Petitions of the week

Voting by mail in Indiana and taxing tribes in New York

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether the 14th or 26th Amendments require Indiana to allow all voters to vote absentee by mail, regardless of age, and whether tribal sovereign immunity prevents a New York county from foreclosing on a Native American tribe’s parcels in the county’s jurisdiction for which the tribe has not paid property taxes.

Tully v. Okeson involves two constitutional objections to Indiana’s requirements for younger voters seeking to vote by mail. Indiana allows certain voters to vote by mailing absentee ballots, including voters who will be absent from their precinct on Election Day and voters who are 65 or older. In March 2020, ahead of the state’s primary election, the Indiana Election Commission allowed absentee voting by mail for all Indiana voters, regardless of age. However, the commission did not extend this policy for the November general election. A group of voters under the age of 65 filed suit for the right to vote absentee by mail under two constitutional amendments. The 14th Amendment prohibits unjustified burdens on the right to vote, and the 26th Amendment protects the rights of voters aged 18 and above from age discrimination. The U.S. Court of Appeals for the 7th Circuit ruled under the 26th Amendment that Indiana’s practice does not deny younger voters the right to vote, but only the privilege of voting by mail. Moreover, the 7th Circuit continued, this distinction does not violate the 14th Amendment because Indiana has a rational basis for its policy. In their petition for review, the younger voters argue that this decision conflicts with rulings from other state and federal courts.

Seneca County, New York v. Cayuga Indian Nation of New York presents the justices with questions of tribal sovereign immunity and local taxation. Over the past 25 years, the Cayuga Indian Nation of New York has purchased parcels of land on the open market in Seneca County, New York. On the one hand, the tribe claims that the land was once part of its reservation; on the other hand, private owners have controlled the land for roughly 200 years. The tribe refused to pay property taxes, and when the county sought to foreclose on some of the parcels, the tribe filed suit in federal court to enjoin the county’s foreclosure proceedings on the grounds of tribal sovereign immunity. In the decision below, the U.S. Court of Appeals for the 2nd Circuit recognized that sovereign immunity does not prohibit local jurisdictions from asserting claims over immovable property in their territories. However, the 2nd Circuit ruled that the immovable-property exception to sovereign immunity did not apply because the foreclosure proceedings were fundamentally about tax enforcement, not property.

These and other petitions of the week are below:

Kansas Natural Resource Coalition v. Department of the Interior
20-1195
Issues: (1) Whether a party vindicating a procedural injury lacks standing unless it can establish with certainty that procedural compliance would change the outcome of subsequent agency action; and (2) whether, under the strong presumption favoring judicial review of agency action, agency violations of the Congressional Review Act’s rule-submission requirement are subject to judicial review.

Jooce v. Food and Drug Administration
20-1203
Issues: (1) Whether a regulation may be ratified if the appointments clause prohibited the purported agent’s exercise of rulemaking authority; and (2) whether, if so, the ratification must comply with the constraints that would normally govern an officer’s rulemaking, such as the Administrative Procedure Act’s “reasoned decision-making” requirement.

Seneca County, New York v. Cayuga Indian Nation of New York
20-1210
Issue: Whether tribal sovereign immunity bars local tax authorities from collecting lawfully imposed property taxes by foreclosing on real property that a tribe has acquired on the open market.

Gatewood v. United States
20-1233
Issues: (1) Whether cause exists to excuse a habeas petitioner’s procedural default when near-unanimous circuit precedent foreclosed the petitioner’s claim; and (2) whether cause exists to excuse a habeas petitioner’s procedural default when the Supreme Court explicitly overrules one of its precedents.

Tully v. Okeson
20-1244
Issues: (1) Whether Indiana violates the 26th Amendment to the U.S. Constitution by giving voters age 65 and older the right to cast an absentee ballot by mail while requiring otherwise identical voters age 18 to 64 to cast their ballots in-person; and (2) whether, in circumstances where in-person voting presents special dangers, Indiana’s absentee voting scheme violates the 14th Amendment to the U.S. Constitution by burdening the right to vote of voters age 18 to 64.

Valentine v. Phillips
20-1246
Issues: (1) Whether the U.S. Court of Appeals for the 6th Circuit violated Federal Rule of Civil Procedure 52(a)(6) when it failed to apply the proper, heightened and deferential standard to the district court’s expert witness credibility determination; and (2) whether the 6th Circuit usurped the district court’s expert witness gatekeeping function when it held that the district court should have credited the testimony of Johnny Phillips’s expert — and granted Phillips’s petition — simply because that testimony was not blatantly self-serving or dishonest.