RICHMOND, Va. (CN) — An appeals court struggled Tuesday afternoon to find ground for a former Maryland legislator to stand on in his challenge to Governor Larry Hogan’s executive order forbidding state contracts for bidders who support the Israel-boycotting BDS movement.
“Israel is a robust democracy with many rights and freedoms that don’t exist in neighboring countries, or across much of the world,” Hogan, a Republican, said when he signed the order in 2017. “The shameful BDS movement seeks to undercut those rights and freedoms, using economic discrimination and fear, by boycotting Israeli companies and prohibiting them from doing business in the United States."
Former state Delegate Saqib Ali said he was key to the fight against Hogan's original anti-BDS legislative effort, a 2017 bill that failed to make it out of the state's Democrat-controlled Legislature. Now a private software engineer, Ali filed his complaint in Maryland federal court back in January 2019. He argued a provision of Hogan's order requiring a bidder not to discriminate against Israel amounted to an unconstitutionally vague oath.
This oath, he argued, would violate his personal political beliefs that are behind his support for the Boycott, Divestment, Sanctions, or BDS, movement, which takes aim at Israel for its treatment of Palestinians. The movement has gained momentum in recent years, and that growth led to almost three dozen states passing laws or issuing executive orders which bar or limit involvement in anti-Israel boycotts.
But where other fights have succeeded in overturning such laws, Ali’s effort was dismissed for lack of standing by a federal judge last year, bringing him to the Richmond-based appeals court Tuesday.
“If the state contract was about life insurance, to analyze life insurance policies, you might need equipment,” said Ali's attorney, Gadeir I. Abbas with the CAIR National Legal Defense Fund. “He couldn’t work with Hewlett Packard because of the work they do with Israel.”
But almost as quickly as Abbas began speaking, U.S. Circuit Judge Pamela Harris interrupted.
“The title of the order says this is about antidiscrimination in state procurement, not what you’re buying at at grocery store in your personal capacity,” the Barack Obama appointee said, pointing to sections of Ali's brief which detail his avoidance of Sabra hummus or Soda Stream products “which have ties to Israel and its occupation of Palestine.”
“He believes it covers his personal boycott activity… but he’s not alleged any interest in boycotting Israel in the bidding process,” the judge said, also noting the disinterest in HP products was not part of the court record.
This line of questioning came almost directly from what the lower court found: that Ali had failed to actually submit a bid and be denied due to his boycotting of Israel. Without being denied access to the bidding process, he lacked standing to file suit, U.S. District Judge Catherine C. Blake said in her October 2020 ruling.
But Abbas returned to the concept of an oath requirement and compared his client’s issues to that of similar cases in Arkansas and Texas, both of which saw anti-BDS legislation overturned or changed to reduce the impact on state contractors.
But U.S. Circuit Judge Stephanie Thacker, another Obama appointee, was just as quick to raise standing concerns in the face of those comparable cases.
“They submitted the bid, your client didn't,” she said. “It seems he had no intent to bid, otherwise he would have when the district court asked him to.”
U.S. Circuit Judge Robert King, a Bill Clinton appointee, also pointed to the lower court’s instructions to submit a bid and get denied to gain standing.
“That’s a constitutional requirement,” King said.
One reason for the lack of a bid submission might be the fact that Ali could be approved, according to arguments made by Assistant Attorney General Adam D. Snyder.
“Mr. Ali doesn’t allege he engages in discrimination which would fall under the executive order,” Snyder told the panel, suggesting the court filings fail to describe how the would-be contractor would express his anti-Israel boycott in a business capacity.
As for concerns about whether the process requires a kind of oath to support Israel, Snyder pushed back on that assertion.
“This is focused on the Maryland procurement process and has people acknowledge the bidder is not engaging in national origin discrimination,” he said.
The Fourth Circuit judges did not indicate when they would rule.
Texas and Arkansas aren’t the only states that have seen anti-BDS efforts quashed by the courts. A federal judge found in May that Georgia's 2017 law preventing the state from contracting with parties who support the BDS movement unconstitutionally infringes upon First Amendment rights.
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