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Class Actions

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Format: 2020
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Black Voters Matter Fund v. Raffensperger (Amy Totenberg, N.D. Ga. 1:20-cv-1489)
In light of widespread absentee voting by mail during the 2020 global COVID-19 infectious pandemic, a federal complaint alleged that requiring voters to pay the postage was an unconstitutional poll tax. The district judge denied relief for an imminent primary election for practical reasons. After careful consideration of the law and the facts, the judge ultimately decided that absentee ballot postage is not a poll tax.
Subject: Absentee and early voting. Topics: COVID-19; absentee ballots; class action; primary election.

One of many Case Studies in Emergency Election Litigation.

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Democratic National Committee v. Bostelmann (3:20-cv-249), Gear v. Knudson (3:20-cv-278), and Lewis v. Knudson (3:20-cv-284) (William M. Conley, W.D. Wis.) and City of Green Bay v. Bostelmann (William C. Griesbach, 2:20-cv-479) and Taylor v. Milwaukee Election Comm’n (Pamela Pepper, 2:20-cv-545) (E.D. Wis.)
In light of a global infectious pandemic, federal litigation to modify election procedures for the April 2020 election in Wisconsin, which included a presidential primary election, began about three weeks before the election. Shortly after a complaint was filed, and again a few days before the election, a federal judge in the Western District of Wisconsin ordered some modifications to enable absentee voting by mail. The judge declined to order a delay in the election. The court of appeals reversed the district judge’s modification to absentee voter witness certification requirements, and the Supreme Court reversed the district judge’s extension of time to mail absentee ballots after election day. Suits in the Eastern District were unsuccessful, and related actions in the Western District remain pending.
Subject: Absentee and early voting. Topics: COVID-19; registration procedures; absentee ballots; enjoining elections; interlocutory appeal; voter identification; intervention; primary election; voting technology; case assignment; class action.

One of many Case Studies in Emergency Election Litigation.

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Gallagher v. New York State Board of Elections (Analisa Torres, S.D.N.Y. 1:20-cv-5504)
New York’s allowance for voting by mail during the global COVID-19 infectious pandemic of 2020 had a postmark requirement, but prepaid mail was not always postmarked, so a district judge ordered that ballots received by the day after the election would be counted without a postmark and ballots received by the following day would be counted unless they had a postmark after election day.
Subject: Absentee and early voting. Topics: Absentee ballots; COVID-19; intervention; primary election; class action.

One of many Case Studies in Emergency Election Litigation.

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Yang v. New York State Board of Elections (Analisa Torres, S.D.N.Y. 1:20-cv-3325)
Because all but one candidate for a party’s presidential nomination had announced suspension of their campaigns, and in light of a global infectious pandemic, election officials in New York canceled the party’s 2020 presidential primary election, leaving in place primary elections for other offices in most of the state’s counties. A district judge and the court of appeals concluded that it was unconstitutional to remove from the ballots candidates who had merely suspended their campaigns.
Subject: Election dates. Topics: Enjoining elections; COVID-19; primary election; getting on the ballot; intervention; absentee ballots; party procedures; class action.

One of many Case Studies in Emergency Election Litigation.

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Powell v. Benson (Gershwin A. Drain, E.D. Mich. 2:20-cv-11023), Drenth v. Boockvar (Jennifer P. Wilson, M.D. Pa. 1:20-cv-829), and Hernandez v. New York State Board of Elections (Lewis J. Liman, S.D.N.Y. 1:20-cv-4003)
In light of the greater need for absentee voting in 2020 because of the COVID-19 global infectious pandemic, lawsuits in three states resulted in electronic at-home absentee voting for blind voters that protected the secrecy of their ballots.
Subject: Absentee and early voting. Topics: COVID-19; absentee ballots; Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA); intervention; class action; primary election.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

Fair Elections Ohio v. Husted (Susan J. Dlott and S. Arthur Spiegel, 1:12-cv-797) and Mays v. Husted (Michael H. Watson, 2:18-cv-1376) (S.D. Ohio)
Prisoner-rights organizations filed a federal complaint seeking provisions ensuring the ability to vote by voters detained during the days immediately preceding the 2012 general election. The district judge denied the plaintiffs immediate relief because they had not presented compelling evidence of disfranchisement. The state’s accommodations for persons with medical emergencies on election day did not create an equal protection violation because of the different burdens placed on election officials. After the case was transferred to another judge in 2014, and after additional discovery, the second judge granted the plaintiffs summary judgment on a showing that the burden on disfranchised voters outweighed the burden on accommodating late-jailed voters. The court of appeals determined, over a dissent, however, that the plaintiff organizations did not have standing. A lawsuit filed in 2018 by two persons arrested over the weekend before election day and detained through election day was successful for them. The judge later granted summary judgment to a certified plaintiff class. The court of appeals, however, determined that the franchise burden on arrested voters is modest and justified by election officials’ burdens in providing new prisoners with ballots.
Topics: Prisoner voters; equal protection; absentee ballots; class action.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

Martin v. Kemp (1:18-cv-4776) and Georgia Muslim Voter Project v. Kemp (1:18-cv-4789) (Leigh Martin May) and Democratic Party of Georgia v. Crittenden (Steve C. Jones, 1:18-cv-5181) (N.D. Ga.)
Not quite two weeks before the 2018 general election, a district judge ordered election officials to regard absentee ballots with signatures apparently not matching signatures on file to be regarded as provisional ballots with an opportunity for the voters to resolve discrepancies. Before the election, the judge declined to order immediate relief from the rejection of absentee ballots for clerical errors. After the election, while absentee ballots were being counted, the judge ordered a county to not reject absentee ballots that arrived with a missing or incorrect year of birth, because only eligible voters would have received absentee ballots. In another case with election officials for an additional county as defendants, another judge issued a similar order on the following day.
Subject: Absentee and early voting. Topics: Absentee ballots; early voting; signature matching; provisional ballots; class action.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

Zessar v. Helander (David H. Coar, N.D. Ill. 1:05-cv-1917)
A 2005 federal class action filed four days before a scheduled election charged that the state’s absentee voting system did not comply with due process requirements; an absentee vote cast in 2004 was not counted because of an erroneous conclusion that the ballot signature did not match the registration signature. The district judge initially heard a motion for emergency relief on election day, but set the matter for hearing two days later when defendants could participate after the plaintiff’s attorney acknowledged difficulties arising from his filing the case so close to an election. Because the plaintiff voted in person on election day, the district judge denied him immediate relief at the second hearing. After certifying both plaintiff and defendant classes, the district judge determined that state procedures violated due process.
Subject: Absentee and early voting. Topics: Absentee ballots; signature matching; laches; class action.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

This pocket guide is designed for transferee judges managing MDL proceedings that involve multiple, related class actions.

The guide assists transferee judges from the very beginning of MDL proceedings, before the judges determine whether the main focus of the litigation will be on class-related issues. Even if no class is ultimately certified, this guide can help transferee judges organize the litigation and set it on a smooth course. Topics addressed include categorization of claims and defenses, organization of counsel, the sequencing of motions practice, and settlement.

Available Online Only

Correll v. Herring (Robert E. Payne, E.D. Va. 3:16-cv-467)
A delegate to a national presidential nominating convention sought an injunction against a state statute that criminalized failure to vote for the state’s primary election winner on the first ballot. The district judge concluded that the statute unconstitutionally infringed on the plaintiff’s right to vote his conscience consistent with party rules.
Subject: Getting on the ballot. Topics: Party procedures; primary election; class action; intervention; laches; attorney fees.

One of many Case Studies in Emergency Election Litigation.

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