By Mark Wolf
From wedding cakes to legislative districts, sports betting and what you're allowed to wear at polling places, the current U.S. Supreme Court term will have major effects on states.
"Probably more than ever," said Lisa Sorenen, executive director of the State and Local Legal Center, during her Supreme Court Roundup session at NCSL's Capitol Forum.
Among the highlights:
Gill vs. Whitworth (Wisconsin partisan redistricting): This is undoubtedly the most important case of the term, whether you're a state legislator or not. The issue is whether and when it is possible to bring a claim that partisan gerrymandering is unconstitutional. In Veith v. Jubelirer (2004), Justice Anthony Kennedy said it might be justifiable under the First Amendment but that “a workable standard” is needed. Two judges concluded challengers to Wisconsin’s redistricting plan came up with a workable standard—the efficiency gap, which measures wasted votes. In the 2015 election, Republican candidates received less than 49 percent of the statewide vote and won seats in more than 60 percent of the state’s Assembly districts. The challengers argue that efficiency gaps of more than 7 percent violate the Constitution. The efficiency gap in Wisconsin was 13.3 percent in 2012 and 9.6 percent in 2014. Before the Supreme Court, the challengers proposed a three-part test with a lot of math. Roberts described the test as social science “gobbledygook.” Kennedy asked no questions of the challenger’s attorney about the substance of the test which means: a) He likes the test and therefore has no questions; or B) Nothing at all. The SCOTUSblog wrote the challengers can be “cautiously optimistic.” I would emphasize "cautious" in that.
Janus vs. American Federation of State and Municipal Employees (requiring employees in a unionized workplace to pay "fair share" even if they don't join a union): This is probably the second most controversial case this term. It's not just about a labor union; it's about state's rights as well. Janus could make all states right-to-work for public sector employees. The constitutionality of “fair share” was established in 1977 in Abood v. Detroit Board of Education that the union helps you whether you want it or not—by negotiating an agreement on your behalf, by processing your grievances if you have one, by making sure contract is administered fairly, etc.—and no free riders are allowed. Right before Justice Antonin Scalia died in 2016, it seemed very likely that the court would have overturned Abood.
Masterpiece Cakeshop vs. Colorado Civil Rights Commission (whether applying Colorado's public accommodations law, which prohibits discrimination against people based on sexual orientation, violates his sincerely held religious beliefs about marriage and violates the free speech or free exercise clauses of the First Amendment): This is the kind of case a court waits for decades to decide. All ears are on Kennedy. There are lots of issues of interest to him in this case—state’s rights, gay rights, religious liberty, free speech In oral argument he asked questions of both sides (normal). He asked a lot of questions (not normal). The smart money is on the cakemaker winning.
Christie vs. NCAA (whether New Jersey can allow sports gambling): New Jersey Governor Chris Christie (R) argues that because the Professional and Amateur Sports Protection Act (PASPA) prohibits the state from repealing laws restricting sports gambling it amounts to unconstitutional commandeering. PASPA, adopted in 1992, makes it unlawful for states and local governments to authorize sports gambling; 46 states disallow sports gambling. Per the anti-commandeering doctrine, “Congress ‘lacks the power directly to compel the states to require or prohibit’ acts which Congress itself may require or prohibit.” Christie argued PASPA unconstitutionally commandeers states because it forces states to either completely prohibit sports gambling or completely allow it.
Husted vs. A. Phillip Randolph Instituted (purging voters from registration lists): The issue is whether federal law allows states to remove people from the voter rolls if the state sends them a confirmation notice after they haven’t voted for two years, they don’t respond to the notice, and then they don’t vote in the next four years. Ohio and 12 other states follow this process. The 6th U.S. Circuit Court of Appeals struck down Ohio’s scheme, reasoning that it “constitutes perhaps the plainest possible example of a process that ‘result[s] in’ removal of a voter from the rolls by reason of his or her failure to vote." Ohio argues that it doesn’t remove voters “’by reason of’ their failure to vote; it removes voters ‘by reason of’” their failure to respond to a notice and the National Voter Registration Act doesn’t regulate what triggers the confirmation notice.
United States vs. Carpenter (requring a warrant to track cell phone location): The issue is whether police must obtain warrants per the Fourth Amendment to require wireless carriers to provide cell-site data. This is one of three Fourth Amendment search cases and the court’s latest attempt to grapple with technology and the Fourthh Amendment. Everyone knew the court would resolve this issue sooner rather than later. Lots of attention will be paid to how Justice Neal Gorsuch votes. The 6th U.S. Circuit Court of Appeals held that obtaining the cell-site data does not constitute a search under the Fourth Amendment because while “content” is protected by the Fourth Amendment, “routing information” is not. See Smith v. Maryland (1979) where the Supreme Court held that police installation of a pen register—a device that tracked the phone numbers a person dialed from his or her home phone—was not a search.
Minnesota Voters Alliance vs. Mansky (prohibiting political apparel at polling places): The 8th U.S. Circuit court of Appleas said "yes." Burson v. Freeman (1992) said a state may ban the “solicitation of votes” and “campaign materials” within 100 feet of the polling place. Has the 8th Circuit stretched Burson too far? The Minnesota Voters Alliance: “Burson plainly does not endorse a categorical ban on all types of ‘political’ speech. The decision below departs from this court’s precedent on First Amendment overbreadth and effectively chills the free speech rights of millions of voters across the country by threatening criminal prosecution or civil penalties for voters who wear logoed T-shirts, caps, jackets, buttons and other apparel in state-declared speech-free zones.”
Mark Wolf is editor of the NCSL Blog.