Weekly litigation report — March 1, 2019

Voters challenge Texas law that censors them at the polling place

Today, PLF filed a lawsuit on behalf of Jillian Ostrewich and Tony Ortiz, challenging a Texas law that forces voters to silence themselves before they can vote. Last election, election workers forced Jillian to turn her “Houston Fire Fighters” shirt inside out. Tony suffered a similar fate. An election worker demanded that he remove his “Make America Great Again” hat. When he disputed this dictate, the election worker threatened to have him arrested. As PLF followers know from our recent Supreme Court victory, banning political apparel at the polling place violates the freedom of speech. We look forward to carrying that victory to Texas.

Agencies can’t evade democratic scrutiny

This week, the District Court for the District of Idaho held that courts can review agency violations of the Congressional Review Act, which requires agencies to submit every rule they impose on us to Congress for review. As PLF reported through our Red Tape Rollback project, agencies have routinely ignored this requirement, whether out of indifference or a desire to avoid accountability. In Tugaw Ranches, LLC v. Department of Interior, the government sought to dismiss our case by arguing that courts cannot review these violations. Without judicial review, the Court found, “an agency would frankly have no reason to comply with the CRA.” Thus, “reading judicial review out of the CRA foils its primary purpose” of restoring democratic accountability over the administrative state. This is not only an important win for our clients, but for all who care about preserving the Constitution’s separation of powers against the too-powerful administrative state. For more, see our blog post.

Stop government censorship

Last week, we asked the Supreme Court to empower courts to search behind the government’s stated motives when it censors speech it doesn’t like.  We’re representing ABC-CCC, a non-profit advocacy organization that stands to lose all of its funding due to a California law that targets speech opposed by unions.  ABC-CCC advocates from an “open-shop” or “merit-shop” viewpoint.  The group argues that SB 954, which was enacted in 2017, limits certain donations to union-favored speech, and discriminates against groups who speak in ways that unions do not like.  While the government argues that it had a viewpoint neutral purpose, we believe that courts must be able to look behind the stated purpose when a plaintiff alleges pretext.  For more, see our blog post here.

Adverse preliminary decision in challenge to NYC school discrimination case

In Christa McAuliffe PTO v. de Blasio a federal district court issued this adverse decision on our preliminary injunction motion. We’ve sued to halt New York City’s changes to the specialized high school admissions process that was designed to decrease Asian-American enrollment. We argue that although the changes are facially race-neutral, public statements make it clear that the intent is to racially balance the schools at the expense of Asian kids. The court denied our motion for a preliminary injunction, ruling that city officials’ intent to racially diversify the schools did not amount to discriminatory intent. We are examining our options.

PLF attorney testifies on Navigable Waters rule

This Thursday PLF Senior Attorney Tony Francois testified before the EPA and Army Corps of Engineers in Kansas City during their hearing on their proposed regulations redefining “navigable waters” under the Clean Water Act. We have previously discussed our concerns about the Trump Administration’s foot dragging and half-efforts on Clean Water Act reform. Read more at our blog.

The Supreme Court should curb conflicts over federal land

PLF, representing numerous mining organizations, filed an amicus brief urging the Supreme Court to review Bohmker v. Oregon, challenging Oregon’s ban on certain types of mining on federal land despite Congress’ explicit encouragement of this activity. The case is no minor squabble over mining policy; the Ninth Circuit’s decision threatens to exacerbate already all-too-common conflicts over federal lands. Although the Constitution places responsibility for these lands in Congress, both it and the courts have generally tried to accommodate states by allowing them to regulate these lands to some extent. But the lack of clarity about that extent has emboldened states to try vetoing Congress’ policy decisions, as Oregon has here. In this case, Congress should clarify just how far states can go, so that these conflicts can finally end. For more, see our blog post.