DC Circuit: James Blassingame v. Donald Trump

 An incumbent campaigning to retain their present office is not carrying out the duties of the office.  A President's speech on matters of public concern is not invariably an official function. Motion to the contrary can be made at summary judgment after development of facts supporting the claim.

The President attempted to alter the declared election results by various means.  

The President has official immunity for all acts within the outer perimeter of official presidential responsibility, including discretionary acts within a concept of duty associated with the office. An action's unlawful nature or inappropriate purpose does not move it past this outer perimeter.    

Actions taken in a plainly and purely unofficial context could be included in a test identifying matters of public concern. Inquiry into public/private capacity is distinct from this. An incumbent seeks re-election in a private capacity. Inquiry into capacity is objective and context-specific; if the inquiry yields no clear answer, the conduct is immune.

Claim under the "Take Care" clause presumes official capacity rather than establishes it. 

Structural separation of powers claim for lack of immunity actually establishes the contrary, as it's Executive action.  E.g., Steel Seizure cases.

First Amendment/incitement is a distinct calculus -- would afford protection when least needed, and vice versa.

Deft. has a right to develop the record for purposes of immunity prior to merits stage, as the immunity is immunity from suit.

CONCURRENCE:

Motive inquiry is intrusive.  Objective reading of content could mislead. Speech clothed in the trappings of the office generally immune.

PARTIAL CONCURRENCE:

Scope of the interlocutory analysis appropriately limited to the denial of absolute immunity as claimed, rather than setting out a calculus for the determination of context-specific immunity.  

James Blassingame v. Donald Trump

Eighth Circuit: Ind.-Alliance Party of Minn. v. Steve Simon

 Associational burden of a petition oath swearing to the lack of present intent to vote in a primary election for the contest in question is an insubstantial, and there are policy arguments in favor.  Those signing are presumed to know the law, and therefore that the lack of present intent to do so doesn't keep them from actually voting in the primary--the deterrent effect as to the associational burden on the petition signing isn't to be considered under per se/strict scrutiny.

Ind.-Alliance Party of Minn.  v.  Steve Simon

Fifth Circuit: La Union del Pueblo Entero v. Harris Cty Repub.

 As the motion was timely and the impaired interest might not be sufficiently protected by the state's defense of the law, partisan political committees had a right to intervene in litigation challenging an election reform law.

La Union del Pueblo Entero v. Harris Cty Repub.

Seventh Circuit: Jason Gonzales v. Michael J. Madigan

Assuming, without extending the precedent, that political deceit can offend the Equal Protection Clause, the conduct alleged was sufficiently publicly known to allow the voters a free choice.

The District Court judge did not violate the First Amendment in holding that the plaintiff's campaign speech had sufficiently revealed the alleged deceit.

Jason Gonzales v. Michael J. Madigan

First Circuit: Common Cause Rhode Island v. RI Republic Party

As the state's attestation requirements for mailed-in votes is only imposed in a few states, and the state has not advanced any interest behind it, lower court's entry of consent judgement abrogating the requirement should not be stayed.  The elevated standard for stays close to an election is met, as the last election didn't have the requirement, and the state hasn't suggested that it would confuse voters.  Political party has standing to intervene for the purposes of the pending appeal.

Common Cause Rhode Island v. RI Republic Party

Fourth Circuit: Eugene Baten v. Henry McMaster

Plaintiffs challenging state's allocation of Presidential Electors en bloc have Article III standing, as they allege sufficient injury and causation; although political gerrymandering is nonjusticeable, racial gerrymandering and vote dilution claims are substantially different.

No vote dilution, as the state is a unit, and each vote within it is equally counted; this structure is baked into the Constitution, and reflected in the tiebreaking procedure in the House, where each state gets a single vote.

Freedom of Association right derives from the right to associate with the party of one's choice, not from the party's chances, or the expectation that the national party will pay much attention to you.

VRA S2 and Gingles challenge falls short, since there is not prospect of a minority majority district, the poll is for electors, not the ultimate candidates, and minority voters have equal opportunity to select candidates of their choice.

Eugene Baten v. Henry McMaster 

Seventh Circuit: Illinois Liberty PAC v. Lisa Madigan

State campaign finance law that seems facially underinclusive given stated aims is nonetheless lawful, given presumption of statute's legitimacy.  Court did not abuse its discretion in holding that legislative caucuses were the functional equivalents of political parties for purposes of the law.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-13/C:16-3585:J:Sykes:aut:T:fnOp:N:2217703:S:0

Ninth Circuit: DNC v. Reagan

Voter filing assistance statute minimally burdens 1st & 14th Amendments; plaintiff did not demonstrate burden o discrete subgroups; no showing of prior fraud was needed, as the state might be preserving trust in the process; holding that disproportionate impact was de minimis was not clear error; legislature acted without intent to discriminate.

Discarding out-of-precinct ballots similarly upheld.

Dissent: Disparate impact, history of discrimaination, Section 2 of VRA problematic, etc.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/12/18-15845.pdf

Sixth Circuit: League of Women Voters of Mich. v. Ruth Johnson

Elected representatives' interest in preserving relationships with their constituents merited permission to intervene in a redistricting action, as the interest was distinct from the interests represented by the other plaintiffs.  In appellate review of the decision to deny permissive intervention, the equitable factors balanced are those prevailing at the time of the original decision to deny intervention.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0194p-06.pdf

Eighth Circuit: NAACP v. Ferguson-Florissan

No per se clear error in using decennial census numbers as opposed to more recent ones.

A racial categorization does not lose minority status under the act upon attaining a bare majority in the district; the intensely local inquiry must take into account past discrimination and disenfranchisement.

Narrowness of win does not disqualify the win as proof against bloc voting.

Racially proportional representation is not per se proof that there is no actionable discrimination under the Act.

http://media.ca8.uscourts.gov/opndir/18/07/164511P.pdf

Ninth Circuit: Jeffrey Short v. Edmund G. Brown

No abuse of discretion in denial of injunction against voting-by-mail scheme, as there is no burden placed on the voters, and, under current precedent, a claim of vote dilution would have to allege a discriminatory allocation of votes, not the de minimis individual burden here.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/22/18-15775.pdf

Seventh Circuit: Thaddeus Jones v. Michelle Qualkinbush

The right to vote on policy questions in a referendum is a creature of state, not federal, law, and the referendum process is not a public forum under the First Amendment, so a state entity might legitimately dominate the process if there is a reasonable basis for it to do so.

A politician disadvantaged by the state's manipulation of the referendum process is a class of one for Equal Protection purposes, and where the conduct is valid as a general matter, the question is not justiciable.  (This last bit is clearly implied, but not explicitly stated in those terms.)

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-14/C:17-1227:J:Easterbrook:aut:T:fnOp:N:2170958:S:0

Eighth Circuit: Missourians for Fiscal, etc. v. James Klahr

State law prohibiting the formation of political committees after 30 days before an election is subject to strict scrutiny, as the law speaks to formation, a precondition for speech, and not disclosure.

The law is overbroad, as citizens might have cause to speak within the prohibited window, there are subsequent reporting requirements closer to the election, and past practice of the agency in merely imposing a $1,000 fine does not save the act.

http://media.ca8.uscourts.gov/opndir/18/06/171314P.pdf

Tenth Circuit: Utah Republican Party v. Cox

Denial of en banc.

Concur from CJ:  Supreme Court should review.  Judicial regulation of political primaries imperils associational rights and substantive ends.

https://www.ca10.uscourts.gov/opinions/16/16-4091.pdf

Fifth Circuit: Marc Veasey, et al v. Greg Abbott, et al

En Banc, Election Law

(Panel of 15)

  (7 + 2 partial* & in the judgment)

*A claim of discriminatory purpose in the passage of a law cannot be based on statements from legislators opposed to the passage of the bill.* (This part not joined by the 2)

In assessing discriminatory effect under the Voting Rights Act, a multi-factor test should be used, as opposed to a bright-line nexus requirement.

No ruling on violations of the 1st and 14th Amendment burden of right to vote, as a finding of statutory violation results in the same remedy.

 Voter ID requirement was not a poll tax before the law was changed to make the ID free, and is still not a poll tax.

Not an abuse of discretion for the District Court to fashion a remedy, as the legislature is out of session.

     Concurrence  (2, both joining plurality, one in part):

Multifactor test good, as 5th invented much of it.

Won't open the floodgates, as courts can closely weigh factors.

                                       Concurrence / Dissent (5)

Not a poll tax.  Opinion otherwise incorrect.  (68pp, mostly findings and merits)

                                       Dissent (3, all in c/d above)

ID requirement still in place, since those who now have the ID must show it.

Judge below made myriad errors.

           Concur/Dissent, Concur in J (1, joining plurality in part)

Discriminatory motive analysis of the plurality re-weighed merits inappropriately.

                                                                        Dissent (6, all non-plurality)

Record justifies reversal on discriminatory purpose.

                                                                        Dissent (2, both in prior dissent)

Record justifies reversal on discriminatory effect.

Dissent (1, Partially joined plurality)

Record justifies affirming on discriminatory intent.

Takeaway (remember, this is quick work) 9 for Remand for multifactor test on discriminatory effect; 8 for affirming on discriminatory purpose (7 for remand); 14 for the lack of Poll Tax violation; 3 for egg salad; 2 for pastrami.


Marc Veasey, et al v. Greg Abbott, et al

Eighth Circuit: Kent Bernbeck v. John Gale

Elections, Standing


Plaintiff has no standing to raise OPOV claim based on state law setting a minimum number of petition signatures from each geographical area, as the alleged inability to engage in future conduct is insufficiently imminent.

Plaintiff has not proved his own voter registration, so he has no basis for claim as a petition signer.

Dissent -- This issue wasn't briefed, and there is no such thing as a registered voter in this state.

Fourth Circuit: Raleigh Wake Citizens Assoc v. Wake County Board of Election

Elections, OPOV

Where the redistricting population variation is less than 10%, the plaintiff must show by a preponderance of the evidence that improper considerations predominate in the explanation.

Error to exclude expert statistical testimony.  Although it is not compelled by precedent, it would serve to identify possible explanations for the mapping.

Plan violated state & federal OPOV given lack of testimony from legislatures, pretextual justifications for the shifts, and demonstration that traditional redistricting practices were not followed.

No abuse of discretion in trial court's holding that references to race in the legislative record did not establish improper racial motive.

Dissent -- if abusive partisanship is justicable, it has to be specifically proven, not suggested by statistics.


Raleigh Wake Citizens Assoc v. Wake County Board of Election

Fourth Circuit: Robert Sarvis v. James Alcorn

Election Law

Commonwealth's ballot ordering scheme does not impede access to ballot or association rights--no heightened scrutiny, despite potential "windfall vote" from order on the page.

Commonwealth's interest in preserving symmetry, reducing voter confusion properly pleaded.   Little burden on petitioner.

Question for the political branches.


Robert Sarvis v. James Alcorn

First Circuit: Colon-Marrero v. Garcia-Velez

Elections, Puerto Rico, Statutory Construction

Congress did not intend that Puerto Rico be considered a "state" under voting law.

Dis-inclusion of Puerto Rico does not burden the voting right, and the principle survives rational basis.

Puerto Rico is considered a state under a second statute barring removal from voter rolls until after two missed elections.

Second statute creates a private right presumptively actionable under S1983.

http://media.ca1.uscourts.gov/pdf.opinions/15-1356P-01A.pdf

DC Circuit: Christopher Van Hollen, Jr. v. FEC

Administrative

Agency rulemaking that election contributions must be for the purpose of furthering electioneering electoral communications was a permissible and persuasive exercise of authority.

Not A&C.

Bonus: odd Yeats quote in peroration.

https://www.cadc.uscourts.gov/internet/opinions.nsf/E90D7BF9ECC39D1085257F41006AF4EC/$file/15-5016-1594896.pdf