Monday, November 2, 2020
Surprising no one, there is a flurry of litigation in federal and state courts right now seeking various remedies regarding the right to vote. While some of these challenges are brought by political parties or candidates or individual voters, many of these challenges are brought by nonpartisan nonprofits asserting standing on their own behalf and/or their members to challenge state laws that impede ballot access. Drawn from the SCOTUSBlog Election Litigation Tracker, meet some of the nonprofit litigants shaping election litigation in the courts, and the interests that they represent (below the break).
Background. For cases in federal court, at least 1 (not all) party needs to have standing, which requires an injury in fact, traceable to the defendant, and redressable by a court order. For prospective relief (e.g., an injunction), the asserted injury must be “imminent.” Organizations can assert standing in 2 different ways.
First, a nonprofit can rely on representational/associational standing by asserting the standing of one of their members when:
(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 553 (1996).
Second, a nonprofit can assert its own organizational standing. While it has roots in a Supreme Court case, Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), its foundation rests largely on well-developed law in the circuits. Under this prong, an organization can show either 1) diversion of resources, that the organization had to spend money or other resources in order to combat the new policy, and/or 2) frustration of mission, that the new policy directly inhibits the organization’s ability to further its mission. (There are wide variations between circuits and individual decisions how this test plays out, and capturing those differences is beyond the scope of this post).
Given this context, how are nonprofits using litigation to challenge electoral policies?
Mi Familia Vota, along with Arizona Coalition for Change, sought extension of Arizona’s voter registration deadline. Mi Familia Vota “is a national, non-profit civic engagement organization with the mission of uniting Latino, immigrant, and allied communities to promote social and economic justice through citizenship workshops, voter registration, and voter engagement. MFV encourages voter registration and participation, and has challenged voter suppression around the nation.” Complaint. It claimed both diversion of resources and frustration of mission. The 9th Circuit assumed, without deciding, that at least one plaintiff had standing, but ruled against on merits on interim basis.
Concurring, Judge Bybee seemed skeptical:
Mi Familia Vota claimed its own standing and did not represent potential voters. It complained that, because of COVID-19, enforcing the registration deadline would “frustrate [MFV’s] mission to register as many voters as possible.” Compl. ¶ 91. MFV did not allege that Arizona had imposed any particularCOVID-19 restrictions that interfered with its registration activities; its complaint was based on the general inconvenience we have all had to deal with.
The New Georgia Project is “dedicated to registering Georgians to vote and to helping them become more civically engaged citizens” It claimed frustration of mission and diversion of resources based on a Georgia rule that requires absentee ballots be received by election day at 7 pm. District court found standing and entered an injunction extending the ballot deadline. The 11th circuit issued stay on merits, and did not address standing.
Black Voters Matter Capacity Building Institute, the Alabama NAACP, People First, and Greater Birmingham Ministries sued to seek accommodations to Alabama’s voting laws, such as curbside voting, in light of the pandemic.
Black Voters Matter Capacity Building Institute is a nonprofit with the “goal to empower voters and improve voting efficacy in marginalized communities of color” that “mainly works in Black communities and other communities of color who often face barriers to voting that other communities do not.”
People First “is a group of people with developmental disabilities dedicated to making their dreams happen by having choices and control over their own lives, including by having opportunities to make decisions and plans for themselves instead of having others make decisions for them.”
Greater Birmingham Ministries “is a multi-faith, multi-racial membership organization” that “actively opposes state laws, policies, and practices that result in the exclusion of vulnerable groups or individuals from the democratic process.”
The Alabama NAACP’s “[t]wo central goals … are to eliminate racial discrimination in the democratic process, and to enforce federal laws and constitutional provisions securing voting rights.”
The District Court concluded that individual plaintiffs had standing, so did not need to decide organizational standing, but it did not that “the organizational plaintiffs likely do have standing under existing precedent.” The 11th Circuit agreed on the individual plaintiffs, and similarly opined in dicta that “Plaintiffs presented evidence showing that the organizational Plaintiffs had individual members who could likewise establish standing to challenge these provisions.”
Memphis A. Phillip Randolph Institute, The Equity Alliance, Free Hearts, The Memphis and West Tennessee AFL-CIO Central Labor Council, and The Tennessee State Conference of the NAACP all brought suit to challenge various rules, including signature match procedures that the organizations claimed would lead to ballots being improperly rejected.
Memphis A. Phillip Randolph Institute (“APRI”) is a Memphis, Tennessee-based non-profit political advocacy and membership organization which works to strengthen ties between the labor movement and the community, increase the political impact of black voters, and implement structural changes through the American democratic process. In support of its advocacy and engagement efforts, APRI sponsors voter education and Get-Out-The-Vote programs in the community.
Free Hearts is a nonpartisan, nonprofit organization based in Nashville, Tennessee. Since 2015, Free Hearts has educated, organized, advocated for, and supported the families of individuals impacted by the criminal punishment system… Free Hearts registers eligible individuals in jails, advocates for jails to become polling sites, helps restore voting rights to formerly incarcerated individuals, and advocates for reforms around automatic voter registration in Tennessee. Free Hearts plans to undertake similar engagement efforts in advance of the August 6 and November 3, 2020 elections, but in light of the ongoing COVID-19 pandemic, will dedicate additional resources, including financial resources as well as staff and volunteer time, towards absentee voter engagement
Memphis and West Tennessee AFL-CIO Central Labor Council, also known as the Memphis Central Labor Council (“MCLC”), is a Memphis, Tennessee-based union that acts as an umbrella organization for 41 affiliate unions based in western Tennessee.
Tennessee NAACP is a nonpartisan, multi-racial, non-profit membership organization with more than 10,000 members across the State, primarily consisting of African Americans, other people of color, and allies. In support of its advocacy agenda, the Tennessee NAACP engages in voter outreach efforts, including through voter registration, education, and mobilization work in communities that have had historically low voter registration and turnout.
The Sixth Circuit rejected standing. The Court reasoned no one could show an imminent harm because it was not certain that a ballot would be improperly rejected under new rule. The Court rejected a diversion of resources argument:
Even if the dissent is correct that the plaintiffs have significantly shifted their operations, activities, and strategies in response to the COVID-19 pandemic, that would not overcome the plaintiffs’ imminence problem. “An organization can no more spend its way into standing based on speculative fears of future harm than an individual can.”
Judge Moore Dissented:
where an organizational plaintiff seeking to establish standing to sue as a representative of its members could not identify the specific member that will be harmed due to the nature of the injury, this court does not hold them to an impossible standard—it is enough to demonstrate that at least one of their members will likely suffer the injury...
Plaintiffs have offered evidence of a similar overhaul in their outreach and advocacy activities sufficient to constitute an injury in fact for standing purposes [citing Sixth Circuit decisions].