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Ex-delegate appeals Hogan’s anti-BDS order to 4th Circuit

Saqib Ali introduces CAIR attorney Carolyn Homar, right, to his mother Samina Ali, following at a press conference, Wednesday, Jan. 9, 2019, in Catonsville, Md., announcing a legal challenge to Maryland's anti-BDS Executive Order. Maryland's ban on contracting with businesses that boycott Israel tramples on the First Amendment rights the software engineer who advocates for Palestinians, a Muslim civil rights group claims in a lawsuit filed Wednesday. (Karl Merton Ferron/The Baltimore Sun via AP)

Saqib Ali introduces CAIR attorney Carolyn Homar, right, to his mother Samina Ali, following at a press conference, Wednesday, Jan. 9, 2019, in Catonsville announcing a legal challenge to Maryland’s anti-BDS Executive Order. Maryland’s ban on contracting with businesses that boycott Israel tramples on the First Amendment rights the software engineer who advocates for Palestinians, a Muslim civil rights group claims in a lawsuit filed Wednesday. (Karl Merton Ferron/The Baltimore Sun via AP)

A software engineer and former Maryland legislator has urged a federal appeals court to revive his free-speech challenge to Gov. Larry Hogan’s executive order requiring those bidding on state contracts to pledge they are not boycotting Israel and will not while under contract.

Saqib Ali — a supporter of the boycott, divest and sanction Israel movement – is appealing U.S. District Judge Catherine C. Blake’s ruling last year that he lacks standing to challenge the order because it applies to companies — not individuals — and his firm has not applied for a state contract.

In papers filed Tuesday with the 4th U.S. Circuit Court of Appeals, Ali’s counsel said a bid for a state contract need not be submitted before a business owner can challenge an executive order that unconstitutionally discourages applicants from applying because of the opinions they hold and the views they express.

“The government is constitutionally prohibited from requiring contractors to pledge allegiance to its preferred policies,” wrote attorneys from the Council on American-Islamic Relations Legal Defense Fund, which is representing Ali. “State governments cannot condition employment on an oath that one has not engaged, or will not engage, in protected speech activities.”

Ali, a North Potomac Democrat, served in the House of Delegates from 2007 to 2011 and is running to regain a seat in next year’s election. In his lawsuit challenging the executive order, Ali said he supports boycotting those who “contribute to the oppression of Palestinians.”

Hogan issued the executive order in 2017 after the General Assembly failed to pass several “anti-BDS” bills.

Supporters of the BDS movement generally oppose what they regard as Israel’s mistreatment of Palestinians. BDS has drawn fire from a large segment of the Jewish community who believe support for the movement is rooted in antisemitism and not opposition to Israeli policy.

Hogan, in district court papers, defended his executive order as narrowly focused on ensuring that companies which bid on state contracts comport with the government’s interest in promoting tolerance of minority groups.

“The executive order … does not prohibit or punish anti-Israel boycotts generally; it places no limits on how business entities choose to act in the private marketplace,” Assistant Maryland Attorney General Adam D. Snyder wrote in the governor’s defense. “The executive order makes clear that Maryland will not allow itself, through its purchasing decisions, to subsidize and become a passive participant in a form of national-origin discrimination that offends longstanding Maryland public policy.”

Hogan’s response to Ali’s 4th Circuit filing is due April 15.

The case is docketed at the 4th Circuit as Saqib Ali v. Lawrence Hogan Jr., No. 20-2266.


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