Three opinions from three judges in Poelle v. Florida Secretary of State. From the majority opinion by Judge Rosenbaum:

Michael J. Polelle is a voter in Sarasota County, Florida, who has not registered with a political party. As a result, Florida’s closed system of primary elections prevents him from participating in any political party’s primary.

At the same time, though, the Republican primary has determined the outcome of most Sarasota County elections since the 1960s. So Polelle filed suit claiming Florida’s law puts him to an unconstitutional “Hobson’s choice,” requiring that he either forfeit his right to a meaningful vote or forfeit his right not to associate with political groups and messages. The district court dismissed Polelle’s lawsuit because it concluded he has not suffered an injury that gives him standing to sue in the federal courts and, alternatively, because he failed to state a claim for relief on the merits.

After careful consideration, and with the benefit of oral argument, we agree with the district court’s decision to dismiss Polelle’s case. But we do so after reaching the merits. Polelle has adequately alleged that he suffered an injury in fact, traceable to Defendant-Appellee Sarasota County Supervisor of Elections Ron Turner and redressable by the federal courts. As Polelle points out, he has both the right to a meaningful vote and the right not to associate with certain political groups and messages. And Florida’s closed primary burdens those rights.

Back in October, I blogged about a Fourth Circuit decision in RNC v. N.C. St. Bd. of Elections. At the time, I briefly excerpted the “wonky” decision. But listening to oral argument in Griffin v. N.C. St. Bd. of Elections, I was struck by how broad the decision might reach (at least in that circuit).

RNC approved an effort by the Board of Elections to remove a case from state court to federal court under Section 1443. Removal typically happens when a plaintiff files a federal claim (e.g., Section 1331) or there’s some other pre-existing basis of a claim that could have been brought in federal court in the first place. But there are narrow carve outs for special, additional classes of removal under federal law. One of those, recently extensively litigated in some criminal cases involving Donald Trump and the 2020 election, is Section 1442. Another is Section 1443:

Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;

(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.

The provision was enacted after the Civil War to allow for the removal to federal court of cases where Congress was worried about the abridgement of civil rights. It has had relatively little use, in part because “equal civil rights” and “equal rights” has been construed fairly narrowly.

In RNC, the Fourth Circuit panel concluded that the NCSBE could remove under Section 1443:

Here, the State Board refused to perform Plaintiffs’ requested act—striking certain registered voters from North Carolina’s voter rolls—on the ground that doing so within 90 days of a federal election would violate provisions of Title I of the Civil Rights Act of 1964 . . . and the National Voter Registration Act of 1993 (“NVRA”) . . . . These are “law[s] providing for equal rights” within the meaning of Section 1443.

I had focused more on the section 1331 issues and not the 1443 issues. But as I listened to oral argument in Griffin, it struck me that this interpretation has a potentially broad scope.

It is not unusual for a state election official, when asked to construe a state statute in a particular way, to point to a federal statute and argue that something like the Civil Rights Act, the NVRA, or HAVA and argue that the state is complying with federal law. Incompatible state law must give away. Typically, this is construed as a question of state law, and the federal law is an affirmative defense raised, one the state court can suitably consider (and could not be removed to federal court under Section 1331 jurisdiction and the Section 1441 removal statute).

In Section 1443 cases, however, the election official, pointing to a federal law and acting “under color of” that law providing for “equal rights,” can move the case into federal court. And if you point to the Civil Rights Act or the NVRA in the Fourth Circuit (i.e., Maryland, Virginia, West Virginia, North Carolina, and South Carolina), you can now remove to federal court.

Now, when I say it is “not unusual,” I don’t have empirical evidence for how often this happens. Sometimes, in state court, you could avoid the federal conflict by construing the state statute more narrowly, avoiding any need to point to a federal statute in conflict in the first place.

But while there is an “abstention” issue in this case, the reason abstention arose was because this question feels very state law-heavy, and the federal law issues are raised at the back end by federal officials. Granted, we like federal courts to resolve federal legal issues. But, federal courts also like to defer to state courts on matters of state law, especially matters that could avoid the federal question. (That’s Pullman abstention–but the federal district court, unusually, in my view, relied on Burford abstention.) (Update: one additional note. It’s also unusual because the NVRA applies only to federal elections. This is a state election, but state law points to the NVRA under the state’s unified system of voter registration. Another wrinkle in the relationship of federal law to this case.)

I don’t know what the Fourth Circuit will do with this case. But I’m now watching the federal docket more closely for more removal claims under Section 1443 and if we might see an uptick of state election officials trying to get election disputes into the federal courts.

On the heels of the proposed rules in Colorado and the rules in Pennsylvania, here are new rules in Arizona to expedite election disputes. These rules continue to show that state courts are taking the deadlines of the Electoral Count Reform Act, and their own legislature’s interest in timely certification of election disputes, seriously.

The court was mostly unanimous but divided on a congressional candidate’s standing–including an interesting discussion that occasionally comes up in election law about what kind of risks or likelihoods courts should be thinking about when resolving disputes before an election as opposed to after. Just a few excerpts from a much longer discussion in Bost v. Illinois State Board of Elections:

In Illinois, voters can cast their ballots by mail in any election. And election officials can receive and count these ballots for up to two weeks after the date of the election so long as the ballots are postmarked or certified by that date. Plaintiffs, comprised of Illinois voters and political candidates, challenged this procedure, arguing that it impermissibly expands the time in which residents can vote. The district court dismissed their claims, ruling that Plaintiffs lacked standing to sue. The court also rejected the claims on the merits for good measure. Because Plaintiffs have not alleged an adequate injury, we agree that they lack standing to bring this suit and affirm the district court’s dismissal of the case on jurisdictional grounds.

. . .

. . . [P]laintiffs cannot establish the injury in fact necessary for Article III standing. Plaintiffs say that the challenged policy imposed tangible monetary harms by forcing them to use resources to contest ballots that arrived after Election Day. For example, Congressman Bost attests that he must continue to fund his campaign for two additional weeks after Election Day to contest any objectionable ballots. Furthermore, he needs to send poll watchers to each of the thirty-four counties in his district to monitor the counting of the votes after Election Day to ensure that any discrepancies are cured. In Plaintiffs’ view, the money and organization required to facilitate this operation is a tangible harm sufficient to confer standing.

We disagree. Recall that, to confer Article III standing, a plaintiff’s injury must not only be “concrete and particularized” but also “actual or imminent.” Lujan, 504 U.S. at 560. The latter requirement for standing “ensure[s] that the alleged injury is not too speculative for Article III purposes.” Id. at 564 n.2. Thus, when a claimant premises standing on a future harm, the harm must be more than just “possible”—the allegedly threatened injury must be “certainly impending.” Whitmore, 495 U.S. at 158.

. . .

In much the same way, the Illinois ballot receipt procedure does not impose a “certainly impending” injury on Plaintiffs. Rather, it was Plaintiffs’ choice to expend resources to avoid a hypothetical future harm—an election defeat. But whether the counting of ballots received after Election Day would cause them to lose the election is speculative at best. Indeed, Congressman Bost, for example, won the last election with seventy-five percent of the vote. . . . And Plaintiffs cannot manufacture standing by choosing to spend money to mitigate such conjectural risks.

And from the dissent:

In my view, the costs Congressman Bost will incur to monitor ballots after Election Day gives him “a personal stake in th[is] dispute” and a basis to proceed in federal court. FDA v.
Alliance for Hippocratic Medicine, 602 U.S. 367, 379 (2024) (internal quotation marks omitted). Campaign expenses readily qualify as both “concrete” and “particularized”—the first two prongs of Article III standing. See TransUnion LLC v. Ramirez, 594 U.S. 413, 424–25 (2021) (emphasizing that tangible monetary harms are quintessential “concrete injuries”); Mack v. Resurgent Cap. Servs., L.P., 70 F.4th 395, 406 (7th Cir. 2023) (“[M]oney damages are almost always found to be concrete harm.”); see also Trump v. Wisconsin Elections Comm’n, 983 F.3d 919, 924 (7th Cir. 2020) (“An inaccurate vote tally is a concrete and particularized injury to candidates.” (quoting Carson v. Simon, 978 F.3d 1051, 1058 (8th Cir. 2020))).

The monitoring costs are also “imminent.” Congressman Bost has declared, in no uncertain terms, that he will send poll watchers to monitor vote processing and counting for two weeks after Election Day this November. As night follows day, he will incur campaign expenses to do so. Political campaigns cost money, including in the form of staffing; none of this is free. The guaranteed prospect of higher campaign costs is more than just a “possible future injury.” Clapper v. Amnesty Intern. USA, 568 U.S. 398, 409 (2013) (cleaned up). Such costs are “certainly impending.”

Congressman Bost’s increased monitoring expenses are also “fairly traceable” to Illinois’s ballot-receipt procedure and “redressable by a favorable ruling.” . . .

Resisting this conclusion, the Panel majority describes Bost’s costs as somehow entirely self-inflicted. Nothing in Illinois law, the Panel emphasizes, forces Bost to monitor the ballot count after Election Day. According to the Panel, Bost’s protracted poll watching is not a strategic necessity but instead an overreaction to a hypothetical possibility that is “speculative at best”: electoral defeat due to ballots received after Election Day that were improperly counted. Op. at 11. Such conjectural risks, in the majority’s view, are not sufficiently “imminent” to confer standing. See Clapper, 568 U.S. at 409. Nor, the Panel reasons, are the expected costs of precautionary measures taken to avoid those risks. See Op. at 11–12.

I disagree. For starters, the Panel goes too far in saying that the risk of ballots swaying the upcoming District 12 election after Election Day is only speculative. Nothing in Congressman Bost’s complaint or sworn declaration supports that view. Perhaps realizing the shortfall in its reasoning, the majority opinion resorts to taking judicial notice of the fact that Congressman Bost won reelection last cycle by a vast margin. See Op. 11 & n.3. But past is not prologue for political candidates, including an incumbent like Congressman Bost. In no way is any outcome guaranteed in November. . . .