ELB readers may recall my post last year on Colorado General Assembly v. Salazar (2004). There, the Court, over three dissenting justices, denied cert in a Legislature Thereof Clause dispute under the Elections Clause in Colorado’s redistricting. A lot of parallels arose in that case that came out in Moore v. Harper.
Yesterday, I blogged about why I thought there might be a lot of litigation, but not a lot of success. In particular, I want to focus on one element of this–and one lesson learned from the litigation that followed Colorado General Assembly. It is going to be difficult (but not impossible) to get lower federal courts to hear these cases for a variety of procedural reasons.
There is an assumption by some members of the Court–and a fear from some commentators–that a flurry of lower federal court litigation will arise after Moore about instances where a state court may “transgress” the boundaries of judicial review. Justice Thomas, for instance, worried about the “general advice” given to “lower federal courts,” the expectation that federal courts will be left grappling to find a standard, and so on. Rick H. blogs here that he worries about “A TON of mischief from lower federal court judges.”
I do not think this is very likely–but certainly possible.
 Begin with how these cases typically arise. A state court is asked to adjudicate a question of state law. That question marches through the state court system. At the state supreme court, the court is asked to review that question. One party notes that the state court should not construe the state law in a particular fashion, because doing so would run afoul of the Elections Clause. Intervenors join the suit–perhaps political candidates on the ballot or political parties–to argue the same. And if the state supreme court construes the law in a way that a party deems too far afield from ordinary judicial review under the Elections Clause, the party petitions for certiorari.
That’s Bush v. Gore, Colorado General Assembly, Republican Party of Pennsylvania v. Boockvar, Moore v. Harper… a familiar litany. And there are others.
So, what happens? The Court takes the case (Bush, Moore) or denies cert with no comment or with some dissenting opinions (Colorado General Assembly, Boockvar).
My instinct–and it is only an instinct–is that the Court will routinely deny certiorari without comment. It’s possible that it will find another case that it thinks, like Moore, will be a vehicle to address these issues. But recall, this is the Supreme Court. This is not the lower federal courts.
 To get to a federal district court, you’d need to start with . That is, you’d need to start with a state supreme court issuing some decision on state law. After all, if you’re asking a federal district court to consider what a state court did, you’d need the state court to go first. And presumably, the United States Supreme Court already had a chance to weigh in on the certiorari petition.
So now you’re in federal court. But, aren’t you re-litigating the same issues you already litigated in state court–that is, aren’t you asking whether the Elections Clause prohibits the state court from adopting the interpretation it did?
[a] If you are the same party that brought the litigation in the state court, you are barred from filing in federal court under Rooker-Feldman. You cannot ask the federal court to revisit the judgment in the state court on the Elections Clause issue.
[b] If you intervened in the state court dispute–say, a national party–you’re also bound by the result and cannot ask a federal court to revisit the decision.
[c] If you are a party in privity with one of the original parties in the state court lawsuit, you’re also bound by the result and cannot ask a federal court to revisit the decision. This gets a bit trickier in the state-to-federal arena, but depending on who attempts to bring the claim in federal court, it’s possible that the federal court will say that the party was adequately represented by someone with the same interests in state court. (Preclusive effect to the judgment turns on state law, so there can be some variance.) I won’t get into the details here, because this could be an entire law review article. I only flag it as another potential limitation.
[d] Suppose you aren’t the party, an intervenor, or in privity. Here, let’s turn back to Colorado General Assembly.
After the Court denied cert, challengers to the Colorado redistricting map took a new tack. A group of registered voters went to federal court and sued under the Elections Clause.
In their first effort, the three-judge district court held that Rooker-Feldman barred the suit. That was appealed to the United States Supreme Court. The Court issued a per curiam decision in Lance v. Dennis (2006). The Court said that Rooker-Feldman was not appropriate because the registered voters were not parties to Colorado General Assembly. (Justices Ginsburg and Souter concurred briefly. Justice Stevens would have found the suit barred under preclusion doctrines.)
The case went back to the three-judge district court, which then found the voters had standing but the claims were precluded. The case came back to the United States Supreme Court in Lance v. Coffman (2007). In a unanimous per curiam opinion, the Court held the voters lacked standing:
The plaintiffs here are four Colorado voters. Three days after the Colorado Supreme Court issued its decision in Salazar, they filed a complaint alleging that “Article V, § 44 of the Colorado Constitution, as interpreted in Salazar, violated [the Elections Clause] of the U.S. Constitution by depriving the state legislature of its responsibility to draw congressional districts.” Lance v. Davidson, 379 F.Supp.2d 1117, 1122 (2005). In light of the discussion above, the problem with this allegation should be obvious: The only injury plaintiffs allege is that the law — specifically the Elections Clause — has not been followed. This injury is precisely the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past. It is quite different from the sorts of injuries alleged by plaintiffs in voting rights cases where we have found standing. See, e.g., Baker v. Carr, 369 U.S. 186, 207-208, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Because plaintiffs assert no particularized stake in the litigation, we hold that they lack standing to bring their Elections Clause claim.
Our two decisions construing the term “Legislature” in the Elections Clause do not contradict this holding. Each of these cases was filed by a relator on behalf of the State rather than private citizens acting on their own behalf, as is the case here. See State ex rel. Smiley v. Holm, 184 Minn. 647, 238 N.W. 792 (1931) (per curiam), rev’d sub nom. Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795 (1932); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 36 S.Ct. 708, 60 L.Ed. 1172 (1916). In neither case did we address whether a private citizen had alleged a “concrete and particularized” injury sufficient to satisfy the requirements of Article III.
This is an ominous, unanimous holding from the Court. Standing may be a significant issue for any non-parties to bring claims in federal court under the Elections Clause.
Litigation in 2020 saw a circuit split on this issue.
[i] The Third Circuit found no standing in Bognet v. Secretary Commonwealth of Pennsylvania. (This judgment was later vacated by the Supreme Court under Munsingwear.) The Pennsylvania Supreme Court issued its decision extending the state’s absentee ballot deadline. Note, of course, that this was the state Democratic Party suing an election official, and intervenors (including a presidential candidate, another political party, and state legislators) along with the election official raised an Elections Clause argument.
After this case, several voters and one congressional candidate sued to challenge the state court’s decision in federal court under the Elections Clause and the Presidential Electors Clause. On the Elections Clause, let me focus on how it framed the congressional candidate’s injury:
Plaintiff Bognet, a candidate for Congress who is currently a private citizen, does not plead a cognizable injury by alleging a “right to run in an election where Congress has paramount authority,” Compl. ¶ 69, or by pointing to a “threatened” reduction in the competitiveness of his election from counting absentee ballots received within three days after Election Day. Appellants’ Br. 21. Bognet does not explain how that “right to run” affects him in a particularized way when, in fact, all candidates in Pennsylvania, including Bognet’s opponent, are subject to the same rules. And Bognet does not explain how counting more timely cast votes would lead to a less competitive race, nor does he offer any evidence tending to show that a greater proportion of mailed ballots received after Election Day than on or before Election Day would be cast for Bognet’s opponent. What’s more, for Bognet to have standing to enjoin the counting of ballots arriving after Election Day, such votes would have to be sufficient in number to change the outcome of the election to Bognet’s detriment. See, e.g., Sibley v. Alexander, 916 F. Supp. 2d 58, 62 (D.D.C. 2013) (“[E]ven if the Court granted the requested relief, [plaintiff] would still fail to satisfy the redressability element [of standing] because enjoining defendants from casting the … votes would not change the outcome of the election.” (citing Newdow v. Roberts, 603 F.3d 1002, 1011 (D.C. Cir. 2010) (citations omitted)). Bognet does not allege as much, and such a prediction was inherently speculative when the complaint was filed. The same can be said for Bognet’s alleged wrongfully incurred expenditures and future expenditures. Any harm Bognet sought to avoid in making those expenditures was not “certainly impending”—he spent the money to avoid a speculative harm. See Donald J. Trump for Pres., Inc. v. Boockvar, No. 2:20-cv-966, ___ F.Supp.3d ___, ___, 2020 WL 5997680, at *36 (W.D. Pa. Oct. 10, 2020). Nor are those expenditures “fairly traceable” under Article III to the actions that Bognet challenges. See, e.g., Clapper, 568 U.S. at 402, 416, 133 S.Ct. 1138 (rejecting argument that plaintiff can “manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending”).
It’s possible this was a pleading failure from the candidate. But it is a challenge for a congressional candidate to assert, “These ballots coming in after the absentee deadline are likely to injure my likelihood of success in election.” The injury feels much more generalized.
[ii] On the flip side, the Eighth Circuit in 2020 found that Republican presidential electors in Minnesota had standing to challenge a consent decree entered into by the state executive. (Importantly, note that this posture is not about challenging a state court decision, but a state court order enforcing a state executive entering into a consent decree–a matter not really directly addressed in Moore, or the situation that would come in a post-Moore dispute challenging what the state court did.) Here’s the per curiam opinion for two judges in Carson v. Simon:
In this case, the Electors have standing as candidates. . . .
As candidates, the Electors argue that they have a cognizable interest in ensuring that the final vote tally accurately reflects the legally valid votes cast. An inaccurate vote tally is a concrete and particularized injury to candidates such as the Electors. The Secretary’s use of the consent decree makes the Electors’ injury certainly-impending, because the former necessarily departs from the Legislature’s mandates. Thus, the Electors meet the injury-in-fact requirement.
Next, the Electors meet the causal-connection requirement because the injury flows from the challenged conduct (the Secretary’s policy). And, even though the Secretary and the Alliance do not appear to challenge the redressability requirement, it is likely that the requested relief (an injunction) will redress the injury (an inaccurate vote tally) because the former will mitigate the latter.
For these reasons, we conclude the Electors have Article III standing as candidates. Having so concluded, we must decide whether the district court was correct in concluding the Electors lacked prudential standing because they are asserting the rights of third parties — namely the Minnesota Legislature. We disagree with the district court’s assessment.
First, we note the Supreme Court has greatly narrowed the doctrine of prudential standing. See Lexmark, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014). Where constitutional standing is present, refusing to hear a case based on prudential standing “is in some tension with … the principle that a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging.” Id. at 126, 134 S.Ct. 1377 (cleaned up). While the Supreme Court recognized the concept of third-party standing may still fit within the prudential standing analysis, id. at 127 n.3, 134 S.Ct. 1377, we do not find it applicable here because the Electors are raising their own rights as candidates in the Minnesota general election. Although the Minnesota Legislature may have been harmed by the Secretary’s usurpation of its constitutional right under the Elector Clause, the Electors have been as well. Thus, we conclude they have prudential standing to vindicate their rights under federal law. See generally . . . Bush v. Gore, 531 U.S. 98, 103, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (permitting a candidate for president to seek to vindicate his rights and stating the issues on appeal were “whether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, § 1, cl. 2, of the United States Constitution and failing to comply with 3 U.S.C. § 5, and whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses”).
It’s not clear to me that the candidate has established that accuracy “injures” the candidates any more than a generalized grievance. It’s not clear, for instance, that an inaccurate total injuries the candidates–in fact, it may actually redound to the candidates’ benefit! (The Eighth Circuit also did not engage with Coffman.)
But this is just to point out, there’s a divide in the lower courts about when non-parties could even challenge an Elections Clause claim in a collateral proceeding in federal court in the first place
Let me conclude with this. I have no doubt there will be a number of lawsuits challenging these things in the future. I have no doubt there will be federal courts asked to entertain these questions. Occasionally, litigants might even win a district court case. But I think there are going to be high hurdles in the federal courts for any challenges to these issues–Rooker-Feldman, preclusion, and standing.