[EL] Vote Suppression and the State Action Requirement

[Josh Douglas]

Hi Mark,

The excerpt below is from a draft of an article I am writing, titled
"Election Law Pleading."  It explains how defendants in voting cases are
almost always a government or governmental entity or official.  There are
of course exceptions, but most cases fall under this guise.

Josh

 Most election lawsuits involve as a plaintiff an individual voter or
candidate, a political party, an interest group or other organization, or
even the federal government, who sues a local, state, or federal entity or
official and challenges an election practice as unlawful.  This is
different from virtually all other substantive areas of law, in which the
defendant could be either a government or a private organization, entity,
or individual.[1] <#_ftn1>  For example, an individual voter might sue a
state (or the state’s official in charge of the election) to challenge its
photo identification requirement.[2] <#_ftn2>   A candidate might allege
that a state is unlawfully keeping him or her off of the ballot.[3] <#_ftn3>
A political party could challenge a state’s designation of party preference
on a ballot.[4] <#_ftn4>  An interest group, such as an organization that
wishes to spend money on an election, could argue the unconstitutionality
of a federal campaign finance law.[5] <#_ftn5>  And the Department of
Justice could bring an enforcement action against a state or municipality
for failing to comply with a statutory command such as the Voting Rights
Act, the National Voter Registration Act, or the Help America Vote
Act.[6]<#_ftn6>


With a few exceptions,[7] <#_ftn7> the defendant in these cases is always
the government or governmental officials, as the governmental entity
administers elections and therefore is the only potential “bad” actor. This
is fairly unique to election law, because in most other cases the “bad”
actor could be either the government *or* a private party.[8] <#_ftn8>  Private
parties are rarely defendants in civil election cases.  Even if the named
defendant is someone else, such as the opposing candidate, the de facto
defendant is a governmental official who is charged with administering the
election or counting the ballots.[9] <#_ftn9>  Typically, the only election
case in which someone other than a governmental actor is a defendant is a
criminal action involving election fraud.[10] <#_ftn10>

------------------------------

[1] <#_ftnref1> Administrative cases typically involve a governmental unit
as a defendant, but administrative law is not necessarily a specific
substantive area. *See, e.g.*, Gillian E. Metzger, *Ordinary Administrative
Law as Constitutional Common Law*, 110 Colum. L. Rev. 479, 484-85 (2010).
In addition, school finance cases are most often against governmental units
funding schools. Molly Townes O’Brien, *At the Intersection of Public
Policy and Private Process: Court-Ordered Mediation and the Remedial
Process in School Funding Litigation*, 18 Ohio St. J. on Disp. Res. 391,
401-02 (2003).

[2] <#_ftnref2> *See, e.g.*, Crawford v. Marion Cnty. Election Bd., 553
U.S. 181 (2008).

[3] <#_ftnref3> *See, e.g.*, Nader v. Keith, 385 F.3d 729 (7th Cir. 2004).

[4] <#_ftnref4> *See, e.g.*, Washington State Grange v. Washington State
Republican Party, 552 U.S. 442 (2008).

[5] <#_ftnref5> *See, e.g.*, Citizens United v. FEC, 130 S. Ct. 876 (2010).

[6] <#_ftnref6> Voting Rights Act of 1965 § 3, 42 U.S.C. § 1973a (2010);
National Voter Registration Act § 11(a), 42 U.S.C. § 1973gg-9 (2010); Help
America Vote Act of 2002 § 401, Pub. L. No. 107-252, 116 Stat. 1666, 1715.

[7] <#_ftnref7> *Terry v. Adams*, 345 U.S. 461 (1953), which is one of the
“White Primary Cases,” presents an exception.  In that case, the defendant,
Mr. Adams, was the president of the Jaybird Democratic Association, a
political organization which excluded African-Americans from its primary.  The
winner of the Jaybirds primary virtually always won the Democratic primary
and then the general election.  The Court held that the Jaybirds’ action in
excluding African-Americans was unlawful given that the organization was,
in essence, picking the ultimate winner.  Thus, the Court determined that
the Jaybirds was a “state actor” for purposes of running the only election
that really mattered. *See also* *United States v. Brown*, 494 F. Supp. 2d
440 (S.D. Miss. 2007) (involving suit against Chairman of the Noxubee
County Democratic Executive Committee for violations of the Voting Rights
Act in the administration of the Democratic Party primaries).

      These cases demonstrate that there is no per se rule that a
governmental unit or official must always be the defendant in an election
cases.  Nevertheless, the fact that there are exceptions is less important
than the general observation that defendants are almost always the
governmental actor responsible for administering elections.  Indeed, in *United
States v. Brown*, the court refused to dismiss the local Election
Commission even though it found no liability against it because “its
presence [may be] needed in order to afford a complete remedy” against the
Chairman of the County Democratic Executive Committee who had violated
Section 2 of the Voting Rights Act.  *Brown*, 494 F. Supp. 2d at 486.  Thus,
I do not argue that it is impossible to sue a non-governmental actor in an
election case, but it is exceedingly rare not to have a governmental unit
as part of the suit.

[8] <#_ftnref8> In cases under 42. U.S.C. § 1983 or Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971), a private entity may be considered a
state actor. *See generally*, Wilson R. Huhn, *The State Action Doctrine
and the Principle of Democratic Choice*, 34 Hofstra L. Rev. 1380
(explaining the purpose and rationale behind the state action
doctrine).  Election
cases, however, often do not rely on the state action doctrine, because the
government or governmental official is usually the only possible defendant.
That is, the state action doctrine need not apply as often to election law
because there are rarely private entities serving a governmental purpose in
administering an election.  *See* Smith v. Allbright, 321 U.S. 649, 659,
663 (1944) (holding that a political party’s primary election constitutes
state action but explaining that elections fall under the authority of the
state rather than private entities); *see also* United States v. Classic,
313 U.S. 299, 314-15 (1941) (explaining that actions of state and local
election officials are considered state actions).

[9] <#_ftnref9> In *Bush v. Gore*, for example, the original defendant was
Kathryn Harris, the Florida Secretary of State, and Al Gore challenged her
decision to certify Florida’s Electoral votes for George W. Bush. McDermott
v. Harris, No. 00-2700, 2000 WL 1770257 (Fla. Cir. Ct. Dec. 4, 2000). Bush
was substituted as a named party when the case reached the U.S. Supreme
Court.  *See* 531 U.S. 98 (2000).

[10] <#_ftnref10> *See, e.g.*, United States v. Thomas, 510 F.3d 714 (7th
Cir. 2008) (reviewing a criminal conviction involving election fraud);
United States v. Turner, 465 F.3d 667 (6th Cir. 2006) (same); United States
v. Slone, 43 F. App’x 738 (6th Cir. 2002) (reviewing conviction for vote
buying).


On Thu, Dec 6, 2012 at 1:30 PM, Scarberry, Mark <
Mark.Scarberry at pepperdine.edu> wrote:

> What is the role of the state action requirement in constitutional
> challenges to private efforts to “suppress” voting? (I put “suppress” in
> quotes not to suggest that vote suppression isn’t a serious matter but
> because list members may disagree about what constitutes vote suppression.)
> ****
>
> ** **
>
> Neither the 14th nor 15th Amendments are violated by purely private
> conduct, though I think Akhil Amar has suggested that the 14thAmendment’s citizenship provisions could create rights applicable directly
> against non-state actors. Political party actions can be treated in some
> cases as state action under the government function doctrine (as in the
> White Primary cases), but where is the line?****
>
> ** **
>
> I know that Congress may prohibit private action that would interfere with
> voting (under the badges and incidents of slavery interpretation of section
> 2 of the 13th Amendment, if I remember correctly, and perhaps, though I
> don’t know of any cases, under Art. I, sec. 4, cl. 1).  My question has to
> do with direct constitutional protections against private interference with
> the right to vote.****
>
> ** **
>
> Mark S. Scarberry****
>
> Pepperdine Univ. School of Law****
>
> Malibu, CA 90263****
>
> (310)506-4667****
>
> ** **
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Rick Hasen
> *Sent:* Thursday, December 06, 2012 9:53 AM
> *To:* law-election at UCI.edu
> *Subject:* [EL] ELB News and Commentary 12/6/12****
>
> ** **
>
> …****
>
> ****
> “‘Voter Suppression,’ Debunked” <http://electionlawblog.org/?p=45157> ****
>
> Posted on December 6, 2012 9:49 am <http://electionlawblog.org/?p=45157>
> by Rick Hasen <http://electionlawblog.org/?author=3> ****
>
> James Taranto WSJ post.<http://online.wsj.com/article/SB10001424127887324640104578161380952380820.html?mod=googlenews_wsj>
> ****
>
> One response to Taranto’s point appears in Janai Nelson’s excellent draft
> article <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2180968>on
> SSRN, in which she writes: “Despite suggestions that voter suppression
> tactics can trigger a ‘backlash’ increase in minority voter turnout, these
> tactics nonetheless violate the VRA‘s core principle—to ensure that the
> race of a voter has no bearing on her ability to vote. Moreover, the
> “backlash effect” does not negate the increased burden placed on
> minorities‘ right to vote even if, ultimately and intermittently, minority
> voters can bear it and win.”****
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D45157&title=%E2%80%9C%E2%80%98Voter%20Suppression%2C%E2%80%99%20Debunked%E2%80%9D&description=>
> ****
>
> Posted in The Voting Wars <http://electionlawblog.org/?cat=60> | Comments
> Off ****
>
> ** **
>
> …****
>
> ** **
>
> -- ****
>
> Rick Hasen****
>
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>
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-- 
Joshua A. Douglas
Assistant Professor of Law
University of Kentucky College of Law
620 S. Limestone
Lexington, KY 40506
(859) 257-4935
joshuadouglas at uky.edu
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