Bethune-Hill v. Virginia State Board of Elections

Bethune-Hill v. Virginia State Board of Elections

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Conference of May 16, 2019

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
15-680	E.D. Va.	Dec 5, 2016 Tr.Aud.	Mar 1, 2017	7-1	Kennedy	OT 2016

Holding: (1) The district court employed an incorrect legal standard in determining that race did not predominate in 11 of 12 new state legislative districts drawn by the Virginia State Legislature after the 2010 census; and (2) the district court's judgment regarding District 75 -- that the legislature had good reason to believe that a 55 percent target for black voting-age population was necessary to avoid diminishing the ability of black voters to elect their preferred candidates, which at the time would have violated Section 5 of the Voting Rights Act of 1965 -- is consistent with the basic narrow tailoring analysis explained in Alabama Legislative Black Caucus v. Alabama.

Judgment: Affirmed in part, vacated in part, and remanded, 7-1, in an opinion by Justice Kennedy on March 1, 2017. Justice Alito filed an opinion concurring in part and concurring in the judgment. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part.

Symposium: Bringing sanity to racial-gerrymandering jurisprudence (Anita Earls)
Symposium: The Goldilocks principle of redistricting (Hans von Spakovsky)
Symposium: A recipe for continued confusion and more judicial involvement in redistricting (Andrew Brasher)
Symposium: Court provides clarification of redistricting challenges, but conflict on use of race remains (Kimberly Hermann)
Symposium: Court clarifies review of racial gerrymandering, but does not impose strict scrutiny on every intentional creation of a majority-minority district (Kristen Clarke and Ezra Rosenberg)
Symposium: The court continues winding down unnecessary racial redistricting (Richard Pildes)
Opinion analysis: Court sends majority-minority districts back for another look in Virginia gerrymandering case (Amy Howe)
Argument analysis: Lots of questions, no easy answers in redistricting cases (Amy Howe)
Argument previews: Racial gerrymandering returns to the court (Amy Howe)
Court reopens race and death penalty issues (Lyle Denniston)

Date	Proceedings and Orders (key to color coding)
Nov 20 2015	Statement as to jurisdiction filed. (Response due December 23, 2015)
Dec 04 2015	Waiver of right of appellees Virginia State Board of Elections, et al. to respond filed.
Dec 22 2015	Motion to dismiss or affirm filed by appellees Virginia House of Delegates, and Speaker William J. Howell.
Dec 30 2015	Reply of appellants Golden Bethune-Hill, et al., Appellants filed.
Jan 06 2016	DISTRIBUTED for Conference of January 22, 2016.
Jan 11 2016	Record requested from the U.S.D.C. Eastern Dist. of Virginia.
Jan 13 2016	Record Requested.
Jan 21 2016	Record received from the USDC-Eastern District of Virginia (3 boxes). The remainder of the record is electronic and available on PACER.
Jan 27 2016	DISTRIBUTED for Conference of February 19, 2016.
Feb 22 2016	Supplemental brief of appellants Golden Bethune-Hill, et al., Appellants filed. (Distributed)
Feb 23 2016	Supplemental brief of appellees Virginia House of Delegates, and Speaker William J. Howell filed. (Distributed)
May 23 2016	DISTRIBUTED for Conference of May 26, 2016.
May 31 2016	DISTRIBUTED for Conference of June 2, 2016.
Jun 06 2016	PROBABLE JURISDICTION NOTED.
Jun 23 2016	Record from U.S.D.C. Eastern District of Virginia has been returned.
Jun 30 2016	The time to file the joint appendix and appellants' brief on the merits is extended to and including September 7, 2016.
Jun 30 2016	The time to file appellees' and intervenor-appellees' brief on the merits is extended to and including October 7, 2016.
Sep 07 2016	Joint appendix filed. (6 Volumes)
Sep 07 2016	Brief of appellants Golden Bethune-Hill, et al. filed.
Sep 09 2016	Consent to the filing of amicus curiae briefs in support, of either party or of neither party, received from counsel for Appellants.
Sep 13 2016	Brief amicus curiae of OneVirginia2021: Virginians for Fair Redistricting filed.
Sep 14 2016	Brief amicus curiae of United States supporting vacatur in part and affirmance in part filed.
Sep 14 2016	Brief amicus curiae of Constitutional Accountability Center filed.
Sep 14 2016	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for Appellees.
Sep 14 2016	Brief amici curiae of NAACP and Virginia NAACP filed.
Sep 14 2016	Brief amici curiae of Campaign Legal Center, et al. filed.
Sep 14 2016	Brief amicus curiae of Lawyers' Committee for Civil Rights Under Law in support of neither party filed.
Oct 03 2016	Extension of time within which to file appellees' and intervenor-appellees' brief on the merits to and including October 17, 2016.
Oct 12 2016	Letter from counsel for Defendants-Appellees, Virginia State Board of Elections, et al., notifying the Clerk they will not file a separate brief on the merits.
Oct 17 2016	Brief of appellees Virginia House of Delegates, and Speaker William J. Howell filed.
Oct 20 2016	Brief amici curiae of Southeastern Legal Foundation, and the Center for Equal Opportunity filed.
Oct 21 2016	SET FOR ARGUMENT on Monday, December 5, 2016
Oct 21 2016	Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
Oct 24 2016	Brief amici curiae of Political Scientists Thomas L. Brunell, et al. filed. (Distributed)
Oct 24 2016	Brief amici curiae of National Black Chamber of Commerce and The Hispanic Leadership Fund filed. (Distributed)
Oct 24 2016	Lodging proposal from amici National Black Chamber of Commerce and the Hispanic Leadership Fund to lodge copies of a report (the "Lowen Report"), excerpts of which are include in the appendix to their amici brief.
Oct 26 2016	CIRCULATED.
Nov 01 2016	Record requested from the U.S.D.C. Eastern Dist. of Virginia.
Nov 04 2016	Letter from Appellants opposing National Black Chamber of Commerce and the Hispanic Leadership Fund's proposed lodging.
Nov 04 2016	Records received from the U.S.D.C. Eastern Dist. of Virginia is electronic and located on PACER. Also received are 3 boxes of Trial Exhibits.
Nov 14 2016	Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
Nov 16 2016	Reply of appellants Golden Bethune-Hill, et al. filed. (Distributed)
Dec 05 2016	Argued. For appellants: Mark E. Elias, Washington, D. C. For United States, as amicus curiae: Irv Gornstein, Counselor to the Solicitor General, Department of Justice, Washington, D. C. For appellees: Paul D. Clement, Washington, D. C.
Mar 01 2017	Adjudged to be AFFIRMED IN PART, VACATED IN PART, and case REMANDED. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in part and concurring in the judgment. Thomas, J., filed an opinion concurring in the judgment in part and dissenting in part.
Mar 10 2017	Application (16A887) to issue the judgment forthwith, submitted to Justice Kennedy.
Mar 14 2017	Response Requested by Justice Kennedy due no later than Thursday, March 16, 2017.
Mar 16 2017	Response to application from respondent Virginia House of Delegates and Speaker William J. Howell filed.
Mar 20 2017	Application (16A887) denied by Justice Kennedy.
Mar 27 2017	JUDGMENT ISSUED.

Featured Posts

Opinion analysis: Justices narrow bankrupts’ power to rescind contracts in bankruptcy – Ronald Mann

Opinion analysis: Clarity on “clear evidence” of drug pre-emption? – Elizabeth McCuskey

Opinion analysis: Court rejects issue preclusion in affirming Crow Tribe’s treaty hunting right – Gregory Ablavsky
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The Supreme Court released orders from the May 16 conference on Monday; the justices granted Ritzen Group Inc. v. Jackson Masonry, LLC.
On Monday, the justices released their opinions in Mission Product Holdings Inc. v. Tempnology, LLC, Herrera v. Wyoming and Merck Sharp & Dohme Corp. v. Albrecht.
On Thursday, the justices meet for their May 23 conference.
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- Department of Commerce v. New York
  (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- Kisor v. Wilkie
  Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- The American Legion v. American Humanist Association
  (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
- Gamble v. United States
  Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
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Recent Decisions
- Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.
- Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.
- Mission Product Holdings Inc. v. Tempnology, LLC A bankruptcy debtor’s rejection of an executory contract under 11 U.S.C. §365 has the same effect as a breach of that contract outside bankruptcy; such an act thus cannot rescind rights that the contract previously granted.
see all this term’s cases »
Current Relists
- al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.
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Cases argued	70
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Summary reversals	4
Merits cases granted to date	73

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