Constitutional Law Prof Blog

D.C. District Says Voters Lack Standing to Challenge Noncitizen Voting

Judge Amy Berman Jackson (D.D.C.) ruled today that a group of voters in D.C. lacked standing to challenge a D.C. law that allows noncitizens to vote in local, but not national, elections. The court said that plaintiffs lacked a particularized injury:

In sum, plaintiffs have not alleged that they have personally been subjected to any sort of disadvantage as individual voters by virtue of the fact that noncitizens are permitted to vote, too. They may object as a matter of policy to the fact that immigrants get to vote at all, but their votes will not receive less weight or be treated differently than noncitizens' votes; they are not losing representation in any legislative body; nor have citizens as a group been discriminatorily gerrymandered, "packed," or "cracked" to divide, concentrate, or devalue their votes. At bottom, they are simply raising a generalized grievance which is insufficient to confer standing.

Federal law prohibits noncitizens from voting in federal elections. According to Ballotpedia, as of March 2024, seven states prohibit noncitizens from voting in state and local elections (Alabama, Arizona, Colorado, Florida, Louisiana, North Dakota, and Ohio), and D.C. and municipalities in three states (California, Maryland, and Vermont) allow noncitizens to vote.

Court Against Rejects Alabama's Congressional Map

A three-judge district court again rejected Alabama's congressional map, which again includes only one opportunity district for Alabama Black voters. The ruling comes after the state legislature took another stab in response to the Supreme Court case this summer, Allen v. Milligan, upholding the lower court's ruling that the first map likely violated Section 2 of the Voting Rights Act.

The legislature's delays and intransigence are bold, to say the least. Here's what the court said in its most recent ruling:

We are disturbed by the evidence that the State delayed remedial proceedings but ultimately did not even nurture the ambition to provide the required remedy. And we are struck by the extraordinary circumstances we face. We are not aware of any other case in which a state legislature--faced with a federal court order declaring that its electoral plan unlawfully dilutes minority votes and requiring a plan that provides an additional opportunity district--responded with a plan that the state concedes does not provide that district. The law requires the creation of an additional district that affords Black Alabamians, like everyone else, a fair and reasonable opportunity to elect candidates of their choice. The 2023 Plan fails to do so.

The district court appointed experts to draw new maps, due by September 25. Meanwhile, the state's appealing to the Supreme Court. If Alabama manages to drag this out long enough, it could as a practical matter avoid drawing a second opportunity district for the 2024 congressional election, even if the courts rule against it. That's because of the Purcell principle--the idea, applied with increasing force by the Court, that courts shouldn't force changes to election laws too close to an election, for fear of confusing voters. Given that it's only September 2023, that may seem far-fetched. But really, who knows? Alabama's gambits have put this case in unchartered territory.

Colorado Voters Sue To Keep Trump Off Ballot

Six Colorado voters filed suit in state court to keep Trump off the ballot, arguing that he's disqualified under Section 3 of the Fourteenth Amendment. The lengthy and detailed complaint preemptively addresses the several arguments against Section 3's application to Trump and state courts' authority to enforce Section 3. It asks the court to enjoin the state secretary of state from taking any action that would give Trump access to the ballot.

Supreme Court Rejects Strong Independent State Legislature Theory

The Supreme Court today flatly and unequivocally rejected a strong version of the independent state legislature theory (ISL)--the theory that state legislatures have plenary authority over rules for federal elections in their states. But it left open federal judicial review of state-court decisions on state election laws that are out of line (to one degree or another, the Court didn't specify) with state law.

ISL is the theory that a state legislature--and a state legislature alone--can set state election law for federal elections. It's based on a literal reading of the U.S. Constitution's Election Clause, which says "the Legislature" of each state shall prescribe "[t]he Times, Places and Manner of holding Elections for Senators and Representatives . . . ." According to ISL, "the Legislature" means the state legislature alone, and not the broader lawmaking authority of the state under the state constitution (which includes state-court judicial review of state legislative acts, the governor's signature or veto, etc.). The Constitution's Electors Clause reads similarly, and similarly grants authority to "the Legislature" to direct the process for the appointment of the state's electors in a presidential election.

The ruling means that state courts can continue to rule state election laws unconstitutional under the state constitution, and that they can continue to interpret state election laws in light of their own state law. In other words, state courts continue to have the power of judicial review in the area of state election law. But at the same time, state court review itself is subject to federal court review if the state court goes too far out of line. (Again, how far we do not know.)

It's not clear how this'll all play out. But there are some certainties. For one, the Court flatly rejected the strong version of ISL--that state legislatures have plenary power to set state election law for federal elections, without review by state courts and not subject to state constitutional requirements. For another, to the extent that former President Trump's team relied on the strong version ISL to overturn the electoral results in several states in the 2020 presidential election (it was central to that effort), and to the extent that the Court's approach to ISL is the same under the Elections Clause and the Electors Clause (they appear to be exactly the same), the Court closed the door to these kinds of shenanigans in future presidential elections. In particular, today's ruling seems to flatly foreclose any effort by a state legislature to circumvent existing state law and state-court rulings and unilaterally appoint electors to whomever it wishes.

And just to put an exclamation point behind all of that, Chief Justice Roberts wrote the Court's opinion (joined by Justices Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson). That's significant, because Chief Justice Roberts dissented in Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court's latest foray into the Elections Clause, upholding Arizona's independent redistricting commission against an ISL-type challenge. Chief Justice Roberts argued that the Court got it wrong, with a full-throated defense of ISL.

Less clear, however, is how the Supreme Court may intervene in future state-court cases involving more run-of-the-mill (but nevertheless hugely important) state election-law issues--what standard it'll use to assess those rulings, how much deference the Court will give to state courts to interpret their own state laws and state constitutions, and how the Court is likely to rule in those cases.

The case, Moore v. Harper, arose when the North Carolina legislature gerrymandered its congressional districts. Plaintiffs sued in state court, arguing that the gerrymander violated the state constitution. (They didn't sue in federal court or raise a federal claim, because the Supreme Court ruled in Rucho v. Common Cause that partisan gerrymandering claims under the federal Constitution are nonjusticiable "political questions.") The North Carolina Supreme Court agreed with the plaintiffs, ruled the congressional map unconstitutional under the state constitution, and remanded the case to the state trial court to oversee the drawing of a new map.

North Carolina legislative leaders sought Supreme Court review, arguing that the state supreme court violated the federal Constitution's Elections Clause by overturning the state legislature's election law (the congressional districting map). After the Court agreed to hear the case, however, the state supreme court (after a judicial election) reversed course and ruled that partisan gerrymandering isn't justiciable under the state constitution. The court withdrew and "overruled" its earlier decisions.

After that latest move by the state supreme court, the case raised two issues at the U.S. Supreme Court: (1) Is the case moot in light of the state supreme court's latest ruling, and (2) does the state supreme court's first ruling (the one overturning the legislature's partisan gerrymander under the state constitution) violate the federal Elections Clause.

As to mootness, the Court held that the case still presented a live controversy, because the state supreme court's most recent ruling didn't change that court's first judgment that halted the state's use of its gerrymandered map. (It only ruled that the question was nonjusticiable.) Moreover, the Court said that federal law authorized it to hear the case. "The record shows that Harper I finally decided the Elections Clause question, the judgment in that case continues to bind the parties before us, and the 2021 congressional maps would again take effect in North Carolina were we to reverse. Accordingly, we have jurisdiction under both Article III and [28 U.S.C. Sec. 1257(a)]."

As to the merits, the Court held that the idea that state courts can review state legislative acts under the state constitution and state laws was hard-wired into our federal constitutional system even before the framing, that state-court judicial review is therefore part of the state's lawmaking authority, and that state-court judicial review is part of "the Legislature" under the Election Clause. The Court said that Court precedent supported this result.

The Court went on to say that the Supreme Court could still review those state-court rulings that are out of line with the federal Constitution or state law (including the state constitution). But it didn't provide a standard or rule for this kind of review, instead leaving it open for future cases.

Justice Kavanaugh concurred, noting that the Court didn't set a standard, but arguing for the standard that Chief Justice Rehnquist pushed in Bush v. Gore: "whether the state court 'impermissibly distorted' state law 'beyond what a fair reading required.'"

Justice Thomas dissented on mootness (joined by Justices Alito and Gorsuch) and on the merits (joined only by Justice Gorsuch). He also noted the Court's lack of standard for future cases,  saying that he "would hesitate long before committing the Federal Judiciary to this uncertain path," especially in "an advisory opinion, in a moot case . . . ."

Court Strikes Alabama's Congressional Map, Reaffirms VRA Redistricting Test

The Supreme Court today upheld a lower court's ruling that Alabama's congressional map likely violated Section 2 of the Voting Rights Act. The Court applied (and reaffirmed the validity of) a longstanding test for Section 2 redistricting claims--a test that many expected the Court to narrow or even overrule. The ruling means that Alabama has to add a second majority Black district to its seven-district congressional map.

The ruling is surprising and significant, given that the Court has sharply curtailed other portions of the VRA in recent Terms. This case goes directly against that trend, and provides a sign that the Court will fully enforce the VRA in the redistricting context--even as it's eviscerated the VRA's preclearance requirement and all but eviscerated the Act's Section 2 protections against other voting procedures.

The case, Allen v. Milligan, tested Alabama's congressional map. The map include one majority Black district out of seven congressional districts, even though Black residents accounted for 27 percent of Alabama's population, and even though the legislature could easily--and more sensibly--have drawn a second majority Black district.

A three-judge district court held that the map likely violated Section 2--indeed, that it wasn't even a close case--and preliminarily enjoined the state from using the map in future elections. The Supreme Court stayed the injunction last year, allowing Alabama to use the map for the 2022 mid-terms. But today the Court affirmed the lower-court ruling.

The Court held that the lower court properly applied the time-tested framework for assessing redistricting plans under Section 2. Under that framework, from Thornburg v. Gingles, a plaintiff must first satisfy three preconditions: (1) that the "minority group must be sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district"; (2) that "the minority group must be able to show that it is politically cohesive"; and (3) that "the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it . . . to defeat the minority's preferred candidate." If a plaintiff can establish the three Gingles preconditions, then the courts look to the totality of the circumstances to determine whether the political process is not "equally open" to racial minority voters.

In affirming the lower-court ruling, the Court leaned heavily on precedent--the many cases applying the Gingles framework to redistricting--and thus validated and reinforced the approach. (Again, this stands in stark contrast to the Court's evisceration of the preclearance requirement and Section 2's application to ordinary voting restrictions in recent Terms.)

At the same time, the Court flatly rejected Alabama's several arguments to overturn or significantly narrow Gingles and adopt some version of a race-blind requirement to redistricting.

Chief Justice Roberts wrote for the Court, including Justices Sotomayor, Kagan, Kavanaugh (for all but a portion), and Jackson. Justice Thomas dissented, joined by Justice Gorsuch and in part by Justices Alito and Barrett. Justice Alito dissented, joined by Justice Gorsuch.

The principal cleavage involved whether and how race could play a role in a plaintiff's "illustrative" maps. In Section 2 redistricting litigation, a plaintiff offers illustrative maps to demonstrate that the state could have created another majority-minority district, consistent with the VRA. In practice, this allows a plaintiff to satisfy the first Gingles precondition. The justices hotly disputed whether a plaintiff's illustrative maps can consider race at all, if so how much, and whether the plaintiffs' maps in this case considered race too much.

Chief Justice Roberts wrote that a plaintiff can consider race in drawing illustrative maps, but that race can't predominate. He wrote that the plaintiffs' maps met that test. Justice Kavanaugh did not join this portion of the Chief's opinion, but he nevertheless concurred "that Alabama's redistricting plan violates Section 2 of the Voting Rights Act as interpreted in Thornburg v. Gingles," and that Section 2 "requires in certain circumstances that courts account for the race of voters so as to prevent" the dilution of racial minority voters' votes.

Justice Thomas argued that Section 2 doesn't apply to redistricting (a portion of his dissent not joined by Justices Barrett and Alito); that any benchmark for a Section 2 challenge must be race neutral; that the plaintiffs' illustrative maps were impermissibly race-based; and that Section 2 as construed by the Chief would exceed congressional authority under the Fourteenth and Fifteenth Amendments.

Justice Alito argued that under Gingles race cannot predominate in a plaintiff's illustrative maps. He "would vacate and remand for the District Court to apply the correct understanding of Gingles in the first instance."

Court to Hear Case on Independent State Legislature Theory

The Supreme Court will hear oral argument tomorrow in Moore v. Harper, the case testing whether a state legislature has plenary power over federal elections in the state, unconstrained by state courts. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

Case at a Glance

In November 2021, the North Carolina legislature adopted a new map for its congressional districts. The North Carolina Supreme Court ruled that the map violated the state constitution, however, and, pursuant to state law, a lower state court issued a temporary replacement map. State legislative leaders and other state officials challenged the state-courts’ power to override the legislature’s congressional map, arguing that the state-courts’ actions violated the Elections Clause in the U.S. Constitution.

INTRODUCTION

The Elections Clause says that a state’s “Legislature” has authority to regulate federal elections, including drawing legislative maps for congressional districts. Legislative leaders and state officials argue that this means that the legislature, and the legislature alone, has plenary power to regulate elections in whatever ways it wants. Voters and voting-rights groups counter that the “Legislature” refers to the entire state lawmaking apparatus, consistent with state law and the state constitution, as interpreted and enforced by the state courts.

ISSUE

Does the Elections Clause give plenary power to a state legislature to regulate federal elections, without regard to state law and its own state constitution, as interpreted by the state courts?

FACTS

On November 4, 2021, the North Carolina General Assembly enacted a new map for the state’s congressional districts. Individual voters and voting-rights groups sued state legislative leaders and other state officials in state court to halt the state’s use of the map, however, alleging that it amounted to an extreme partisan gerrymander in violation of the North Carolina Constitution. (The plaintiffs also challenged the state legislative maps, but those challenges aren’t a part of this case.)

Pursuant to state law, the Chief Justice of the North Carolina Supreme Court appointed a three-judge panel to preside over the case. (North Carolina law provides that lawsuits “challenging the validity” of legislative maps shall be heard by special three-judge panels.) The court declined to halt the state’s use of the map, reasoning that voters and voting-rights groups were unlikely to establish standing and that their claims were nonjusticiable political questions.

The plaintiffs then sought relief in the North Carolina Supreme Court. The state Supreme Court granted a preliminary injunction, delayed the state’s primary election until May, and remanded the case to the trial court for expedited proceedings.

On remand, the three-judge trial court unanimously found that the map was an “extreme partisan outlier[]” resulting from “intentional, pro-Republican partisan redistricting.” The court found that the map was “intentionally and carefully designed to maximize Republican advantage.” But the court again ruled that partisan gerrymandering claims were nonjusticiable political questions, and again upheld the map.

The North Carolina Supreme Court reversed. The state high court first ruled that the voters and voting-rights groups had standing and that their claims were justiciable. On the merits, the court ruled that the map violated several provisions of the state constitution. In short, the court held that the map violated the voters’ rights “to cast votes that matter equally.”

The court considered the legislative leaders’ argument that the Elections Clause in the U.S. Constitution barred the court’s review of the map. But the court ruled that the legislative leaders waived that argument, because the legislative leaders hadn’t raised it in the trial court. Still, the court wrote that the argument was “repugnant to the sovereignty of states, the authority of state constitutions, and the independence of state courts.”

The state Supreme Court remanded the case to the trial court. Pursuant to state law, the court provided the state legislature “the opportunity to submit new congressional and state legislative districting plans that satisfy all provisions of the North Carolina Constitution.” (Under state law, if a state court concludes that a map is unconstitutional, it must give the legislature at least two weeks to “remedy [those] defects.”)

The state legislature enacted a new congressional map and submitted it to the trial court for review. The trial court ruled that this new map, too, violated the state constitution. Pursuant to state law, the trial court then adopted a map drawn by three special masters (which the court appointed) for use in the 2022 election only. (Under state law, if a state court rules that a map is unconstitutional, and if the legislature fails to “remedy [those] defects,” “the court may impose an interim districting plan for use in the next general election only.”) The court’s map adjusted the legislature’s proposed map, but only as necessary “to bring it into compliance” with the state constitution.

The legislative leaders sought a temporary stay of the trial court’s order in the North Carolina Supreme Court. But the state high court denied the motion.

The legislative leaders then sought emergency relief at the U.S. Supreme Court, arguing that the state courts’ rulings violated the Elections Clause in the U.S. Constitution. (This is the same argument that the legislative leaders raised at the North Carolina Supreme Court.) The Court declined to intervene, although four justices acknowledged the importance of the issue and expressed interest in hearing the case on its regular docket. The Court later agreed to hear the case.

In the meantime, the legislative leaders’ appeal remains pending before the state Supreme Court. The court heard oral argument on October 4. A decision is expected later this year.

CASE ANALYSIS

This case tests the role of “the Legislature” in federal elections under the Elections Clause of the U.S. Constitution. That Clause reads in full,

The 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 Place of ch[oo]sing Senators.

The legislative leaders argue first that the plain language of the Clause means that only a state “Legislature” can set the rules for federal elections, including drawing the state’s congressional map. The leaders say that the Constitution’s Framers used this language deliberately, as evidenced by their consideration and rejection of a plan to delegate this authority instead to each state as a whole. (This alternative would have included each states’ entire lawmaking apparatus, including state-court judicial review of a state legislature’s actions, and not just a state “Legislature.”) They claim that this reading—that state legislatures have the exclusive authority to regulate federal elections—makes sense in the context of our federalism system. According to the leaders, that’s because state constitutional limits (enforced by the state courts) have no force “against acts governed by the federal Constitution.” The leaders say that this reading is also consistent with early state practice, when “[t]he vast majority of States—21 out or 24, by 1830—did not impose any express state-constitutional restrictions on the regulation of federal elections.” They say that this reading is consistent with Court precedent, too.

The legislative leaders argue next that the North Carolina legislature did not delegate its authority to regulate federal elections to the state courts. They say that the state legislative mechanism authorizing state-court judicial review of the legislature’s congressional map itself violates the Elections Clause (because the legislature cannot delegate its exclusive power over federal elections at all). But even if the legislature can delegate some of its power, the leaders claim that the state-court rulings in this case far exceeded that delegable power, because their rulings amounted to “unmoored policy determination[s] deciding how much partisanship is permissible in redistricting.”

The voters and voting-rights groups counter (in two separate briefs) that the North Carolina legislature properly regulated federal elections by enacting state law that delegated authority to the state courts to review congressional districting to ensure that it complies with the state constitution. They say that the state courts acted pursuant to that authority in striking the legislature’s congressional map and issuing a temporary one. And they assert that the Court has no authority to second-guess the state courts over their own interpretation of state law or their own state constitution.

The voters and voting-rights groups argue next that even if the Court addresses the defendants’ arguments, those arguments are wrong. The voters contend that the text, history, and precedent all demonstrate that “the Elections Clause does not free state legislatures from the requirements of their state constitutions,” as interpreted by their state courts. As to text, the voters argue that “[a]t the founding, the word ‘legislature’ was universally understood to mean a body created and constrained by its constitution” and subject to ordinary and widely practiced judicial review by state courts. As to history, they say that over three-quarters of all state constitutions adopted or amended soon after ratification directly regulated federal elections, and ever since states have regulated federal elections through their constitutions. As to precedent, they contend that the Court has consistently ruled that state legislatures are bound by their constitutions when they regulate federal elections.

Finally, the voters and voting-rights groups argue that the legislative leaders’ theory would upend the way states currently regulate elections and lead to significant and widespread election problems. They say that the leaders’ theory could lead to confusion, protracted litigation, and even separate state and federal elections; it could also nullify state constitutional provisions that regulate or touch on federal elections, and eliminate any judicial remedy to ensure that state legislatures follow their own laws. According to the voters, the leaders’ attempts to avoid these problems by cabining their theory only underscore its implausibility. For example, the voters say that the leaders’ concession that state legislatures must follow “procedural” constitutional constraints, but not “substantive” constitutional constraints, has no basis in text, structure, history, or precedent. The voters say the same for the leaders’ distinction allowing state-court rulings that enforce “specific” rules but not “open-ended” ones.

SIGNIFICANCE

This case tests a novel approach to state legislative power over congressional elections, called the independent state legislative theory. That theory holds that state legislatures have plenary power over congressional elections, regardless of the constraints imposed by their own state constitutions. The strongest version of the theory says that state legislatures have absolute control over these elections, irrespective of any constraints in their state laws or state constitutions. This could mean, for example, that state legislatures acting alone could draw congressional districts or establish rules for congressional elections that would otherwise violate substantive individual rights and procedural requirements in their state laws and state constitutions—and that the state courts and other state authorities would be powerless to override them. Weaker versions of the theory hold that state legislatures have principal control over these elections, but that state law or state constitutions can impose some constraints. For example, weaker versions may require the legislature to follow certain procedures, or limit state-court review of a legislature’s action so that the state courts don’t override the legislature’s policy choices.

In modern times, the theory had its highest-profile appearance at the Court in Chief Justice William Rehnquists’s concurring opinion in Bush v. Gore. 531 U.S. 98 (2000). Chief Justice Rehnquist concurred with the per curiam decision reversing the Florida Supreme Court’s order requiring manual recounts in that hotly contested election. But he invoked an alternative basis for that conclusion: the Electors Clause. That Clause, like the Elections Clause, uses the term “legislature,” but for a different purpose. It provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,” electors for President and Vice President. Quoting a much earlier case, McPherson v. Blacker, 146 U.S. 1 (1892), Chief Justice Rehnquist wrote that the Electors Clause “convey[s] the broadest power of determination” and “leaves it to the legislature exclusively to define the method” of appointment. A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.” This was not the opinion of the Court, however; instead, Chief Justice Rehnquist wrote only for himself and Justices Antonin Scalia and Clarence Thomas.

More recently, Chief Justice John Roberts fiercely defended a version of the theory in his dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission. 576 U.S. 787 (2015). Chief Justice Roberts, at great length, traced the text, history, and precedent of the Elections Clause to argue that an independent redistricting commission, created by a voter-driven ballot initiative, impermissibly stripped authority from the state legislature to draw congressional districts. Chief Justice Roberts seemed to articulate a relatively weaker version of the theory, however, which might allow for some restrictions on a state legislature (in particular, procedural restrictions). He was joined in his dissent by Justices Scalia, Thomas, and Samuel Alito. The Court in that case, after its own exhaustive examination of the text, history, and precedent of the Elections Clause, flatly rejected the theory. The Court instead held that “the Legislature” includes the state’s broader lawmaking process, including, in that case, ballot initiatives.

(As the competing opinions in Arizona State Legislature suggest, text, history, and precedent will play important roles in this case. Especially history. The parties sharply disagree about the original meaning of “the Legislature” in the Elections Clause. As so much recent scholarship has demonstrated, the plaintiffs have the far better case. Still, look for the Court to probe the historical evidence on both sides.)

Most recently, in this very case, the theory had an appearance when the Court first declined to intervene on an emergency basis. Justice Brett Kavanaugh concurred, and wrote that “the underlying Elections Clause question . . . is important” and that the Court should “definitively resolve it.” Justice Alito, joined by Justices Thomas and Neil Gorsuch, dissented, and argued that the North Carolina courts’ rulings violated the Elections Clause (or at least that the defendants’ “argument is stronger”). 

All this means that four or five justices already seem to endorse some version of the independent state legislature theory.

If the Court adopts the theory, the implications could be revolutionary. As the plaintiffs and their amici explain, the theory could completely upend how we conduct elections. The theory could threaten everything from state-court-ordered redistricting (as in this case) to independent commissions (as in Arizona State Legislature) to routine executive enforcement of state election law (for example, when a state executive officer orders accommodations to protect the right to vote). At the extreme, the theory could empower a state legislature to disregard any state statutory or constitutional provision, and to bypass any other coordinate branch of state government. Any efforts to cabin the theory to avoid some of these results could create their own problems, as the plaintiffs explain in response to the defendants’ suggested limits.

And more. If the Court adopts the independent state legislature theory as to the Elections Clause, some state legislatures could read that as an open invitation to apply the theory to the Electors Clause. Unless the Court somehow cabined such a ruling, state legislatures could read such a ruling to authorize them to appoint presidential electors any way they see fit, irrespective of the popular vote in their state. This was one theory that former President Trump’s team pushed when it tried to persuade certain state legislatures to appoint their electors to him in the 2020 presidential election. If the Court adopts the theory, it could, as a practical matter, empower such a move in the next presidential election. (To be sure, there are textual differences between the Elections Clause and the Electors Clause such that the independent state legislature could apply differently. But that might not matter to a state legislature bent on regulating an election in a particular way or appointing electors to a particular candidate.)

With all this at stake, there is an easy way for the Court to avoid these problems, while still acknowledging that state legislatures play an important role in regulating congressional elections. The Court could simply recognize that the North Carolina legislature properly regulated federal elections by delegating authority to review congressional districting to the state courts. The Court could issue such a ruling without determining the precise scope or sweep of the state legislature’s authority; it could simply acknowledge that the state legislature has regulated congressional elections, and that the state’s lawmaking apparatus acted consistently with its regulatory scheme.

Ninth Circuit Upholds California's Recall Process

Steven D. Schwinn, University of Illinois Chicago School of Law

The Ninth Circuit this week rebuffed a challenge to California's recall process. The ruling means that the process stays in place.

The case, Clark v. Weber, arose when a voter who opposed the recall of Governor Newsom argued that the state's recall process violated the Constitution. Under the process, voters first vote whether to recall the official. If a majority votes to recall, the official is recalled. Voters next vote for a replacement (in case the first vote results in a recall). Any candidate for replacement who gets a plurality wins (again, assuming that the first vote results in a recall). The incumbent cannot run as a candidate in that second vote.

Clark argued that the process violated one-person-one-vote, because, as a Newsom supporter, he only had one vote (in the first part of the process), whereas voters who opposed Newsom had two votes. He also argued that an incumbent must receive a majority to stay in office, whereas a challenger needs to get only a plurality.

The court rejected both theories. The court said that California's process is really two separate elections run together, and that everyone gets a vote in both. To the extent that Clark's choices don't include the incumbent in the second election, the court said that this wasn't a severe restriction on the right to vote. (The court analogized the exclusion of the incumbent to term-limit laws, which the courts have upheld). The court said that the state easily justified this restriction based on its important interest in maintaining the efficacy of its recall procedure.

Court Restricts Drop-Box "Monitoring" in Arizona

Judge Michael T. Liburdi (D. Ariz.) issued a temporary restraining order restricting how Clean Elections USA, a voter drop-box monitoring and voter intimidation group, can monitor voters. The order also requires the organization to post statements on its website and social media, clearing up the organization's prior misstatements about box-drop rules.

The move is a major victory for voters and voting-rights advocates against an organization whose actions are plainly designed to intimidate voters.

Recall that the court previously declined to stop Clean Election's "monitoring," saying that the plaintiffs hadn't demonstrated that their actions were sufficiently intimidating, and that Clean Elections volunteers had First Amendment rights to "monitor."

Since then, the court held a hearing, and DOJ filed a Statement of Interest in a parallel case. DOJ's statement explained what voter intimidation means under the Voting Rights Act and why cracking down on voter intimidation doesn't violate the First Amendment.

The most recent order--the one restricting drop-box "monitoring"--requires "monitors" to stay 75 feet from drop-boxes, prohibits them from speaking to voters (unless spoken to first), prohibits them from openly carrying firearms, and requires Clean Elections to post statements of (accurate) law on their website and social media (in order to clean up their prior inaccurate statements).

Check Out This Explainer on Gov. DeSantis's Efforts To Curtail Voting Rights

Over at Just Security:

As Americans across the country start the early voting process and prepare to return to the polls for the midterms, election officials should do everything possible to encourage one thing: voting. Instead, Florida’s new “election police” appear to be suppressing it by illegally targeting good faith voting mistakes. Fortunately, the Florida justice system is pushing back, and rightly so.

This is an important test case for American democracy in the newfound battles over voter suppression.

Originalist Scholars Explain Why Independent State Legislature Theory Isn't a Thing

Check out the smack-down, no-holds-barred explanation why ISL isn't a thing, at least by an original understanding, in this amicus brief by none other than Akhil Amar, Vikram Amar, and Steven Calabresi.

The trio filed the brief in Moore v. Harper, the case testing whether a North Carolina Supreme Court ruling that struck an extreme partisan gerrymander under the state constitution violated the Elections Clause. (Appellants in the case argue that it did, because "the legislature" has plenary power over elections, under an ISL reading of the Elections Clause, and that no one--not even the state supreme court, applying judicial review under the state constitution--can intrude on that power.)

The Court'll hear the case on December 7. We'll have a preview before then.

Eleventh Circuit Rebuffs Challenge to Georgia's Voter-List Distribution Practices

Steven D. Schwinn, University of Illinois Chicago School of Law

The Eleventh Circuit rejected a challenge to Georgia's process of distributing voter lists to precincts, reversing a district court order that the state adjust the timing of the distribution in order to cut down on lengthy wait-times at polling places.

The ruling is a win for the state and a blow to the Coalition for Good Governance, which lodged (and is lodging) multi-prong efforts to challenge and reform Georgia's voting practices.

The case shows how state voting practices that we often don't even think about can frustrate voters and even distort elections, and still evade judicial scrutiny.

The case, Curling v. Raffensperger, grows out of Georgia's practice of reporting eligible voters to precincts before election day. Georgia compiles and distributes lists of eligible voters electronically before election day. But the electronic system sometimes fails, so the state offers a paper backup. But the state prints the paper lists before the close of early voting and before the close of absentee voting in the state. This means that the paper lists aren't up to date. This, in turn, requires poll workers to take time to verify the eligibility of more voters, and to force those voters to use provisional ballots.

All this leads to longer wait-times on election day, causing frustrated voters to leave, according to the plaintiffs. Moreover, provisional ballots might not get counted.

The district court held that this system violated the right to vote and ordered the state to print its backup lists only after the close of early voting--so that the backup print lists exactly matched the electronic data on election day.

The Eleventh Circuit reversed. The court applied the Anderson-Burdick balancing test, which says that a voting practice violates the right to vote when the burdens on the right to vote outweigh the state's interests in the voting practice. But the court said that the plaintiffs couldn't connect the burden on the right to vote--the long lines and wait-times at polling places--to the state's reporting practices. In other words: there may have been a harm, even a significant one, but it wasn't caused by the state's reporting practices. Without a harm caused by the challenged practice, the court said that it didn't even have to weigh the state's interests in its reporting practices.

KBJ Goes Originalist on the Fourteenth

Steven D. Schwinn, University of Illinois Chicago School of Law

Justice Ketanji Brown Jackson went originalist on the Fourteenth Amendment (and on Alabama's solicitor general) today at oral arguments in Merrill v. Milligan, the VRA Section 2 to challenge to Alabama's congressional district map.

Justice Jackson explained that the Framers of the Fourteenth Amendment intended to allow Congress to use race-based means to overcome racial inequalities . . . and that Congress actually used race-based means in the Civil Rights Act of 1866. (The point came up in response to Alabama's argument that Section 2 plaintiffs can make their case only with a comparator map that itself is race neutral. Justice Jackson pointed out that an original understanding of the Fourteenth Amendment allows Congress to use race-based methods (like a race-based comparator map) to achieve racial equality (like fair congressional districts).)

Originalism is a constitutional interpretive technique that purports to interpret and apply the Constitution based on its original meaning (or understanding, or intent, depending on your brand). It's usually associated with a politically conservative view of the Constitution. (That's why Justice Jackson's progressive invocation today has gotten some attention.)

For more on this, check out the Constitutional Accountability Center's amicus briefs in Merrill and Students for Fair Admissions v. Harvard and UNC (the affirmative action cases). For that matter, check out CAC's work on progressive originalism generally.

Court to Hear Voting Rights Act Redistricting Challenge

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court will hear oral arguments tomorrow in Merrill v. Milligan, a challenge to Alabama's congressional map under Section 2 of the VRA. The ruling could have major implications for redistricting challenges, and for any continued vitality of the VRA. Here's my oral argument preview, from the ABA's Preview of United States Supreme Court Cases, with permission:

FACTS

On November 4, 2021, Alabama adopted a map of the state’s seven congressional districts based on the 2020 census. The map, also called “HB 1” or “the Plan,” included just one district with a majority of black of voters (a “majority-minority district”), even though black Alabamians constitute 27 percent of the state’s voting-age population. That district, District 7, includes a high concentration of black voters in a portion of the state’s Black Belt region. (The Black Belt region is an area of the state named for its fertile black soil. The region contains a large portion of the state’s black population. It encompasses the two “anchor” cities of Montgomery and Mobile.) This high concentration allows black voters in District 7 to elect a candidate of their choice. But at the same time, HB 1 divides, or “cracks,” the rest of the Black Belt region across three other districts with a majority of white voters. Given the racial politics and voting patterns in Alabama, this prevents black voters from electing a candidate of their choice in those districts and in any other districts in the state.

HB 1’s single majority-black congressional district is nothing new. District 7 was the state’s only majority-minority district when the state adopted maps after the 2000 and 2010 censuses, too. (Before that, after the 1970 and 1980 censuses, Alabama adopted maps that resulted in all-white congressional delegations. Then, in response to a Voting Rights Act claim after the 1990 census, a federal court ordered a map that created District 7 as the state’s sole majority-minority district. As a result of the court’s map, Alabama elected its first black congressmember since Reconstruction.) In every election since District 7 became a majority-minority district, black voters have elected a candidate of their choice with increasing majorities.

Plaintiffs challenged HB 1 in three different cases in federal court. As part of their arguments, the plaintiffs offered eleven illustrative maps that created a second majority-minority district in the state while also comporting with Alabama’s districting guidelines at least as well as HB 1. After a thorough evidentiary hearing, a three-judge district court issued a lengthy and comprehensive ruling that Alabama’s map likely violated Section 2 of the VRA—indeed, that the question was not even “a close one.” (The ruling covered two of the cases, and the judge in the third case adopted it. The court applied the Section 2 framework, described below.) The court issued a preliminary injunction and ordered Alabama to draw a map that remedied the likely Section 2 violation. The court did not require the state to adopt any of the plaintiffs’ illustrative maps.

On February 22, 2022, the Supreme Court stayed the district court’s injunction and noted probable jurisdiction.

CASE ANALYSIS

Let’s start with a little background. Section 2 of the VRA originally prohibited government voting practices or procedures that “deny or abridge the right of any citizen of the United States to vote on account of race or color.” In 1980, the Court interpreted Section 2 to prohibit only “purposefully discriminatory” government actions. City of Mobile v. Bolden, 446 U.S. 55 (1980). This interpretation required plaintiffs to demonstrate government intent to discriminate—a high bar, given that state and local governments had long figured out how to conceal intentional discrimination and nevertheless achieve discriminatory results.

In response to the Court’s interpretation, Congress amended Section 2 to prohibit government voting practices that produced a discriminatory result. Section 2 now prohibits government voting practices and procedures that “result[] in a denial or abridgment of the right . . . to vote on account of race or color.” 52 U.S.C. § 10301(a). Moreover, Congress specified how to determine when a discriminatory result violated Section 2. Under the amendment, a voting practice violates Section 2 “if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in [a] State or political subdivision are not equally open to participation by members of a class of citizens protected by” Section 2, “in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 52 U.S.C. § 10301(b). But Congress also specified that while “[t]he extent to which members of a protected class have been elected to office” is “one circumstance which may be considered,” Section 2 does not “establish[] a right to” proportional representation by race.

The Court construed the amended Section 2 and adopted a framework for its application in districting cases in Thornburg v. Gingles. 478 U.S. 30 (1986). The Court ruled that a Section 2 plaintiff must first establish three “preconditions” for a Section 2 violation. First, “the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.” Second, “the minority group must be able to show that it is politically cohesive.” Third, “the minority [group] must be able to demonstrate that the white majority votes sufficiently as a bloc” to allow it “usually to defeat the minority’s preferred candidate.”

The Court held that if a plaintiff satisfies the three Gingles preconditions, then a court must determine whether, in “the totality of the circumstances,” a districting scheme leaves racial minority voters with “less opportunity than white voters to elect representatives of their choice.” In conducting this analysis, the Court said that courts could consider the several factors identified in the Senate Report that accompanied the 1982 amendments, sometimes called “the Senate factors.” These include considerations like “the history of voting-related discrimination in the” jurisdiction, “the extent to which voting in the” jurisdiction “is racially polarized,” the “extent to which minority group members bear the effects of past discrimination,” the “extent to which members of the minority group have been elected to public office,” and whether the “policy underlying” the contested voting scheme “is tenuous.”

The Court and lower courts have consistently applied the Gingles framework to vote-dilution cases, including cases challenging single-member districting schemes. The three-judge district court applied this framework in this case.

Against this backdrop, Alabama argues that HB 1 does not violate Section 2. It says that Section 2 of the VRA only requires that political processes are “equally open” to all voters, and that Section 2 only prohibits discrimination “on account of race.” According to the state, this “concept of equal openness is not measured simply by disparate impact or lack of proportionality to a statewide minority population.” Instead, “districts are ‘equally open’ when they resemble neutrally drawn districting plans, consistent with the State’s naturally occurring demographics and longstanding districting principles.”

Moreover, Alabama argues that the Gingles preconditions serve to protect these principles. According to the state, this means that any illustrative maps that plaintiffs provide in Section 2 cases to demonstrate that a state could create more majority-minority districts (as in this case) themselves must be drawn with race-neutral criteria. The state contends that race cannot predominate in drawing illustrative maps, or else “Gingles is a useless tool for determining whether race-conscious remedies are appropriate in the first place.” Put yet another way, Section 2 “operates as a prohibition against redistricting plans that discriminate ‘on account of race,’ not as an affirmative obligation for race-based redistricting to maximize or make proportional the number of majority-minority districts.” In practice, this means that Section 2 never requires a state to add a majority-minority district just because it could.

Applying these principles, Alabama argues that HB 1 does not violate Section 2, and that the plaintiffs’ illustrative maps only prove that. The state says that the plaintiffs’ own witnesses said that the state, using traditional districting criteria, could have drawn “millions of possible race-neutral plans” that, like HB 1, contained only one majority-minority district. At the same time, it claims that because the plaintiffs’ illustrative maps in this case “themselves discriminate in favor of one racial group,” the maps “shed no light on whether the State’s plan discriminates against that group.” Moreover, the state claims that the plaintiffs could only produce a map with a second majority-minority district by impermissibly “starting with a ‘nonnegotiable’ racial target and backfilling with other districting criteria after that target had been met.”

Finally, Alabama argues that if the district court properly applied Section 2, then Section 2 must be unconstitutional as applied to single-member districts. According to the state, that’s because Congress would have exceeded its authority in enacting Section 2 under the Fourteenth and Fifteenth Amendments if, as the state says the district court ruled, Section 2 requires racial discrimination in order to enforce its mandate against racial discrimination. Alabama contends that the Court “can avoid this constitutionally dubious outcome” by affirming that Section 2 requires only that states draw their districts neutrally.

The two sets of plaintiffs argue (in two separate briefs) that the district courts did not err in finding that HB 1 likely violates Section 2. They claim that HB 1 divides black voters in the Black Belt across several districts. They say that the state’s “racialized political system” prevents black voters from electing a candidate of their choice in those districts. They contend that this is exactly what Section 2 forbids.

The plaintiffs argue that Alabama is wrong in arguing otherwise. As to the state’s attacks on the plaintiffs’ illustrative maps, the plaintiffs say that they used these maps to satisfy the first Gingles precondition, and that the state attacks the illustrative maps based on districting criteria that are not supported by its own districting guidelines. And as to Alabama’s attacks on the district courts’ ultimate totality-of-the-circumstances conclusion, the plaintiffs contend that the state fails to challenge any particular finding. The plaintiffs assert that the state instead mischaracterizes the district courts’ ruling by claiming that the courts found a Section 2 violation because HB 1 lacks proportionality and by suggesting that the courts’ ruling “hinged on Plaintiffs’ satisfaction of the first precondition alone.”

The plaintiffs argue next that the Court should reject Alabama’s efforts to rewrite Section 2 and alter the time-tested Section 2 framework. The plaintiffs say that Gingles and its progeny are entitled to “enhanced” stare decisis protection, and that the state cannot overcome this. They claim that the state’s interpretation of Section 2 would reinstate the intent test that Congress specifically disavowed in the 1982 amendments. They assert that under Alabama’s approach, states could easily dodge Section 2 liability by providing any “race neutral” justifications, no matter how spurious, effectively rendering Section 2 meaningless. They contend that the state’s interpretation would only continue to submerge long-oppressed racial minority groups into districts where they will be outvoted by the majority. And they say that Alabama has not provided any good reason to alter or abandon the established Section 2 framework in the context of single-member districts.

Contrary to the state, the plaintiffs argue that the established Section 2 framework does not violate the Constitution. The plaintiffs point out that under the framework, plaintiffs (and not the state) must demonstrate that a racial minority group can constitute more than half of the voting-age population in a district. Because this requirement applies to plaintiffs (and not the state), there’s no constitutional violation. (The Fourteenth and Fifteenth Amendments only apply against state actors.) Moreover, the plaintiffs contend that any remedy for a Section 2 violation does not entail a “predetermined, ‘non-negotiable’ racial target.” Instead, a Section 2 remedy must only provide racial minority voters the opportunity to elect a candidate of their choice. The plaintiffs say that this requires at most “an awareness” of race, not racial predominance. Such “an awareness” does not violate the Constitution.

Finally, the plaintiffs argue Section 2 fits comfortably within Congress’s authority to enforce the Fourteenth and Fifteenth Amendments. They say that while Section 2 does not require plaintiffs to prove intent to discriminate by race, it does require them to “establish various indicia of a racially exclusionary political system.” The plaintiffs contend that Section 2 is thus closely tied to the anti-discrimination provisions in the Fourteenth and Fifteenth Amendments.

(The government weighed in on the side of the plaintiffs and offered substantially similar arguments.)

SIGNIFICANCE

This is the Court’s third major case in recent years that tests the metes and bounds of the Voting Rights Act. In the first two cases, the Court sharply limited the VRA. If the Court follows this trend, look for the Court to rule for Alabama, and to limit the application of Section 2 to redistricting plans.

In the first case, Shelby County v. Holder, 570 U.S. 529 (2013), the Court held that Congress exceeded its authority under the Fourteenth Amendment when it set a coverage formula for states and jurisdictions that had to obtain permission from the federal government or a three-judge court before they made any changes to their election laws. (Congress designed this “preclearance” requirement to detect and halt putatively “neutral” changes in state and local laws that would lead to a retrogressive effect on the voting rights of racial minorities.) The ruling effectively eliminated the preclearance requirement from the VRA and allowed previously covered jurisdictions more easily to enact “neutral” voting restrictions that disparately impact racial minority voters.

In the second case, Brnovich v. Democratic National Committee, 141 S. Ct. 2321 (2021), the Court ruled that Arizona’s bans on ballot collection and out-of-precinct voting did not violate Section 2 of the VRA. In so ruling, the Court adopted a new approach to Section 2 claims in the context of voting practices (but not districting). This new approach sharply curtails Section 2’s impact and ability to remedy putatively “neutral” voting laws that disparately impact racial minority voters.

In this third case, Alabama calls on the Court to significantly change, or even overturn, the long-applied Section 2 framework from Gingles. In particular, the state calls on the Court to focus more on discriminatory intent, and less on discriminatory impact, in judging Section 2 claims, and to limit Section 2 plaintiffs and courts in using racial considerations in order to address racial discrimination. Like the Court’s approaches in Shelby County and Brnovich, Alabama’s approach would sharply limit the reach of the VRA and make it substantially harder for plaintiffs to establish a violation. If the Court follows its trendline, look for this result.

In addition to the Court’s trendline, there’s another critical event that likely predicts an Alabama victory. Remember that the Court stayed the district court injunction. While the Court said nothing on the merits of the case, the stay alone suggests that the Court is likely to rule for Alabama.

That said, there’s still the question of how the Court is likely to rule. On one end of the spectrum, the Court could simply rule that the district courts erred in applying the established Section 2 framework—that the lower courts misapplied the established law to the facts. In the middle, the Court could substantially alter, or even overturn, the established Section 2 framework and replace it with a new approach for all redistricting challenges. At the far end, the Court could rule Section 2 unconstitutional, because its prohibition on discriminatory impact exceeds Congress’s authority to enforce the Fourteenth and Fifteenth Amendments’ ban on discriminatory intent. Such a far-end ruling would effectively render the VRA toothless, and could have wide-ranging implications for antidiscrimination law well beyond voting rights.

Still, any result will almost surely limit Section 2’s reach in the context of redistricting. And along with Shelby County’s effective elimination of preclearance and Brnovich’s sharp limit on Section 2’s application to voting practices, these three cases could decimate the VRA.

High Court Reverses Wisconsin Supreme Court on State Legislative Map

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court earlier this week reversed the Wisconsin Supreme Court's ruling that adopted the governor's proposed state legislative map. The Court held that the state high court didn't adequately scrutinize the map under equal protection and sent the case back to the Wisconsin Supreme Court for a re-do. (The same day, the Court declined to reverse the state court's adoption of the governor's map for the state's congressional districts.)

The ruling is a short-term win for legislative Republicans against the Democratic governor. But because the state supreme court has a chance to reanalyze the governor's proposed map, the result may be the same--adoption of the governor's map.

The case, Wisconsin Legislature v. Wisconsin Elections Commission, arose when the state supreme court directed the governor and the state legislature, who couldn't agree on a map, to propose maps. The governor proposed a map that included a new seventh majority-black district--the current map includes only six--in order to comply with Section 2 of the Voting Rights Act. (Section 2 requires that a state's "political process" must be "equally open to participation" to members of racial minority groups, so that group members have an equal opportunity "to participate in the political process and to elect representatives of their choice.")

The court adopted the governor's map. The legislature then filed for a stay at the Supreme Court, arguing that the map used race in violation of the Equal Protection Clause.

The Court agreed. The Court noted that under equal protection a state's use of race as a "predominant" factor in redistricting must satisfy strict scrutiny. That means that a state must show that its use of race is narrowly tailored to meet a compelling government interest. The Court acknowledged that under Court precedent compliance with the Voting Rights Act is a compelling interest. But still, a state map must be narrowly tailored to comply with the VRA to satisfy strict scrutiny.

The Court held that the map failed this test. It said that the governor didn't sufficiently prove that a seventh majority-black district was necessary to comply with the VRA, or that the court didn't sufficiently assess whether the map was necessary to comply with the VRA. In particular, the Court said that the Wisconsin court failed to determine whether a race-neutral map that didn't include a seventh majority-black district could satisfy the VRA. (If so, the governor's map wouldn't be necessary to comply with the VRA.)

The Court remanded the case to the Wisconsin Supreme Court "to undertake a full strict-scrutiny analysis." This could mean that the court simply collects more evidence, sharpens its analysis, and re-adopts the governor's map. Or it could go in a different direction.

Justice Sotomayor dissented, joined by Justice Kagan. She argued that the Court's action was "unprecedented." That's because "summary reversals are generally reserved for decisions in violation of settled law," but law in this area "is hazy at best." She also claimed that the Court would do better to let an appropriate plaintiff bring a direct equal protection challenge or VRA challenge in the appropriate forum.

 

District Court Allows Dominion Defamation Suit to Move Forward

Steven D. Schwinn, University of Illinois Chicago School of Law

Judge Carl Nichols (D.D.C.) denied the motions of Sidney Powell, Rudolph Guiliani, and Mike Lindell and My Pillow to dismiss Dominion Voting Systems's lawsuits against them for defamation. The ruling is only preliminary; it only means that Dominion sufficiently pleaded defamation to withstand the defendants' motions to dismiss, not that Dominion prevails on the merits. Still, it doesn't bode well for the defendants.

The case grew out of the defendants' many, er, inventive and unsubstantiated claims about Dominion Voting Systems's role in the 2020 presidential election. In particular, all three made public claims--again, many of them, and utterly unsubstantiated--to the effect that Dominion threw the election to President Biden.

Dominion sued, arguing that the defendants defamed the corporation, among other things. The defendants separately filed motions to dismiss, arguing that Dominion's defamation claims failed on their face, also among other things. The cases were designated as "related," and, in a consolidated ruling, the court flatly rejected the defendants' claims.

In particular, the court rejected Powell's argument that her statements couldn't have been defamatory, because they were either "opinions" or "legal theories." The court parsed just a handful of her statements and easily concluded that they were neither opinion nor legal theories.

The court also rejected Powell's and My Pillow's arguments that Dominion failed to allege "actual malice." Again, the court parsed just a few of their outlandish statements (along with the fabricated evidence, and lack of evidence, to support them) and easily concluded that Dominion met this standard in its complaint.

The court rejected Guiliani's arguments in support of his motion to dismiss on different grounds. (Guiliani didn't argue that Dominion failed to sufficiently allege its defamation claim against him.)

New Hampshire High Court Strikes State Voter Registration Proof-of-Residency Law

Steven D. Schwinn, University of Illinois Chicago School of Law

The New Hampshire Supreme Court ruled yesterday that the state's proof-of-residency requirement for voting violated the state constitutional right to vote. The ruling strikes the requirement, SB3, on its face.

The ruling comes just one day after the Supreme Court upheld Arizona's out-of-precinct rule and ballot-collection ban against challenges under Section 2 of the Voting Rights Act. The New Hampshire Court's approach stands in stark contrast to the Supreme Court's approach, in that the New Hampshire Court much more closely scrutinized the state interests behind the voting restrictions (like reducing voting fraud, e.g.)--and concludes that SB3 doesn't serve them. (The plaintiffs in the Arizona case alleged race discrimination in violation of Section 2, whereas the plaintiffs in the New Hampshire case alleged a denial of the right to vote in violation of the state constitution. Still, the difference in approaches is notable, even glaring.)

In this way, the ruling illustrates how state constitutional law could protect against some voting restrictions that the Voting Rights Act (in light of the Supreme Court's ruling) might not.

The case, New Hampshire Democratic Party v. Secretary of State, challenges the state's requirement that voters submit documentation proving their residence (if registering more than 30 days from an election) or select one of two complex and confusing verification options on the voter registration form (if registering less than 30 days from an election). The state adopted the requirements in July 2017; before that, voters simply had to sign an affidavit that they met the identity, citizenship, age, and domicile requirements to vote.

Plaintiffs sued to halt the 2017 requirement, arguing that they violated the state constitutional right to vote. That provision says,

All elections are to be free, and every inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election. Every person shall be considered an inhabitant for the purposes of voting in the town, ward, or unincorporated place where he has his domicile.

In particular, the plaintiffs said that "[t]he procedural requirements, associated penalties, and incomprehensibility of SB3 severely and unreasonably burden[] the fundamental right to vote" and that "[t]here is no government interest . . . that justifies requiring New Hampshire voters to endure these burdens."

The court agreed with the plaintiffs. The court applied intermediate scrutiny (the state constitutional standard for voting restrictions that fall between "severe," on the one hand, and "reasonable" and "nondiscriminatory," on the other). It said that the trial court sufficiently found that the requirement unreasonably burdened the plaintiffs (because it's very confusing, and would lead to increased registration times and longer lines at the polls, among other problems), and that the requirements simply did not advance the state's interests in "safeguarding voter confidence, protecting public confidence in the integrity of the State's elections, . . . helping to prevent and protect against voter fraud," and "reducing the administrative cost of post-election investigations." In short, the court deferred to the trial court findings that the state's proof-of-residency requirement simply didn't advance these interests.

 

Court Upholds Arizona Voting Restrictions, Limits Voting Rights Act

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court ruled today that two Arizona voting restrictions--the out-of-precinct ban and the ballot-collection ban--did not violate Section 2 of the Voting Rights Act. Along the way, the Court interpreted Section 2 in a way that'll likely make it harder, even much harder, for plaintiffs to successfully challenge the myriad new and proposed state voting restrictions.

The ruling means that Arizona's restrictions stay on the books, and that new and proposed voting restrictions are likely also to pass muster. Under the Court's approach, a plaintiff could, in theory, still succeed in a claim that a facially neutral voting law violates Section 2 because of its disparate impact by race. But it'll be a lot, lot harder. The ruling may make it harder to prove a discriminatory intent claim, too, given the the way the Court analyzed the question, and given the Court's rejection of the "cat's paw" approach in the lower court.

The case, Brnovich v. DNC, tested two Arizona voting restrictions, the out-of-precinct ban and the ballot-collection ban. Under the out-of-precinct ban, election officials discard any ballot cast by a voter on election day in the wrong precinct. Under the ballot-collection ban, it's a crime for any person (except a postal worker, an elections official, or a voter's caregiver, family member, or household member) to collect another person's early ballot.

Plaintiffs argued that the provisions had a disparate impact on the state's Native American, Latinx, and Black voters, and that the ballot-collection provision was enacted with discriminatory intent, all in violation of Section 2 of the Voting Rights Act.

In a sharply divided, 6-3 ruling, along conventional ideological lines, he Court rejected the challenge.

Justice Alito wrote for the majority. He wrote that Section 2(a) bans voting practices that "result in a denial or abridgement of the right to vote on account of race or color," and that Section 2(b) says that this applies only where "the political processes" are not "equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." He acknowledged that subsection (b) requires a "totality of the circumstances approach." Putting the statutory language together, he wrote that

the core of Section 2(b) is the requirement that voting be "equally open." The statute's reference to equal "opportunity" may stretch that concept to some degree to include consideration of a person's ability to use the means that are equally open. But equal openness remains the touchstone.

The Court then identified a nonexhaustive list of circumstances that go to "equal openness" and "equal opportunity." First, it said "the size of the burden imposed by a challenged voting rule is highly relevant." Next, "the degree to which a voting rule departs from what was standard practice when Section 2 was amended in 1982 is a relevant consideration." Third, "[t]he size of any disparities in a rule's impact on members of different racial or ethnic groups is also an important factor to consider." Fourth, "courts must consider the opportunities provided by a State's entire system of voting when assessing the burden imposed by a challenged provision." And finally, "the strength of the state interests served by a challenged voting rule is also an important factor that must be taken into account."

Considering these principles, the Court held that Arizona's restrictions didn't violate Section 2's "equal openness" and "equal opportunity" commands. The Court said that the rules don't pose an unusual burden on voting, and that Arizona acted to mitigate any burdens. The Court said that the plaintiffs failed to show a significant racially disparate outcome for the out-of-precinct policy, and no actual disparity for the ballot-collection ban. And the Court said that the state had valid justifications for the policies, and that the state didn't need to adopt the least restrictive means to achieve those justifications.

The Court went on to hold that the ballot-collection ban was not enacted with a discriminatory purpose in violation of Section 2. It said that any evidence of discriminatory purpose was outweighed by the later "serious legislative debate" that "led to the passage" of the policy. The Court held that the lower court's "cat's paw" theory (which a plaintiff can use in employment-discrimination cases to hold an employer liable for "the animus of a supervisor who was not charged with making the ultimate [adverse] employment decision") had no place in the Section 2 analysis.

Justice Gorsuch concurred, joined by Justice Thomas. He argued that it's not obvious that Section 2 provides an individual cause of action. But he declined to say more, because the parties hadn't raised the point.

Justice Kagan dissented, joined by Justices Breyer and Sotomayor. She started with a comprehensive history of voting rights, discrimination, and the Voting Rights Act, right up to the present day--"a perilous moment for the Nation's commitment to equal citizenship . . . when too many States and localities are restricting access to voting in ways that will predictably deprive members of minority groups of equal access to the ballot." She argued that Section 2's "essential import is plain:"

Courts are to strike down voting rules that contribute to a racial disparity in the opportunity to vote, taking all the relevant circumstances into account.

She argued that by this standard, both of Arizona's restrictions fail. "Considering the 'totality of circumstances,' both 'result in' members of some races having 'less opportunity than other members of the electorate to participate in the political process and to elect a representative of their choice.'"

Check it Out: The 100 Scholars' Letter on Threats to Democracy

One hundred political scientists issued a Statement of Concern this week, detailing "the threats to American democracy and the need for national voting and election administration standards." Here's a bit, referring to state efforts to restrict the vote:

In future elections, these laws politicizing the administration and certification of elections could enable some state legislatures or partisan election officials to do what they failed to do in 2020: reverse the outcome of a free and fair election. Further, these laws could entrench extended minority rule, violating the basic and longstanding democratic principle that parties that get the most votes should win elections.

Democracy rests on certain elemental institutional and normative conditions. Elections must be neutrally and fairly administered. They must be free of manipulation. Every citizen who is qualified must have an equal right to vote, unhindered by obstruction. And when they lose elections, political parties and their candidates and supporters must be willing to accept defeat and acknowledge the legitimacy of the outcome.

 

Organizations Sue Over Georgia Election Law

Steven D. Schwinn, University of Illinois Chicago School of Law

The New Georgia Project, Black Voters Matter Fund, and Rise, Inc. sued Georgia officials last week to halt the state's new restrictive voting law, SB 202. The complaint is here.

The plaintiffs challenge the state's adoption of "unnecessary and burdensome new identification requirements for absentee voting"; restrictions on absentee drop boxes; ban on mobile polling places; prohibition on distributing unsolicited absentee ballot applications; prohibition on third-party ballot collection; authorization of third-party challenges to voter qualifications; invalidation of ballots cast before 5:00 p.m. in a precinct where a voter wasn't assigned; ban on giving food and drink to voters waiting in line; and compressed time period for voting in a runoff election.

The plaintiffs argue that the restrictions create an undue burden on the right to vote under the Fourteenth and Fifteenth Amendments, and Section 2 of the Voting Rights Act.

Court Kicks Gohmert's Election Case Against Pence

Steven D. Schwinn, University of Illinois Chicago Law School

Judge Jeremy D. Kernodle (E.D. Tx.) dismissed the lawsuit headed by Representative Louie Gohmert against Vice President Mike Pence to throw the 2020 presidential election.

The ruling in the frivolous case was not unexpected. 

The case arose when Gohmert and self-appointed Trump electors from Arizona sued VP Pence, arguing that the Electoral Count Act violates the Electors Clause and the Twelfth Amendment, and that Pence has authority to determine which slate of electors to accept when he presides over the congressional count of electoral votes on January 6. The, er, novel argument turns on the plaintiffs', um, creative reading of the Electors Clause, the Twelfth Amendment, and the Electoral Count Act.

Start with the Electors Clause. It says that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . ." 

Next, the Twelfth Amendment. It says that each state's electors meet in their respective states and vote for President and VP. The electors then transmit their votes to the President of the Senate, the VP. "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted." The candidate winning the majority of electoral votes wins. But if no candidate gets a majority, the House selects the President, with each state delegation receiving one vote. 

Finally, the Electoral Count Act. It says that Congress must count the votes in a joint session on January 6, with the VP presiding. It says that the executive in each state shall certify the electors to the Archivist of the United States, who then transmits the certificates to Congress. It says that a state's determination of their electors is "conclusive" if the state resolved all disputes over the election pursuant to state law at least 6 days before the electors meet. (This is called the "safe harbor" date.) Under the Act, if at least one Member of the House of Representatives and one Senator objects to a state's elector votes, the House and Senate meet in separate sessions and vote on the objection--by members, not state delegations.

Arizona, Georgia, Pennsylvania, Michigan, and Wisconsin all certified their electors to President-Elect Biden and VP-Elect Harris, pursuant to state law and the Electoral Count Act. The governors certified the electors to the Archivist. 

But then Trump electors in those states met and, without any legal authority, self-certified their votes to President Trump and VP Pence. 

The plaintiffs contend that the self-appointed Trump electors created a competing slate of electors in each of these states. (They did not. The "Trump electors" named themselves electors without any legal authority and contrary to state law in each state.) They argue that "provisions . . . of the Electoral Count Act are unconstitutional insofar as they establish procedures for determining which of two or more competing slates of Presidential Electors for a given State are to be counted in the Electoral College, or how objections to a proffered slate are adjudicated, that violate the Twelfth Amendment."

In particular, they argue that the states appointed Biden electors in violation of the Electors Clause, because the state governors and secretaries of state certified those electors, even though the Electors Clause specifies that this is a function for the legislature. (In fact, the legislatures in each of those states already determined the manner of appointing electors by enacting state law that awards electors to the majority winner of the popular vote in those states.) 

Moreover, they argue that the dispute-resolution procedure in the Electoral Count Act "limits or eliminates [the VP's] exclusive authority and sole discretion under the Twelfth Amendment to determine which slates of electors for a State, or neither, may be counted." (In fact, the Twelfth Amendment does not give this authority to the VP. The VP's role is ceremonial, simply to read and count the certified results from each state.)

Finally, they argue that the dispute-resolution procedure in the Electoral Count Act "replaces the Twelfth Amendment's dispute resolution procedure--under which the House of Representatives has sole authority to choose the President." (In fact, the Twelfth Amendment dispute resolution procedure only applies when no candidate won a majority of electoral votes. The Electoral Count Act procedure applies when a member of both Houses objects to a state's slate of electors. Those are different dispute resolution processes, to be sure, but for very different kinds of dispute.) 

The plaintiffs asked the court to hold that the VP has "exclusive authority and sole discretion in determining which electoral votes to count for a given State." 

But the court ruled that the plaintiffs lacked standing. It said that Gohmert lacked standing, because he asserted only an institutional harm (to the House), and not a personal harm. "Congressman Gohmert's alleged injury is 'a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress.'" It said that the Trump "electors" lacked standing, because any alleged injury that they suffered was not created by VP Pence, the defendant. Moreover, it said that both Gohmert and the Trump "electors" failed to show that their requested relief (an order that VP Pence has exclusive discretion to determine which electoral votes to count) would redress their injuries, because VP Pence might not determine the electoral votes in their favor. 

The plaintiffs vowed to appeal. But don't expect this case to go anywhere . . . on standing, or on the merits.