RELIST WATCH

Redistricting, campaign contributions, and California’s role in emissions regulation

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

On Monday’s order list, the Supreme Court didn’t do much to clear out the relisted cases. The court denied review of just one of the 15 relisted cases that were then pending: Davis v. Colorado, the case asking whether the Sixth Amendment guarantees indigent defendants the right to continued representation by the same appointed counsel. But all of the other cases are back for consideration at Friday’s conference, along with six newly relisted cases.

One of them – Building and Reality Institute of Westchester and Putnam Counties, Inc. v. New York – is on a subject that will be familiar to regular readers. It involves the same question already under consideration in one of last week’s returning relists, G-Max Management, Inc. v. New York: whether New York rent stabilization laws constitute an uncompensated taking of private property in violation of the takings clause of the Fifth Amendment.

Because it’s election season, we’ll begin the unfamiliar relists with the cases that have a political valence.

In November 2020, Alaska voters approved the initiative known as “Ballot measure 2,” regarding campaign expenditures and advertising. One provision required that anyone who contributed $2,000 or more during a calendar year to a group that makes (or is “likely to make”) independent expenditures must file a report with the state election commission within 24 hours of the donation, or be subject to civil fines of up to $1,000 per day. Those disclosures are required even though the groups receiving the donations are separately required to report the contributions. A second provision requires disclosure requirements on political advertising, detailing the individual or entity who paid for the ad along with the city and state of the funder’s principal place of business, as well as the name and city and state of residence of the three largest contributors to the speaker. If the entity received most of its contributions from outside Alaska, another provision requires that the advertisement say so in all capital letters for the entire duration of the advertisement.

A group of individuals and independent expenditure committees sued to challenge the constitutionality of those provisions. The U.S. District Court for the District of Alaska denied their request for a preliminary injunction to prevent the law from going into effect. The U.S. Court of Appeals for the 9th Circuit affirmed that denial, though Judge Danielle Forrest wrote separately to state that she believed that their challenge to the duplicative disclosure provision was likely to succeed. In Smith v. Stillie, the challengers now seek Supreme Court review.

Louisiana v. Callais and Robinson v. Callais involve challenges to Louisiana’s congressional redistricting scheme. Louisiana suffered several defeats attempting to defend its 2022 congressional redistricting plan against challenges under Section 2 of the Voting Rights Act, which prohibits voting standards, practices, or procedures that result in a denial or abridgement of the right to vote on account of race or color.

The Louisiana legislature then enacted Senate Bill 8, a new plan that included two majority-Black districts; the state says S.B. 8 was selected over other plans that also satisfied Section 2 because it protected favored incumbents and damaged a political rival of the state’s governor, Jeff Landry. A majority of a divided three-judge district court held that race predominated in the design of one congressional district under S.B. 8 and enjoined Louisiana from using that redistricting map.

The state and a group of civil rights intervenors that included the NAACP then sought a stay from the Supreme Court to allow the S.B. 8 redistricting plan to go into effect pending resolution of the appeal. The court granted that stay in May, citing the Purcell principle – the idea that courts should not make changes too close to the election.  The court’s three Democratic appointees would have turned down the request for a stay, with Justice Ketanji Brown Jackson arguing that “Purcell has no role to play here.” “There is little risk of confusion,” she contended, from the new redistricting map scheduled to go into place in just a few weeks.

The state and the civil rights intervenors have now filed their appeals, which argue that the district court erred in concluding that race predominated in redistricting, failed to presume that the legislature acted in good faith, and made a host of other errors in invalidating the plan. While the Supreme Court has unfettered discretion whether to take cases that come to it on petitions for writ of certiorari, that is not the case for election cases like this one, which come to the court as mandatory appeals that it must rule on in some fashion.

Last up are Ohio v. Environmental Protection Agency and Diamond Alternative Energy LLC v. Environmental Protection Agency. Section 209(a) of the Clean Air Act generally preempts states from adopting emission standards for new motor vehicles. But under Section 209(b), the EPA may grant California a waiver from federal preemption to set its own vehicle-emission standards, in recognition of the fact that California was the only state that regulated emissions before the CAA’s enactment, and in recognition of the fact that at the time California in particular suffered from smog and other emissions issues.

In practice, that meant that car manufacturers could choose to meet federal standards or the California standards (typically requiring lower emissions), and thereby gain access to that state’s market. Before granting California a preemption waiver, the EPA must find that California “need[s]” its own emission standards “to meet compelling and extraordinary conditions.”

Beginning in 2009, California began seeking to set standards to curb greenhouse gas emissions – which, unlike the sorts of emissions it had previously regulated under Section 209(b), had global effects rather than principally local ones. The EPA issued a waiver allowing California to regulate such emissions in 2013, which the EPA partially withdrew in 2019 under the Trump administration, and then reinstated in 2022 under the Biden administration.

The 2022 waiver, allowing California to set its own standards for greenhouse-gas emissions and to adopt a zero-emission-vehicle mandate, expressly intended to address global climate change by reducing California vehicles’ consumption of liquid fuel. Fuel producers challenged the EPA’s waiver as contrary to the text of Section 209(b). The U.S. Court of Appeals for the District of Columbia Circuit rejected the challenge on the ground that the challengers lacked a legal right to sue, known as standing. The court of appeals reasoned that the fuel producers had not established that vacating the EPA’s waiver would actually remedy their injuries.

The fuel producers now seek review, arguing that the D.C. Circuit erred in holding that they lacked standing to challenge the waiver. The fuel producers also argue that EPA’s preemption waiver for California’s greenhouse-gas emission standards and zero-emission-vehicle mandate is unlawful.

Similarly, Ohio and 16 other states have filed a separate petition arguing that by granting only California eligibility for an exemption from federal preemption, Congress violated the Constitution. They argue that while the states necessarily surrendered some of their sovereignty to the federal government as part of the plan of the Constitutional Convention, they retained the right to be treated equally with other states.

We should know more soon. Tune in next time!

New Relists

Building and Reality Institute of Westchester and Putnam Counties, Inc. v. New York, 23-1220
Issue: Whether the changes made by New York’s Housing Stability and Tenant Protection Act effect physical takings, and as applied takings, and violate both the due process and contract clauses of the Constitution.
(Relisted after the Oct. 11 conference.)

Smith v. Stillie, 23-1316
Issues: (1) Whether Alaska’s requirement that individual donors must file duplicative reports of their political contributions within 24 hours of making them violates the First Amendment; and (2) whether Alaska’s extensive on-ad disclosure requirements violate the First Amendment.
(Relisted after the Oct. 11 conference.)

Diamond Alternative Energy LLC v. Environmental Protection Agency, 24-7
Issues: (1) Whether a party may establish the redressability component of Article III standing by relying on the coercive and predictable effects of regulation on third parties; and (2) whether EPA’s preemption waiver for California’s greenhouse-gas emission standards and zero emission-vehicle mandate is unlawful.
(Relisted after the Oct. 11 conference.) 

Ohio v. Environmental Protection Agency, 24-13
Issue: Whether Congress may pass a law under the commerce clause that empowers one state to exercise sovereign power that the law denies to all other states.
(Relisted after the Oct. 11 conference.) 

Louisiana v. Callais, 24-109
Issues: (1) Whether the majority of the three-judge district court in this case erred in finding that race predominated in the Louisiana legislature’s enactment of S.B. 8; (2) whether the majority erred in finding that S.B. 8 fails strict scrutiny; (3) whether the majority erred in subjecting S.B. 8 to the preconditions specified in Thornburg v. Gingles; and (4) whether this action is non-justiciable.
(Relisted after the Oct. 11 conference.)

Robinson v. Callais, 24-110
Issues: (1) Whether the three-judge district court erred in concluding that race predominated in the design of Louisiana’s Congressional District 6 based on the state legislature’s stated intent to comply with the rulings of Robinson v. Ardoin without presuming the good faith of the legislature, attempting to disentangle the legislature’s racial and political considerations, or requiring an alternative map that satisfied both Section 2 of the Voting Rights Act and the legislature’s political objectives, as required by Alexander v. S.C. State Conf. of NAACP; (2) whether the district court erred when it disregarded the rulings of the courts in Robinson that preconditions specified in Thornburg v. Gingles could be (and had been) satisfied and instead required that the state’s enacted map satisfy the first Gingles precondition to survive strict scrutiny; (3) whether the district court erred in failing to accord the Louisiana Legislature sufficient breathing room to account for political considerations that resulted in a less compact district than necessary to satisfy Section 2 of the Voting Rights Act; (4) whether the district court erred in relying on extrarecord evidence and ignoring the evidence in the record on S.B. 8’s respect for communities of interest in concluding that S.B. 8 failed to satisfy strict scrutiny; and (5) whether the district court abused its discretion by unnecessarily expediting the proceedings and limiting the evidence presented in this complex, fact-intensive case.
(Relisted after the Oct. 11 conference.)

Returning Relists

Hamm v. Smith, 23-167
Issues: (1) Whether Hall v. Florida and Moore v. Texas mandate that courts deem the standard of “significantly subaverage intellectual functioning” for determining intellectual disability in Atkins v. Virginia satisfied when an offender’s lowest IQ score, decreased by one standard error of measurement, is 70 or below; and (2) whether the court should overrule Hall and Moore, or at least clarify that they permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s error range.
(Relisted after the Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, March. 1, March. 15, March. 22, March. 28, April. 12, April. 19, April. 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, July 1, Sept. 30 and Oct. 11 conferences.)

Oklahoma v. Environmental Protection Agency, 23-1067
Issue: Whether a final action by the EPA taken pursuant to its Clean Air Act authority with respect to a single state or region may be challenged only in the D.C. Circuit because the agency published the action in the same Federal Register notice as actions affecting other states or regions and claimed to use a consistent analysis for all states.
(Relisted after the Sept. 30 and Oct. 11 conferences.)

PacifiCorp v. Environmental Protection Agency, 23-1068
Issue: Whether the EPA’s disapproval of a State Implementation Plan may only be challenged in the D.C. Circuit under 42 U.S.C. § 7607(b)(1) if EPA packages that disapproval with disapprovals of other states’ SIPs and purports to use a consistent method in evaluating the state-specific determinations in those SIPs.
(Relisted after the Sept. 30 and Oct. 11 conferences.)

Boston Parent Coalition for Academic Excellence Corp v. The School Committee for the City of Boston, 23-1137
Issue: Whether an equal protection challenge to facially race-neutral admission criteria is barred simply because members of the racial groups targeted for decline still receive a balanced share of admissions offers commensurate with their share of the applicant pool.
(Relisted after the Sept. 30 and Oct. 11 conferences.)

G-Max Management, Inc. v. New York, 23-1148
Issues: (1) Whether New York’s rent-regulation laws, and in particular its new restrictions on owner reclamation and condo/co-op conversions, effect physical takings; and (2) whether this court should overrule Penn Central Transportation Co. v. City of New York, or at least clarify the standards for determining when a regulatory taking occurs.
(Relisted after the Sept. 30 and Oct. 11 conferences.)

Environmental Protection Agency v. Calumet Shreveport Refining, L.L.C., 23-1229
Issue: Whether venue for the refineries’ challenges lies exclusively in the D.C. Circuit because the agency’s denial actions are “nationally applicable” or, alternatively, are “based on a determination of nationwide scope or effect.” 42 U.S.C. 7607(b)(1).
(Relisted after the Sept. 30 and Oct. 11 conferences.)

Growth Energy v. Calumet Shreveport Refining, L.L.C., 23-1230
Issue: Whether an action by the EPA is “nationally applicable” or “based on a determination of nationwide scope or effect” for purposes of laying venue under 42 U.S.C. § 7607(b)(1) when the action uses a common legal requirement and a general factual finding to resolve all pending “small refinery” petitions for exemption from annual obligations under the Renewable Fuel Program irrespective of the petitioning refineries’ location.
(Relisted after the Sept. 30 and Oct. 11 conferences.)

Kerr v. Planned Parenthood South Atlantic, 23-1275
Issues: (1) Whether the Medicaid Act’s any-qualified provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider; and (2) what the scope of a Medicaid beneficiary’s alleged right is to choose a provider that a state has deemed disqualified.
(Relisted after the Sept. 30 and Oct. 11 conferences.)

Brinkmann v. Town of Southold, New York, 23-1301
Issue: Whether the takings clause is violated when a property is taken for a public amenity as pretext for defeating an owner’s plans for another use.
(Relisted after the Sept. 30 and Oct. 11 conferences.)

Consumers’ Research v. Consumer Product Safety Commission, 23-1323
Issue: Whether the for-cause restriction on the president’s authority to remove commissioners of the Consumer Product Safety Commission violates the separation of powers.
(Relisted after the Sept. 30 and Oct. 11 conferences.)

Andrew v. White, 23-6573
Issues: (1) Whether clearly established federal law as determined by this court forbids the prosecution’s use of a woman’s plainly irrelevant sexual history, gender presentation, and role as a mother and wife to assess guilt and punishment; and (2) whether this court should summarily reverse in light of cumulative effect of the errors in this case at guilt and sentencing, including the introduction of a custodial statement made without the warnings required by Miranda v. Arizona.
(Rescheduled before the March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, and July 1 conferences; relisted after the Sept. 30 and Oct. 11 conferences.)

Gordon v. Massachusetts, 23-7150
Issues: (1) Whether the confrontation clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute forensic expert conveying testimonial statements of a non-testifying forensic analyst on the grounds that the testifying expert offers a purportedly “independent opinion;” and (2) whether the Sixth Amendment right to counsel precludes a criminal defendant’s trial counsel from suggesting to a jury that trial counsel does not believe the testimony of the defendant.
(Relisted after the Sept. 30 and Oct. 11 conferences.)

Esteras v. United States, 23-7483
Issue: Whether, even though Congress excluded 18 U.S.C. § 3553(a)(2)(A) from 18 U.S.C. § 3583(e)’s list of factors to consider when revoking supervised release, a district court may rely on the Section 3553(a)(2)(A) factors when revoking supervised release.
(Relisted after the Sept. 30 and Oct. 11 conferences.)

Wilson v. Hawaii, 23-7517
Issue: Whether the test of New York State Rifie & Pistol Association, Inc. v. Bruen determines when a state’s criminal prosecution for carrying a handgun without a license violates the Second Amendment.
(Relisted after the Sept. 30 and Oct. 11 conferences.)