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U.S. Supreme Court Decides Major Election, Free Speech and Property Rights Cases

Every term of the United States Supreme Court sees a number of blockbuster decisions, but few are as significant as the one just completed.  As a result, the biggest of the big – landmark rulings on marriage equality, the Affordable Care Act, regulation of greenhouse cases, and housing discrimination – have somewhat overshadowed other significant decisions with significant implications for elections, free speech, voting rights and property rights. Some of the key “overshadowed” decisions from the final two months of the term include:


  • Arizona Legislature v. Arizona Independent Redistricting Commission, No. 13-1314.  In a sharply divided 5-4 decision by Justice Ginsburg, joined by Justices Kennedy, Breyer, Kagan and Sotomayor, the Court turned back a claim by the Arizona Legislature that the Elections Clause of the U.S. Constitution precludes a State’s voters from using the initiative power to transfer authority over congressional redistricting from the state Legislature to an independent, unelected commission.  The Elections Clause provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” subject to congressional preemption. The Court held that held that the Elections Clause does permit the voters to reform congressional election practices by initiative, because “Legislature” in this context means “the legislative power” as defined by state law, including the people acting through direct democracy in states that have it, and that a contrary result would have been inconsistent with founding-era dictionary definitions of “Legislature”; basic principles of federalism; and the animating principle of the Constitution, that all power is inherent in “We the People.” The Court also concluded that Congress-exercising its own oversight power under the Elections Clause-had explicitly sanctioned the use of the initiative and referendum powers in connection with congressional redistricting.  Chief Justice Roberts, joined by Justices Scalia, Thomas and Alito, would have interpreted “Legislature” to mean the body of elected representatives, and would have held that while certain restrictions can be placed on the procedure by which that “Legislature” acts, its principle role in the congressional redistricting process cannot be entirely supplanted.  In rejecting the Arizona Legislature’s challenge, the Court also likely spared California’s independent redistricting commission from an identical challenge.  (Nielsen Merksamer litigators filed an amicus brief in support of the Arizona Commission, on behalf of former California Governors Deukmejian, Wilson and Schwarzenegger; the California Chamber of Commerce; and redistricting reform advocates Charles T. Munger, Jr., and Bill Mundell.)

    Chris Skinnell will provide further analysis of the Arizona redistricting opinion in a webinar on July 10 at 10 a.m. PDT, for the Practising Law Institute. Interested persons can sign up here.

  • Alabama Legislative Black Caucus v. Alabama, No. 13-895.  Earlier in the term, the Court also handed down a separate decision holding that a state redistricting plan was subject to challenge as an unconstitutional racial gerrymander where the legislature began the process with the predominant, overriding goal of ensuring that those districts already containing 55% African American voting age population would continue to maintain that percentage.  The State argued that the legislature’s rule was necessary to comply with the nonretrogression standard under Section 5 of the federal Voting Rights Act (which the Court has since ruled unconstitutional).  The Court held that the State’s mechanical emphasis of bare percentages, without any further analysis of the need to maintain 55% of the population to preserve existing voting strength, was not required by Section 5 and therefore could not justify the legislature’s approach.  On remand, the three-judge trial court held that Alabama’s plan was an unconstitutional gerrymander.  This issue, along with Section 5’s impact on one-person, one-vote standards, will be addressed by the Court in the next term, in Harris v. Arizona Independent Redistricting Commission, No. 14-232.
  • Evenwel v. Abbott, No. 14-940. The Court also agreed to hear an appeal to decide whether one-person, one-vote standards are violated by the creation of Texas’s senate districts when those districts are approximately even in total population, but have significant variations in citizen voting age population (i.e., eligible voters).  The decision to take the appeal came as a surprise to most observers, because the Court had declined to decide this issue on a number of prior occasions.  The case will be briefed and argued in the new term beginning in October 2015.


  • Reed v. Town of Gilbert, No. 13-502. In a case that could have implications for many outdoor sign ordinances – including those regulating political and campaign signs – the Supreme Court struck down a municipal sign ordinance that imposed different restrictions on signs, depending on the information they convey. “Ideological Signs,” which communicate ideas for non-commercial purposes and are not a political sign or related to a meeting of a nonprofit group, were permitted up to 20 square feet without time limits in all zoning areas. “Political Signs,” which attempt to influence the outcome of an election, were permitted up to 16 square feet on residential property, and could only be displayed up to 60 days before an election and 15 days after. “Temporary Directional Signs,” which direct the public to a meeting of a nonprofit group, were permitted up to 6 square feet and could be displayed no more than 12 hours before the meeting and one hour after. The Court found this differential treatment was based on the content of the signs, which triggered the strictest level of judicial review and required the city to demonstrate the ordinance furthered a compelling governmental interest and was narrowly tailored. The ordinance failed this standard and was invalidated.
  • Walker v. Sons of Confederate Veterans, Inc., No. 14-144.  In a 5-4 decision that surprised many, regarding the distinctions between government and private speech, the Court in Walker held specialty license plates in Texas constitute government speech.  The State was therefore permitted to reject a plate design proposed by the Sons of Confederate Veterans in Texas that incorporated the Confederate flag.  The issue has previously been adjudicated in circuit courts throughout the country, with the 4th, 5th, 7th, 8th, and 9th Circuits all holding vanity or specialty license plate designs constitute private speech or a hybrid of private and government speech.  Prior to the Supreme Court’s ruling in Walker, only the 6th Circuit held specialty license plates constitute fully governmental speech, and could thus be restricted based on the content of the plates.  In rejecting the notion that specialty license plates are some form of private speech and instead constitute government speech, the Walker decision has potentially broad applications to other forms of expression on government property.  As Justice Alito highlights in dissent (joined by Roberts, Scalia, and Kennedy), signs, billboards, and other messages created by private entities but displayed on government property may be subject to additional regulations, or exclusion, if deemed to be government speech.  With no explicit language limiting the holding to license plates, Justice Alito notes ominously “the future uses of today’s precedent remain to be seen.”


  • Horne v. Department of Agriculture, No. 14-275. In an important decision involving the Takings Clause of the 5th Amendment, the Supreme Court found a key provision of the federal raisin-supply management program was an unconstitutional taking. The federal program required growers set aside a percentage of their crop for the account of the government, free of charge. The government makes use of the raisins by selling them in noncompetitive markets, donating them, or disposing of them consistent with the purposes of the program. If any profits remain after subtracting the government’s expenses, they are distributed back to the growers. In 2002-2003 growers were required to set aside 47% of their crop, and 30% in 2003-3004. The Hornes refused, and the government fined them the market value of the raisins plus $200,000 in penalties. The Hornes filed suit asserting the reserve requirement was unconstitutional. The Court agreed, holding that requirement imposed a physical taking, and that the Takings Clause protects personal as well as real property: “The government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home.” The Court also flatly rejected the government’s argument that the reserve requirement is not a taking because raisin growers voluntarily chose to plant raisins, and if they don’t like it they can “plant different crops.”