De facto class actions? Plaintiff- and defendant-oriented injunctions in voting rights, election law, and other constitutional cases.

• Author: Morley, Michael T.
• Position: Introduction through I. Injunctive Relief in Election Law Cases B. Current Approaches, p. 487-516

INTRODUCTION I. INJUNCTIVE RELIEF IN ELECTION LAW CASES A. Plaintiff- and Defendant-Oriented Injunctions B. Current Approaches 1. Presumptive Issuance of Defendant Oriented Injunctions 2. Mandatory Issuance of Plaintiff-Oriented Injunctions 3. Intermediate or Compromise Approaches C. Theoretical Tensions Underlying the Dispute II. THE PROBLEMS WITH DEFENDANT-ORIENTED INJUNCTIONS A. Standing B. Due Process and Other Rightholders C. Asymmetric Preclusion D. The Law of Judgments and Rule 23 E. Geographic Limitations of Lower Courts III. SOME POTENTIAL SOLUTIONS A. Rule 23(b)(2) Class Actions B. Organizational Standing C. Unity of Forum Proposals D. Equal Protection Approach IV. A New Approach to Injunctive Relief A. Choosing Between Plaintiff--and Defendant-Oriented Injunctions B. Determining the Proper Scope of Relief at the Outset of the Case V. CONCLUSION INTRODUCTION

Litigation challenging the validity of statutes and regulations governing the electoral process has become a staple of nearly every federal election cycle. (1) Democratic Presidential candidate Hillary Clinton's barrage of constitutional and other challenges to various state laws governing the electoral process, commencing over a year-and-a-half before the 2016 presidential election, (2) is merely the latest front in the ongoing Voting Wars. (3) Left-wing partisans routinely challenge measures such as voter identification laws (4) and reductions in early voting periods. (5) Right-wing litigants, for their part, have primarily challenged campaign finance restrictions (6) and federal limits on state sovereignty such as the Voting Rights Act. (7)

When a plaintiff successfully challenges an election law or regulation as violating the U.S. Constitution, an applicable state constitution, (8) the Voting Rights Act or some other federal statute (for state legal provisions), or an agency's organic statute or law such as the Administrative Procedure Act (9) (for regulations), the district court must decide numerous issues in determining the proper relief. For example, in constitutional cases, the court must decide whether the challenged provision is facially unconstitutional or unconstitutional only as applied to litigants in the plaintiff's position. (10) The court also must determine whether an injunction is an appropriate remedy (11) and, if so, how broadly it should be crafted. In particular, the court must determine whether the injunction should grant relief solely in favor of the plaintiffs in the case ("Plaintiff-Oriented Injunction"), or instead enjoin the defendant officials or agencies ("government defendants") from enforcing or implementing the challenged provision against anyone in the state or even the nation, as appropriate ("Defendant-Oriented Injunction"). (12)

A Plaintiff-Oriented Injunction precludes the government defendants from enforcing the challenged provision against the successful plaintiffs in the case, while leaving them free to enforce the provision against other members of the public. Such an order is generally sufficient to resolve the case or controversy before the court and vindicate the plaintiffs' rights, without adjudicating or enforcing the rights of third parties not before the court that the plaintiffs lack standing to assert. Because non-mutual offensive collateral estoppel generally does not lie against the government, (13) the government defendants remain free to defend the provision's validity in subsequent cases, in which other courts may uphold the provision. The limited scope of Plaintiff-Oriented Injunctions also ensures that the effects of a trial or intermediate appellate court's ruling do not extend beyond the scope of its territorial jurisdiction, to parts of the state or nation where its opinions lack the force of law.

A Defendant-Oriented Injunction, in contrast, allows a single judge to completely enjoin enforcement of a state or federal legal provision throughout the state or nation, respectively. It prevents the unfairness that could result from enforcing certain plaintiffs' rights while allowing the challenged provision to otherwise remain in effect, violating the rights of others. A Defendant-Oriented Injunction effectively transforms an individual-plaintiff lawsuit into a de facto class action, without satisfying the requirements of Rule 23 or giving the injunction's purported beneficiaries notice of the suit or an opportunity to opt out. (14)

These categories are not entirely distinct. In certain cases, it would be impossible to fully enforce a plaintiff's rights without completely invalidating a statute or regulation as it applies to everyone. Unconstitutional or otherwise improper redistricting presents perhaps the most obvious example of this concept in the election law context. A state cannot have one set of congressional or legislative districts for individual plaintiffs in a case and a different set for everyone else. (15) And "[e]ven if individual relief might satisfy [a] plaintiff's claim, it [may] be economically impractical to create a special remedy just for the single victorious plaintiff." (16) Across the broad run of cases, however, it often will be possible to grant meaningful relief to individual plaintiffs without necessarily extending it to everyone else. (17) In the parlance of the American Law Institute's Principles of Aggregate Litigation, it is typically possible for courts in election law, voting rights, and other constitutional cases to award "divisible," plaintiff-specific relief, rather than "indivisible," across-the-board relief. (18) The question is whether, and when, they may (or should, or must) do so.

The choice between a Plaintiff- or Defendant-Oriented Injunction assumes particular importance in election law cases because these cases tend to be brought on behalf of individual plaintiffs, or sometimes associational plaintiffs (which implicate unique standing problems (19)), rather than as class actions. (20) The goal of most such plaintiffs is not simply to enforce their own rights, but rather to change the underlying rules by which the campaign or election as a whole will be conducted. Likewise, as discussed at greater length below, the issue assumes primary importance for cases at the trial and intermediate appellate levels, where the court's written opinion concerning the validity of the challenged provision will not definitively resolve the issue across the entire state or nation as a matter of stare decisis. (21)

Courts have adopted inconsistent approaches to determining whether to issue Plaintiff- or Defendant-Oriented Injunctions in non-class cases. (22) Indeed, many courts either fail to recognize that they have a choice in the matter, or overlook most of the critical issues that the decision between a Plaintiff-Oriented Injunction and Defendant-Oriented Injunction implicates. Commentators have begun to recognize the importance of this is sue, but have yet to reach a consensus, and have never examined it specifically in the unique context of election law. (23)

This Article contends that the traditional rules governing litigation and the scope of judgments apply equally to constitutional cases, including election law and voting rights cases. Courts should be attentive to such principles to avoid inadvertently or inappropriately providing "overrelief" to plaintiffs in non-class cases, particularly in ways that violate courts' jurisdictional limits or infringe the rights of third parties. While the insights offered in this Article apply to all fields of constitutional and administrative law, this Article will focus primarily on election law and voting rights because those fields are permeated by the deep interplay between individual and collective rights that the choice between Plaintiff- and Defendant-Oriented Injunctions reflects.

Part I of this Article reviews the different approaches that courts have adopted in deciding whether to issue Plaintiff- or Defendant-Oriented Injunctions in "individual-plaintiff" or non-class cases, and the rationales underlying those approaches. This Part also examines the overarching theoretical tensions that give rise to these conflicting approaches.

Part II identifies the various concerns that Defendant-Oriented Injunctions raise. Because a plaintiff's rights generally can be fully enforced through a Plaintiff-Oriented Injunction, individual plaintiffs lack Article III standing to seek broader relief in the form of Defendant-Oriented Injunctions. A Defendant-Oriented Injunction effectively...