Supreme Court Update: Minnesota Voters Alliance v. Mansky (16-1435), Animal Science Products v. Hebei Welcome Pharmaceutical Co. (16-1220)

June 18, 2018 Supreme Court Update

Greetings, Court Fans!

The Nine chipped away at The Nineteen (cases remaining) this morning, but not without lacing up their punting boots. In one of the most hotly anticipated cases of the year (and the longest pending, having been argued on the first day of the term), a unanimous Supreme Court held in Gill v. Whitford (No. 16-1161) that it would prefer not to decide whether partisan gerrymandering violates the Constitution. In a decision authored by the Chief Justice, the Court kicked the case on standing grounds, but remanded to the District Court to give the plaintiffs another chance to prove concrete and particularized injuries in their challenge to Wisconsin's legislative map. In the term's other partisan-gerrymandering case, Benisek v. Lamone (No. 17-333), the Court punted in a different direction, with a per curiam opinion holding that, even if the plaintiffs were likely to succeed on the merits, the balance of the equities and public interest tilted against their request for a preliminary injunction forcing Maryland to redraw its map before the 2018 election.

The Court did decide three cases fair and square: In Lozman v. City of Riviera Beach (No. 17-21), the Court held (8-1) that, in certain circumstances, a plaintiff can bring a First Amendment retaliatory-arrest claim despite the fact that there was probable cause for his arrest. In Rosales-Mireles v. United States (No. 16-9493), the Court held (7-2) that a court of appeals can exercise its discretion to vacate a defendant's sentence based on an unobjected-to miscalculation of her Guidelines sentencing range if the miscalculation was plain and affected the defendant's substantial rights. And, in Chavez-Meza v. United States (No. 17-5639), the Court held (5-3) that a terse explanation for a resentencing decision may be adequate where the record as a whole demonstrates a reasoned basis for the judge's decision. We'll have summaries of all these decisions in short order. In the meantime, let's catch up on last Thursday's decisions.

First up, in Minnesota Voters Alliance v. Mansky (No. 16-1435), the Court struck down a Minnesota law prohibiting "political apparel" from being sported inside polling places on Election Day. While the Court allowed that states can regulate speech in polling places, Minnesota's ban was simply too haphazard to survive review under the nonpublic-forum doctrine.

All 50 states have enacted viewpoint-neutral restrictions on election-day speech, and the Court has upheld laws prohibiting active campaigning within a "buffer zone" surrounding polling places. But, in addition to a law prohibiting active vote-solicitation around polling places, Minnesota had a law that prohibiting more passive political speech within polling places. The State's so-called "political apparel ban" provided that a "political badge, political button, or other political insignia may not be worn at or about the polling place." Temporary "election judges" were given authority to decide whether a particular item fell within the ban. If a voter showed up to the polls wearing a prohibited item (in the view of an election judge), she would be asked to conceal or remove it and, if she refused, the incident would be referred to authorities for a possible civil penalty, including a maximum $300 fine. In the lead-up to the November 2010 election, Minnesota Voters Alliance sought a temporary restraining order preventing election officials from enforcing the political-apparel ban against its members, who planned to wear "Please I.D. Me" buttons in support of stricter voter-identification laws. After the District Court denied their request, election officials circulated an "Election Day Policy" providing guidance on the enforcement of the political-apparel ban. Any item including the name of a recognized political party or candidate, or which supported or opposed a ballot question, would be prohibited. In addition, the Guidance targeted "issue oriented material designed to influence or impact voting" (and specifically mentioned the "Please I.D. Me" buttons), as well as any material promoting a group with recognizable political views, such as the Tea Party or MoveOn.org. On Election Day, several voters ran into trouble with the ban, including one who was asked to cover up a Tea Party shirt, several who were asked to conceal their "Please I.D. Me" buttons, and one who was turned away from the polls altogether for wearing a t-shirt with the words "Don't Tread on Me" and the Tea Party Patriots logo. The Minnesota Voters Alliance returned to court, this time arguing that the political-apparel ban was unconstitutional both on its face and as applied to the particular apparel its members sported on Election Day. The District Court granted the State's motions to dismiss, and the Eighth Circuit affirmed relying principally on the Supreme Court's prior decisions upholding laws restricting campaign speech in buffer zones.

The Supreme Court reversed. Writing for a majority of seven, the Chief Justice observed that Minnesota's ban implicated the Court's "forum based approach for assessing restrictions that the government seeks to place on the use of its property." The Court concluded that a polling place qualifies as a nonpublic forum, because (at least on Election Day) it is a government-controlled property set aside for the sole purpose of voting. That means that the government may impose content-based restrictions on speech—including prohibitions on political apparel. But the restrictions must be viewpoint neutral and must be "reasonable in light of the purpose served by the forum," in this case, voting. Though the Court recognized that Minnesota's political-apparel ban served a permissible objective (and, indeed, some kind of political-apparel ban could be permissible), it concluded that "the unmoored use of the term ‘political' in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to [the] Court, cause Minnesota's restrictions to fail even this forgiving test." The statute contains no definition for the exceptionally broad term "political," meaning that a t-shirt with a message as innocuous (though political) as "Vote!" could be banned. And the Election Day Policy that was issued before the 2010 election made matters worse by including "[i]ssue oriented material designed to influence or impact voting" and items "promoting a group with recognizable political views" within its scope. Based on this guidance, someone wearing a shirt that said "Support Our Troops" or "#MeToo" could be fined if those issues had been discussed during an election campaign, and a voter with an AARP button or even a Ben & Jerry's tee-shirt could be asked to remove it if those entities had taken a position relevant to an issue on the ballot. Although perfect clarity and precise guidance are not required, the majority concluded that Minnesota's ban was too haphazard and indeterminate to pass muster under the nonpublic-forum doctrine. If Minnesota or any other state wishes to ban political apparel in polling places, it may do so, but "it must employ a more discernible approach than the one Minnesota has offered here."

Justice Sotomayor dissented, joined by Breyer, but their beef wasn't with the Court's substantive holding, per se, but with its decision to declare Minnesota's political apparel ban unconstitutional on its face without first affording the Minnesota state courts an opportunity to construe the statute and offer a narrowing construction that might save it. Echoing an argument she made last term in Expressions Hair Design v. Schneiderman (2017), Justice Sotomayor argued that he Court should not strike down a statute for being incapable of "reasoned application" "without the preferential step of first asking the state courts to provide an accurate picture of how, exactly, the statute works." Especially here, where even the majority conceded that there are many constitutional applications of Minnesota's law, Sotomayor urged restraint in invalidating the law without giving the State's highest court the opportunity to pass on it.

The Court was unanimous in the second decision announced Thursday, holding in Animal Science Products v. Hebei Welcome Pharmaceutical Co. (No. 16-1220), that U.S. courts should give a foreign government's statement of its domestic law "respectful consideration," but need not give it "conclusive effect."

Federal courts frequently must determine what foreign law requires in the course of deciding a U.S. case. Under Federal Rule of Civil Procedure 44.1, determining foreign law is treated as a question of law, not a question of fact, and the rule provides that federal courts may decide what foreign law is through any relevant material or source (most commonly, reports or testimony from expert witnesses). In some cases, however, a foreign state files a statement explicitly telling the U.S. court what (it claims) its law is. That's what happened in this case, where U.S.-based purchasers of vitamin C filed a class action against four Chinese corporations that manufacture and export it, alleging that the Chinese companies had engaged in price fixing in violation of U.S. antitrust law. The sellers moved to dismiss, arguing that Chinese law required them to fix the price and quantity of their exports and China's Ministry of Commerce agreed, filing an amicus brief stating that the sellers' conduct was required by a government regulatory scheme. But the U.S. purchasers disputed this, noting that the Ministry had not identified any sources of law purporting to require this conduct. And they offered expert testimony disputing the Chinese government's statement of its own law. The District Court eventually denied motions to dismiss and for summary judgment by the purchasers, concluding they had failed to show their conduct was required by Chinese law. But the Second Circuit reversed, holding that federal courts must defer to foreign governments' statements about the content of their own law so long as they are "reasonable." Because this level of deference applied by the Second Circuit was much greater than that required by other circuits, the Court granted certiorari.

Writing for a unanimous Court, Justice Ginsburg resolved the split against the Second Circuit. She began with the history of Rule 44.1. Prior to that rule, federal courts followed the common-law rule that a dispute about a foreign nation's law was a dispute of fact, which must be resolved like any other dispute of fact. Rule 44.1 changed this, making disputes about foreign law questions of law. This means (among other things) that foreign courts are not limited by the sources submitted by the parties but can consider whatever sources they deem relevant, and their decisions are reviewed de novo (rather than under a clearly erroneous standard). This change made determining the content of foreign law much more similar to the process for determining the content of domestic law (particularly federal courts' determinations of state law). Nothing in Rule 44.1 addresses how much deference federal courts should give to foreign governments' statements about the content of their laws. But the "spirit of international comity" counsels that federal courts should give such statements careful consideration. Comity has limits, however; accordingly, the Court concluded that federal courts are not bound to adopt foreign governments' characterizations of their own laws, particularly when the interpretations are questionable, conflicting, or possibly dishonest (as when the foreign government is attempting to help out one of its own corporations). For similar reasons, the Court concluded that federal courts are not required to ignore conflicting sources or to examine whether the foreign government's statement seems to agree with these sources. The Court also noted that this deferential, but not controlling, rule is more similar to the way federal courts treat state governments' statements in federal court about the content of state law, giving them deferential but not controlling weight.

While the Court checked five cases off its OT17 queue this morning, it also added five cases to the OT18 docket:

Timbs v. Indiana (No. 17-1091) asks whether the Eighth Amendment's excessive-fines clause is incorporated against the states through the Fourteenth Amendment;

Apple Inc. v. Pepper (No. 17-204) asks whether consumers may sue for antitrust damages anyone who delivers goods to them, even where they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense;

Garza v. Idaho (No. 17-1026) asks whether the "presumption of prejudice" recognized in Roe v. Flores-Ortega (2000) applies when a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to because the defendant's plea agreement included an appeal waiver

Lorenzo v. SEC (No. 17-1077) asks whether a misstatement claim that does not meet the elements set forth in Janus Capital Group v. First Derivative Traders (2011) can be repackaged and pursued as a fraudulent-scheme claim; and

Sturgeon v. Frost (No. 17-959) asks (again) whether the Alaska National Interest Lands Conservation Act prohibits the National Park Service from exercising regulatory control over state, native, and privately owned land that is physically located within the boundaries of the national park system in Alaska (and therefore whether he gets to hunt moose with his hovercraft on state-owned waterways).

That's enough for today. We'll be back with summaries of this morning's decisions in due course, along with whatever the Court hands down on Thursday, its next scheduled decision day.