The conversation about “nationwide injunctions” has been about, well, nationwide injunctions in the federal courts, often targeting presidential action. But back in 2024, Professor Sam Bray rightly notes that the same concerns have arisen with respect to statewide injunctions in his post, “Is the Bell Tolling for Universal Injunctions?“
Enter a concern about election law.
Very few (if any?) challenges to a state’s election laws arise under a class action. They are not Rule 23(b)(2) class actions on behalf of all voters (or all adversely-affected voters) in a state. Instead, they are typically brought by an organization or an association alleging organizational or associational standing. And they routinely seek to enjoin new (or longstanding) laws (or executive interpretations of law).
While “universal injunctions” have been a hot topic with respect to presidential power–think a single federal judge in California enjoining the first Trump administration on a nationwide basis; a judge in Texas enjoining the Biden administration; a judge in DC enjoining the second Trump administration; and so on–its effects on statewide disputes has been more muted.
There have been various reform proposals in Congress, but by far the most serious and substantial one comes from Senator Chuck Grassley, who recently wrote an op-ed in the Wall Street Journal previewing his new bill, which is now released. It would prevent courts from issuing injunctions that purport to “restrain the enforcement against a non-party.”
This would have a major effect on a lot of election law litigation. Many injunction cases are brought by a handful of plaintiffs against state election officials, seeking an injunction from enforcing a law they view as unconstitutional or in violation of federal law–think a voter registration law, a voter identification law, an absentee ballot rule, and so on. Injunctive relief would not be available to prevent the total enforcement of the law. Instead, it could only be an injunction for the parties in that case, not the public at large of a state.
There are alternative mechanisms around this, of course. One is a broader use of 23(b)(2) class actions. This, however, does require a bit more from plaintiffs. Plaintiffs must be “adequate” representatives of class. Class counsel, likewise, must be approved by the court and deemed adequate, a potential limitation for some attorneys. (It would probably have the incidental benefit of reducing litigation where, say, seven different groups file seven similar but different lawsuits against a single law in federal court, forcing dozens of attorneys to coordinate in essentially identical parallel matters and slowing down progress.) Mandamus might also be available, to the extent an election official is violating a ministerial obligation and can be ordered to obey.
It would work a significant shift in legal strategy in the federal courts in election law cases. It’s not clear this law will clear 60 votes in the Senate (although, of course, there will be a change in presidential administration soon enough, and perhaps the partisan valence would change…), but it’s something to watch. It’s possible even ahead of such legislation that (1) lower federal courts are more sensitive to the role of “universal” injunctions in state-wide remedies, and (2) litigants will try to experiment with these alternative forms of relief before they are forced to do so (potentially) in the future. But, as we witness a potential major reform in how “universal” injunctions work, I’ll be keeping an eye on this aspect of it.
UPDATE: It’s worth adding, as I’ve been asked, that this only affects federal courts, not state courts. State court procedures may well continue to permit these injunctions, and perhaps certain cases migrate to state court.
