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elections

Arizona Free Enterprise v. Bennett; McComish v. Bennett (consolidated)

Issues

1. Under Citizens United v. Federal Election Commission and Davis v. Federal Election Commission, does the matching public funding provision of Arizona’s Citizens Clean Elections Act violate the First Amendment protection of political speech?

2. Does the Citizens Clean Elections Act advance a compelling state interest in preventing corruption, or does it unconstitutionally burden protected political speech?

 

At issue in these consolidated cases is the constitutionality of Arizona’s Citizens Clean Elections Act. Petitioners—several past and present candidates for elected office, and two political action committees—claim that the matching public funding provision of the Act burdens the free speech of candidates who do not utilize public funding. Respondent, Ken Bennett, in his official capacity as Arizona Secretary of State, contends that the Act is designed to prevent corruption and does not impose any actual burden on protected political speech. The Ninth Circuit Court of Appeals held that the Act did not violate the First Amendment, because it furthered a compelling government interest in preventing corruption. In resolving this question, the Supreme Court must strike a balance between the First Amendment right to protected political speech and clean election measures implemented by a state. This decision will affect state and national elections that utilize matching public funding schemes.

Questions as Framed for the Court by the Parties

Arizona Free Enterprise

In Davis v. FEC, 128 S. Ct. 2759 (2008), this Court held that the First Amendment forbids the government from attempting to level the playing field in elections by raising contribution limits for candidates who are outspent by self-financed opponents. Arizona's Citizens Clean Elections Act achieves a similar result by providing extra subsidies in the form of "matching funds" to publicly financed candidates who are outspent by independent expenditure groups and privately financed candidates. The questions presented are:

1. Whether the First Amendment forbids Arizona from providing additional government subsidies to publicly financed candidates that are triggered by independent expenditure groups' speech against such candidates?

2. Whether the First Amendment forbids Arizona from providing additional government subsidies to publicly financed candidates that are triggered by the fundraising or expenditures by these candidates' privately financed opponents?

McComish

1. Whether Citizens United v. Federal Election Comm'n, 130 S. Ct. 876 (2010), and Davis v. Federal Election Comm'n, 128 S. Ct. 2759 (2008), require this Court to strike down Arizona's matching funds trigger under the First and Fourteenth Amendments because it penalizes and deters free speech by forcing privately-financed candidates and their supporters to finance the dissemination of hostile political speech whenever they raise or spend private money, or when independent expenditures are made, above a "spending limit."

2. Whether Citizens United and Davis require this Court to strike down Arizona's matching funds trigger under the First and Fourteenth Amendments because it regulates campaign financing in order to equalize "influence" and financial resources among competing candidates and interest groups, rather than to advance directly a compelling state interest in the least restrictive manner.

In 1998, the State of Arizona passed the Citizens Clean Election Act (“the Act”), which created a framework through which the state provides public financing to candidates for statewide political offices. See McComish v. Bennett , 611 F.3d 510, 513 (9th Cir. 2010) .

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The New York Times, Adam Liptak: Justices to Assess Arizona Campaign Financing (Nov. 29, 2010)

CNN, Bill Mears: High Court to Review Arizona Election Finance Law (Nov. 29, 2010)

Huffington Post, Paul Davenport: Supreme Court Blocks Public Financing in Arizona Elections (June 8, 2010)

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Benisek v. Lamone

Issues

The Court will consider three issues: (1) did the district court err when it found that, for First Amendment retaliatory gerrymandering claims, establishing an actual, concrete injury requires proof that the gerrymandered map has dictated and will continue to dictate the results of every election following the gerrymander; (2) did the district court err when it held that burden-shifting is not applicable to First Amendment retaliation challenges to partisan gerrymandering in Mt. Healthy City Board of Education v. Doyle; and (3) did the district court err in finding that the record does not prove that the 2011 gerrymander dictated the Democratic victories in 2012, 2014, and 2016 in Maryland’s Sixth Congressional District?

In 2012 the State of Maryland, under Democratic Governor Martin O’Malley, and with the help of NCEC Services, a company specializing in electoral analytics and political strategy, redrew its Sixth Congressional District to comply with one-person-one-vote rules. This resulted in the exclusion of approximately 66,000 registered Republicans and the inclusion of 24,000 Democrats in the District. O. John Benisek alleges that the new Sixth District was the result of backdoor meetings intended to consolidate Democratic control of the District. Linda Lamone, the State Administrator of Elections, on the other hand, contends that the current district lines more closely resemble the historic party composition of the voters. Benisek argues that this redistricting treats Republicans unfavorably in violation of the First Amendment. Lamone counters that this is not a valid claim in court because no rigorous judicial standard can be created to assess the impact of gerrymandering in redistricting efforts. Lamone contends that the Plaintiffs cannot put forth a clear, neutral, and judicially manageable standard for these cases, and thus the political process should resolve the issue. But Benisek responds that this is a First Amendment case where the correct inquiry is whether voters suffered retaliation for their political beliefs. The outcome of this case will have implications for the proper role of the legislature and the judiciary in the redistricting process and for levels of citizen civic engagement and political influence.

Questions as Framed for the Court by the Parties

(1) Whether the majority of the three-judge district court erred in holding that, to establish an actual, concrete injury in a First Amendment retaliation challenge to a partisan gerrymander, a plaintiff must prove that the gerrymander has dictated and will continue to dictate the outcome of every election held in the district under the gerrymandered map; (2) whether the majority erred in holding that the Mt. Healthy City Board of Education v. Doyle burden-shifting framework is inapplicable to First Amendment retaliation challenges to partisan gerrymanders; and (3) whether, regardless of the applicable legal standards, the majority erred in holding that the present record does not permit a finding that the 2011 gerrymander was a but-for cause of the Democratic victories in the district in 2012, 2014, or 2016.

Before 1991, Maryland’s Sixth Congressional District was composed of more registered Democrats than registered Republicans. Brief of Appellees, Lamone et al. at 3. However, in 1991, the district lines were redrawn, leaving registered Republicans outnumbering registered Democrats.

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Federal Election Commission v. Ted Cruz for Senate

Issues

Does Section 304 of the Bipartisan Campaign Reform Act (“BCRA”), which imposes a $250,000 cap on the amount of post-election funds a campaign can use to reimburse a candidate’s personal loans, impermissibly burden a candidate’s First Amendment right to free speech; and does a party seeking to invalidate a regulation implemented pursuant to that statutory provision have standing to challenge the statute?

This case asks the Supreme Court to decide whether Section 304 of the Bipartisan Campaign Reform Act (“BCRA”), which bars a campaign from disbursing more than $250,000 in post-election contributions to refund a candidate’s personal loans, violates the First Amendment. The Federal Election Commission (“the FEC”) contends that Senator Cruz’s current inability to obtain full reimbursement for his loan was not caused by Section 304, and that Cruz therefore lacks standing to challenge Section 304. Senator Ted Cruz and Ted Cruz for Senate (collectively, “Ted Cruz”) counter that Section 304 directly injures them, and that the statute should be held unconstitutional under the First Amendment for unjustifiably deterring candidates from exercising their free speech right to contribute to their own campaigns. The outcome of this case has implications for litigants who must establish standing to challenge allegedly unconstitutional government action in the courts, and the constitutionality of limits on the use of post-election funds for loan-repayment.

Questions as Framed for the Court by the Parties

Whether appellees have standing to challenge the statutory loan-repayment limit; and whether the loan-repayment limit violates the Free Speech Clause of the First Amendment.

In order to guard against actual and apparent quid pro quo corruption, Congress promulgated federal campaign financing restrictions through the Federal Election Campaign Act of 1971 (“FECA”). Ted Cruz for Senate v. Fed.

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Husted v. Randolph Institute

Issues

Does Ohio’s voter list-maintenance process violate the National Voter Registration Act of 1993 and the Help America Vote Act of 2002?

This case will help decide the bounds of the voter list-maintenance processes allowed under 52 U.S.C. § 20507. Petitioner Ohio Secretary of State Jon Husted argues that Ohio’s “Supplemental Process” for removing voters from its lists, which addresses voters who have not been active in the last two years, is authorized under § 20507 because it does not use the failure to vote as the only basis for removal. In contrast, Respondents A. Philip Randolph Institute, the Northeast Ohio Coalition for the Homeless, and Larry Harmon (collectively “Randolph”) argue that Ohio’s Supplemental Process violates §20507 because it uses the failure to vote to initiate the removal process. The decision in this case has far-reaching implications for voter engagement and participation. Husted contends that the Supplemental Process is an important tool in fighting voter fraud, whereas Randolph maintains that the Process may disenfranchise minority voters and eligible voters who decide not to vote, harming the perceived integrity of the democratic process.

Questions as Framed for the Court by the Parties

Does 52 U.S.C. § 20507 permit Ohio’s list-maintenance process, which uses a registered voter’s voter inactivity as a reason to send a confirmation notice to that voter under the NVRA and HAVA?

Ohio uses two methods for removing individuals who are no longer eligible to vote. Husted v. A. Philip Randolph Institute, 838 F.3d 699, 702 (2016). The first method is the National Change of Address (“NCOA”) database, which Ohio’s Secretary of State uses to keep track of address changes. Id.

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Merrill v. Milligan

Issues

Does Alabama’s 2021 congressional redistricting map violate Section 2 of the Voting Rights Act?

This case asks the Supreme Court to interpret Section 2 of the Voting Rights Act (“VRA”), which prohibits discriminatory voting practices. Petitioner Alabama Secretary of State John Merrill claims Alabama’s recently redrawn congressional district map, which results in one majority-minority district, does not violate the VRA because it was drawn using race-neutral guidelines. Respondent Evan Milligan counters that the map violates the VRA because its effect is to concentrate Black voters into one district, undermining their voting power. This case has important ramifications for future redistricting efforts and for claims of vote dilution under the VRA.

Questions as Framed for the Court by the Parties

Whether the state of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated Section 2 of the Voting Rights Act.

Alabama has seven seats in the United States House of Representatives. Milligan v. Merrill at 2–3. Following the 2020 census, in May of 2021, the Alabama Legislature and Committee on Reapportionment (the “Committee”) began redrawing its congressional districts, known as “redistricting,” to account for population changes since the last census.

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Moore v. Harper

Issues

Can a state supreme court, without the explicit instruction in its state constitution, void the state legislature’s election law and replace it with judicially-devised election law?

This case asks the Supreme Court to decide whether the judicial branch has the authority to overrule a state legislature’s redistricting map. In 2021, the North Carolina Legislature created a redistricting map that the North Carolina Supreme Court subsequently struck down for violations of the North Carolina State Constitution. The Elections Clause of the United States Constitution declares that state legislatures shall determine state election laws, but it does not explicitly state whether state courts can review those laws for state constitutional violations. Moore argues that the Elections Clause grants state legislatures the sole authority to regulate the time, place, and manner of elections and, consequently, other branches are prohibited from interfering with this authority. Harper counters that Moore’s reading of the Election Clause is erroneous, as it would allow state legislature to violate their own state constitutions. The United States Supreme Court’s decision could affect voter perception of election integrity, as well as how much power state legislatures have in determining election law.

Questions as Framed for the Court by the Parties

Whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,” and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.

On November 4, 2021, the North Carolina Legislature passed new redistricting maps for its congressional elections. Moore v. Harper at 18a.

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Patrick McCrory and A. Grant Whitney, Jr. v. David Harris and Christine Bowers

Issues

Did North Carolina’s 2011 congressional redistricting plan improperly use race as the primary motivating factor in creating the first and twelfth voting districts? 

The Court must consider whether the proposed redistricting plans to North Carolina’s Congressional District 1 and Congressional District 12 constitute unconstitutional gerrymandering. Appellants Patrick McCrory, Governor of North Carolina, and A. Grant Whitney, Jr., Chairman of the North Carolina State Board of Elections, contend that the redistricting plans were not drawn based on race but rather were politically motivated. Appellees David Harris and Christine Bowser claim that direct and circumstantial evidence demonstrates that race was the predominant factor in the redrawing of district lines. The case is significant because it will address whether complying with the Voting Rights Act satisfies a compelling government interest and whether gerrymandering challengers must provide an alternative map when they present direct and circumstantial evidence of race-based redistricting. 

Questions as Framed for the Court by the Parties

In 2011, the North Carolina General Assembly drew a new congressional redistricting map to ensure that North Carolina’s congressional districts would comply with the one-person, one-vote requirement in the wake of the 2010 census. Shortly thereafter, several organizations brought suit in state court challenging two of those districts as unconstitutional racial gerrymanders. The state court rejected their claims in full, concluding that the General Assembly drew one district based on political, not racial, considerations, and that it drew the other in a manner narrowly tailored to achieve the State’s compelling interest in complying with the Voting Rights Act. Dissatisfied with that result, two members of one of the plaintiff organizations brought this suit challenging the same two districts on the same grounds. The parties even submitted the state court record in full.  Without even acknowledging the direct conflict with the state court case that its decision produced, the district court reached precisely the opposite conclusion.   

The question presented is: 

Whether the First and Twelfth Districts of North Carolina’s 2011 congressional redistricting plan are unconstitutional racial gerrymanders.

North Carolina voters have repeatedly challenged two North Carolina voting districts in a redistricting plan intended to comply with the Voting Rights Act of 1965 (“VRA”). The VRA aims to eliminate racial discrimination in voting by providing every voter with an equal opportunity to elect a candidate of his or her choice. See Harris v. McCrory, No. 1:13-cv-949, at 5 (M.D.N.C. Feb. 5, 2016).

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Trump v. Anderson

Issues

Was the Colorado Supreme Court justified in excluding former President Donald Trump from Colorado’s 2024 presidential primary ballot on the basis of Section Three of the Fourteenth Amendment, a trial court’s finding that President Trump engaged in insurrection, and the Colorado Election Code?

This case asks the Supreme Court to clarify the ambit and enforceability of Section Three of the Fourteenth Amendment to the Constitution, also known as the Disqualification Clause, which states that “[n]o person shall. . . hold any office, civil or military, under the United States, who, having previously taken an oath. . . as an officer of the United States . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” Former President Donald Trump contends that he is not subject to Section Three disqualification because he has not served as a qualifying oath–taking “officer of the United States”; because his actions on January 6th, 2021 were protected speech, not insurrection; and because the Colorado Supreme Court's interpretation of Section Three was legally incorrect. A group of Colorado electors and Colorado Secretary of State Jena Griswold respond that the President is an “officer of the United States” such that Section Three applies to Trump; that Trump engaged in insurrection on January 6th, 2021 and does not qualify for First Amendment protection in that regard; and that the Colorado Supreme Court properly applied Section Three. This case has significant implications for democratic norms and institutions, parties’ and voters’ interests in elections, and the bounds of political activity.

Questions as Framed for the Court by the Parties

Whether the Colorado Supreme Court erred in ordering former President Donald Trump excluded from the 2024 presidential primary ballot.

On the morning of January 6th, 2021, the day that the United States Congress was scheduled to certify Joseph Biden’s election as the forty-sixth President of the United States, Petitioner Donald Trump held a rally at the Ellipse in Washington D.C. Anderson v. Griswold at 9.

Acknowledgments

The authors would like to thank Professor Sheri Lynn Johnson for her guidance and insights into this case.

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Trump v. United States

Issues

Is a former president protected from being criminally charged for actions while in office, especially if the actions involved official duties?

This case asks the Supreme Court to decide whether a former president can be protected from criminal prosecution by presidential immunity for conduct while in office. Former President Trump, the Petitioner, argues that the Constitution’s Executive Vesting Clause, the Separation of Powers principle, and the Impeachment Judgment Clause grant former presidents absolute immunity from criminal prosecution for their official acts, while historical precedents and common-law immunity doctrines provide foundational support. Trump also contends that the clear-statement rule requires criminal laws to apply to the President only if explicitly stated by Congress. Trump further urges the Court to grant absolute criminal immunity for presidential official duties to maintain executive independence or, if considering qualified immunity, to require a clear legal violation. The United States counters that granting former presidents absolute criminal immunity conflicts with the Separation of Powers principles and the Impeachment Judgment Clause and lacks the support of historical precedent or common-law immunity principles. The United States argues that federal criminal statutes universally apply to the President, and the clear-statement principle does not justify a broad exemption since criminal statutes generally do not seriously threaten presidential powers. The United States also contends that any grant of immunity to a former president should not bar prosecution for charges related to alleged misuse of official powers undermining democratic processes. The decision will influence the application of presidential immunity, election processes, and the presidential right to make political speech.

Questions as Framed for the Court by the Parties

Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office

Former President Donald Trump was indicted by a federal grand jury in Washington, D.C., on four criminal charges in relation to his alleged efforts to overturn the 2020 presidential election results. United States v. Trump at 4.

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