A North Carolina Court of Appeals panel spent more than 90 minutes Friday morning listening to arguments related to state Supreme Court candidate Jefferson Griffin’s challenge of more than 65,000 ballots cast in last fall’s election.
Griffin, an Appeals Court judge, trails Democratic Justice Allison Riggs, an appointed incumbent, by 734 votes out of more than 5.5 million ballots cast in the Nov. 5 election. Recounts have confirmed Riggs’ lead. Yet a Jan. 7 stay issued by Riggs’ state Supreme Court colleagues has blocked the North Carolina State Board of Elections from certifying Riggs as the winner.
Category Archives: court decisions
“DOJ Moves to Take Over Trump Defense Against Jan. 6 Lawsuits”
Zoe Tillman at Bloomberg:
The US Justice Department is seeking to intervene on behalf of President Donald Trump in the long-running civil lawsuits accusing him of being personally liable for the violence and disruption at the US Capitol during the Jan. 6, 2021, attack.
The cases have been held up for years amid a fight over whether Trump is entitled to immunity. In a notice filed Thursday night, a Justice Department official told a judge Trump was acting “within the scope of his office” during the events in question, meaning the US government, and not Trump, should be the defendant in the cases.
If government lawyers succeed in swapping Trump out of the litigation, it would rid him of one of the last remaining personal legal threats he faces. But a judge will first have to approve the move, and the plaintiffs are expected to oppose it.
In 6-1 decision, New York high court finds New York City’s non-citizen voting law violates state constitution
From the majority opinion in Fossella v. Adams:
On December 9, 2021, the New York City Council passed a bill entitled “A Local Law to amend the New York city charter, in relation to allowing lawful permanent residents in New York city to vote in municipal elections.” Shortly thereafter, Mayor Bill de Blasio left office without signing or vetoing the bill. Upon taking office on January 1, 2022, Mayor Eric Adams also neither signed nor vetoed it. Accordingly, pursuant to section 37 (b) of the New York City Charter, the bill became effective on January 9, 2022 as Local Law 11.
Local Law 11 granted some noncitizens the right to vote in certain elections for elective offices in New York City. The same day Local Law 11 became effective through Mayoral inaction, plaintiffs brought this action seeking to declare Local Law 11 null and void on the grounds that it violates the New York State Constitution, the New York State Election Law, and the Municipal Home Rule Law. We hold that Article II, Section 1 of our Constitution limits voting to citizens, and affirm on that ground.
9th Circuit will go en banc to reconsider Arizona voter registration decision
Back in September, I noted the sharply divided panel decision in Arizona Alliance for Retired Americans v. Mayes on whether the plaintiffs had standing to challenge parts of an Arizona voter registration law. The majority concluded that the plaintiff organization could not allege a “diversion of resources” theory after the Supreme Court’s June decision in FDA v. AHM as a basis for claiming an injury that would allow the plaintiff to sue and challenge the law. In doing so, the majority brushed aside a stretch of Ninth Circuit precedent it deemed inconsistent with the Supreme Court’s recent decision.
Back then, I wrote, “It would not surprise me, given Judge Nguyen’s dissent, to see this case go en banc or some effort to get the Supreme Court’s attention.” My prediction was right, as the Ninth Circuit just announced it would go en banc to reconsider the case.
Let me go one step further. This case already starts to resemble Brnovich v. DNC (although, of course, there are material differences!). There, a Ninth Circuit decision found against the plaintiffs in an election law case. There, the case when en banc, and the panel decision was reversed–reversed in such a fashion to capture the Supreme Court’s attention. The Supreme Court, in turn, swept aside the lower court decision in a fairly significant way, significant enough to truncate similar claims in the future. That’s how this case is starting to feel in the aftermath of FDA v. AHM.
Of course, there are other plaintiffs who could establish standing in cases like these–but the decision of the Ninth Circuit threatens a kind of plaintiff who might bring such cases, and there is an interest in that kind of plaintiff trying to preserve the opportunity to sue. That has resulted in an en banc petition strategy that focuses on standing for groups like the plaintiffs here to bring the challenge.
But in doing so–if the Ninth Circuit is interested (perhaps it is not!) in bucking the Supreme Court’s very clear messaging in FDA v. AHM about the standing that organizational plaintiffs have in cases like these–the plaintiffs risk attracting, once again, the Supreme Court’s attention.
Perhaps I’m wrong, and perhaps after more fulsome briefing the case is entirely distinguishable from what was pushed aside in FDA v. AHM. Or perhaps the 9th Circuit decision does not attract Supreme Court review. We shall see how this case plays out in the months ahead. But let me say, my June prediction of fallout of FDA v. AHM in election law cases was right, as was my prediction in September about this case attracting en banc attention, so we’ll see how long my streak holds….
“Judge tosses challenge to Georgia GOP election law changes made after 2020 election”
A Georgia federal judge dismissed on Tuesday a challenge to provisions of a controversial GOP-sponsored election law that went into effect soon after the 2020 election, where President Donald Trump lost the state but disputed otherwise.
U.S. District Judge J.P. Boulee rejected election integrity activists’ request to prohibit enforcement of certain provisions of Senate Bill 202 that are criminal in nature.
Pushed by Georgia’s Republican Governor Brian Kemp, the bill’s sweeping overhaul of the state’s election laws went into effect July 1, 2021. Many of the changes, which included permitting unlimited challenges to voter eligibility, shortening runoffs from nine weeks to four weeks, restricting the use of 24/7 drop boxes, and prohibiting people from passing out food and water to voters waiting in line, have been challenged in court proceedings since.
Federal court finds several Texas election provisions from SB1 in 2021 run afoul of federal statutes
A long opinion from the district court in La Unión Del Pueblo Entero v. Abbott is here. Several portions of SB1 relating to mail-in voting and voter assistance were found to violate the Americans with Disabilities Act and the Rehabilitation Act. (There have been other legal issues previously adjudicated in this complicated case.) There are a lot of parties, a lot of sections of the bill in dispute, and a lot of subtlety in which parts are or are not enjoined, but it is mostly a win for the plaintiffs–for more, dig into the opinion.
By 10-5 vote, 5th Circuit opts not to take en banc decision that found Mississippi absentee ballots must be returned by Election Day to count in federal races
The opinions in the decision to deny the en banc petition are here, in RNC v. Wetzel. From the intro of the original panel decision, as a refresher of the issue:
Congress statutorily designated a singular “day for the election” of members of Congress and the appointment of presidential electors. Text, precedent, and historical practice confirm this “day for the election” is the day by which ballots must be both cast by voters and received by state officials. Because Mississippi’s statute allows ballot receipt up to five days after the federal election day, it is preempted by federal law. We reverse the district court’s contrary judgment and remand for further proceedings.
The principal dissent in the en banc decision is by Judge Graves:
I would grant the petition for rehearing. At a minimum, this case presents a question of exceptional importance: whether federal law prohibits states from counting valid ballots that are timely cast and received by election officials within a time period designated by state law. The substantial, if not overwhelming, weight of authority—including dictionary definitions, federal and state caselaw, and legislative history—counsels against the preemptive interpretation that the panel adopted. Moreover, the opinion conflicts with the tradition that forms the bedrock for our nation’s governance—federalism—which vests states with substantial discretion to regulate the intricacies of federal elections. Simply stated, federal law does not mandate that ballots be received by state officials before Election Day’s conclusion, and the panel’s contrary holding is erroneous.
It’s worth noting this decision formally only binds federal courts deciding cases in Mississippi, Texas, and Louisiana, but it could obviously influence how other courts think about the issue in the rest of the country (especially as far more states have late-arriving absentee ballot deadlines), and it may affect the strategy of litigants deciding whether to take the case to the Supreme Court.
Speaking of influence, here’s the lede from the San Diego Union-Tribune on another lawsuit: “Issa sues to block California from accepting mail-in ballots after Election Day.”
(It’s also worth noting this is a federal statute that sets Election Day for federal offices.)
Earlier ELB coverage is here (my look at questions about a private right of action), here (Rick H.’s take), here (Chris Geidner’s take), here (Justin Levitt’s perspective ahead of 2024), and here (on Adam Unikowsky’s take).
11th Circuit finds Florida’s closed primary statute withstands constitutional scrutiny
Three opinions from three judges in Poelle v. Florida Secretary of State. From the majority opinion by Judge Rosenbaum:
Continue reading 11th Circuit finds Florida’s closed primary statute withstands constitutional scrutinyMichael 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.
Unanimous Washington Supreme Court rejects state constitutional challenge to absentee ballot signature matching practices
Vet Voice Foundation v. Hobbs:
This case concerns some of the most fundamental building blocks of our representative democracy: the right to vote, the legislature’s power and obligation to ensure that voters can freely exercise that right, and the integrity and security of elections.
In Washington, most voters cast their votes by mail, and each voter must swear under oath that they are eligible to cast that ballot. Before that ballot may be counted, election workers must verify that the signature on the voter’s sworn ballot declaration is the signature of the registered voter. If the voter’s signature cannot be verified, election workers may challenge that ballot. If the voter does not timely cure their ballot, their vote will not be counted.
All too many ballots are not counted because election workers cannot verify the voter’s signatures and the voter does not or cannot cure their ballot in time. The plaintiffs contend that because signature verification results in some lawfully cast ballots not being counted, it facially violates the due process, privileges and immunities, and freedom of elections clauses of our state constitution.
But signature verification is only a part of the election system established by our legislature. In recent years, our legislature has taken substantial steps to improve that system. Among other things, it has directed local election workers to take greater efforts to contact voters whose ballots are challenged and it has expanded the ways voters may cure their ballots and have their votes counted.
We conclude that at least when coupled with the increasingly expansive cure system, signature verification, on its face, does not violate our state constitution.
Divided Ninth Circuit finds Congress holds power to regulate presidential elections as it does congressional elections
Justin helpfully runs through the major elements of the Ninth Circuit’s holding in Mi Familia Vota v. Fontes, but I wanted to highlight a divide in the opinion I wrote about back in 2022 just as this bill was introduced in Arizona (which I won’t rehash in this post!). From the majority opinion:
Aside from the NVRA’s plain language, our precedent also requires us to hold that Congress has the power to control registration for presidential elections. In 1934, the Supreme Court rejected a narrow framing of Congress’s power over presidential elections, like the view argued here by Republican Appellants. The Supreme Court reasoned:
The only point of the constitutional objection necessary to be considered is that the power of appointment of presidential electors and the manner of their appointment are expressly committed by section 1, art. 2, of the Constitution to the states, and that the congressional authority is thereby limited to determining ‘the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.’ So narrow a view of the powers of Congress in respect of the matter is without warrant.
Burroughs v. United States, 290 U.S. 534, 544 (1934). The Court squarely held that Congress had the power to pass legislation to protect the integrity of the federal election process in the presidential election. Id. at 545; see also Buckley v. Valeo, 424 U.S. 1, 13 n.16 (1976) (citing to Burroughs as more generally “recogniz[ing] broad congressional power to legislate in connection with the elections of the President and Vice President”).
We have also recognized Congress’s power to regulate all federal elections under the NVRA. See Voting Rts. Coal. v. Wilson, 60 F.3d 1411, 1413–14 (9th Cir. 1995) (rejecting a challenge to the constitutionality of the NVRA in part because “the Supreme Court has read the grant of power to Congress in Article I, section 4 [of the U.S. Constitution] as quite broad” and has endorsed that “[t]he broad power given to Congress over congressional elections has been extended to presidential elections” (citing Burroughs, 290 U.S. at 545)).
We hold that H.B. 2492’s requirement of DPOC to vote in presidential elections is preempted by Section 6 of the NVRA.
And from a part of Judge Bumatay’s lengthy dissent on this issue:
But, as a matter of constitutional text, the Elections Clause doesn’t govern presidential elections. The Elections Clause of Article I provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” U.S. Const. art. I, § 4, cl. 1 (emphasis added). Under that Clause, States have the “duty” to set the time, place, and manner of holding congressional elections, but Congress has the power to “alter” those regulations or “supplant them altogether.” See ITCA, 570 U.S. at 8. The Court has held that the “Times, Places, and Manner” of holding elections “embrace authority to provide a complete code for congressional elections,” including regulation of voter registration. Id. at 8–9. But the Clause is expressly limited to “Elections for Senators and Representatives.” Thus, while the Elections Clause may give Congress power over registration in congressional elections, it doesn’t extend that authority over presidential elections.
Other Clauses of Article II cover presidential elections. First, the Electors Clause lays out much of the groundwork—granting nearly all authority to the States. It provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors[.]” U.S. Const. art. II, § 1, cl. 2. Unlike the grant of a revisory power to Congress in the Elections Clause, the Electors Clause gives the States sole power over the “Manner” of appointing electors to the electoral college. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 805 (1995) (describing the Electors Clause as the sort of “express delegation[] of power to the States” by the Constitution necessary for them “to act with respect to federal elections”).
Second, the Time of Chusing Clause provides a narrow role for Congress in presidential elections. The Time of Chusing Clause says that “Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” U.S. Const. art. II, § 1, cl. 4. So rather than having any power over the “Manner” of holding congressional elections, Congress merely has authority to
choose the date of the presidential election and date of the electoral college vote. . . .Together, these Clauses form a cohesive structure governing federal elections—States and Congress share authority over congressional elections, but States retain near-exclusive power over presidential elections. Thus, the Constitution forecloses congressional authority to control voter-registration requirements for presidential elections. . . .
And no controlling precedent alters the States’ exclusive power over presidential elections. Citing Ex parte Yarbrough, 110 U.S. 651 (1884), and Burroughs v. United States, 290 U.S. 534 (1934), the district court claimed that the Court has recognized Congress’s power to regulate presidential elections. But that’s wrong. If anything, these precedents reaffirm the principle that Congress’s role in presidential elections is limited, and that the manner of appointing presidential electors is within the “exclusive” “power and jurisdiction of the state[s].” See McPherson, 146 U.S. at 35. Even in the modern era, the Court has continued to express that “the state legislature’s power to select the manner for appointing [presidential] electors is plenary[.]” Bush v. Gore, 531 U.S. 98, 104 (2000) (per curiam). . . .
Three thoughts on the 4th Circuit’s decision in the North Carolina Supreme Court dispute
Rick H. linked to the unpublished per curiam decision in Griffin v. North Carolina State Board of Elections. Three brief thoughts on it.
First, last week I noted that the case potentially implicated a significant shift in what kinds of cases could be moved into the federal courts. The 4th Circuit seems to accept that pointing to just about any election administration law would qualify someone to remove to federal court:
As the district court explained, the Board claimed that granting Griffin the relief he sought might violate federal civil rights law, including the Help America Vote Act, 52 U.S.C. § 20901, et seq.; the National Voter Registration Act, 52 U.S.C. § 20501, et seq.; the Voting Rights Act, codified in relevant part at 52 U.S.C. § 10307; the Civil Rights Act, codified in relevant part at 52 U.S.C. § 10101, the Uniformed and Overseas Citizens Absentee Voting Act, codified in relevant part at 52 U.S.C. § 20302; and the Fourteenth Amendment to the United States Constitution. Following Republican National Committee v. North Carolina State Board of Elections, 120 F.4th 390, 408 (4th Cir. 2024), we see no error in the district court’s decision.
I am very doubtful all of these statutes are laws “providing for equal rights” (certainly, the Fourteenth Amendment), and I am more doubtful that these laws allow removal to federal court in a state election just because state law points to the federal law. But, I would just be rehashing the points I made in last week’s blog post.
Second, the court rightly shifts from Burford abstention, which would have dismissed the case, to Pullman abstention, which allows the case to remain in the federal courts on hold as the state court process plays out.
Third, and relatedly, this means there is a federal case waiting in the wings in the event the state decision does not go Griffin’s way. But that is an important and slightly unusual caveat. If the case does go Griffin’s way in state court, I assume he would seek to dismiss the federal case, and Riggs might need to file a new lawsuit alleging, say, Due Process or other concerns in the federal system. So, while the case remains pending in the federal courts, it might only see the light of day if Griffin loses in state court.
Did a sleepy decision in October 2024 open the door for more federal court power over state election disputes (like the North Carolina Supreme Court dispute)?
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.
6th Circuit Issues Decision in Brown v. Yost
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.
Felony disclosure requirement for federal candidates in North Carolina is not an impermissible additional qualification, Fourth Circuit holds
From Sharma v. Hirsch, an opinion by Judge Wilkinson, joined by Judges Richardson and Rushing:
Continue reading Felony disclosure requirement for federal candidates in North Carolina is not an impermissible additional qualification, Fourth Circuit holds