The Republican National Committee sued Nevada last month in federal court in Nevada in RNC v. Burgess. The complaint alleges, among other things, that Nevada accepts mail ballots received up to three days after Election Day, even without a postmark, and these ballots are presumed to have been postmarked on or before Election Day. The RNC is challenging that this law violates, among other things, 3 U.S.C. § 1, “The electors of President and Vice President shall be appointed, in each State, on election day,” which is “the Tuesday next after the first Monday in November.” (It is also raising related challenges for congressional elections.)
There is a question of the merits of this argument, but I am not going to write about that.
Instead, this is a very long Fed Courts-y post, so please bear with me. But the core question at issue in some recent and interesting briefing is, who, if anyone, can enforce this provision in the federal courts? And, perhaps more broadly, under what circumstances could someone enforce this and other provisions of the Electoral Count Reform Act?
1. To sue in federal court, you need a cause of action, some basis to bring the lawsuit in the first place. 3 U.S.C. § 1 has no express cause of action created by Congress.
For some time decades ago, the federal courts would imply a cause of action and allow litigants to sue even without such express language. But by 2001, the Supreme Court expressed that it strongly disfavored that approach. And even if one wanted to sue, one would need some kind of rights-creating language in the statute, something that 3 U.S.C. § 1 surely lacks.
Additionally, for some time, the federal courts would allow claims to be brought under 42 U.S.C. § 1983, a civil rights statute that allowed claims against state officials for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” By 2002, however, the Supreme Court made clear that it still required some kind of rights-creating language in the statute to sue. (Litigants may still occasionally win, however. In 2023, the Court’s decision in Talevski found that in a Spending Clause case the litigants could sue, but a separate opinion by Justice Barrett, joined by Chief Justice Roberts and agreed separately by Justice Gorsuch, that the “bar is high” to succeed here, and most federal statutes would fail.) Again, 3 U.S.C. § 1 surely lacks any rights-creating language.
2. As a brief aside (relevant later, I promise!), this is the heart of the recent debate in some lower courts over Section 2 of the Voting Rights Act. While the federal government undoubtedly has statutory authority to sue, questions arose over whether private litigants may do so, too. I looked at oral argument in the Eighth Circuit last year before a divided panel found there was no private right of action (and that the litigants had essentially waived the Section 1983 argument, but, per Talevski‘s concurring opinions, it is unclear whether a majority of the Court would find a right to bring an action here).
3. Is there another way to sue, without an express right of action or Section 1983? The RNC’s lawsuit, brought by Consovoy McCarthy PLLC, explains, “This Court has the inherent power to review and enjoin violations of federal law by state officials. Ex parte Young, 209 U.S. 123 (1908). Congress has not evidenced an intent to limit equitable relief for violating 3 U.S.C. §1 or 2 U.S.C. §§1, 7.”
Ex parte Young was a case involving a challenge to a Minnesota criminal statute. Minnesota enacted the law, and a party rushed to federal court to enjoin its enforcement. A major holding in the case is that state officials have no sovereign immunity from lawsuit, even if the state itself has immunity.
But that case also anticipated that a party could go to federal court and seek an injunction (an equitable remedy), even without an express cause of action, to prevent state officials from violating federal law.
4. The meaning of Ex parte Young has been hotly debated over the years, and especially in recent years. One could construct two extreme poles, neither of which is correct–anyone can sue a state official in federal court over any violation of federal law (assuming one has standing); or Young was wrong and one must have an express cause of action to sue. (And, frankly, the kind of equitable action in Young long predates Young.) Everyone agrees there’s some middle ground, but what it means is more difficult to explain.
With a grossly oversimplified intellectual history… For some time, I would venture to say that federal courts gravitated toward the first view, of a fairly broad way of thinking of the federal courts’ equity jurisdiction. In 2008, however, John Harrison offered a provocative and much narrower view in a law review article, arguing that Young is really about an anti-suit injunction (here, ordering a state official not to proceed with a prosecution in state court). For competing views, Jim Pfander & Jacob Wentzel’s 2020 article and this David Shapiro piece from 2011 offer important thoughts. And my colleagues Sam Bray and Paul Miller offer some helpful guideposts in their piece “Getting Into Equity.” Most crucially, it’s less valuable, according to Professors Bray and Miller, to think of equity in the same terms as a “cause of action.” It is less about elements and more about equitable discretion.
5. Consistent with its trend elsewhere, the Supreme Court in recent years has appeared to narrow the domain of Ex parte Young. In 2015, the Court issued a decision in Armstrong v. Exceptional Child Center on the topic, finding that Young would allow judicial relief under a Medicaid provision. From that opinion (with some edits):
The power of federal courts of equity to enjoin unlawful executive action is subject to express and implied statutory limitations. “ ‘Courts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law.’ ” In our view the Medicaid Act implicitly precludes private enforcement of §30(A), and respondents cannot, by invoking our equitable powers, circumvent Congress’s exclusion of private enforcement. See Douglas v. Independent Living Center of Southern Cal., Inc. (2012) (Roberts, C. J., dissenting).
Two aspects of §30(A) establish Congress’s “intent to foreclose” equitable relief. First, the sole remedy Congress provided for a State’s failure to comply with Medicaid’s requirements—for the State’s “breach” of the Spending Clause contract—is the withholding of Medicaid funds by the Secretary of Health and Human Services. As we have elsewhere explained, the “express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.”
The provision for the Secretary’s enforcement by withholding funds might not, by itself, preclude the availability of equitable relief. But it does so when combined with the judicially unadministrable nature of §30(A)’s text. It is difficult to imagine a requirement broader and less specific than §30(A)’s mandate that state plans provide for payments that are “consistent with efficiency, economy, and quality of care,” all the while “safeguard[ing] against unnecessary utilization of . . . care and services.” Explicitly conferring enforcement of this judgment-laden standard upon the Secretary alone establishes, we think, that Congress “wanted to make the agency remedy that it provided exclusive,” thereby achieving “the expertise, uniformity, widespread consultation, and resulting administrative guidance that can accompany agency decisionmaking,” and avoiding “the comparative risk of inconsistent interpretations and misincentives that can arise out of an occasional inappropriate application of the statute in a private action.” The sheer complexity associated with enforcing §30(A), coupled with the express provision of an administrative remedy, §1396c, shows that the Medicaid Act precludes private enforcement of §30(A) in the courts.
Armstrong leans heavily on statutory interpretation to think about whether there is an equitable remedy, which is an interesting framing–but coming after the 2001 and 2002 cases, where rights of action are so heavily determined by statutory interpretation, it’s a move one might expect. And Justice Scalia’s opinion here cites Douglas, a 2012 dissent by Chief Justice Roberts, who expressed this concern in finding an equitable remedy too quickly: “Here the law established by Congress is that there is no remedy available to private parties to enforce the federal rules against the State. For a court to reach a contrary conclusion under its general equitable powers would raise the most serious concerns regarding both the separation of powers (Congress, not the Judiciary, decides whether there is a private right of action to enforce a federal statute) and federalism (the States under the Spending Clause agree only to conditions clearly specified by Congress, not any implied on an ad hoc basis by the courts).”
Likewise, from Whole Women’s Health v. Jackson (2021):
To be sure, in Ex parte Young, this Court recognized a narrow exception grounded in traditional equity practice—one that allows certain private parties to seek judicial orders in federal court preventing state executive officials from enforcing state laws that are contrary to federal law. . . . If a state court errs in its rulings, too, the traditional remedy has been some form of appeal, including to this Court, not the entry of an ex ante injunction preventing the state court from hearing cases.
This language gets even closer to Professor Harrison’s position and a still narrower view of equity in these cases.
6. Now, to this case (and some election law!). The Presidential Election Day Act of 1845 set the first Tuesday after the first Monday in November as Election Day. That was amended slightly under the Electoral Count Reform Act to ensure that the election occurs pursuant to laws in existence on Election Day. So, could one sue in federal court in equity to enjoin a state official from enforcing a state law that is arguably contrary to this federal law?
A good analog might be Foster v. Love, a 1997 Supreme Court case in which the Court found that Louisiana’s election and runoff system ran afoul of 2 U.S.C. § 7, the comparable statute setting the date for congressional elections. But… Foster took place before the Court’s more recent jurisprudence on the matter, and it never addressed the cause of action point.
7. So who’s asking this question, anyway? In Burgess, the Nevada Attorney General filed a motion to dismiss, arguing the plaintiffs lack standing, they should lose on the merits, and that laches bars the claim. Typical stuff.
The Democratic National Committee, represented by Perkins Coie, intervened, and it filed a motion to dismiss, arguing for a different statutory interpretation framework than the Attorney General (to the same end) and that laches barred the claim. Again, typical stuff.
But another set of intervenors, Vet Voice Foundation and Nevada Alliance for Retired American, represented by the Elias Law Group, filed its own motion to dismiss. But they included this argument (Part II-A of the brief to read it in its entirety, because I have edited it below):
In Count I, Plaintiffs allege that the Mail Ballot Receipt Deadline violates three federal statutes, two which set out the “day for the election” of members of Congress, and the third which sets the day on which “[t]he electors of President and Vice President shall be appointed.” 2 U.S.C. §§ 1, 7; 3 U.S.C. § 1. This statutory claim fails at the threshold because Plaintiff has no private right of action to enforce these statutes. . . .
Plaintiffs’ reliance on Ex parte Young does not change this. Ex parte Young provides a cause of action in one, specific circumstance: where an “individual claims federal law immunizes him from state regulation” and sues for “an injunction upon finding the state regulatory actions preempted.” Armstrong, 575 U.S. at 326. Thus, the Ninth Circuit allowed an action under Ex parte Young where tenants challenged as a violation of the Due Process Clause an eviction procedure under which state courts issued eviction orders without a hearing. But as the Sixth Circuit has explained, “matters differ when litigants wield Ex parte Young as a cause-of-action creating sword. In that setting—today’s setting—the State is not threatening to sue anyone,” and the plaintiff seeks an affirmative change to state conduct, not just immunity from unlawful regulation. That is the situation Armstrong addresses, and it requires a statutory cause of action—Ex parte Young does not suffice.
Plaintiffs do not cite any statutory cause of action in support of their statutory claims, and no such cause of action exists. In particular, 42 U.S.C. § 1983 does not authorize Plaintiffs’ statutory claims. . . . Section 1983 therefore allows suit only for deprivations of “rights, privileges, or immunities secured by the Constitution and laws of the United States . . . not the broader or vaguer ‘benefits’ or ‘interests.’” Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002). . . .[n.10]
[n.10] While the Supreme Court addressed a statutory claim under 42 U.S.C. § 1983 based on a violation of the Election Day Statutes in Foster v. Love, 522 U.S. 67 (1997), the Court addressed only the meaning of the Election Day Statutes and not the existence of a cause of action. The Fifth Circuit had expressly declined to address that issue below, emphasizing that among the “issues not considered in this opinion” was “whether plaintiffs have stated a claim enforceable under 42 U.S.C. § 1983.” Love v. Foster, 90 F.3d 1026, 1032 n.8 (5th Cir. 1996). And that decision predated by several years the Supreme Court’s narrowing of the scope of permissible § 1983 claims in Gonzaga, 536 U.S. at 283 (“We now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983.”).
Now, this argument may well unduly narrow the scope of the Young “cause of action.” Consider American School of Magnetic Healing v. McAnnulty (1902), which predates Young, and arises in different facts (the court ordering the Postmaster General to refrain from refusing to send along letters, as it was outside his statutory duty), along with other cases that even predate this.
(You might notice that this reverses the partisan valence of the Voting Rights Act litigation. More conservative groups argued there was no right of action there, and more progressive groups argued there was. Here, it’s the conservative groups arguing for the ability to sue, and progressive groups arguing against it. It is also somewhat notable that the DNC did not raise this argument but the other outside intervenors did.)
8. It appears this argument in particular attracted the attention of other outside groups. The ACLU, Campaign Legal Center, and Protect Democracy have subsequently sought to file an amicus brief in this case, largely directed at addressing this specific argument raised by Vet Voice and NARA. It is a lengthy brief, and I cannot do it justice here, but the briefs emphasizes that it believes much more is at stake than just 3 U.S.C. § 1–perhaps other elements of the ECRA as well. From the brief:
[W]hile Plaintiffs engage the correct equitable mechanism to pursue their statutory claims in Count I, the Court should grant Defendants’ Motions to Dismiss because those claims lack merit. Although Plaintiffs can pursue their federal statutory claim through an equitable cause of action attributed to Ex parte Young, 209 U.S. 123 (1908), their arguments fail because Nevada’s laws governing the receipt of mail ballots (the “Mailbox Deadline”) represent appropriate regulation of mail voting in a manner that Congress has not preempted.
The Court should explicitly hold that private parties may seek prospective injunctive relief for alleged violations of the Electoral Count Reform Act (ECRA), including but not limited to the provisions in 3 U.S.C. § 1, through the Court’s traditional equitable cause of action. However, the Court should grant Defendants’ Motions to Dismiss here because Plaintiffs misapply the statutes setting election day for federal elections. . . .
The availability of an Ex parte Young action seeking equitable relief for violations of federal law includes but is not limited to the circumstances of Ex parte Young, which concerned an injunction to prevent state enforcement proceedings against the private plaintiff. . . .
An equitable Ex parte Young action is among the causes of action at hand to remedy ECRA violations. Such relief is available here based on the considerations that (1) the complaint seeks prospective relief for ongoing violations of federal law, (2) Congress did not enact a detailed remedial scheme to preclude an Ex parte Young action, and (3) there is no adequate remedy at law. Each consideration favors holding that an Ex parte Young action is available for an ECRA claim. . . .
Violations of 3 U.S.C. § 1 can be remedied through prospective injunctive relief. For example, if a state closes voting and completes the appointment of presidential electors before the statutorily designated Election Day, the executing official violates the ECRA and can be enjoined to reopen the polls. See, e.g., Foster v. Love, 522 U.S. 67, 72 (1997) (evaluating related congressional election day statutes, but citing 3 U.S.C. § 1, to uphold prospective injunctive relief barring enforcement of an election system where “a contested selection of candidates for a congressional office . . . is concluded as a matter of law before the federal election day”). Moreover, if a hypothetical election official reopened voting weeks after election day—without adhering to the limited election emergency provisions of 3 U.S.C. § 21(1)—a plaintiff could seek injunctive relief to prevent that violation of the ECRA. See 3 U.S.C. § 1. . . .
Here, Congress did not manifest a clear objective to preclude an Ex parte Young action to enforce the ECRA, in part because it neither created an exclusive alternative remedial scheme nor is the text judicially un-administrable under the reasoning from Armstrong. To the contrary, the ECRA explicitly states, in its provision regarding the ECRA’s specific judicial review mechanism available in some circumstances, that it “shall not be construed to preempt or displace any existing . . . Federal cause of action.” 3 U.S.C. § 5(d)(2)(B). By its plain terms, this includes the default Ex parte Young equitable action.
Although the ECRA retains Congress’s limited ability to enforce some provisions when counting electoral votes during the joint session, see 3 U.S.C. § 15(d)(2) (providing for Congress’s limited “[c]onsideration of objections and questions” to electoral votes), that mechanism does not preclude traditional equitable relief. See also, e.g., McPherson v. Blacker, 146 U.S. 1, 23-24 (1892) (adjudging validity of a state’s method of elector appointment as raising “a judicial question,” rejecting that the issue was left to Congress). The ECRA’s provisions in 3 U.S.C. § 15(d) are not sufficiently detailed and comprehensive to displace Ex parte Young. . . .
Moreover, by the time of Congress’s joint session to count electoral votes, Election Day (and any disputes associated with it) will be long past Congress’s ability to consider objections and questions would prove insufficient to provide the type of effective equitable relief to remedy violations of the ECRA. . . .
The ECRA is judicially administrable under an Ex parte Young action. . . .
There’s a lot more, and I only hit some of the highlights here. And they provide a much more robust defense of the RNC’s complaint that argued Congress has not “evidenced an intent to limit” equitable relief here.
But these organizations clearly think much more is at stake in this case, and want a much broader ruling than one that just might apply to the time of Election Day. And these organizations do a nice job of arguing that Young is broader than suggested.
Nevertheless, I do have some skepticism of some of the analogies in this brief–McPherson, for instance, was originally filed in state court, not federal court, and we know that an adverse judgment from a state court can be appealed to the Supreme Court even if a federal trial court might not have had jurisdiction. Likewise, I’ve argued elsewhere that federal courts trying to “enforce” the “safe harbor” deadline in the old Electoral Count Act after Bush v. Gore have been getting it wrong, because that deadline binds Congress, not courts or states, unless a state legislature has expressed a legislative preference to meet that deadline (all moot points after the Electoral Count Reform Act removed the “safe harbor,” but an important comparison all the same).
9. So, I have some intrigue and some skepticism of both the intervenors’ motion and the amicus brief–but then again, it’s a tough issue, so I hardly have definitive conclusions!
That said, what’s at stake? More specifically, pausing to reflect at the the specific issue in this case, what is at stake about a dispute on the time of holding an election?
On the one hand, it seems odd to think that if a state held an election on, say June 1, federal courts would be powerless to step in and tell the state its election needed to be held in November.
On the other hand, does a federal court need to do so? Couldn’t a state court do so? Or, isn’t the threat that Congress might throw out electoral votes sufficient deterrence–and a sufficient consequence? Or, isn’t the fact that Congress has not thrown out such votes a suggestion that courts need not get involved.
This raises complicated questions of whether Congress’s power (which, I’ve argued, is not reviewable by the judiciary once it counts or refuses to count electoral votes) and its articulation of how it goes about exercising that power precludes judicial relief. The RNC and the ACLU/CLC/PD briefs think it’s not the case that relief has been precluded here.
10. More broadly, what about other provisions of the ECRA? For instance, 3 U.S.C. § 5(a)(1): “Not later than the date that is 6 days before the time fixed for the meeting of the electors, the executive of each State shall issue a certificate of ascertainment of appointment of electors, under and in pursuance of the laws of such State providing for such appointment and ascertainment enacted prior to election day.”
The ACLU/CLC/PD brief is clearly presaging this concern, whether one could go into federal court in equity to seek relief.
But there would be other, greater complications in doing so. For instance, and to name just one, the requirement turns on a certificate issued “under and in pursuance of the laws of such State” would require federal courts to consider matters of state law and order executives to comply with it, which runs into what’s known as Pennhurst problems. It is potentially “judicially unadministrable,” to borrow from Armstrong, if that is the case.
It’s a reason why I noted that in previous disputes relating to certificates of election for senators, litigation arose in state court–even though the obligation to issue a certificate is a part of federal law.
11. But separate and apart from whether Young is available in the first place (that is, whether the statutory scheme has ousted the federal courts from providing a remedy) is whether equity permits the relief sought. And there are many other equitable reasons to think that the litigation might not always succeed (but at other times, it might!). For instance, if mandamus is available–a remedy at law–then equitable relief like an injunction would be inappropriate. Likewise, equity disfavors remedies for political rights. Mandatory injunctions (ordering an official to do something) are less favored than negative injunctions (ordering an official to not do something)–because of the greater managerial burden of a mandatory injunction. Enjoining an executive official from enforcing a law (language used in Whole Women’s Health) is different from discretionary behavior of election officials (which is sometimes committed to them by statute).
In short, even if one can overcome the hurdles to say that Young allows a court to hear the claim, a court still has to get to the equitable factors in granting relief. Sometimes the plaintiff will succeed. At other times, not so.
And, of course, this is only about federal court, and only about Young. If parties have Due Process or Equal Protection claims, this entire line of analysis isn’t at issue, because Section 1983 controls. Likewise, if the claim is brought in state court (which I expect is the more attractive route for run-of-the-mill mandamus issues if the state election official is not following state law), this line of analysis isn’t at issue (but state courts might have their own concerns in the event the lawsuit is in equity).
12. Now, there are a dozen ways for a court to decide the Burgess case without this issue, particularly if it concludes there is no standing, or there is no standing for the requested remedy, or if it assumes without deciding there is a cause of action, or if it assumes that Foster controls. So there’s no particular reason to believe this court in this case will resolve all, or even any, of the issues that may arise.
But, I only briefly (despite this being extremely long!) highlight one small fight that is potentially snowballing into something much larger. And it also highlights the challenges of bringing these claims in federal court in the first place. It’s an interesting legal strategy from the intervenors to raise this issue, and then from amici to step in and weigh in against it. And it’s one of the cases I’ll now be watching closely ahead of the 2024 election, as it might establish some precedents about when and where and who can sue about issues relating to the Electoral Count Reform Act.