Federal courts toss challenges by state legislators in Pennsylvania, Michigan over lack of standing

Elections Clause

The most recent edition of our federal courts casebook (with co-authors Arthur Hellman, David Stras, Ryan Scott, and Andy Hessick), I took some time reshape some of the focus of the chapter on “standing” to expound upon some increasing recurring themes. One of those themes was legislator and legislative standing. Legislators generally lack standing in federal court beyond what ordinary citizens or voters have, except in some rare (and perhaps isolated and unique) cases. In the elections context, these claims keep returning, with fairly predictable results.

In Keefer v. Biden (Pennsylvania) and Lindsey v. Whitmer (Michigan), federal courts in recent weeks have tossed challenges filed by state legislators under the Elections Clause. Both cases argued that some non-institutional legislature action, such as executive action (from President Biden) or ballot initiative (in Michigan), ran afoul of the Elections Clause. Both were thrown out for lack of standing. Despite the fact that the legislators wanted to challenge the action, their real concern was that the institutional legislature had been harmed.

Elections Clause challenges do not always fail for procedural reasons in federal court–see the recent New Jersey litigation citing Cook v. Gralike. But to the extent they attempt to assert something resembling the kinds of claims in Moore v. Harper, the paths forward remain quite limited.

But the cases are a constant reminder of the terrific number of election litigation challenges we continue to see, and how many fail to get to the merits for issues at the outset of the litigation.

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“Michigan AG executes search warrants on Google and X in ongoing 2020 fake electors probe”

election subversion risk

Marshall Cohen for CNN:

Google and X, formerly Twitter, recently provided hundreds of files to Michigan prosecutors for their 2020 election subversion probe, complying with search warrants that investigators obtained after CNN revealed secret social media accounts belonging to pro-Trump lawyer Kenneth Chesebro, who played a major role in the fake electors plot.

The previously unreported warrants gave prosecutors access to new Chesebro emails and his private direct messages on Twitter. The warrants make clear that Michigan Attorney General Dana Nessel is still gathering new information in her probe, nine months after she charged the state’s fake electors with forgery and other crimes for signing certificates falsely claiming Donald Trump won the state in 2020.

A top member of her team testified last week that the investigation is ongoing and that Trump is an unindicted co-conspirator in the case, which is not expected to go to trial before the November election.

Michigan is among a number of states to investigate fake electors schemes. Just last week, Arizona prosecutors filed criminal charges against the pro-Trump electors there and allies of the former president who were involved in the efforts to overturn the 2020 election.

According to the new documents provided to Michigan prosecutors, which were obtained by CNN, Chesebro fruitlessly tried to bring several controversial pro-Trump figures to Washington, DC, to watch his “fake electors” strategy unfold on January 6, 2021.

He offered to pay for airfare and lodging at Trump’s upscale DC hotel for former Milwaukee County Sheriff David Clarke, as well as for the founder of the Gateway Pundit conspiracy website, among others. It doesn’t appear that anyone accepted his offers.

These messages also show how Chesebro aggressively reached out to conservative pundits and right-wing figures after Trump lost the 2020 election, prodding them to publicly promote his long-shot theories for how to subvert the Electoral College process….

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“Surprise Tactics and Legal Threats: Inside R.F.K. Jr.’s Ballot Access Fight”

ballot access

NYT:

As Robert F. Kennedy Jr.’s independent presidential campaign mounts a bruising state-by-state battle for ballot access, he has often credited enthusiastic volunteers and grass-roots backers with driving the effort.

In fact, the operation has become increasingly reliant on consultants and paid petitioners whose signature-gathering work has yielded mixed results and raised questions of impropriety, even among Mr. Kennedy’s fans. In order to get Mr. Kennedy on the ballot in all 50 states, as is his goal, his campaign has deployed a multipart strategy: aggressive legal action, shrewd political alliances and surprise filing tactics meant to slow or prevent challenges.

In most states, Mr. Kennedy, 70, an environmental lawyer and heir to an American political dynasty, must produce thousands of signatures, under rules that are varied, intricate and confusing at times even to the local officials administering elections. The effort has already cost his campaign hundreds of thousands of dollars, and a supporting super PAC at least $2.4 million more, federal campaign finance records show. It has involved a number of professionals who specialize in getting people on the ground with clipboards and petitions, and helping candidates navigate the complicated process. Their success is what will make or break Mr. Kennedy’s campaign.

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“Wisconsin Republicans recruiting legion of monitors to observe polls, set stage for lawsuits”

fraudulent fraud squad

Milwaukee Journal-Sentinel:

The Republican National Committee and Trump campaign plan to deploy tens of thousands of volunteers and attorneys to monitor and challenge voting processes in battleground states, including Wisconsin — an effort rooted in the former president’s false election claims, characterized as safeguarding from “Democrat tricks from 2020.”

GOP officials say they plan to recruit 100,000 people nationwide to observe election processes and voting, an expansion of typical activities for political parties in election years. The party’s rhetoric surrounding the plans, however, describes the program as a solution to former President Donald Trump’s 2020 election loss that has been confirmed in Wisconsin by judges, recounts, studies and audits.

“The Democrat tricks from 2020 won’t work this time. In 2024 we’re going to beat the Democrats at their own game and the RNC legal team will be working tirelessly to ensure that elections officials follow the rules in administering elections. We will aggressively take them to court if they don’t follow rules or try to change them at the last minute,” Charlie Spies, RNC chief counsel, said in a statement….

In a recent training session conducted by state GOP officials, the party’s election integrity director Mike Hoffman said a focus would be placed on Democratic population centers like Eau Claire, Madison and Milwaukee, and recounted telling one clerk the party would be “keeping a close eye on you,” according to the New York Times.

A spokesman for the Republican Party of Wisconsin did not answer questions about whether the party’s monitoring efforts would extend to non-Democratic-leaning areas.

Clerks in Madison and Dane County, where Trump sought to throw out tens of thousands of ballots in 2020, said they have not been contacted about the party’s effort to monitor election processes.

Claire Woodall, executive director of the Milwaukee Election Commission, said she hosted Hoffman and GOP attorneys for a 90-minute tour of the city’s absentee ballot tabulation center, known as Central Count, on the night before the April presidential primary election….

“We are always happy to answer questions about process, procedure, and ensure open lines of communication between our office and both major political parties,” Woodall said. “As you know, we strictly follow state statute and there were no sudden changes or deviations from the rules in 2020. We were taken to court in 2020 multiple times, including by President Trump, and have always prevailed. I am confident our administration will continue to withstand scrutiny.

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Important New Student Note: “Voting Wrongs and Remedial Gaps”

Remedies, voting

There’s a great new student note at the intersection of election law and remedies, authored by Delaney Herndon, in the Harvard Law Review. Here is the abstract:

Today, voting rights plaintiffs largely seek injunctive relief.1 This wasn’t always the case. For most of the nation’s history, the standard remedy for a voting wrong2 was damages.3 In the usual case, an election official would (mistakenly or intentionally) deny a voter’s ballot or registration, and the voter would bring a damages action after the fact.4 This remedial structure persisted well into the twentieth century. But beginning in the 1950s and 1960s, injunctive relief became far more common.

This Note asks why that change happened and argues that the secondary effect of this injunction-heavy system, coupled with the slow dismantling of the Voting Rights Act of 19655 (VRA), has been to underdeter voting wrongs. First, it traces the adoption of the action for damages, first in the states and then in federal courts. Next, it follows the rise of injunctive relief in the second half of the twentieth century. It argues that injunctive relief displaced damages because injunctions offered a more efficient remedy that allowed voting rights groups to prevent voting wrongs. The move to injunctions also followed broader trends in public law, as injunctions became the preferred form of relief in suits against officers. But today’s injunction-heavy system tends to underdeter voting wrongs because of limits on the scope of injunctive relief and mismatched compliance incentives for parties subject to injunctions. Finally, this Note considers what can be done to reduce the existing remedial gap.

I’ve been spending some time on the common law tort for denial of the right to vote and found this note so helpful.

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