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.