[EL] Who Has Standing to Assert The "Independent State Legislature Doctrine, " If There is Such a Doctrine

[Marty Lederman]

Why do you think candidates would have standing *before *the votes are
counted and they know whether the rule in question cost them an election,
Rick?  Particularly when they are complaining that *too many *votes are
being accepted/counted?

On Sat, Oct 31, 2020 at 6:25 PM Pildes, Rick <rick.pildes at nyu.edu> wrote:

> With all the issues about this potential doctrine, one that’s being
> discussed more is whether only the legislature would have standing to claim
> that its constitutional power has been violated [I’m not posting this on
> the blog, but Rick Hasen does raise this issue there].
>
>
>
> IF there is such a doctrine, I do not think only the legislature would
> have standing to raise it.  The standing issues lie elsewhere.  That’s my
> initial analysis, but happy to hear reactions from federal courts experts.
>
>
>
> For example, suppose the election code says absentees are valid if
> received up to five days after election day.  The Governor or Secretary of
> State issues an executive order or ruling that, given stresses on election
> administrators, or for some other reason, ballots must be received by
> election night 8pm.
>
>
>
> You’re a voter whose mailed ballot comes in four days after election day.
> The SOS rules the vote invalid.
>
>
>
> IF the ISLD would make the SOS’s ruling unconstitutional, surely you would
> have standing to argue the SOS’s actions violated the ISLD.
>
>
>
> If that’s right, then it’s not only the legislature that would have
> standing.  This is the way most claims work in which you argue you’ve been
> injury and that injury comes about because some institution lacks authority
> to take that action.  Think separation of powers cases: if I suffer a
> concrete injury because Congress or the President has exceeded their
> authority, I have standing to argue they acted illegally.
>
>
>
> The real question is who, in addition to the legislature, has a cognizable
> injury.  In some of these pending cases, it is voters who claim standing.
> They claim *their *votes are “diluted” when state officials expand voting
> options – like the drive-through voting issue in Houston.  But this claim
> is an example of a generalized grievance – all voters in the state are
> presumably “injured” in the same way, if this is an injury the Constitution
> recognizes.  Generalized grievances are not usually treated as a valid
> basis for standing.  That’s also the way I read the Court’s rejection of
> standing in a case that raised this issue about the ISLD in the
> redistricting context, *Lance v. Coffman.*  In other words, when a voter
> is in a discrete category of voter who is personally injured, then they
> would have standing.  But voters might well not have standing if they are
> in the same position as all voters in the state and are just complaining
> the law is not being properly followed.
>
>
>
> In the election context, however, there’s another actor: candidates for
> office.  And candidates are usually treated as having standing to argue
> they are being injured by the way election law is being applied.
>
>
>
> To sum up, IF there is an ISLD:  (1) I don’t think standing would be
> limited to the legislature; (2) voters who just have a generalized
> grievance might not have standing; (3) voters who have a particularized
> injury might; (4) candidates might have standing.
>
>
>
> I’m open to changing my mind on this one, that’s my initial federal courts
> analysis of how standing doctrine would work here – need I say again, IF
> there is ISLD in the first place.
>
>
>
> Best,
>
> Rick
>
>
>
> Richard H. Pildes
>
> Sudler Family Professor of Constitutional Law
>
> NYU School of Law
>
> 40 Washington Square So.
>
> NYC, NY 10014
>
> 347-886-6789
>
>
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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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