Petitions of the week

North Carolina’s voter-ID lawsuit, racial bias in juries and a veteran’s disability claim

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether two North Carolina legislators may intervene in a case challenging the state’s voter-ID law, whether a Black man on death row may present new evidence of racial bias in his jury selection, and whether a veteran may seek disability benefits previously denied under a since-rejected regulatory interpretation.

Berger v. North Carolina State Conference of the NAACP addresses the ability of North Carolina legislators to defend the state’s voter-ID law from lawsuits under the Constitution and the Voting Rights Act. After plaintiffs challenged the law, the president pro tempore of the state senate and the speaker of the state house of representatives sought to intervene in the case as state agents under a state law. The en banc U.S. Court of Appeals for the 4th Circuit eventually affirmed the district court’s denial of the legislators’ attempt on the ground that the state attorney general was adequately defending the law. In their petition, the legislators argue that courts are split as to whether an official seeking to intervene in a case under a state law must prove that the state’s interest is not adequately represented.

In Broadnax v. Lumpkin, James Broadnax asks for the Supreme Court to review a lower-court decision that prevented him from introducing evidence that may have proved racial bias in his trial. Federal law curtails the extent to which a federal court can consider arguments that a prisoner has not presented in state court. In Broadnax’s case, a Texas court had already rejected his challenge that racial bias tainted his trial, in which a nearly all-white jury convicted him, a Black man, of murdering two white victims. Since his state challenge, the prosecuting office disclosed to Broadnax’s counsel its files on Broadnax’s jury selection that it had earlier claimed were privileged. The files included spreadsheets identifying potential jurors by race (and the state had struck each of the Black potential jurors from the jury pool). Both the district court and the U.S. Court of Appeals for the 5th Circuit did not consider Broadnax’s new evidence, however, because it was not part of the record before the state courts. Broadnax argues that the Supreme Court has left open whether new evidence can allow for new arguments in federal court.

In the 1970s, the Department of Veterans Affairs denied Kevin George’s claim for disability benefits on the basis of a VA regulation — one that the U.S. Court of Appeals for the Federal Circuit later struck down as contrary to the unambiguous statutory text. Since then, George has sought a reversal of the denial of his claim under a standard of “clear and unmistakable error.” The Federal Circuit rejected George’s argument on the ground that the VA had applied the law in existence at the time. In his petition, George counters that a federal court’s interpretation of an unambiguous statute is not a mere change in interpretation but declares what the law has always meant. The case is George v. McDonough.

These and other petitions of the week are below:

SNH SE Ashley River Tenant, LLC v. Arredondo
21-196
Issue: Whether the Federal Arbitration Act preempts the South Carolina Supreme Court’s arbitration-specific approach to construing comprehensive powers of attorney to preclude an agent’s power to agree to arbitrate future claims.

George v. McDonough
21-234
Issue: Whether, when the Department of Veterans Affairs denies a veteran’s claim for benefits in reliance on an agency interpretation that is later deemed invalid under the plain text of the statutory provisions in effect at the time of the denial, that is the kind of “clear and unmistakable error” that the veteran may invoke to challenge VA’s decision.

Berger v. North Carolina State Conference of the NAACP
21-248
Issues: (1) Whether a state agent authorized by state law to defend the state’s interest in litigation must overcome a presumption of adequate representation to intervene as of right in a case in which a state official is a defendant; (2) whether a district court’s determination of adequate representation in ruling on a motion to intervene as of right is reviewed de novo or for abuse of discretion; and (3) whether petitioners Philip Berger, the president pro tempore of the state senate, and Timothy Moore, the speaker of the state house of representatives, are entitled to intervene as of right in this litigation.

Broadnax v. Lumpkin
21-267
Issue: Whether, under 28 U.S.C. § 2254(d) and Cullen v. Pinholster, a federal habeas petitioner may present evidence of a prosecutor’s racially discriminatory intent in support of a claim under Batson v. Kentucky when the evidence was not available to the petitioner during state court Batson proceedings.