All posts by Derek Muller

California mulls redistricting move that might invigorate Moore v. Harper

redistricting

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.

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Musk’s new “America Party” faces many hurdles, but the first one is its name

ballot access

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.

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A few thoughts on election litigation after Trump v. CASA

court decisions, Supreme Court

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.

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Citizen-voters have standing to challenge DC law permitting non-citizens to vote, DC Circuit holds

court decisions

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.

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Georgia county Republicans have standing to challenge primary ballot rules that “forced” them to associated with unwanted candidates, Eleventh Circuit holds

ballot access

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.”

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Georgia Supreme Court on the Elections Clause after Moore v. Harper

Elections Clause

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.

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Issacharoff and Muller, “Relocating Nationwide Injunctions”

court decisions, legislation and legislatures, Supreme Court

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.

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No standing for NAACP to sue over ex-felon documentation voter registration policy in Tennessee, 6th Circuit holds

voter registration

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.”

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“Ethics legislation stalls in Springfield as Senate president tries ‘brazen’ move that would have helped his election case”

legislation and legislatures

Chicago Tribune:

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.”

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Metzger, “Disqualification, Immunity, and the Presidency”

Supreme Court

New article by Gillian Metzger in the Harvard Law Review:

This essay analyzes Trump v. Anderson and Trump v. United States. It argues that, despite surface similarities—not least that they both helped smooth the path to Trump’s re-election as President—the two decisions differ in important ways. In particular, Anderson’s unanimous intuition that federalism principles and national interests may limit a state’s ability to disrupt the presidential election has some precedential basis and structural appeal; the decision also gives Congress a central role in presidential disqualification, while also removing the Supreme Court By contrast, Trump v. United States deviates notably even from the key precedents it cites, expands presidential power significantly, and largely erases Congress from assessments of presidential criminal immunity. The essay concludes that, although flawed, Anderson was a relatively narrow and justified decision whereas Trump v. United States left the presidency dangerously and unjustifiably imbalanced—a result underscored by the alarming first months of Trump’s second term in office.

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Kim, “Restoring Public Trust in Elections: An Empirical Study of How Campaign Finance Reform Can Restore Public Trust in Elections”

campaign finance

New publication from Matthew D. Kim in the Texas A&M Law Review:

The American public has become deeply distrustful of elections. This distrust is partly due to Supreme Court decisions curtailing campaign finance restrictions, on First Amendment grounds, to spending that creates an appearance of quid pro quo corruption. The Court’s reasoning assumes that, although the government has an interest in protecting the public’s trust in elections, campaign spending does not pose a threat to the public’s trust absent the appearance of quid pro quo corruption. However, it is unclear if campaign spending undermines the public’s trust in elections through means other than the appearance of quid pro quo corruption. If it does, the Court’s narrow focus on quid pro quo corruption as the only mechanism through which campaign spending can undermine public trust would be unfounded and paradoxically reduce public trust in elections. Rather than accepting, at face value, the Court’s assumption that quid pro quo corruption is the only mechanism through which campaign spending can reduce public trust and solely focusing on whether campaign spending decreases public trust in elections through quid pro quo corruption, this Article tests the Court’s assumption.

The Article analyzes four original survey experiments involving 1,974 respondents and provides new empirical evidence that, even in the absence of quid pro quo corruption, campaign spending consistently undermines public trust in elections by creating concerns among members of the public about unequal access to voters, outsized influence over elections, dissemination of misinformation, and inefficiency. What’s more, this Article provides empirical evidence that campaign spending may reduce public willingness to vote in and contribute to elections, even in the absence of quid pro quo corruption. Given the demonstrated loss of public trust and reduced willingness to participate in elections, this Article argues that the Court should return to the original, underlying reason motivating its campaign finance jurisprudence—namely, the government’s compelling interest in protecting the public’s trust in elections—rather than focusing on the derivative goal of preventing the appearance of quid pro quo corruption. Doing so will allow campaign finance regulations to better safeguard American elections.

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“Who Gets to Be Italian? Voters Face a Choice.”

comparative election law

New York Times:

Long after seeing millions of Italians emigrate as they fled poverty and war, Italy has now become a country to which millions of people have migrated, its schools and neighborhoods filling with Africans, Asians, Latin Americans and Eastern Europeans.

Yet many here say the law has not kept up with this dramatic demographic and social change, still making it too hard for immigrants to become Italian.

On Sunday and Monday, Italians will be called to vote in a referendum to decide whether to reduce the legally required residency in the country to five from 10 years in order to be able to apply for citizenship.

. . .

But for the referendum to pass, a majority of Italian voters must turn out, with most of them voting “yes.” Many observers are skeptical that will happen in a country where turnout is low.

Interesting details, too:

Supporters of the referendum accused Italy’s state broadcaster, Rai, of largely avoiding debates or reports about the referendum, though Rai said that it covered the referendum much more than the one in 2022.

Politicians opposed to changing the citizenship rules have said they won’t vote.

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Deep dive into elections in Michigan’s “conservation districts”

election administration

MLive investigation here, with some notable election rules:

Conservation district elections occur in unconventional locations like vineyards, barns and park gazebos. Votes are sometimes handwritten and manually tallied without privacy booths or computerized ballots. Voter turnout is extremely low, with most elections receiving single-digit ballot totals out of the 17 reviewed by MLive. Some districts hold elections during ticketed banquets, though district representatives said residents may vote without paying. The informal nature of these elections contribute to the lack of public participation and awareness.

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