ACSBlog: The Blog of the American Constitution Society

The Supreme Court Term opens today. ACSBlog will feature expert commentary and analysis, video from ACS events that examine issues before the Court, and news updates.

The Court will hear arguments in the following cases this week:

Monday, Oct. 1
(1) Washington State Grange v. Washington State Republican Party (consolidated) (election law -- primaries)
(2) Bd. Of Ed. Of City of N.Y. v. Tom F (Individuals with Disabilities Education Act and tuition reimbursement)

Tuesday, Oct. 2
(1) Gall v. U.S. (sentencing guidelines deviation)
(2) Kimbrough v. U.S. (sentencing guidelines/ crack-cocaine sentencing disparity)

Wednesday, Oct. 3
(1) N.Y. Board of Elections v. Torres (election law/ judicial nominations)
(2) U.S. v. Santos (federal money laundering statute)

Video of ACS' Preview of the 2007-2008 Supreme Court Term is available in ACS' Multimedia Library.

Questions Presented are below the fold.
Washington State Grange v. Washington State Republican Party (consolidated)

Q.P. from Washington State Grange v. Washington Republican Party

In California Democratic Party v. Jones, 530 U.S. 567, 585-586 (2000), this Court specified how States could structure a top-two primary system that does not violate the associational rights of a political party. Pursuant to the Initiative power which the People of the State of Washington reserved to themselves in their State Constitution, the voters of the State of Washington enacted a top-two primary law that the Washington State Grange had drafted to comply with Jones. That law makes the State primary a contest to select the two most popular candidates for the November ballot - regardless of party nominations or party selection. That law also allows candidates for certain offices to disclose on the ballot the name of the party (if any) which that candidate personally prefers.

The Ninth Circuit invalidated this top-two primary system in its entirety, holding that the First Amendment (applied to the States through the 14th Amendment) prohibits a State from so allowing a candidate to disclose the name of the party he or she personally prefers on the ballot.

Does the First Amendment prohibit top-two election systems that allow a candidate to disclose on the ballot the name of the party he or she personally prefers?

Q.P. from Washington v. Washington Republican Party

In California Democratic Party v. Jones, this Court recognized that, consistent with the First Amendment rights of political parties, a state may adopt a primary election system in which all voters may participate and the top vote recipients advance to the general election, so long as “primary voters are not choosing a party’s nominee.” California Democratic Party v. Jones, 530 U.S. 567, 585-86 (2000).

Washington voters adopted a primary election system in which all qualified voters are allowed to vote for any candidate, and the two candidates receiving the most votes for a given office qualify for the general election ballot, without regard to party affiliation.

Does Washington’s primary election system in which all voters are allowed to vote for any candidate, and in which the top two candidates advance to the general election regardless of party affiliation, violate the associational rights of political parties because candidates are permitted to identify their political party preference on the ballot?

Bd. Of Ed. Of City of N.Y. v. Tom F

Does the holding of the United States Court of Appeals for the Second Circuit, stating that the Individuals with Disabilities Education Act permits tuition reimbursement where a child has not previously received special education from a public agency, stand in direct contradiction to the plain language of 20 U.S.C. § 1412(a)(10)(C)(ii) which authorizes tuition reimbursement to the parents of a disabled child “who previously received special education and related services under the authority of a public agency”?

Gall v. U.S.

Whether, when determining the “reasonableness” of a district court sentence under United States v. Booker, 543 U.S. 220 (2005), it is appropriate to require district courts to justify a deviation from the United States Sentencing Guidelines with a finding of extraordinary circumstances.

Kimbrough v. U.S.

In United States v. Booker, 543 U.S. 220 (2005), this Court held that mandatory application of the U.S. Sentencing Guidelines violates a criminal defendant’s right under the Sixth Amendment to have facts that increase his or her sentence determined by a jury beyond a reasonable doubt. The Court further held that to avoid the Sixth Amendment violation, the Guidelines are to be applied as advisory only, and as one of a number of factors both that a sentencing court must consider pursuant to 18 U.S.C. §3553(a) in exercising its discretion in selecting a sentence and that a court of appeals must consider when reviewing the sentence for reasonableness. In light of the Court’s holdings, the following questions are presented.

(1) In carrying out the mandate of §3553(a) to impose a sentence that is “sufficient but not greater than necessary” on a defendant, may a district court consider either the impact of the so-called “100:1 crack/powder ratio” implemented in the U.S. Sentencing Guidelines or the reports and recommendations of the U.S. Sentencing Commission in 1995, 1997, and 2002 regarding the ratio?

(2) In carrying out the mandate of §3553(a) to impose a sentence that is “sufficient but not greater than necessary” upon a defendant, how is a district court to consider and balance the various factors spelled out in the statute, and in particular, subsection (a)(6), which addresses “the need to avoid unwarranted disparity among defendants with similar records who have been found guilty of similar conduct”?

N.Y. Board of Elections v. Torres

1. In American Party of Texas v. White, 415 U.S. 767 (1974), this Court held that it is “too plain for argument” that a State may require intraparty competition to be resolved either by convention or primary. Did the Second Circuit run afoul of White by mandating a primary in lieu of a party convention for the nomination of candidates for New York State trial judge?

2. What is the appropriate scope of First Amendment rights of voters and candidates within the arena of intraparty competition, and particularly where the State has chosen a party convention instead of a primary as the nominating process?

(a) Did the Second Circuit err, as a threshold matter, in applying this Court’s decision in Storer v. Brown, 415 U.S. 724 (1974) and related ballot access cases, which were concerned with the dangers of “freezing out” minor party and non-party candidates, to internal party contests?

(b) If Storer does apply, did the Second Circuit run afoul of Storer in holding that voters and candidates are entitled to a “realistic opportunity to participate” in the party’s nomination process as measured by whether a “challenger candidate” could compete effectively against the party-backed candidate?

3. In Bachur v. Democratic National Party, 836 F.2d 837 (4th Cir. 1987) and Ripon Society v. National Republican Party, 525 F.2d 567 (D.C.. Cir. 1975) (en banc) the Fourth and D.C. Circuits applied a rational basis balancing test to weigh the coequal, but competing First Amendment rights of political parties in setting delegate selection rules against those of voters and candidates. Did the Second Circuit err in preferring the First Amendment rights of voters and candidates by first determining that New York’s convention system severely burdened those rights and then subjecting the party’s rights to strict scrutiny review?

U.S. v. Santos

The principal federal money laundering statute, 18 U.S.C. 1956(a)(1), makes it a crime to engage in a financial transaction using the “proceeds” of certain specified unlawful activities with the intent to promote those activities or to conceal the proceeds. The question presented is whether “proceeds” means the gross receipts from the unlawful activities or only the profits, i.e., gross receipts less expenses.