Justia Election Law Opinion Summaries

North Carolina redrew Congressional Districts 1 and 12 after the 2010 census. Previously, neither district had a majority black voting-age population (BVAP), but both consistently elected candidates preferred by most African-American voters. The state needed to add 100,000 people to District 1 to comply with the one-person-one-vote principle; it took most of them from heavily black areas of Durham—increasing the district’s BVAP from 48.6% to 52.7%. District 12’s BVAP increased from 43.8% to 50.7%. State courts upheld the redistricting. The district court found it unconstitutional. The Supreme Court affirmed. Although the state court’s decision is relevant, the district court properly concluded that race furnished the predominant rationale for District 1’s redesign and that compliance with the Voting Rights Act could not justify that consideration of race, which subordinated other criteria. The redistricting cannot withstand strict scrutiny under the “Gingles” factors. For nearly 20 years, African-Americans made up less than a majority of District 1’s voters, but their preferred candidates scored victories. District 1 was a “crossover” district, in which members of the majority help a “large enough” minority to elect its candidate. History gave the state no reason to think that the Act required it to ramp up District 1’s BVAP. The evidence, even without an alternative map, adequately supported the conclusion that race, not politics, accounted for District 12’s reconfiguration. “By slimming the district and adding a couple of knobs to its snakelike body, North Carolina added 35,000 African-Americans and subtracted 50,000 whites, turning District 12 into a majority-minority district,” indicating a determination to concentrate black voters. View "Cooper v. Harris" on Justia Law

After the 2010 census, the Virginia Legislature drew new lines for 12 state legislative districts, to ensure that each district would have a black voting-age population of at least 55%. Voters challenged the redistricting under the Equal Protection Clause. As to 11 districts, the district court concluded that the voters had not shown that race was the predominant factor motivating the legislature’s decision, reasoning that race predominates only where there is an “actual conflict between traditional redistricting criteria and race.” As to District 75, the court found that race did predominate, but the use of race was narrowly tailored to a compelling state interest--avoiding violation of the Voting Rights Act. The Supreme Court vacated in part, stating that the proper inquiry concerns the actual considerations that provided the essential basis for the lines drawn, not post hoc justifications. A legislature could construct a plethora of potential maps that look consistent with traditional, race-neutral principles, but if race is the overriding reason for choosing a map, race still may predominate. Challengers may establish racial predominance without evidence of an actual conflict. A holistic analysis is necessary to give the proper weight to districtwide evidence, such as stark splits in the racial composition of populations moved into and out of a district, or the use of a racial target. The judgment regarding District 75 is consistent with the basic narrow tailoring analysis; the state’s interest in complying with the Voting Rights Act was a compelling interest and the legislature had sufficient grounds to determine that the race-based calculus it employed was necessary to avoid violating the Act. View "Bethune-Hill v. Virginia State Board of Elections" on Justia Law

Voters from Virginia’s Congressional District 3 challenged the Commonwealth’s 2013 congressional redistricting plan on the ground that the legislature’s redrawing of their district was unconstitutional racial gerrymander. Three members of Congress from Virginia intervened to defend the plan. The district court struck down the plan and, after remand from the Supreme Court, again held that the plan was unconstitutional. The Supreme Court dismissed a second appeal for lack of standing. A party invoking federal court jurisdiction can establish Article III standing only by showing that he has suffered an “injury in fact,” that the injury is “fairly traceable” to the challenged conduct, and that the injury is likely to be “redressed” by a favorable decision. , Representative Forbes, the Republican incumbent in District 4, has decided to run in District 2, regardless of the litigation's outcome; even if Forbes had standing when he first intervened, he does not have standing now. Representatives Wittman and Brat, the incumbents in Districts 1 and 7, respectively, have not identified any record evidence to support their allegation that the redistricting plan has harmed their prospects of reelection. The allegation of an injury, without more, is not sufficient to satisfy Article III. View "Wittman v. Personhuballah" on Justia Law

After the 2010 census, Arizona’s Redistricting Commission, with two Republicans, two Democrats, and one Independent, redrew legislative districts. The initial plan had a 4.07% maximum population deviation from absolute equality of districts, but a statistician reported that the Justice Department might not approve the plan under the Voting Rights Act requirement that a new plan, compared to the existing plan, not diminish the number of districts in which minority groups can elect their preferred candidates. The Commission adopted a revised plan with an 8.8% deviation on a 3-to-2 vote, with Republican members dissenting. Under the final plan, a Republican-leaning district became more competitive. The Justice Department approved the plan as consistent with the Act. The Supreme Court upheld the plan, concluding that the “deviations were primarily a result of good-faith efforts to comply with the Voting Rights Act . . . though partisanship played some role.” Mathematical perfection is not required. Deviations may be justified by legitimate considerations, including compactness and contiguity, and state interests in maintaining the integrity of political subdivisions, competitive balance among political parties, and, before the Supreme Court’s 2013 Shelby County decision, compliance with the Act. Because the deviation here is under 10%, objectors cannot rely on numbers to show a constitutional violation, but must show that it is more probable than not that the deviation reflects predominantly illegitimate reapportionment factors. Objectors failed to meet that burden: the deviations reflected efforts to achieve compliance with the Act, not to secure advantage for the Democratic Party. View "Harris v. Ariz. Indep. Redistricting Comm’n" on Justia Law

Under the one-person, one-vote principle, jurisdictions must design legislative districts with equal populations. In state and local legislative districting, states may deviate from perfect population equality to accommodate traditional districting objectives. Where the maximum population deviation between the largest and smallest district is less than 10%, a state or local legislative map presumptively complies with the rule. Texas, like all other states, uses total-population numbers from the decennial census when drawing legislative districts. After the 2010 census, Texas adopted a State Senate map that has a maximum total-population deviation of 8.04%. However, measured by a voter-population baseline—eligible voters or registered voters—the map’s maximum population deviation exceeds 40%. Objectors unsuccessfully sought an injunction. The Supreme Court affirmed. The Framers endorsed allocating House seats to states based on total population. Debating what would become the Fourteenth Amendment, Congress reconsidered the proper basis for apportionment and rejected proposals to allocate House seats to states based on voter population. A voter-population rule is inconsistent with Supreme Court precedent that states and localities may comply with the one-person, one-vote principle by designing districts with equal total populations. Adopting voter-eligible apportionment would upset a well-functioning approach to districting that all 50 states and countless local jurisdictions have long followed. Representatives serve all residents. Nonvoters have an important stake in policy debates and in constituent services. View "Evenwel v. Abbott" on Justia Law

A former congressman filed a complaint with the Ohio Elections Commission alleging that SBA violated an Ohio law that criminalizes some false statements made during a political campaign. SBA had stated that his vote for the Patient Protection and Affordable Care Act was a vote in favor of “taxpayer funded abortion.” After he lost his re-election bid the complaint was dismissed. SBA pursued a separate challenge on First Amendment grounds. COAST also challenged the law, arguing that it had planned to disseminate a similar message but refrained because of the suit against SBA. The district court consolidated the suits and dismissed them as nonjusticiable, concluding that neither suit presented a sufficiently concrete injury to establish standing or ripeness. The Sixth Circuit affirmed. A unanimous Supreme Court reversed and remanded, finding that the plaintiffs alleged a sufficiently imminent injury under Article III. An “injury in fact” must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Challenging a law before enforcement requires alleging “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution.” The plaintiffs alleged a credible threat of enforcement. Their intended future conduct is arguably proscribed by the statute. The statute sweeps broadly; the Elections Commission already found probable cause to believe that SBA violated the law when it made statements similar to those they plan to make in the future. SBA’s insistence that its previous statements were true did not preclude finding probable cause. The threat of future enforcement is substantial. There is a history of past enforcement; a complaint may be filed by “any person,” not just a prosecutor or agency. Commission proceedings impose a burden on electoral speech. The target of a complaint may be forced to divert significant time and resources in the crucial days before an election. Those proceedings are backed by the additional threat of criminal prosecution. The Court found the “prudential factors” of fitness and hardship “easily satisfied.” View "Susan B. Anthony List v. Driehaus" on Justia Law

The Federal Election Campaign Act of 1971 and the Bipartisan Campaign Reform Act of 2002, impose base limits, restricting how much money a donor may contribute to a particular candidate or committee, and aggregate limits, restricting how much money a donor may contribute in total to all candidates or committees, 2 U.S.C. 441a. In the 2011–2012 election cycle, McCutcheon contributed to 16 federal candidates, complying with all base limits. He alleges that the aggregate limits prevented him from contributing to additional candidates and political committees and that he wishes to make similar contributions in the future. McCutcheon and the Republican National Committee challenged the aggregate limits under the First Amendment. The district court dismissed. The Supreme Court reversed, with five justices concluding that those limits are invalid. Regardless whether strict scrutiny or the “closely drawn” test applies, the analysis depends on the fit between stated governmental objectives and the means selected to achieve the objectives. The aggregate limits fail even under the “closely drawn” test. Contributing to a candidate is an exercise of the right to participate in the electoral process through political expression and political association. A restriction on how many candidates and committees an individual may support is not a “modest restraint.” To require a person to contribute at lower levels because he wants to support more candidates or causes penalizes that individual for “robustly exercis[ing]” his First Amendment rights. The proper focus is on an individual’s right to engage in political speech, not a collective conception of the public good. The aggregate limits do not further the permissible governmental interest in preventing quid pro quo corruption or its appearance. The justices noted the line between quid pro quo corruption and general influence and that the Court must “err on the side of protecting political speech.” Given regulations already in effect, fear that an individual might make massive unearmarked contributions to entities likely to support particular candidate is speculative. Experience suggests that most contributions are retained and spent by their recipients; the government provided no reason to believe that candidates or committees would dramatically shift their priorities if aggregate limits were lifted. Multiple alternatives could serve the interest in preventing circumvention without “unnecessary abridgment” of First Amendment rights, such as targeted restrictions on transfers among candidates and committees, tighter earmarking rules, and disclosure. View "McCutcheon v. Fed. Election Comm'n" on Justia Law

The California Supreme Court held that limiting marriage to opposite-sex couples violated the California Constitution; state voters then passed a ballot initiative, Proposition 8, amending the state constitution to define marriage as a union between a man and a woman. Same-sex couples who wished to marry filed suit in federal court, challenging Proposition 8. State officials refused to defend the law, so the district court allowed the initiative’s official proponents to intervene, declared Proposition 8 unconstitutional, and enjoined its enforcement. State officials declined to appeal. The intervenors appealed. The Ninth Circuit certified a question, which the California Supreme Court answered: official proponents of a ballot initiative have authority to assert the state’s interest to defend the constitutionality of the initiative when public officials refuse to do so. The Ninth Circuit concluded that petitioners had standing and affirmed. The Supreme Court vacated and remanded, holding that the intervenors did not have standing to appeal. Article III of the Constitution confines the power of federal courts to deciding actual “Cases” or “Controversies.” A litigant must demonstrate a personal and tangible harm throughout all stages of litigation. The intervenors had standing to initiate this case against the California officials responsible for enforcing Proposition 8, but once the district court issued its order, they no longer had any injury to redress and state officials chose not to appeal. The intervenors had not been ordered to do or refrain from doing anything. Their “generalized grievance” is insufficient to confer standing. The fact that a state thinks a private party should have standing to seek relief for a generalized grievance cannot override settled law to the contrary. View "Hollingsworth v. Perry" on Justia Law

The Voting Rights Act of 1965, 42 U.S.C. 1973(a), was enacted to address racial discrimination in voting. Section 2 bans any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen ... to vote on account of race or color,” applies nationwide, and is permanent. Other sections apply to some parts of the country. Section 4 defines “covered jurisdictions” as states or political subdivisions that maintained tests or devices as prerequisites to voting and had low voter registration or turnout in the 1960s and early 1970s. Section 5 provides that no change in voting procedures can take effect in covered jurisdictions until approved by federal authorities (preclearance). The coverage formula and preclearance requirement were to expire after five years, but the Act was reauthorized. In 2006, the Act was reauthorized for an additional 25 years, but coverage still turned on whether a jurisdiction had a voting test and low registration or turnout almost 50 years ago. Shelby County, in the covered jurisdiction of Alabama, sought a declaratory judgment that sections 4(b) and 5 are facially unconstitutional. The district court upheld the Act. The D. C. Circuit affirmed. A 5-4 Supreme Court reversed, finding Section 4 unconstitutional. Its formula may not be used to require preclearance. States have broad autonomy in structuring their governments and pursuing legislative objectives; the Tenth Amendment reserves to states “the power to regulate elections.” There is a “fundamental principle of equal sovereignty” among the states. The Voting Rights Act departs from those principles by requiring states to request federal permission to implement laws that they would otherwise have the right to enact and execute. The Act applies to only nine states (and additional counties). In 1966, the departures were justified by racial discrimination that had “infected the electoral process in parts of our country for nearly a century” so that the coverage formula was rational in practice and theory. Nearly 50 years later, “things have changed dramatically.” Voter turnout and registration rates in covered jurisdictions approach parity; blatantly discriminatory evasions of federal decrees are rare. Minority candidates hold office at unprecedented levels. Congress, if it is to continue to divide the states, must identify jurisdictions to be singled out on a basis that makes sense under current conditions. Data compiled by Congress before reauthorizing the Act did not show anything like the pervasive, rampant discrimination found in covered jurisdictions in 1965. Congress reenacted the formula based on 40-year-old facts with no logical relation to the present day. View "Shelby County v. Holder" on Justia Law

The National Voter Registration Act of 1993 (NVRA) requires states to accept and use a uniform federal form to register voters for federal elections, 42 U.S.C. 1973gg–4(a)(1). The form developed by the Election Assistance Commission, requires only that an applicant aver, under penalty of perjury, that he is a citizen. Arizona law required rejection of any application for registration, including the federal form, if not accompanied by documentary evidence of citizenship. The district court granted summary judgment, upholding Arizona’s requirement. The Ninth Circuit reversed in part, holding that the requirement is preempted by the NVRA. The Supreme Court affirmed. The Elections Clause imposes on states the duty to prescribe the time, place, and manner of electing Representatives and Senators, but confers on Congress the power to alter those regulations or supplant them altogether. The Clause confers authority to provide a complete code for congressional elections, including regulations relating to “registration.” The NVRA term “accept” implies that the form is to be accepted as sufficient and Congress, when it acts under the Clause, is always on notice that its legislation will displace some element of a state’s preexisting legal regime. While the NVRA forbids states to demand additional information beyond that required by the federal form, it does not preclude states from denying registration based on information in their possession establishing the applicant’s ineligibility. The NVRA can be read to avoid a conflict, however. The NVRA permits a state to request state-specific instructions on the federal form and a state may challenge rejection of that request. That alternative means of enforcing its constitutional power to determine voting qualifications remains open to Arizona. View "Arizona v. Inter Tribal Council of Ariz., Inc." on Justia Law