I’m thrilled to share the details about this new project from the ALI:
The American Law Institute’s Council voted today to approve the launch of a Restatement of the Law project on Election Litigation. The project will be led by Reporters Lisa Manheim of the University of Washington School of Law and Derek T. Muller of the University of Iowa College of Law.
The Restatement’s goal is to provide guidance to federal and state court judges adjudicating election disputes, focusing on the areas governed by equitable principles and guided by judicial common law. Topics will include the “Purcell Principle” on timing of judicial intervention, the preservation of pre-established conditions for election conduct, the roles of state and federal courts in election disputes, administrative flexibility for emergencies, remedies for failed elections, and claims over exclusion of parties from the ballot and lack of voter access. The Restatement will not address broader questions bearing on the substance of election law.
I’m really looking forward to working with someone as outstanding as Lisa on this new and transformative project in the years ahead.
The Ninth Circuit issued its decision in Clark v. Weber, approving California’s two-step recall process. In the recall, voters first vote “yes” or “no” on the recall; after that, they may vote on a new candidate for governor, but the sitting governor is ineligible to appear at the second stage. Some suggested this violated the principle of “one person, one vote,” as a candidate could receive more “no” votes in the first stage than any replacement candidate receives at the second stage. Ned Foley, and I, here at ELB (among others elsewhere) expressed some skepticism about this argument.
A lawsuit followed, and that case reached the Ninth Circuit. In an opinion by Judge Watford (joined by Judges O’Scannlain and Hurwitz), the court upheld the law. From the heart of the opinion:
Continue reading Ninth Circuit upholds California’s two-step recall process →
From Greene v. Secretary of State (disclosure: I filed an amicus brief in the case), a per curiam opinion (Judges Wilson, Branch, and Lagoa):
As explained, in this federal lawsuit, Rep. Greene is seeking to enjoin the application of the Challenge Statute against her in the state proceedings to prevent her from being disqualified as a candidate for Congress under § 3 of the Fourteenth Amendment. However, the state proceedings under the Challenge Statute have concluded, and Rep. Greene has prevailed at each stage: the ALJ ruled in Rep. Greene’s favor, Secretary Raffensperger adopted the ALJ’s conclusions, the Superior Court of Fulton County affirmed the Secretary’s decision, and the Supreme Court of Georgia denied the Challengers’ application for discretionary review. Ultimately, Rep. Greene was not disqualified from being a candidate for Congress and is presently on the ballot for the upcoming election. Accordingly, we no longer have the ability to accord Rep. Greene meaningful relief.[fn. 1] We therefore hold that this case is moot.
fn. 1: Rep. Greene’s argument that this case is not moot because it falls within the “exception to the mootness doctrine for cases that are capable of repetition, yet evading review” is unavailing. . . . Rep. Greene has not established that the exception applies in this case. . . .
But Judge Branch concurred, explaining that while the case was moot, Greene was entitled to a preliminary injunction at the time she filed the federal lawsuit (her opinion resembles, but has differences for another blog post, Judge Richardson’s in the 4th Circuit, here, and tracks an argument I raised in my amicus brief):
Continue reading 11th Circuit finds eligibility challenge to Marjorie Taylor Greene moot, but one judge finds Georgia had no power to adjudicate her qualifications →
United States Court of Appeals for the Third Circuit ruled to today, in Migliori et al v. Lehigh County Board of Elections–a case brought by the American Civil Liberties Union–that 257 mail-in ballots that had been excluded from the 2021 general election because voters had not handwritten a date on the outer return envelope had to be counted. The full impact of the decision is unclear because the opinion is yet to be issued, but commentators expect it to have immediate impact. Most importantly, the decision stands at odds with state court decisions on the same issue.
From the Philadelphia Inquirer:
“State law requires voters to sign and date the outside mailing envelope when they return their mail ballots, and state courts have held that the requirement means undated ballots must be rejected. But throwing out those votes violates the federal Civil Rights Act, the ACLU argued, because the date isn’t actually used in determining the legitimacy of a vote.
. . .
The U.S. Court of Appeals for the Third Circuit agreed Friday, declaring the date requirement in state law is immaterial under the Civil Rights Act — meaning it can’t be used as a reason to reject ballots.”
Marian Schneider, senior voting rights policy counsel for the ACLU of Pennsylvania, says, “The potential implications of this ruling are significant, and we look forward to reviewing the court’s full opinion. One percent of Lehigh County’s mail and absentee voters in the 2021 general election submitted their ballots on time but forgot to handwrite the date on their return envelopes. In a statewide, high-turnout election, disqualifying those ballots could disenfranchise tens of thousands of otherwise eligible voters.”
Just a few days before Idaho’s May 17 primaries, Republicans took their internal fights to court.
“In the virtual hearing [last] Friday afternoon, Fourth District Court Judge Jason Scott heard arguments from intertwined Republican organizations — one suing the other, days before a primary election that pits establishment Republicans against ultra-conservative Republicans.
Scott ruled at the end of the two-hour hearing that the Bonneville County GOP had indeed overstepped its bounds by endorsing candidates in state-level primary, . . . saying it had determined those candidates were true Republicans.”
The county GOP’s actions violated party rules and election laws.
In the wake of the victory, Idaho GOP Chairman, is reported to have said, “‘While we’re pleased with the court’s decision, it’s regrettable that we were forced to take this action through the judiciary[.]’ . . . ‘At the end of the day, this is about party unity. The Republican Party needs to speak with one unified voice and the state party rules were put in place to ensure that happens. Rules and laws exist to help us navigate when we disagree.’”
This essay focus on the election law implications of the new book by Jeffrey Sutton, Chief Judge of the Sixth Circuit. Bottom line: given all the challenges confronting the operation of the electoral process in the United States currently, now is the time for especially creative use of states as laboratories of democracy. While some of what’s being done to combat gerrymandering fits this description, there is much more experimentation with democratic procedures (all of which would be consistent with the basic federal constitutional guarantee of equal opportunity to participate in the electoral process) that could occur. (Derek’s post from a few days ago is along the same lines.)
Election subversion is, perhaps unsurprisingly, one of the hottest topics in election law. It’s a term that can apply to many things, but I wanted to focus on one risk: some election administrator or board of elections refusing to certify the results of an election (or, worse, signing some alternative results apart from the results that come to the administrator or board through the ordinary canvassing and recount process).
It’s a topic that crops up time and again in the context of Electoral Count Act reform, as if it’s a novel problem. But this problem actually happens with some regularity (although it is by no means a common occurrence). The solution resides in a simple, longstanding mechanism that state courts routinely enforce: a writ of mandamus.
Continue reading Election subversion and writs of mandamus →
Federal court grants preliminary injunction in case challenging Kansas’s new voter suppression law. “The lawsuit, filed on behalf of VoteAmerica and Voter Participation Center in June, is challenging House Bill 2332, which restricts nonpartisan out-of-state organizations from providing mail-in ballot applications to registered voters and criminalizes the mailing of personalized advance ballot (similar to early voting in other states) applications.”
In a refreshingly short opinion, the 6th Circuit upheld Michigan’s term limits. The court’s primary argument is that the claim is barred by precedent. But it does revisit the merits, rejecting the invitation to apply Anderson-Burdick.
Kowall v. Benson, No. 21-1129 (6th Cir. Nov. 17, 2021)
The U.S. District Court in Maine struck down two ballot access provisions that make it more difficult for minor parties to gain access to Maine’s ballot. Richard Winger offers a clear synopsis of the case, Baines v. Bellows, No. 1:19-cv-00509-LEW (Nov. 17, 2021), and the stakes on Ballot Access News.
Politico has a story on a new federal lawsuit raising a constitutional challenge to the procedures that California uses for its gubernatorial recall. The lawsuit follows upon a NY Times op-ed from last week by Erwin Chemerinsky and Aaron Edlin, which argued that California’s procedures violate the one-person-one-vote doctrine of Reynolds v. Sims (and related precedents) because Gov. Newsom can receive more votes in the first (recall) phase of process than the leading candidate does in the second (replacement) phase of the process. Because only a plurality, and not a majority, is required in the second (replacement) phase, Newsom could fall just short of a majority in the first (recall) phase and then be replaced by a candidate whose plurality is far short of a majority and thus far lower than the number of votes in favor of retaining Newsom. As the op-ed observed, the problem could be solved by permitting Newsom to be one of the candidates eligible in the second (replacement) phase of the process, but given the way the California procedure is designed, if there is a majority of votes to recall Newsom in the first phase of the process, he’s ineligible from being a candidate in the second phase.
The California procedure does seem seriously flawed, to put it mildly. (I confess that I haven’t focused on it specifically before.) In general, I strongly favor majority-winner rather than plurality-winner elections. That point was the main theme of my book Presidential Elections and Majority Rule. It’s also the core of the claim that Congress should adopt a majority-winner requirement for congressional elections, as argued in the forthcoming article Requiring Majority Winners for Congressional Elections: Harnessing Federalism to Combat Extremism.
But it is one thing to say that majority-winner elections are desirable policy, and quite another to say that they are constitutionally mandated by virtue of the one-person-one-vote doctrine. Perhaps the particular California procedure is constitutionally flawed in a way that would not requiring judicial invalidation of all plurality-winner elections–although the idea that a candidate who is defeated in a first phase of a two-part electoral process is ineligible to be on the ballot in the second stage of the process was upheld in another case from California, involving the state’s “sore loser” law: Storer v. Brown, 415 U.S. 724 (1974). Thus, it’s not clear to me that the recall system is unconstitutional just because Newsom can’t compete in the second phase of the process after he’s disqualified in the first phase.
Both phases, considered separately, seem to comply with the basic idea of one-person-one-vote: each voter’s vote counts equally, first for determining whether Newsom is recalled and second for determining the winner of the plurality replacement election (for which Newsom is ineligible by virtue of being recalled). I could imagine the judicial activism of the Warren Court, which propagated the one-person-one-vote doctrine, invalidating the California recall system just because it offended the Court’s views of how democracy should work. But I’m not sure that the current Roberts Court will be as eager to apply the one-person-one-vote jurisprudence as aggressively as its Warren Court authors would.
Still, the case and issue seem interesting and important, and my own views on the specific constitutional question remain tentative as I’m just considering it for the first time. I very much welcome others weighing in on the merits of the pending suit.
I hope to highlight a few academic pieces this weekend. First up, a piece from Wilfred U. Codrington III forthcoming in the NYU Law Review on SSRN. From the opening of the abstract:
Given the major events in the 2020 election cycle, one might be forgiven for missing an important development: the Supreme Court’s repeated invocation of Purcell v. Gonzalez. The number of opinions from this past election cycle referencing the case that, among other things, urges courts to think twice before ruling in election challenges in the leadup to voting was quite astounding. For election law scholars and practitioners alike, 2020 will also be remembered as the cycle during which Purcell all but cemented its place in the pantheon of U.S. election-law principles. The year of “pandemic primaries” and general presidential election might also be called the year of Purcell.
Scholars have criticized the Court following its 2006 Purcell ruling. Despite their astute observations, however, it is unclear whether anyone could have foreseen the full extent of Purcell’s potency—or envisioned the damage it was capable of causing. A sad, even if understandable, attempt to cope with the harsh realities of election administration has become unmoored from its purpose and origins. Simple guidance for judicial decisionmaking on the eve of elections has been thoughtlessly applied—and tragically over-exploited—such that it has become part of the problem. Nothing proves this better than Purcell in the pandemic.
Behind a paywall. A snippet:
“At a time when more than a dozen conservative states have enacted new voting limitations and no evidence of substantial fraud has emerged from the 2020 presidential contest, election law experts say the lower standard could have an enormous impact on a wave of lawsuits that may be filed under the 1965 Voting Rights Act in coming years.”
Raleigh News & Observer on the latest court ruling in the tug-of-war between federal and state officials, as well as the press, over voting records in North Carolina.