On October 1, the justices will meet for the so-called “long conference” – their first conference since late June, at which they will vote on new cases for the upcoming term. In two posts earlier this month, I looked at some of the petitions that had already distributed for the October 1 conference; this post looks at three more that have been distributed recently.
In Hall v. Merrill, the justices have been asked to consider whether, and under what circumstances, a candidate for political office can continue to challenge a rule limiting access to the ballot when the election in which he wanted to run has already passed. The question comes to the court in the case of James Hall, a U.S. Marine Corps veteran who wanted to run as an independent in a special election after Jo Bonner, who represented Alabama’s First Congressional District, announced his retirement.
Because Hall was not running as a major-party candidate, he needed to get nearly 6,000 signatures – three percent of the votes cast during the most recent gubernatorial election in that district – by the deadline. When he was unable to do so, Hall challenged the signature requirement for special elections in federal court, and the election went forward without him on the ballot.
After the election, the state argued that Hall’s lawsuit should be dismissed because the case was moot. The district court disagreed, concluding that it was “still reasonably likely that the controversy will recur as to Hall,” who had run as a Republican in a recent local election but might choose to run as an independent in the future. Turning to the merits, the court ruled that Alabama’s ballot-access rule for independent candidates was unconstitutional.
The state went to the U.S. Court of Appeals for the 11th Circuit, which ruled that Hall’s claim was moot. Although Hall had submitted a sworn declaration indicating that he intended to run in special elections in the future, the divided panel explained that there was no “reasonable expectation that Hall” will be subject to the ballot-access rule in the future.
In April, Hall asked the Supreme Court to weigh in, stressing that the federal courts of appeals are divided on the question whether plaintiffs challenging a ballot-access rule must show a reasonable expectation that they personally will be subject to the rule again.
In Price v. City of Chicago, the justices have been asked to review a challenge by individuals and groups who oppose abortion to a Chicago law that creates a “bubble zone” around abortion clinics and makes it a crime for someone to go within eight feet of patients to give them pamphlets, protest, or counsel them. “All other categories of speech are permitted,” the challengers stress. This means that they could go up to someone within the “bubble zone” to “solicit donations for a charity, sell Cubs tickets, campaign for a candidate, or panhandle.” But they can’t “approach that same person to ‘educate’ or ‘counsel’ her about alternatives to abortion, or to offer her literature, at the precise moment when this speech is most likely to matter.”
Not only is the law unconstitutional, the challengers argue, but the justices should also reconsider their decision in Hill v. Colorado, in which the court upheld a state law that generally created a similar buffer zone around patients near an abortion clinic. Hill, the challengers contend, was an “outlier” in the Supreme Court’s First Amendment jurisprudence. Moreover, they add, in this case the U.S. Court of Appeals for the 7th Circuit “unanimously concluded that Hill cannot be reconciled with current First Amendment doctrine” in Reed v. Town of Gilbert, a 2015 decision in which the justices struck down a town ordinance that treated signs differently based on their content, and McCullen v. Coakley, a 2014 case in which the court invalidated a Massachusetts law that made it a crime to stand on a public road or sidewalk within 35 feet of an abortion clinic. But the 7th Circuit, the challengers continued, “found itself constrained by Hill since this Court had not explicitly overruled it.” (Shortly after the court issued its decision in McCullen, Kevin Russell discussed what, if anything, was left of the court’s decision in Hill in a post for SCOTUSblog.)
In 2016, in Hurst v. Florida, the Supreme Court struck down Florida’s death-penalty sentencing scheme, in which the jury issued an “advisory sentence” but the judge independently considered the factors for and against the death penalty before entering a sentence. The justices ruled that the scheme was inconsistent with Ring v. Arizona, a 2002 decision in which the court ruled that Arizona’s sentencing scheme was unconstitutional because it allowed a judge, rather than a jury, to find the facts necessary to sentence a defendant to death.
The Florida Supreme Court later ruled that the U.S. Supreme Court’s decision in Hurst and a subsequent decision of its own requiring a unanimous jury verdict to impose a death sentence only apply retroactively to prisoners whose death sentences became final after Ring. Harold Harvey, who is on death row in Florida, is challenging the Florida Supreme Court’s retroactivity ruling. Harvey, who was sentenced to death for the double murders of William and Ruby Boyd in 1985, argues that the line drawn by the Florida Supreme Court to determine when the rulings apply retroactively is “unconstitutionally arbitrary,” as his case illustrates: One year after the decision in Ring, he explains, the Florida Supreme Court vacated his convictions on post-conviction review. He should have been retried, he argues, and even if he had been sentenced to death again, his conviction would have been final after Ring – and he would have been able to benefit from the new rulings. But instead, he continues, the state filed a motion for rehearing, and in 2006 the Florida Supreme Court issued a new opinion that resulted in Harvey’s convictions remaining final as of 1989 – before Ring, so that he cannot benefit from the new rulings.