Category Archives: court decisions

ProPublica Report on Judicial Recusal

Released today:

A ProPublica analysis found a lack of transparency regarding conflicts plagues federal and state courts where loose rules, inconsistent enforcement and creative interpretations of guidelines routinely allow judges to withhold potential conflicts from the parties before them.

In an examination of more than 1,200 federal judges and state supreme court justices, ProPublica, in partnership with student journalists at Boston University, found dozens of judges, including both Republican and Democratic appointees, who chose not to recuse when facing potential appearances of impropriety involving familial financial connections. Ethics experts say that the judges’ interpretation of the rules may often lie within the letter of the law, but at the expense of its spirit.

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“The Basis for Election Exceptionalism in Justiciability and Related Doctrines: ‘Constitutional Compensation’ in Light of Purcell”

Vik Amar and Evan Caminker have posted this draft on SSRN (forthcoming, University of Illinois L. Rev.). Here is the abstract:

Pursuant to the so-called Purcell doctrine, lower federal courts (and perhaps the U.S. Supreme Court itself) are supposed to refrain from issuing remedies that would alter the rules for election administration in the runup to Election Day.  Whatever may be invoked to explain or support the instincts behind the Purcell rule (e.g., concerns about voter confusion, candidate and campaign expectations, smooth operation of election logistics, etc.), one tremendously problematic entailment of Purcell is that elections are held (and candidates are elected and policies are determined) under (often substantial) legal clouds.  Even if those clouds can be removed for future election cycles (an outcome itself not always easy under current justiciability rules), the fact remains that, because of Purcell, binding elections (with momentous consequences) take place even when serious doubt exists about the legality of the contests under federal statutes and the Constitution.  Because of these deleterious consequences (and even assuming the Purcell doctrine makes some sense or in any event is entrenched at the Court), we seek, making use of “compensation” theory, to identify ways that justiciability doctrines (e.g., mootness, first- and third-party standing, ripeness, vagueness and overbreadth) and related constraints on access to federal fora can and should be overtly modified to offset Purcell’s undesirable effects, and facilitate earlier and easier federal adjudication and remediation in election-related challenges.  It turns out the foundations of such an election exceptionalism as regards access to federal courts has been partially (if inconsistently and haphazardly) laid by the Supreme Court, but the Court has never meaningfully tried to tie the various foundation beams together in a structurally sound and coherent way, much less describe and explain what the doctrinal edifice should look like and why.  That is what we seek to do in this Article.

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Could the Court’s unanimous decision in FDA v. AHM upend some federal election litigation?

In order to sue in federal court, a plaintiff must have “standing,” an actual or imminent concrete and particularized injury in fact caused by the defendant and redressable by a federal court. Many lawsuits are thrown out for lack of standing. In particular, and of particular relevance in election cases, many lawsuits are thrown out because the plaintiffs allege a “generalized grievance,” an injury shared in common with the public and not “particularized.” In federal court, an increasing number of plaintiffs have been non-profit organizations alleging a distinct harm to them, and they have survived the standing inquiry.

But the Supreme Court’s decision today in Food and Drug Administration v. Alliance for Hippocratic Medicine might have just disrupted this litigation path in election cases.

Continue reading Could the Court’s unanimous decision in FDA v. AHM upend some federal election litigation?
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Clopton and Shaw on litigation and electoral time

New draft from Zachary Clopton (Northwestern) and Kate Shaw (Cardozo en route to Penn), forthcoming in the Wisconsin Law Review, is here, entitled Public Law Litigation and Electoral Time. Here’s the abstract:

Public law litigation is often politics by other means. Yet scholars and practitioners have failed to appreciate how public law litigation intersects with an important aspect of politics — electoral time. This Essay identifies three temporal dimensions of public law litigation. First, the electoral time of government litigants — measured by the fixed terms of state and federal executive officials — may affect their conduct in litigation, such as when they engage in midnight litigation in the run-up to and aftermath of their election. Second, the electoral time of state courts — measured by the fixed terms of state judges — creates openings for strategic behavior among litigants (both public and private), such as when they engage in temporal forum shopping between the court before and after judicial elections. Third, state judges may pursue their preferences in light of their own electoral time, such as when they choose to pursue midnight adjudication. This Essay suggests reasons to be concerned with these time-motivated behaviors, especially when they seek to entrench policies and to counteract the results of democratic elections. How courts, policymakers, and the public will respond to these concerns, only time will tell.

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“Judge Pauses Trump Election Case Amid Appeal of Immunity Issue”

Alan Feuer, New York Times:

A federal judge on Wednesday put on hold all of the proceedings in former President Donald J. Trump’s trial on charges of plotting to overturn the 2020 election as an appeals court in Washington agreed to move quickly in considering Mr. Trump’s claim that he is immune from prosecution in the case.

The decision by the appeals court to expedite its hearing of the immunity issue capped an all-day flurry of back-and-forth moves by Mr. Trump’s legal team and prosecutors working for the special counsel, Jack Smith, over the critical question of when the election trial will actually be held. It is now set to begin in Washington in March.

Under the aggressive schedule laid out by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, all written filings in the immunity case would have to be submitted by Jan. 2. The court could the hear oral arguments and render a decision.

On Wednesday morning, Mr. Trump’s lawyers had asked the court to avoid setting an expedited schedule, saying that a “reckless rush to judgment” would “irreparably undermine public confidence in the judicial system.”

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“Michael Cohen’s lawyer in hot water after citing court cases that don’t exist”


Michael Cohen’s troubles just keep coming.

In the yearslong legal saga over his connection to the hush money payments from Donald Trump to adult film actress Stormy Daniels, Cohen’s lawyer filed a motion to end his supervised release early in a filing at the end of November.

In it, Cohen’s lawyer, David M. Schwartz, cites three District Court decisions as a rationale for the move.

The problem? Those cases aren’t real.

“As far as the Court can tell, none of these cases exist,” U.S. District Judge Jesse Furman wrote in a Tuesday order, which asks Schwartz to provide evidence the cases exist by next Tuesday or face sanctions.

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“Rupert Murdoch Can Be Forced to Testify in Defamation Trial, Judge Says”

In addition to Fox’s star on-screen hosts, the judge in the Dominion defamation case has said that “if Dominion issued a subpoena for Rupert Murdoch, the chairman of Fox Corp, and other corporate officers, he ‘would not quash it’ and ‘would compel them to come,’ because they were directors of a Delaware corporation.”

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Federal courts note circuit split on whether the “materiality” provision of the Civil Rights Act of 1964 includes a right privately enforceable under Section 1983

The “materiality” provision of the Civil Rights Act of 1964 is as follows:

No person acting under color of law shall . . . deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election . . . .

This provision has been at issue in recent cases like Ritter v. Migliori before the United States Supreme Court, and surely in the near future the Court will confront the question about what kinds of provisions are “material” (and what things are an “act requisite to voting”), especially when it comes to signature and other requirements for absentee ballots.

But another question has arisen in federal courts: whether private litigants may sue in federal court to enforce this provision, or whether only the Attorney General of the United States initiate such claims. From the denial of the motion to dismiss earlier this month in v. Georgia State Election Board, one of the cases litigating SB202 in Georgia:

Defendants argue that the Materiality Provision does not create a private right of action. The Court recognizes that courts in other circuits are divided as to whether the Materiality Provision can be enforced via a private right of action. Compare Migliori v. Cohen, 36 F.4th 153 (3d Cir. 2022) (holding that private plaintiffs may enforce the Materiality Provision via 42 U.S.C. § 1983), with McKay v. Thompson, 226 F.3d 752, 756 (6th Cir. 2000) (holding otherwise). Significantly, the Eleventh Circuit has already directly addressed this issue in Schwier v. Cox and concluded that the Materiality Provision can be enforced by a private right of action under § 1983. 340 F.3d 1284, 1297 (11th Cir. 2003). Given this binding precedent, the Court finds that the Materiality Provision can be enforced by a private right of action. To the extent that Defendants seek dismissal on this ground, the motion is DENIED.

The Fifth Circuit last year acknowledged the split but concluded it did not need to resolve the issue at that time. In oral argument earlier this month, the issue did not attract much attention, but briefing from the United States came out in favor of a private right of action. It described the Sixth Circuit’s holding in this way: “The only other circuit to address this issue never discussed Section 1983, merely stating without elaboration that the Materiality Provision ‘is enforceable by the Attorney General, not by private citizens.'”

It’s not clear what the Fifth Circuit will do and whether it deepens the circuit split, but it’s an issue I’m watching ahead of 2024.

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“The American Law Institute Launches Restatement of the Law, Election Litigation”

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.

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Ninth Circuit upholds California’s two-step recall process

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
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11th Circuit finds eligibility challenge to Marjorie Taylor Greene moot, but one judge finds Georgia had no power to adjudicate her qualifications

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
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Third Circuit Rules Undated mail ballots should be counted. Error was immaterial.

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.”

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Intraparty Fights Taken to Court

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.’”

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Judge Sutton’s new book

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.)

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