March 2015

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Spurred by yesterday’s battle-of-the-titans Supreme Court oral arguments (Clement vs. Waxman) in a case we’ve been following, we’re taking a short diversion from our usual fare of takings, eminent domain, and land use law today to cover another topic that long-time followers know is also within our area of practice: voting and election law.

The case is Arizona State Legislature v. Arizona Independent Redistricting Commission, No. 13-1314, an actual appeal to the Supreme Court from a three-judge district court, one of the few places left in the law where that can still happen. The Question Presented boils down to the meaning of “legislature” as used in the Elections Clause: does the requirement that “the Legislature” determine the time, place, and manner of congressional elections mean that those states which redistrict and reapportion by way of Commission or other non-legislative means are using an unconstitutional processes? 

In a provision added…

Continue Reading Is The Hawaii Reapportionment Commission About To Go The Way Of The ‘O’o Bird?

This one from the Federal Circuit is a must read, particularly for those interested in takings claims where the federal government is involved. But even if that doesn’t describe you, we think you should review Ministero Roca Solida v. United States, No. 14-5058 (Feb. 26, 2015), because the issues raised — especially in Judge Taranto’s concurring opinion — could have impact far beyond the narrow confines of the case.

The core issue is one we’ve dealt with extensively before, and which the Supreme Court addressed in United States v. Tohono O’odham Nation, 131 S. Ct. 1723 (2011), the effect of 28 U.S.C. § 1500 when the federal government is sued both in the Court of Federal Claims and in a District Court. That statute deprives the CFC of subject matter jurisdiction when there is a case pending in “any other court” against the United States which involves “any claim for or…

Continue Reading Tohono’s “Jurisdictional Ambush” And The Tucker Act Shuffle In The Federal Circuit