The U.S. Supreme Court’s June 22 ruling in Liu v. SEC limited the Securities and Exchange Commission’s (SEC) enforcement powers.
The court ruled 8-1 that the SEC could ask courts to issue disgorgement orders, which require wrongdoers to give up money gathered illegally, with some restrictions. The court held that valid disgorgement orders must be less than or equal to the wrongdoer’s net profits and go toward repaying any victims.
Justice Sonia Sotomayor, writing for the majority, argued, “First, equity practice long authorized courts to strip wrongdoers of their ill-gotten gains, with scholars and courts using various labels for the remedy. Second, to avoid transforming an equitable remedy into a punitive sanction, courts restricted the remedy to an individual wrongdoer’s net profits to be awarded for victims.”
Justice Clarence Thomas wrote in his dissenting opinion that the court should have ruled that disgorgement orders were never allowed. He argued that the relevant law “authorizes the Securities and Exchange Commission (SEC) to seek only ‘equitable relief that may be appropriate or necessary for the benefit of investors,’ and disgorgement is not a traditional equitable remedy.”
The decision in Liu “struck a middle ground, rejecting the broad argument that the SEC could never obtain disgorgement of profits from unlawful activity in securities litigation, but sharply cutting back the remedy as the SEC has envisioned it in recent years,” Columbia Law professor Ronald Mann argued in an article for SCOTUSblog.
“Three years ago, the Supreme Court cast doubt on whether disgorgement was among the remedies the agency could seek in civil lawsuits,” but with Liu the court approved the practice, according to New York Times Supreme Court reporter Adam Liptak.
The court sent the case back down to the Ninth Circuit for another hearing based on the Liu ruling.
The U.S. Senate has confirmed 200 of President Trump’s Article III judicial nominees—two Supreme Court justices, 53 appellate court judges, 143 district court judges, and two U.S. Court of International Trade judges—since January 2017.
On June 24, the Senate confirmed Cory Wilson to the U.S. Court of Appeals for the 5th Circuit. The 5th Circuit is one of 13 U.S. courts of appeal. They are the intermediate appellate courts of the United States federal courts. After Wilson receives his judicial commission and takes his judicial oath, the court will have no vacancies, 12 Republican-appointed judges, and five Democrat-appointed judges.
Wilson’s confirmation fills the only current U.S. Circuit Court vacancy. The last time this occurred was in July 1984, when Judge John Butzner’s seat on the 4th Circuit was vacant.
There are two upcoming Circuit Court vacancies. Andrew Brasher was already confirmed to succeed Judge Ed Carnes on the 11th Circuit. Carnes is expected to assume senior status on June 30. Justin Walker was confirmed to succeed Judge Thomas Griffith on the D.C. Circuit. Griffith is expected to retire on September 1.
In a 5-4 decision, the U.S. Supreme Court ruled in DHS v. Regents of the University of California that the U.S. Department of Homeland Security (DHS) did not properly follow Administrative Procedure Act (APA) procedures when it sought to end the Obama-era Deferred Action for Childhood Arrivals (DACA) program in 2017. DHS started the program in 2012 with a memo that itself did not go through the APA rulemaking process.
The court’s ruling argued that DHS failed to provide required analysis of all relevant factors associated with ending the DACA program. The majority opinion argued that rendered the decision arbitrary and capricious under the APA. The court thus remanded the issue back to DHS, which can reattempt to end the program by providing a more thorough explanation for its decision.
Chief Justice Roberts delivered the majority opinion of the court saying, “The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.” Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan joined the full opinion. Justice Sonia Sotomayor joined most of the majority opinion, giving it the fifth vote it needed to become the official decision of the court.
Justice Sotomayor agreed with the court that DHS improperly followed the APA, but she wrote separately to argue that the court should have given those challenging the agency the opportunity to develop claims that the agency violated the equal protection guarantee of the 5th amendment to the U.S. Constitution.
In a dissenting opinion, Justice Thomas argued that an administration should be able to rescind policies not lawfully implemented: “To state it plainly, the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum.” He argued that the court’s decision was “an effort to avoid a politically controversial but legally correct decision.” Justices Samuel Alito and Neil Gorsuch joined Thomas’s opinion.
Justice Kavanaugh defended DHS’s reasons for ending DACA as adequate in a separate opinion. He added that the court’s decision applied precedent incorrectly when it held that a memo written by former DHS Secretary Kirstjen Nielsen came too late to provide the analysis the court said DHS needed to end the program.
Raymond Lucia, the plaintiff in the 2018 U.S. Supreme Court case Lucia v. SEC, reached a settlement with the U.S. Securities and Exchange Commission (SEC) on June 17 after eight years of litigation. The settlement requires Lucia to pay a $25,000 fine and allows him to reapply for reinstatement as an investment advisor.
The Lucia case challenged the constitutionality of the SEC’s appointment of its administrative law judges (ALJs). The U.S. Supreme Court ruled in June 2018 that the agency’s ALJ appointments violated the U.S. Constitution’s Appointments Clause. The court found that the SEC’s ALJs are inferior officers (rather than agency employees) who must be appointed by the agency’s commissioners as required by the Constitution’s Appointments Clause. Lucia’s case was sent back to the SEC for a new hearing before a different, constitutionally appointed ALJ.
ALJs are officials who preside over federal administrative hearings and serve as both the judge and the jury. The Administrative Procedure Act requires that ALJs preside over hearings during formal adjudication proceedings, but they may also preside over hearings during informal adjudication. Adjudication proceedings include agency determinations outside of the rulemaking process that aim to resolve disputes between either agencies and private parties or between two private parties
On June 15, the Supreme Court of the United States (“SCOTUS”) granted review in two cases for its upcoming October 2020-2021 term.
The Supreme Court will begin hearing cases for the term on October 5, 2020. The court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.
Albence v. Guzman Chavez
The case Albence v. Guzman Chavez came on a writ of certiorari to the U.S. Court of Appeals for the 4th Circuit. It concerns the Immigration and Nationality Act of 1952 and the statutory authority under which the government detains immigrants seeking to overturn deportation after a reinstated removal order. As of June 16, 2020, the case’s argument date was pending.
The case: The case originated in a dispute over whether the respondents, a group of immigrants detained by the U.S. government pending deportation proceedings, could seek release in bond hearings before immigration judges. The government argued that they could not seek release, because 8 U.S.C. 1231 subjected the immigrants to mandatory detention. The immigrants argued that 8 U.S.C. 1226 allowed them to seek release via bond hearings. The U.S. District Court held the respondents were detained under 8 U.S.C. 1226 and ordered the government to provide bond hearings. On appeal, the 4th Circuit upheld the district court’s ruling.
The issue: Whether the detention of an alien who is subject to a reinstated removal order and who is pursuing withholding or deferral of removal is governed by 8 U.S.C. 1231 or by 8 U.S.C. 1226.
Henry Schein, Inc. v. Archer and White Sales Inc.
The case Henry Schein, Inc. v. Archer and White Sales Inc. originated from the U.S. Court of Appeals for the 5th Circuit and concerns arbitration agreements. As of June 16, 2020, the case’s argument date was pending.
The case: In 2012, Archer & White Sales, Inc. filed a lawsuit in magisterial court against Henry Schein, Inc. alleging that the company violated the Sherman Antitrust Act and the Texas Free Enterprise and Antitrust Act. Henry Schein, Inc. filed motions to compel arbitration and stay all proceedings. The magistrate judge granted the defendants’ motions. In 2016, the U.S. District Court for the Eastern District of Texas reversed and vacated the magistrate judge’s ruling and issued an order denying the motions to compel arbitration. On appeal, the U.S. Court of Appeals for the 5th Circuit upheld the district court’s order. In 2018, Schein appealed to the Supreme Court, which vacated the 5th Circuit’s ruling and remanded the case. On remand, the 5th Circuit affirmed the district court’s denial of motions to compel arbitration. In 2020, Schein petitioned the Supreme Court for review.
The issue: Whether an arbitration agreement provision exempting certain claims from arbitration negates an otherwise clear and unmistakable delegation of arbitrability questions to an arbitrator.
As of June 16, 2020, the court had agreed to hear 22 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic.
On June 16, the Democratic Party of Texas appealed to the U.S. Supreme Court an appellate court order staying a district court decision that had extended absentee voting eligibility in response to the COVID-19 outbreak.
On May 19, Judge Samuel Frederick Biery of the U.S. District Court for the Western District of Texas ordered that all eligible Texas voters be allowed to cast absentee ballots in order to avoid transmission of the coronavirus. The state appealed the decision to the U.S. Court of Appeals for the Fifth Circuit. On June 4, a three-judge panel of the appeals court stayed the district court decision, allowing election officials to enforce state laws limiting absentee voting to those meeting specified eligibility criteria.
In its appeal to the Supreme Court, the plaintiffs presented the following question: “Does Texas’s limitation of the right to cast a no-excuse mail-in ballot to only voters who are ’65 years of age or older on election day,’ Tex. Election Code § 82.003, violate the Twenty-Sixth Amendment’s directive that the right to vote ‘shall not be denied or abridged by the United States or by any State on account of age’?”
The U.S. Supreme Court issued two opinions in five cases. In Bostock v. Clayton County, Georgia (consolidated with Altitude Express Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes v. EEOC), SCOTUS ruled “an employer who fires an individual merely for being gay or transgender violates” Title VII of the Civil Rights Act of 1964. Title VII outlawed discrimination on the basis of race, color, religion, sex, or national origin. The three cases questioned whether sexual orientation and gender identity were included in Title VII’s prohibition of discrimination “because of … sex.”
In Bostock v. Clayton County, Georgia, the 11th Circuit held that sexual orientation was not a form of sex discrimination under Title VII. In Altitude Express Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes v. EEOC, the 2nd Circuit and 6th Circuit, respectively, held that sexual orientation was a form of sex discrimination under Title VII.
In a 6-3 ruling, the court reversed the 11th Circuit and affirmed the 2nd and 6th Circuits. Writing for the majority, Justice Neil Gorsuch argued, “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Justice Samuel Alito filed a dissenting opinion, joined by Justice Clarence Thomas. Justice Brett Kavanaugh also filed a dissenting opinion.
United States Forest Service v. Cowpasture River Preservation Association (consolidated with Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association) concerned whether the U.S. Forest Service had the authority to grant rights-of-way through lands traversed by the Appalachian Trail within national forests. In a 7-2 opinion, the court reversed the 4th Circuit’s judgment, holding the Forest Service does have authority to grant rights-of-way. Justice Clarence Thomas wrote the majority opinion.
In his opinion, Justice Thomas wrote, “We conclude that the lands that the Trail crosses remain under the Forest Service’s jurisdiction and, thus, continue to be ‘Federal lands’ under the [Mineral] Leasing Act.” Justice Sonia Sotomayor, joined by Justice Elena Kagan, dissented.
On June 8, 2020, the Supreme Court of the United States (“SCOTUS”) issued a unanimous ruling in one case, Lomax v. Ortiz-Marquez. The case originated from the U.S. Court of Appeals for the 10th Circuit and was argued before SCOTUS on February 26, 2020.
The case: Arthur James Lomax is a prisoner at the Limon Correctional Facility in Colorado and was previously incarcerated at the Centennial Correctional Facility in Colorado. Lomax filed a complaint against five Centennial Correctional Facility employees and a member of the Central Classification Committee at Offender Services, and filed a motion to proceed in forma pauperis, meaning to proceed without assuming liability for the costs of the suit, with the U.S. District Court for the District of Colorado.
The District of Colorado rejected Lomax’s complaint under the three-strikes provision of the United States Code, and rejected Lomax’s motion to proceed in forma pauperis for failure to show cause of imminent physical danger. The court ordered Lomax to pay the appellate filing fee in full. On appeal, the 10th Circuit affirmed the district court’s ruling.
The issue: Is the dismissal of a civil action without prejudice for failure to state a claim a strike under 28 U.S.C. 1915(g), or is it not?
The outcome: The court affirmed the 10th Circuit’s judgment in a 9-0 vote, holding that Section 1915(g) of the United States Code, or the three-strikes provision, refers to any dismissal for failure to state a claim, whether with prejudice or without. Justice Elena Kagan delivered the opinion of the court. Justice Clarence Thomas joined the majority opinion as to all but footnote 4.
As of June 8, 2020, the court had issued decisions in 39 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.
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.”
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.
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.
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.
Looking ahead 
On June 1, 2020, the Supreme Court of the United States (“SCOTUS”) issued rulings in five cases argued during its October 2019-2020 term: