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

[Pildes, Rick]

I agree that whether electors are should be viewed as “candidates” is definitely a question.  And I can’t recall cases that address standing and that peculiar issue one way or the other.  But I can easily imagine courts concluding that electors are not “candidates” and lack standing.

But to Marty, I think that because I’ve represented successful plaintiff-candidates in federal-court election cases with names like Obama (technically, the campaign, Obama for America) and less familiar ones.  I don’t know that candidates have standing to challenge all types of election-law issues, but in many contexts they do.

And do you really think it would be sensible for legal doctrine to be structured so that – assuming an illegal policy is in effect – a candidate (or other actor with standing) has to wait to see if those votes have cost him or her the election, and only then would they have standing to sue and now have those votes thrown out?  The law is not that way for good reason.

In other contexts, plaintiffs have standing to argue they are being evaluated under an unconstitutional process. They don’t have to wait to see if they end up being denied the benefit or even prove they would have gotten the benefit had the process not been illegal.  They are entitled to be considered under a legal process.  It’s the same here.

The central issue in Harris County, which I was not writing about, is the extraordinary unfairness of voters – to say the least – casting votes under a process that’s (1) fully sanctioned by the rules in place at the time they voted; (1) that the state supreme court was asked to rule violated state law, but declined to do; (3) and by a rule, if it were to come from the federal court on Monday, that we can be virtually certain would not permit all those voters to respond to because they would not, realistically, all get notice that the court was throwing their vote out and have the ability to “cure” by suddenly making sure they could vote in person on Tuesday.  In my view, a ruling to that effect would itself violate due process, under the Roe line of cases I’ve written about.






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

From: Marty Lederman [mailto:Martin.Lederman at law.georgetown.edu]
Sent: Saturday, October 31, 2020 6:43 PM
To: Pildes, Rick <rick.pildes at nyu.edu>
Cc: 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

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<mailto: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
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