Category Archives: court decisions

6th Circuit Issues Decision in Brown v. Yost

court decisions, direct democracy

The Sixth Circuit (with one concurrence) has ended the appeal of the district court’s denial of a preliminary injunction on grounds of mootness.

Background from the opinion, “This appeal arises from a ballot proposal initiated by Cynthia Brown. In February 2023, she sought to amend the Ohio Constitution to eliminate governmental immunities or defenses in certain state-law causes of action. That month, she submitted her proposed amendment and summary to the Attorney General. He rejected the summary as not ‘fair and truthful.’ In total, she has tried and failed eight times to obtain his approval.

[After unsuccessful efforts in the state courts,] Brown turned to federal court for relief. She sued the Attorney General in district court, alleging that Ohio’s initiative procedures violate the First Amendment facially and as applied” and applied for a preliminary injunction. The district court denied that motion and she appeal.

 

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4th Circuit finds RNC raised federal question in NC state equal protection dispute by invoking HAVA

court decisions, voter registration

Wonky civil procedure decision today (that is, Republicans filed in state courts and would have preferred to stay there; the board removed to federal court and wanted to stay there) in RNC v. N.C. State Bd. of Elections (lightly revised):

The Republican National Committee (“RNC”) and the North Carolina Republican Party (“NCGOP”) (together, “Plaintiffs”) filed two state law claims, one statutory and one constitutional, in a North Carolina superior court against the North Carolina State Board of Elections and its members (“State Board”). Both claims stemmed from the State Board’s alleged noncompliance with the Help America Vote Act of 2002 (“HAVA”), 52 U.S.C. § 20901 et seq., a federal statute that was intended to improve voting systems and voter access. . . .

Count Two asserts that the State Board violated the Equal Protection Clause of the North
Carolina Constitution, Article 1 § 19, through HAVA violations that “open[ed] the door to
potential” vote dilution. . . .

We disagree with the district court’s conclusion that exercising federal jurisdiction over Count Two would open the floodgates to a wave of state constitutional litigation in federal court. Just as Grable found that “it will be the rare state title case that raises a contested matter of federal law,” we conclude that it will be the rare state equal protection case that turns on a violation of HAVA or the NVRA. In fact, we are aware of no other state constitutional case similar to this one, and Plaintiffs have pointed to none.

Plaintiffs’ Count Two claim may come cloaked in state constitutional garb, but it raises only federal statutory questions. Here, the alleged state constitutional claim necessarily turns on the contested interpretation of provisions of federal laws, HAVA and the NVRA. The viability of the state constitutional claim depends, therefore, on a court’s adopting Plaintiffs’ preferred reading of two federal statutes.

As the district court recognized, consideration of HAVA’s overall statutory scheme “leads to the conclusion that Congress intended for federal courts to resolve core questions of statutory interpretation.” HAVA authorizes the Attorney General to enforce compliance with its requirements “in an appropriate United States District Court.” HAVA § 21111 (emphasis added). We are confident that Congress did not intend to prevent federal courts from deciding cases where the sole issue, the interpretation of a federal statute, may determine who can vote in a federal election. The mere invocation of a state constitutional provision does not unsettle that conclusion.

Chief Judge Diaz concurred to explain why the RNC “barely” met the standing requirement in federal court, citing, among other things, FDA v. AHM.

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No private right of action to enforce list maintenance, voter registration provisions of HAVA, federal court holds

court decisions, election law and constitutional law

Continuing a recent tranche of lower court debates over whether certain election-related provisions permit a private right of action, including Section 2 of the Voting Rights Act and Election Day date provisions of federal law, a federal judge in North Carolina just issued the follow decision in RNC v. NC State Bd. of Elections:

Section 21083( a)(2)(A) provides that “[t]he appropriate State or local election official shall perform list maintenance with respect to “that state’s voter registration list in a manner consistent with the NVRA. 52 U.S.C. § 21083(a)(2)(A). Section 21083(a)(5)(A)(i) mandates that, prior to processing a voter’s registration, “a State” must collect the applicant’s “driver’s license number” or “the last 4 digits of the applicant’s social security number.” 52 U.S.C. § 21083(a)(5)(A)(i).

The court finds the first Cort factor, whether Plaintiffs are within the class for whose “especial benefit” these provisions were intended, weighs heavily against implying a private right of action. Cort, 422 U.S. at 78. These provisions of HAVA “are designed only to guide the State in structuring its systemwide efforts at” voter registration and voter list maintenance. Blessing v. Freestone, 520 U.S. 329, 344 (1997). Statutory provisions such as these “that focus on the person regulated rather than the individuals protected create no implication of an intent to confer rights on a particular class of persons.” Alexander, 532 U.S. at 289 (internal quotation mark omitted).

Although at some level these provisions of HAVA are aimed at ensuring the proper administration and integrity of elections, which in tum benefits all voters, it’s not enough that “the plaintiff falls within” some “general zone of interest that the statute is intended to protect.” Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002). “[S]uch a definition of ‘especial’ beneficiary” would “make[] this factor meaningless.” California v. Sierra Club, 451 U.S. 287, 294 (1981). Rather, something more “is required for a statute to create rights enforceable directly from the statute itself under an implied private right of action.” Gonzaga, 536 U.S. at 283. The statute must manifest “an unmistakable focus on the benefited class.” Cannon v. Univ. of Chicago, 441 U.S. 677, 691 (1979).

Put another way, “[t]he question is not simply who would benefit from” these provisions of HAVA, but rather “whether Congress intended to confer federal rights upon those beneficiaries.” Sierra Club, 451 U.S. at 294. These provisions of HAVA do not “unmistakabl[y] focus” on Plaintiffs or the voters they represent; the provisions do not mention them at all. Cannon, 441 U.S. at 691. The court thus finds that these provisions do not “create[] an individually enforceable right in the class of beneficiaries to which [Plaintiffs] belong.” City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 120 (2005). . . .

. . . the court finds that implying a private right of action under these provisions of HAVA would not be consistent with the underlying purposes of the legislative scheme. Cort, 422 U. S. at 78 . To the contrary, consideration of the legislative scheme as a whole leads the court to discern a legislative intent to deny a private remed y. On that point, HAVA contains “separate . . . enforcement mechanisms.” Indiana Pro t. & Advoc. Servs. v. Indiana Fam. & So c. Servs. Admin., 603 F.3d 365 , 379 (7th Cir. 2010). Specifically, “[t]he Attorney General may bring a civil action against any State or jurisdiction in an appropriate United States District Court” to remedy violations of Section “21083 of this title.” 52 U.S.C. § 21111. In addition, states that receive federal funding must “establish and maintain State-based administrative complaint procedures.” 52 U.S.C.A. § 2111 2(a)(l). North Carolina has done so , N.C.G.S. § 163-91(a), and the concerned citizen took advantage of this complaint procedure, DE 1-3 at 12-14.

There are ways to distinguish the Voting Right Act, the Election Day, and the HAVA cases (far too long for a blog post today!), but it’s interesting to see the RNC and DNC at cross-positions with each other in some of these cases. It also raises some interesting questions if these cases reach the Supreme Court on a similar timeline in the years ahead (no cert petitions are pending on any of them right now).

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Arizona Supreme Court approves rules for “priority adjudication of post-general election judicial proceedings”

court decisions

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.

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Divided Seventh Circuit finds no standing for congressional candidate to challenge Illinois’s absentee ballot receipt deadline

court decisions

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. . . .

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    ProPublica Report on Judicial Recusal

    conflict of interest laws, court decisions

    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”

    court decisions, Supreme Court

    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?

    court decisions, Supreme Court

    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

    court decisions, legislation and legislatures, Supreme Court

    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”

    court decisions

    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”

    campaign finance, campaigns, court decisions

    Politico:

    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”

    chicanery, court decisions, election subversion risk

    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

    absentee ballots, court decisions

    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 Vote.org 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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