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Weekend Circuit: DC Circuit Blocks Citizenship Check For Voter Registration

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Kevin Daley Supreme Court correspondent
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This is Weekend Circuit, a weekly review of the serious and the silly in federal appellate courts in the last week.

Footnote Of The Year From The Ninth Circuit 

Ten judges of the 9th U.S. Circuit Court of Appeals filed a spicy dissent from the court’s refusal to revisit a ruling which barred employers from using “tip pools,” or tip-sharing among restaurant employees, to boost the wages of other non-wait staff workers, on Tuesday. The U.S. Department of Labor (DOL) issued a rule restricting “tip pools” to classes of workers who are traditionally tipped, like waiters, and barred the practice for workers not traditionally tipped, like kitchen staff. One challenge to the rule was orchestrated by the Oregon Restaurant and Lodging Association, while another came from a casino in Nevada.

The case, Oregon Restaurant and Lodging Association v. Perez, implicated a major administrative law issue. In issuing the rule, DOL announced that the Fair Labor Standards Act was silent on this issue. Thus, their legal theory continued, the agency may issue the regulation because it had not been specifically addressed or precluded by Congress. The statute was “silent” as to the controversy. Though a lower court, and a precedential ruling, found DOL’s theory did not pass constitutional muster, a three-judge panel on the 9th Circuit ruled in favor of the Department. (RELATED: This Is One Of The Biggest Pending SCOTUS Cases You Haven’t Heard Of)

The ruling conflicts with a series of holdings given by other appeals courts throughout the country, leading the dissenters, led by Judge Diarmuid O’Scannlain, to lament the existence of a circuit split. A circuit split exists when two or more federal appeals courts disagree on the same question of law. The split prompted this footnote on page 21 of the opinion:

‘Circuit split’ perhaps does not fully describe the resulting state of affairs. It is more like we have spun out of the known legal universe and are now orbiting alone in some cold, dark corner of a far-off galaxy, where no one can hear the scream ‘separation of powers.’

DC Circuit Blocks Proof-Of-Citizenship Rule For Voter Registration 

The United States Court of Appeals for the D.C. Circuit issued a preliminary injunction on Friday blocking the states of Georgia, Kansas and Alabama from requiring citizens to produce proof of citizenship when registering to vote with a federal registration form. 

The order came shortly after oral arguments in the case. The vote on the three-judge panel was 2-1. Senior Judge A. Raymond Randolph dissented. 

As the D.C. Circuit only issued an injunction, the case can still be decided on the merits in the future. An appeal to the U.S. Supreme Court is unlikely, as the justices have tended to split 4-4 along ideological lines on voting-rights issues in recent months. As a tied vote affirms the lower court ruling in a given case, the circuit courts are, for the moment, the authority on election law controversies. 

Third Circuit Hears Decryption And Self-Incrimination Argument

The 3rd U.S. Circuit Court of Appeals heard oral arguments in U.S. v. Apple Macpro Computer Apple Ma this week. The court must define what Fifth Amendment, or self-incrimination, limits exist when a suspect is required to enter a computer password which will decrypt the hard drive. In this case, the suspect, a Philadelphia police officer, is accused of using a peer-to-peer platform to download child pornography. Authorities successfully decrypted the officer’s computer without his assistance, but he also kept two external hard drives, which the government needs his help to access.

The officer refused a court order to enter a password decrypting the external hard drives, and is being held in contempt until he complies. He brought a claim to the 3rd Circuit, asserting that entering the password to decrypt the hard drives is tantamount to forcing him to testify against himself.

Writing at Volokh Conspiracy, George Washington University Law School Professor Orin Kerr, an expert in criminal procedure and computer crime, said the three-judge panel focused on these questions:

1.) What, if anything, is testimonial about entering a password beyond the implicit admission “I know the password?”

2.) Should the government obtain new evidence implicating the defendant in criminal activity beyond the scope of the warrant, and may it be used against him?

3.) At trial, must the jury be made aware of the fact that evidence from the external hard drive was obtained by these means?

4.) Is the foregone conclusion doctrine, which states that the government can compel a defendant to produce something it reasonably knows exists, applicable in this case?

It is unclear when a decision will come in the case.

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