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.”
Category Archives: court decisions
Sixth Circuit Court of Appeals Rejects New Challenge to Michigan’s Legislative Term Limits
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.
Maine’s Minor Parties Secure Victory
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.
Newsom recall lawsuit
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.
“Purcell in Pandemic”
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.
USA Today analyzes potential impact of Brnovich
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.”
Wrangling over info in NC continues
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.
New Voting Laws Face Court Challenges Across the U.S.
WSJ reports on the recent explosion of election-related litigation but also the challenges lawsuits have in light of new rulings like Brnovich.
The list of COVID-19 election cases hits 325
Justin here. I’m tracking the litigation over election issues related to COVID-19 … and the list of cases just hit 325. (The Stanford-MIT Healthy Elections Project also has a really useful sortable database of these cases, with more info. And Josh Douglas is separately tracking just the federal appeals, to see how they shake out.)
A reminder: the number in each state isn’t necessarily a good indication of the contentiousness of the issues: any individual case may be a good case or a shoddy one, or a “big” case or a “small” one — and some can be both at the same time. (The Eighth Circuit’s ruling Rick rightly called “outrageous” is probably a small case with respect to the number of ballots it will ultimately impact, and a giant case when it comes to the legal questions at issue). And some of these cases are essentially repeat claims of others. But overall, that’s still an awful lot of legal paper.
There’s an upside to some of this: with litigation brought in March, April, or May, as the pandemic reached the primaries, we got resolution of some pretty contentious issues in June, July, August, September. and October. That’s less to fight about in November. Which is good for everyone. There are some new cases, mostly asking for increasingly localized relief, and a few bomb-throwers that will be tossed out of court. Most of the cases are now done.
These are just the cases I know of — I’m sure I’m missing some. State court cases are particularly difficult to track. I think that five states have still been spared so far (Kansas, Nebraska, Washington, West Virginia, and Wyoming) … but if you know of a COVID-related election case I’m missing here, please let me know.
“Judge: Minnesota 2nd District election to take place Nov. 3”
A federal judge ruled Friday that the election for Minnesota’s 2nd Congressional District should proceed in November as originally scheduled, despite the recent death of a third-party candidate.
Democratic U.S. Rep. Angie Craig asked the judge to require that the election be held in November instead of being delayed until February — after the Sept. 21 death of Legal Marijuana Now Party candidate Adam Weeks triggered a state law that led to the postponement.
The court’s order is here.
“The Trump campaign can’t have poll watchers at Philly satellite election offices, judge says”
A Philadelphia judge ruled Friday that President Donald Trump’s campaign does not have the right for poll watchers to observe activities inside the city’s new satellite election offices.
The campaign sued the city last week, arguing its representatives should be permitted inside the offices, where voters can request, complete, and submit mail ballots.
Common Pleas Judge Gary S. Glazer issued a ruling Friday denying the petition.
The lawsuit had echoed false claims Trump himself made during last month’s presidential debate, when he said “bad things happen in Philadelphia.” The campaign argued it had a right to observe the offices because they were marketed as early voting locations.
A lawyer for the city argued during a hearing this week that the offices are not official voting locations like polling places, and that campaigns have a right to observe the counting of mail ballots beginning on Election Day.
You can find the opinion at this link.
Federal District Court, While Excoriating Florida for Its Incompetence, Won’t Extend Registration Deadline After Last-Day System Crash
The court found that the burden on the state in keeping the system going outweighed the risk of disenfranchisement. The court’s order concludes:
The state could have extended the registration deadline until midnight on October 6th, which would have given these potential voters a fighting chance. Instead, the state chose to notify the public during a normal workday and gave them only seven hours to somehow become apprised of their rights and register, all while also participating in their normal workday, school, family, and caregiving responsibilities. One would expect the state to make it easier for its citizens to vote.
Unfortunately for these potential voters, this Court cannot remedy what the state broke under these circumstances. This Court must consider the consequencesof extending voter registration deadline. Having done so, the motion for preliminary injunction, ECF No. 3, is DENIED.
In so ruling, this Court notes that every man who has stepped foot on the Moon launched from the Kennedy Space Center, in Florida. Yet, Florida has failed to figure out how to run an election properly—a task simpler than rocket science.
Eleventh Circuit, on 2-1 Vote, Reverses District Court Order That Would Have Extended Time for Receipt of Absentee Ballots
You can find a majority, concurring, and dissenting opinion here. The judges broke along the party lines of the president that appointed them.
“Federal judge rules against voting-rights activists’ challenge of Ohio signature-matching rules on absentee ballot applications”
A federal judge has ruled Ohio’s system of verifying signatures on absentee ballot applications is not burdensome enough to be struck down as illegal, rejecting arguments made by a coalition of voting-rights groups that sued the state.
U.S. District Judge Michael Watson wrote that while Ohio’s signature-matching requirements impose a “moderate” burden on voters, they have other options to cast a ballot if their vote is improperly rejected, including casting a provisional ballot on Election Day. He agreed with Ohio Secretary of State Frank LaRose that the state has a legitimate interest in promoting an orderly and secure election, justifying that burden.
“Additionally, the Court believes that changing the rules regarding verification of signatures on ballots at this time would be particularly damaging,” Watson, a President George W. Bush appointee, wrote in an order issued Sunday evening that rejected the voting-rights activists’ request to issue what’s called a preliminary injunction. “Some public officials have unfortunately regularly cast doubt on the security and legitimacy of voting by mail. A federal court enjoining part of the State’s procedure for maintaining the security of mail-in voting in the weeks leading up to the election could further undermine public confidence in elections.”
The list of COVID-19 election cases hits 250
Justin here. I’m tracking the litigation over election issues related to COVID-19 … and the list of cases just hit 250. (The Stanford-MIT Healthy Elections Project also has a really useful sortable database of these cases, with more info.)
A reminder: the number in each state isn’t necessarily a good indication of the contentiousness of the issues: any individual case may be “big” or “small” — or a good case or a shoddy one — and some of these cases are essentially repeat claims of others. But overall, that’s still an awful lot of legal paper.
There’s an upside to some of this: with litigation brought in March, April, or May, as the pandemic reached the primaries, we got resolution of some pretty contentious issues in June, July, August, and now September. Most of the cases are now done.
These are just the cases I know of — I’m sure I’m missing some. State court cases are particularly difficult to track. I think that five states have been spared so far (Kansas, Nebraska, Washington, West Virginia, and Wyoming) … but if you know of a COVID-related election case I’m missing here, please let me know.