The Volokh Conspiracy
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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. Conservative 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.
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"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."
How is that different than a legislature drawing a district to help a Democrat (or Republican) candidate?
Partisan gerrymandering is not subject to judicial review because there is no rule to enforce. The courts are not going to make up a rule requiring each party to be represented in proportion to the number of voters in that party. Without such a rule there are no judicially manageable standards to decide when gerrymandering is constitutional.
In the deadline case there is a rule to enforce.
Don't announce any results until the counting stops !
Transparency is a good thing, not a bad thing. Prolonged counting is what makes it easier to fabricate votes or distort counts; countries with one-day counting generally have much higher levels of trust in those results.
Speed comes at a cost. In money, in people, and in accuracy.
Trust in elections in America has nothing to do with the process and everything to do with the media.
And here there's a real asymmetry. Specifically the right, which has been baselessly attacking democracy for a decade now. To the point of quite a few libel suits ending badly for them.
Slow counting being one of the places the right's been pushing their bullshit. Which Michael fell for like it's his job.
Sure, Democrats think it's "a cost" to have accurate results. That says more about you than about anything or anyone else.
https://www.newsweek.com/india-vote-election-counting-modi-1908222
Again, common sense tells us that accuracy is usually correlated with hurrying!
You might be the proverbial moron in a hurry, but doing things efficiently isn't the same as hurrying them.
Efficiency by definition involves tradeoffs, your caterwauling about accuracy is disingenuous. You’re not interested in accuracy you’re interested in hurrying because your actual value is limiting the time your conspiracy assumes will be used in cheating.
Yes, efficiency requires trading off getting the job done at the cost of not slacking off or doing other things (like cheating).
If you're going to try to argue, you should at least learn the basic meanings of words.
lol, there’s no confusion about the meaning in my end, you admitted it involves a trade off as I said, and that one thing you’re willing to trade accuracy for is limiting time to prevent your assumed conspiracy theories. Don’t get mad at me for pointing out your disingenuousness yet again.
You're the one who keeps insisting on using the word "hurry", and pretending that the trade-off for efficiency is anything helpful to your point. Efficiency doesn't mean giving up accuracy or total effort -- to the contrary, it promotes both more accuracy and less effort.
Yeah, I’m insisting on using the word hurry in reply to a guy who keeps putting so much value on the votes being counted quickly! Wacky!
You’re disingenuousness is apparent; you start by claiming to want accuracy but what you also (or really) want is hurrying because you think taking your time only feeds your conspiracy theories about cheating. You try to use “efficient” to wave off trade offs between hurrying and accuracy.
You're so angry about someone expecting ballot counting to be efficient, instead of dragging it out so that enough votes can be injected to teach your preferred outcome, that you insist on arguing against a straw man.
You’re so angry about someone suggesting ballot counting be accurate, instead of hurried where the chance of inaccuracy increases, because of your usual conspiratorial thinking, that you insist on arguing against an evil conspiratorial straw man.
I’ll repeat: it’s common sense that there’s a trade off between speed and accuracy. So if you value accuracy, why hurry? Well, it’s because you have an idea that time is an equal (more important?) value because of your conspiracy theory that it leaves less time for all those cheaters to cheat.
>Trust in elections in America has nothing to do with the process
Utter nonsense.
Most reasonable people don't trust 2 months of voting season with loose chain of custody, electronic ballots and then 1 month of vote counting with very little transparency.
They think the problem is not that direct-recording electronic vote machines have both abstract and concrete security problems, that all-mail ballots have both abstract and security problems, that Democrats have pushed for those systems in spite of the known problems, that military absentee ballots get thrown on the roadside by postal workers, or that we find bundles of blank ballots in random people's beat-up mailed packages or in homeless camps, but that right-wing media report on those things instead of dutifully reporting that the US electoral system is reliable when it selects Democrats and untrustworthy when Republicans win.
It’s all a conspiracy, all those media outlets doing their “dutiful” part in it. Thank goodness for the intrepid basement dweller/independent journalists exposing it all!
I especially like the last part where Mikie gives himself the escape hatch to try to avoid the charge that he sounds like the lefty loons that ran around after the Kerry election screaming “Diebold!!!”
If you say there's a conspiracy, we'll treat that as an admission against interest.
I called them loons dude. They’re your mirror image.
Michael is so committed he can't imagine anyone else believing their side doesn't have a monopoly on virtue.
“military absentee ballots get thrown on the roadside by postal workers”
Also, link?
Yes, we all know the old maxim, if you want something done right, do it in a hurry!
Mikie reminds me of this kinds of fans of certain teams that constantly think “they” (referees, replay booths, leagues/conferences) are “out to get them” and when a replay runs long scream “see, they’re coming up with how to screw is!”
“us”
Christ on a stick... Just when you thought Josh's blogging couldn't get any more embarrassing.
I’m old enough to remember when the GOP would look to benefit from overseas ballots.
Efficiency over hurrying. Wisconsin's use of scanned paper ballots is proven accurate through numerous recounts and challenges over the years it has been used, and is generally over by the morning after the polls close.
The only reason for extended counting is for votes that should have been received by the deadline. The vetting of those "found" votes has been a big problem in past elections and has changed the outcome of elections.
“is generally over by the morning after the polls close.”
“The only reason for extended counting is for votes that should have been received by the deadline.”
Sigh.
One reason Democrats do better with mail-in ballots is that in the past Republicans have actively discouraged their voters from using mail-in voting.
There is no inherent advantage to Democrats, despite all the stupidity about asymmetry.