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

• Author: Morley, Michael T.
• Position: I. Injunctive Relief in Election Law Cases C. Theoretical Tensions Underlying the Dispute through V. Conclusion, with footnotes, p. 516-556

3. Theoretical Tensions Underlying the Dispute

   Much of the difficulty concerning the choice between Plaintiff-and Defendant-Oriented Injunctions stems from three related dichotomies. The first is between substance and procedure. It is common to say, as a matter of substantive constitutional law, that when a court determines a law is facially invalid, "the state may not enforce it under any circumstances." (136) Likewise, when a statute is held unconstitutional as applied in certain cases, courts and commentators speak as if the government may not enforce it under those circumstances. (137)

   Procedural law, however, tells a very different story. A judgment generally does not apply beyond the immediate parties to a case. (138) Moreover, individual plaintiffs in non-class cases in federal court generally lack Article III standing to seek relief for anyone other than themselves; (139) an injunction awarding relief solely in their favor is sufficient to moot their claims. Completely enjoining a government defendant from enforcing an unconstitutional legal provision effectively converts an individual lawsuit into a class action without satisfying the requirements of Rule (23). (140)

   Allowing individual plaintiffs to obtain injunctions to enforce the rights of others outside the context of class-action litigation also may violate the rights of those third parties not before the court. The plaintiffs are permitted to leverage the rights of third parties over whom the court has not acquired personal jurisdiction, without the consent of those third parties--indeed, often without their knowledge--and without giving them an opportunity to opt out. Government defendants may be enjoined from enforcing a law against people who support the measure, would prefer or even benefit from its enforcement, and would gladly refrain from enforcing their rights against it. When courts grant sweeping injunctive relief against unconstitutional or otherwise invalid measures in individual-plaintiff cases, they generally fail to consider or address these factors. Thus, tension exists between the apparent dictates of substantive law, which contemplates nullification of a legal provision when a court (apparently, any court) determines it is unconstitutional or otherwise invalid, and the procedural, jurisdictional, and related limits of the process through which courts make such determinations.

   A second important dichotomy that exacerbates the difficulty of determining the proper scope of injunctive relief concerns the power of district courts themselves. On the one hand, a court has the power to certify statewide or even nationwide classes and issue injunctions restricting a defendant's behavior anywhere in a state or the nation. (141) On the other hand, most trial and intermediate appellate courts tend to have limited territorial jurisdictions; their legal opinions have no precedential force outside those boundaries. (142) The opinions of most trial courts, including federal district courts, generally lack precedential effect even within their territorial jurisdictions. (143) Moreover, government defendants generally are not subject to non-mutual offensive collateral estoppel. In other words, when a government official or agency loses a case concerning the validity or proper interpretation of a legal provision, it may attempt to relitigate and prevail on the same points against different opponents. (144) Additionally, trial court opinions generally are not even considered in determining whether a government official may be stripped of qualified immunity because the law she allegedly violated was "clearly established." (145)

   A trial court's opinion holding a law unconstitutional or otherwise invalid generally has the legal status of a law review article: the ruling is solely of persuasive value, both within the court's jurisdiction and elsewhere. (146) Thus, the scope of a trial court's power when invalidating a legal provision depends in large part on the type of tool it chooses to use. (147) Allowing a trial court to enter an injunction that sweeps beyond the parties to a given case gives the court's opinion the force of law throughout the state or nation and effectively nullifies government defendants' prerogative to avoid non-mutual offensive collateral estoppel. (148) Issuing a Plaintiff-Oriented Injunction, in contrast, tailors the scope of injunctive relief more closely to the territorial scope of a trial court's other powers.

   The final dichotomy giving rise to these issues lies in the competing roles of the federal judicial system. (149) Most rules governing the judicial process are crafted to facilitate traditional private litigation between parties concerning their respective rights and duties toward each other. (150) Even most litigation against the government is of this nature. In a typical Social Security case, for example, a claimant may challenge the interpretation or validity of a Social Security Administration regulation in order to increase the amount of her own benefits, without regard to whether or how the regulation is enforced against others. (151) Or in a criminal case, a defendant asserting a constitutional defense to a statute generally is focused primarily on avoiding conviction, rather than preventing the statute from being applied to others. (152) The real parties-in-interest in such suits are generally involved as litigants. (153)

   In contrast, many plaintiffs in election-related lawsuits--and especially the nonprofit organizations that coordinate the litigation and represent the plaintiffs--seek not just to enforce their own rights, but to completely invalidate allegedly unconstitutional election regulations to ensure they cannot be applied to anyone. The main focus of the litigation is the overall conduct of the election as a whole. Such plaintiffs often seek broad court orders allowing others to contribute (154) or spend (155) more money in connection with the election; making it easier for others to vote; or increasing the potential (however minimally) for invalid, unauthorized, improperly cast, or fraudulent votes to dilute or nullify the votes of duly qualified and eligible voters. (156) At a minimum, the relief they seek can contribute to, or detract from, the perceived fairness or integrity of the system. (157) Such cases thus resemble the type of public law structural reform litigation discussed by Owen Fiss (158) and Abram Chayes. (159) Courts that view their role to be the defense of public values and constitutional principles, rather than simply the adjudication of private disputes, will strongly prefer Defendant-Oriented Injunctions. (160)

   Broad Defendant-Oriented Injunctions flow naturally from substantive constitutional or administrative law: when a legal provision is invalid, many courts feel compelled to prevent it from being applied to anyone. (161) They are empowered to do so by their authority to enter broad nationwide injunctions, and such relief is consistent with the Fiss-Chayes conception of courts as guarantors of public values and constitutional principles. Narrower Plaintiff-Oriented Injunctions, in contrast, flow from the procedural and jurisdictional limitations to which courts are generally subject: they may award relief only to plaintiffs with standing, their powers are constrained by Rule 23, their opinions have the force of law only within a limited geographic region, and their main focus is on resolving a particular dispute and enforcing the rights of the litigants before them. Both of these visions of the federal judiciary are compelling for different reasons and can claim strong support, making the choice between Plaintiff- and Defendant-Oriented Injunctions that much more difficult.

   2. THE PROBLEMS WITH DEFENDANT-ORIENTED INJUNCTIONS

   Individual plaintiffs who challenge the validity of legal provisions often seek Defendant-Oriented Injunctions completely prohibiting their enforcement, rather than Plaintiff-Oriented Injunctions that only bar the defendants from applying those provisions to the plaintiffs themselves. As discussed above, courts often are receptive to such requests. (162) An invalid legal provision often applies in the same way to many people, and suffers from the same deficiency in most or all of those cases. In the words of Richard Nagareda, individual challenges to such provisions frequently involve "embedded aggregation," (163) because the court's reasoning would apply equally to numerous people beyond just the plaintiff.

   Another reason that Defendant-Oriented Injunctions appeal to many courts is that a Plaintiff-Oriented Injunction grants special legal protections only to the plaintiffs in the case. Alexandra Lahav explains that "[p]rocess equality ... entitle[s] similarly situated individuals to similar outcomes and, as a corollary, reject[s] any process that results in unequal treatment of similarly situated litigants without explanation, because such a process appears arbitrary." (164) With a Plaintiff-Oriented Injunction, the individual plaintiffs who brought the suit are protected from the unconstitutional provision, but the government remains free to apply it to other, identically situated people. (165) Leaving some rightholders unprotected also can lead to subsequent lawsuits, needlessly wasting judicial resources to re-litigate the same issues and creating a risk of inconsistent verdicts from different courts. (166)

   On the other hand, issuance of a Defendant-Oriented Injunction in an individual-plaintiff lawsuit effectively turns the matter into a "'de facto class action]],'" (167) typically without addressing the numerous constitutional, procedural, practical, and policy considerations that such relief implicates. First, the plaintiffs usually lack standing to protect the rights of third parties, and particularly the rights of the public as a whole. Second, relatedly, Defendant-Oriented Injunctions may violate the due process rights of...