I’m honored to participate in the NYU Democracy Project, and offer this entry, “America’s Recount Addiction.” It begins:
America has a recount problem. State recount laws too often invite costly, unnecessary delays that undermine confidence in elections without changing outcomes. Losing candidates prolong the contest and sell false hope in fundraising pleas. States should amend their laws to significantly narrow the circumstances in which recounts take place.
Former Vice President Dick Cheney has died at the age of 84. His legacy is significant in a range of domains, but I wanted to recount four small election law anecdotes about him.
First, Cheney was named George W. Bush’s vice presidential nominee in the summer of 2000. Both were inhabitants of Texas. Cheney quickly established inhabitancy in Wyoming on account of the Twelfth Amendment: “The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves . . . .” Voters sued to block Texas’s electors from casting votes for Bush and Cheney. A federal court in Jones v. Bush found that the voters lacked standing, but also that “Secretary Cheney has been at some point since July 21, 2000, or will be on December 18, 2000, an inhabitant of the state of Texas.” The case was decided December 1, 2000, and the Supreme Court ultimately denied certiorari on January 5, 2001–by then, of course, other legal events had eclipsed it in the 2000 presidential election.
Second, Cheney’s autobiography In My Time discloses an incident in 2001 about possible succession difficulties involving the vice president. There was no mechanism to remove a vice president unable to discharge his duties (absent, I suppose, impeachment). And the Twenty-Fifth Amendment requires the Vice President to participate in a determination of an inability of the President to discharge the duties of office, and the Vice President would then assume the duties of the President. If Cheney–who had heart problems–were incapacitated, he might stand in the way of a removal of a president unable to discharge his duties, or become an incapacitated acting president. So Cheney drafted a resignation letter for Bush to accept if such a situation arose.
Third, Cheney pressed for recognition of the role of the Vice President as President of the Senate in a more formal way, even refusing certain executive-branch disclosures because of his argument that some of his functions were in the legislative branch. (It prompted this reprimand from then-Senator Joe Biden in the 2008 vice presidential debate: “Vice President Cheney has been the most dangerous vice president we’ve had probably in American history. The idea he doesn’t realize that Article I [sic] of the Constitution defines the role of the vice president of the United States, that’s the Executive Branch.”) Cheney proved prescient: when former Vice President Mike Pence faced litigation over communications surrounding his role presiding over the counting of electoral votes on January 6, 2021, Pence argued some of his communications were protected by legislative privilege–and a federal court approved (in part) that view. As Politico put it, “Secret Pence ruling breaks new ground for vice presidency.”
Fourth, in 2005, Cheney faced the first objection to the counting of electoral votes since 1969 that had the support of both a member of the House and a member of the Senate. Cheney followed the Parliamentarian’s script perfectly. Rather than try to dispute the validity of the objection to counting Ohio’s electoral votes, Cheney approached the objection as ministerial in nature and deferred to the houses of Congress to resolve under the Electoral Count Act, which ultimately voted to reject the objections. Cheney’s approach was mirrored by Pence on January 6, 2021–the second and third such objections since 1969.
Judge Willett, joined by Judges Barksdale and Duncan, in Jackson v. Tarrant County:
Here, Tarrant County chose to redraw the precinct lines used to elect its County Commissioners—and to do so mid-cycle. The Challengers, a group of voters reassigned from one district to another, contend that the County Commissioners Court redrew the lines to harm racial minorities. They further argue that, even if partisanship rather than race drove the decision, the County’s staggered elections justify our intervention despite the general rule against policing partisan maps. We hold that the facts do not support the Challengers’ first argument, and the law does not support their second.
I confess, I’ve found the litigation saga surrounding Callais quite complicated (including what, precisely, re-argument was supposed to accomplish, and why Justice Thomas wrote separately this summer frustrated at the prospect of re-argument), and oral argument on Wednesday didn’t really help. But there were still some notable takeaways.
My sense, like other ELB bloggers, is that some kind of limitation to Section 2, including a potential narrowing of Gingles, might be on the horizon. But the justices seemed to be talking past each other about what to do.
Justice Alito, in many respects, returned to what might be one of the narrowest paths forward. He repeatedly emphasized that the lower court failed to consider the compactness of the minority group (and here Justice Alito cited Gingles) and instead emphasized the compactness of the district. Janai Nelson pushed back against that characterization, but respondents’ arguments citing Bush v. Vera wanted to embrace it.
Justice Gorsuch turned to what Gingles and its progeny actually meant, including fleshing out when race or party “predominates.”
Justice Barrett repeatedly returned to “congruence and proportionality” and the constitutional standard for reviewing exercises of congressional power under the Reconstruction Amendments. As I wrote back in 2023 with Allen v. Milligan, I found it fairly surprising that Justice Thomas, joined by Justices Gorsuch and Barrett, embraced this standard for both 14th and 15th Amendment claims. If the question is one of congressional power, and if Section 2 as construed by Gingles might flunk that test, then some kind of limiting construction as constitutional avoidance of Gingles or of Section 2 itself might be in order, in her view. (This also ameliorates some of the “statutory stare decisis” concerns that arose–it isn’t a question of whether Gingles was right or wrong as a statutory matter, but that Gingles might have to give way to a new construction in light of constitutional concerns.) Justice Kagan pressed back late in oral argument at relying on congruence and proportionality for a statute enacted 40 years ago.
Justice Kavanaugh–the fifth vote in Allen v. Milligan–unsurprisingly kept returning to the time-bound issue he raised there. He did not seem to believe that the legal theories developed over the last two years have assuaged his concerns.
(One additional bit of trivia from Justice Kavanaugh at argument. He offered the following: “Justice Kennedy in 1994 in Johnson versus De Grandy said a couple things that I just want to get your reaction to. He said the sorting of persons with an intent to divide by reason of race raises the most serious constitutional questions, and he added that explicit race-based districting embarks us on a most dangerous course. It is necessary to bear in mind that redistricting must comply with the overriding demands of the Equal Protection Clause.” Justice Kavanaugh clerked for Justice Kennedy in the OT1993 term when Johnson v. De Grandy was decided.)
And Chief Justice Roberts seemed to emphasize that Allen v. Milligan assumed constitutional issues without deciding them–one way of construing that opinion, as I wrote back in 2023, is that it did leave open some issues. But he did not seem to offer much guidance about which way he might want to go. (Elsewhere, Hashim Mooppan openly questioned Alabama’s litigation strategy in Allen by pointing to Alabama’s failure to embrace partisanship as an alternative explanation in its map in an exchange with Justice Alito–“Alabama for whatever reason didn’t argue that incumbency protection and partisan advantage were the reasons for their map.”)
In short, then, my read is that whatever “majority” might come from the opinion is impossible to tell from oral argument. A range of views seem on the table, from a narrow clarification of Gingles that seems to spot a problem the lower court fell into, to a broader reinterpretation of Section 2 that overturns portions of Gingles in the name of constitutional avoidance, to, well, something that puts Section 2 more squarely into constitutional question.
One more note: Justice Kagan spent a long time suggesting (consistent with Travis’s take here) that this case was really just relitigating Allen v. Milligan. It is my sense that Justice Kagan will use the opportunity to write a dissent consistent with several of her dissents in the last few years, including Alexander v. South Carolina Conference of the NAACP, to take the majority to task for its reversal of precedents, particularly recent precedent. Again, Chief Justice Roberts offered reasons why that is not the case, and Justice Kavanaugh expressly reserved judgment on an issue in Alexander that he views as properly raised here in Callais. But it’s a dissent I fully expect to see written.
Nick’s recent partisan fairness post notes that changes to California’s congressional redistricting would require an amendment to the state constitution. That seems right to me. But it’s also not the only mechanism California is considering.
On a recent podcast, picked up by outlets like Punchbowl, Governor Gavin Newsom offered the following theory that California is “exploring”:
to move forward with legislative redistricting, in between the constitutional construct, which is every census, the independent redistricting commission does a new map, but it’s silent about what happens in between, so it’s a novel legal question, and it’s being explored.
True, the California Constitution speaks only of the role of the redistricting commission to draw maps after the census each decade and speaks only of “final” map. Newsom appears to suggest that the legislature then has the power to substitute a new map after the commission has acted, because the state constitution does not explicitly demand the map remain in effect until the next census.
This seems, to me, at least, to lead to a kind of absurdist interpretation. It would wholly eviscerate the power of the redistricting commission and leave it an essentially advisory body left to the discretion of the legislature.
Dan links to a Los Angeles Times column quoting Justin on this very point. (To repeat this quotation here: We have a commission,” said Justin Levitt, an expert on redistricting law at Loyola Law School. “Not only that, a Constitution and the commission’s in the Constitution. And not only that, we have a Constitution that says you only get to redistrict once every 10 years, unless there’s a legal problem with the existing maps.”) The column continues, “They could break the law and pass legislation drawing new lines, face an inevitable lawsuit and prevail with a sympathetic ruling from the California Supreme Court.”
Such a gambit–if it went through the legislature–would then need to survive state judicial review. It is quite likely it would not.
But even if it did, the appeal to the United States Supreme Court would, not unexpectedly, cite Moore v. Harper for the proposition that the state court transgressed the ordinary bounds of judicial review. Perhaps ironically, it would be a court arrogating legislative power by ratifying what the state legislature did–that is, instead of deferring to the legislative power exercised by the people (pursuant to Arizona Independent Redistricting Commission) via initiative.
It’s worth noting, then, this gambit is, indeed, a long shot. It requires (1) California choosing this method instead of the state amendment method or nothing at all; (2) the legislature enacting a law; and (3) the state supreme court acquiescing. Any of these three steps seems deeply unlikely, and the convergence of all three all the more so. But, it is worth highlighting that if all three did converge, I would expect a strong majority of the United States Supreme Court to invigorate Moore v. Harper. It is, perhaps, one more reason why California might want to be wary about such a gambit.
As I highlighted last month, I am deeply skeptical of any third political party venture that purports to represent some middle-of-the-road interests in the United States. Rick P. rightly asks some questions about the party now quasi-“officially” launched by Elon Musk, the “America Party.” But one problem with this new party will be its name.
New York, for instance, expressly prohibits a political party from having “American” or part of that name in a party title.
California has a provision that provides, “The designated name shall not be so similar to the name of an existing party so as to mislead the voters, and shall not conflict with that of any existing party or political body that has previously filed notice pursuant to subdivision (b).” The American Independent Party is ballot-recognized in the state of California.
These are just two state ballot label laws that jump to mind where problems might arise. And while there might be “ballot speech” interests in how political parties choose to identify themselves, there are more material problems if they risk voter confusion with names substantially similar to existing parties. (UPDATE: Richard Winger helpfully reached out to note that Americans Elect had a candidate on the California ballot in 2014, an argument that the risk of voter confusion seems unlikely. Likewise, in 1896 the California Supreme Court allowed the National Democratic Party and the Democratic Party on the ballot.)
Of course, political parties do use different names in different states (think the Democratic-Farmer-Labor Party in Minnesota for the Democratic Party). But for a nascent political party, the branding is certainly weakened if it relies on checkerboard labels in some parts of the United States.
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.
Decision in Hall v. D.C. Board of Elections by Judge Randolph, joined by Judges Pillard and Childs. Excerpts on the theory of vote dilution (lightly revised):
Seven District of Columbia citizen-voters filed a complaint challenging the constitutionality of the Local Resident Voting Rights Amendment Act of 2022, 69 D.C. Reg. 14,601 (Dec. 2, 2022), a D.C. law permitting noncitizens to vote in municipal elections. The district court, without reaching the merits, held that the plaintiffs lacked standing to sue and dismissed the complaint. We reverse.
. . .
The plaintiffs here advance a vote-dilution claim predicated on the power of their ballots. They allege that the LRVRAA causes a “debasement or dilution of the weight of a citizen’s vote” from the “expansion[] of the franchise.” (quoting Reynolds). Logically and mathematically, that is true: granting the franchise to noncitizens will expand the D.C. electorate and reduce the voting power of each U.S. citizen voter in local elections.
The claimed injury is hardly abstract, as each voter experiences a direct reduction in the strength of his or her “individual and personal” vote. Gill (quoting Reynolds). The plaintiffs are seeking relief relating to their home jurisdiction and concerning an election in which they will participate. Unlike the statewide theories of harm rejected in Gill, the plaintiffs here do not complain of a harm in a different election that indirectly affects them, nor do they assert claims merely about the composition of the D.C. municipal government writ large. Their claims turn exclusively on their individual votes and the power attached to those votes in the D.C. local elections. . . .
Nor is it dispositive that the plaintiffs’ injuries are “shared by all citizen voters.” The litmus test is not numerosity but concreteness. Under Michel, simply because “all voters in the states suffer[ed] [an] injury . . . d[id] not make it an ‘abstract’ one”—and Michel endorsed a type of injury “suffered by every American voter.” As long as “each person can be said to have suffered a distinct and concrete harm,” id., we do not hold it against some plaintiffs that they may have company. The alternative would be to render government action unreviewable as long as it disadvantages everyone equally. But if, for example, a municipality made all residents ineligible to vote, surely those individuals would have standing to sue. Here, the injury the plaintiffs assert relates to their specific votes in elections in which they intend to participate. That injury is enough to confer standing.
The decision in the Eleventh Circuit is an unpublished per curiam opinion, but a reversal of the trial court–something of a rare combination of events, in my view. The summary of Catoosa County Republican Party v. Catoosa County Board of Elections:
Plaintiffs Catoosa County Republican Party (“Catoosa GOP”) and Joanna Hildreth, its chair (collectively, “Plaintiffs”), appeal the dismissal of their 42 U.S.C. § 1983 civil-rights action, which alleged that the defendants violated their rights to (1) freedom of association, by forcing them to associate on the Republican primary ballot with certain political candidates they viewed as ideologically outside the local party; and (2) freedom of speech, by refusing to publish their proposed ballot questions.
The district court dismissed the action, concluding that Plaintiffs lacked standing for the first claim and that the second claim failed because it was based on government speech. After careful review, we hold that Plaintiffs have alleged a concrete injury to their associational right to exclude based on political beliefs, and that Plaintiffs have plausibly alleged an infringement of their private speech. We vacate and remand for further proceeding.
Note that this decision doesn’t say anything about the merits (which, reading the opinion, seem like a long shot). There’s some interesting discussion of the 1996 decision involving David Duke, and Part IV of the opinion examines what one might label “ballot speech.”
Rick H. linked to the story earlier, but one specific holding from today’s decision in RNC v. EVA:
The Defendant-Intervenors and the State (collectively, the “Appellants”) argue that the trial court erred in concluding that the SEB rules violated the Federal Elections Clause of the United States Constitution, which provides that the “Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof[.]” U.S. Const., Art. I, § 4, cl. 1. We agree.
In the trial court, the Plaintiffs did not demand that the SEB rules be invalidated as violating the Federal Elections Clause and tellingly do not defend on appeal the trial court’s sua sponte grant of relief on this ground. In granting relief on this basis, the trial court relied primarily on concurring and dissenting opinions in various United States Supreme Court decisions, but it failed to apply binding precedent from that Court itself, which squarely rejects the notion that a state legislature cannot ever delegate any election “time, place, manner” regulatory authority to another state body. See, e.g., Moore v. Harper, 600 U.S. 1, 25 (143 SCt 2065, 216 LE2d 729) (2023) (“[A]lthough the [Federal] Elections Clause expressly refers to the ‘Legislature,’ it does not preclude a State from vesting congressional redistricting authority in a body other than the elected group of officials who ordinarily exercise lawmaking power.”); see also Ariz. State Legislature v. Ariz. Indep. Redistricting Comm., 576 U.S. 787 (135 SCt 2652, 192 LE2d 704) (2015) (rejecting Federal Elections Clause challenge to a state voter initiative to remove redistricting authority from the state legislature and vest that authority with an independent commission). Thus, the trial court erred in finding that the SEB rules violated the Federal Elections Clause.
Earlier this year, I wrote about how potential reform over the “universal” or
“nationwide” injunction might affect a set of election law cases. The Supreme Court’s recent oral argument in Trump v. CASA has brought the debate about nationwide injunctions (and related concerns about forum shopping) in the federal courts to the fore.
Sam Issacharoff and I have co-authored a piece in Just Security, “Relocating Nationwide Injunctions.” Here’s how it opens:
Last month’s argument in Trump v. CASA provided the Supreme Court with its latest confrontation with nationwide injunctions. The underlying case challenges an executive order aimed at eliminating birthright citizenship. But the issue before the Court concerns whether a single federal district court may stop the enforcement of an executive order on a nationwide basis while litigation is pending. Nationwide injunctions raise many difficult questions, including the potential mismatch between the litigants before a court and the scope of relief sought. But they also heighten concerns about forum shopping to find a single sympathetic judge. We believe that the concern about plaintiffs seeking an outlier court can be addressed relatively simply.
What if there were some national judicial body with the authority to look at any case seeking a nationwide injunction and decide where a suitable forum might lie? We argue that such a body already exists, although it is thought of more as a home for mass torts and other forms of complex litigation, rather than as reconciling competing claims to a proper forum for nationwide injunctive cases against the executive—the Judicial Panel on Multidistrict Litigation.
Decision by Judge Murphy, joined by Judges Bush and Larsen, in Tennessee Conference of the NAACP v. Lee. From the introduction:
Tennessee grants the right to vote only to some convicted criminals. When processing voter-registration forms, then, state officials must distinguish between eligible and ineligible felons. To do so, the officials have required some felon applicants to include additional records with their registration forms that confirm their eligibility. The Tennessee State Conference of the NAACP asserts that this “Documentation Policy” violates the National Voter Registration Act (NVRA). The district court agreed and facially enjoined the policy. Yet the NAACP failed to establish its Article III standing to sue. The Documentation Policy does not directly regulate the NAACP. And although the NAACP generally alleges that the policy has led it to spend resources to help eligible felons register to vote, the organization did not introduce any specific facts showing that the policy threatened an imminent injury. Indeed, the NAACP did not identify a single voter that it has helped or planned to help. We thus reverse.
That said, the court did leave the door open: “We thus will leave this remedial choice (between granting summary judgment to the State or permitting NAACP to supplement the record) in the district court’s capable hands. That court may also assess what effect the State’s new voting law has on this case in the first instance.”
In the closing hours of the Illinois General Assembly’s spring session, Senate President Don Harmon tried to pass legislation that would have wiped clean a potential multimillion-dollar fine against his political campaign committee for violating election finance laws he championed years ago.
Harmon’s move came against the backdrop of the former Illinois House speaker’s upcoming sentencing for corruption and abuse of power and almost instantly created a bipartisan legislative controversy that resulted in the bill never getting called for a vote.
The Oak Park Democrat’s maneuver, characterized by critics as “brazen” and self-serving, also raises anew questions about how seriously political leaders are trying to improve ethical standards in a state government the electorate already holds in low regard.
Blowback to Harmon’s action, particularly from inside the House Democratic caucus, was so severe it derailed an entire package of new election measures that would have required severe warnings about penalties for noncitizen voting, mandated curbside voting access for the disabled, broadened the ability of voters to cast ballots in centralized locations and provided more detailed public information about voting results.
“This is a terrible look,” said state Rep. Kelly Cassidy, a Chicago Democrat who recalled being one of several who spoke out in a closed-door House Democratic caucus meeting. “I don’t recommend that anybody in our caucus take a vote like that. There was not a single person in that caucus that could defend that vote. … There was a visceral reaction to it in caucus — both to the substance of it and the lack of forewarning.”