, the governor vetoing SB 312 will have no effect whatsoever on whether the $125 million to combat PFAS remains available or will be released by the Republican-controlled Joint Finance Committee—that decision remains Republican committee members’ alone. For over 230 days, Republican committee members have been able to release the $125 million to combat PFAS contaminants across Wisconsin at any time, and that remains the case today.

Gov. Evers proposed a compromise, containing all provisions of SB 312 that don’t limit the government’s ability to hold polluters accountable, but GOP leaders do not appear ready to accept.

#Related stories

“New study suggests we're likely underestimating the future impact of PFAS in the environment,” Phys.org

“Nearly half of US prisons draw water likely contaminated with toxic PFAS – report,” The Guardian

“States work to ban period products containing toxic PFAS after 2023 report,” The Guardian

“Court approves 3M settlement over ‘forever chemicals’ in public drinking water systems,” AP

“US military says it is immune to dozens of PFAS lawsuits,” Reuters

“DuPont $1.18 Billion PFAS Settlement Gets Final Court Approval,” Bloomberg Law

“Massive 3M, DuPont PFAS Class Dismantled by Sixth Circuit,” Bloomberg Law

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Louisiana imprisons so many people that a 2012 Times-Picayune investigation dubbed the state the “world’s prison capital” for its high incarceration rate — “nearly five times Iran's, 13 times China's and 20 times Germany's.” In recent years, Louisiana’s rate has fallen below Mississippi’s, largely driven by former Democratic Gov. John Bel Edwards’ criminal justice reforms. With Bel Edwards now out of office, replaced by Gov. Jeff Landry (R), Louisiana Republicans immediately used their new trifecta to roll back the reforms and introduce harsher policies than the state has seen in decades.

###A quick history lesson

Louisiana’s prison system, like that of many southern states, traces its modern origins to the abolition of slavery. The 13th Amendment, ratified in 1865, banned slavery and involuntary servitude “except as a punishment for crime,” opening the door for states to use the criminal justice system as a legal way to oppress African Americans and extract value from forced labor.

An array of laws designed to criminalize Black people, called Black Codes, were enacted throughout the South in the wake of emancipation. A central element of these laws charged unemployed or unhoused Black people with “vagrancy,” a crime punishable by a term of labor if a fine was not paid. Thomas W. Conway, the Freedmen's Bureau commissioner for Louisiana, described how this system, known as convict leasing, was abused in Louisiana:

“In the city of New Orleans last summer, under the orders of the acting mayor of the city, Hugh Kennedy, the police of that city conducted themselves towards the freedmen, in respect to violence and ill usage, in every way equal to the old days of slavery; arresting them on the streets as vagrants, without any form of law whatever, and simply because they did not have in their pockets certificates of employment from their former owners or other white citizens.

”I have gone to the jails and released large numbers of them, men who were industrious and who had regular employment; yet because they had not the certificates of white men in their pockets they were locked up in jail to be sent out to plantations…”

One of these plantations later became a prison under state control: the infamous “Angola” Louisiana State Penitentiary. To this day, prisoners at Angola are forced to perform grueling agricultural labor, supervised by armed guards on horseback.

The old system of convict leasing also continues in a new form. After a 1975 lawsuit challenging the brutal and dangerous conditions at Angola, a federal judge limited the population at the prison. So Louisiana, instead of building more prisons or reducing incarceration, began offering local parishes a per diem for each prisoner they board. Incentivized by $177 million a year in per diem payments from the state, sheriffs expanded local jails to hold more state prisoners. Because these are pre-trial facilities, there is no legal requirement to allow outside visits or develop enrichment programming, even though many state prisoners will spend years of their sentence inside.

Now, combine the above factors—forced prison labor that financially benefits the powerful and a per diem incentivizing jailing people—with the incorrect perception that crime is on the rise. The result is a raft of bills recently passed in Louisiana that will increase incarceration rates and keep people in jail, providing dirt-cheap labor and facilitating a cash influx for longer sentences.

###The bills

####Mass incarceration

Four bills signed into law by Gov. Landry work together to increase the length of sentences, requiring jails and prisons to house more inmates for much longer.

House Bill 9: Eliminates the opportunity for parole for anyone who commits a crime after August 1, 2024. Contains an exception for those given life sentences as juveniles.

House Bill 10: Reduces the amount of time that can be taken off of someone’s sentence due to good behavior and requires incarcerated people to serve 85% of their sentence. The previous law, enacted as part of the state’s 2017 reforms, required nonviolent offenders to serve 35% of their sentences before being eligible for “good time” release. Before that, the minimum was 40%.

House Bill 11: Increases the amount of time a person on probation can be sent back to jail for a technical violation (e.g. missing an appointment with their probation officer) and allows judges to imprison people on parole or probation for merely being arrested, not convicted. The bill also extends the length of probation required for those released from incarceration from three years to five years and allows probation to be extended due to the inability to pay fines or fees.

Senate Bill 5: Makes it more difficult to obtain parole by requiring a unanimous vote (instead of a majority vote) by the parole board and limiting terms of eligibility.

According to the Crime and Justice Institute, the costs of House Bill 10 alone will amount to hundreds of thousands of dollars per inmate:

According to CJI’s research, persons released from Louisiana prisons in 2022 served an average of 41% of their sentence. If they would have served 100%, it would have resulted in an additional 6,347 days in prison. More than half of that amount would be served in local jails, where 53% of individuals serve their time. That would result in another $151,000 in cost per inmate for sheriffs, even after factoring in state reimbursements.

If the 2022 releases would have served 85% of their sentences, they would have spent an additional 2,497 days incarcerated at a reimbursement-adjusted cost of $121,000 per person for local jails.

Due to the increased cost, sheriffs are likely to begin “lobbying the state legislature for higher per diem rates,” Lydia Pelot-Hobbs, author of Prison Capital: Mass Incarceration and Struggles for Abolition Democracy in Louisiana, told Bolts Magazine.

“We’re going to see sheriffs organizing and pushing to expand their jails for this moment,” she said. “We are going to see sheriffs mobilizing and organizing to get either property taxes or millages or sales taxes to get more jail space to incarcerate the state prisoners. I also think we’re likely going to see them lobbying the state legislature for higher per diem rates.”

####Juveniles

A trio of other bills will change how prosecutors charge juvenile offenders—incarcerating more young people—and release information on juvenile records that was previously kept private.

Senate Bill 3: Charges all 17-year-olds who commit a crime as adults, placing them in adult prisons and jails.

Louisiana already has a mechanism to transfer juveniles accused of serious crimes into the adult justice system. SB 3 would result in courts sentencing 17-year-olds who commit petty crimes more harshly and funneling them into the adult system, with fewer rehabilitation options and poorer outcomes. You may recall that the state housed dozens of children, almost all Black boys, some as young as 15, at the defunct Death Row wing of Angola for more than a year. A federal judge finally forced the Office of Juvenile Justice to move them to a different adult jail, but a new lawsuit alleges similar abuses and cruel conditions continue:

Children incarcerated in the Jackson Parish Jail have been forced to sleep on the floor, shot at with pepper balls, and imprisoned close to adults, according to documents filed Friday in federal court.

The filing says young people at the jail reported that they were confined to overcrowded cells for nearly 24 hours a day and were only permitted to shower every other day. Some said they had to sleep on a thin mattress on the floor with a blanket and no pillow. Today’s filing says that, as of March 11, 36 kids who are in the custody of state Office of Juvenile Justice (OJJ) “are incarcerated with adults at the Jackson Parish Jail in shocking and abysmal conditions.”

Senate Bill 4: Increases penalties for juveniles (14- to 17-year-olds) convicted of a violent crime and, for juveniles convicted of lesser crimes, adds requirements for childrens’ sentences to be modified.

House Bill 1: Gives the public access to the arrest, court summons, and sentencing records of children who are accused of violent crimes.

According to a report by Human Rights for Kids, 7.2% of Louisiana’s prison population is incarcerated for offenses committed while they were under the age of 18—the highest in the nation and a rate of 49 people per 100,000 residents. SB 3 and 4 will imprison more children, for longer, in dangerous conditions with little hope of rehabilitation.

####Other bills

Senate Bill 8: Gives the governor more power over the public defense system by shifting control of regulations and funding away from an independent board to a newly created office headed by an appointee of Gov. Landry’s choosing.

Critics worry the proposed structure doesn’t create enough distance between the state, which technically brings all charges against people accused of crimes, and the criminal defense system…District defenders, who manage Louisiana’s 37 local public defender offices, are uncomfortable with the proposal. In a rare move, they voted overwhelmingly last week to oppose the legislation.

Senate Bill 1: Allows most people 18 years or older to legally carry a concealed weapon without a permit (but does not eliminate the permits, for those who wish to obtain one to carry in another state, for example).

Senate Bill 2: Provides an “unprecedented level” of immunity to concealed carry permit holders involved in a self-defense shooting. Louisiana is a ‘stand your ground’ state with little gun control laws, a dangerous combination that leads to more homicides.

House Bill 2: Gives law enforcement officers immunity from civil lawsuits for actions carried out in the course of their official work. The bill’s author, Rep. Tony Bacala (R), is a former deputy chief with the Ascension Parish Sheriff’s Office.

House Bill 6: Allows executions by nitrogen gas hypoxia and electrocution. Shields records related to executions, like who supplies the equipment, from the public.

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#“Show me your papers” law

The U.S. Supreme Court allowed Texas to enforce its strict state immigration enforcement law in a 6-3 decision yesterday.

###Background

The law, known as SB 4, gives state and local authorities the power to arrest people suspected of illegally crossing the Texas-Mexico border. Upon being convicted of illegal entry and completing a term of imprisonment, a judge must order “the person to return to the foreign nation from which the person entered or attempted to enter.” Alternatively, a judge may dismiss the charges if the person agrees to return to Mexico voluntarily. The process contains no provisions that ensure due process for migrants or allow them to seek humanitarian protection. It further criminalizes Black, brown, and indigenous people who may be detained—regardless of legal status—for no other reason than the color of their skin.

Civil rights groups sued the state in December, arguing that “S.B. 4 is patently illegal” for “violat[ing] the Supremacy Clause of the United States Constitution” by usurping the “federal government’s exclusive immigration powers.”

S.B. 4 creates a new state system to regulate immigration that completely bypasses and conflicts with the federal system. It allows state officers to arrest, detain, and remove individuals from the United States and mandates removal for those who are convicted of the new state crimes of illegal entry and reentry—all without any input or involvement whatsoever from federal officials.

S.B. 4 requires state officers to make determinations of federal immigration status and to incarcerate and remove noncitizens pursuant to these determinations, but it does not provide noncitizens with any of the mechanisms or pathways to apply for or receive federal protection from removal. Moreover, the system prohibits state courts from pausing cases to obtain determinations of status from the federal government or abstaining while federal immigration proceedings take place.

The U.S. Department of Justice later also sued Texas, alleging that the state’s “efforts, through SB 4, intrude on the federal government’s exclusive authority to regulate the entry and removal of noncitizens, frustrate the United States’ immigration operations and proceedings, and interfere with U.S. foreign relations.”

U.S. District Judge David Ezra, a Reagan appointee, issued a preliminary injunction blocking the law at the end of last month. “[T]he Supremacy Clause and Supreme Court precedent affirm that states may not exercise immigration enforcement power except as authorized by the federal government,” Ezra wrote. “The United States will suffer immediate irreparable harm if SB 4 takes effect,” he continued, through frustrating Department of Homeland Security priorities, disrupting foreign relations, and preventing the nation from fulfilling its human rights obligations.

Texas immediately appealed to the 5th Circuit, which issued a temporary administrative stay of Judge Ezra’s order to take effect on March 9 without Supreme Court intervention. The use of an administrative stay rather than a stay pending appeal will become important. For now, know that administrative stays are normally employed to freeze legal proceedings to preserve the status quo (i.e. the law of the land pre-SB 4) until judges can rule on a party’s request for a stay pending appeal (when further arguments will occur).

The DOJ appealed to the U.S. Supreme Court, asking the justices to vacate the stay and leave Judge Ezra’s ruling in place while legal proceedings play out.

###The ruling

A presumably six-justice majority ruled in favor of Texas, allowing SB 4 to take effect. Justices Amy Coney Barrett and Brett Kavanaugh were the only conservatives to go on record, with Barrett writing that the 5th Circuit’s unusual choice to use an administrative stay exempts the action from review:

If the Fifth Circuit had issued a stay pending appeal, this Court would apply the four-factor test set forth in Nken v. Holder—including, as relevant in this Court, an assessment of certworthiness—to decide whether to vacate it. But the Fifth Circuit has not entered a stay pending appeal. Instead, in an exercise of its docket management authority, it issued a temporary administrative stay and deferred the stay motion to a merits panel, which is considering it in conjunction with Texas’s challenge to the District Court’s injunction of S. B. 4. Thus, the Fifth Circuit has not yet rendered a decision on whether a stay pending appeal is warranted. That puts this case in a very unusual procedural posture…So far as I know, this Court has never reviewed the decision of a court of appeals to enter—or not enter—an administrative stay. I would not get into the business.

In other words, Barrett recognized the gamesmanship of issuing an administrative stay but chose not to intervene, effectively blessing the 5th Circuit’s ploy to allow SB 4 to take effect without proper review. She reveals this fact by saying “the time may come…when this Court is forced to conclude that an administrative stay has effectively become a stay pending appeal and review it accordingly…If a decision does not issue soon, the applicants may return to this Court.” No conservative justice, including Barrett, wrote about the impact of letting SB 4 take effect.

Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson, dissented, explaining why the 5th Circuit’s stay was misused:

An administrative stay…is intended to pause the action on the ground for a short period of time until a court can consider a motion for a stay pending appeal. For that reason, at a minimum, administrative relief should (1) maintain the status quo and (2) be time limited. The Fifth Circuit’s administrative stay here was neither, and thus constituted an abuse of discretion.

Here, the Fifth Circuit’s administrative stay upends the status quo because it allows S. B. 4—a brand new state law that alters the delicate balance of federal and state power

in immigration enforcement—to go into effect. The District Court preliminarily enjoined S. B. 4 and declined to stay that injunction. The Fifth Circuit did not need to enter an administrative stay to preserve the status quo; the District Court’s decision already achieved that. The Fifth Circuit abused its discretion in entering the status-altering administrative stay.

The Fifth Circuit’s administrative stay is also temporally unbounded. Because the Fifth Circuit deferred consideration of the motion for a stay pending appeal, the administrative stay is likely to last until the merits panel receives briefing, hears oral argument, and renders a decision on either Texas’s appeal or at least Texas’s motion for a stay pending appeal. That timeline would leave the administrative stay in effect for well over a month.

If allowed to take effect, Sotomayor wrote, SB 4 “will transform the balance of power at the border and have life-altering consequences for noncitizens in Texas.”

Justice Elena Kagan, in her own dissent, wrote that she does “not think the Fifth Circuit’s use of an administrative stay, rather than a stay pending appeal, should matter. Administrative stays surely have their uses. But a court’s unreasoned decision to impose one for more than a month, rather than answer the stay pending appeal issue before it, should not spell the difference between respecting and revoking long-settled immigration law.”

###Reverberations and reversal

Hours after the Supreme Court allowed SB 4 to take effect, Mexico’s Ministry of Foreign Affairs released a statement condemning the law for “criminalizing” migrants and “encouraging that separation of families, discrimination and racial profiling that violate the human rights of the migrant community.” Consequently, Mexico declared that it “will not accept, under any circumstances, repatriations by the State of Texas,” setting up a major international incident should Texas try to deport individuals.

Luckily, late last night, a new panel of the 5th Circuit stepped in and ‘voted 2-1 to dissolve the administrative stay issued by a different panel earlier this month. Chief Judge Priscilla Richman, a G.W. Bush appointee, and Judge Irma Carrillo Ramirez, a Biden appointee, lifted the stay, saying that the court will be hearing arguments for a stay pending appeal (the more appropriate kind of stay to use in this situation) on Wednesday. Judge Andrew Oldham, a Trump appointee, dissented, writing that he supports the use of an administrative stay while the 5th Circuit hears arguments in the case.

After all that turmoil, strained foreign relations, and fear and confusion among the migrant community, we are now back where we started with Judge Ezra’s order blocking SB 4 in place.

#Mandatory minimum sentences

Last week, the U.S. Supreme Court issued a 6-3 ruling that limits who is eligible to escape harsh mandatory minimum sentences.

###Background

The case, Pulsifer v. United States, originated in 2020 when a federal grand jury indicted Mark Pulsifer for selling over 50 grams of methamphetamine. Pulsifer pleaded guilty to one distribution charge and, because he had a prior drug conviction in 2013, was subject to a mandatory minimum sentence of 15 years in prison.

At sentencing, Pulsifer sought to obtain relief through the First Step Act’s “safety valve” provision that exempts nonviolent drug offenders from the mandatory minimum. In order to qualify, a person cannot have committed a specific number and type of crimes delineated by a points system:

...the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing…that—

(1) the defendant does not have—

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

(B) a prior 3-point offense, as determined under the sentencing guidelines; and

(C) a prior 2-point violent offense, as determined under the sentencing guidelines;

According to Pulsifer’s—as well as the 4th, 9th, and 11th Circuit’s—reading of the law, a person is eligible for individualized sentencing unless they possess all three listed traits (A, B, and C). The government contends that is incorrect, and the Supreme Court should adopt the 5th, 6th, 7th, and 8th Circuit’s interpretation: a person is eligible only when they do not have any of the three listed traits (A, B, or C).

For a case that turns on mere grammar, there are massive implications of a ruling in either party’s favor. If the safety valve provision is read as Pulsifer argued, about 66% (2021 data) of drug offenders, amounting to over 11,000 people, would be eligible for individualized sentencing. Under the government’s terms, only 44% (roughly 7,700 people) would have the opportunity for a lesser sentence.

With the freedom of thousands of individuals on the line, it is important to understand why Congress created the First Step Act. The U.S. incarcerates more people than anywhere else in the world. This trend started when President Richard Nixon declared a “war on drugs,” using fear and thinly veiled racial rhetoric to push punitive policies. According to John Ehrlichman, Nixon’s domestic policy advisor, the “war” began as a way to criminalize Blacks and the anti-war left.

Then, President Ronald Reagan came along and supercharged the federal incarceration machine. Under his influence, the FBI’s drug enforcement units saw their budget increase more than tenfold. Both parties in Congress passed Reagan-sponsored legislation to create 29 new mandatory minimum sentences, including one of the most racist criminal justice laws in recent memory: Sentences for the possession of crack cocaine were 100 times more severe than for powder cocaine. By the end of his two terms in office, the total prison population essentially doubled to 627,000.

Today, approximately 1.8 million people are incarcerated in the United States, down from an all-time high of 2.3 million in the mid-2000s. The decrease is due to criminal justice reform, including a revamping of the mandatory minimum sentencing laws in 2010—including a massive reduction to minimum crack cocaine sentences—and the First Step Act.

###The ruling

Despite the clear intent of Congress to increase the number of people eligible to escape mandatory minimum sentences, a majority of the Supreme Court did the exact opposite last week. Justice Elena Kagan—joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett—ruled that an offender cannot have any of the three traits of the safety valve provision to obtain relief. In their interpretation, the word "and" serves a disjunctive purpose similar to the word "or." Put differently, a person is ineligible for relief if they have more than 4 criminal history points, or a prior 3-point offense, or a prior 2-point violent offense.

As a result, Pulsifer cannot seek individualized sentencing because he meets at least one of the criteria.

Justice Neil Gorsuch, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, dissented, writing that the word “and” is an “additive conjunction” that disqualifies a person with all three traits in the safety valve provision. “A defendant may receive [individualized] sentencing unless he has trait A, trait B, together with trait C,” they explain.

What the language of paragraph (f )(1) suggests, surrounding context confirms. When Congress uses different terms in a statute, we normally presume it does so to convey

different meanings…Here, we see just such a meaningful variation. When Congress sought a single word to indicate that one trait among many is sufficient to disqualify an individual from safety valve relief, it chose an obvious solution: not the conjunctive “and,” but the disjunctive “or.”

In fact, Congress used “or” this way no fewer than three times [within the same law]...The fact that Congress repeatedly used “or” when it wanted relief to turn on a single trait among many suggests that the “and” in paragraph (f )(1) performs different work. Even the government once acknowledged as much, conceding below that the “and” in paragraph (f )(1) is “most natural[ly]” read as requiring a sentencing court to find that a defendant possesses all three listed traits before holding him ineligible for relief.