Litigation We're Watching

Litigation of Interest

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. The appeal to the US Supreme Court 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, and whether a state court may review the actions of legislatures pertaining to federal elections. The Court held that the Elections Clause of the Constitution did not grant state legislatures powers to conduct elections unrestrained by state constitutions and state courts. The Court held that since the founding of the country, state legislatures have been bound by their own constitutions and federal laws. The language in the Elections Clause never granted legislatures the power to avoid review by state courts under state law.

Vacation Rental Owners and Neighbors of Rancho Mirage v. City of Rancho Mirage (CA Court of Appeal, 4th District; July 11, 2023, E077462 and E077118) The Court of Appeal for the Fourth District affirmed two lower court decisions in favor of Vacation Rental Owners. Plaintiffs were granted a modification of a preliminary injunction staying the effect of a local ordinance that prohibited short term rentals of most properties within the City. With the injunction, the Rancho Mirage is required to continue issuing short term rental permits as if the ordinance had not been put into effect, pending a final judgment on whether the ordinance is unconsitutional. More importantly, the Court of Appeal affirmed the lower court’s dismissal of Rancho Mirage’s Anti-SLAPP action (SLAPP is an acronym for “strategic lawsuit against public participation” – a law intended to protect people’s right to free speech without fear of frivolous lawsuits). The Court of Appeal affirmed that actions of governance by a municipal body is not a form of protected speech and could not be the basis of an anti-SLAPP suit. The court reasoned that “a contrary rule would likely render all lawsuits against public entities based on their governing bodies’ votes subject to anti-SLAPP litigation, a chilling effect the Legislature and courts have not countenanced.”

O’Handley v. Weber (9th Cir., No. 22-15071) The Ninth Circuit affirmed a lower court ruling dismissing O’Handley’s action against the California Secretary of State and Twitter. O’Handley argued that SOS and Twitter violated his first amendment rights when Twitter removed tweets by O’Handley that were flagged for review by the SOS for being false or misleading about the 2020 election. The lower court found that the interactions between Twitter and SOS did not make Twitter a state actor and, therefore, no First Amendment claim could be brought against the company. The lower court also found, and the Ninth Circuit affirmed, that SOS informing Twitter about misleading or false tweets was not in violation of any federal law as SOS is not responsible for Twitter’s actions.

Pico Neighborhood Association v. City of Santa Monica (Supreme Court of California, No. S263972) Pico Neighborhood Association requested that Supreme Court to review the decision and clarify the requirements for an action under the California Voting Rights Act. Oral argument was held in late June. Plaintiff PNA brought suit against the City of Santa Monica alleging the City’s at-large voting system was in violation of the California Voting Rights Act. The trial court agreed with PNA holding that Santa Monica’s at-large elections caused vote dilution for its Latino electorate. The Second Court of Appeal reversed and held that PNA must be able to show a possible district where electoral success was possible for the alleged diluted vote.

Mobilize the Message v. Bonta (U.S. Supreme Court, No. 22-865) The Supreme Court declined to hear the case appealed from the Ninth Circuit which affirmed the lower court decision against the plaintiff. Plaintiff argued that California’s AB 5 infringed political speech by making petition signature gatherers employees and not independent contractors, effectively changing the business model. The Ninth Circuit held that the law was broadly applied and did not target any specific speech. This is the second time the Supreme Court has declined to hear a case regarding the constitutionality of AB 5.

O’Connor-Ratcliff v. Garnier (U.S. Supreme Court, No. 23-324) The Supreme Court granted Certiorari to hear this case involving two school board members in Poway, CA, blocking some parents from commenting on their Facebook and Twitter accounts. The District Court held for the parents, and the ruling was upheld by the 9th Circuit. Around the same time, the 6th Circuit ruled differently on a similar case. Now the Supreme Court will settle the circuit split and determine whether a public official infringes on an individual’s First Amendment rights when they block an individual on their social media pages, when the official uses the account to feature their job and communicate about job-related matters with the public, but does not do so pursuant to any governmental authority or duty.

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. The bill requires voters provide documentary proof of citizenship, like a birth certificate or passport, in order to vote in state and federal elections. On February 16, 2023, the case was consolidated with a challenge to AZ House Bill 2243 (2022), which requires county recorders to cancel a voter’s registration if they receive information that a voter is not qualified to vote or if the county officials have a “reason to believe” that a voter is not a U.S. citizen. The lawsuit argues that the challenged statutes violate the First and 14th Amendments, the National Voter Registration Act, and the Materiality Provision of the Civil Rights Act.

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. On February 21, 2023, EIPCA filed an amended complaint with the District Court arguing 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.

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.