Search

Federal Election Day didn’t just happen. Rather, it reflects the culmination of a series of federal laws enacted over the course of nearly seventy years. Each of those laws requires states to hold a different type of federal election on the same day. These statutes also grant states flexibility to hold federal elections at a later date if there is a “failure to elect” on Election Day. Based on a detailed examination of these provisions’ texts, legislative histories, and histories of judicial application, this Article explains that federal Election Day laws empower states to postpone or extend federal elections when serious emergencies preclude them from being conducted or concluded on Election Day itself. A court may also postpone or extend a federal election when necessary to prevent constitutional or statutory violations. The Supreme Court has emphasized that courts should generally avoid granting such relief at the last minute, although major unexpected emergencies may sometimes render it necessary. A court may not order an election postponement or extension, however, unless other, less extensive changes to the rules governing the electoral process would be insufficient to remedy the underlying constitutional or statutory violation. And courts may be especially reluctant to grant such relief in states that provide extensive opportunities for early and absentee voting before Election Day. In the hierarchy of electoral remedies, a postponement or extension is a severe, disfavored remedy—particularly in the unique context of presidential elections—that should be employed only in the rare, extreme case where alternatives would be completely ineffective.

The U.S. Constitution does not confer authority to regulate federal elections on states as entities. Rather, it grants that authority specifically to the “Legislature” of each state. The “independent state legislature doctrine” teaches that a state constitution is legally incapable of imposing substantive restrictions on the authority over federal elections that the U.S. Constitution confers directly upon a state’s legislature. Over the past 130 years, the U.S. Supreme Court has repeatedly adopted conflicting positions on this doctrine without recognizing its deep historical roots or normative justifications. The independent state legislature doctrine reflects the prevailing understanding of states, Congress, and other actors in the nineteenth century. Throughout that period, the doctrine was consistently applied across a broad range of circumstances. It protects important structural considerations and is consistent with the political theory underlying the U.S. Constitution’s election-related provisions. The U.S. Supreme Court could reincorporate the doctrine into modern American law with minimal disruption to either its precedents or state election systems. Moreover, the doctrine may present a potentially substantial obstacle to the use of state constitutions to combat partisan gerrymandering in congressional elections.

This Court should reverse the judgment of the U.S. Court of Appeals for the Tenth Circuit in Colorado Dep’t of State v. Baca. The Tenth Circuit abused its discretion in reaching the merits of Respondent Micheal Baca’s constitutional challenge to Colorado’s faithless elector law, since he lacked a valid cause of action under 42 U.S.C. § 1983. Arizonans for Official English v. Arizona, 520 U.S. 43, 69 (1997); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). The constitutional avoidance doctrine requires federal courts to avoid adjudicating unsettled constitutional issues when a case can be fully resolved on other, nonconstitutional grounds. Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944). This principle applies even where the parties themselves have not raised the alternate, non-constitutional issue. Neese v. S. Ry. Co., 350 U.S. 77, 78 (1955) (per curiam). The Tenth Circuit erred by adjudicating the merits of Respondent Baca’s constitutional claim rather than dismissing it under § 1983. Additionally, this Court has recognized that Congress has primary constitutional authority for creating damages remedies for constitutional violations. Bush v. Lucas, 462 U.S. 367, 388-90 (1983). In FDIC v. Meyer, 510 U.S. 471, 486 (1994), this Court refused to create a cause of action to allow plaintiffs to sue federal agencies for damages for constitutional violations. By allowing Respondent Baca’s claim to proceed, the Tenth Circuit allowed such a suit to proceed against a state agency, despite the lack of statutory authorization. Finally, by adjudicating Respondent Baca’s constitutional challenge based on a non-existent cause of action, the Tenth Circuit issued a gratuitous advisory opinion. U.S. Nat’l Bank v. Indep. Ins. Agents of Am., 508 U.S. 439, 447 (1993); see, e.g., California v. San Pablo & T.R. Co., 149 U.S. 308, 314 (1893); cf. Muskrat v. United States, 219 U.S. 346, 348-51 (1911). For these reasons, this Court should conclude that the Tenth Circuit abused its discretion in reaching the merits of Respondent Baca’s constitutional claim. With the Tenth Circuit’s ruling set aside, this Court should dismiss the writ of certiorari in Chiafalo v. Washington as improvidently granted, since there would no longer be a split in authority requiring resolution by this Court. In the alternative, this Court should vacate both lower courts’ judgments under the political question doctrine. The Constitution assigns Congress responsibility for counting electoral votes. See U.S. CONST. amend. XII; 3 U.S.C. § 15. As part of that authority, Congress is entitled to determine for itself the validity of electoral votes cast pursuant to states’ faithless elector laws. Cf. Nixon v. United States, 506 U.S. 224 (1993); Roudebush v. Hartke, 405 U.S. 15, 25-26 (1972). Moreover, due to Congress’ constitutional power to count electoral votes, a judicial ruling on the merits in this case creates the possibility that different branches of the federal government will reach different conclusions concerning the constitutionally required outcome of future presidential elections. The identity of the duly elected President, however, is an issue on which the nation has a compelling need to avoid “multifarious pronouncements by various departments.” Baker v. Carr, 369 U.S. 186, 216 (1962). Should this Court reach the merits of the faithless elector issue, however, it should affirm the Supreme Court of Washington’s judgment in Chiafalo and reverse the Tenth Circuit’s judgment in Baca. Faithless elector laws are a valid implication of this Court’s holding that a state legislature’s decision to appoint presidential electors based on the outcome of a statewide popular vote triggers voters’ fundamental constitutional right to vote. See Bush v. Gore, 531 U.S. 98, 104 (2000) (per curiam). Recognizing a “fundamental” constitutional right to vote for President would be a hollow formality if a state’s electors could assert a constitutional prerogative to cast their electoral votes for a candidate who had lost the popular vote within that state—or potentially did not even participate in that state’s presidential election at all.

Election officials must prepare for the November 2020 presidential election amidst the threat posed by COVID-19. Many experts, task forces, advocacy groups, and scholars are recommending affirmative steps they should take to respond to the threat. Whether developing contingency plans, modifying the rules governing the electoral process under election emergency statutes or more general state-of-emergency laws, or crafting new election emergency legislation, government officials must also be aware of the redlines they should not cross. Officials' ultimate goals must be ensuring that every eligible voter has sufficient opportunity to cast a ballot without jeopardizing their health, safeguarding the integrity of the electoral process, and preserving public faith in its fairness and accuracy. This short essay seeks to complement existing work by identifying policies that officials should avoid authorizing, adopting, or incorporating into contingency plans as part of their response to the COVID crisis.

In a recent article in the Harvard Law Review entitled, “The Lost History of the ‘Universal’ Injunction,” Professor Mila Sohoni contends that Article III permits federal courts to issue nationwide injunctions because they have issued such orders since the early 1900s. She offers 15 main examples of federal cases from between 1894 and 1943 in which she contends that the court issued nationwide injunctions. These historical precedents, she argues, legitimize the continued constitutionality of nationwide injunctions today. This Essay demonstrates that the Article III objection to nationwide injunctions survives Professor Sohoni's critique for three main reasons. First, the only case that "Lost History" discusses in which the Supreme Court expressly addressed the validity of nationwide injunctions, Perkins v. Lukens Steel Co., largely rejected them. Perkins' express consideration of such orders carries far greater weight than inferences drawn from a handful of other cases, many from lower courts, that do not consider potential Article III concerns. Second, most of the orders on which "Lost History" focuses are not the type of nationwide injunctions at the heart of most modern debates over the issue. The term "nationwide injunction" is ambiguous, encompassing up to five fundamentally different type of orders that each raise distinct jurisdictional, rule-based, fairness-related, prudential, and structural concerns. The ongoing controversy concerning so-called nationwide injunctions involves a type of order that I call a "defendant-oriented injunction." A defendant-oriented injunction prohibits a governmental defendant from enforcing a challenged legal provision against anyone, anywhere in the nation, including third-party non-litigants in other jurisdictions. Most of the orders that "Lost History" cites are not defendant-oriented injunctions. Instead, they have materially different characteristics and are properly classified as completely distinct types of nationwide injunctions. These orders do not establish that federal courts have a lengthy history of issuing broad nationwide or statewide defendant-oriented injunctions aimed at enforcing the rights of third-party non-litigants. Finally, even treating all 15 orders as relevant examples, they prove very little. In most cases, the scope of the order was neither contested by the parties nor addressed by the Supreme Court. To the contrary, in several cases, the Government implicitly or explicitly consented to the requested relief on an interim basis, alleviating the need for the Court to consider their propriety. Perhaps more importantly for the examples involving constitutional challenges to state laws, most federal districts in the period had only one or two district judges, who adjudicated such matters as part of three-judge trial-court panels. Whether a district court granted a statewide defendant-oriented injunction was usually irrelevant as a practical matter, since any future constitutional challenges to that state law were virtually certain to be heard by the same judge. Thus, even if such orders were technically improper, it is entirely understandable under the circumstances that defendants would not have wasted time challenging them. In short, the history of nationwide injunctions does little to establish the constitutionality of defendant-oriented injunctions. Particularly in light of Article III precedent as it has evolved over the decades since, the Article III objection to such orders remains compelling.

The U.S. Supreme Court should grant the petition for certiorari, vacate the judgment of the U.S. Court of Appeals for the Tenth Circuit, and remand for immediate dismissal of the case. The Tenth Circuit held that Article II and the Twelfth Amendment of the U.S. Constitution prohibit a state from binding its presidential electors. It concluded that a state cannot require its electors to cast their electoral votes for the presidential candidate who received the plurality of votes within that state. Based on this reasoning, the court held Colorado’s Elector Binding Law, Colo. Rev. Stat. § 1-4-304, unconstitutional. The Tenth Circuit’s ruling purports to resolve a critical issue of constitutional law that presents a matter of first impression for this Court. It calls into question the validity of laws binding presidential electors in 29 other jurisdictions. It impacts the constitutional right to vote of tens of millions of voters throughout the nation, potentially undermining public confidence in the presidential election process. And it was wholly unnecessary. Respondents’ sole cause of action in the Second Amended Complaint was a claim under 42 U.S.C. § 1983 against Petitioner Colorado Department of State. The Tenth Circuit properly held that Respondents lacked standing to seek prospective relief concerning future elections, and a standalone claim for declaratory relief concerning the long-completed 2016 election would be useless, The only justiciable avenue for relief that had not become moot was Respondent Micheal Baca’s claim for $1 in nominal damages against the Colorado Department of State. As the Tenth Circuit itself candidly admitted, however, § 1983 does not create a cause of action for damages against state agencies. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). The court nevertheless chose to adjudicate Respondent Baca’s claim because Petitioner had agreed to refrain from invoking sovereign immunity or arguing that § 1983 does not apply to it. Based solely on the parties’ agreement, the Tenth Circuit adjudicated an unsettled, far-reaching, and controversial question of constitutional law with nationwide impact, notwithstanding the complete lack of a valid underlying cause of action. “[T]he State and arms of the State . . . are not subject to suit under § 1983 in either federal court or state court.” Howlett v. Rose, 496 U.S. 356, 365 (1990). The Tenth Circuit erred by adjudicating a type of claim this Court has characterized as “nonexistent,” Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), and “not . . . valid,” Lapides v. Bd. of Regents, 535 U.S. 613, 617 (2002). The error was especially problematic in this case because it led the court to unnecessarily resolve an unresolved constitutional issue. Federal courts are required to avoid gratuitously adjudicating constitutional questions when non-constitutional grounds exist for resolving a case. See Neese v. S. Ry. Co., 350 U.S. 77, 78 (1955) (per curiam); Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 136 (1946). The Tenth Circuit’s decision to award a remedy—damages against a state agency—that Congress did not authorize also undermined separation-of-powers principles. See Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 74 (1992). Indeed, the Tenth Circuit allowed Respondent to bring against a state agency the very type of statutorily unauthorized claim for damages arising from constitutional violations that this Court expressly refused to recognize against federal agencies in FDIC v. Meyer, 510 U.S. 471, 486 (1994). By willfully basing its ruling upon an incorrect construction of § 1983, the Tenth Circuit also issued an unconstitutional advisory opinion in violation of Article III. See U.S. Nat’l Bank v. Independent Insurance Agents of America, 508 U.S. 439, 447 (1993). The Tenth Circuit was not bound by Petitioner’s purported “waiver” of the § 1983 issue and, especially under the circumstances of this case, should not have accepted it. This Court should grant certiorari for the sole purpose of vacating the Tenth Circuit’s gratuitous constitutional adjudication. Moreover, Article III’s adverseness requirements limit litigants’ ability to manufacture constitutional litigation through strategic stipulations and waivers. Arizonans for Official English, 520 U.S. at 71; Muskrat v. United States, 219 U.S. 346, 361-63 (1911); California v. San Pablo & T.R. Co., 149 U.S. 308, 314 (1893). The parties’ cooperation in crafting a lawsuit to secure a judicial ruling on the constitutionality of Colorado’s Elector Binding Law further undermines this case’s justiciability. Again, vacating the Tenth Circuit’s judgment is the proper remedy.

This is the written statement I submitted in conjunction with my testimony before the U.S. House Judiciary Committee's Subcommittee on Courts, Intellectual Property, and the Internet concerning nationwide injunctions. The statement begins by distinguishing among various types of nationwide injunctions. It goes on to emphasize the need to distinguish between class actions and non-class cases. In Rule 23(b)(2) class actions, the main issue is the proper geographic scope of the plaintiff class; courts generally should refuse to certify nationwide classes. Nationwide classes are largely inconsistent with the decentralized structure of the federal judiciary and limited geographic responsibility of each district court. In non-class cases, in contrast, the primary issue is the scope of the injunction itself. I argue that courts should generally issue "Plaintiff-Oriented Injunctions" which prohibit the Government defendant from enforcing the challenged statute, regulation, executive order, or other federal policy solely to the particular plaintiffs in the case. They should typically decline to issue nationwide "Defendant-Oriented Injunctions" that completely prohibit the Government defendants from enforcing the challenged legal provision against anyone, anywhere in the nation. Defendant-Oriented Injunctions raise troubling concerns relating to Article III standing, Due Process, asymmetric claim preclusion, Rule 23, and the limited geographic jurisdiction of individual district courts. The statement concludes by offering brief legislative proposals to address these issues.

In Spokeo, Inc. v. Robins, the Supreme Court held that, even when a federal statute creates a cause of action, Article III requires federal courts to ensure that the plaintiff has suffered a sufficiently concrete injury before exercising jurisdiction over the claim. Spokeo invites us to re-think the traditional dichotomy between Hohfeldian plaintiffs, who have suffered a concrete and particularized injury, and non-Hohfeldian (or ideological) plaintiffs, who have suffered no such harm. The case requires recognition of a third category: the quasi-Hohfeldian plaintiff, who has suffered a particularized injury because its statutory rights were violated, but no concrete harm because the violation caused no real damage. At first blush, Spokeo appears to bar quasi-Hohfeldian plaintiffs from federal court. Congress can easily allow federal courts to exercise jurisdiction over their claims, however, by statutorily redesignating such plaintiffs as relators, relabeling statutory damages as civil fines, and recharacterizing private rights of action as qui tam claims brought on behalf of the Government. Even under current law, Spokeo will not eliminate quasi-Hohfeldian plaintiffs’ claims under federal statutes, but simply cause them to be litigated in state court instead. Courts should construe federal statutes creating private rights of action as implicitly limited to Hohfeldian plaintiffs, absent a clear statement in the statute’s text or legislative history to the contrary, for three reasons. First, the constitutional avoidance canon counsels in favor of such a restriction. A federal law creating a cause of action for anyone whose statutory rights are violated, including quasi-Hohfeldian plaintiffs, would have a substantial number of unconstitutional applications in federal court under Spokeo. Second, by enacting 28 U.S.C. § 1331, a sweeping grant of federal-question jurisdiction to federal district courts, Congress demonstrated its intent that they be able to exercise jurisdiction over federal claims. Other laws therefore should not be construed as authorizing federal claims that fall outside district courts’ jurisdiction. Finally, allowing quasi-Hohfeldian plaintiffs to enforce federal laws raises serious questions under the President’s Article II Take Care Power. Federal statutes therefore should not be interpreted as creating “non-federal” federal questions.

Erie killed general law. Due to statutory, constitutional, and fairness constraints, a federal court generally must apply state substantive law in diversity and supplemental jurisdiction cases.Since our nation’s founding, however, federal courts have treated equity as an independent branch of general law, binding of its own force in all cases that come before them. In Guaranty Trust Co. v. York, the Supreme Court held that, notwithstanding Erie, federal courts may continue to rely on traditional principles of equity derived from the English Court of Chancery to determine the availability of equitable relief, such as injunctions, receiverships, and equitable liens, in cases arising under state law. This so-called “equitable remedial rights doctrine” is based on an anachronistic misunderstanding of the nature of the federal equity power. This Article offers a bold new approach to understanding the nature and limits of the federal equity power. There is no single body of equity law that federal courts must apply in all cases that come before them. In cases arising under state law, there is no basis in the Constitution, federal law, or Federal Rules of Civil Procedure for courts to impose their own equitable standards for relief. Rights and remedies are inextricably intertwined. The manner in which state-created rights are protected is as much a matter of substantive state policy as the state’s initial creation and allocation of those rights. A federal court must apply state statutes and precedents — not uniform, centrally devised federal standards — to determine the availability of equitable relief for state-law claims.Conversely, for cases arising under federal statutes, the equitable principles that apply are a question of statutory interpretation. When a federal law authorizes equitable relief, a court may presume Congress intended to incorporate traditional equitable principles, absent a clear statement to the contrary in the law's text or legislative history. And for constitutional cases, federal courts may presumptively apply traditional equitable principles as a matter of constitutional common law, unless Congress chooses to displace it. Thus, contrary to received wisdom, there is no single federal equity law. The scope of equitable relief a federal court may afford depends on the underlying law from which a claim arose.

When a court holds that a legal provision is unconstitutional; inconsistent with, or preempted by, federal law; or invalid under an agency's organic statute or a framework statute such as the Administrative Procedures Act, the court must decide whether to grant injunctive relief and, if so, how broad that relief should be. In particular, the court must decide whether to issue a Plaintiff-Oriented Injunction or a Defendant-Oriented Injunction. A Plaintiff-Oriented Injunction bars the government defendants from enforcing the challenged provision only against the plaintiffs in the case or affected members of plaintiff organizations. A Defendant-Oriented Injunction, in contrast, completely bars the government defendant from enforcing the challenged provision against anyone in the state or nation. Many courts tend to award Defendant-Oriented Injunctions in election law and voting rights cases, even when they are not brought as class actions, without recognizing or addressing most of the pertinent issues that choice implicates. Individual plaintiffs typically lack Article III standing to seek relief protecting the rights of third parties not before the court. And such third parties may neither fall within the court’s personal jurisdiction nor wish to challenge the provision at issue. Defendant-Oriented Injunctions in non-class cases also raise asymmetric preclusion concerns, undermine the policy considerations underlying Rule 23, and allow trial courts to enforce their rulings beyond the geographic limits of their jurisdiction. This Article presents a new framework for determining the proper scope of injunctive relief in election law, voting rights, and other constitutional cases. First the court should assess whether granting the requested relief solely to the individual plaintiffs would create unconstitutional disparities concerning fundamental rights in violation of Equal Protection principles, although this seldom, if ever, should be the case. Second, after confirming that limiting relief solely to the individual plaintiffs would be constitutional, the court should then determine whether such a Plaintiff-Oriented Injunction would be proper under the challenged statute or regulation itself by applying traditional severability principles. If the challenged provision can be applied coherently, and the entity that enacted the provision still would have intended for it to be enforced, even with the plaintiffs excluded from its scope, then a Plaintiff-Oriented Injunction would be the proper remedy. Otherwise, a Defendant-Oriented Injunction is required.This Article further contends that, when plaintiffs file a non-class case seeking to enjoin a legal provision, the court should determine at the outset whether a Plaintiff- or Defendant-Oriented Injunction would be necessary if the plaintiffs prevail. If a Defendant-Oriented Injunction would be required, the court should order that the case proceed as a Rule 23(b)(2) class action so that all right holders who stand to benefit from a favorable ruling are included as class members. Conducting such an analysis at the outset of the case eliminates most of the concerns implicated by Defendant-Oriented Injunctions.

Professors James E. Pfander’s and Daniel D. Birk’s bold reinterpretation of Article III’s justiciability requirements in their recent article, "Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction," 124 YALE L.J. 1346 (2015), challenges the widely accepted principle that federal courts may adjudicate only live disputes between adverse parties. Pfander and Birk provide a fascinating analysis of the various roles that federal judges and courts have played throughout American history, and offer an elegant reinterpretation of the distinction between "cases" and "controversies" under Article III. While many of their conclusions are sound, this Response contends that their proposed reinterpretation of Article III goes too far. Even assuming that Article III grants federal courts non-contentious jurisdiction to hear certain ex parte matters, it should not extend so far as to allow federal courts to become or remain involved in matters where all interested parties affirmatively agree and seek the same relief. In other words, despite their historical pedigree, Article III should not be read as conferring non-contentious jurisdiction upon federal courts to enter consent decrees. This Response begins by questioning the utility of Pfander and Birk’s primary methodology — a largely historical analysis — in the context of Article III. It goes on to argue that Pfander and Birk erred in concluding that consent decrees are a valid exercise of the judicial power under Article III. The historical and current practices from which they derive their conclusions are susceptible to an alternate analysis: for a case or controversy to exist, the interested parties must not have not reached a complete accord on all issues in a legal dispute. Indeed, even if one accepts Pfander and Birk’s arguments, consent decrees are not justiciable under their own proposed conception of non-contentious jurisdiction. This Response concludes by demonstrating that their proposed distinction between “cases” and “controversies” can have profound effects on Supreme Court jurisdiction that may, in themselves, constitute a basis for rejecting or modifying their proposal.

The Supreme Court's recent ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission ("AIRC") lays to rest several pressing disputes concerning the Elections Clause of the U.S. Constitution, but other important controversies remain. This short essay offers a critical examination of the "new" Elections Clause, as it remains in the wake of this momentous ruling. The essay contends that the Court's ruling is best viewed as either a legal process or representation-reinforcing interpretation of the Clause. From either perspective, the Court's methodology can have important consequences for how it interprets the Constitution's other election-related provisions. This essay then explores several issues, apart from the validity of independent redistricting commissions, that AIRC resolves, including the permissibility of delegations under the Elections Clause, the Court's repudiation of the independent state legislature doctrine, and the likely permissibility of changing the process through which a state awards its electoral votes through a public initiative. The essay concludes by identifying major remaining controversies under the Clause, most notably whether it imposes a constitutionally mandated "plain meaning" canon of construction for state election laws.

Many states have delegated substantial authority to regulate federal elections to entities other than their institutional legislatures, such as independent redistricting commissions empowered to determine the boundaries of congressional districts. Article I’s Elections Clause and Article II’s Presidential Electors Clause, however, confer authority to regulate federal elections specifically upon State “legislatures,” rather than granting it to States as a whole. An intratextual analysis of the Constitution reveals that the term “legislature” is best understood as referring solely to the entity within each state comprised of representatives that has the general authority to pass laws. Thus, state constitutional provisions or laws creating independent redistricting commissions that purport to limit a state legislature’s power to draw congressional districts or otherwise regulate federal elections violate the Elections Clause.

One of the most important features of the United States government as originally conceived by the Framers is that, even before the addition of the Bill of Rights, its powers were strictly regulated by the Constitution. Instead of being a supreme parliament, able to do whatever it believed necessary to promote the nation’s health, safety, welfare, or morals, Congress was crafted as a legislature of strictly enumerated powers. Every