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

[Levitt, Justin]

Which also means that the 8th Circuit order should only affect the presidential votes on any ballots that are sequestered, but not the votes for other state or federal candidates or local measures (if any).

In addition to the voters caught up in this nonsense, spare a thought for the election officials that have to figure out how to administer a new system five days before Election Day.

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Rick Hasen
Sent: Saturday, October 31, 2020 3:43 PM
To: Pildes, Rick <rick.pildes at nyu.edu>; Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Who Has Standing to Assert The "Independent State Legislature Doctrine, " If There is Such a Doctrine

I’m not an expert on standing, and so perhaps my initial reaction in the blog post that candidates don’t have standing is wrong. I would want to read more before having a strong conclusion on this.

I would just point out that in the 8th Circuit case it was some of the nominated electors for Trump in Minnesota who were found to have standing---not the candidates or parties or voters.


From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of "Pildes, Rick" <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>>
Date: Saturday, October 31, 2020 at 3:25 PM
To: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [EL] Who Has Standing to Assert The "Independent State Legislature Doctrine, " If There is Such a Doctrine

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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