A newly filed antitrust appeal to the Supreme Court, a significant test of the proof needed to show below-cost pricing to try to drive out a competitor, has been taken off the Court’s docket because it was not filed before a deadline. The appeal by Northwest Airlines, besides raising key antitrust law questions, also had the potential for providing some basic legal rules for competition between large, mainline airlines and small, low-cost and no-frills rivals who seek to move into their markets. The case was Northwest Airlines v. Spirit Airlines, docketed as 06-77 on July 17 but removed from the docket on July 20.

Attorneys for Northwest are trying to salvage the appeal: they have asked the Court to allow the case to go forward despite its tardiness. That maneuver has raised some basic questions about how binding the Supreme Court’s appeal-filing deadlines are. The airline’s attorneys are making an argument that they actually were not too late in filing the case, at least as a matter of what federal law requires or permits. (The motion to file the case anew is scheduled for consideration by the Court at its Sept. 25 Conference, according to the Court’s electronic docket.)

The Supreme Court’s rules specify (Rule 13.2) that “the Clerk will not file any petition for a writ of certiorari that is jurisdictionally out of time. See, e.g., 28 U.S.C. sec. 2101(c).” And Rule 13.1 gives attorneys 90 days after a lower court has completed a case to file such a petition. A separate provision (Rule 13.5) allows any Justice to extend the time to file for up to 60 days, but only if that is requested at least 10 days before the 90-day period would be up.

In the Northwest Airlines case, the 90 days started running on April 13, 2006, when the Sixth Circuit Court denied rehearing en banc of a Dec. 15 decision that ran against the major carrier and in favor of its small rival, Spirit Airlines. But, according to a motion filed in the Supreme Court July 21 by Northwest’s Supreme Court counsel, the attorneys had thought — “mistakenly,” they now concede — that the Circuit Court’s order was dated April 17. That was the day they learned of it. They thus calculated that they had until July 17 to file their petition in the Supreme Court. They did file on that date, “unaware of the error,” according to the motion.

The Court’s Clerk’s office, also apparently not realizing the error, put it on the docket. But on July 20, that office notified counsel that the correct Circuit Court date was April 13, and that the case thus would be taken off the docket.

Acknowledging that the Court ordinarily treats its deadlines as mandatory, the airline motion contends that, by statute, the actual maximum time lapse allowed is not 90 days, but 90 days plus the potential additional 60 that a Justice may allow. “There can be no doubt, then, of this Court’s power to accept a petition tendered more than 90 days, but less than 150 days, after the denial of rehearing,” the motion argues. “The question is one of a Justice’s exercise of discretion.” Thus, saying that counsel error “was made innocently and in good faith,” the airline lawyers asked the Court to accept the petition even though filed five days late or, in the alternative, treat it as an application to Justice John Paul Stevens, the Circuit Justice for the Sixth Circuit, as a request for a five-day extension of the 90-day filing deadline (even though such a request was not made prior to the filing deadline as required).

The underlying antitrust case grows out of complaints by Spirit Airlines that it entered, and then was forced by Northwest to abandon, the market for air passenger travel between Detroit and Boston and between Detroit and Philadelphia in the mid-1990s.

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There has been a lot of heated point-counterpoint in the major news outlets and the blogosphere over several different legal issues during the last two days.

First off, yesterday Senator Kennedy had this op-ed in the Washington Post simply titled “Roberts and Alito Misled Us.” Matthew Franck responds to the piece here at the blog Bench Memos, and Jonathan Adler has a reaction here at the Volokh Conspiracy.

Also in yesterday’s Post, Benjamin Wittes has an article arguing for changing the confirmation hearings of Supreme Court nominees; the article can be read here.

Meanwhile, the Wall Street Journal and the ABA have been engaged in their own give-and-take. It began last week when the Journal published this editorial accusing the ABA of being ideologically biased in its evaluations of federal judicial nominees, stating that “it is past time to cut the ABA out of the vetting process all together.”

ABA president Michael Greco responded today in this letter to the editor arguing that last week’s editorial was “irresponsible” and “widely misses the mark.”

The Journal then replied to Greco’s letter, maintaining its claims that the ABA is fundamentally biased. In an editorial here, the Journal’s editorial board cites the recent ABA task force report critical of presidential signing statements as more evidence of the organization’s liberal bias.

In that editorial, one of the points that the Journal makes is that, “the ABA excluded [from the task force] such Democrats as former head of the Clinton Administration’s Office of Legal Counsel Walter Dellinger, who wrote a 1993 memo saying the President has an obligation to disregard unconstitutional laws.” Dellinger does voice his opinion on this issue, however, here in an op-ed in today’s New York Times.

Also on the editorial page of today’s Times is this op-ed called “The Insanity Defense Goes Back on Trial,” which discusses the status of the insanity defense in the wake of the Supreme Court’s recent ruling in Clark v. Arizona.

The Supreme Court turned aside on Monday an effort by parents of public school children in Lynn, Mass., to reopen their case against a student assignment plan. In a brief mid-summer order, the Court denied the parents permission to file a rehearing request in a case that the Justices had refused to hear in December. (Monday’s order list can be found here.)

The Court issued two pages of denials of rehearing in cases it had disposed of earlier, and issued orders refusing permission to file rehearing petitions in the Lynn case and two pauper cases, as well as a dozen attorney discipline matters.

The Lynn case is Comfort v. Lynn School Committee (docket 05-348). The First Circuit in that case upheld a student assignment plan based in part on the race of students, with the aim of achieving racial diversity in city schools. At the time the Supreme Court declined to hear the case, the Justices had not yet seen two other student assignment cases, which were filed in January. In June, the Court agreed to hear those other two cases, in the Term that starts Oct. 2. Those cases are from Seattle (05-908) and Louisville, Ky. (05-915.)

In response to the grants in those cases, the Lynn parents sought rehearing, arguing that it would be “manifestly unfair” to them if the Court should ultimately strike down such plans, while the Lynn plan remained in place. In order to file their petition formally, however, the parents had to have the Court’s permission, since their rehearing plea was filed beyond the time the Court’s rules allow. That permission was refused on Monday.

If the Court does, in fact, strike down such student assignment plans, federal court rules would allow the Lynn parents to return to lower courts to ask to be relieved of the ruling against their challenge.

The denial of rehearing in the other cases Monday appeared to be routine. The Court seldom grants rehearing of decided or previously denied cases. Although the Court is in summer recess, it issues orders from time to time disposing of rehearing petitions and other miscellaneous matters.

The D.C. Circuit Court on Friday gave a Louisiana congressman a significant, initial victory in his constitutional feud with the Justice Department over materials seized from his Capitol Hill office during a bribery investigation search. The three-judge panel ordered a U.S. District judge to give Democratic Rep. William Jefferson a chance to examine papers and computer disks as a basis for claiming that they are constitutionally protected as “records of legislative acts.”

The Circuit Court barred the Justice Department from reviewing any of the seized materials “pending further order of this Court.”

The two-page order was a victory for the congressman in four separate ways:
First, it provided an initial recognition that some of the materials may be protected by the Constitution from use in the bribery investigation — a claim that had been rejected totally by Chief U.S. District Judge Thomas F. Hogan. Since the Circuit Court did not explain its order, it was unclear whether this represented a recognition that the Speech or Debate Clause, or the concept of separation of powers, or both, provided at least a temporary shield. (See Adam Whjite’s comment, below, for an interpretation of the order on this point.)
Second, the order put the task of the first review of whether some materials were legislative in nature in the congressman’s hands, not in either the hands of Judge Hogan or of the Justice Department, although Hogan gets the last word at the District Court level on this.
Third, the order impliedly rejected outright a Justice Department proposal that its own “filter team” of lawyers or agents not involved in the investigation should make the first review to see if any materials were legislative.
Finally, it silently rejected the Justice Department argument that a member of Congress had no right to pursue an immediate appeal to test constitutional claims about an ongoing criminal investigation involving a Capitol Hill office search.

While Jefferson may not ultimately prevail on any claim of legislative privilege, the temporary order clearly sets a precedent that puts the Justice Department on notice that it does not have unqualified authority — even with a court-approved warrant — to enter a legislative office, seize papers and computer files, and decide on its own how to use them in a criminal investigation. That development may strengthen the hand of the leadership of the House in continuing talks with the Justice Department to work out a protocol for future potential searches on Capitol Hill.

The Circuit Court order has five aspects:
First, the case was sent back to Judge Hogan (who had twice rejected all of Jefferson’s constitutional claims, and had issued the initial search warrant) with instructions to use either “a judicial officer or a special master” to copy all physical documents and give copies to Jefferson and to sort through the computer files to search for potential criminal evidence that the initial warrant had listed and give Jefferson a list of those.
Second, Jefferson is given two days after receiving the materials to submit to Hogan — without sharing with the Justice Department — “any claims that specific documents or records are legislative in nature.”
Third, Hogan is to review in camera any items that Jefferson claimed were legislative, and make findings for or against those claims.
Fourth, the Justice Department in the meaning is “enjoined from reviewing any documents or records seized from Congressman Jefferson’s office pending further order of this Court.”
Finally, the case at the Circuit Court is held in aberyance pending Judge Hogan’s rulings as directed. Hogan was asked to notify the Circuit Court “promptly upon its determination of the question on remand.”

The order by implication rejected Jefferson’s demands that the materials be returned to him, but that was considerably outweighed by the recognition of the constitutional foundation for his objections to the seizure. At the same time, however, the order provides no hint of how the Circuit Court might ultimately resolve the constitutional confrontation.

The order was issued by Circuit Judges David B. Sentelle, Janice Rogers Brown and Thomas B. Griffith.

Jefferson’s attorneys said in a statement that they were “continuing to study the order and the procedures that recognize the importance of the Speech or Debate Clause.” The Justice Department said it was pleased that the Circuit Court acted expeditiously, adding that “it is clear they understand the importance of moving this matter forward.”

The case is U.S. v. Rayburn House Office Building Room 2113 (docket 06-3105). When the case was at the District Court level, it was styled In the Matter of the Search of Rayburn House Office Building Room Number 2113.” The title in the Circuit Court has a somewhat more confrontational cast to it, making it appear to be an inter-branch dispute with constitutional overtones. (PACER subscribers can call up the text of the order at the Circuit Court’s website, on the docket page for this case; it is order number 983171, dated July 28, 2006. Three days earlier, the Court had issued an administrative stay while it studied the congressman’s motion for an emergency stay.)

While it is conceivable the Justice Department could try to take the issue to the Supreme Court, that seems unlikely at this point and, in any event, very likely would fail.

SCOTUSblog’s own Lyle Denniston has published a piece in the Chapman Law Journal entitled, “Legal Blogs: The Search for Legitimacy.” The article can be found online here.

Today we filed the attached petition (and appendix) presenting the following question:

When police conduct an illegal search and use the fruits of the search to secure a warrant, does the “good faith exception” to the exclusionary rule apply to the fruits of the second search?

The petition was done by lawyers and summer associates at Akin, as well as by the lawyers at Howe & Russell.

Over on Balkinization, I’ve linked to a draft of the legislation that the Bush Administration is considering in response to Hamdan.

As I note over there, it’s fair to assume it’s a work in progress. There’s also reason to believe that this is not the entirety of the proposals — for one thing, Common Article 3 is discussed only in the Findings, not in any operative provisions. But it likely contains most of the draft proposals on military commissions — and even, for the first time, statutory detention authority, defined to cover all “enemy belligerents.”

On first glance, it does not appear to be limited to aliens, nor even to Al Qaeda and other groups and individuals covered by the September 18, 2001 AUMF — it covers any and all “enemy combatants” against the U.S. and its allies in any conflict, anywhere and at any time.

After a considerable delay, the D.C. Circuit Court has asked lawyers involved in two packets of war-on-terrorism cases to file new briefs on how those cases are affected by the Supreme Court’s June 29 ruling in Hamdan v. Rumsfeld (05-184). In an order issued Wednesday, the Court finally responded to a Justice Department request — filed on June 30 — for supplemental briefing. The Circuit Court had appeared to be simply ignoring that request.

The new order lays out a new briefing schedule but gives no indication whether the Circuit Court will hold oral argument on the issue. The Justice Department is to file the government’s views on Aug. 1, the detainees’ lawyers are to respond by Aug. 8, and the government may file a reply by Aug. 15.

There was no explanation for the order. But one possible speculation could be that the Circuit panel, after weighing on its own the effect of the Hamdan decision, found it was having difficulty sorting out the question and opted to ask for some help from the attorneys on both sides.

The Supreme Court’s decision in the Hamdan case dealt specifically with the legality of the war crimes “military commissions” set up for individual detainees at Guantanamo Bay who face such charges — a total of 14 foreign nationals. The Court decided in that case that Congress, in passing the Detainee Treatment Act late last year, had not wiped out the Supreme Court’s authority to decide the Hamdan case. The Court’s language was broader, however, saying (in footnote 15) that the Detainee Act’s section on the effective date of the law “does not strip federal courts’ jurisdiction over cases pending on the date of he DTA’s enactment.” But that opinion (in footnote 14) also said the Court was not deciding whether some habeas cases pending at the time of enactment would be taken away from District Courts and shunted to the D.C. Circuit for a narrower form of review, under other effective date provisions in the Detainee Act.

That left the D.C. Circuit with the task of deciding, in the first instance, whether the Detainee Act in fact had wiped out the authority of lower courts to decide challenges to detention by individual captives who have not been charged with war crimes, but are simply being held for an indefinite period.

The Justice Department, in asking for new briefing on that point in the Circuit Court, had said that the Supreme Court decision in Hamdan was “obviously pertinent” to the other detainee cases. But the detainees’ lawyers countered that the Supreme Court had already settled the issue, and that the Detainee Act did not apply to cases that were pending in the federal courts at the time that Act was passed. The detainees’ counsel said no further briefing was needed.

That is the issue the new briefs will focus upon, and the D.C. Circuit will then have to decide. There is no set timetable for a decision.

In its June 30 request for new briefs, the Justice Department had suggested that the new briefing should be completed by July 17. That date, however, came and went without any response from the Circuit Court, until it issued the order on Wednesday.

This New York Times story details the new White House bill that proposes a system to try detainees at Guantanamo. Jack Balkin, in a post here, notes that the new system is “largely based on the model the Supreme Court struck down in Hamdan.”

At Crime and Consequences, Kent Scheidegger has a post (here) detailing three Supreme Court amicus briefs that the Criminal Justice Legal Foundation has filed in the last month or so.

Elizabeth Price Foley has an op-ed in Jurist claiming that the recent veto by President Bush of a bill expanding stem cell research is “antithetical to the rulings of the US Supreme Court.” Her thoughts can be found here.

Ilya Somin, in a post here at the Volokh Conspiracy, details a recent decision by the Ohio Supreme Court which appears to contradict certain aspects of the US Supreme Court’s decision in Kelo.

Finally, for a bit of late afternoon legal humor, you’ll want to check out the video (on YouTube) of Neal Katyal on the Colbert Report. Since Colbert (or, rather, his Comedy Central persona) strongly disagrees with the decision in Hamdan, Katyal is faced with such questions as, “Why do hate our troops?” and “When did you first realize that you hated our country?” To watch the interview, click here.

Senate Judiciary Committee Chairman Arlen Specter, Pennsylvania Republican, would provide a significant role for the Supreme Court and lower courts in reaction to statements that Presidents make in signing new legislation into law. On Wednesday, Specter introduced S. 3731, “the Presidential Signing Statements Act of 2006,” to begin congressional consideration of the idea. The text of the bill is here. Specter’s statement on introduction of the measure can be found here; the statement is taken from the Congressional Record. President Bush has been drawn into a rising controversy over aggressive use of such statements, particularly to signal his unwillingness to follow some parts of new laws that he has signed.

Specter’s bill would create a rule of statutory interpretation, to be followed by the Supreme Court and all lower federal courts, that they may not rely upon a presidential signing statements in determining what a federal statute means. Specter noted that the Supreme Court’s reliance on such statements “has been sporadic and unpredictable.”

The proposal next would allow Congress to go into court — presumably, U.S. District Court — “to seek a declaratory judgment on the legality of presidential signing statements that seek to modify — or even to nullify — a duly enacted statute,” as Specter put it.

Finally, in a provision that would apply only to the Supreme Court, the bill would give Congress “the power to intervene in any case in the Supreme Court where the construction or constitutionality of any act of Congress is in question and a presidential signing statement for that act was issued.” Specter commented: “That way, if the Court is trying to determine the meaning or the constitutionality of an act, the Congress gets a voice in the debate.”

Some of these ideas track proposals made earlier this week by an American Bar Association task force, discussed here.

UPDATE Wednesday p.m. Stolt-Nielsen S.A. on Wednesday took its plea to delay an antitrust prosecution to another member of the Supreme Court, Justice John Paul Stevens, after being rebuffed Tuesday by Justice Souter. The company also announced in a press release that, if it fails to head off an indictment, it will move promptly in federal court to dismiss any charges, using the same legal arguments it has made in trying to prevent prosecution up to now.

Supreme Court Justice David H. Souter on Tuesday afternoon cleared the way for the Justice Department Antitrust Division to seek a criminal indictment of a Norwegian ocean shipping company and at least one of its executives in a case involving alleged division of customers among competitors. In a brief order containing no explanation, Souter denied an application to stay and to recall a Circuit Court mandate that allows the Department to proceed. (The application was in 06-A-79, Stolt-Nielsen S.A., et al., v. U.S.) Stolt-Nielsen had asked for delay of any indictment until after the Supreme Court acted on its appeal challenging the government’s authority to go ahead. It claims the Antitrust Division is violating an immunity deal.

Souter took no action on the pending petition for review (06-97). There was no indication that he had consulted with his colleagues before denying the stay application. He was not required to do so, since he had authority in his role as Circuit Justice for the Third Circuit to deal with the application.

If the denial of a stay is actually followed by an indictment, a question would arise whether the petition would be moot, since the only issue it seeks to raise is whether federal courts lack the authority to block an indictment that allegedly breaches a promise not to prosecute.

The Justice Department, in opposing a stay, argued that Stolt-Nielsen could use its claim of a broken immunity promise as a defense once it had been indicted.

Earlier posts below describe the dispute more fully.

Much ado about presidential signing statements today in the wake of an ABA task force report on their use. For more details on the report, see Lyle’s earlier post here or see this article by the Boston Globe’s Charlie Savage.

As can be seen here, the editorial page of the New York Times endorses the recommendations in the ABA report and voices its disapproval of the way President Bush has used them.

As Lyle previously mentioned, Senator Specter has proposed a bill that would allow litigation over such statements. The Washington Post carries an AP story about the bill, which is expected to be formally introduced later this week, here.

Orin Kerr has thoughts on Senator Specter’s op-ed in support of his other major bill, dealing with the NSA wiretapping program, here.

Moving away from topics that Senator Specter is directly invovled with, Julie Hilden has a post here at Findlaw commenting on how the Justices dealt with Buckley in their recent Vermont campaign finance decision.

UPDATE Tuesday a.m. — Stolt-Nielsen S.A.on Friday renewed its plea to Justice Souter for a stay pending review of the company’s appeal challenging the Justice Department’s impendng plan to indict it on antitrust charges. Answering the Justice Department’s opposition to its stay application, the company sought to reinforce its claim that there is a conflict in the circuits, and to strengthen its claim that it faces a significant financial setback if indicted. “If any recent marketplace development sheds any light on the likely effect of an indictment, it is Stolt-Nielsen’s stock price, which has fallen 36.5 percent since the Third Circuit ruling on March 23, 2006, representing a loss in market capitalization of over $750 million. The securities market obviously perceives that an indictment portends serious consequences for the company.”

The Justice Department on Monday asked Supreme Court Justice David H. Souter to clear the way for it to seek a criminal indictment of a Norwegian-based ocean shipping company and at least one of its executives, for roles in an alleged plot to divide up business in a liquids-shipping global market. The company involved, Stolt-Nielsen S.A., is in sound financial condition, the Department argued, and will not suffer just because it is indicted. There is no chance, it suggested, that the Supreme Court would agree to hear the company’s case, and no chance the Court ultimately would bar the government from pursuing charges.

An earlier post on the case can be found here.

Stolt-Nielsen and its shipping subsidiary, Stolt-Nielsen Transportation Group LTD., have asked Justice Souter to block any indictment of the companies and executives until the Court takes final action on a new appeal. That appeal (06-97) claims that the Justice Department has broken a promise not to prosecute the company or its employees, so should be barred from seeking formal charges. The company contends that it bargained for immunity by giving up evidence of a customer-allocation plot among it and its competitors — evidence that led to successful criminal prosecution of other companies. (The stay application is 06-A-79.)

Replying on Monday, U.S. Solicitor General Paul Clement told Souter that it should be allowed to go forward with potential indictments because Stolt-Nielsen did not keep its part of the bargain. In the deal with the Justice Department Antitrust Division, Clement said, the company vowed that it had taken prompt action to stop its part in anti-competitive activity in the “parcel tanker” shipping industry. In fact, the Solicitor General said, the company continued to engage in anti-competitive action for several months after being told internally about unlawful conduct. Thus, the leniency pact was void, according to Clement.

The Third Circuit was correct, the new filing contended, in holding that separation-of-powers principles bar the courts from interfering with a Justice Department move to gain an indictment. And, it said, “it is not reasonably probable that the [Supreme] Court will grant” Stolt-Nielsen’s petition for review, since there is no real conflict among lower courts and “no court has held that a party to an agreement like the one in this case holds any entitlement to an injunction barring indictment.”

Stolt-Nielsen, he argued, has a potential remedy for its claim that the government backed out on its side of the immunity deal: if an indictment is filed, it can raise the deal as a defense at that point and seek to have the indictment dismissed.

As to the company’s claim that merely being indicted will cause significant financial and other injuries, threatening ruin, Clement said that “bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship.” And, in any event, he added, Stolt-Nielsen “is profitable, its existing contracts would require customers to use [its] services for the duration of the contracts, and there is no indication that an indictment based on past conduct could irreparably ‘destroy’ [its] ability to retain and secure contracts for its services or ‘ruin’ its financial viability.”

Clement added in a footnote that the Antitrust Division does not intend to seek any indictment until the Court disposes of the stay request, so, he said, there is no need for a temporary stay while studying the matter. Justice Souter has given no indication when he would act, or whether he will pass the decision on to the full Court.

UPDATE: Chairman Arlen Specter (R-Pa.) of the Senate Judiciary Committee announced on Monday that he will introduce legislation before week’s end to “give the Congress standing to take into the federal courts situations where the President has issued such signing statements and to authorize the Congress to undertake judicial review of those signing statements with the view to having the President’s acts declared unconstitutional.” Specter’s statement can be found here.

A task force of the American Bar Association is urging Congress to give the Supreme Court and lower federal courts the power to judge the constitutionality of a president’s public statements of how new laws will be enforced — apparently, before a president ever takes action to carry out such a statement. For the first time in history, it appears, the courts would have the authority to review presidential intentions, as opposed to fully formed or final actions. That is perhaps the boldest (though least explained) of the recommendations that the task force made on Monday in a new report that is sharply critical of presidential “signing statements” — the official utterances of presidents when they sign a new piece of legislation into law, putting their spin on meaning.

For years, a controversy has raged in the legal academy and among federal government insiders about that presidential practice, often used to register presidential complaints without actually exercising a veto to block what the White House perceived to be a flawed legislative product. Often, such statements have been used to resist apparent curbs on presidential prerogative. Back in the Reagan Administration, it was an active project at the Justice Department to encourage greater use of presidential signing statements. And, the Bush Administration has made it a priority tool in its wide claims of presidential power, even if such claims run directly contrary to what Congress has enacted (as in last year’s signing statement excepting to Congress’ attempt to ban torture of detainees in the war on terrorism).

More recently, this became a side issue in the Supreme Court confirmation hearings of Justice Samuel A. Alito, Jr., who, as a young Justice Department aide, was involved in that project in the Reagan years. Now that the media had belatedly discovered this controversy, however, it has been gaining in political prominence. And the ABA task force report is likely to give it a new push of publicity. (The ABA task force speaks only for that 11-member task force, at least until the ABA’s House of Delegates gets a chance to say, at a convention in early August, whether to make the report a formal part of ABA policy.)

The task force’s full report can be found here. For purposes of this post, the focus is on the proposal for granting new judicial review of presidential signing statements. That reads as follows::

“Further resolved, that the American Bar Association urges Congress to enact legislation enabling the President, Congress, or other entities or individuals, to seek judicial review, to the extent constitutionally permissible, in any instance in which the President claims the authority, or states the intention, to disregard or decline to enforce all or part of a law he has signed, or interprets such a law in a manner inconsistent with the clear intent of Congress, and urges Congress and the President to support a judicial resolution of the President’s claim or interpretation.”

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The Sixth Circuit Court on Friday vacated a controversial ruling issued in April that had relied upon the Supreme Court’s 2000 decision in Bush v. Gore to strike down the use of different voting technology in different Ohio counties. The Circuit Court panel found the systems gave some counties’ voters less chance of having their votes counted, thus violating the legal equality assured to voters in the disfavored counties. At issue were punch-card or optical scanning systems that do not give voters a chance to find mistakes on their ballot and correct them.

None of the challenged technology was used when Ohio voters went to the polls in the May 2 primary, state officials have insisted. Three days after the primary, three separate requests for rehearing the case en banc were filed with the Circuit Court. The case is Stewart v. Blackwell (Circuit docket 05-3044).

In four orders issued on Friday (not posted on the Circuit Court’s website), the Court granted rehearing en banc on all three petitions, vacated the panel decision, and issued a stay of the mandate that would have implemented the earlier decision.

An earlier post analyzing the panel ruling can be found here.