Litigation of Interest
Missouri v. Biden (5th Circuit Court of Appeals, No. 23-30445) The 5th Circuit held that the federal government’s requests to take down or limit the reach of posts and accounts with social media companies after the onset of the COVID pandemic infringed on the first amendment. The court found that some of the communications between the federal government and the social media companies to try to fight alleged COVID-19 misinformation “coerced or significantly encouraged social media platforms to moderate content.” But the court also ruled that the lower court’s preliminary injunction was too broad, as it blocked legally allowed content between the government and social media services, and narrowed it to cover only the government “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” With this decision, there is now a circuit split between the 5th and 9th Circuits (see O’Handley below). This split could lead to a future decision to be made by the Supreme Court to settle the law.
Pico Neighborhood Association v. City of Santa Monica (Supreme Court of California, No. S263972) Pico Neighborhood Association (“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 (“CVRA”). 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. The Supreme Court reversed the Court of Appeals and ruled that the possibility of electoral success was not required to show a violation of the CVRA in at-large voting districts. Instead, the Court held that if an at large system is shown to at least dilute the power of a protected class from influencing the outcome of an election and another system would allow for such influence, then that is evidence enough to bring a claim under the CVRA.
People v. Moyer (CA Court of Appeal, 6th District; August 25, 2023, C2015936) The 6th District Court of Appeal reversed a lower court’s dismissal of bribery charges against Apple, Inc.’s head of Global Security. The Court of Appeals held that the evidence presented of Thomas Moyer’s actions were sufficient to prove bribery when Moyer offered 200 iPads to the Santa Clara County Sheriff’s Department so as to receive concealed carry permits for Apple’s executive security team. The Court found that bribery still occurs even if a public official does not directly benefit from the promised bribe. Moyer’s promise of the iPads satisfied the cause of action and the dismissal was reversed and remanded back to the trial court for further proceedings.
U.S. v. Zeitlin and U.S. v. Piaro (S.D.N.Y.) Two cases were filed in mid-August, one against Richard Zeitlin and one against Robert Piaro, for schemes to defraud donors to political action committees. Zeitlin is charged with conspiracy to commit wire fraud, wire fraud, and obstruction of justice. Zeitlin’s indictment stems from his use of the call center he owns. It is alleged that he directed his employees to provide false and misleading information to potential donors telling them that their contributions would go to charities and not PACs to increase the likelihood of donating and in turn, his profits from the donations. Zeitlin then ordered his employees to destroy records when he came under investigation. Piaro is being charged with wire fraud and mail fraud. Piaro was in charge of four separate PACs that purported to support breast cancer research, veterans, and firefighters. Piaro mislead donors stating that the contributions to the PACs would be supporting specific legislation, education of lawmakers, and research for these causes. Piaro never used the funds in the way he described to donors.
Alliance San Diego v. City of San Deigo (CA Court of Appeal, 4th District; August 11, 2023, D080199) The Fourth District Court of Appeal ruled that Measure C, a local special tax in San Diego, was successfully passed by the electorate when it received 65% approval. This ruling was based on recent opinions from other Courts of Appeal stating that the 2/3 voter approval required under Prop 213 for local special taxes does not apply to citizen-initiated tax; only to local government proposed taxes. However, the 4th District also remanded the case back to the trial court to determine if the measure should be considered a citizen-initiated measure since one of the San Diego Convention Center’s board members was a vocal supporter of the measure. Measure C would, in part, provide funding to the Convention Center.
Progressive Democrats for Soc. Justice v. Bonta (9th Cir.; 73 F.4th 1118) The Ninth Circuit Court of Appeals held that the ban on local government employees soliciting contributions from coworkers was unconstitutional, reversing the lower court’s ruling. The Court of Appeals found that banning solicitations of contributions from coworkers by local government officials to limit workplace political coercion was underinclusive and a severe restriction on political speech of a group while ignoring others (e.g., state employees). As such the law was struck down as it only provided a speculative benefit to the government, not reaching the exacting standards required to restrict speech.
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.
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 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. However, the District Court granted Weber’s Motion to Dismiss on July 18, 2023. EIPCA has filed a request for appeal in the 9th Circuit.