RELIST WATCH

Challenges to a Washington state legislative district

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

It’s been a blissful, relist-free month since the court’s last conference. The justices will have a whopping 440 petitions and applications before them on Friday. Only two of those – both involving the same underlying controversy – are one-time relists.

Washington’s bipartisan redistricting commission redrew the state’s 49 legislative districts, including Legislative District 15, a semi-rural district east of Yakima, and the map was enacted into law. The legality of LD-15, which had an approximately 51.5% Hispanic voting-age population, was subject to two different challenges. The suit now known as Trevino v. Palmer challenged the lawfulness of LD-15 under Section 2 of the Voting Rights Act, arguing that the district was insufficiently Hispanic and therefore diluted the ability of Latinos to elect the candidate of their choice. Washington initially defended the district’s lawfulness but later conceded that its lines were invalid. A group of citizens that had been allowed to intervene then defended the district. Meanwhile, other plaintiffs brought the suit now known as Garcia v. Hobbs, arguing that LD-15 was an unconstitutional racial gerrymander.

Palmer, which was overseen by a conventional one-judge district court, was decided first. There, Judge Robert Lasnik held under Section 2 that LD-15 diluted Hispanic voting power and ordered the creation of a remedial map that increases the district’s population of Hispanic voters.

Because Garcia challenged a voting district on constitutional grounds, it was overseen by a special three-judge district court composed of two district judges (Lasnik and Judge David Estudillo) and one judge from the U.S. Court of Appeals for the 9th Circuit (Judge Lawrence Van Dyke). A majority of the Garcia court composed of the two district judges then dismissed the racial gerrymandering claim as moot under the theory that the Palmer injunction cut off any path to relief. Van Dyke dissented, arguing that his colleagues had “pull[ed] the plug on a case that – even now – still has some life in it” and that if they had reached the merits, Washington state’s map was indeed a racial gerrymander that “cannot survive strict scrutiny.”

Both cases are now before the Supreme Court. Because of the wrinkles of the court’s jurisdictional statutes, Garcia comes from the three-judge district court directly to the Supreme Court as an appeal over which the court has mandatory jurisdiction. Palmer would ordinarily go through the U.S. Court of Appeals for the 9th Circuit, whose judgment would then be subject to discretionary review by petition for a writ of certiorari. But apparently to keep the cases on the same timetable, counsel for the intervenors in Palmer – who also represent appellants in Garcia — have petitioned for “certiorari before judgment,” calling for the Supreme Court to rule immediately in their case before the 9th Circuit has a first crack at it.

The Garcia appellants and Palmer petitioners raise a host of claims of error, including most prominently whether the decision of a one-judge district court in a Section 2 case can divest a three-judge court of its ability to weigh in on a constitutional claim concerning the same district. But there are so many issues that the justices probably needed the extra month just to sort it all out.

That’s all of the new relists. But it’s worth noting that even in mid-February, we have a pair of cases still hanging around from the end-of-summer long conference and on their 11th relists. The cases challenge New York City’s rent-control laws as an uncompensated taking of private property in violation of the Fifth Amendment. Eleven relists is far from a record, but it’s noteworthy anyway.

New Relists

Garcia v. Hobbs, 23-467
Issues: (1) Whether this court has appellate jurisdiction under 28 U.S.C. § 1253 over the order of the three-judge district court empaneled under 28 U.S.C. § 2284 that dismissed as moot an equal protection challenge to Washington State House Legislative District 15, when that dismissal had the practical, literal effect of denying the requested injunction; and (2) whether a majority of the three-judge district court erred in finding this case moot because of the one-judge district court decision enjoining Legislative District 15, which is currently in dispute in a separate appeal, when it remains an open question whether appellant and others will continue to be illegally racially sorted under either old or new district lines.

Trevino v. Palmer, 23-484
Issues: (1) Whether a single-judge district court’s ruling on a claim under Section 2 of the Voting Rights Act, challenging a legislative district, may divest a three-judge panel of jurisdiction to decide a 14th Amendment challenge to that same district; (2) whether the lower court erred by deciding the Section 2 claim before the three-judge panel issued its opinion on the 14th Amendment claim regarding the same legislative district; (3) whether the lower court erred by finding that plaintiffs satisfied the first precondition in Thornburg v. Gingles even though none of plaintiff’s experts analyzed whether the minority community was geographically compact enough to constitute a majority in a single-member district; (4) whether the lower court erred when it found that the Hispanic population of Washington State House Legislative District 15 was politically cohesive and preferred Democratic candidates, even though the district is a majority-Hispanic district where a Latina Republican won by a 35-point margin in the only election held in the district; (5) whether the lower court erred in finding that white voters—who comprise a minority portion of the citizen voting-age population in Legislative District 15—voted as a bloc against the Hispanic-majority’s preferred candidates, despite the lack of legally significant racially polarized voting; (6) whether the lower court erred in its totality of the circumstances analysis in light of Brnovich v. Democratic National Committee and Allen v. Milligan; and (7) whether the single-judge court had jurisdiction under 28 U.S.C. § 2284.

Returning Relists

74 Pinehurst LLC v. New York, 22-1130
Issues: (1) Whether a law that prohibits owners from terminating a tenancy at the end of a fixed lease term, except on grounds outside the owner’s control, constitutes a physical taking; and (2) whether allegations that such a law conscripts private property for use as public housing stock, and thereby substantially reduces its value, state a regulatory takings claim.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9, Nov. 17, Dec. 8, Jan. 5, Jan. 12 and Jan. 19 conferences; rescheduled before the Dec. 1 conference)

335-7 LLC v. City of New York, NY, 22-1170 
Issues: (1) Whether New York’s Rent-Stabilization Laws and accompanying regulations effect a per se physical taking by expropriating petitioners’ right to exclude; (2) whether the laws effect a confiscatory taking by depriving petitioners of a just and reasonable return; and (3) whether the laws effect a regulatory taking as an unconstitutional use restriction of petitioners’ property.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9, Nov. 17, Dec. 8, Jan. 5, Jan. 12 and Jan. 19 conferences; rescheduled before the Dec. 1 conference)

 Speech First, Inc. v. Sands, 23-156
Issue: Whether university bias-response teams — official entities that solicit, track, and investigate reports of bias; ask to meet with perpetrators; and threaten to refer students for formal discipline — objectively chill students’ speech in violation of the First Amendment.
(relisted after the Nov. 17, Dec. 8, Jan. 5, Jan. 12 and Jan. 19 conferences; rescheduled before the Dec. 1 conference)

Coalition for TJ v. Fairfax County School Board, 23-170
Issue: Whether the Fairfax County School Board violated the 14th Amendment’s equal protection clause when it overhauled the admissions criteria at Thomas Jefferson High School for Science and Technology.
(rescheduled before the Dec. 1 conference; relisted after the Dec. 8, Jan. 5, Jan. 12 and Jan. 19 conferences)

Hamm v. Smith, 23-167
Issues: (1) Whether Hall v. Florida and Moore v. Texas mandate that courts deem the standard of “significantly subaverage intellectual functioning” for determining intellectual disability in Atkins v. Virginia satisfied when an offender’s lowest IQ score, decreased by one standard error of measurement, is 70 or below; and (2) whether the court should overrule Hall and Moore, or at least clarify that they permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s error range.
(relisted after the Jan. 5, Jan. 12 and Jan. 19 conferences)

Missouri Dept. of Corrections v. Finney, 23-203
Issues: (1) Whether the 14th Amendment prohibits relying on stereotypes about religious views to strike jurors; (2) whether a violation under Batson v. Kentucky is structural or is subject to harmless-error review; and (3) whether, in the context of jury selection, the 14th Amendment protects both religious status and religious belief, religious status only, or neither.
(rescheduled before the Nov. 3, Nov. 9, Nov. 17, Dec. 1 and Dec. 8 conferences; relisted after the Jan. 5, Jan. 12 and Jan. 19 conferences)

Compton v. Texas, 23-5682
Issues: (1) Whether a court’s comparison of generalizations about all the female prospective jurors who were struck by the prosecution with generalizations about the male jurors not struck by the prosecution, rather than a side-by-side analysis of individual jurors, disregards the basic equal protection principle that one discriminatory strike is too many; (2) whether Texas exercised its peremptory strikes in a prohibited discriminatory fashion.
(relisted after the Jan. 5, Jan. 12 and Jan. 19 conferences)