The most recent edition of our federal courts casebook (with co-authors Arthur Hellman, David Stras, Ryan Scott, and Andy Hessick), I took some time reshape some of the focus of the chapter on “standing” to expound upon some increasing recurring themes. One of those themes was legislator and legislative standing. Legislators generally lack standing in federal court beyond what ordinary citizens or voters have, except in some rare (and perhaps isolated and unique) cases. In the elections context, these claims keep returning, with fairly predictable results.

In Keefer v. Biden (Pennsylvania) and Lindsey v. Whitmer (Michigan), federal courts in recent weeks have tossed challenges filed by state legislators under the Elections Clause. Both cases argued that some non-institutional legislature action, such as executive action (from President Biden) or ballot initiative (in Michigan), ran afoul of the Elections Clause. Both were thrown out for lack of standing. Despite the fact that the legislators wanted to challenge the action, their real concern was that the institutional legislature had been harmed.

Elections Clause challenges do not always fail for procedural reasons in federal court–see the recent New Jersey litigation citing Cook v. Gralike. But to the extent they attempt to assert something resembling the kinds of claims in Moore v. Harper, the paths forward remain quite limited.

But the cases are a constant reminder of the terrific number of election litigation challenges we continue to see, and how many fail to get to the merits for issues at the outset of the litigation.