The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Asymmetry on Standing for Liberals and Conservatives
Justice Kagan acknowledged an unspoken truth in standing law: it is easier for blue litigants to have standing than for red litigants.
There are many asymmetries in the law between liberals and conservatives. The Voting Rights Act presents an asymmetry, as the law creates a de facto bonus for Democrats.
Standing doctrine is another significant asymmetry. In theory at least, this procedural doctrine should follow neutral principles, without regard to the merits. But my sense is that standing law is not applied neutrally. More often than not, blue states have standing but red states do not.
This disparity could be chalked up to the preference to dump hard cases on standing grounds to avoid deciding tough issues. But there may be another explanation. Liberals tend to file suits about the enforcement of the law, while conservatives tend to file suits about the non-enforcement of the law. Liberals can usually point to a clear injury in fact because a conservative government is causing that injury through the execution of the law. By contrast, conservatives have a harder time showing an injury because a liberal government is not executing the law, and thus not causing injuries.
Perhaps the most obvious example arises in challenge to immigration policies. Conservatives enforce immigration laws, so standing is clear. By contrast, through policies like DACA or DAPA, liberals do not enforce immigration laws, so states have to get creative on standing. Another prominent example is election law. Conservatives seek to tighten voting rules, through laws concerning voter ID, absentee ballots, ballot access, poll locations, and the like. Liberals try to not enforce those laws, and thereby loosen the rules of voting. The former type of laws create clear injuries in fact, while standing in the latter types of cases are not so clear.
During oral argument in Bost v. Illinois State Board of Elections, this asymmetry was acknowledged in candid terms.
Justice Alito stated the issue plainly:
JUSTICE ALITO: You have several arguments, and I don't want to get into most of them right now. But, on the issue of competitive injury, it's not clear to me why you couldn't have done a lot better than you did in your complaint and alleged what I think a lot of people believe to be true, which is that loosening the rules for counting votes like this generally hurts Republican candidates, generally helps Democratic candidates. Why didn't you pursue that? Why didn't you try to do something with that?
Justice Alito was miffed that Bost did not simply argue that the Democratic Illinois legislature extended the deadline to help Democrat candidates. Injury in fact, ipso facto. In other words, the very nature of the injury is that Republican candidates are generally hurt by the counting of late-arriving ballots. According to Justice Alito, this issue is not speculative, as the injury in Clapper was. Rather, the injury is virtually certain to happen: Democratic voters cast more absentee ballots, and Illinois knew this when it enacted the challenged law.
Justice Kagan acknowledged the premise of Justice Alito's comment:
JUSTICE KAGAN: So I'm curious, Mr. Clement --and I am going to actually limit this to Democrats and Republicans to --for purposes of this question. I mean, in a lot of these suits, it's the parties that sue, right? The RNC sues or the DNC sues. And, as Justice Alito suggested, it's usually fairly predictable what rules the RNC is going to sue on and what rules the DNC is going to sue on, and both have their favorite rules and their disfavored rules. And --and, usually, we don't think about standing in that area. But I'm wondering whether you think, like, I would think that the same standard should basically apply, that whether we think about it or not, what we're really asking is, is this the kind of rule that is likely to put your candidate at a disadvantage relative to where he was before? And, I mean, do you think that there's some separate inquiry for individuals, for candidates, as opposed to parties when they sue for these rules? . . .
Later, Justice Kagan referred back to the types of laws that Democrats challenge, such as restrictions on Sunday voting. Though she didn't say which laws that Republicans favor, she just referred, obliquely, to "different kinds of rules."
JUSTICE KAGAN: I don't think we've ever actually asked the RNC or the DNC to do anything like that. What we've asked the -the parties to do is to --and this is why you don't get these cases thrown out on standing grounds, because there are perfectly easy ways for a party to say why a new rule is going to harm them in the electoral game. You know, when --when Sunday ballot --when Sunday voting is shut down, the Democratic Party rolls into court and says this is going to harm us and the suit goes forward, and similarly for the Republican side on different kinds of rules.
Paul Clement responded to Justice Kagan's question in a fairly diplomatic sense. He said that Democrats challenge laws that "operate negatively directly on voters."
MR. CLEMENT: And one of the things that I think is particularly problematic is --you said it yourself --like, there are certain of these rules that the Democrats don't like and certain of these rules -
JUSTICE KAGAN: No question.
MR. CLEMENT: --that the Republicans don't like. Well, the rules that the Democrats don't like tend to operate negatively directly on voters. And so, when the --when the Democrats come in, they can marry up with a couple of voters and the Court can say the voters have standing, so we're done, we don't even have to think about the party or the candidate.
By contrast, Republicans challenge laws that make it easier to count votes.
MR. CLEMENT: The Republicans in a lot of these cases are challenging rules that allow you to keep counting ballots forever, keep the voting place open forever.
This, in a nutshell, is the asymmetry.
I think it likely that the Court will find standing in Bost. The Court's conservatives will see this asymmetry, and attempt to level the playing field. There cannot be unilateral disarmament on standing. And Justice Kagan, who served in the White House, sees this political problem. If I had to guess, either Justice Kagan or Justice Kavanaugh will have the majority opinion.
I am not certain about Justice Barrett. Going into the argument, I thought that the standing stickler would find that Bost's injury was too speculative. I also wondered how Barrett would find redressability with this pre-enforcement challenge. Yet, during the argument, Barrett was very quiet and only asked a few questions. She did ask about whether there was a "history and tradition" for this sort of standing, under Transunion. There was no interest on this issue from the other Justices. I don't think Justice Barrett would want to create a "bespoke" standing rule for election cases. She will favor her neutral principle of never finding standing. Maybe she was surprised with the tenor of the argument, especially that Justice Kagan favored a finding of standing? I can see this case going 6-3, or even 7-2 with Barrett and Jackson writing separate dissents. Take my prediction for what you paid.
Finally, there is another unstated premise that was discussed.
What, in particular, is the problem with extending the deadline by two weeks? Why does Bost need to keep his campaign staff employed for those two weeks? Paul Clement stated the obvious: chicanery can happen if there is more time to count ballots:
MR. CLEMENT: And, you know, I think it's telling that what --what you'd be paying for in using your volunteer resources for in that last two weeks is the --the --the --the --the ballot monitoring and the rest and the poll watching as they count these late-arriving ballots, and, you know, no less an authority than the League of Women Voters at page 20 of their amicus briefs says it would be political malpractice not to do this.
Justice Alito echoed this concern:
Why isn't that straightforward? Mr. Clement says, look, it's --it's political malpractice not to continue poll watching and related activities until the --the final bell actually tolls.
What is the fear? I suspect that Bost wold argue that in close elections, Illinois Democratic machines will "find" (gasp!) votes to make up any differences in vote counts. That is why Bost pays his team to keep monitoring the counting until the final bell is tolled.
