“[T]his lawsuit seems to be less about achieving the relief Plaintiffs seek—as much of that relief is beyond the power of this Court—and more about the impact of their allegations on People’s faith in the democratic process and their trust in our government. Plaintiffs ask this Court to ignore the orderly statutory scheme established to challenge elections and to ignore the will of millions of voters. This, the Court cannot, and will not, do.
“The People have spoken.”
- Federal District Judge Linda V. Parker in her order in King v Whitmer (the Michigan "Kraken" case) at 35-36.
“Texas has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections. All other pending motions are dismissed as moot.”
- Texas v. Pennsylvania et al., US Supreme Court, December 11, 2020 (unsigned order). The vote was 7-2 with Alito and Thomas dissenting on procedural grounds, not on the merits.
SUMMARY
An understanding of two important legal concepts is necessary to understand many of the recent election cases. This is a long post, so I’ve summarized the concepts below.
Standing: For anyone to properly bring a civil action in federal court, three elements have to be satisfied. First, the plaintiff must have suffered a particularized and concrete injury-in-fact. Second, the defendant must be the cause of this injury-in-fact. Third, the relief sought by the plaintiff must be of the kind that both redresses the injury-in-fact and is something that a federal court can redress. For a plaintiff to proceed with a federal civil action all three of these elements must be satisfied. Failure to satisfy any element will lead to a dismissal of the complaint. Standing can be raised by a party or sua sponte (i.e., the court doing so on its own) at any stage of litigation. For associations there are extra elements to gain standing (“associational standing”).
Laches: A plaintiff must bring a case timely in a way that does not create undue delay. This is the common law analogue to the statute of limitations. For instance, if a state creates a new election rule in March of the election year a plaintiff cannot wait until November to challenge it. If the challenge is sincere, a plaintiff will file a complaint as soon as the rule is promulgated or soon afterwards. Waiting until just before or especially after election day is too late because there was time to challenge the rule earlier and doing so at the last minute (or later) will create confusion and uncertainty among the electorate.
MAIN POST
Introduction
A lack of understanding how the law works in this country continues to create confusion about what is and is not possible in our legal system. Americans can go through four years of college (never mind high school) and receive no education about how our legal system works. In the past few weeks Americans could have really benefitted from a rudimentary legal (and political) education.
Here are the kinds of questions I have been hearing about the recent election cases:
How can a court throw out a case because it says the plaintiff cannot sue on a procedural technicality?
What difference does it make if the case was filed weeks after the election?
Why can’t a court just order a new election or discard votes that a plaintiff says are illegal?
How can a court just ignore all the illegal votes I am hearing about?
These questions track with the legal concepts of standing, laches, equitable relief (injunction), and fraud. In this post we’ll discuss the first two concepts.
It is unfortunate that so many people have to waste their time on these frivolous lawsuits, but if there was one thing I learned when I was on the legal staff of a large NYC union years ago it is that right wing lawyers can be as lazy and frivolous as they want while the rest of us will get stern lectures from judges if we don’t adhere 100% to the rules on form and procedure (failure to do so would get us threats of sanctions – something I haven’t heard one judge suggest throughout all of these recent election cases).
In order to sue you need to have, among other things, a legally recognized and redressable injury caused by the defendant (standing) and brought the case without unreasonable delay (laches). It also helps to understand what role the Constitution plays in our system and how various parts of it work together. Regardless of how smart or educated you are you do not know what the terms in the Constitution and the law generally mean just because you are smart or educated. This is especially true when we discuss the pardon power or impeachment since some of the most important terms in those clauses cannot be understood without an understanding of both English and American legal history. Relevant to this post, one cannot understand standing by looking for the term in the Constitution. The concept is derived from the Cases and Controversies Clause (US Const. Art. III, Sec. 2, Cl. 1), which requires an understanding of Supreme Court cases interpreting it.
Let’s walk through the case regarding the settlement agreement in Georgia (Wood v. Raffensperger). You can read my previous post on the Wood case here to understand the facts better. The Secretary of State of Georgia entered into a settlement agreement with the Democratic Party in the late winter before the 2020 primary to change the rules for rejecting absentee ballots so that two of three election judges, rather than just one, were necessary to successfully reject a ballot. In Wood, a voter claimed (among other things – we’ll keep it simple and stick to the settlement agreement) that the settlement agreement is a violation of the Election and Electors Clauses of the US Constitution and sought to have absentee votes ordered to be discarded by the court. You can read more about those clauses here. This is a claim for injunctive relief. But, before we can consider the question of whether an injunction is proper in this case, the plaintiff needs to have standing.
Standing
Standing is a legal term of art that ensures that a party bringing a civil action (a lawsuit or motion) has the right to do so under the law. In the US, standing is controlled by the Constitution’s cases and controversies clause in Article III. The clause is designed to prevent the federal judiciary from encroaching on the powers of the political branches and from offering what amount to advisory opinions. In federal court, a plaintiff must articulate a particularized harm that is caused by the defendant(s) and can be redressed by a court. This has been clear since the Lujan cases.
There is a three-part test for standing. First, the plaintiff must have suffered a judicially cognizable harm that is particularized and concrete. This means that the harm must be particular to the plaintiff and something that the law recognizes like assault or trespass rather than simply being upset by someone’s behavior. The “harm” is often referred to as “injury-in-fact,” signifying that an actual legal injury rather than a speculative or abstract one must be asserted. Second, the harm alleged must have been caused by the defendant(s). A plaintiff cannot sue just anyone for an injury; it has to be the result of some action by the defendant(s). Third, and this is more important than you might realize, the relief sought by the plaintiff must be something that the court has the authority and power to redress and is something that will actually address the harm. In Juliana v. United States (947 F.3d 1159, 1168 (9th Cir. 2020)), a novel case brought by young people asking the court to order the federal government to cease activity contributing to global warming, the appeals court found the plaintiffs lacking standing based on this third element.
In analyzing redressability, however, we assume [the] existence [of the constitutional right asserted by the plaintiffs]. But that merely begins our analysis, because "not all meritorious legal claims are redressable in federal court." To establish Article III redressability, the plaintiffs must show that the relief they seek is both (1) substantially likely to redress their injuries; and (2) within the district court’s power to award. Redress need not be guaranteed, but it must be more than "merely speculative."
Juliana v. United States, 947 F.3d 1159, 1170 (9th Cir. 2020)(Internal citations omitted)
Applying this standard to the plaintiffs’ complaint, the court held that the relief they were seeking could not be granted by a federal court.
To be sure, in some circumstances, courts may order broad injunctive relief while leaving the "details of implementation" to the government’s discretion. But, even under such a scenario, the plaintiffs’ request for a remedial plan would subsequently require the judiciary to pass judgment on the sufficiency of the government’s response to the order, which necessarily would entail a broad range of policymaking. And inevitably, this kind of plan will demand action not only by the Executive, but also by Congress. Absent court intervention, the political branches might conclude—however inappropriately in the plaintiffs’ view—that economic or defense considerations called for continuation of the very programs challenged in this suit, or a less robust approach to addressing climate change than the plaintiffs believe is necessary. "But we cannot substitute our own assessment for the Executive’s [or Legislature’s] predictive judgments on such matters, all of which ‘are delicate, complex, and involve large elements of prophecy.’ And, given the complexity and long-lasting nature of global climate change, the court would be required to supervise the government’s compliance with any suggested plan for many decade.”
Juliana v. United States, 947 F.3d 1159, 1172 (9th Cir. 2020) (Internal citations omitted)
Let’s consider Wood’s standing. First, has Wood articulated a legally cognizable harm? His argument was that his vote was somehow diluted by allowing others to vote because of the settlement agreement that made it more difficult to reject absentee ballots. The court held that, assuming his claim is true (which is how courts analyze such things), it is not a particularized injury. His allegations are general in nature, not particular to him.
Claims premised on allegations that "the law . . . has not been followed . . . [are] precisely the kind of undifferentiated, generalized grievance about the conduct of government . . . [and] quite different from the sorts of injuries alleged by plaintiffs in voting rights cases where we have found standing." ("Our refusal to serve as a forum for generalized grievances has a lengthy pedigree. . . . [A] generalized grievance that is plainly undifferentiated and common to all members of the public" is not sufficient for standing).
Wood alleges he has standing because he is "a qualified registered elector residing in Fulton County, Georgia" who has "made donations to various Republican candidates on the ballot for the November 3, 2020 elections, and his interests are aligned with those of the Georgia Republican Party for the purposes of the instant lawsuit." These allegations fall far short of demonstrating that Wood has standing to assert these claims.
Wood v. Raffensperger, Civil Action No. 1:20-cv-04651-SDG, at *13-14 (N.D. Ga. Nov. 20, 2020)(Internal citations omitted)
The Wood court did not further discuss standing since a plaintiff must meet all three prongs of standing to advance an action.
Another issue that has arose concerning standing is when and how associations, rather than individual, may have standing. This came up in Trump v. Boockvar, Civil Action No. 4:20-CV-02078 (M.D. Pa. Nov. 21, 2020), and Trump v. Cegavske, Civil Action No. 2:20-CV-1445 JCM (VCF) (D. Nev. Sep. 18, 2020). In both cases, the courts rejected the Trump campaign’s claims of associational standing. Associations do not have standing in federal court unless they can articulate particularized and concrete harm of any of its members caused by the defendant(s) regarding an issue that is related to the association’s core mission and where any of its members would also have standing (meaning the standard Lujan three-prong test for standing additionally applies here). Additionally, neither the claims asserted nor the relief sought by the association must require the participation of its members in the suit as individuals. The failure here is that voters are not members of the Trump campaign or any other political action committee.
Note that state courts are often much more open to lawsuits than federal courts. This is intentional. Originally, it was assumed that nearly all lawsuits would originate in state trial courts. Federal courts had limited jurisdiction whereas state courts had much broader jurisdiction. In fact, in the recent election cases many suits were initially filed in state courts. But, except for one case concerning the number of days to accept absentee ballots in Pennsylvania, Trump lost every single case filed in state court at either the trial or appellate levels.
Laches
Laches was busy in the past few weeks. I am not sure there have ever before been so many federal orders and decisions in a month-long period that involved laches. Laches is essentially a common law analogue to the statute of limitations. It is designed to prevent plaintiffs from waiting too long to complain about some action in court. Laches is commonly used in election law and it applies where defendants can show that there was an inexcusable delay in bringing the action and it caused them undue prejudice. It is available in state and federal courts. Unlike standing in which plaintiffs must prove at both trial and appellate levels of an action – and which a court can raise sua sponte (on its own) – laches is a doctrine that defendants must assert. The general rule here is that one needs to complain about an injury at the time it occurs or is discovered, particularly if doing so would have give defendants a chance to cure the injury and avoid a lawsuit. Without laches, plaintiffs could complain about grievances years after the fact when the problem could have been addressed timely. It is a matter of fairness and also of conserving court resources.
The Wisconsin Supreme Court quoted the Corpus Juris Secundem (a well-respected and authoritative encyclopedia of the law) in its December 14th decision in Trump v. Biden that
in election contests, a court especially considers the application of laches. Such doctrine is applied because the efficient use of public resources demands that a court not allow persons to gamble on the outcome of an election contest and then challenge it when dissatisfied with the results, especially when the same challenge could have been made before the public is put through the time and expense of the entire election process. Thus if a party seeking extraordinary relief in an election-related matter fails to exercise the requisite diligence, laches will bar the action.
29 C.J.S. Elections § 459 (2020) (footnotes omitted)(emphasis added).
There has yet to be one case filed by Trump and his supporters – outside of the early actions asking for relaxing of social distancing standards for vote counting observers – that could not have been raised well before the election. The rules complained of in Trump v. Biden and Wood v. Raffensperger were in place weeks if not months before the election. In these cases, laches ensures that the public will have certainty and confidence in the election rules at the time they cast their votes. Additionally, waiting until after the election to complain suggests a lack of good faith on the plaintiffs. Rather than sincerely challenging the legality of election rules, they are in fact complaining that they lost the election and want the courts to change the outcome.
If you are a Trump supporter, imagine everything that has happened in reverse and see if you think it would be fair for the Biden campaign to wait until after the vote to complain about the rules. If that’s too difficult, then imagine your favorite football team winning when the opposing team fails on a last second touchdown pass because the receiver only had one foot in. The opposing team complains to the referees that the rule should be that a receiver only needs one foot in for a touchdown to count despite the fact that for the entire game the rule was two feet in were needed. That’s what Trump has been attempting in these election cases. Laches says no way – if you had a complaint about the rules, you should have complained before the game began.
This post will be continued next week with a discussion of injunctions and fraud.
Later this week, we’ll return to the campaign trail and check in on what is happening in Georgia. In the new year, we have some special House elections and redistricting to discuss. The special elections will likely not be set until a few weeks after Biden’s inauguration once the House members are confirmed for their spots on his team. Currently, Reps. Marica Fudge (OH) and Cedric Richmond (LA) have been nominated by Biden for senior positions in his administration. There is an expectation that a third may be joining them – Rep. Deb Haaland (NM). If Haaland is nominated and confirmed for Secretary of Interior she will be the first Native American to serve in any president’s cabinet.