[EL] Gill dismissed for lack of standing

[Foley, Edward]

Dear List Members,

Any standing experts have thoughts on how standing doctrine would apply to the kind of Article One (Elections Clause) claim that is also in the North Carolina case?  One way to think about this might be to consider a hypo I developed a couple of months ago when exploring the potential merits of an Elections Clause claim.  The hypo is to imagine a state enacting a law that requires, when an incumbent Member of Congress from the state is running for reelection, that the challenger must win two-thirds of the vote (not merely a majority or plurality): http://electionlawblog.org/?p=98219

The argument on the merits is that this kind of incumbency-protection measure is inconsistent with the original intent of biennial popular elections to the U.S. House of Representatives.  If the argument has merit, it potentially has relevance for congressional gerrymanders, as Part III of Justice Kagan’s concurrence suggests (at 13).

But who has standing to bring this kind of Article One (Elections Clause) claim? My initial thinking is that it’s a statewide, not district-specific, claim—and, indeed, that it’s linked to the kind of First Amendment claim that Justice Kagan discusses in Part II of her concurrence.  The reason for the linkage, and the reason that the injury is not just a generalized grievance that would defeat Article III standing, is that the one political party in a state has a distinctive injury (relative to the electorate as a whole) when the other political party uses its temporary status being in the majority to enact an incumbency-protection measure designed to protect that temporary majority status against changing public opinion (“throw the bums out”).  I’m curious what standing experts think on this point.

A related question that is both about the merits and standing: insofar as the Article One claim requires some “help” from First Amendment analysis (specifically, the protection given to political parties under freedom of association), is it fair to say that the Article One claim is analytically distinct from a claim resting solely on the First Amendment?  I think so, but it leads me to wonder how many other areas of constitutional law have hybrid claims that involve two or more different parts of the Constitution in order to have a winning theory?   I know that there is a subset of First Amendment doctrine sometimes called “First Amendment Equal Protection” (City of Chicago v. Mosely comes to mind.)  I also recall discussion of “First Amendment Due Process” (special procedural protections in connection with free speech, or free press, rights; parade licensing cases, for example).  So, it doesn’t seem crazy to me that there would be a kind of hybrid claim involving the values of Article One itself (the structure of the federal House of Representatives) and the values of the First Amendment (role of political parties in a free society), which would require both components to be a sustainable claim.

But then back to standing: given (arguendo) the fact that the claim on the merits being advanced is the kind of hybrid claim just described, is the antecedent standing analysis different from what it would be if it were not a hybrid claim?  It seems that Gill requires that standing analysis to be tailored to the exact nature of the claim asserted on the merits, which would seem to suggest that the standing analysis for a hybrid claim is potentially a bit different than the standing analysis for a pure (non-hybrid) First Amendment claim.   (Is this analysis on the correct track or am I missing something from standing jurisprudence?)

Thanks all, Ned


-[cid:image001.png at 01D33ED4.263B5D90]

Edward B. Foley
Director, Election Law @ Moritz
Ebersold Chair in Constitutional Law
Moritz College of Law  
614-292-4288
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From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Marty Lederman <Martin.Lederman at law.georgetown.edu>
Date: Monday, June 18, 2018 at 11:45 PM
To: Rick Hasen <hasenr at gmail.com>
Cc: "law-election at uci.edu" <law-election at uci.edu>
Subject: [EL] Gill dismissed for lack of standing

What do folks think about whether the NC case--which I believe is on for conference this week--sufficiently raises and preserves either or both of the Kagan standing theories and, if so, whether the Court is likely to grant?

See pp. 15-17<https://www.supremecourt.gov/DocketPDF/17/17-1295/44836/20180427114851513_17-1295%20Rucho%20v%20Common%20Cause%20Motion%20to%20Affirm%20by%20the%20Common%20Cause%20Appellees.pdf>.

Paul Clement's reply here<https://www.supremecourt.gov/DocketPDF/17/17-1295/46859/20180515120906202_Rucho%20v.%20Common%20Cause%20No.%2017-1295%20-%20%20Brief%20Opposing%20Motions%20to%20Affirm%20PDFA.pdf>.

I suppose the $64,000 question is whether AMK wants to make a decision on justiciability sometime before he retires or whether he wants the question to be decided long after he's gone.


On Mon, Jun 18, 2018 at 10:18 AM, Rick Hasen <hasenr at gmail.com<mailto:hasenr at gmail.com>> wrote:
https://twitter.com/rickhasen/status/1008715399116943361



Rick Hasen
hasenr at gmail.com<mailto:hasenr at gmail.com>

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Marty Lederman
Georgetown University Law Center
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--
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937

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