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Election Litigation: Campaign Activities
Prohibited Use of “Re-Election” for a Previous Office Holder Who Is Not the Incumbent
Make Liberty Win v. Cegavske (Robert C. Jones, D. Nev. 3:20-cv-592)
Election statutes forbade campaign materials from referring to the election of a previous office holder who was not the incumbent as re-election. The district judge agreed that application of the statutes to a specific campaign was unconstitutional but did not agree that the statutes were facially unconstitutional.
Topics: Campaign materials; door-to-door canvassing; COVID-19.
Enjoining False Robocalls About Voting by Mail
National Coalition on Black Civic Participation v. Wohl (Victor Marrero, S.D.N.Y. 1:20-cv-8668)
A district judge required private parties who had made robocalls threatening voters with false statements about voting by mail to make curative robocalls.
Topics: Campaign materials; early voting; absentee ballots; corporate electioneering; matters for state courts; pro se party; interlocutory appeal; COVID-19.
Unsuccessful Litigation by a Write-In Candidate to Have the Incumbent’s Candidacy Declared Illegitimate
Anders v. Benson (Matthew F. Leitman, 4:20-cv-11991), Davis v. Wayne County Board of Canvassers (Nancy G. Edmunds, 2:20-cv-12127), and Davis v. Benson (Robert H. Cleland, 3:20-cv-12130) (E.D. Mich.)
Three district judges managed frequent filings by a write-in candidate in a primary election and a voter seeking to prove illegitimate, among other things, the incumbent’s inclusion on another party’s ballot. The plaintiffs were unsuccessful in obtaining relief.
Topics: Campaign materials; getting on the ballot; laches; matters for state courts; write-in candidate; primary election; recusal; case assignment; absentee ballots; pro se party.
Electioneering on County Property
Gonzalez Garza v. Starr County (Randy Crane, S.D. Tex. 7:18-cv-46)
A federal district judge declared unconstitutionally vague an apparent proscription against electioneering on county-owned property adjacent to voting locations, finding that the apparent order was expressed merely as a desire. Litigation continued during several amendments to the policy and several amendments to the complaint.
Topics: Campaign materials; early voting.
Anonymous Campaign Literature and Keeping a Candidate Off the Ballot
Davis v. Johnson (2:16-cv-13545) and Simpson v. Garrett (2:16-cv-13784) (Arthur J. Tarnow, E.D. Mich.)
A frequent litigant and an incumbent school board member filed federal actions challenging restrictions on anonymous campaigning and seeking to overturn state court actions putting another candidate on the ballot. The district judge determined that the challenge to campaign restrictions required further administrative review and the challenge to state court rulings was barred by judicial immunity and the Rooker-Feldman doctrine, which states that among federal courts only the Supreme Court has appellate jurisdiction over state court proceedings. The court of appeals decided that litigation of this type belongs in state courts.
Topics: Matters for state courts; getting on the ballot; campaign materials.
Refusal to Accept a Minor Candidate’s Campaign Ads
Sloan v. Hearst Media Co. (Paul J. Barbadoro, D.N.H. 1:16-cv-52)
A pro se federal complaint filed on the afternoon of the day of presidential primary elections challenged the plaintiff’s exclusion from televised debates and challenged the refusal of a television station to air the plaintiff’s paid ads. The district judge denied the plaintiff a temporary restraining order on the day that the complaint was filed for failure to comply with Federal Rule of Civil Procedure 65(b)(1)’s notice requirements for a temporary restraining order. A little over two months later, a magistrate judge reviewed the complaint and recommended its dismissal. Reviewing the plaintiff’s objections, the district judge adopted the recommendation, and the court of appeals affirmed the dismissal.
Topics: Campaign materials; pro se party; primary election.
Unconstitutional Proscription on Forming a Campaign Committee Shortly Before an Election
Missourians for Fiscal Accountability v. Klahr (Ortrie D. Smith, W.D. Mo. 2:14-cv-4287)
A district court’s temporary restraining order blocked a proscription on forming a campaign committee fewer than 30 days before an election. After the election, the district judge determined that the case was not moot, but he later determined that it was not ripe. The court of appeals concluded that the case was ripe, and the district judge then issued a summary judgment that the proscription was unconstitutional. The court of appeals agreed, and the district judge awarded the plaintiff $158,055.80 in attorney fees and costs.
Topics: Campaign finance; attorney fees; recusal; ballot measure.
Direct-Mail Campaigning to Absentee Voters
Sheldon v. Grimes (David L. Bunning, E.D. Ky. 2:14-cv-60)
A primary election candidate filed a federal complaint to obtain mailing addresses for persons who had been sent absentee ballots so that she could target her campaign to them. The district judge declined to invalidate the state law that protected the voters’ temporary mailing addresses from the candidate.
Topics: Campaign materials; absentee ballots; primary election.
Municipal Campaign Signs in a Neighboring Municipality
O’Boyle v. City of Delray Beach (Donald M. Middlebrooks, S.D. Fla. 9:14-cv-80270)
A municipal candidate’s federal complaint alleged that a neighboring municipality was wrongfully taking down the candidate’s campaign signs in the defendant’s municipality. The district judge set the case for hearing on a Friday, four days after the complaint was filed, but the defendant city sought time to find outside counsel because an assistant city attorney was named in the complaint. The judge reset the hearing for the following Monday, but he urged the parties to come to a temporary agreement. A stipulated temporary restraining order forbade the defendant city from taking down the plaintiff’s signs in locations where campaign signs were permitted. Months later, the judge awarded the defendant city summary judgment because the taking down of the plaintiff’s signs resulted from a single city worker’s error that subsequently was corrected.
Topic: Campaign materials.
Nullifying Campaign Limits Shortly in Advance of an Election
New York Progress and Protection PAC v. Walsh (Paul A. Crotty, S.D.N.Y. 1:13-cv-6769)
On September 25, 2013, a political action committee filed a federal complaint challenging campaign contribution limits. On October 17, the district judge denied a preliminary injunction against decades-old limits challenged in an emergency case that could have been brought earlier. On October 24, the court of appeals ordered the district judge to issue a preliminary injunction. Six months later, the district judge awarded the political action committee summary judgment, and the parties later agreed to an attorney fee award of $360,000.
Topics: Campaign finance; interlocutory appeal; laches; attorney fees.
Hispanic Leadership Fund v. Federal Election Commission (John A. Jarvey, S.D. Iowa 4:12-cv-339) and Hispanic Leadership Fund, Inc. v. Federal Election Commission (T.S. Ellis III, E.D. Va. 1:12-cv-893)
A group wishing to run a political advertisement filed a federal complaint against the Federal Election Commission in the South-ern District of Iowa because the Commission’s advisory to another group suggested that the Commission might not approve the plaintiff’s advertisement. Ten days after the complaint was filed, the district court dismissed the action, determining that it should have been filed in Washington, DC. Following the filing of a second complaint in the Eastern District of Virginia, the second district court decided on October 4 that three of five draft advertisements were electioneering communications subject to regulation because they referred to the presidential candidate for reelection.
Topics: Corporate electioneering; campaign materials; case assignment; campaign finance.
Constitutionality of Proscriptions on False Statements About Candidates
Susan B. Anthony List v. Driehaus (1:10-cv-720) and Coalition Opposed to Additional Spending & Taxes v. Ohio Elections Commission (1:10-cv-754) (Timothy S. Black and Susan J. Dlott, S.D. Ohio)
Two actions filed in late October 2010 challenged the constitutionality of an Ohio statute proscribing false statements about candidates for office. The judge in the first case stayed the federal case pending state executive and judicial proceedings, pursuant to Younger v. Harris. The judge in the second case also denied immediate injunctive relief, and the two cases were consolidated for further proceedings after the election. Dismissals for lack of live controversies were reversed by the Supreme Court. The court of appeals affirmed a holding that the statute was unconstitutional, and it affirmed dismissal of a candidate’s defamation counterclaim. The parties agreed to an attorney fee award of $1.3 million.
Topics: Campaign materials; matters for state courts; recusal; case assignment; interlocutory appeal; attorney fees.
Public Campaign Funds Triggered by an Opponent’s Expenditures
Scott v. Roberts (Robert L. Hinkle, N.D. Fla. 4:10-cv-283)
A self-funded gubernatorial candidate filed a federal complaint challenging public matching campaign funds for an opponent triggered by the plaintiff’s spending above a specified threshold. The district court determined that the provision combatted corruption by promoting public campaign financing, but the court of appeals issued a preliminary injunction against the provision because it was not the least restrictive way to combat corruption. After the Supreme Court invalidated a similar provision in another state, the district judge issued a permanent injunction against the provision.
Topics: Campaign finance; intervention; primary election.
Amsterdam v. KITV 4 (David Alan Ezra, D. Haw. 1:10-cv-253) and Moseley v. Hawaii (Susan Oki Mollway, D. Haw. 1:10-cv-255)
Two minor candidates for a special congressional election filed pro se emergency actions in the federal court to compel their inclusion in separate televised candidate forums. The district judges denied the plaintiffs relief on the papers.
Topics: News media; campaign materials; pro se party.
Constitutionality of a Campaign Expenditure Reporting Statute
National Organization for Marriage v. McKee (D. Brock Hornby and John H. Rich III, D. Me. 1:09-cv-538)
Advocacy organizations filed a federal challenge to campaign finance reporting regulations two weeks before an election including a ballot initiative. Able to rule before the election, the court denied the plaintiffs injunctive relief. After the election, the court of appeals affirmed the legal holding.
Topics: Campaign finance; ballot measure.
Ballot Petition Signatures in Public Housing
Mendenhall v. Akron Metropolitan Housing Authority (Sara Lioi, N.D. Ohio 5:09-cv-742)
The district judge determined that it was not a First Amendment violation for a housing authority to prohibit door-to-door solicitation, including the collection of ballot petition signatures, in public housing.
Topics: Door-to-door canvassing; getting on the ballot.
Campaign Finance Regulations for Candidates Opposing Self-Funded Candidates
McComish v. Brewer (Roslyn O. Silver, D. Ariz. 2:08-cv-1550)
On August 21, 2008, candidates for office in Arizona filed a federal complaint challenging a campaign finance provision that provided a benefit to candidates whose challengers exceeded statutory thresholds of expenditures. The suit was filed eight weeks after a Supreme Court decision invalidating a similar law. Reluctant to disrupt the finances of an ongoing campaign season, the district court denied immediate injunctive relief. After full litigation, the district court struck down the campaign finance scheme and the Supreme Court ultimately affirmed the district court’s ruling.
Topics: Campaign finance; laches; attorney fees.
Last-Minute Challenge to a Debate Exclusion
Barr v. Saddleback Valley Community Church (David O. Carter, C.D. Cal. 8:08-cv-927)
On a Friday afternoon, the Libertarian Party’s candidate for President filed a federal complaint challenging his exclusion from a candidate’s forum to be held on the next day. The district judge denied immediate relief, noting that laches is especially problematic in ex parte proceedings.
Improper Support for School Board Incumbents
Jacob v. Board of Directors (G. Thomas Eisele, E.D. Ark. 4:06-cv-1007)
A federal complaint alleged that incumbent school board candidates, and not other candidates, were improperly allowed to appear before school district staff meetings. Just over two weeks later, the district judge denied the plaintiffs immediate relief on a finding that the school board had not conspired to advance the incumbents’ candidacies. The incumbents were defeated in the election.
Topics: Early voting; intervention; equal protection.
Issue Ads During Election Season
Christian Civic League of Maine, Inc. v. FEC (Louis F. Oberdorfer, D.D.C. 1:06-cv-614)
An issue-advocacy organization filed a declaratory action in the U.S. District Court for the District of the District of Columbia to challenge a proscription on issue advertising that mentions a candidate close to an election. A three-judge district court denied a preliminary injunction against enforcement of the proscription.
Topics: Campaign materials; corporate electioneering; three-judge court; intervention; recusal; interlocutory appeal.
Service Employees International Union v. Municipality of Mt. Lebanon (Arthur J. Schwab, W.D. Pa. 2:04-cv-1651)
The district court was asked to resolve the constitutionality of county requirements for persons who wanted to go door-to-door over the weekend before a general election to encourage voting. In the short term, the counties relaxed their restrictions; in the long term, they revised them.
Topics: Door-to-door canvassing; recusal.
Democratic National Committee v. Republican National Committee (Dickinson R. Debevoise and John Michael Vazquez, D.N.J. 2:81-cv-3876), Arizona Democratic Party v. Arizona Republican Party (John J. Tuchi, D. Ariz. 2:16-cv-3752), Nevada State Democratic Party v. Nevada Republican Party (Richard F. Boulware II, D. Nev. 2:16-cv-2514), Ohio Democratic Party v. Ohio Republican Party (James S. Gwin, N.D. Ohio 1:16-cv-2645), Pennsylvania Democratic Party v. Republican Party of Pennsylvania (Paul S. Diamond, E.D. Pa. 2:16-cv-5664), North Carolina Democratic Party v. North Carolina Republican Party (Catherine C. Eagles, M.D.N.C. 1:16-cv-1288), and Michigan Democratic Party v. Michigan Republican Party (Mark A. Goldsmith, E.D. Mich. 2:16-cv-13924)
In 2004, a voter in Ohio moved to intervene in a 1981 District of New Jersey case, complaining that widespread voter registration challenges in Ohio violated a consent decree between the two major political parties in the New Jersey case. On the day before the election, the district court in New Jersey granted injunctive relief. A panel of the court of appeals, over a dissent, denied the defendants a stay, but the full court ordered en banc review on election day. Because the plaintiff was allowed to vote, the appeal was subsequently declared moot. In 2016, a suit was again filed in the District of New Jersey to enforce and extend the consent decree. Related actions were filed in six other states, plaintiffs were denied immediate relief there, and the actions were dismissed voluntarily after the election. A little more than one year later, the consent decree was terminated.
Topics: Registration challenges; intervention; enforcing orders; laches; case assignment.
The Right to Campaign in Housing Projects
Vasquez v. Housing Authority of El Paso (David Briones, W.D. Tex. 3:00-cv-89 and 3:02-cv-456)
Successive federal complaints challenged proscriptions on door-to-door campaigning in housing projects. The district judge found the campaign restrictions reasonable as part of viewpoint-neutral regulations that protect housing projects from criminal activity. A panel of the court of appeals held the proscriptions to be unconstitutional, but the full court voted to rehear the appeal en banc. The second case was filed because the first appeal was dismissed when the appellant died. A second panel of the court of appeals agreed with the district judge that the proscriptions were reasonable.
Topics: Door-to-door canvassing; case assignment.