Articles Posted in Election Law

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During a campaign rally at Louisville’s Kentucky International Convention Center, then-candidate Trump spoke for 35 minutes. Plaintiffs attended the rally with the intention of peacefully protesting. Protesters’ actions during Trump’s video-recorded address precipitated directions from Trump on five different occasions to “get ’em out of here.” Members of the audience assaulted, pushed and shoved plaintiffs. Plaintiff Brousseau was punched in the stomach. Defendants Heimbach and Bamberger participated in the assaults. Plaintiffs sued Trump, the campaign, Heimbach, Bamberger, and an unknown woman who punched Brousseau, for battery, assault, incitement to riot, negligence, gross negligence and recklessness. The district court dismissed claims against the Trump defendants alleging they were vicariously liable for the actions of Heimbach, Bamberger and the unknown woman, and dismissed a negligent-speech theory as “incompatible with the First Amendment” but refused to dismiss the incitement-to-riot claims. On interlocutory appeal, the Sixth Circuit found that the claim should be dismissed. Plaintiffs have not stated a valid claim under Kentucky law, given the elements of “incitement to riot.” Trump’s speech enjoys First Amendment protection because he did not specifically advocate imminent lawless action. Trump’s “get ’em out of here” statement, closely followed by, “Don’t hurt ’em,” cannot be interpreted as advocating a riot or the use of any violence. View "Nwanguma v. Trump" on Justia Law

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Following the 2010 census, Michigan’s Republican-controlled government enacted new legislative and congressional districting plans. Plaintiffs sued in December 2017, alleging the maps violate the Equal Protection Clause by diluting the voting power of Democratic voters and the First Amendment by marginalizing votes based on party affiliation. The state sought dismissal and asked the court to stay the case pending the Supreme Court’s decision in then-pending redistricting cases, Gill v. Whitford and Benisek v. Lamone. In February, while that motion was pending, eight Republican Michigan Congressional representatives moved to intervene, citing Federal Rule of Civil Procedure 24(a) (intervention by right), and permissive intervention under Rule 24(b). They argued that they stood “to be irrevocably harmed by any redrawing of congressional districts” and asserted that none of the original parties adequately represented their interests. The court denied the motion to stay and the motion to intervene. The Sixth Circuit reversed as to permissive intervention, noting that the court did not explain how the “complex issues” would delay the case or prejudice Plaintiffs, how allowing the Congressmen to intervene would frustrate an expeditious resolution, or how the shared interests of the Congressmen and the citizens of Michigan were relevant to the delay-and-prejudice calculus. The Congressmen identify several interests they seek to protect, including “the relationship between constituent and representative.” Those interests differ from those of the Secretary of State and Michigan's citizens. View "League of Women Voters of Michigan v. Johnson" on Justia Law

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In Ohio, judges in all courts of record are selected by election. Ohio Code of Judicial Conduct, Canon 4, governs the fundraising and political conduct of judicial candidates. Platt, an Ohio attorney, formed the Platt for Judge Campaign Committee in 2013. Platt believes that parts of Canon 4 violate his rights to free speech, due process, and equal protection: Rule 4.1(A)(2), which prohibits a candidate from making speeches on behalf of a political party or another candidate for office; Rule 4.1(A)(3), which prohibits a candidate from publicly endorsing or opposing a candidate for another public office; Rule 4.4(A), which, save for three exceptions, prohibits a judicial candidate from personally soliciting campaign contributions; Rule 4.4(E), which creates a permissible window for soliciting and receiving campaign contributions; Rule 4.4(F), which limits the solicitation and receipt of contributions for candidates defeated before the general election; and Rule 4.4(G), which regulates the solicitation and receipt of contributions for candidates who die or withdraw from the election. The Sixth Circuit affirmed the district court’s rejection of all of Platt’s claims. Ohio’s rules strike the delicate balance between the Constitution’s commands and the state’s desire to protect judicial integrity. View "Platt v. Board of Commissioners on Grievances & Discipline of the Ohio Supreme Court" on Justia Law

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Plaintiffs submitted a ballot initiative petition proposing to amend the Ohio Constitution by imposing term limits on the justices of the Ohio Supreme Court and requiring that all laws “that apply to the people of the State of Ohio . . . apply equally to the members and employees of the General Assembly.” The single-subject rule, Ohio Rev. Code 3503.062(A), allows initiative petitions to contain only “one proposed law or constitutional amendment,” so the Ohio Ballot Board split the initiative into two initiatives, each containing one proposed constitutional amendment. Plaintiffs challenged the process. Sixth Circuit affirmed the dismissal of the suit, rejecting an argument that the process was a content-based regulation of core political speech. The Supreme Court has not viewed single-subject rules as inconsistent with the First Amendment and the Ohio Supreme Court has rejected an essentially identical challenge. Ohio’s single-subject rule applies to all petitions, regardless of their substantive messages, and may be justified without reference to the content of any initiative petitions. The rule is intended to prevent voter confusion and "logrolling." Whether Plaintiffs violate Ohio’s single-subject rule depends not on what they say, but simply on where they say it; it is a minimally burdensome and nondiscriminatory regulation. View "Committee to Impose Term Limits on the Ohio Supreme Court v. Ohio Ballot Board" on Justia Law

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In 2014, voters approved an amendment to the Tennessee Constitution making clear that the Constitution is not to be construed as securing or protecting a right to abortion or requiring funding of an abortion (Amendment 1). Plaintiffs, individual voters, filed suit under 42 U.S.C. 1983, asserting that, in counting the votes on Amendment 1, state officials incorrectly interpreted Article XI, Section 3 of the Tennessee Constitution, which states: if the people shall approve and ratify such amendment or amendments by a majority of all the citizens of the State voting for Governor, voting in their favor, such amendment or amendments shall become a part of this Constitution. The district court ordered the state officials to recount the votes in accordance with plaintiffs’ proposed interpretation. The Sixth Circuit reversed. A state-court declaratory judgment on the meaning of Article XI, Section 3 is entitled to conclusive effect and the method of counting votes employed by state officials in 2014 was faithful to the actual meaning of the provision. This is not the “exceptional case” that warrants federal intervention in a lawful state election. There was no cognizable infringement of plaintiffs’ due process rights; plaintiffs failed to identify how their right to vote was burdened by disparate treatment. View "George v. Hargett" on Justia Law

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Plaintiffs claimed Ohio’s paper-ballot absentee voter system discriminated against the blind, in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. 12101. In Ohio, blind voters must seek the aid of a sighted person to vote absentee, depriving them of the ability to vote anonymously. Plaintiffs proposed that the state provide an online absentee ballot in lieu of a paper one, and adopt online ballot marking tools used in other states for blind voters. The state argued that adoption of plaintiffs’ proposal would violate state law, given Ohio’s certification requirements for voting equipment, and would force through untested and uncertified voting tools—which are neither appropriate nor necessary auxiliary aids under the ADA—and would fundamentally alter Ohio election law. The district court granted the state judgment on the pleadings. The Sixth Circuit reversed, stating that the district court based its ruling on defendant’s mere allegation of the “fundamental alteration” affirmative defense under the ADA, without any evidentiary support. The state had the burden of production and persuasion to prove that the proposed accommodation—the ballot marking tools and electronic ballots—would fundamentally alter Ohio’s election system by not “correctly, accurately, and continuously register[ing] and record[ing] every vote cast.” A state procedural requirement may not excuse a substantive ADA violation. View "Hindel v. Husted" on Justia Law

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The Tennessee Republican Party, the Georgia Republican Party, and the New York Republican State Committee challenged the legality of 2016 amendments to rules proposed by the Municipal Securities Rulemaking Board (MSRB) that are “deemed to have been approved” by the Securities and Exchange Commission (SEC), 15 U.S.C. 78s(b)(2)(D). The rules arose out of concern “that brokers and dealers were engaging in a variety of ethically questionable practices in order to secure underwriting contracts,” and are intended to limit pay-to-play practices in the municipal securities markets. The amendments limit the campaign activities of persons who advise city and state governments on issuing municipal securities. The Sixth Circuit dismissed because the plaintiffs failed to establish their standing to challenge the amendments. There was no “self-evident” injury to the plaintiffs and only limited information on the number of persons possibly affected by the amendments. At most, there were approximately 713 registered non-dealer municipal advisory firms in the United States that would be affected by the Amendments, but it is unclear how many municipal advisor professionals are associated with these firms, let alone the likelihood that they would donate to plaintiffs if not for the Amendments. It is unknown whether the Amendments have hindered individual candidates who are members of the plaintiff organizations. View "Georgia Republican Party v. Securities & Exchange Commission" on Justia Law

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White County parents formed the Association for Accurate Standards in Education (AASE) to oppose another group advocating for removal of a social studies textbook that includes discussion of Islam. Eight part-time volunteers comprise AASE. It does not have a separate bank account and does not keep regular records. Five or six people have donated to AASE. No individual donation has exceeded $200; total donations have not reached $500. Seats on the Board of Education were up for election in 2016. AASE parents wanted to support and oppose candidates through AASE. They did not want AASE to make direct campaign contributions, but wanted AASE to spend less than $250 on independent expenditures, including yard signs, stickers, and brochures. They learned that the Tennessee Registry of Election Finance had fined Williamson Strong, an unincorporated group that disseminates information about candidates and issues in Williamson County, $5,000 for failing to certify a treasurer or file financial disclosure statements under Tenn. Code 2-10-102(12)(A), which defines a political campaign committee as: A combination of two or more individuals . . . to support or oppose any candidate. They sued the Registry’s officials in their official capacities under 42 U.S.C. 1983, claiming that the Act violates their First Amendment, equal protection, and due process rights. The district court stayed the case pending the outcome of the state administrative proceedings in the Williamson Strong case. The Sixth Circuit reversed. Abstention was improper in this case, in light of the Act’s alleged chilling effects. View "Jones v. Coleman" on Justia Law

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The Michigan Campaign Finance Act, Mich. Comp. Laws 169.254, generally bars corporations and labor unions from contributing to political candidates and organizations, but permits them to form and contribute to political action committees (PACs), which may make political contributions. A recent amendment defines a prohibited expenditure to include the administrative expenses of operating a payroll deduction program unless the deductions go to the corporation’s or union’s own PAC or a PAC established by a nonprofit corporation of which that entity is a member. Unions challenged the restriction under the Contracts Clause and First Amendment. Unions do not employ the bulk of their authorized donor base. To obtain payroll deductions in the past, unions secured agreements from employers to deduct PAC contributions from union members’ wages. The district court preliminarily enjoined enforcement of the law on both grounds. The Sixth Circuit affirmed the Contracts Clause ruling and reversed the First Amendment ruling. The Contracts Clause, prohibits the state from enforcing the contested provision with respect to pre-existing PAC check-off obligations through the end of the relevant collective bargaining agreements. The state’s “decision not to subsidize the exercise of a fundamental right” did not itself infringe that right. View "Michigan State AFL-CIO v. Schuette" on Justia Law

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Michigan law forbids voters from exposing their marked ballots to others, Mich. Comp. Laws 168.738(2). The penalty for violation is that the ballot will be rejected and the offender not allowed to vote. Crookston sought a preliminary injunction to prevent the state from enforcing the law in the upcoming election so that he could take a “ballot selfie” with his cell phone and post it on social media. In late October, the district court granted his motion. The Sixth Circuit stayed the order, stating that, just 10 days before the November 2016 election, “we will not accept his invitation to suddenly alter Michigan’s venerable voting protocols, especially when he could have filed this lawsuit long ago.” The court questioned the likelihood of success on the merits, stating that the ban on photography at the polls seems to be a content-neutral regulation that reasonably protects voters’ privacy and honors a long tradition of protecting the secret ballot. It also is not clear whether a ban on ballot selfies “significantly impinges” Crookston’s First Amendment rights. View "Crookston v. Johnson" on Justia Law