The Supreme Court, keeping open the option of taking on the issue of denial of voting rights to prison inmates, on Monday decided to ask for the federal government’s legal advice before moving ahead.  In a brief order, the Justices invited the U.S. Solicitor General to offer views on the case of Simmons, et al., v. Galvin (09-920), a test of Massachusetts’ law prohibiting voting by those who were convicted of serious crimes, while they remain in prison.  Once the Court receives that response, for which there is no timetable, the Justices will decide whether to accept the case for review.  That is not likely to come until the next Term, starting in October.

In the Massachusetts case, the inmates raise two issues: whether denial of voting rights to imprisoned felons violates federal voting rights law, on the theory that race bias in the criminal justice system sends more minorities to prison so the resulting loss of voting privileges is in effect based on race, and whether it violates the Constitution’s ban on ex post facto laws to impose the loss of voting as an after-the-fact punishment for an earlier crime.

The Second Circuit Court rejected both arguments.  While that decision agrees with rulings in some other federal appeals courts, the Ninth Circuit Court has twice ruled that such a claim of discrimination may go forward under the Voting Rights Act’s Section 2.  The Ninth Circuit, however, is now reconsidering that issue before the en banc Court.  Whether the Ninth Circuit resolves the issue there before the Solicitor General responds to the Supreme Court’s Monday order seems doubtful, at this point.

The Court, in releasing its orders on Monday, did not grant review of any new cases.  It sent back to lower courts two cases, to reconsider in the wake of rulings by the Justices last week: Trainer Wortham & Co. v. Betz (07-1489), on the time in which to file securities fraud claims, and American Express v. Italian Colors Restaurant (08-1473), dealing with class arbitration.

The Court followed up its ruling last week in a church-state case by opting to stay out of a dispute over the Boy Scouts of America’s access to the facilities of a city park in San Diego.  The case, Boy Scouts v. Barnes-Wallace, et al. (08-1222), had been held without action by the Court pending its ruling in Salazar v.Buono (08-472).  A key issue in the Buono case was whether an individual had a right to sue (“standing”) to challenge a Christian cross located on federal government property in California; the Court found “standing” on a limited basis in its ruling last week.  A similar “standing” issue was the only one raised by the Boy Scouts in their new case.

The Ninth Circuit ruled that a lesbian couple and an agnostic couple have standing to challenge the city of San Diego’s lease to the Scouts of city parkland for youth recreation facilities.  The couples object to the arrangement because the Boy Scouts have a policy, shared by all of its affiliates, that bars atheists, agnostics, and homosexuals from being members or volunteer leaders.  It also requires members to affirm that they believe in God.  The city land at issue in the case is Balboa Park, where the Scouts pay only $1 a year in rent, and Mission Bay Park, which the Scouts are allowed to use for free.

In finding standing in this case, the Ninth Circuit relied on its earlier ruling in the Buono case.  After the Supreme Court granted review of Buono, the Ninth Circuit put the San Diego Scouts case on hold pending final action by the Justices in both the Buono case and on the Scouts’ appeal in the San Diego case.   Thus, with the Supreme Court’s denial of review Monday, the case returns to the Ninth Circuit for further proceedings.  A federal judge had ruled earlier that the city’s arrangement with the Scouts was a violation of the Constitution’s Establishment Clause, requiring church-state separation.

Among other cases denied review on Monday, the Court refused to hear an appeal by state officials in Delaware, seeking to expand sports betting practices in the state.  The case tested what kinds of gambling on sports Delaware was allowed to have for its residents, under a federal law restricting such betting — the Professional and Amateur Sports Protection Act of 1992.  The denied case was Markell, et al., v. Baseball Commissioner, et al. (09-914).

Posted in Cases in the Pipeline