While many people are aware of the major cases coming out of the Supreme Court in June, less attention is paid to the federal courts of appeals, even though the decisions those courts make affect the lives of millions of people all year long. This August, even as our work in the Supreme Court continued, CAC filed a number of briefs in the nation’s courts of appeals, advocating for voting rights and the legality of progressive policies.

With the November elections just months away, it’s sadly no surprise that voting rights are under attack across the country, and CAC has been hard at work defending access to the ballot.

First, in Mi Familia Vota v. Petersen in the Ninth Circuit, Arizona argued that it should be allowed to disenfranchise voters who do not provide their birthplace on their voting materials, even though birthplace is irrelevant to one’s qualifications to vote. CAC filed a brief explaining why this requirement violates the Materiality Provision of the Civil Rights Act of 1964, which prohibits states from denying the right to vote over errors or omissions that are immaterial to a voter’s qualifications to vote.

On the same day, CAC also filed a brief in the Fifth Circuit in United States v. Paxton, where Texas is arguing that the Materiality Provision applies only to voter registration materials, not vote-by-mail materials. According to Texas, this is why the state should be able to ignore vote-by-mail applications that lack a voter ID number and discard mailed ballots if voters forget to write the ID number on the envelope. CAC’s brief explains why Texas’s underhanded attempt to disenfranchise voters violates the Materiality Provision.

And in early September, CAC filed a brief in the Eleventh Circuit in In Re Georgia Senate Bill 202. In this case, Georgia passed an omnibus election law—S.B. 202—that requires voters who vote by mail to include their date of birth on the outer envelope of an absentee ballot. If a voter fails to include or makes an error when printing their birthdate on the outer envelope, their ballot will be rejected. Like Texas, Georgia argued that the Materiality Provision only applies to paperwork related to voter registration. CAC’s brief explains why the unnecessary hurdles to voting that Georgia is trying to adopt are exactly the kind of barriers the Materiality Provision was meant to prevent.

CAC also filed a brief in Nairne v. Landry in the Fifth Circuit. In Nairne, the Fifth Circuit is reviewing a lower court decision that held that Louisiana’s legislative maps diluted the voting strength of Black voters and therefore violated Section 2 of the Voting Rights Act. According to Louisiana, the district court’s application of Section 2 to the legislative maps was unconstitutional because, in the state’s view, Section 2 is no longer necessary to enforce the Fifteenth Amendment in Louisiana. CAC filed a brief explaining why Louisiana’s arguments cannot be squared with the text and history of the Fifteenth Amendment and the Voting Rights Act.

CAC’s August filings also pushed back on corporate interests’ attempts to expand the Major Questions Doctrine. In Chamber of Commerce v. CFPB, CAC filed a brief explaining why the doctrine doesn’t apply to the CFPB’s decision to issue an updated examination manual that clarifies when discrimination by consumer financial services providers is an unlawful practice prohibited by existing federal law. And in Iowa v. SEC, CAC explained why the doctrine also doesn’t apply to the SEC’s new climate-related disclosure requirements. As our briefs explain, the Major Questions Doctrine only applies to truly extraordinary cases, where an agency’s breathtaking assertion of new power reflects a dubious effort to transform the fundamental nature of its authority. Expanding the doctrine beyond that category of cases, our briefs also explain, would exacerbate its tension with textualism and constitutional history.

In short, there are lots of important issues that are being decided by the federal courts of appeals day in and day out, and that’s why we’re making sure those courts have the benefit of our text and history arguments as they decide them.

• Tahirih Justice Center v. Mayorkas — The United States District Court for the District of Columbia is considering a challenge to the Trump Administration’s effort to dramatically restrict eligibility for asylum through a regulation that was approved by an illegally serving Acting Secretary of Homeland Security. In 2021, CAC sued the Department of Homeland Security on behalf of the Tahirih Justice Center and Ayuda, Inc., arguing that since the purported Acting Secretary who approved the regulation on behalf of DHS had no authority to be the Acting Secretary, the regulation is invalid. This month, CAC filed the plaintiffs’ reply in support of their motion for partial summary judgment, combined with their opposition to the defendants’ cross-motion for summary judgment. C. District Court, filed September 10.

• In re Ga. Senate Bill 202 — The United States Court of Appeals for the Eleventh Circuit is considering whether the Materiality Provision in the Civil Rights Act of 1964, which prohibits states from denying the right to vote over paperwork errors that are immaterial to a voter’s qualifications to vote, applies to vote-by-mail paperwork. CAC’s brief demonstrates that that the Materiality Provision unambiguously includes papers related to voting by mail, and, as the text and history of the Fifteenth Amendment make clear, Congress had the authority to enact the Provision. Eleventh Circuit, filed September 6.

• Mick v. Gibbons — The United States Court of Appeals for the Eighth Circuit is considering whether the doctrine of state sovereign immunity applies to third party subpoenas. Our brief explains that the text of the Eleventh Amendment poses no bar to the third-party subpoenas at issue in this case; the historical record confirms that sovereign immunity does not prevent state officials from participating in third party discovery; and Nebraska State Patrol’s argument regarding cases involving federal and tribal sovereign immunity does not extend to state sovereign immunity. Eighth Circuit, filed September 4.

• United States v. Skrmetti — The Supreme Court is considering whether Tennessee’s ban on providing gender-affirming medical care to transgender adolescents violates the Equal Protection Clause of the Fourteenth Amendment. Looking to the text and history of the Fourteenth and Nineteenth Amendments, our brief explains why laws that classify based on sex should be subjected to heightened judicial scrutiny. The brief also demonstrates that the Tennessee law classifies based on sex and argues that the Sixth Circuit therefore was wrong to uphold it without holding the state to the demanding burden required by heightened scrutiny. Supreme Court, filed September 4.

• Tennessee v. Becerra — CAC WIN — The United States Court of Appeals for the Sixth Circuit ruled in favor of the federal government, agreeing with our position that Tennessee is not entitled to Title X funds if it refuses to offer non-directive counseling and referral for abortion care upon request, as required by federal law. Echoing our brief’s articulation of the requirements for fair notice under the Spending Clause, the Court held that Title X’s “clear delegation of authority to HHS, viewed in combination with HHS’s 2021 counseling and referral regulation, are sufficient for notice purposes under the Spending Clause.” Sixth Circuit, decision rendered August 26.

• Nairne v. Landry — The United States Court of Appeals for the Fifth Circuit is considering whether the Voting Rights Act’s prohibition on vote dilution is a constitutional exercise of Congress’s Fifteenth Amendment enforcement power. In our brief, we use constitutional text and history to show that Section 2 of the Voting Rights Act is well within Congress’s powers under the Fifteenth Amendment, and that its application to the present case is also constitutional. Fifth Circuit, filed August 23.

• Merck v. Walmart — The United States Court of Appeals for the Sixth Circuit affirmed the lower court’s decision, holding that Merck did not have Article III standing to sue Walmart under any of his theories. Although the court did not rule in favor of Merck, the opinion cited our brief and adopted our interpretation of the Supreme Court’s TransUnion decision as authorizing Congress to elevate to actionable status harms with a close relationship to constitutional harms. Sixth Circuit, decision rendered August 20.

• United States v. Paxton — The United States Court of Appeals for the Fifth Circuit is considering whether the Materiality Provision in the Civil Rights Act of 1964, which prohibits states from denying the right to vote over paperwork errors that are immaterial to a voter’s qualifications to vote, applies to vote-by-mail paperwork. As in In re Ga. Senate Bill 202, CAC’s brief demonstrates that that the Materiality Provision unambiguously includes papers related to voting by mail, and, as the text and history of the Fifteenth Amendment make clear, Congress had the authority to enact the Provision. Fifth Circuit, filed August 19.

• Mi Familia Vota v. Petersen — The United States Court of Appeals for the Ninth Circuit is considering whether requiring voters to include their birthplace on voter registration forms violates the Materiality Provision of the Civil Rights Act of 1964, which prohibits states from denying the right to vote over errors or omissions that are immaterial to a voter’s qualifications to vote. CAC filed an amicus brief in support of the challengers, explaining that the Fifteenth Amendment gives Congress sweeping power to enforce the Amendment’s ban on racial discrimination in voting and that the birthplace requirement violates the Materiality Provision. Ninth Circuit, filed August 19.

• State of Iowa, et al v. SEC — The United States Court of Appeals for the Eighth Circuit is considering the legality of the Securities and Exchange Commission’s new climate-related disclosure requirements. CAC filed a brief in support of the SEC, explaining that the new rule is far from an “extraordinary” case that would require the application of the major questions doctrine, and that the Eighth Circuit should reject this attempt to expand the doctrine. Eighth Circuit, filed August 15.

• Chamber of Commerce v. CFPB — The United States Court of Appeals for the Fifth Circuit is considering the legality of the Consumer Financial Protection Bureau’s update to its Examination Manual clarifying that discrimination may be an “unfair” practice prohibited by federal law. As in the SEC climate disclosure rule case, CAC’s brief explains that the Manual update is also not the sort of “extraordinary” case that merits application of the major questions doctrine, and explains why the Fifth Circuit should reject this attempt to expand the doctrine. Fifth Circuit, filed August 14.

• Lackey v. Stinnie — The United States Supreme Court is considering when a civil rights plaintiff is entitled to attorney’s fees as the “prevailing party” in a case. Plaintiffs challenged a Virginia law as violating their right to due process and were awarded a preliminary injunction. Virginia ultimately repealed the law, and the case was dismissed as moot. The plaintiffs are seeking attorney’s fees. CAC filed an amicus brief in support of the plaintiffs, arguing that the meaning of “prevailing party” is simple—it is the party that succeeds, regardless of whether there is a final judgement in the case. Supreme Court, filed August 12.

• September 10: CAC was mentioned in an article in The Post Athens regarding absentee voting and its role in a successful democracy. Table Talk: Absentee ballots improve elections, reinforce democracy.”

• September 9: CAC was mentioned in an article in BNN Bloomberg reporting on Justice Alito’s stock portfolio and the role of corporate interests at the Supreme Court. “Justice Alito’s Stock Portfolio Stands Apart on US Supreme Court.”

• September 8: CAC Vice President Praveen Fernandes co–published an op-ed in Salon, along with CREW’s Donald K. Sherman. The op-ed argues that even though the Supreme Court has delayed the federal criminal prosecution of Donald Trump, Americans already know a lot about Donald Trump’s actions and responsibility for January 6 through rigorous fact-finding developed by two other governmental bodies. “Justice delayed is political: Trump’s election interference case must continue ahead of the election.”

• September 2: CAC Chief Counsel Brianne Gorod was quoted in an article in The Washington Times discussing the docket for the upcoming Supreme Court term. “Transgender rights, ghost guns, porn ID cases on Supreme Court docket; stakes high in next term.”

• August 16: CAC’s brief in Iowa v. SEC was cited in a Law360 article reviewing the strong support in the Eighth Circuit for the SEC’s new climate disclosure requirements. “SEC Climate Rules Backed By Wave Of Amici At 8th Circ.”

Welcome to the Newest Members of the CAC Team, and Farewell to Jess Zalph, our 2023-2024 Kendall Fellow!

Just in time for a new Supreme Court term, CAC is excited to and share other changes. We said goodbye to our 2023 Kendall Fellow Jess Zalph, and welcomed our 2024 Kendall Fellow Nargis Aslami. After Joie Mills departed CAC to attend law school, Alice Lesniak was promoted to the position of CAC’s Senior Research Associate and Lucy Resar joined the team as CAC’s Paralegal and Research Associate. We’re also excited to welcome Ana Builes, Appellate Counsel, Margaret Hassel, Legal Fellow, and Anna Snyder, Development Associate.

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