Justin helpfully summarized the lay of the land after Trump v. CASA with respect to universal injunctions and graciously linked to my previous takes on the topic. Of note is that statewide relief in federal courts, just like nationwide relief in federal courts, is no longer permissible.
I wanted to follow up with a few other things we might expect in election litigation.
First, Rick P. astutely notes that the majority cited Shaw v. Hunt as the type of case where “complete relief” might extend beyond the parties. I think this is likely true in most redistricting cases–Voting Rights Act, racial gerrymandering, and one-person-one-vote, to name a few.
Gill v. Whitford helps reinforce the majority’s holding and the point Rick P. raised. Gill required plaintiffs reside in challenged districts. If they do so, and win, the relief is a new map. And a new map, of course, inevitably affects other voters in the state. “Complete relief” will run to other parties incidentally in order to remedy the plaintiffs’ injuries. Justice Sotomayor’s dissenting opinion cites Gill (really, citing Reynolds v. Sims) for this proposition alongside the note from the majority’s in Shaw (And I think the majority would accept that a malapportionment case could require “complete relief” in ways that affect, sometimes benefiting, non-parties.)
Second, this places new pressure in election law cases for organizational or associations bringing cases. After last year’s decision in FDA v. AHM, I anticipated–rightly–that organization plaintiffs in election cases would face increased barriers to bringing claims on the ground that they had to spend more money. The Court is also increasingly skeptical of associational standing, as multiple members of the Court has pressed against the notion that an association can simply parrot the interests of its members without more.
If the move is now to class actions, as the majority suggests is the appropriate place to go, an association will need to assert a class of members it purports to represent. This will create some interesting dynamics often lacking in current litigation, as these associations–usually with generic labels like “veterans” or “retired persons” or “liberty” in the title–might not always identify all the members they purport to represent with specificity. They had previously been able to pretty easily identify their individual injuries or injuries of some group of voters and move forward. Not so now. Even if they overcome standing hurdles, they will now need to identify with precision which parties they represent.
Beyond that, if they purport to represent all voters in a state, new complications arise. Does a claim that purports to represent all voters turn into a “generalized grievance”? If it is all voters, organizations will need to ensure representative plaintiffs are “typical” of the injuries of all voters and “adequate” to represent the class–in contentious disputes with partisan valences, is this feasible? Counsel will need to demonstrate to the court it is capable of adequately representing the class–is that feasible?
Third, and related to the class action point above, is the ability to tailor a class to have injuries in “common.” Rule 23(a)(2) requires commonality, which is not insurmountable, but since the Supreme Court’s decision in Wal-Mart v. Dukes (2011), certainly has teeth. (Indeed, the en banc Sixth Circuit had a significant 9-7 decision issued today on commonality under 23(a)(2).)
Some election laws do not really burden all voters, so defining the class matters (as Justin’s post notes). And in order to ensure the legal issues are “common” and named plaintiffs have “typical” injuries, it might result in some complexity in identifying the kinds of burdens plaintiffs face, or the way in which votes are adversely affected for a group of voters, in order to proceed.
This is all very high level, because the kind of case and the context of the case will matter greatly. But it will bring a great deal of uncertainty for plaintiffs in coming months as they seek to restructure litigation. While much of the attention–understandably–is focused on the Trump administration and its executive orders, the fallout for run-of-the-mill election law litigation could be significant. Much like, frankly, how the focus in FDA v. AHM last year was about the relationship between private litigants and the Biden administration, but fallout that regularly extends to election litigation.