Category Archives: court decisions

Preliminary Injunction Against Maine Foreign Influence Initiative Upheld By First Circuit

campaign finance, court decisions, First Amendment theory, political equality, referendum

A panel of the Court of Appeals for the First Circuit affirmed a district court’s preliminary injunction against a Maine ballot initiative that prohibited “foreign governments and ‘foreign government-influenced entit[ies] from contributing or otherwise influencing candidate elections and ballot initiatives.” The district court granted the plaintiffs’ preliminary injunction motion on the ground that a substantial application of the statute was unconstitutional and that plaintiffs were likely to succeed on the merits. In a 47-page opinion, Judge Lara Montecalvo upheld the lower court’s decision.

According to the Court:

The Act states that “[a] foreign government-influenced entity may not make, directly or indirectly, a contribution, expenditure, independent expenditure, electioneering communication or any other donation or disbursement of funds to influence the nomination or election of a candidate or the initiation or approval of a referendum.” Tit. 21-A, § 1064(2).

The district court upheld the Act’s ban on political spending by foreign corporations. But the court concluded that a substantial number of the Act’s application was likely unconstitutional. From the opinion:

In the end, because the district court determined that a substantial number of the Act’s applications likely violated the First Amendment, and the remaining factors favored a preliminary injunction, it enjoined the Act in its entirety. Id. at 55-56. In doing so, the district court expressly noted Maine severability law but declined to sever given the expedited and preliminary nature of the proceeding; instead, the court reserved the issue for later consideration. Id. at 55.

Maine timely appealed, arguing that the district court abused its discretion as to its holdings regarding preemption, the applicable level of scrutiny, the state’s compelling interest, and whether the Act was narrowly tailored. Maine also argued that the Act was not facially invalid, the injunction was overly broad, and the district court abused its discretion in reserving its decision on severability. Since March 21, 2024, the proceedings have been stayed pending appeal.

This case raises a number of interesting issues including the level of scrutiny applicable to political spending by foreign citizens and whether one can distinguish the speech of a domestic subsidiary from the speech of its foreign parent company.

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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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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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“Florida ballot initiative law mostly upheld by federal judge, but key part suspended”

ballot access, court decisions, voter initiatives

Tallahassee Democrat:

A federal judge in Tallahassee mostly denied requests to temporarily block parts of a new Florida law revising rules for citizen-led ballot initiatives from plaintiffs who say it violates the First Amendment right to free political speech.

The law (HB 1205), signed by Gov. Ron DeSantis in May, was promptly challenged by Florida Decides Healthcare, a group looking to expand Medicaid access in Florida. Other groups also involved in statewide petitions joined the lawsuit, including Smart & Safe Florida, which is proposing an recreational marijuana initiative.

On June 4, Chief U.S. District Judge Mark Walker denied motions to block multiple portions of the new law that toughens regulations on ballot initiatives, coming after DeSantis and state officials claimed fraud in last year’s petition gathering. These parts of the law include a requirement for all petitions to be turned in to local elections offices within 10 days and fines for missing voter information and late petition returns.

Walker did grant one motion from the health care group, which challenged a law change in the racketeering statute to include violations of state election code and petition fraud. The judge sided with the plaintiffs over a “vagueness claim” for the new law’s expanded definition for “racketeering activity.”

You can read the decision here.

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Minnesota exempt from NVRA voter roll disclosure, “equal sovereignty” does not require all states to be subject to same disclosure rule, federal court finds

court decisions, Elections Clause

I missed this ruling back in March in PILF v. Simon in the District of Minnesota. It’s on appeal to the Eighth Circuit, and it’s a case to watch. “Equal sovereignty” after Shelby County v. Holder has not had a lot of traction, but one never knows. From the brief summary of the district court’s decision (lightly edited):

PILF sued, alleging that Minnesota’s refusal violates the NVRA, 52 U.S.C. § 20507(i)(1). Congress enacted the NVRA to “increase the number of eligible citizens who register to vote in elections for Federal office,” “enhance[] the participation of eligible citizens as voters in elections for Federal office,” “protect the integrity of the electoral process,” and “ensure that accurate and current voter registration rolls are maintained.” § 20501. Also known as the “Motor Voter Law,” the NVRA “directs states to establish at least three methods of voter registration for federal elections: ‘(1) by application made simultaneously with an application for a motor vehicle driver’s license,’ ‘(2) by mail application’ using a federally prescribed form, and ‘(3) by application in person’ at designated voter registration agencies.” Project Vote/Voting for Am., Inc. v. Long, 682 F.3d 331, 334 (4th Cir. 2012) (quoting § 20503(a)). “It further requires that states conduct a general program to remove ineligible voters from official voter lists without engaging in improper voter removal.” Id. (citing § 20507(a)(3)–(4)). And finally, it “mandates public disclosure of voter registration activities.” Id. (citing § 20507(i)(1)). Covered states must “make available for public inspection and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters.” § 20507(i)(1).

But not all states are covered. Section 4(b)(1) exempts states that have not required voters to register since August 1, 1994. § 20503(b)(1). And Section 4(b)(2) exempts states that have provided election-day registration at the polls since that date. § 20503(b)(2).

As PILF admits, Minnesota is exempt under Section 4(b)(2). But PILF contends that Section 4(b) is unconstitutional because it violates the equal state sovereignty principle and is not congruent and proportional to the harm it seeks to remedy.

. . .

While it is less settled that Congress may establish nonuniform rules under the Elections Clause, “neither the Supreme Court nor any other court has ever applied [the equal sovereignty] principle as a limit on” Congress’s Article I powers. This comes as no surprise because where the Framers thought Congress should treat states equally, they said so. Id. at 312. Unlike some of its Article I counterparts, the Elections Clause does not require uniformity. Quite the opposite—it was designed as “the Framers’ insurance against the possibility that a State would refuse to provide for the election of representatives to the Federal Congress,” Inter Tribal, 570 U.S. at 8, so it
granted Congress the power to “make or alter” state regulations of federal elections, see Smiley v. Holm, 285 U.S. 355, 366–67 (1932) (quoting U.S. Const. art. I, § 4, cl. 1).

The Court therefore finds that Congress’s Elections Clause powers are not limited by the equal sovereignty principle. In doing so, the Court joins a host of courts that have rejected equal sovereignty challenges to Article I legislation.

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Private rights of action and the DOJ’s HAVA complaint against North Carolina

court decisions

Justin nicely summarizes the heart of the DOJ’s HAVA complaint against North Carolina. I just wanted to highlight one other detail: the private right of action.

Back in October, I noted that a federal court in North Carolina held there was no private right of action to enforce this particular provision of HAVA. A lack of a private right of action, however, means that private litigants must rely on public enforcement. That’s exactly what’s happening here. If private plaintiffs can’t bring the claim, the burden is on the Department of Justice to do so–and here, it is doing so.

Now, a similar point could be made with respect to Section 2 of the Voting Rights Act, but that is a matter for another day.

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Breaking: Three-Judge District Court Finds Alabama’s Congressional Redistricting Plan Intentionally Discriminated Against Black Voters **Updated**

court decisions, redistricting, Uncategorized, Voting Rights Act

The court’s 571-page opinion is here. This decision is on remand from the Supreme Court’s 5-4 ruling in Allen v. Milligan.

This is the latest decision in the long-running Section 2 litigation against Alabama’s congressional redistricting plans. Back in 2021, Alabama passed a congressional redistricting plan that created one majority-Black district out of seven districts, even though the State’s voting-age population is 27% Black. Civil rights groups successfully obtained a preliminary injunction, but the Supreme Court stayed that injunction in a shadow docket ruling. Then, in 2023, the Supreme Court shocked the voting rights community by affirming the preliminary injunction and ordering Alabama to create two Black-opportunity districts.

Alabama’s response was defiance. Alabama adopted a 2023 plan in which the second purportedly Black-opportunity district was only 39.9% Black. Once again, the district court enjoined the plan. This time, the Supreme Court allowed the injunction to go into effect without any noted dissents.

This, then, brings us to the present decision. In its massive and meticulous decision, the three-judge district court held that Alabama violated Section 2 of the VRA and that its 2023 plan was enacted with discriminatory intent. On the statutory claim, the district court relied heavily on decades of Section 2 precedent. Put simply, the Supreme Court’s affirmance in Milligan laid the groundwork for this part of the decision.

By contrast, the district court’s constitutional, intentional discrimination holding is far more newsworthy and potentially sets up another visit to the Supreme Court. Here, the district court—which includes two Trump appointed judges—was obviously frustrated by Alabama’s recalcitrance. The district court opined that “[i]t would be remarkable—indeed, unprecedented—for us to hold that a state legislature that purposefully ignored a federal court order acted in good faith.” Thus, Alabama’s 2023 plan dug itself deeper into a hole. That is because the district court will now entertain the Milligan plaintiffs’ motion to bail-in Alabama into the VRA’s preclearance regime under Section 3(c). If granted, Alabama would have to seek federal pre-approval for any congressional redistricting plan through the 2030 redistricting cycle.

As I previously argued on this blog in favor of bailing-in Alabama: “what is to stop Alabama from redrawing its congressional map for the 2026, 2028 or 2030 elections? Unfortunately, not much. Alabama’s Constitution prohibits mid-decade redistricting of state legislative districts, but it’s silent about congressional maps. There’s nothing in the U.S. Constitution barring mid-decade redistricting.”

For its part, the district court acknowledged that Alabama remained free to engage in mid-decade redistricting. And more importantly for future proceedings, the district court telegraphed that it is very open to a bail-in remedy in this case. The key paragraph reads:

“We emphasize that we remain deeply disturbed that the State purposefully enacted a map that the State readily admits does not provide the required remedy for the vote dilution that we clearly found. We also emphasize our concern that the State’s assertion in response to any injunction we may issue, it is free to repeat its checkmate move. We are troubled by the State’s view that even if we enter judgment for the Plaintiffs after a full trial, the State remains free to make the same checkmate move again—and again, and again, and again.”

Thus, the district court recognizes that Alabama is engaging in gamesmanship—the very behavior that preclearance was designed to eradicate. The Jim Crow-era game of whack-a-mole is alive and well in the heart of Dixie.

This is an ideal case for a bail-in to go to the Supreme Court. Recall that the Supreme Court’s decision in Shelby County invalidated only the VRA’s coverage formula, not preclearance as a solution. And it said nothing about Section 3(c)’s bail-in mechanism for imposing preclearance. To be sure, we know from Shelby County that Justice Thomas would invalidate preclearance, and his conservative colleagues might share that view. But Alabama’s defiance of the first Milligan decision received no public support from any of the four conservative Justices who previously dissented. And at a time when the Trump Administration’s potential defiance of judicial rulings looms over the Supreme Court, Alabama’s behavior in this litigation may well prove counter-productive.

One final point. Section 3(c) allows a State to seek preclearance from either the local district court or the Attorney General. Given the recent gutting of DOJ’s Voting Section, one must be skeptical that the Trump DOJ would enforce Section 3(c)’s retrogression protections in good faith. Nevertheless, preclearance is the appropriate remedy in this case. And it is the best fact pattern since Shelby County for getting the Supreme Court’s imprimatur on Section 3(c)’s constitutionality, which matters not only for this specific provision but also for future congressional efforts to revise the VRA.

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6th Circuit finds Michigan engaged in “reasonable efforts” to remove dead voters from voter rolls

court decisions, election administration

Unanimous panel decision in Public Interest Law Foundations v. Benson. No standing for plaintiffs for some of the claims, and I’m a bit surprised the panel made no effort to examine whether there’s a private right of action to enforce a federal law that speaks so clearly in terms of a responsibility placed upon the state. But from the heart of the opinion:

Third, the district court analyzed the mechanics of Michigan’s program. The court noted that Michigan undertakes a number of steps to ensure a well-functioning program, including: (1) comparing Social Security Administration death reports on a weekly basis to the CARS list; (2) reconciling the QVF with the CARS driver file on a quarterly basis; and (3) manually reviewing the bimonthly ERIC reports, which are created by comparing the QVF to the Social Security Death Index. Under this program, the district court noted, “nearly 8,000 of the ‘potentially deceased’ voters identified by PILF in its October 5, 2020 list had already been removed” by September 2023, and 5,766 had been removed before PILF filed its action in November 2021. Id. at Page ID #3658. While PILF argued that it is not enough to merely schedule registrant removal under these procedures, and that the entire list of 27,000 deceased registrants “should be fixed now,” Pl.’s Resp. Summ. J., R. 168, Page ID #3413, the district court disagreed. The court found that the NVRA “does not require states to immediately remove every voter who may have become ineligible,” and it was instead sufficient that the “record demonstrate[d] that deceased voters are removed from Michigan’s voter rolls on a regular and ongoing basis.” Summ. J. Order, R. 180, Page ID #3658.

These factors ultimately led the district court to the conclusion that Michigan’s program fell squarely within the NVRA’s reasonable effort language. That determination was correct.

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The price of Pullman abstention in election litigation cases

court decisions

On February 4, a unanimous per curiam panel of the Fourth Circuit concluded the federal courts should abstain from involvement in the Griffin v. Riggs election dispute. The court cited Pullman abstention:

Pullman abstention may be applied when “there is (1) an unclear issue of state law presented for decision (2) the resolution of which may moot or present in a different posture the federal constitutional issue such that the state law issue is potentially dispositive.” Wise v. Circosta, 978 F.3d 93, 101 (4th Cir. 2020) (en banc) (quoting Educ. Servs., Inc. v. Md. State Bd. for Higher Educ., 710 F.2d 170, 174 (4th Cir. 1983) (internal quotation marks omitted)). In other words, federal courts have discretion to refrain from resolving a case pending in federal court that involves state law claims and potential federal constitutional issues if the resolution of those unsettled questions of state law could obviate the need to address the federal issues. However, under Pullman abstention, the federal court retains jurisdiction of the federal constitutional claims while the state court issues are addressed in state court. . . .

Applying the requirements of Pullman abstention, the state law issues involved in the case removed from the Superior Court of Wake County are unsettled. The parties advance diametrically opposed interpretations of the North Carolina statutes that are the subject of Griffin’s challenges. And neither provide authority from North Carolina appellate courts making the resolution of that conflict about those state law issues abundantly clear. What’s more, the resolution of those issues of North Carolina law could avoid the need to address the federal constitutional and other federal issues the Board raised in removing the case. For example, if the Board prevails in Wake County on the state law issues, the resolution of the federal claims may not be necessary. Thus, this case satisfies the elements of Pullman abstention. Accordingly, we affirm the district court’s decision to abstain from exercising federal jurisdiction.

The Supreme Court’s decision in Railroad Commission of Texas v. Pullman (1941) explains the reasons why a court might abstain:

But no matter how seasoned the judgment of the district court may be, it cannot escape being a forecast rather than a determination. The last word on the meaning of Article 6445 of the Texas Civil Statutes, and therefore the last word on the statutory authority of the Railroad Commission in this case, belongs neither to us nor to the district court but to the supreme court of Texas. In this situation a federal court of equity is asked to decide an issue by making a tentative answer which may be displaced tomorrow by a state adjudication. The reign of law is hardly promoted if an unnecessary ruling of a federal court is thus supplanted by a controlling decision of a state court. The resources of equity are equal to an adjustment that will avoid the waste of a tentative decision as well as the friction of a premature constitutional adjudication.

In this case, however, the “friction” worried about in Pullman cuts the other way.

Legitimate federal claims were raised in a federal forum. The federal court held the case. The federal court hoped the state court would avoid needless friction. But instead, the state court created the friction by issuing a decision that was ultimately inconsistent with the federal court’s holding with respect to federal law. And the federal court was placed in the unenviable position of ordering a state official to certify a state election, after a state supreme court had reached a contrary conclusion.

It’s a reason the 11th Circuit in Siegel v. LePore (2000) found Pullman abstention inappropriate in the parallel litigation to Bush v. Gore:

Plaintiffs claim that Florida’s manual recount provision is unconstitutional because the statute does not provide sufficient standards to guide the discretion of county canvassing boards in granting a request for a manual recount or in conducting such a recount. There has been no suggestion by Defendants that the statute is appropriately subject to a more limited construction than the statute itself indicates.

Our conclusion that abstention is inappropriate is strengthened by the fact that Plaintiffs allege a constitutional violation of their voting rights. In considering abstention, we must take into account the nature of the controversy and the importance of the right allegedly impaired. . . . Our cases have held that voting rights cases are particularly inappropriate for abstention.

Hindsight is 20/20, of course, but it’s worth reflecting how the aspirations of abstention do not always pan out in the federal courts.

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Breaking: DDC enjoins Part of Trump Elections Executive Order **Updated**

court decisions, election administration, Election Assistance Commission, election subversion risk

The 120-page opinion is here. The order is here.

The preliminary injunction in LULAC v. Executive Office of the President was issued by Judge Kollar-Kotelly of the U.S. District Court for the District of Columbia (DDC). The proceedings involve three consolidated cases: two brought by civil rights groups and one brought by the Democratic Party. The parties sought preliminary injunctions against five provisions of the EO. The DDC enjoined only two provisions: Sections 2(a) and 2(d).

Enjoined Provisions

Section 2(a)

Section 2(a) mandates that the Election Assistance Commission (EAC) revise the Federal Form to require documentary proof of citizenship. Both the civil rights groups and the Democratic Party moved to enjoin Section 2(a). The bulk of the Trump Administration’s defense was that the challenge was not yet ripe. However, the DDC pointed to a letter—which DOJ counsel at oral argument claimed “no knowledge” of—sent by the EAC to the chief election officials in the States. As that is a required part of the EAC’s process, the DDC found that the case was ripe.

On whether the plaintiffs are likely to succeed on the merits, the DDC concluded that States have the power to set voting qualifications—subject to the anti-discrimination voting rights amendments—and Congress has the power to set registration requirements through the Elections Clause. As the DDC emphasized, the President is not granted these powers. Moreover, Congress in the NVRA and HAVA gave the EAC power to alter the Federal Form. Intriguingly, the DDC invoked the Major Questions Doctrine in rejecting the Trump Administration’s position. I suspect that we are going to see this move a lot in the coming months, and many lawyers/academics who were skeptical of that doctrine will find it suddenly useful. It will be interesting to see whether the Supreme Court is willing to apply the Major Questions Doctrine as assiduously against the Trump Administration as it did the Biden Administration.

Because the President is not given the exclusive and conclusive power to trump Congress’s judgment on voter registration rules, the plaintiffs were likely to succeed in their claim against Section 2(a).

Section 2(d)

Section 2(d) directs federal voter registration agencies to “assess” the citizenship of individuals who receive public assistance before providing a voter registration form. Only the Democratic Party moved to enjoin this provision.

Here, the DDC relied on the NVRA’s plain language, which provides that federal agencies “shall” provide the Federal Form to each voter who receives their services, unless the voter declines in writing. In the DDC’s view, this mandatory language does not leave room for citizenship checks prior to handing out a voter registration form.

Provisions that were not enjoined

The Democratic Party challenged three other provisions, but the DDC declined to enjoin them.

Section 2(b)

Section 2(b) directs several federal agencies to identify “unqualified” voters using citizenship data. On this front, the DDC concluded that the present record did not disclose whether the Privacy Act would be violated by the Administration’s actions and, relatedly, that the challenge was prudentially unripe.

Section 7(a)

Section 7(a) directs DOJ to “enforce” the Election Day statutes against States that accept ballots postmarked on or before Election Day but arrive after Election Day. Put simply, the Trump Administration wants to nationalize the Fifth Circuit’s decision in Wetzel.

Here, the DDC concluded that it was unclear what steps DOJ will take to “enforce” the Election Day statutes, and not all of those steps are imminent unlawful action. Moreover, the DDC observed that the States that will be sued are better parties to raise this claim than the Democratic Party.

Section 7(b)

Section 7(b) directs the EAC to condition federal election funding on their compliance with the Administration’s view of the Election Day statute, i.e., Section 7(a). The DDC found that the Democratic Party lacked Article III standing to challenge this provision, as States are the recipients of the funding.

Concluding Thoughts

The DDC also asked whether the Purcell principle precludes the preliminary injunction. The DDC said no, because the status quo is preserved and Purcell is about avoiding pre-election changes. But here, I want to highlight that Purcell is a doctrine applied by federal courts against intervening in State election rules. Here, we have a Purcell analysis against actions taken by the President. Even though the DDC did not rely on Purcell, it is dubious whether Purcell even applies here.

In addition, there are two other pending challenges to the Trump Elections EO. One filed by a coalition of Blue States in the District of Massachusetts, and another brought by Washington and Oregon in the Western District of Washington. These cases will not have the standing issue that plagued the Democratic Party’s efforts to obtain an injunction on the federal funding provision.

Of course, the DDC’s injunction will almost certainly be appealed to the DC Circuit and eventually to the Supreme Court. So stay tuned for shadow docket updates.

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“Court strikes down NC law giving election board control to state auditor”

court decisions, election administration

WCNC:

A three-judge panel in North Carolina ruled Wednesday that a law transferring control of the State Board of Elections from the governor to the state auditor is unconstitutional.

In a 2-1 decision, the Wake County Superior Court panel granted Gov. Josh Stein’s motion for summary judgment, declaring that the Republican-led General Assembly’s recent changes to election board appointments violate the state constitution’s separation of powers.

The lawsuit challenged Senate Bill 382, which removed the governor’s power to appoint members to the State Board of Elections and county election boards, giving that authority instead to State Auditor Dave Boliek. In February, Steined filed a separate suit against House Speaker Destin Hall and Senate leader Phil Berger, accusing the Republicans of “partisan power grabs,” he says override the will of North Carolina voters. 

“Because the duty to faithfully execute the laws has been exclusively assigned to the Governor, Senate Bill 382 cannot reassign that duty to the Auditor without violating the Constitution,” the majority wrote in its ruling.

The court’s decision can be found here.

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