Monday, February 08, 2016
De facto class actions article http://electionlawblog.org/?p=79681
Good analysis although I disagree with the conclusions.
This topic relates to a concern of mine that I may have blogged about already or maybe it's still just in my head. How as-applied challenges can work to obtain relief similar to facial challenges.
McIntyre is an example: Mrs McIntyre's as applied challenge was to her $100 fine. Manual Talley's $10 fine was reversed in Talley v California. These cases declared the underlying statutes unconstitutional, although neither Ohio nor California stopped enforcing them.
Citizens United has a discussion of this point. CU raised an as-applied challenge, but the court granted broad relief, overruling Austin and parts of McConnell, finding that corporations have a right to speak about politics, not just through their PACs.
This point applies to voter ID litigation.
In Crawford v Marion County, the aclu tried to make a facial challenge to the statute. The court wasn't buying it, citing Salerno, Washington State Grange, and perhaps McConnell.
The court said that at most they had shown facts to support an as-applied challenge for perhaps 1% of the voters, but did not grant any relief, The facial challenge failed and there had been no as-applied challenge made.
Some observers have thought that this means voter ID cannot be successfully challenged. That if, for example, I had won my case after I was denied a provisional ballot in Indiana, it would have affected only my vote, and there's not much point in trying to litigate an election vote by vote.
I disagree. In Crawford, much was made of the fact that no single plaintiff had been denied a vote.
Judge Posner rejected my amicus brief on behalf of myself and two others who had been denied the vote. Posner, years later, has come to understand that voter ID is about disenfranchisement, but the 7th circuit remains split 5-5, and there are no cases in the pipeline. I have a two clients and case, but no lawyer for them; I know by this time I am not the right lawyer for the case, having failed at several of these for lack of resources.
But what Citizens United shows is that one client, and the right as-applied challenge, is enough, historically reversing Austin 5-4.
Conversely Citizens United also brought the wrong as-applied argument, and lost the disclosure and disclaimer part of the case 8-1.
Some commenters think that my proposed as-applied challenge to voter ID in Indiana is the wrong one, and lacks standing, and would lose on the merits. I think that with the 7th circuit split 5-5, much would depend on the panel draw,an d on the facts and legal theories put forth.
I'm not trying to obsess over my own cases. I'm trying to make a general point that as-applied challenges to voter ID, when made to a sympathetic court, offer a wide range of options for that court to fashion as relief. The court could issue a plaintiff-based remedy, requiring one voter's ballot to be counted, or a class of voter's ballots to be counted. Or, the court could issue a defendant-based injunction, such as enjoining voter ID altogether, or enjoining a county or state from rejecting provisional ballots without clear and compelling evidence of fraud.
Voter ID is not the only application for this idea that an as-applied challenge can be used to ask for broad relief. It is a general principle of election law. To go back to McIntyre, Ohio still requires disclaimers for candidate literature, even after McIntyre said the statute was void. All it should take is a follow-up case pointing to McIntyre.
Indiana had a nice example of this in two cases that involved a void anti-slating staute. In Ogden v Marendt, Ogden pointed to McIntyre and had the statute enjoined against further application to himself. The election board, however, then tried to enforce the statute against another candidate, Zach Mulholland. The ACLU came on board, it went up to the 7th circuit,and Mulholland collected a settlement for $80,000, which I assume mostly went to his ACLU lawyers.
I've been doing a bad job of following up with Mulholland to see if he'd like to take another run at the county board. They have given up trying to enforce that specific anti-slating statute, but still unconstitutionally censor political speech.
The general point is to include both as-applied and facial challenges in a complaint, and know how to argue the points in briefs and proposed injunctions. The article mentioned at the beginning of this post is a good exploration of the topic.
Good analysis although I disagree with the conclusions.
This topic relates to a concern of mine that I may have blogged about already or maybe it's still just in my head. How as-applied challenges can work to obtain relief similar to facial challenges.
McIntyre is an example: Mrs McIntyre's as applied challenge was to her $100 fine. Manual Talley's $10 fine was reversed in Talley v California. These cases declared the underlying statutes unconstitutional, although neither Ohio nor California stopped enforcing them.
Citizens United has a discussion of this point. CU raised an as-applied challenge, but the court granted broad relief, overruling Austin and parts of McConnell, finding that corporations have a right to speak about politics, not just through their PACs.
This point applies to voter ID litigation.
In Crawford v Marion County, the aclu tried to make a facial challenge to the statute. The court wasn't buying it, citing Salerno, Washington State Grange, and perhaps McConnell.
The court said that at most they had shown facts to support an as-applied challenge for perhaps 1% of the voters, but did not grant any relief, The facial challenge failed and there had been no as-applied challenge made.
Some observers have thought that this means voter ID cannot be successfully challenged. That if, for example, I had won my case after I was denied a provisional ballot in Indiana, it would have affected only my vote, and there's not much point in trying to litigate an election vote by vote.
I disagree. In Crawford, much was made of the fact that no single plaintiff had been denied a vote.
Judge Posner rejected my amicus brief on behalf of myself and two others who had been denied the vote. Posner, years later, has come to understand that voter ID is about disenfranchisement, but the 7th circuit remains split 5-5, and there are no cases in the pipeline. I have a two clients and case, but no lawyer for them; I know by this time I am not the right lawyer for the case, having failed at several of these for lack of resources.
But what Citizens United shows is that one client, and the right as-applied challenge, is enough, historically reversing Austin 5-4.
Conversely Citizens United also brought the wrong as-applied argument, and lost the disclosure and disclaimer part of the case 8-1.
Some commenters think that my proposed as-applied challenge to voter ID in Indiana is the wrong one, and lacks standing, and would lose on the merits. I think that with the 7th circuit split 5-5, much would depend on the panel draw,an d on the facts and legal theories put forth.
I'm not trying to obsess over my own cases. I'm trying to make a general point that as-applied challenges to voter ID, when made to a sympathetic court, offer a wide range of options for that court to fashion as relief. The court could issue a plaintiff-based remedy, requiring one voter's ballot to be counted, or a class of voter's ballots to be counted. Or, the court could issue a defendant-based injunction, such as enjoining voter ID altogether, or enjoining a county or state from rejecting provisional ballots without clear and compelling evidence of fraud.
Voter ID is not the only application for this idea that an as-applied challenge can be used to ask for broad relief. It is a general principle of election law. To go back to McIntyre, Ohio still requires disclaimers for candidate literature, even after McIntyre said the statute was void. All it should take is a follow-up case pointing to McIntyre.
Indiana had a nice example of this in two cases that involved a void anti-slating staute. In Ogden v Marendt, Ogden pointed to McIntyre and had the statute enjoined against further application to himself. The election board, however, then tried to enforce the statute against another candidate, Zach Mulholland. The ACLU came on board, it went up to the 7th circuit,and Mulholland collected a settlement for $80,000, which I assume mostly went to his ACLU lawyers.
I've been doing a bad job of following up with Mulholland to see if he'd like to take another run at the county board. They have given up trying to enforce that specific anti-slating statute, but still unconstitutionally censor political speech.
The general point is to include both as-applied and facial challenges in a complaint, and know how to argue the points in briefs and proposed injunctions. The article mentioned at the beginning of this post is a good exploration of the topic.
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