Pennsylvania Congress card returns to court

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Petitions of the week

The Petitions of the week section highlights a selection of certificate petitions recently filed in the Supreme Court. A list of all the petitions we monitor is available here.

Much attention has been devoted recently to the increase in appeals for emergency assistance from the Supreme Court amid a fast-paced tie-up on the shadow case. When judges refuse an emergency request, however, it is not necessarily the end of the road. The party seeking relief can still file a motion for certiorari seeking full argument and consideration on the merits of the larger issue, although the court’s decision may come after the outcome the party hoped to avoid has occurred. This week, we highlight petitions asking the Supreme Court to consider, among other things, whether to weigh in on a major congressional election issue that has repeatedly ricocheted around the ghost file.

Pennsylvania lost a seat in the House of Representatives after the 2020 census and therefore had to draw a new map ahead of the 2022 midterm elections. In January, its Republican-controlled state legislature chose a map which would have resulted in nine Democratic-leaning congressional districts and eight Republican-leaning districts. The state’s Democratic governor vetoed the map. After a flurry of litigation, the Pennsylvania Supreme Court voted 4-3 in late February to impose a different map that would favor Democrats in 10 of 17 congressional districts.

On March 7, judges rejected two emergency appeals on the phantom case to revive new congressional maps drawn by Republican lawmakers in the states of Pennsylvania as well as North Carolina. Ten days later, the Republican challengers in the North Carolina case filed for certification; this petition was to be considered at the judges’ conference this week. Now, a former Republican congressman for Pennsylvania has filed a cert petition in his state’s case, urging judges to grant the two petitions together for a full merits review next quarter.

In Costello v. Carter, former Rep. Ryan Costello is asking the court to answer two questions related to drawing state maps for congressional elections. The first question, also presented in the North Carolina case, concerns the theory of independent state legislature: whether the Constitution vests in state legislatures the power to fix the “times, places, and manners” of elections in Article I, Section 4 prevents state courts from interfering with maps or other rules that legislatures have established for elections. Four judges (the number it takes to grant a cert petition) indicated that this issue deserved the court’s full attention when the court declined to intervene in the North Carolina lawsuit.

Costello is also asking judges to consider whether a separate provision of federal election law invalidates the Pennsylvania Supreme Court’s choice of a new map in defiance of the legislature. In 2 USC § 2a(c), Congress set out the procedures that govern state elections after a census and before formal redistricting. The statute states that “if there is a decrease in the number of representatives and the number of districts in this state exceeds this reduced number of representatives, they shall be elected in the state as a whole”. Costello argues that because Pennsylvania’s 18 districts “exceed[ed]”with all 17 state House seats remaining after the 2020 census, the state court map violated Congress’s instruction that the state’s next congressional election be general until it “be redistributed in the manner provided for by law after any distribution”.

These and other petitions of the week are below:

Elhady vs. Bradley
21-1492
Problems: (1) If, in an interlocutory appeal against the denial of qualified immunity, an appellate court still has jurisdiction under 28 USC § 1291 to decide whether a remedy exists under Bivens c. Six Unknown Federal Narcotics Agents for the claim against which the appellant asserts qualified immunity; and (2) if Bivens claims are categorically excluded at the border, even when the claimant is a US citizen challenging mistreatment on US soil by federal law enforcement officers performing traditional law enforcement duties.

Twitter, Inc. vs. Taamneh
21-1496
Problems: (1) Whether a defendant who provides generic and widely available services to all of its many users and works “regularly” to detect and prevent terrorists from using those services “knowingly” has provided substantial assistance under 18 USC § 2333 simply because it could have taken more “meaningful” or “aggressive” action to prevent such use; and (2) whether a defendant whose generic and widely available services were not used in connection with the specific “act of international terrorism” that injured the plaintiff can be held liable for aiding and abetting under of item 2333.

Costello v. Carter
21-1509
Publish: whether the Election Clause of Article I, Section 4 of the Constitution and 2 USC § 2a(c) limit the courts’ discretion to seek remedies when imposing Congressional cards in response to a constitutional violation or deadlock in the state legislature.

Torcivia v. Suffolk County, New York
21-1522
Problems: (1) Whether a so-called “special needs exception” to the Fourth Amendment exists that permits warrantless entry into the home of a person who is not subject to criminal control or supervision; and (2) whether the court should strike down the judges’ qualified immunity doctrine with respect to non-police state actors.

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