Litigation We're Watching

Litigation of Interest

Travis v. Brand (CA Supreme Court, No. S268480). On January 30, 2022, the California Supreme Court held that defendants prevailing in lawsuits against them under the Political Reform Act may only recover attorney’s fees if the court finds that the “action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so.” The Court reasoned that while defending against meritorious actions is a normal cost to political participation, imposing the asymmetrical standard favoring prevailing plaintiffs when awarding attorney’s fees will maximize “the number of meritorious suits through the Political Reform Act’s private enforcement mechanism.” The Court’s holding is inline with earlier interpretations of similar attorney’s fees statutes in fair housing and employment laws.

Moore v. Harper (U.S. Supreme Court, No. 21-1271). In early 2022, the North Carolina Supreme Court rejected the legislatively adopted maps for state legislative and congressional districts. After rejecting a second version of congressional map submitted by the legislature, the court ultimately adopted congressional maps drawn by court-appointed special masters. Oral argument before the US Supreme Court on December 7, 2022 debated the question whether the Elections Clause in the United States Constitution (art. I, § 4, cl. 1) requires only a “legislature” to adopt a congressional map, or whether a state court may create and impose a map of its own design. Decision will be issued before the end of the term (June 2023).

Clark v. Weber (9th cir., No. 21-56337). On November 29, 2022, the 9th Circuit upheld California’s two-question ballot for recall elections. The court summarized California’s laws as follows: “The first question asks whether the official should be removed from office, followed by the option to choose “yes” or “no.” If a majority of the voters chooses “yes,” the official in question “shall be removed from office upon the qualification of his successor.” The second question asks voters to choose a successor for the office, in the event the recall vote is successful, from a list of candidates who qualified for the ballot. …the official subject to recall “may not be a candidate” to succeed himself or herself in the recall election.” (internal citations omitted) The court rejected the plaintiff’s arguments that excluding the recall target from the replacement candidate portion of the ballot does not violate the one-person-one-vote principle or due process and equal protection rights, holding that the two-question ballot “imposes a neutral restriction on voting that applies across the lines of political affiliation, race, religion, and gender” and that “California has met its burden by asserting an interest in maintaining the efficacy of its recall procedure…in ensuring that the power to recall guaranteed to its voters is effective and does not invite an endless cycle of recall attempts.”

Election Integrity Project California, Inc. et al v. Weber (9th cir., No. 2:21-cv-32-AB-MAA) On November 21, 2022, the 9th Circuit ruled the Election Integrity Project California and other plaintiffs have standing to challenge the Constitutionality of California’s election laws, regulations, policies, and procedures. The lawsuit argues that the absence of uniform and secure vote casting and counting procedures, and lack of transparency, violate the Elections Clause, the Guarantee Clause, Equal Protection, and Due Process rights provided for in the United States Constitution. The case is remanded back to the district court for discovery.

U.S. v. State of Arizona (9th Cir), filed in July, 2022: Lawsuit against the State of Arizona challenging AZ House Bill 2492 (2022), under Section 6 of the National Voter Registration Act of 1993 and Section 101 of the Civil Rights Act of 1964. AZ House Bill 2492 was passed to restore and enhance safeguards in the voter registration process. The bill requires voters provide documentary proof of citizenship, like a birth certificate or passport, in order to vote in state and federal elections.

Judicial Watch, Inc. v. Weber (USDC, Central District of California, Case No. 2:22-cv-06894, complaint filed 09/23/22). Judicial Watch alleges California Secretary of State violated First and Fourteenth Amendments of the US Constitution by directing YouTube to remove videos posted by Judicial Watch titled “**ELECTION INTEGRITY CRISIS** Dirty Voter Rolls, Ballot Harvesting Mail-in-Voting Risks!” The Secretary of State’s Office of Elections Cybersecurity contacted Google (YouTube owner) on September 24, 2020, and the video was taken down on September 25, 2020.