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Tracking the 90+ lawsuits related to COVID-19 election changes

Lawsuits involving election policy proliferate in response to COVID-19 outbreak 

The COVID-19 outbreak in the United States has prompted election postponements, alterations to absentee/mail-in voting procedures, and modifications to candidate filing protocols. It has also resulted in at least 90 lawsuits filed in state and federal courts touching on various aspects of election administration. These lawsuits span 32 different states. 

In this edition of The Ballot Bulletin, we take a closer look at five of what we think are the most noteworthy lawsuits filed to date. We selected these lawsuits because they deal with a variety of election-related issues and originate in different regions of the country. For a complete list of all the election lawsuits we’re tracking, click here.

Esshaki v. Whitmer (Michigan) 

The parties to the suit: The plaintiffs were Eric Esshaki, Matt Savich, and Deana Beard, candidates for Congress, the Forty-Seventh Judicial District Court, and the Third Circuit Court, respectively. The defendants were Gov. Gretchen Whitmer (D), Secretary of State Jocelyn Benson (D), and Elections Director Jonathan Brater.

The issue: Attorneys for the plaintiffs argued that Whitmer’s stay-at-home order, which disallowed large gatherings and closed numerous businesses, prevented them from collecting the number of signatures needed to earn a place on the ballot. They argued that these conditions imposed a severe burden on the plaintiffs’ ability to seek elective office, violating their constitutional free-speech and associational rights. 

The outcome: On April 20, Judge Terrence Berg, of the United States District Court for the Eastern District of Michigan, ruled in favor of the plaintiffs and issued an order reducing the petition signature requirements for certain primary candidates to 50 percent of their statutory thresholds. Berg also extended the filing deadline from April 21 to May 8 and directed election officials to develop procedures allowing for the collection and submission of electronic petition signatures. Berg’s order applied only to candidates for offices without a filing-fee option: U.S. Senate, U.S. Congress, and judicial offices. The order did not apply to state legislative candidates, who could pay filing fees to get on the ballot.

Berg’s order was appealed to the United States Court of Appeals for the Sixth Circuit, which ruled on May 5 that Berg had erred in his initial order. Although the appeals court agreed that the original ballot requirements were unconstitutional, it ruled that Berg had exceeded his authority in mandating new requirements. The appeals court directed the state “to select its own adjustments so as to reduce the burden on ballot access, narrow the restrictions to align with its interest, and thereby render the application of the ballot-access provisions constitutional under the circumstances.”

On May 8, state authorities announced they would abide by the requirements laid out in Berg’s original order. Jake Rollow, a spokesman for the Michigan Department of State, said, “As the district court declined to amend its order, and with the revised filing deadline today, May 8, the best course of action to reduce further uncertainty in advance of the rapidly approaching August elections is to maintain the procedures that have been in place for the last two and a half weeks.”

Issa v. Newsom (California) 

The parties to the suit: The plaintiffs are former U.S. Rep. Darrell Issa (R) and four registered California voters: James Oerding, Jerry Griffin, Michelle Bolotin, and Michael Sienkiewicz. The defendants are Gov. Gavin Newsom (D) and Secretary of State Alex Padilla (D).

The issue: On May 8, Newsom issued an executive order directing county election officials to deliver mail-in ballots to all registered voters in the Nov. 3 general election. California law allows any eligible voter to vote by mail, but the voter is required to submit a mail-in ballot application first in order to receive an actual ballot. Under Newsom’s order, all voters will automatically receive the mail-in ballots. 

On May 21, the plaintiffs filed suit in the United States District Court for the Eastern District of California. In their complaint, attorneys for the plaintiffs allege that Newsom’s order violates both the Elections Clause and the Electors Clause of the United States Constitution. The Elections Clause (Article I, Section 4) establishes that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” The Electors Clause (Article II, Section 1) establishes that each state may appoint presidential electors “in such Manner as the Legislature thereof may direct.” Attorneys for the plaintiffs argue that neither Newsom nor Padilla meet the definition of a “Legislature” for the purposes of these provisions. 

The outcome: The case is pending before Judge Morrison England, who was appointed to the court by President George W. Bush (R).

League of Women Voters of Oklahoma v. Ziriax (Oklahoma) 

The parties to the suit: The plaintiffs were the League of Women Voters of Oklahoma and two qualified Oklahoma voters, Angela Zea Patrick and Peggy Jeanne Winton. The defendant was Paul Ziriax, in his capacity as secretary of the Oklahoma State Election Board.

The issue: Attorneys for the plaintiffs alleged that official absentee ballot forms and other instructional materials were misleading voters by suggesting that a notarized affidavit was required in order for absentee ballots to be counted. The plaintiffs argued instead that a personally signed statement, under penalty of perjury, was sufficient in lieu of a notarized affidavit. 

The outcome: On May 4, the Oklahoma Supreme Court ruled 6-3 in favor of the plaintiffs, striking down the contested requirement. The court ruled that the requirement did not qualify as an exception under a state law establishing that statements, signed and dated under the penalty of perjury, carry the force of an affidavit. 

However, on May 7, Gov. Kevin Stitt (R) signed SB210 into law, reinstating the absentee ballot notarization requirement. The legislation also included provisions applicable only to the 2020 election cycle. SB210 permitted voters to submit copies of their identification in lieu of fulfilling the notarization requirement in the event of a state of emergency occurring within 45 days of an election. The legislation also specified that individuals experiencing symptoms indicative of COVID-19, and individuals classified as vulnerable to infection could cast absentee ballots under the ‘physical incapacitation’ eligibility criterion.

Wisconsin Legislature v. Evers (Wisconsin) 

The parties to the suit: The plaintiff was the Wisconsin Legislature, in which Republicans have majorities in both chambers. The defendant was Gov. Tony Evers, a Democrat. 

The issue: On April 6, Evers issued an executive order postponing in-person voting in the spring election, scheduled to take place on April 7, to June 9. Evers also extended the receipt deadline for absentee ballots to June 9. 

State Senate Majority Leader Scott Fitzgerald (R) and Assembly Speaker Robin Vos (R) argued that Evers’ order exceeded his constitutional authority. They filed suit in the state supreme court, seeking an emergency stay of Evers’ order. In their motion for the stay, plaintiffs’ attorneys said, “Given that the Governor’s order comes mere hours before the in-person election is set to begin, the Legislature will suffer irreparable harm if Executive Order 74 is not immediately enjoined. Moreover, such sweeping changes to an election made just before the election is set to begin will undoubtedly cause voter confusion and call into question the integrity of the electoral process.” 

The outcome: On April 6, the state supreme court voted 4-2 to stay Evers’ order, allowing the election to proceed as scheduled. Justices Annette Ziegler, Rebecca Bradley, Patience Roggensack, and Brian Hagedorn formed the majority. Justices Ann Walsh Bradley and Rebecca Dallet dissented. Justice Daniel Kelly, who ran for re-election on April 7, did not participate in the decision.

In an unsigned opinion, the court majority wrote, “The question presented is not whether the policy choice to continue with this election is good or bad, or otherwise in the public interest. … Rather, the question presented to this court is whether the Governor has the authority to suspend or rewrite state election laws. Although we recognize the extreme seriousness of the pandemic that this state is currently facing, we conclude that he does not.” 

Bradley wrote the following in her dissent, which Dallet joined: “[The] majority gives Wisconsinites an untenable choice: endanger your safety and potentially your life by voting or give up your right to vote by heeding the recent and urgent warnings about the fast growing pandemic. These orders are but another example of this court’s unmitigated support of efforts to disenfranchise voters.”

Yang v. Kellner (New York) 

The parties to the suit: The plaintiffs were Andrew Yang, a former candidate for the Democratic presidential nomination, and several candidates for New York’s delegation to the Democratic National Convention. The defendants were Robert Brehm, Douglas Kellner, Peter Kosinski, Andrew Spano, and Todd Valentine, all members of the New York State Board of Elections, and Gov. Andrew Cuomo (D).

The issue: On April 27, the New York State Board of Elections moved to cancel the Democratic presidential preference primary, which had been scheduled to take place on June 23. The Republican presidential preference primary had already been canceled. The statewide primary election was scheduled to proceed as planned on June 23. Earlier in April, the state enacted a law authorizing the board of elections to remove candidates’ names from the ballot upon the suspension or termination of their campaigns. Sen. Bernie Sanders (I) suspended his presidential campaign on April 8, making former Vice-President Joe Biden (D) the presumptive Democratic nominee.

In their complaint, filed April 28, attorneys for the plaintiffs alleged that “this unprecedented and unwarranted move infringes the rights of Plaintiffs and all New York State Democratic Party voters … as it fundamentally denies them the right to choose our next candidate for the office of President of the United States.” 

The outcome: On May 5, Judge Analisa Torres, of the United States District Court for the Southern District of New York, ordered the New York State Board of Elections to reinstate the Democratic presidential primary. Torres wrote, “[T]he removal of presidential candidates from the primary ballot not only deprived those candidates of the chance to garner votes for the Democratic Party’s nomination, but also deprived their pledged delegates of the opportunity to run for a position where they could influence the party platform, vote on party governance issues, pressure the eventual nominee on matters of personnel or policy, and react to unexpected developments at the Convention.” Torres joined the court in 2013, having been nominated by President Barack Obama (D). 

On May 6, the state board of elections appealed the decision. On May 19, a three-judge panel of the United States Court of Appeals for the Second Circuit affirmed Torres’ ruling. The panel comprised Judges Amalya Kearse, Dennis Jacobs, and Jose Cabranes. Kearse, Jacobs, and Cabranes were appointed to the court by Presidents Jimmy Carter (D), George H.W. Bush (R), and Bill Clinton (D), respectively. The state board of elections indicated it would make no further appeal. 

Election postponements

Since our May 20 edition, we’ve tracked the following election postponement updates: 

  • Puerto Rico: On May 21, the Democratic Party of Puerto Rico announced its presidential preference primary would take place on July 12. The primary was originally scheduled for March 29. It was first postponed to April 26. It was then postponed indefinitely. 


To date, 20 states and one territory have postponed upcoming state-level elections. These states are shaded in dark blue on the map below.

Absentee/mail-in voting modifications

Since our May 20 edition, we’ve tracked the following absentee/mail-in voting modifications: 

  • Connecticut: Gov. Ned Lamont (D) issued an executive order extending absentee voting eligibility to any registered voter in the Aug. 11 primary if there is no “federally approved and widely available vaccine for prevention of COVID-19” at the time he or she requests an absentee ballot.
  • Montana: On May 27, the Montana Supreme Court voted 5-2 to halt a lower court order that had extended the absentee ballot receipt deadline for the June 2 primary to June 8.
  • Pennsylvania: On June 1, Gov. Tom Wolf (D) issued an executive order extending the absentee ballot receipt deadline for the June 2 primary to 5:00 p.m. on June 9 (with a postmark deadline of June 2) in Allegheny, Dauphin, Delaware, Erie, Montgomery and Philadelphia counties.
  • South Carolina: On May 25, Judge J. Michelle Childs, of the United States District Court for the District of South Carolina, issued a preliminary injunction barring election officials from enforcing South Carolina’s witness requirement for absentee ballots in the June 9 primary and subsequent runoff elections.
  • Texas: On May 27, the Texas Supreme Court ruled that a voter’s lack of immunity to COVID-19 does not qualify as a disability under the state’s election laws and, therefore, cannot be cited as an excuse for voting absentee.

To date, 28 states have modified their absentee/mail-in voting procedures. These modifications can be divided into five broad categories:

  • Automatic mail-in ballots: Five states (California, Maryland, Montana, Nevada, and New Jersey) have opted to send mail-in ballots automatically to all eligible voters in certain elections to ensure that most voting takes place by mail. These states are shaded in yellow in the map below. 
  • Automatic mail-in ballot applications: Twelve states (Connecticut, Delaware, Georgia, Idaho, Iowa, Michigan, Nebraska, New York, North Dakota, Rhode Island, South Dakota, and West Virginia) are automatically sending mail-in ballot applications to all eligible voters in certain elections. These states are shaded in dark blue in the map below. 
  • Eligibility expansions: Seven states (Indiana, Kentucky, Massachusetts, New Hampshire, Oklahoma, South Carolina, and Virginia) have expanded absentee voting eligibility in certain elections. These states are shaded in light blue in the map below. 
  • Deadline extensions: Four states (Ohio, Pennsylvania, Utah, and Wisconsin) have extended absentee/mail-in ballot request or submission deadlines in certain elections. These states are shaded in dark gray in the map below. 

Legislation tracking 

To date, we have tracked 165 bills that make some mention of both election policy and COVID-19. States with higher numbers of relevant bills are shaded in darker blue on the map below. States with lower numbers of relevant bills are shaded in lighter blue. In states shaded in white, we have tracked no relevant bills. 

Legislation related to elections and COVID-19, 2020 

Current as of June 2, 2020

Looking ahead 

On June 2, Ballotpedia covered 1,990 primary elections for 1,011 offices across 12 states and Washington, D.C. In our June 17 issue, we’ll examine the effects of the COVID-19 outbreak on the conduct of these elections, turning our attention to the use of absentee/mail-in voting, consolidation of polling places, and preliminary data on voter turnout rates.



SCOTUS issues opinions in five cases

On June 1, 2020, the Supreme Court of the United States (“SCOTUS”) issued rulings in five cases argued during its October 2019-2020 term:
  • Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment LLC (Consolidated with Aurelius Investment v. Puerto Rico, Official Committee of Debtors v. Aurelius Investment, United States v. Aurelius Investment, and UTIER v. Financial Oversight and Management Board for Puerto Rico) 
  • Banister v. Davis
  • Thole v. U.S. Bank
  • GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC 
  • Nasrallah v. Barr
Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment LLC
Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment LLC came on a writ of certiorari to the U.S. Court of Appeals for the 1st Circuit and involved how the Appointments Clause in Article II of the U.S. Constitution applies to U.S. territories. The case was argued before the Supreme Court of the United States on October 15, 2019.
  • The case: In 2016, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act. The act created the Financial Oversight and Management Board and authorized the board to begin debt adjustment proceedings on behalf of the Puerto Rico government. After the board began proceedings in 2017, Aurelius Investment LLC, (“Aurelius”) and the Unión de Trabajadores de la Industria Eléctrica y Riego (“UTIER”) challenged the board’s authority in federal district court, arguing the board members’ appointment violated the Appointments Clause of the U.S. Constitution. The district court ruled against Aurelius and UTIER. On appeal, the 1st Circuit Court of Appeals reversed the district court in part, holding the board members “must be, and were not, appointed in compliance with the Appointments Clause.”
  • The issue: Whether the Appointments Clause governs the appointment of members of the Financial Oversight and Management Board for Puerto Rico.
  • The outcome: The court ruled 9-0 that the Appointments Clause governed the appointment of members of the FOMB but that the method of appointment used did not violate its requirements.
Banister v. Davis
Banister v. Davis came on a writ of certiorari to the U.S. Court of Appeals for the 5th Circuit and concerned timely habeas petitions. The case was argued before the Supreme Court on December 4, 2019.
  • The case: In 2004, a jury convicted Gregory Banister of aggravated assault with a deadly weapon. After several appeals, Banister filed a petition under Rule 59(e) of the Federal Rule of Civil Procedure, asking the Northern District of Texas to revisit an earlier judgment. The district court denied the petition. On appeal, the 5th Circuit Court of Appeals also denied Banister’s petition for a certificate of appealability on the grounds the petition was untimely based on Gonzalez v. Crosby. Banister appealed to the U.S. Supreme Court, arguing there was a circuit split on extending the Gonzalez decision to include Rule 59(e) motions.
  • The issue: Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U.S. 524 (2005).
  • The outcome: The court reversed and remanded the judgment of the 5th Circuit in a 7-2 vote, holding that because a Rule 59(e) motion to alter or amend a habeas court’s judgment is not a second or successive habeas petition under 28 U.S.C. §2244(b), Banister’s appeal was timely.
Thole v. U.S. Bank
Thole v. U.S. Bank was a case concerning the Employee Retirement Income Security Act of 1974 (ERISA) and whether the plaintiffs had standing. It came on a writ of certiorari to the U.S. Court of Appeals for the 8th Circuit and was argued before SCOTUS on January 13, 2020.
  • The case: James Thole and Sherry Smith sued U.S. Bank, N.A. over U.S. Bank’s management of a defined benefit pension plan. Thole and Smith alleged the bank violated the Employee Retirement Income Security Act of 1974 (ERISA) and engaged in prohibited transactions, causing the plan to become underfunded. U.S. Bank sought to dismiss the case, arguing the plaintiffs did not have the legal right to sue and the statute of limitations had run out on the ERISA claims. The district court dismissed in part and granted in part U.S. Bank’s motion. In 2014, the plan became overfunded. The district court dismissed the case as moot. Thole and Smith appealed to the 8th Circuit, which affirmed the district court’s ruling. The plaintiffs then petitioned the U.S. Supreme Court to review the case, arguing the 8th Circuit’s ruling conflicted with other circuit court decisions.
  • The issues:
    • May an ERISA plan participant or beneficiary seek injunctive relief against fiduciary misconduct under 29 U.S.C. 1132(a)(3) without demonstrating individual financial loss or the imminent risk thereof?
    • May an ERISA plan participant or beneficiary seek restoration of plan losses caused by fiduciary breach under 29 U.S.C. 1132(a)(2) without demonstrating individual financial loss or the imminent risk thereof?
    • Whether petitioners have demonstrated Article III standing.
  • The outcome: The court affirmed the 8th Circuit’s decision in a 5-4 ruling, holding the plaintiffs did not have standing and would still receive the same amount of monthly benefits regardless of the case’s outcome.
GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC 
GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC was a case relating to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”).  It came on a writ of certiorari to the U.S. Court of Appeals for the 11th Circuit and was argued before the Supreme Court on January 21, 2020.
  • The case: Outokumpu Stainless USA LLC (“Outokumpu”) contracted with Fives St. Corp. (“Fives”) to provide equipment for its steel plant in Alabama. Fives subcontracted with GE Energy Power Conversion France SAS (“GE Energy”), a foreign corporation, to supply the equipment. The contracts between Outokumpu and Fives and between Fives and GE Energy contained arbitration clauses. The equipment was installed between 2011 and 2012 but failed by 2015. Outokumpu sued GE Energy in Alabama state court. The case was moved to federal district court, which dismissed the case and compelled Outokumpu to undertake arbitration proceedings. On appeal, the 11th Circuit Court of Appeals reversed the district court’s decision to compel arbitration. GE Energy appealed to the U.S. Supreme Court for review, arguing the 11th Circuit’s decision underlined a 2-to-2 circuit court split.
  • The issue: Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards permits a non-signatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.
  • The outcome: The court reversed the decision of the 11th Circuit in a unanimous ruling, holding the Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not conflict with doctrines in state law that allow the enforcement of arbitration agreements by non-signatories to those agreements.
Nasrallah v. Barr
Nasrallah v. Barr was a case concerning judicial review of a noncitizen’s factual challenges to an order denying relief under the international Convention Against Torture. The case came on a writ of certiorari to the U.S. Court of Appeals for the 11th Circuit and was argued before the Supreme Court on March 2, 2020.
  • The case: Nidal Khalid Nasrallah, a citizen and native of Lebanon, pleaded guilty to two counts of receiving stolen property in interstate commerce in the United States. An immigration judge determined that one of Nasrallah’s convictions involved moral turpitude and constituted a particularly serious crime, but granted Nasrallah protection from removal from the country under the Convention Against Torture. The case was appealed to the Board of Immigration Appeals, which affirmed in part and reversed in part the immigration judge’s decision and ordered Nasrallah’s removal. Nasrallah petitioned the 11th Circuit for review. The 11th Circuit denied in part and dismissed in part the petition.
  • The issue: “Whether, notwithstanding Section 1252(a)(2)(C), the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief.”
  • The outcome: The court reversed the 11th Circuit’s judgment in a 7-2 vote, holding that U.S. Code Sections 1252(a)(2)(C) and (D) do not prevent judicial review of a noncitizen’s factual challenges to a denial of relief order under the international Convention Against Torture.

As of June 1, 2020, the court had issued decisions in 38 cases this term. Between 2007 and 2018, SCOTUS released opinions in 924 cases, averaging between 70 and 90 cases per year. The court agreed to hear 74 cases during its 2019-2020 term.

Additional reading:


Unanimous U.S. Supreme Court rejects appointments clause challenge to Puerto Rican debt board

On June 1, a unanimous U.S. Supreme Court ruled that the Appointments Clause of the U.S. Constitution does not require members of the Puerto Rican Financial Oversight and Management Board (FOMB) to face confirmation by the U.S. Senate.

The Appointments Clause gives the president authority to appoint officers of the United States, subject to confirmation by the U.S. Senate. These officers include ambassadors, heads of Cabinet-level departments, and federal judges. The U.S. Supreme Court ruled that because FOMB members have primarily local powers and duties that the Appointments Clause does not restrict how they are selected.

Congress created the FOMB in 2016 and authorized the board to begin debt adjustment proceedings on behalf of the Puerto Rican government. The seven-member board is made up of one member chosen at the president’s discretion and six other members selected by the president from a list written by members of Congress.

Aurelius Investment LLC and the Unión de Trabajadores de la Industria Eléctrica y Riego challenged the FOMB’s authority, arguing that board members’ appointments violated the Appointments Clause. Aurelius and the union claimed that the board members are “Officers of the United States” who must be nominated by the president and confirmed by the Senate. The board argued that because its activities are primarily local in nature its members do not qualify as “Officers of the United States.” The U.S. Supreme Court ruled in favor of the board and sent the case to the U.S. Court of Appeals for the First Circuit for further proceedings.

Justice Clarence Thomas wrote a concurring opinion arguing that the court made the right decision for the wrong reasons. He would have relied on the original public meaning of the phrase _officers of the United States_ to resolve the case.

Justice Sonia Sotomayor wrote a separate concurring opinion arguing that “territorial status should not be wielded as a talismanic opt out of prior congressional commitments or constitutional constraints.” She stated that because the parties in the case did not address the implications of Puerto Rican home rule on the Appointments Clause she chose to concur in the judgment of the court.

Additional reading:

Administrative State Project

Click here to read the U.S. Supreme Court decision.


U.S. Supreme Court rejects challenge to California law limiting church attendance

On May 29, 2020, the United States Supreme Court rejected a challenge to California’s religious gathering limits, which order attendance in churches or places of worship to a maximum of 25% or 100 attendees.

The 5-4 decision was joined by Chief Justice Roberts who warned against intervening in emergencies: “Where those broad limits are not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”

Justice Kavanaugh joined the remaining three Republican-appointed justices in dissenting from the ruling, arguing that the California limits “indisputably discriminates against religion.”



U.S. Supreme Court rules plaintiffs can seek punitive damages for 1998 bombings

The U.S. Supreme Court issued an opinion in Opati v. Republic of Sudan. The case originated in the United States Court of Appeals for the District of Columbia Circuit and was argued on February 24, 2020. It concerned the Foreign Sovereign Immunities Act (FSIA) and questioned if the Act prohibited plaintiffs from recovering punitive damages against Sudan for its role in embassy bombings in Kenya and Tanzania in 1998.

From 1991 to 1996, the terrorist group al Qaeda maintained an operations base in Sudan, from which it launched terrorist cells in Kenya and Tanzania. Al Qaeda bombed U.S. embassies in Kenya and Tanzania in 1998, killing more than 200 people and injuring thousands. In 2001 and in following years, various plaintiffs sued Sudan, arguing the bombings were “extrajudicial killings” under the FSIA. Sudan denied the allegations.

In 2014, the U.S. District Court for the District of Columbia issued final judgments awarding more than $10.2 billion in punitive damages against Sudan. Sudan appealed the cases. On appeal, the U.S. Court of Appeals for the D.C. Circuit vacated the damages awarded. The Opati plaintiffs appealed to the U.S. Supreme Court, asking it to clarify whether “the FSIA may be applied retroactively to impose punitive damages on a state sponsor of terrorism.”

In an 8-0 ruling (Justice Brett Kavanaugh recused himself), the U.S. Supreme Court vacated the D.C. Circuit Court’s ruling. The court held that the FSIA may be applied retroactively and punitive damages are permissible for federal claims under the FSIA against foreign states for terrorist activities. In the opinion, Justice Neil Gorsuch wrote, “Congress was as clear as it could have been when it authorized plaintiffs to seek and win punitive damages for past conduct” under an amended version of the FSIA.

Additional reading:


U.S. Supreme Court rules Lucky Brand not barred from raising new claims in trademark infringement case

Lucky Brand Dungarees v. Marcel Fashion Group was argued on January 13, 2020. The case came on a writ of certiorari to the U.S. Court of Appeals for the 2nd Circuit. It concerned trademark infringement and three legal challenges between apparel companies Marcel Fashion Group, Inc. (“Marcel”) and Lucky Brand Dungarees, Inc. (“Lucky Brand”).

The case: Marcel and Lucky Brand filed several lawsuits for trademark infringement in 2003, 2005, and 2011. In the 2011 action, Marcel sued Lucky Brand for trademark infringement. The U.S. District Court for the Southern District of New York granted summary judgment to Lucky Brand, ruling the 2003 lawsuit barred Marcel from suing Lucky Brand.

On appeal, the 2nd Circuit reversed the decision and remanded the case. On remand, Lucky Brand moved to dismiss the suit, arguing a settlement agreement resulting from the 2003 lawsuit prevented Marcel from suing Lucky Brand. Marcel countered that Lucky Brand could not use this argument because Lucky Brand could have pursued this defense in the 2005 litigation but did not. The district court granted Lucky Brand’s motion to dismiss. Marcel appealed again to the 2nd Circuit, which vacated the lower court’s ruling. Lucky Brand appealed to the U.S. Supreme Court, arguing the 2nd Circuit’s decision conflicted with decisions from other circuit courts on similar issues.

The outcome: The court reversed the U.S. Court of Appeals for the 2nd Circuit’s judgment and remanded the case. In a unanimous opinion written by Justice Sonia Sotomayor, the court held that Marcel cannot prevent Lucky Brand from raising new defense arguments in the case because the 2003 and 2005 lawsuits challenged different actions involving different trademarks occurring at different times.

In her opinion, Justice Sotomayor wrote, “This Court is asked to determine whether Lucky Brand’s failure to litigate the defense in the earlier suit barred Lucky Brand from invoking it in the later suit. … Marcel’s 2011 Action challenged different conduct—and raised different claims—from the 2005 Action. Under those circumstances, Marcel cannot preclude Lucky Brand from raising new defenses.”

Additional reading:



Maryland Sports Betting Expansion Measure will appear on November ballots

The Maryland Sports Betting Expansion Measure, a legislatively referred state statute, was certified for the ballot on May 7. The ballot measure would authorize sports and events wagering at certain licensed facilities. The state revenue generated by such activities would be primarily dedicated to funding public education.

On May 14, 2018, the U.S. Supreme Court ruled 7-2 in Murphy v. NCAA that the federal government could not require states to prohibit sports betting, thereby overturning the federal ban and allowing states to legalize sports betting. As of March 2020, 16 states had active sports betting industries, three of which legalized sports betting by approving a statewide ballot measure. South Dakota voters will vote on a legislatively referred constitutional amendment in November that would legalize sports betting within the city limits of Deadwood, South Dakota.

The Maryland Constitution requires that the Maryland General Assembly refer laws expanding commercial wagering to voters at a general election. In Maryland, a simple majority vote is needed in each chamber of the Maryland General Assembly to refer a state statute to the ballot. The governor is able to veto bills proposing legislatively referred state statutes. The governor has 30 days to sign or veto the bills after they are presented to him. If the governor does not sign a bill by the deadline, the bill is enacted without his signature.

On March 14, 2020, the Maryland House of Representatives voted 129-3 in favor of the measure. On March 18, the Maryland State Senate voted 45-0. Governor Larry Hogan (R) did not sign or veto the bill by the May 7 deadline. Therefore, the sports betting measure was certified for the ballot on May 7 without his signature.

During the 2020 legislative session, the Maryland General Assembly also referred to the 2020 ballot the Legislative Authority over State Budget Amendment, which would authorize the Maryland General Assembly to increase, decrease, or add items to the state budget as long as such measures do not exceed the total proposed budget submitted by the governor.

Since 1996, 34 measures appeared on Maryland ballots. Of that total, 31 were approved, and three were defeated. One legislatively referred state statute appeared on Maryland ballots between 1996 and 2019, and it was approved.

Additional reading:


U.S. Supreme Court agrees to hear case about judicial review of IRS regulations

On May 4, the U.S. Supreme Court agreed to hear CIC Services, LLC v. Internal Revenue Service, which asks whether a law that blocks preemptive lawsuits against tax collection applies to potentially unlawful regulations issued by agencies that are not taxes.

Plaintiff CIC Services, LLC argues citizens should be able to “challenge illegal regulations in court, without having to violate the regulation first and then raise its invalidity as a defense to an enforcement action.”

The IRS argues that the Anti-Injunction Act (AIA), a federal law that bars lawsuits to stop the assessment or collection of taxes, also applies to the regulatory penalties at question in this case because the penalties are deemed to be taxes, which means courts may only review challenges seeking a refund after paying the penalties.

The IRS cited a 2015 opinion from the U.S. Court of Appeals for the D.C. Circuit written by then-judge Kavanaugh concluding that penalties like the ones at issue in this case are in fact treated as taxes under the Tax Code.

The case originates with a 2016 IRS Notice that added transactions taxpayers must report to the agency at the risk of penalty when filing tax returns between $5,000 and $200,000.

In 2017, CIC Services, LLC (CIC) sued, arguing that the IRS published its 2016 Notice without following the procedural requirements of the Administrative Procedure Act (APA) and the Congressional Review Act (CRA).

The U.S. District Court for the Eastern District of Tennessee dismissed the lawsuit citing lack of jurisdiction because of the Anti-Injunction Act. On appeal, the U.S. Court of Appeals for the Sixth Circuit agreed with the district court’s decision to dismiss the case because of the AIA.

The court held that successful challenges to the regulatory aspect of a regulatory tax would invalidate the associated taxes, so the AIA applies no matter how plaintiffs frame their lawsuits.

The U.S. Supreme Court will hear the case during its October 2020-2021 term.

Click here to read the U.S. Supreme Court order.
Click here to read the petition for certiorari.

Click here to read the Sixth Circuit decision.



Supreme Court issues opinions on cases involving property fraud and immigration

On May 7, the Supreme Court of the United States (SCOTUS) issued rulings in two cases argued during its October 2019 term. The court has issued 31 decisions this term.

Kelly v. United States concerned a scheme to reduce local traffic lanes on the George Washington Bridge as retaliation after Fort Lee’s mayor refused to endorse New Jersey Governor Chris Christie’s (R) 2013 re-election bid. The scheme is known as Bridgegate. The case originated from the U.S. Court of Appeals for the 3rd Circuit and was argued on January 14, 2020.

  • The issue: Whether the defendants committed property fraud.
  • The outcome: In a unanimous ruling, the court reversed the 3rd Circuit’s decision, overturning Kelly’s and Baroni’s wire fraud and fraud from federally funded programs convictions. The court held Kelly and Baroni could not have violated the federal program fraud or wire fraud laws because their actions were regulatory in nature and did not seek to obtain money or property. Justice Elena Kagan delivered the opinion.

United States v. Sineneng-Smith concerned 8 U.S.C. §1324, which makes it a federal felony to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of the law.” The case originated from the U.S. Court of Appeals for the 9th Circuit and was argued on February 25, 2020.

  • The issue: “Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional.”
  • The outcome: The court vacated the judgment of the 9th Circuit and remanded the case in a 9-0 ruling. The court held that the 9th Circuit’s departure from the principle of party presentation, as set forth by Greenlaw v. United States (2008), by reaching to decide a question that was not raised by the respondent in the case constituted an abuse of discretion.

The party presentation principle is a legal principle where parties frame the issues for decision and courts generally serve as neutral arbiters of matters the parties present.



SCOTUS declines to take up challenge against Pennsylvania order curtailing non-essential business operations

On May 6, the Supreme Court of the United States declined to intervene in a lawsuit over a Pennsylvania order curtailing the operations of non-essential businesses, allowing the state supreme court’s ruling, which upheld the order, to stand.

On March 24, the plaintiffs (a number of Pennsylvania businesses) petitioned the Supreme Court of Pennsylvania to vacate Governor Tom Wolf’s (D) March 19 order restricting the operations of non-essential businesses in the state. The plaintiffs alleged that the order violated their constitutional rights to free speech, assembly, and judicial review. The plaintiffs also argued that the order violated their rights by depriving them of their property without due process or just compensation.

On April 13, the state supreme court rejected the plaintiffs’ claims, allowing the order to stand. On April 27, the plaintiffs appealed the decision to the Supreme Court of the United States, seeking a stay of enforcement of the order pending disposition of the case.

On May 6, the high court denied the plaintiffs’ application without comment.


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