Federal District Court Issues Preliminary Injunction Against Two Aspects of New Florida Voter Registration Law; Expect 11th Circuit Appeal

election administration, The Voting Wars

You may find the 58-page opinion of Judge Mark Walker at this link. From the introduction:

 This case arises from Florida’s latest assault on the right to vote. Plaintiffs move to preliminarily enjoin two amendments to section 97.0575, Florida Statutes. One new provision bars noncitizens from registering citizens to vote, thus discriminating based on alienage, one of the most questionable classifications in equal protection jurisprudence. The other exposes individuals working for third- party voter registration organizations to felony prosecutions for retaining voter information without telling them to whom the prohibition applies, what they can retain, and when they can retain it. 

Florida may, of course, regulate elections, including the voter registration process. Here, however, the challenged provisions exemplify something Florida has struggled with in recent years; namely, governing within the bounds set by the United States Constitution. When state government power threatens to spread beyond constitutional bounds and reduce individual rights to ashes, the federal judiciary stands as a firewall. The Free State of Florida is simply not free to exceed the bounds of the United States Constitution. 

From the Conclusion:

The State of Florida is correct to seek integrity in our electoral system. Sound election laws ensure the people are heard without distortion from negligent and bad-faith actors. Here, however, Florida’s solutions for preserving election integrity are too far removed from the problems it has put forward as justifications. It is no answer to assert the Florida Legislature’s work here was “good enough.” Tr. at 85. Such shoddy tailoring between restriction and government interest presents a dubious fit under rational basis review, and it falls woefully short of satisfying the strict scrutiny this Court must apply. And a provision as vague as the information retention ban, notwithstanding the Secretary of State’s post-hoc intent to clarify its reach, can serve no end but arbitrary punishment. The United States Constitution demands more than “good enough.” 

Ms. Herrera-Lucha, a noncitizen who, herself, lacks the right to vote, has spent years registering and encouraging citizens to exercise that solemn right. She may, at least for now, continue to do so and add more voices to the millions of others singing a more perfect Union into existence. 

Judge Walker has been very critical of Florida’s voting laws as aimed at and achieving voter suppression. But he has been reversed by the 11th Circuit in the past, so I expect Florida to make a major run at this opinion on appeal.

Share this:

Did Moore v. Harper complicate the National Popular Vote Compact?

electoral college

Consider this language from the Illinois Constitution:

Every United States citizen who has attained the age of 18 or any other voting age required by the United States for voting in State elections and who has been a permanent resident of this State for at least 30 days next preceding any election shall have the right to vote at such election. The General Assembly by law may establish registration requirements and require permanent residence in an election district not to exceed thirty days prior to an election. The General Assembly by law may establish shorter residence requirements for voting for President and Vice-President of the United States.

From the California Constitution:

A United States citizen 18 years of age and resident in this State may vote.

. . .

The Legislature shall prohibit improper practices that affect elections and shall provide for the disqualification of electors while mentally incompetent or serving a state or federal prison term for the conviction of a felony.

And the New York Constitution:

Every citizen shall be entitled to vote at every election for all officers elected by the people and upon all questions submitted to the vote of the people provided that such citizen is eighteen years of age or over and shall have been a resident of this state, and of the county, city, or village for thirty days next preceding an election.

. . .

The legislature shall enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime.

In Moore v. Harper, the Supreme Court held that the state constitutions can restrain state legislatures when they are exercising authority under the Elections Clause–and the Court often refers to the Presidential Electors Clause, too, even though it was not at issue in the case.

The Court pointed toward a more limited understanding of the context of McPherson v. Blacker (1892): “Our decision in McPherson, however, had nothing to do with any conflict between provisions of the Michigan Constitution and action by the State’s legislature—the issue we confront today. McPherson instead considered whether Michigan’s Legislature itself directly violated the Electors Clause (by taking from the ‘State’ the power to appoint and vesting that power in separate districts), the Fourteenth Amendment (by allowing voters to vote for only one Elector rather than ‘Electors’), and a particular federal statute.”

Now, to the National Popular Vote Compact. The compact requires, “Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a ‘national popular vote total’ for each presidential slate. . . . The presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.”

State constitutions often fix voter eligibility, including voter eligibility for federal elections. This is not a problem for congressional elections under the Elections Clause, because separate constitutional clauses say that eligibility to participate in House and Senate elections turns on the ability to participate in state elections for the most numerous chamber of the state legislature–which can be fixed by the state constitution.

For presidential elections, however, the Constitution contains no such clause. It is instead subsumed within the state legislature’s power to “direct” the “manner” of appointing presidential electors.

There was a possible basis before Moore, to the extent one had a robust understanding of the Legislature Thereof Clause of the Presidential Electors Clause, that a state legislature could ignore the state constitution when dictating the rules for presidential elections–including, potentially, voter eligibility. This was never really pressed anywhere, but certainly a possibility.

Now, after Moore, it’s fairly clear that states do not have any such power. And that puts the National Popular Vote Compact in a difficult spot.

The three state constitutional provisions I listed above are just a few of the common ones one might see. Voting is restricted to adults, to citizens, to state residents, to non-felons.

But the “national popular vote” creates difficulties under state constitutions. For one, if a state disenfranchises felons or ex-felons, the state constitution forbids those individuals from voting. A national popular vote total that includes such votes in other states (e.g., Vermont, Maine, District of Columbia) would run afoul of the state constitution. Even more significantly, state constitutions provide that residents are able to vote. The national popular vote total includes millions of non-residents from each state, added to a state’s vote totals.

It does not seem that these state constitutions merely set the floor and permit the legislature by statute to enfranchise more voters, such as those under the age of 18, non-citizens, or non-residents. The precise language may matter (e.g., does the state constitution forbid a class of voters from voting, simply ensure that a set of people are eligible, etc.). But if even one state constitution forbids the state legislature from altering the voting base in presidential elections, the compact might not be able to take effect in that state, and it might then drop the total below whatever threshold would be required for it to take effect.

I’m not sure how this might play out or if there are arguments I’m missing. But at first glance, a pretty robust limitation from the Court of McPherson and the Presidential Electors Clause in Moore v. Harper may add one more complication to the National Popular Vote (and its existing share of legal complications).

Share this:

Litman: “Anti-Novelty, the Independent State Legislature Theory in Moore v. Harper, and Protecting State Voting Rights”

legislation and legislatures, Supreme Court, voting

As soon as I read Justice Kavanaugh’s concurring opinion in Moore v. Harper, I thought of Leah Litman‘s scholarship on novelty and how Kavanaugh’s proposed rule, if it becomes law, would deter the growth of state constitutional law protecting the right to vote. I asked Leah if she wanted to flesh out this idea, and she wrote this guest post:

The Supreme Court’s decision in Moore v. Harper left much to be determined at a later date. One of the TBD issues is whether the Court will adopt an anti-novelty version of the independent state legislature idea, which could thwart democracy, the development of the law, and the promise of state courts and state constitutions.

In the final week of the term, the Supreme Court released the opinion in Moore v. Harper, in which it rejected the most extreme and maximalist version of the independent state legislature (ISL) theory/fan-fic/thing (or whatever you might call it). The most extreme version of ISL was the one that maintained that state courts could never enforce state constitutional provisions against state legislatures in cases involving state law regulating federal elections, or (relatedly) that state courts could not enforce some subset of state constitutional provisions (substantive provisions, general ones, or some other category). In Moore, 6 Justices rejected that theory and two (Justices Thomas and Gorsuch) embraced it.

But there has been a wide range of views about whether or to what extent Moore rejected other versions of ISL, including the version espoused in Chief Justice Rehnquist’s concurring opinion in Bush v. Gore. In Bush v. Gore, Chief Justice Rehnquist, writing for himself, Justice Thomas, and Justice Scalia, had maintained that the federal constitution allows federal courts to review state courts’ interpretation of state laws (in that case, statutory law) in fairly nondeferential ways such that the federal courts would essentially be deciding anew whether the state courts interpreted state law correctly.

The Chief Justice, in the majority in Moore, recounted how the different opinions in Bush (in particular, the dissents and Chief Justice Rehnquist’s concurrence) had pushed different legal rules about when federal courts could review state courts interpretation of state laws regulating federal elections. But aside from noting that “state courts do not have free rein,” and that state courts “may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections,” the Chief Justice’s opinion in Moore did “not adopt these or any other test by which we can measure state court interpretations of state law in cases implicating the Elections Clause.” Nor did it assess whether the North Carolina Supreme Court had violated whatever the legal test is when the North Carolina Supreme Court struck down the North Carolina legislature’s maps as violating the state constitution (the North Carolina Supreme Court subsequently held partisan gerrymandering claims nonjusticiable after the Court’s composition changed in the midterms).

Justice Thomas’s dissenting opinion in Moore raised some concerns about the majority’s decision to leave this issue unresolved. In the final section of his dissent (joined only by Justice Gorsuch), Justice Thomas wrote that “it is impossible to be sure what the consequences of” the majority’s “interpretation will be.” The majority’s opinion, he wrote, “opens a new field for Bush-style controversies over state election law—and a far more uncertain one,” and he expressed a “fear that this framework will have the effect of investing potentially large swaths of state constitutional law with the character of a federal question not amenable to meaningful or principled adjudication by federal courts.”

Justice Kavanaugh’s concurring opinion in Moore sought to provide some additional guidance about what he thought the standard for federal courts reviewing state election laws would ultimately be. He specifically embraced Chief Justice Rehnquist’s standard from Bush v. Gore, under which federal courts would ask whether the state court “impermissibly distorted” state law “beyond what a fair reading required.” And to apply that standard, Kavanaugh wrote, he would rely on Chief Justice Rehnquist’s guidance that in reviewing state court interpretations of state law, federal courts “necessarily must examine the law of the State as it existed prior to the action of the [state] court.”

This formulation has echoes of the anti-novelty principle that the Supreme Court has applied in constitutional law cases about the scope of Congress’s powers, and in administrative law cases about the scope of agencies authority under federal law. In those cases, the Court treats novelty as a mark against the lawfulness of a federal law or federal regulation. In constitutional law cases, if the statute is new, then the Court has said that can be a sign that the statute exceeds the scope of Congress’s powers under Article I, violates the Tenth Amendment, or impermissibly interferes with the President’s powers under Article II. And in administrative law cases, if the regulation is new, then the Court has said that that can be a sign that the regulation is ‘major,’ and accordingly requires specific, explicit authorization from Congress.

In prior scholarship, I’ve tried to debunk that anti-novelty principle as it is used in both assessing the scope of Congress’s powers and in assessing the scope of federal agencies authority. (The latter in a co-written piece.)

It’s concerning that the Court might be on the cusp of importing an anti-novelty principle into how federal courts review Elections Clause challenges to state courts interpretation of state laws regulating federal elections. For one thing, an anti-novelty version of ISL impedes a natural way in which law develops—by parties making new arguments, supported by new evidence, and new theories. There will always be a first time when a particular state court finds a partisan gerrymandering claim justiciable. Would the anti-novelty version of ISL bar that? It shouldn’t, but as always with this Court, TBD. There will also always be a first time for every kind of state court challenge to state election laws, including when a state legislature adopts a new or different kind of law regulating federal elections. Would the anti-novelty version of ISL bar a state constitutional challenge to a state law announcing that the state legislature gets to throw out ballots it doesn’t like? It shouldn’t, even if that case would raise a first of a kind challenge to a first of a kind law. The point is that the Elections Clause should not operate as some kind of bar on state courts adjudicating new or different kinds of claims or reviewing new or different kinds of theories or invalidating new or different kinds of state laws.

The anti-novelty version of ISL is especially troubling because it has the potential to undermine the state courts’ relationship with the people and state voters. Many state courts, unlike their federal counterparts, are elected and subject to elections. That system provides one mechanism for democratic feedback between state courts and the people; the anti-novelty version of ISL could thwart or undermine democracy if it prevents people from using judicial elections to try and change the direction of the law and the direction of the state courts.

Take the recent election that resulted in the WI Supreme Court having a majority of progressive, liberal nominees for the first time in awhile. In that election, the candidates talked about whether Wisconsin’s extremely gerrymandered maps were rigged (Dan Kelly, who lost the race, had been involved in defending the gerrymandered maps). Would the anti-novelty ISL bar the Wisconsin Supreme Court from rethinking the Court’s prior jurisprudence embracing rigged maps and prior writings in which 3 Justices indicated they would throw out votes in Milwaukee as part of the effort to challenge the results of the 2020 election? Again, it shouldn’t, but it’s hard to know where this Court might take such a principle.

More generally, the anti-novelty version of the ISL is at odds with what Miriam Seifter and Jessica Bulman-Pozen have called the “democracy principle” in state constitutions. That principle, they explain, is one that ensure that state constitutions and state courts and state offices more generally will be responsive to the people. And as people’s views change – say by recognizing the danger from partisan gerrymandering or the danger from voter suppression or what not – the democracy principle ensures that state courts and state constitutions register those views. But a strong anti-novelty version of ISL might be used as a way to prevent state courts from changing the law or moving its direction.

Only Justice Kavanaugh wrote to embrace Chief Justice Rehnquist’s concurrence, and the anti-novelty bent of that concurrence in particular. Let’s hope no one else is drawn to the siren song of anti-novelty in this area too.

Share this:

“The Democratic Party promised to overhaul its primaries. Doing that has been anything but simple”

political parties, primaries

AP:

New Hampshire is in open rebellion. Georgia is all but out.

South Carolina and Nevada are on board but face stiff Republican pushback. Michigan’s compliance may mean having to cut the state legislative session short, despite Democrats controlling both chambers and the governor’s mansion.

Then there’s Iowa, which is looking for ways to still go first without violating party rules.

Months after the Democratic Party approved President Joe Biden’s plan to overhaul its primary order to better reflect a deeply diverse voter base, implementing the revamped order has proven anything but simple. Party officials now expect the process to continue through the end of the year — even as the 2024 presidential race heats up all around it.

“Despite the fact that it looked like relatively smooth sailing for the president when he proposed it … the kind of backlash you’re hearing, the reactions, are exactly what we would have expected,” said David Redlawsk, chair of the political science department at the University of Delaware and co-author of the book “Why Iowa? How Caucuses and Sequential Elections Improve the Presidential Nominating Process.”

Share this:

“A Mysteriously Financed Group That Could Upend a Biden-Trump Rematch”

ballot access, third parties

Julie Bykowicz for WSJ:

The 13-year-old nonprofit group, which has a $70 million budget, has qualified for the ballot in Arizona, Alaska, Colorado, Oregon and Utah and is pursuing access elsewhere. Arizona Democrats are suing to kick No Labels off the ballot, and the group says it expects more lawsuits in other states where it wins access. 

The ballot drive in Maine has collided with a Democratic secretary of state who accused the group of leading voters to think they were merely signing a petition when they were actually signing up to join its party.  

The liberal group MoveOn recently sent letters to secretaries of state asking them to investigate whether No Labels is doing the same in their states. No Labels says it isn’t misleading anyone. …

Questions about the motives of No Labels are compounded by the secrecy surrounding its finances. 

The group’s leaders say naming their donors would subject them to scrutiny and intimidation. Past known donors include executives in the finance and energy industries whose campaign contributions largely lean Republican.

Crow, the Republican developer, has spoken at No Labels events and made contributions.

Share this:

“The self-inflicted voting machine misinformation crisis looming over 2024”

election administration, Election Assistance Commission, The Voting Wars, voting technology

Politico:

The federal government is about to change its certification guidelines for voting machines — and election officials across the country are bracing for a wave of misinformation that erodes trust in the 2024 election.

Election officials are not-so-quietly freaking out that this long-awaited technical overhaul of voting machine guidelines later this year will be weaponized against them. The officials, who are used to operating in relative obscurity, just endured two election cycles in which seemingly benign issues blew up in their face. Now they’re afraid it’s happening all over again.

We have serious concerns that false information will mischaracterize the consequences” of the changes, read a March letter from the National Association of State Election Directors to the agency that oversees the change in guidelines. “All their public communications must be unambiguous.”

They have good reason to be worried. After 2020, supporters of former President Donald Trump who were convinced the election was stolen from him spread conspiracy theories about the security of voting machines, pushing for so-called election audits in swing states and advocating for hand counting ballots, something election officials say will take longer, cost more money and be less accurate.

The new standards are a welcome update after years of work from the agency — the Election Assistance Commission — and election officials, and are broadly supported in the election community. They were formally adopted by EAC commissioners in early 2021, and represent a significant leap forward in requirements on everything from cybersecurity to accessibility for voters with disabilities.

Share this: