Ballot Selfies and the First Amendment

By Kim Plemel, CLS’18

The 2016 United States election saw the increased prevalence of so-called “ballot selfies” and a corresponding dialogue concerning the legitimacy of laws prohibiting the taking of such photos. In the run-up to the election, eighteen states had statutes on the books disallowing ballot selfies.[1] These prohibitions against photos taken in the voting booth were challenged in court in several states including Colorado, Michigan, New York, New Hampshire, and California.[2] In some of these states, litigation has extended past Election Day, and how the courts resolve the issue will have long-lasting implications for how First Amendment rights are vindicated in the face of efforts to prevent corruption in American elections.

Ballot Selfie Laws in the Courts

Some decisions leading up to the election depended on procedural matters. For example, the Sixth Circuit addressed a challenge to a Michigan statute “forbidding voters from exposing their marked ballots to others.” [3] On the basis that the plaintiff had not raised the issue in a timely manner, that court stayed a preliminary injunction against enforcing the law that had been granted by the United States District Court for the Western District of Michigan. After the election, the Sixth Circuit reversed the preliminary injunction in light of the fact that the merits of the First Amendment claim were being considered in the district court, and that litigation is ongoing.[4]

When addressed on the merits, the principal interest asserted by the state in these cases has been one of preventing vote buying: being able to take a photo of a completed ballot allows parties to provide proof of the vote they cast, making exchanging that vote choice for something of value, including monetary payment, feasible. However, statutes prohibiting voters from taking and distributing photos of their completed ballots may be subject to strict scrutiny by the courts because they have been deemed content-based restrictions. After concluding that the correct standard was strict scrutiny, a federal court in Indiana found that the challenged statute was not narrowly tailored to address the state’s interests.[5] The United States District Court for the Southern District of New York, on the other hand, denied a preliminary injunction against enforcement of the New York statute, suggesting that “polling places are generally not considered to be public fora […] and therefore any regulation of speech at a polling place is evaluated only under a reasonableness standard.”[6] These few cases on the issue suggest there is ambiguity in the law that warrants clarification by a higher court.

New Hampshire’s Petition for Cert

A federal appeals court declared New Hampshire’s statute invalid as a violation of voters’ First Amendment rights on September 28, 2016.[7] However, the state has filed a petition to the Supreme Court of the United States for a writ of certiorari.[8] It is important that the Supreme Court grant cert in this case because it provides an opportunity to address the issue in a definitive manner well in advance of the next major elections. This will mitigate uncertainty across the country about whether or not taking a photo of a completed ballot is permissible, and if the Supreme Court comes down on the side of First Amendment protection there will be much-needed uniformity in this area. Because this issue has not been definitively resolved but is much less complex than, for instance, the constitutionality of voter identification laws, a Supreme Court ruling would go a long way in resolving the conflict in the decisions on the First Amendment right to photograph one’s ballot.

[1]Ballot Selfies: A look at where they are allowed or not, The Associated Press (Oct. 23, 2016)

[2] Katie Rogers, Can You Take a Voting Selfie? States Wage Legal Battles Days Before Election, The New York Times (Nov. 2, 2016)

[3] Crookston v. Johnson, 841 F.3d 396 (6th Cir. 2016).

[4] Crookston v. Johnson, 2016 WL 7383999 (6th Cir. 2016).

[5] See Indiana Civil Liberties Union Foundation. Inc. v. Indiana Secretary of State, 2017 WL 264538 (United States District Court, S.D. Indiana, Indianapolis Division 2017).

[6] Silberberg v. Board of Elections of the State of New York, 2016 WL 6537691 (S.D.N.Y. 2016).

[7] Rideout v. Gardner, 123 F.Supp.3d 218 (D.N.H. 2015).

[8] Rideout v. Gardner, 838 F.3d 65 (2016), petition for cert. filed (U.S. Aug. 11, 2015)

The Tenth Circuit’s Inconsistent Reasoning in United States v. Bustamante-Conchas

By Josh Burger-Caplan, CLS’18

The United States Court of Appeals for the Tenth Circuit recently ruled en banc in the case of United States v. Bustamante-Conchas,[1] and in doing so clarified its position on denial of the right to allocute at sentencing. The court focused on the third and fourth prongs of the test for plain error developed in United States v. Olano, which requires that, for a finding of plain error there must be “(1) error, (2) that is plain, which (3) affects substantial rights and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.”[2]


Though Bustamante-Conchas had not been explicitly given the opportunity to speak on his own behalf during his sentencing,[3] the district court sentenced him to two years less prison time than the lowest end of the recommended guideline range,[4] On appeal of his sentence, a panel of the Tenth Circuit denied Bustamante-Conchas’ request for a remand for resentencing, pointing out that he had received a sentence below his guideline range and that he had not shown that there was any additional information he would have provided to the court if he had been given the opportunity to allocute.[5] As such, Bustamante-Conchas had failed to make the necessary showing that the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.[6] The Tenth Circuit granted a rehearing en banc on the issue of denial of allocution, and reversed.[7]


In reversing the decision of the panel, the Tenth Circuit adopted the reasoning of several other circuits regarding the denial of allocution in the face of a statutory minimum sentence, stating that “[i]f a sentence could not have been lower, a defendant cannot show prejudice.”[8] In so doing, the court adopted a view of “prejudice” that is limited, and ignores the values of allocution other than mitigation of sentence, which, somewhat ironically, the court had previously described in depth.[9]


In order to show prejudice, one must show that the error had “substantial and injurious effect or influence in determining the . . . verdict.”[10] The Supreme Court has also stated that one must show “a reasonable probability that but for [the error claimed], the result of the proceeding would have been different.”[11] But this leaves open the questions of who may define “injurious” and whether the different outcome spoken of must necessarily have been a lower sentence. In the Tenth Circuit’s estimation, it is the judge who decides what is injurious, and that if a sentence could not have been lowered, the defendant could not have been injured. However, this ignores the possibility that a defendant’s view of what is “injurious” to the verdict is not in line with that of the judge.


If a defendant is appealing a statutory minimum sentence, we cannot assume that the object of his appeal is a lower sentence. The requirement in Olano is that to show prejudice, one must show a reasonable probability that but for the error, the outcome may have been different. So what happens where a defendant asserts that they would have made an argument of anger or grievance that would have had a reasonable probability of driving their sentence upward, and they are prejudiced by their inability to do so? Certainly such an argument would be consonant with the tenth circuit’s understanding of the alternative bases for allocution beyond reduction in sentence. For a fully-informed defendant who sees the loss of that opportunity as a benefit denied, it seems paternalistic of the courts to argue that there is, in fact, no prejudice in such a situation.

[1] United States v. Bustamante-Conchas, 2017 WL 838216 (10th Cir. 2017). (hereinafter “Bustamante-Conchas en banc”)

[2] United States v. Price, 265 F.3d 1097, 1107 (10th Cir. 2001) (summarizing the test developed in United States v. Olano, 507 U.S. 725 (1993)).

[3] Id. at *2 (“The court did not personally address Bustamante-Conchas prior to imposing sentence or otherwise offer him an opportunity to allocute.”).

[4] Bustamante-Conchas en banc at *1, *2 (stating that the guideline range was 292 to 265 months, and that the court announced a sentence of 240 months).

[5] United States v. Bustamante-Conchas, 832 F.3d 1179, 1186 (10th Cir. 2016). (hereinafter “Bustamante-Conchas”)

[6] Id.

[7] Bustamante-Conchas en banc at *2.

[8] Id. at *7.

[9] Id. at *3 (discussing how allocution “maximizes the perceived equity of the process” and “suppl[ies] ‘a forum in which defendants may challenge societal injustice, and may provide answers to victims’ questions regarding the crime.”).

[10] United States v. Dominguez-Benitez, 542 U.S. 74, 81 (2004) (quoting Kotteakos v. United States, 328 U.S. 750, 776).

[11] Id. at 82 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).

The Use of the Winters Doctrine in the Fight for an Interest in Groundwater

Dale Williams, CLS’17

Native American tribes across the country are fighting for water rights.[1] In southern California, the Agua Caliente Band of Cahuilla Indians has been working for recognition of its interest in the groundwater of Coachella Valley.[2] The tribe brought suit against the Coachella Valley Water District and the Desert Water Agency to assert its rights to the groundwater and its right to participate in making decisions regarding the groundwater.[3] The agencies manage the Coachella aquifer, which has been over-drafted and filled with low-quality water, practices the tribe has objected to for years.[4]

On March 7, 2017, the Ninth Circuit upheld the District Court for the Central District of California’s summary judgment in favor of the Agua Caliente tribe. The tribe had filed suit in May 2013 against the two local water agencies, arguing that “it has a federally reserved right and an aboriginal right to the groundwater underlying the reservation.”[5] While the district court found that the tribe does not have an aboriginal right to the groundwater, the court granted a partial summary judgment in favor of the tribe, holding that “the reserved rights doctrine applies to groundwater and that the United States reserved appurtenant groundwater when it established the Tribe’s reservation.”[6]

In deciding this question, the Ninth Circuit applied the Winters doctrine, derived from Winters v. United States[7], which held that “the creation of an Indian reservation impliedly reserves water rights to the tribe or tribes occupying the territory, that those water rights are reserved in order to carry out the purposes for which the lands were set aside, and that the rights are paramount to water rights later perfected under state law.”[8] The Ninth Circuit found that the U.S. impliedly reserved water rights when creating the Agua Caliente Reservation.[9] The primary purpose of the establishment of the reservation was “to create a home for the Tribe,” which required water.[10] The court went on to hold that the Winters doctrine and the tribe’s reserved water rights extend to groundwater.[11]

The case, which was divided into three phases, will return to federal court to determine “whether the Tribe beneficially owns the ‘pore space’ of the groundwater basin underlying the Agua Caliente Reservation and whether a tribal right to groundwater includes the right to receive water of a certain quality”[12] (Phase II). Phase III of the litigation will “quantify any identified groundwater rights.”[13]

[1] See Stand with Standing Rock, Standing Rock Sioux Tribe (2017) available at

[2] Agua Caliente Band of Cahuilla Indians, Agua Caliente Band of Cahuilla Indians Has Rights to Groundwater, Ninth Circuit Confirms (March 7, 2017) available at

[3] Ian James, Calif. Tribe Wins Appeal in Landmark Water Case, USA Today (March 7, 2017)

[4] Supra note 2.

[5] Agua Caliente Band v. Coachella Valley Water Dist., No. 15-55896, slip op. at 9 (9th Cir. Mar. 7, 2017).

[6] Id. at 10.

[7] Winters v. United States, 207 U.S. 562 (1908).

[8] Felix S. Cohen, Handbook of Federal Indian Law 1210 (2012 Ed.).

[9] Supra note 5.

[10] Id. at 17.

[11] Id.

[12] Id. at 10.

[13] Id.


Neha Patel, CLS’18

On March 21, 2017, the U.S. and U.K. announced a widespread ban of certain electronic items on board flights arriving from many Middle East and North African countries. This ban meant that laptops, tablets, portable DVD players, video game devices, and other electronic devices larger than cell phones would have to be checked in to luggage rather than be allowed on board. The 10 international airports covered by the U.S. ban include, but are not limited to, major cities in Dubai, Egypt, Turkey, Jordan, and Saudi Arabia. The U.K. ban covers both domestic and international flights from most of the Muslim-majority countries affected by the U.S. ban, in addition to Tunisia and Lebanon, on fourteen different airlines. [Sources: CNN News, Washington Post, Wired]

The ban is motivated by concerns about terrorism, although senior officials have admitted that there are no specific plots that they are aware of in the near future. They are reporting general concerns about fear that the Islamic State is developing a bomb that can be hidden in electronic devices and make it past security without detection. According to their intel, these bombs are specifically hidden in laptop batteries. The past few years have shown a wide range of terrorist attacks on transportation hubs across the globe, including the more recent Brussels, Istanbul, and London attacks. This ban was initiated with the hope of preventing any future attacks with potential new weapons that have been created by extremist groups. Other scholars and professors have speculated that the ban may be targeting airline staff rather than passengers, that it may have more to do with economic protectionism than national security, or that it is an extension of President Trump’s executive order ban against Muslim-majority countries. [Sources: New York Times, Deutsche Welle]

These bans have significantly affected popular international flights, especially Emirates, Qatar Airways, British Airways, and Turkish Airlines. It has resulted in public outrage, financial complications for airlines, and confusion in implementation. For example, Qatar and Etihad Airways are lending laptops to business class passengers for free, with Emirates planning to follow suit. In doing so, airlines will enable passengers continuing to utilize the long flights to do work. [Sources: CNN News, The Verge, Deutsche Welle]


Patrick Lorio, CLS ’18

This month, the U.S. Supreme Court was scheduled to hear oral arguments in Gloucester v. G.G., a case determining whether Title IX gives transgender students the right to use school restrooms consistent with their gender identity. The Trump Administration, however, recently rescinded an Obama administration directive that told public schools to allow transgender students to use the bathroom of their choice. In response, the U.S. Supreme Court vacated and remanded Gloucester to the U.S. Court of Appeals for the Fourth Circuit to be re-argued now that the Obama-era directive is no longer in place. Although the Fourth Circuit had originally decided the case in light of the directive, the Fourth Circuit could still find that either Title IX itself—rather than just the administration’s interpretation of it—or the Equal Protection Clause of the 14th Amendment protects transgender students’ rights. [SCOTUS Blog, NY Times, Washington Post, Rolling Stone]

After the chaos following the  implementation of a travel ban from seven majority-Muslim countries, which resulted in a nationwide injunction, the Trump Administration announced a new travel ban on March 6. The new ban excludes Iraq from the list of banned countries, exempts permanent legal residents, and removes priority entry for Christian refugees, an alleged religious test. The new ban, however, will soon have its day in federal court as well. Hawaii became the first state to challenge the ban, arguing that it still amounts to a “Muslim ban” that violates the Establishment Clause of the First Amendment. [CNN, NY Times, Washington Post]

On March 6, the U.S. Supreme Court decided Pena-Rodriguez v. Colorado, which concerned a challenge to Colorado’s “no impeachment” rule. The rule, which is similar to those in many other state and federal jurisdictions, prevents jurors from testifying about statements made during jury deliberations. The convicted defendant sought to have a new trial because of alleged racist comments by two jurors during deliberations; the “no impeachment” rule, however, provided a bar to a new trial. Acknowledging that “no impeachment” helps ensure robust and frank discussion among jurors, the Supreme Court held that the rule cannot be invoked when jurors are claimed to have made remarks based on racial stereotypes. Justice Kennedy noted, “Racial bias implicates unique historical, constitutional and institutional concerns,” justifying the exception to an otherwise sound rule. [SCOTUS Blog, NY Times]


Andrew Ayala, CLS ’18

After President Trump won the general election in November,  many began to speculate how his presidency would change the existing legal landscape. One of the more contentious issues is the abortion right granted by Roe v. Wade. The President vowed to appoint right-wing justices to the Supreme Court, which many fear would result in less rights for women choosing to get abortions. (Source: MSNBC)

When abortion is discussed in the legal sense, it is not so much about being “pro life” as it is about an originalist approach to constitutional interpretation. Many conservative judges reject the core holding in Roe v. Wade that there is a right to privacy in the Constitution that would protect a woman’s right to abortion. Judicial conservatives hope that the Constitution will be read and applied as they believe it is written, and therefore, limit government power. They see Roe v. Wade as a total failure in that respect. (Source: CNN)

Currently, there is only one  vacancy on the Supreme Court left by Justice Antonin Scalia. Replacing Justice Scalia with another conservative judge would probably not be enough to overturn Roe v. Wade. “Right now there are about five judges on the Supreme Court that would favor Roe v. Wade.” (Source: Justice Scalia’s successor would not be enough for a majority vote against the landmark case. However, there are several judges who are in their 70’s and almost 80’s. It is possible that President Trump may get a chance to replace a second or even third seat on the Supreme Court; at which point Roe v. Wade could be in significant danger.

Furthermore, there is always a chance that the President may surprise the country and nominate someone who is pro-choice. Conservative champion former President Ronald Reagan tapped Justice Anthony Kennedy and former Justice Sandra Day O’Connor who both consistently voted to ratify the core or Roe v. Wade. (Source: Politico) It is possible that President-elect Trump follows in the path of former President Reagan. The abortion debate will definitely be something to keep an eye on now that the President’s taken office.


Courtney Irons, CC’18

In preparation for the upcoming fraud trial against Trump University, U.S. District Judge Gonzalo Curiel rejected Donald Trump’s request for a blanket ban on statements Trump made in the course of his presidential campaign. Trump’s lawyers argued that President Trump’s comments during the campaign regarding issues like sexual assaulting women, failing to pay federal income taxes, and using money from his charity foundation to buy a golden statue of himself were irrelevant to the case and unfairly prejudicial. Lawyers for the students argued that the statements were necessary to weigh Trump’s credibility in the fraud trial. The judge declined to issue a general ban on those comments, which included Trump’s statements on the judge himself, whom the President called “biased” because of his Mexican heritage. (Source: Reuters)

Trump advisor Rudy Giuliani declined to rule out the possibility of pressing charges against Hillary Clinton when Donald Trumps takes office. One of Donald Trump’s more controversial campaign promises was to jail Clinton once he became president. Giuliani, a rumored favorite for the Attorney General position, refused to comment on whether or not charges would ever be brought. He stated that although the tradition in politics is to move forward, if the potential evidence was “really bad” a prosecution may be worth the political instability. (Source: CNN)

California voters strengthened the death penalty within the state by rejecting a ballot measure to repeal the death penalty and by passing a ballot measure designed to limit death penalty appeals. The measure that passed, Proposition 66, is designed to expedite the death penalty process by limiting appeals and imposing a strict timeline on judicial proceedings. Critics of the measure argue that it will increase the likelihood of executing innocent people because it would limit the introduction of new evidence. Voters in Nebraska and Oklahoma also reaffirmed their states use of the death penalty. (Source: NPR)


Rachel MacDonald, CLS’17

Mary Jo White announced Monday, November 14 that she will be stepping down as the Chair of the Securities and Exchange Commission at the end of President Barack Obama’s term, three years before the end of her current term. White’s tenure resulted in more than 2,850 enforcement records, a three-year record for the SEC. White’s resignation will create room for President-elect Donald Trump to appoint his own nominee. President-elect Trump has pledged to restrict or remove the Dodd-Frank Act, a financial reform law enacted post-recession. The Washington Post reports that President-elect Trump has appointed Paul Atkins, a former SEC Commissioner under George W. Bush and outspoken opponent to Dodd-Frank, to replace White. (Source: ABA Journal)

On Monday, November 14, 2016, a federal court of appeals denied Adidas AG’s trademark challenge against Christian Faith and Fellowship Church’s “Add a Zero” fundraising slogan by ruling that the slogan had been used in interstate commerce. The Court of Appeals held that there was no de minimis exception to the Lanham Act’s use-in-commerce requirement, and that the out-of-state sale of two hats embroidered with the slogan was sufficient. Adidas brought the challenge against the church after being denied a trademark registration for its Adizero clothing line. Adidas’ trademark was denied due to possible confusion with the church’s trademark, which was registered in 2006. When registering for the trademark in 2006, the church had to certify that the trademark was to be used in interstate commerce under the Lanham Act; Adidas brought action for the cancellation of the trademark on several grounds, including lack of use in interstate commerce. (Source: Reuters Legal)

Internet Movie Database (IMDB), owned by Amazon, is suing the state of California over a law requiring the company to remove an actor’s age from its website upon the actor’s request.  IMDB argues the law, AB 1687, violates its right to free speech. While IMDB admits that age discrimination among actors is a problem worth addressing, the company claims that AB 1687 is written to unfairly target IMDB narrowly and does not ease age discrimination. A Seattle jury ruled in favor of IMDB regarding a similar issue in 2013. (Source: BBC News)


Joshua Burger-Caplan, CC’18

The new CEO of Wells Fargo, Tim Sloan, remains committed to “cross-selling,” which is the practice of selling related or complementary products to Wells Fargo customers. This commitment comes mere months after it was discovered that, facing high sales targets, employees of Wells Fargo used cross-selling to create fake accounts and credit cards without customers’ knowledge. The elevation of Sloan, who has worked at Wells Fargo for 29 years, has led some to criticize the bank for not being critical enough in examining its internal culture. Sloan has insisted that this is not the case, and promised to bring in independent culture consultants to evaluate the bank. (Source: The Financial Times)

U.S. District Judge Gerald Pappert of the Eastern District of Pennsylvania has dismissed a lawsuit brought by Pennsylvania Republicans. The suit challenged a law that disallows poll watchers from observing voting in counties other than the county in which they are registered to vote. The Republicans challenging the law argued that it infringed on their rights under the First Amendment to participate in the political process. In the past, Republican presidential nominee Donald Trump has warned Pennsylvanians about voting fraud that may take place, and has said that he will only lose Pennsylvania if the election is stolen from him. (Source: Huffington Post)

Senator Richard Burr of North Carolina appears to have softened his stance on confirmation of a potential Supreme Court nominee should Hillary Clinton win the presidency, saying that he would “assess the record of any Supreme Court nominee.” On Saturday, October 29, he said at a private gathering that he would do his best to make sure that, should Hillary Clinton become president, she would not be able to confirm a new Supreme Court justice. Burr’s comments followed similar comments by Senators John McCain and Ted Cruz. McCain also walked back his remarks in the face of further media inquiry. (Source: Associated Press)


Daniel Rodriguez, CC’18

The FBI announced in December 2015 that it would “dramatically expand[] the information it gathers on violent encounters” between law enforcement and citizens.  Acknowledging that “[p]eople want to know what police are doing, and they want to know why they are using force,” the FBI made this data collection “the highest priority.”  FBI Director James Comey recently speculated, however, that the numbers will not support the common notion that “there’s an epidemic of police shootings of black people.”  According to Director Comey, “a small group of videos” underlies the misconception that there is an epidemic of police shootings against people of color.  Whether Director Comey’s prediction will come to fruition will be determined after 2017, when the FBI begins collecting the information. [Washington Post, CNN]

Two criminal trials are receiving national attention.  The trial of the six men and one woman that occupied Oregon’s Malheur National Wildlife Refuge in January came to a close as closing arguments wrapped up on Wednesday.  During the six weeks of testimony, the prosecution focused “on the main charge of conspiring to prevent federal employees from doing their jobs at the refuge.”  The defendants attempted to recast the trial as revolving around “regulatory overreach by the federal government” rather than any negative impact on the jobs of the federal employees.  Whether the jury buys the defendants’ argument that they were “mere protesters who should not have been feared” by federal employees may have repercussions for future protests. [NPR, OPB]

Now in its fifth week, the Bridgegate trial shifted to the defendants’ case in chief after prosecutors rested last week.  According to the federal prosecutors, Bill Baroni and Bridget Kelly, two former high ranking officials in the Christie administration, knew that the George Washington Bridge lane closures were intended to punish Fort Lee Mayor Mark Sokolich “after he declined to endorse [Governor Christie] for re-election.”  Baroni, however, counters that he believed at the time that the lane closures were part of “a legitimate traffic study.”  Michael Drewniak, the Governor’s long-time spokesman, testified to something similar, stating that “traffic problem[s] at the George Washington Bridge ‘was in the bloodstream’ of the [Christie] administration” and that no senior staff had “any knowledge … that [the lane closures] had been a plot of political intimidation.”  Drewniak’s testimony had the troublesome effect of pitting the defendants against each other.  As Baroni’s witness, Drewniak testified that he “went to speak twice to Bridget Kelly [about the lane closures]… but … she brushed him off.”  Kelly is expected to take the stand in a few weeks, and all attention will focus on conversations she claims she had with Governor Christie that hopefully “convince[s] the jury that there is something fundamentally unfair to hold her responsible for conduct that was widely known within the governor’s office and directed by others.” [Politico,]