The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Voter fraud, Jersey Boys, and inescapable tax debt.


Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

It's a tale of two cases. In 1905, the Supreme Court issued two landmark opinions reviewing state legislation under the Fourteenth Amendment. Today, Lochner v. New York is reviled by academics and judges alike—a supposed example of "judicial activism" gone awry. Meanwhile, Jacobson v. Massachusetts is held up as a model of "restraint"—and a key precedent supporting government's power to address the COVID-19 pandemic. And yet, IJ's Anthony Sanders explains, the two opinions have more in common than it might seem. Click here for the surprising and illuminating discussion.

New on the Short Circuit podcast: Special guest Steve Vladeck of UT Law joins the panel to talk the Declaratory Judgment Act.

  • Scheming to build a housing development that Bloomingburg, NY residents oppose, developer arranges for fraudulent votes in a bid to seize control of the village government. It's voter fraud in a purely local election. Second Circuit: Ah, but the false voter registrations could have been used in later federal elections. Federal conviction affirmed.
  • Target of IRS summons—who allegedly controlled offshore accounts through trusts for which he was both trustee and beneficiary—claims that order to produce documents violates his Fifth Amendment right against self-incrimination. Second Circuit: A trust, like a corporation, is a collective entity that has no such Fifth Amendment right. Produce those docs.
  • Despite four motions to let him out, mentally disabled Pennsylvania man is detained for nine years pending a homicide trial that never happens. Can he bring an Americans with Disabilities Act claim against the clerk's office for not doing something to get his case resolved? Third Circuit (over a dissent): Nope. He was detained because of judging, and you can't sue about that. But we recognize the human suffering. (Other claims not on appeal might do better.)
  • Texas allows mail-in voting for anyone 65 or older. The district court entered a preliminary injunction requiring that all voters—regardless of age—be allowed to vote by mail. Fifth Circuit: Plaintiffs defend the injunction on the ground that the law violates the 26th Amendment, which prohibits laws that "deny" or "abridge" the right to vote "on account of age." But a law that makes it easier for older people to vote does not "abridge" the rights of younger people (pandemic notwithstanding). Still, plaintiffs may pursue other theories on remand.
  • Purportedly enforcing a general policy against dyed hair, school dean allegedly singles out an African American boy for discipline and ridicule—calling him a "thug" and a "fool," asking if the student "was gay with 'that mess' in his head," discouraging other students from speaking with him, and even encouraging another student to concoct a false allegation of sexual assault. Fifth Circuit: All of which should have been enough to get this case past a motion to dismiss.
  • What are judges to do when they wish to be faithful to text but two provisions of the same law irreconcilably conflict? The Fifth Circuit brings us the answer with an annual Medicare health care provider compensation formula that overlaps for one day each year.
  • Allegation: Cleveland social workers fail to prevent a woman from abusing and eventually killing her disabled daughter. But there is still no right to protection from private harm, reminds the Sixth Circuit, so no suing the social workers for what they didn't do. But claims that they interviewed the girl in front of her abusers and thus actively put her at risk? Those claims can proceed.
  • In which the Sixth Circuit confirms that, when the Supreme Court tells courts to apply strict scrutiny to content-based sign restrictions, the Supreme Court means what it says.
  • "This case is the swan song in an epic saga of unending war over trade secrets and the unlawful sales of sails. Unlike the model of the Iliad, it was ended not by men in a horse but by men in robes." And, with that, the Sixth Circuit affirms the judgment in this honestly otherwise pretty boring contract dispute.
  • Prisoners in Cook County, Ill. sue over prison efforts to control the spread of COVID-19. Trial court grants a preliminary injunction ordering the sheriff to take a variety of safety measures, including the elimination of "double celling" and group housing. Seventh Circuit: The requirement for socially distanced housing went too far, but the rest of the injunction was reasonable and well supported.
  • Following a 1992 double murder, Chicago detectives use physical and psychological coercion to extract false confessions from suspects. Detectives manufacture other false evidence too. Sentenced to life imprisonment, one of the suspects spends 21 years behind bars before being exonerated. Upon release, he sues the detectives (among others). And the jury's finding of liability—paired with a $13 million damages award—is affirmed, holds the Seventh Circuit.
  • Taxpayers believe a 2008 county tax assessment violated their equal protection rights. After a decade spent trying to pursue the claim in state court, they sued in federal court. And were promptly dismissed because state courts provide a "plain, speedy and efficient remedy." Seventh Circuit: We reversed and remanded in January, and yet the district court has taken no further action in this case—evidently waiting to see if the Supreme Court will grant certiorari. Our mandate said the case should proceed, so now we grant mandamus.
  • Kansas City, Mo. man is hit with felon-in-possession charge after being caught with a shotgun. Feds offer a plea deal under which both sides would request a sentence of between 70 and 87 months. Judge chimes in with comments like "[t]hat's probably worse than if he got convicted, right?" Judge also advises the defendant that the federal system "sucks" and is "really harsh" and that pleading guilty would mean he'd be sentenced by a less lenient judge. Man rejects plea, gets convicted, and is sentenced to 92 months' imprisonment. Eighth Circuit: The district court plainly erred by inserting itself into the plea-bargain process. Sentence vacated and case remanded for resentencing before a different judge.
  • Forty-seven states and the District of Columbia use a winner-take-all system for apportioning their votes in the Electoral College. Represented by super-lawyer David Boies, California voters sue, alleging that the system violates equal protection by rendering the votes of the losing party meaningless; they should get some of the electoral votes, too. Ninth Circuit: SCOTUS blessed this arrangement decades ago.
  • The musical Jersey Boys recounts the rise to fame of the Four Seasons, the band responsible for the high-pitched caterwauling in "Walk Like a Man" and "Big Girls Don't Cry." After the show becomes a smash hit, the owner of copyright in an unpublished autobiography of one of the band members sues, alleging that the musical is too similar to the book. Ninth Circuit: This was a really long and expensive case that could have been resolved by the most basic proposition of copyright law: Facts aren't copyrightable.
  • Volkswagen, which at one point owned 70% of the U.S. passenger-car diesel market, used software to cheat on diesel emissions tests for years. Several executives went to prison, and the company paid billions in fines. The company agreed to settle the class action by reimbursing owners and lessees and removing the polluting autos from the road. But not all cars are eligible for compensation; the company won't pay for those bought from junkyards or salvage yards with branded titles. And the company needn't pay for cars bought at insurance auctions with branded titles, either, says the Ninth Circuit.
  • While on a cross-country motorcycle trip, man's bike breaks down in an isolated town in Garfield County, Utah. Yikes! He's arrested on suspicion of stealing $20 from a local convenience store—money that, it turns out, was never stolen in the first place—and suffers long-term nerve damage from being handcuffed. He's forced to hitchhike 95 miles back from the jail to his motorcycle but finds the bike vandalized and his possessions stolen. Tenth Circuit: No qualified immunity here.
  • Congress passed the Ute Partition Act in 1954 to terminate federal supervision of "mixed-blood members" of the tribe. Those with less than 50% Ute ancestry received some tribal assets and were stripped from the rolls and unable to invoke federal Indian laws. Man who falls within this group seeks to avoid state-court prosecution for speeding in Indian Country, argues that he has Indian status, notwithstanding the 66-year-old law. Tenth Circuit: Alas, the law says what it says.
  • Navajo man is charged with assaulting another Navajo man within Indian country. Federal law applies, and the man accordingly receives a substantially higher sentence than he would have received under state law. Tenth Circuit: We are sympathetic to the concern that Native Americans receive higher sentences for assault because they are disproportionately subject to federal criminal jurisdiction. But, under our precedent, the district court properly declined to consider that disparity at sentencing.
  • Hedge-fund gent and his wife rack up millions of dollars in tax debt. Throughout the 2000s, they make low-ball settlement offers to the IRS while spending millions on a personal chef, a rental home in Aspen, charitable donations, and other such luxuries. Bankruptcy ensues. Bankruptcy court: Your tax debt is nondischargeable because you willfully attempted to evade liability. District court: Indeed. Eleventh Circuit: Indeed.
  • Registered sex offenders, driven to homelessness by restrictions on where they can live, sue challenging the restrictions as ex post facto laws. Eleventh Circuit: Totally OK to decide the case based on the fact that your lawyers said they were bringing a "facial" challenge and not an "as-applied" challenge.
  • Florida, in 2018, restored the voting rights of convicted felons. But with a catch. Restoration was conditioned on paying off all fines, fees, costs, and restitution. Eleventh Circuit (on initial hearing en banc): States may restrict voting by felons in ways that would be impermissible for other citizens, and Florida, here, permissibly distinguished between felons who have completed their sentences and those who have not. Dissent: So much is profoundly wrong with the majority opinion that it is difficult to know where to begin.
  • And, in en banc news, the Ninth Circuit will not reconsider its earlier decision upholding a federal law that prohibits possession of firearms by those involuntarily committed to mental institutions—regardless of the passage of time or the individual's current mental health. Eight judges dissent, with three writing separately, to affirm that the Second Amendment is not a second-class right.

Just last week, IJ filed suit in New Hampshire to enforce the Supreme Court's recent decision granting IJ a victory—and prohibiting government discrimination against religious schools—in Espinoza v. Montana Department of Revenue. But that's not all! This week, IJ again filed suit to enforce Espinoza—this time in Vermont. Vermont subsidizes private schools for students in rural districts that don't operate full K–12 public schools but excludes private religious schools from the program. That violates Espinoza, and IJ is on the case to make sure that states follow the decision. Learn more here.

NEXT: How Should Universities (Especially Law Schools) Treat The Powerful?

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  1. "Scheming to build a housing development that Bloomingburg, NY residents oppose, developer arranges for fraudulent votes in a bid to seize control of the village government. It's voter fraud in a purely local election. Second Circuit: Ah, but the false voter registrations could have been used in later federal elections. Federal conviction affirmed."

    But we're told that there is no such thing as voter fraud.

    1. Everyone was onto these guys by election day, the fraudulent votes were forced to be cast as provisional ballots and never counted, and they were trying to influence a couple of hundred votes.

      It's not that there's no such thing as voter fraud, it's that it's quite rare and there's plenty of existing protections to prevent it from changing the outcome of elections. Which this case proves quite clearly.

      1. "it’s that it’s quite rare"

        That's not "quite" true. What's more accurate is that it is identified, reported, and brought to a criminal conviction (or judicial finding) relatively rarely. Roughly 1000 cases over 30 years.

        But that's a pretty high bar, all the way to criminal conviction. Let's show you why with an example. There has been reported to be an epidemic of rape on college campuses. But what if you were restricted to only knowing about the rape cases from college campuses that actually resulted in criminal convictions. The "number" of rapes would drop dramatically. There would no longer be an epidemic of rape. And every case of rape you found would be have dealt with successfully by the system. See the problem here.

        It's a bit of a catch-22. You only "know" about the cases that are brought to criminal convictions, so every case is caught, and your protections work great. If a case evaded your protections, you would never know about it, so it would never count.

        And we know there are cases of voter fraud that aren't caught when they occur. Take the case of Rosa Maria Ortega, who voted illegally in 2012, and then again in 2014. Clearly the 2012 illegal vote wasn't caught until much later.

        One big issue is you want to test your protections. You want to send in people to try to "vote" illegally, and if the succeed, you know your protections aren't good enough. This is pretty rare, but in 2013, the New York Department of Investigation did just this. They identified roughly 150 people who used to live in NYC and moved away, or died, or were incarcerated. Of these, 63 still had active voter registrations (This is a problem, but sadly widespread). And then they went and tried to vote as these people. No fake IDs or anything, just "I'm this person". And they succeeded overwhelmingly. In 61 of these 63 cases, they cast successful votes (for "John Test"). 40 year old men cast votes posing as 80 year olds. Signatures weren't checked. etc, etc. One of the only cases where they were caught was because the investigator was posing as the poll worker's son.

        That's a problem. It implies the protections can be easily gone around. And this is in person voting. Absentee ballots are even easier to use fraudulently en mass.

        So what do we do about this?

        1. Certain common sense protections for absentee ballots make sense. The need to request a ballot. Ideally, I would also have the voter put their own 2 letter code on the ballot, as well as an e-mail or local address. Then a receipt that the person's vote was (or was not) received for the election, with the 2 letter code. This would give some better protections to know your vote is yours, and your vote was counted. Ideally, your vote should be as secure as your bank account.

        2. The absentee ballot system should be tested by federal officials for points of failure. Absentee ballots should be requested for various ineligible voters (Dead, non -Citizen, etc) in reasonable numbers and two checks should occur
        1. Did you get a ballot? If so
        2. It should be returned with a write in vote for "John P. Test"

        Based on the final polling results, the number of "John P. Tests" that get through and are tabulated in the final results will be very telling. And if those numbers are too high, the election may need to be repeated.

        1. "There has been reported to be an epidemic of rape on college campuses."

          If the bogus 1-5 women statistic were anywhere near true, that would be a greater justification than Covid for shutting down university campuses and switching to remote learning. But it's not.

        2. Remember when James O'Keefe said he was Eric Holder and DC was going to give Holder's ballot -- when Holder was AG?

        3. " Let’s show you why with an example. There has been reported to be an epidemic of rape on college campuses. But what if you were restricted to only knowing about the rape cases from college campuses that actually resulted in criminal convictions."

          right. First off, there were incentives leveled by colleges to suppress rape claims for years. Second, rape is a difficult crime to prove, even if the victim comes forward and cooperates with investigation and prosecution.

    2. It wasn't voter fraud. It was voter registration fraud. Get your facts straight. Every time you exaggerate like this you beclown yourself and your position.

      1. In fairness, there were also fraudulent votes cast, but only on provisional ballots and they were never counted.

    3. "But we’re told that there is no such thing as voter fraud."

      Factually untrue.

      You're told that there is no widespread voter fraud, and that events of actual voter fraud are detected and pursued by law-enforcement agencies.
      the fact that this incident was detected and pursued fits that version of the story, which differs from yours.

      1. But, if the fraud wasn't detected and reported, then it wouldn't be pursued...

        1. That's not what happened. The fraud WAS detected, and it WAS pursued.

          1. It's a bit of a catch-22 is all.
            If you don't detect the fraud, then you don't pursue it.

            1. The same is true of every other crime. But you don't see people assuming that other crimes are rampant because they'd do it if they got the chance, like you do with Republicans claiming voter fraud as an excuse to suppress votes from people who tend not to vote for them.

  2. "...Claimants purchased the vast majority of the cars after they were already taken off the road (since they were damaged or unsafe to drive) and, therefore, they were not polluting roads."

    By the same token, any vehicle taken off the road because it needs repairs (e.g. new tie rods, or even new tires) has been taken off the road because it is "damaged" or "unsafe to drive."

    VW thus gets to enjoy the ill-gotten gains of its criminal sale of an illegal vehicle without consequences -- this is 5% of the ones they sold. And for something that was *criminal*, the settlement was Bullshite -- buyback at *tradein* value and not actual value for a vehicle that could not be used because of the crime.


      1. Those are the same link.

        1. Pretty funny link too.

  3. I probably disagree with Judge Ho on a lot of things, but the Greenbrier Hospital decision is a great read. It's much more focused on communicating clearly than grandstanding, it's concise, and even someone who doesn't know very much about the law would be able to understand what's going on. It would sure be nice to see more decisions written this cleanly and clearly.

  4. 47 states, not 48?
    I know about Maine and Nebraska, is there now a third?

    1. No; I think it's just a typo and meant to say "forty seven OTHER states"

      1. Indeed. The decision says 47 other states but the summary here misquotes slightly.

  5. Key paragraphs from the Texas voting case majority opinion (boldface mine; citations omitted):

    A Texas statute allows mail-in voting for any voter at least 65 years old but requires younger voters to satisfy conditions, such as being absent from the county on election day or having a qualifying disability. Amid an election year pandemic, the district court entered a preliminary injunction requiring Texas officials to allow any Texan eligible to vote to do so by absentee ballot. This court [i.e., another panel of the Fifth Circuit] stayed the injunction pending appeal. The plaintiffs defend the injunction at this stage of the proceedings only on the basis that the vote-by mail privilege for older voters is unconstitutional under the Twenty-Sixth Amendment’s prohibition against denying or abridging the right to vote on account of age. The statutory provision withstands that challenge....


    Rejecting the plaintiffs’ arguments, we hold that an election law abridges a person’s right to vote for the purposes of the Twenty-Sixth Amendment only if it makes voting more difficult for that person than it was before the law was enacted or enforced. As the Court has held, the “core meaning” of “abridge” is to “shorten,” and shortening “necessarily entails a comparison.” Abridgment of the right to vote applies to laws that place a barrier or prerequisite to voting, or otherwise make it more difficult to vote, relative to the baseline.

    On the other hand, a law that makes it easier for others to vote does not abridge any person’s right to vote for the purposes of the Twenty-Sixth Amendment. That is not to say that a state may always enact such a law, but it does not violate the Twenty-Sixth Amendment.

    There are quite reasonable concerns about voting in person, but the state’s mandating that many voters continue to vote in that way does not amount to an absolute prohibition of the right to vote. As to abridgement, voters under age 65 did not have no-excuse absentee voting prior to the pandemic. Further, requiring many to vote in person during this crisis, with safety measures being imposed and some flexibility as to “disability” being shown, does not amount to an unconstitutional status quo. The real issue here is equal protection, and that is not before us.

    1. In other words, having expressly abandoned on appeal their equal protection argument under the Fourteenth Amendment — duh! — the Texas Democratic Party's lawyers thereby screwed the pooch.

    2. On the other hand, a law that makes it easier for others to vote does not abridge any person’s right to vote for the purposes of the Twenty-Sixth Amendment.

      So if Texas opened up hundreds of additional polling stations, but only for white people, that would not abridge anyone’s right to vote?

  6. "While on a cross-country motorcycle trip, man's bike breaks down in an isolated town in Garfield County, Utah. Yikes! He's arrested on suspicion of stealing $20 from a local convenience store"

    Where is Cousin Vinny when you need him?

    1. "Where is Cousin Vinny when you need him?"

      Hiding from coronavirus.

  7. "But a law that makes it easier for older people to vote does not "abridge" the rights of younger people (pandemic notwithstanding)."

    That's clearly absurd. Imagine a law that says that men can vote by mail, but women have to vote in person. Were not "abridging" the right of women to vote, we're just making it easier for men to vote!

    1. After all the support for affirmative action, the courts have kinda painted themselves into the corner on that argument.

    2. I can see plenty of objections to such a law, but I don't see how it's abridging anyone's right to vote.

    3. Twelve, I'm in TX and in favor of just letting everyone vote by mail if they want. However, it's not as obvious as you're making it out to be.

      1. It's not undebatable which side is being abridged. Because of Covid, and because you believe the medical experts, you're thinking your hypothetical men/women law would be anti-woman. But suppose it was 1938 Texas, and the law was that whites voted in person but blacks could vote by mail. In that case I think we could guess whose votes they were trying to perhaps misplace. And we'd see a 1938 law that said only women could vote by mail as perhaps condescending or patronizing.

      2. I know plenty of people who would be way more worried if the law was that they HAD to vote by mail. So again, it's not clear that mail is seen as advantage over no mail.

      3. Even if they'd gone with the equal protection argument, it's still not undebatable. One can take the literal text approach favored by many conservatives/libertarians that the text differentiates 65, therefore it's a violation. Or one can take the holistic approach favored by some on the left, that says equality is measured after taking everyone's privilege/disadvantage/etc into account. In which case the argument is people over 65 have more difficulty travelling and more risk from Covid.

  8. Read the opinion, TwelveInch. The court addresses (and properly disposes) of your argument.

    If the plaintiffs had instead relied upon not only the Twenty-Sixth Amendment, but also the equal protection clause of the Fourteenth Amendment, they might have had a plausible argument.

  9. In Mai v. US, the court writes:

    He has never asserted, for example, an equal-protection claim... Nor has he advanced, on appeal, an argument that due process demands the same results.

    Is the court deliberately telegraphing what it thinks to be stronger strategies? Does this kind of thing happen a lot?

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