Justia Election Law Opinion Summaries

In 2011, Texas adopted a new congressional districting plan and new districting maps for the state legislature. The Equal Protection Clause forbids “racial gerrymandering,” but Texas is also subject to section 2 of the Voting Rights Act (VRA), which is violated when a state districting plan provides “less opportunity” for racial minorities “to elect representatives of their choice.” Texas was also subject to section 5, which barred it from making any districting changes unless it could prove that they did not result in retrogression with respect to the ability of racial minorities to elect the candidates of their choice.The plan was challenged in a Texas district court. Texas submitted the plans for preclearance to the District of Columbia Circuit. For the upcoming primaries, the Supreme Court instructed the Texas court to start with the 2011 plans and make adjustments required by the Constitution and the VRA. The Texas court adopted new interim plans, which, after the D.C. Circuit denied preclearance, were used for the 2012 elections. The state repealed the 2011 plans and enacted the Texas court’s plans with minor modifications. After the Supreme Court’s 2013 "Shelby County" holding, Texas, no longer covered by section 5, obtained a vacatur of the preclearance order. The Texas court allowed a challenge to the 2013 plans and held that challenges to the 2011 plans remained live. Texas conducted its 2014 and 2016 elections under the 2013 plans. In 2017, the Texas court found defects in several districts in the 2011 federal congressional and State House plans; invalidated multiple Congressional and House Districts in the 2013 plans, holding that the Legislature failed to cure the “taint” of discriminatory intent allegedly harbored by the 2011 Legislature; held that three districts were invalid because they had the effect of depriving Latinos of the equal opportunity to elect their candidates of choice; found that HD90 was a racial gerrymander; and gave the state attorney general three days to respond.Assuming jurisdiction under 28 U.S.C. 1253, the Court concluded that the orders qualify as interlocutory injunctions; the short time frame the attorney general was given indicated that the court did not intend to allow the elections to go ahead under the plans it had condemned. The Texas court erred in requiring the state to show that the 2013 Legislature purged the “taint” attributed to the never-used plans enacted by a prior legislature. The “good faith of [the] state legislature must be presumed.” The 2011 Legislature’s intent and the court’s interim plans, weighed with other evidence, “is plainly insufficient to prove that the 2013 Legislature acted in bad faith and engaged in intentional discrimination.” The Court reversed as to the three districts in which the Texas court relied on section 2’s “effects” test but affirmed that HD90 is a racial gerrymander. For a section 2 “effects” claim, a plaintiff must establish a geographically compact minority population sufficient to constitute a majority in a single-member district, political cohesion among the members of the minority group, bloc voting by the majority to defeat the minority’s preferred candidate, and that the district lines dilute the votes of the minority group. View "Abbott v. Perez" on Justia Law

Only 25% of registered California voters participated in the June 2014 primary; only 42% voted in the November 2014 general election. To increase participation in the democratic process, California enacted the Voter’s Choice Act (VCA), modeled after Colorado’s successful election system. A ballot is automatically mailed to every registered voter 29 days before the election date, Cal. Elec.Code 4005(a)(8)(A). A voter may cast a completed ballot by mailing it in, depositing the ballot at a designated “ballot dropoff location” (a large locked mailbox), or submitting it at a “vote center.” The voter may cast his ballot as soon as he receives it. Rather than require all 58 California counties to implement this new voting system immediately, the VCA authorizes 14 counties to opt in on or after January 1, 2018. All other counties may implement the all-mailed system on or after January 1, 2020. Within six months of each election conducted under the system, the California Secretary of State must submit to the legislature a detailed report assessing turnout and other metrics of success. The Ninth Circuit affirmed the denial of a preliminary injunction in a suit alleging that the VCA violated the Equal Protection Clause by restricting the fundamental right to vote on the basis of county of residence, without sufficient justification. View "Short v. Brown" on Justia Law

Republican voters alleged that Maryland’s Sixth Congressional District was gerrymandered in 2011 in retaliation for their political views. Six years after the General Assembly redrew the District, plaintiffs sought to enjoin election officials from holding congressional elections under the 2011 map. The district court denied the motion and stayed further proceedings pending the Supreme Court’s disposition of partisan gerrymandering claims in Gill v. Whitford. The Supreme Court affirmed. In granting a preliminary injunction a court must consider whether the movant has shown “that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Plaintiffs made no such showing. They did not move for a preliminary injunction until six years, and three general elections, after the 2011 map was adopted, and three years after their first complaint was filed. The delay largely arose from a circumstance within plaintiffs’ control. In considering the balance of equities, that unnecessary, years-long delay weighed against their request. The public interest in orderly elections also supported the decision. Plaintiffs represented to the court that any injunctive relief would have to be granted by August 18, 2017, to ensure the timely completion of a new districting scheme in advance of the 2018 election season. Despite the court’s undisputedly diligent efforts, that date had passed by the time the court ruled. There was also legal uncertainty surrounding any potential remedy for the asserted injury; the court reasonably could have concluded that a preliminary injunction would have been against the public interest and might have had a needlessly disruptive effect on the electoral process. View "Besinek v. Lamone" on Justia Law

Members of the Wisconsin Legislature are elected from single-member legislative districts. The legislature redraws district boundaries following each census. After the 2010 census, the legislature passed Act 43. Democratic voters alleged that Act 43 harms the Democratic Party’s ability to convert Democratic votes into Democratic legislative seats by “cracking” certain Democratic voters among different districts in which those voters fail to achieve electoral majorities and “packing” other Democratic voters in a few districts in which Democratic candidates win by large margins. They cited an “efficiency gap” that compares each party’s respective “wasted” votes, i.e., votes cast for a losing candidate or for a winning candidate in excess of what that candidate needs to win. The district court enjoined application of Act 43 and required redistricting. The Supreme Court vacated for lack of standing. A plaintiff may not invoke federal-court jurisdiction unless he can show “a personal stake in the outcome,” by proof that he has suffered the “invasion of a legally protected interest” that is “concrete and particularized.” If the plaintiffs’ alleged harm is the dilution of their votes, that injury is district-specific, not statewide. A plaintiff who complains of gerrymandering, but who does not live in a gerrymandered district, “assert[s] only a generalized grievance.” Claims that their votes have been diluted require revising only such districts as are necessary to reshape the voter’s district. Statewide injury to Wisconsin Democrats is a collective political interest, not an individual legal interest. Injury-in-fact is not based on intent but requires proof of a burden on the plaintiffs’ votes that is “actual or imminent," not ‘hypothetical. Studies showing that Act 43 skewed Wisconsin’s statewide map in favor of Republicans do not address the effect that a gerrymander has on the votes of particular citizens. The Court remanded to give the plaintiffs an opportunity to prove concrete and particularized injuries to their individual votes. View "Gill v. Whitford" on Justia Law

Jones, a Calumet City alderman, wants to be mayor. His supporter, Grant, tried to prevent the incumbent, Qualkinbush, from running for reelection in 2017 by circulating a referendum to set a three-term limit on the mayor. Grant gathered enough signatures but the city proposed three referenda for that election, which were certified before Grant’s. Illinois law limits to three the number of referenda on any ballot. One of the city’s proposals passed: it prevents the election as mayor of anyone who has served four or more consecutive terms as either mayor or alderman, barring Jones. Jones was removed from the ballot. Qualkinbush was reelected. Jones lost a state suit. The Seventh Circuit affirmed the rejection of Jones’s challenges. The Rule of Three allows a city observing a signature-gathering campaign in progress to get its own proposals on the ballot first but a ballot is not a public forum. Nothing in the Constitution guarantees direct democracy. The Rule does not distinguish by content and is rationally related to a legitimate state objective in simplifying the ballot to promote a well-considered outcome. Rejecting Jones’s claim that this referendum was aimed at him and treated him as a prohibited class of one, the court noted that three aldermen were affected and the referendum prevents Qualkinbush from running for reelection in 2021. “Politics is a rough-and-tumble game,” and the right response is political. View "Jones v. Qualkinbush" on Justia Law

Minnesota law prohibits wearing a “political badge, political button, or other political insignia” inside a polling place on Election Day, Minn. Stat. 211B.11(1), including clothing and accessories with political insignia. Election judges are authorized to decide whether a particular item is banned. Days before the 2010 election, plaintiffs challenged the ban. In response, the state distributed guidance with specific examples of prohibited apparel: items displaying the name of a political party or the name of a candidate, items supporting or opposing a ballot question, “[i]ssue oriented material designed to influence or impact voting,” and “[m]aterial promoting a group with recognizable political views.” Cilek allegedly was turned away from the polls for wearing a “Please I.D. Me” button, a “Don’t Tread on Me” T-shirt, and a Tea Party Patriots logo. The Supreme Court reversed the Eighth Circuit’s rejection of the constitutional challenges. Minnesota’s political apparel ban violates the First Amendment’s Free Speech Clause. Because the ban applies only in a “nonpublic forum,” its content-based restrictions would be constitutional if “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view,” The statute makes no distinction based on the speaker’s political persuasion and serves a permissible objective: to set aside polling places as “an island of calm.” The state may reasonably decide that the interior of the polling place should reflect the distinction between voting and campaigning. However, the “unmoored use of the term “political” in the Minnesota law, combined with haphazard interpretations" render the law unconstitutional for lack of narrow tailoring to serve that objective. Its indeterminate prohibitions present “[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.” An election judge’s own politics may shape his views on what is “political.” View "Minnesota Voters Alliance v. Mansky" on Justia Law

Under Missouri campaign finance law, chapter 130, a “campaign committee” is formed to receive contributions or make expenditures solely to support or oppose particular ballot measures, "such committee shall be formed no later than thirty days prior to the election for which the committee receives contributions or makes expenditures." Thirteen days before the November 2014 general election, a group formed MFA as a campaign committee, to accept contributions and make expenditures in support of Proposition 10. MFA sued to enjoin enforcement of the formation deadline, citing the First Amendment. The district court granted MFA a temporary restraining order. MFA received contributions and made expenditures before the election. After the election, MFA terminated as a campaign committee. The Eighth Circuit affirmed summary judgment in favor of MFA. While a formation deadline by itself might not expressly limit speech, the deadline here is more than a disclosure requirement because it prohibits (or significantly burdens) formation of a campaign committee, a requisite for legally engaging in speech, even if the individual or group is willing to comply with organizational and disclosure requirements. Even if the state’s interest in preventing circumvention of chapter 130’s disclosure regime is compelling, the formation deadline is unconstitutional because it is not narrowly tailored, given its burden on speech and its modest effect on preventing circumvention of the disclosure regime. View "Missourians for Fiscal Accountability v. Klahr" on Justia Law

C.T. Marhula appealed a judgment dismissing an action contesting a special election in the City of Grand Forks. Marhula argued Grand Forks lacked authority under its home rule charter and city ordinances to designate one voting location for the special election. The North Dakota Supreme Court concluded Marhula's post-election challenge to the special election was moot, and affirmed the judgment dismissing the action. View "Poochigian v. City of Grand Forks" on Justia Law

The National Voter Registration Act (NVRA), 52 U.S.C. 20507(d), provides that a state may not remove a name from voter rolls on change-of-residence grounds unless the registrant either confirms in writing that he has moved or fails to return a pre-addressed, postage prepaid “return card” containing statutorily prescribed content and then fails to vote in any election during the period covering the next two general federal elections. The “Failure-to-Vote Clause,” section 20507(b)(2), provides that a state removal program “shall not result in the removal of the name . . . by reason of the person’s failure to vote,” and, as added by the Help America Vote Act of 2002 (HAVA), specifies that “nothing in [this prohibition] may be construed to prohibit a State from using the [pre-addressed return card] procedures.” Section 21083(a)(4)(A) states that “no registrant may be removed solely by reason of a failure to vote.” Ohio uses the failure to vote for two years to identify voters who may have moved, then sends these non-voters a pre-addressed, postage prepaid return card. Voters who do not return the card and fail to vote in any election for four more years are removed from the rolls. The Supreme Court held that the Ohio process does not violate the NVRA. The process follows subsection (d): It does not remove a registrant on change-of-residence grounds unless the registrant is sent and fails to mail back a return card and then fails to vote for an additional four years. The Failure-to-Vote Clause simply forbids the use of nonvoting as the sole criterion for removing a registrant; Ohio does not use it that way. An argument that so many registered voters discard return cards upon receipt that the failure to send cards back is worthless as evidence that an addressee has moved “is based on a dubious empirical conclusion that conflicts with the congressional judgment.” View "Husted v. A. Philip Randolph Institute" on Justia Law

Defendants the Alabama Secretary of State, John Merrill, and a member of his staff, Ed Packard, the director of elections, petitioned the Alabama Supreme Court for a writ of mandamus to direct the Montgomery Circuit Court to vacate a preliminary injunction and to dismiss for lack of jurisdiction the underlying action seeking injunctive and declaratory relief. On December 7, 2017, plaintiffs Pamela Miles, Dan Dannemueller, Paul Hard, and Victoria Tuggle (hereinafter referred to collectively as "the plaintiffs") filed a civil action against Merrill and Packard, in their official capacities, alleging certain electronic voting machines used in Alabama elections created digital images of the paper ballots scanned and counted by the machines, and that defendants "do not and will not instruct election officials" to preserve the digital ballot images. Those images, it was argued, were public records that, under Alabama law, had to be preserved. Plaintiffs also appeared to allege that federal law, specifically, 52 U.S.C. 20701, required those images be retained. This failure "to require that all election materials" be preserved, the plaintiffs contended, "infringe[d] upon their right to a fair and accurate election." The Alabama Supreme Court determined plaintiffs' allegations did not demonstrate how the "challenged practices harm[ed]" plaintiffs in a concrete way; how they would personally suffer the threatened injury, which is itself described only as a mere speculative possibility; or how they would benefit in a "tangible way" by a judgment in their favor. Instead, the Court found they alleged only that they "could" be harmed." Therefore, because the complaint insufficiently alleged that plaintiffs have standing, the trial court lacked jurisdiction over the action. The Court therefore directed that the case be dismissed. View "Ex parte Alabama Secretary of State John Merrill and Director of Elections Ed Packard." on Justia Law