Priorities USA v. Dana Nessel ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0336p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PRIORITIES USA; RISE, INC.; DETROIT/DOWNRIVER ┐
CHAPTER OF THE A. PHILIP RANDOLPH INSTITUTE, │
Plaintiffs-Appellees, │
│
v. │
> No. 20-1931
│
DANA NESSEL, │
Defendant, │
│
REPUBLICAN NATIONAL COMMITTEE; MICHIGAN │
REPUBLICAN PARTY, │
Intervenors, │
│
MICHIGAN SENATE; MICHIGAN HOUSE OF │
REPRESENTATIVES, │
Intervenors-Appellants. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Flint.
No. 4:19-cv-13341—Stephanie Dawkins Davis, District Judge.
Decided and Filed: October 21, 2020
Before: COLE, Chief Judge; and BOGGS and COOK, Circuit Judges.
_________________
COUNSEL
ON MOTION AND REPLY: Patrick G. Seyferth, Michael K. Steinberger, BUSH SEYFERTH
PLLC, Troy, Michigan, for Appellants. ON RESPONSE: Marc E. Elias, Courtney A. Elgart,
PERKINS COIE LLP, Washington, D.C., Kevin J. Hamilton, PERKINS COIE LLP, Seattle,
Washington, Sarah S. Prescott, SALVATORE PRESCOTT & PORTER, PLLC, Northville,
Michigan, for Appellees. ON BRIEF: Alexandra M. Walsh, WILKINSON WALSH LLP,
Washington, D.C., for Amici Curiae.
BOGGS, J., delivered the order of the court in which COOK, J., joined. COLE, C.J. (pp.
13–19), delivered a separate dissenting opinion.
No. 20-1931 Priorities USA, et al. v. Nessel, et al. Page 2
_________________
ORDER
_________________
BOGGS, Circuit Judge. The district court enjoined Michigan’s enforcement of a state
statute designed as a prophylactic measure against voter fraud. After the state attorney general
declined to challenge the injunction, the two houses of the Michigan Legislature jointly sought
an emergency stay of the injunction from the district court—which denied their motion—and
now from this court. Because the legislature has standing to appeal the order granting the
injunction, the state statute is likely not preempted by federal law, and the balance of equities
weighs in favor of staying the district court’s order, we grant the legislature’s motion.
I. PROCEDURAL SUMMARY
Three voter-advocacy organizations challenged two Michigan election statutes in the
district court, one regulating absentee ballots—not at issue here—and another mandating that no
one “hire a motor vehicle or other conveyance or cause the same to be done, for conveying
voters, other than voters physically unable to walk, to an election.” Mich. Comp. Laws (MCL)
§ 168.931(1)(f), which we denote as the voter-transportation law. While Michigan Attorney
General Dana Nessel was the named defendant in the district court, four other parties moved to
intervene in the case as defendants: both houses of the Michigan Legislature, the Michigan
Republican Party, and the Republican National Committee. All four were granted permissive
intervenor status.
The district court later denied the voter-advocacy organizations’ motion for a preliminary
injunction against enforcement of the absentee-ballot statute but granted their motion to
preliminarily enjoin enforcement of the voter-transportation law. The four intervenors
appealed—the legislative parties in this docket and the Republican-Party parties in Docket No.
20-1940, not currently before us—but Nessel did not. When all four intervenors moved in the
district court for an emergency stay of the injunction pending appeal, Nessel declined to take a
position on the motion. The district court denied the intervenors’ motion for a stay, and the
Michigan House of Representatives and Senate now move this court for an emergency stay of
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the district court’s injunction. The voter-advocacy organizations have responded in opposition,
and we have granted several election-law scholars leave to appear as amici curiae in support of
none of the parties.
II. ANALYSIS
A. Standing
A party seeking to invoke a federal court’s jurisdiction must have standing to do so.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The familiar requirements for standing
from Lujan—a “concrete and particularized” injury that is “actual or imminent”; a “causal
connection between the injury and the conduct complained of,” and a likelihood “that the injury
will be ‘redressed by a favorable decision,’” id. at 560–61—usually describe the requirements
for a plaintiff who seeks to bring a complaint in federal district court. But standing doctrine also
applies to appeals. Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1950–51 (2019).
Although a party may generally intervene in a district court proceeding without showing that it
would have standing, if an adversely affected plaintiff or defendant does not appeal the district
court’s ruling, then the intervenor must satisfy the Lujan requirements to bring an appeal itself.
Id. at 1951. Here, the two houses of the Michigan Legislature claim that the legislature, as an
institution, is injured by the district court’s suspension of enforcement of the voter-transportation
law.
The law of legislative standing touches both the separation of powers and principles of
federalism. As this case shows, there is unfortunately still not a wealth of guiding precedent on
the ability of a state legislature to defend a law when no one else will. Such guidance would be
especially useful to deal with the instances where a single state executive official (and a single
plaintiff and a single trial judge) could nullify the people’s will, as expressed through its
democratically elected legislature, without the possibility of a means of review.
One useful data point we do have is United States v. Windsor, 570 U.S. 744 (2013). In
Windsor, the district court had held (and the Second Circuit had affirmed) that section 3 of the
Defense of Marriage Act, Pub. L. 104-199, 110 Stat. 2419, 2419–20 (1996), was
unconstitutional. 570 U.S. at 754–55. Even before the district court had ruled, however, the
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government had conceded that section 3 was unconstitutional and notified the Speaker of the
U.S. House of Representatives, as required by statute. Id. at 753–54. The Bipartisan
Litigation Advisory Group (BLAG) of the House, a committee consisting of five House
members, voted 3–2 to recommend that the House intervene in the case. Br. on Jurisdiction for
Resp’t the Bipartisan Legal Advisory Group of the U.S. House of Representatives at 5, Windsor,
570 U.S. 744 (2013) (No. 12-307), 2013 WL 701229. The district court granted BLAG leave to
intervene as an interested party. Windsor, 570 U.S. at 754. The government appealed the district
court’s ruling to give Congress the opportunity to defend the statute before the Supreme Court
and “to ‘recogniz[e] the judiciary as the final arbiter of the constitutional claims raised.’” Ibid.
(alteration in original) (quoting the U.S. Attorney General’s message to Congress). And after the
Court granted certiorari, the House voted to authorize BLAG to defend the statute’s
constitutionality in the case. Br. on Jurisdiction at 8.
The Court ultimately held that the United States, despite its agreement with the plaintiff
on the underlying merits, maintained a sufficient interest for standing to appeal because the
district court had ordered it to pay the plaintiff a tax refund. Windsor, 570 U.S. at 757–58.
Without formally reaching the question of BLAG’s standing, the Court allowed BLAG, as an
agent of a single House of Congress, to defend the interests of the United States when the
Executive refused to. See id. at 761. In doing so, the Court underscored that, although allowing
Congress to defend a law in lieu of the Executive should not be a “routine exercise,” to disallow
it altogether would present “grave challenges to the separation of powers”—an Executive, acting
alone, could nullify a legislative enactment without any judicial determination. Id. at 762–63.
Justice Scalia, joined by just two other justices, railed against both the Court’s holding that there
was a case or controversy at all, id. at 778–88 (Scalia, J., dissenting), and the idea that Congress
could have standing to defend laws in its own right, arguing that Congress should instead use its
power of the purse to confront the President directly, not litigate through the courts, id. at 788–
91. But his views did not prevail.
Here, as in Windsor, the State of Michigan is injured in its sovereign capacity by its
inability to enforce its duly enacted statute. The state executive has acceded to the district
court’s injunction of the voter-transportation law and declined to appeal. And, whereas the Court
No. 20-1931 Priorities USA, et al. v. Nessel, et al. Page 5
permitted an agent of just one House of Congress to defend the law in Windsor, both houses of
the Michigan Legislature now act in concert to defend the voter-transportation law. Denying the
legislature standing to defend its own law would allow the state executive to nullify a state
statute without any ultimate judicial determination.
And, although we are not concerned here with the federal separation of powers as the
Court was in Windsor, federalism requires us to respect the separation of powers a state has
adopted for itself. See Tennessee ex rel. Tenn. Gen. Assembly v. U.S. Dep’t of State, 931 F.3d
499, 515 (6th Cir. 2019) (examining Tennessee law to determine whether its legislature was
authorized to speak on behalf of the state). Indeed, Michigan has adopted the same basic
division of legislative, executive, and judicial power as the federal government, indicating the
state has similar interest as the federal government against allowing the executive to nullify a law
unilaterally. Mich. Const. Art. III, § 2 (“No person exercising powers of one branch shall
exercise powers properly belonging to another branch except as expressly provided in this
constitution.”). The appellees point to a Michigan statute stating that the attorney general “shall”
defend the state in court. MCL § 14.28. Of course, the United States has arguably stronger
language in its regulations that “assigned” the Office of the Solicitor General to defend cases
against the United States, 28 C.F.R. § 0.20, but the Office did not really discharge that duty in
Windsor, and the U.S. Supreme Court permitted an agent of one house of Congress to do so.
MCL § 14.28 also says that the attorney general “shall” intervene and appear in a case in which
the state is interested upon request from either house of the legislature. And the Michigan House
and Senate’s appeal here is effectively such a request. Even though state law ultimately controls
who may speak on behalf of the state in court, see Tenn. Gen. Assembly, 931 F.3d at 515 (citing
Bethune-Hill, 139 S. Ct. at 1951–52, Hollingsworth v. Perry, 570 U.S. 693, 712–13 (2013), and
Arizonans for Official English v. Arizona, 520 U.S. 43, 65 (1997)), it is not clear from
Michigan’s statute what happens if its attorney general refuses to defend a case that Michigan
law decrees that she “shall” defend. Looking beyond the statute at least gives some more
guidance.
Michigan assigns to its legislature the responsibility of guarding election integrity. Mich.
Const. Art. II, § 4(2) (“[T]he legislature shall enact laws to . . . preserve the purity of elections, to
No. 20-1931 Priorities USA, et al. v. Nessel, et al. Page 6
preserve the secrecy of the ballot, to guard against abuses of the elective franchise . . . .”).
Michigan’s court of appeals has also recently recognized that the state legislature is “an entity
that certainly has an interest in defending its own work,” finding that the legislature had standing
to “defend[] the constitutionality of several of its statutes, as well as the manner in which future
elections are to be conducted” in Michigan. Mich. All. for Retired Ams. v. Sec’y of State, No.
354993, 2020 WL 6122745, at *3 (Mich. Ct. App. Oct. 16, 2020) (quoting League of Women
Voters of Mich. v. Sec’y of State, 948 N.W.2d 70, 75 n.4 (Mich. 2020) (McCormack, C.J.,
dissenting from denial of motion to reconsider)). Much as the Windsor Court permitted BLAG
(as an agent of the House) to defend the Defense of Marriage Act when the President would not,
Alliance for Retired Americans permitted the legislature to defend one of its laws on appeal
when Michigan’s executive officers “declined to appeal” the decision in the lower court—which
too had allowed the legislature to intervene after “the Executive Branch abdicated its role” in the
case. Ibid. These authorities demonstrate at least that Michigan law authorizes its legislature,
both houses acting in concert, to defend a state election law in court when the attorney general
will not.
Even if the state legislature lacked authority to defend the law on behalf of Michigan in
lieu of the attorney general, the district court’s injunction does the legislature institutional injury
in its own right. As the appellees agree in their brief, we have recognized that a legislature body
suffers an injury sufficient to confer standing if that body’s specific powers are disrupted. See
Tenn. Gen. Assembly, 931 F.3d at 511. While the injunction is in effect, Michigan’s legislature
cannot enact any enforceable laws that even regulate hired voter transportation for federal
elections. And even if the injunction lasts only a relatively brief time, the injury would be no
less severe. Laws governing conduct related to polling places are effective only while polls are
open—election days—and what promises to be a significant election day draws near. The
legislature has lost the ability to regulate that election in a particular way. Because its powers to
regulate elections have been disrupted, the Michigan Legislature has suffered a sufficient injury
for standing.
No. 20-1931 Priorities USA, et al. v. Nessel, et al. Page 7
And once the injury-in-fact is established, Lujan’s two remaining requirements follow
quickly here: the district court’s injunction is certainly the cause of the legislature’s injury, and
we can redress that injury by staying the injunction.
B. Staying the Injunction
Because the district court denied the legislature’s motion for a stay pending appeal, we
may consider that motion now. Fed. R. App. P. 8(a)(2)(A)(ii). We consider the motion de novo
because “we are not reviewing any district court decision or order.” A. Philip Randolph Inst. v.
Husted, 907 F.3d 913, 917 (6th Cir. 2018). To grant a stay, we must be satisfied that the balance
of four factors—the Michigan Legislature’s likelihood of showing that the voter-transportation
law is enforceable, the likelihood and degree of irreparable injury to the legislature if we do not
grant a stay, the prospect that the stay would substantially injure other parties interested in the
proceedings, and the interest of the public in granting the stay—is sufficient to justify a stay.
Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153–54 (6th Cir.
1991).
1. Appellants’ Likelihood of Prevailing on the Merits
The district court found the plaintiffs likely to prevail in showing that the Federal
Election Campaign Act (FECA), as amended, preempts the voter-transportation law. We
disagree.
As first enacted in 1972, 52 U.S.C. § 30143 (formerly 2 U.S.C. § 453) read:
(a) Nothing in this Act shall be deemed to invalidate or make inapplicable any
provision of any State law, except where compliance with such provision of law
would result in a violation of a provision of this Act.
(b) Notwithstanding subsection (a), no provision of State law shall be construed to
prohibit any person from taking any action authorized by this Act or from making
any expenditure (as such term is defined in section 301(f) of this Act) which he
could lawfully make under this Act.
Federal Election Campaign Act of 1971, Pub. L. 92-225, § 403, 86 Stat. 3, 20 (1972). It was
amended in 1974 to read, in its entirety:
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The provisions of this Act, and of rules prescribed under this Act, supersede and
preempt any provision of State law with respect to Federal office.
Federal Election Campaign Amendments Act of 1974, Pub. L. 93-443, § 301, 88 Stat. 1263,
1289 (1974). Since then, it has been amended only once, to create an exception for state or local
parties’ use of funds for office buildings. Bipartisan Campaign Reform Act of 2002, Pub. L.
107-155, § 103(b)(2), 116 Stat. 81, 87–88 (2002).
On the one hand, the statute, as currently written, contains broad preemption language.
If that were all, it might be enough to support the plaintiffs’ argument. It is a bit strange, of
course, that in the nearly 50 years since FECA was enacted, no one has tried to use it to
challenge Michigan’s statute or many other state statutes related to nonmonetary election
expenditures.1 Still, alone, that fact might not move the needle enough to warrant staying the
injunction.
On the other hand, § 30143 also specifies that the “rules prescribed under” the FECA also
preempt state law. The statute contemplates that a court will consider the regulations
promulgated under it. If we turn to those regulations—specifically, 11 C.F.R. § 108.7—the
scope of FECA’s preemption becomes less clear. Subsection (a) basically restates the statute in
equally sweeping language. But immediately afterward, subsection (b) specifies three kinds of
state laws that are preempted. Such a clarification would be wholly unnecessary if (a) truly were
as sweeping as is claimed. And the three types of laws mentioned there are about campaign
finance: the sources of funding and reporting on its collection and distribution. By ejusdem
generis, the kind of state regulations contemplated as preempted likely do not include restrictions
on selling alcohol on election day, treating voters to coffee, and transporting voters to the polls.
Subsection (c) then specifically sets out types of state laws that are not preempted.
By expressly allowing many types of election regulations, subsection (c) contradicts a sweeping
interpretation of subsection (a). And the kinds of state laws that are not preempted occupy some
1For example, local bans on election-day alcohol sales, see, e.g., Ky. Rev. Stat. Ann. § 244.480(3)(a); Ga.
Code Ann. § 3-3-20(b)(2)(B), or state laws cited by state election officials to threaten companies offering free or
discounted coffee to voters, see, e.g., Cal. Elec. Code § 18521; see also Freebies for Voters May Break the Law,
Long Beach Press-Telegram (Nov. 2, 2008), https://www.presstelegram.com/2008/11/02/freebies-for-voters-may-
break-the-law.
No. 20-1931 Priorities USA, et al. v. Nessel, et al. Page 9
of the broad ground left open by subsection (b). In particular, (c)(4) specifically allows state
laws prohibiting “false registration, voting fraud, theft of ballots, and similar offenses” (emphasis
added).
The Michigan statute, enacted in 1895 and prohibiting hiring carriages to take ambulatory
voters to the polls, is assuredly aimed at preventing a kind of voter fraud known as “vote-
hauling.” Vote-hauling can be a classic form of bribery—paying a voter to “haul” himself or
herself (and maybe immediate or extended family) to the polls to vote. It is also a usual sink for
election-day “street money” or “walking-around money,” as shown in several Kentucky federal
vote-buying cases. See, e.g., United States v. Adams, 722 F.3d 788 (6th Cir. 2013); United States
v. Turner, No. CRIM. 05-02, 2005 WL 4001132 (E.D. Ky. Dec. 16, 2005). Tracy Campbell, a
professor of history at the University of Kentucky, wrote about vote-hauling in his book about
the history of American election fraud. See Tracy Campbell, Deliver the Vote 276 (2005)
(“While cast as a way to get voters to the polls, it was often little more than an efficient vote-
buying operation that provided ‘walking-around money’ to those willing to sell their votes.”); see
also id. at 279, 337.
Other states have or have had laws forbidding “expenditures” for alcohol on election day
for similar reasons. See, e.g., Ky. Rev. Stat. Ann. § 244.480(3)(a) (authorizing local
governments to ban alcohol sales on election days); Ga. Code Ann. § 3-3-20(b)(2)(B) (same);
Act of June 21, 1954, No. 633, § 1, 1954 La. Acts 1145, 1145 (requiring bars to be closed until
one hour after polls close); Iowa Liquor Control Act, ch. 24, § 18(d)–(e), 1934 Iowa Acts 38, 46
(banning sales and delivery of alcohol on election days). Saloonkeepers often served as poll
officers. Allowing bars to remain open on Election Day created the opportunity for a proprietor-
election official to give alcohol to a voter—in exchange for voting a certain way? One would
never know.
Of course, by raising the potential for fraudulent vote-hauling, we do not cast any
aspersions on the appellee organizations or their motives. Not all vote-hauling payments are
fraudulent, after all. A campaign might in all innocence pay a volunteer for his or her time and
gasoline spent hauling voters to the polls. But a statute can be a prophylactic rule intended to
prevent the potential for fraud where enforcement is otherwise difficult. Michigan’s ban on paid
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voter transportation is one provision among several others in the statute intended to prevent fraud
and undue influence. The statute forbids, for example, paying people for votes.
MCL § 168.931(1)(a). Or threatening to fire workers for not voting a certain way.
MCL § 168.931(1)(d). It also prevents religious leaders from using undue divine influence over
their flocks. MCL § 168.931(1)(e). Moreover, the law was enacted in a way and at a time such
that we can infer no invidious intent on the legislature’s part.
We also make one last point regarding the district court’s analysis of the statute as
originally enacted. Act of May 13, 1895, No. 135, § 13, 1895 Mich. Pub. Acts 264, 267.2 The
court read the 1895 statute to forbid only a quid pro quo—no hiring transportation in exchange
for a vote—and found that the revised, current language was different and therefore had no
connection to fraud or election integrity. (R. 79, Order, PageID# 1617–18.) The court read the
phrase “for the purpose of securing such voter’s vote, support, or attendance at such primary or
convention” to apply to all the types of conduct prohibited by the act: hiring carriages or other
conveyances for voters, soliciting persons to cast unlawful votes at primaries, offering voters
money or a reward, treating or furnishing entertainment to voters, or promising voters a place or
position.
But, as the legislature points out, that reading does not make sense: It would be
redundant to solicit a person to cast an unlawful vote at a primary “for the purpose of securing
such person’s vote, support, or attendance at a primary.” The phrase is better read as modifying
only behavior proscribed after the last “who shall,” preserving the grammatical parallelism.
So no quid pro quo was required to outlaw the paid provision of transportation in 1895. Nor is it
meaningful to this case that the legislature allegedly omitted such a requirement in 1982, when it
replaced “carriage” with “motor vehicle” and inserted the vote-hauling ban into a long list of
2The full text of this provision reads:
Any person who shall hire any carriage or other conveyance, or cause the same to be done, for
conveying voters, other than those physically unable to walk thereto, to any primary conducted
hereunder, or who shall solicit any person to cast an unlawful vote at any primary, or who shall
offer to any voter any money or reward of any kind, or shall treat any voter or furnish any
entertainment to any voter, or shall promise any place or position for the purpose of securing such
voter’s vote, support or attendance at such primary or convention, or shall cause the same to be
done, shall be deemed guilty of a misdemeanor.
No. 20-1931 Priorities USA, et al. v. Nessel, et al. Page 11
other antifraud provisions. Act of July 1, 1982, No. 201, § 1, sec. 931(1)(k), 1982 Mich. Pub.
Acts 574, 578.
2. Balancing the Equities
As described above, the legislature’s likelihood of success on appeal is high. We now
consider the remaining factors relevant to granting a stay. The harm to the legislature without a
stay would be irreparable: November 3, 2020, will only happen once, and the legislature would
lose its ability to regulate paid voter transportation for that election. Although prosecutions for
illicit vote-buying would still be possible, enforcement would be far more difficult, requiring
proof of a quid pro quo. And any vote-hauling fraud that does occur would still have affected
the election itself.
On the other side, the harm to the voter-advocacy organizations appears modest. There
are other ways, without violating Michigan’s statute, to take voters to the polls. Volunteers can
drive voters for free. Generally paid campaign workers—ones who are not specifically paid to
take voters to the polls—may also fall outside the statute’s ban, as might using cars that are
commercially rented for many different campaign purposes, only some of which are to haul
voters. So the organizations’ resources will likely not go to waste. And with the expansion of
mailed ballots in Michigan this year, there are likely fewer voters who need to be driven to the
polls at all.
These injuries also track the public interest, which lies in both fair elections—conducted
with a minimum of fraud—as well as free elections—in which as many eligible voters can vote
as desire to. A stay benefits the public interest more than harms it.3
3We also consider the potential for confusion coming from a change in election rules on the eve of an
election. Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006) (per curiam). But we note—as amici urge—that this
consideration is only one of many and is neither dispositive nor establishes a presumption against enjoining election
rules close to election day. Although the injunction may delight some voters who had hoped to receive paid
transportation to their precinct on November 3, it would not likely result in the voter confusion that Purcell cautions
against or incentivize the electorate not to vote. So this factor does not weigh heavily in our decision to issue a stay.
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III. CONCLUSION
For the reasons above, we GRANT the Michigan Legislature’s emergency motion to stay
the district court’s injunction of the voter-transportation law.
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_________________
DISSENT
_________________
COLE, Chief Judge, dissenting. Today we eschew the constitutional limits of our power
in holding that a state Legislature that suffered no injury may ask us to opine about the validity
of a state law.
I. Standing
Standing is not a one-and-done issue. It must exist at every stage of the litigation
Hollingsworth v. Perry, 570 U.S. 693, 705 (2013). And a party seeking relief must show it has
standing for every form of relief sought. City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983).
“When a private party has a judicial decree safely in hand to prevent his injury, additional
judicial action requires that a party injured by the decree seek to undo it.” United States v.
Windsor, 570 U.S. 744, 784 (2013) (Scalia, J., dissenting). Here, the district court enjoined the
state law and the Michigan Legislature must prove that it was injured by the injunction to obtain
“extraordinary relief” in the form of a stay. Winston–Salem/Forsyth Cnty. Bd. of Educ. v. Scott,
404 U.S. 1221, 1231 (1971).
A legislative body suffers an injury sufficient to confer standing where there is a
“disruption to that body’s specific powers.” Tennessee ex rel. Tenn. Gen. Assembly v. U.S. Dep’t
of State, 931 F.3d 499, 511-12 (6th Cir. 2019). Legislatures have successfully shown
institutional injury where the challenged law interferes with their constitutionally vested powers.
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 800 (2015) (holding
that a claim that a proposition interfered with the Legislature’s constitutionally vested power
over redistricting established standing). But a Legislature cannot make out a case of institutional
standing where the injury instead arises from an “abstract dilution of legislative power.” Tenn.
Gen. Assembly, 931 F.3d at 512 (quoting Raines v. Byrd, 521 U.S. 811, 826 (1997)).
And yet, the Michigan Legislature alleges only an “interest in the enforcement and
constitutionality of the paid-transportation ban.” (Reply at 3.) That is the definition of an
“abstract dilution of legislative power.” Raines, 521 U.S. at 826. At issue here is not the
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Legislature’s power to legislate, but rather the enforcement of one of its laws. No legislative
authority has been usurped, either temporarily or permanently. At this stage of the litigation, the
district court has only preliminarily enjoined the state law, meaning the law will not be enforced
for a short period of time while the court resolves the merits of plaintiffs’ claims. The
preliminary injunction deprives the Legislature of nothing more than the temporary satisfaction
of seeing one of its laws enforced.
And the Legislature has no cognizable interest in the law’s enforcement. That interest
belongs to the Attorney General, whom the State of Michigan tasks with enforcing the laws. The
Attorney General would have standing in this case if she chose to appeal because she is being
ordered to temporarily halt enforcement, a concrete injury to her powers. But unlike the
Attorney General, the Legislature is not being ordered to “do or refrain from doing anything.”
Hollingsworth, 570 U.S. at 705. The preliminary injunction only pauses the law’s enforcement.
To say that a brief pause in enforcement strikes at the core of the Legislature’s constitutionally
vested power strains credulity. Perhaps that is why the Michigan Legislature and the majority
fail to cite a single case where the mere act of enjoining the enforcement of the law causes the
Legislature such injury that it may invoke the judicial power of the United States.
What’s more, finding the Legislature is injured any time a law is not fully enforced,
simply by merit of having passed the law, would represent a sea change in legislative standing
jurisprudence. If the Legislature had such an interest in the constant enforcement of its laws, the
Executive branch would inflict a judicially cognizable injury on the Legislature every time it
declines to enforce a law or enforces a law with less rigor than the Legislature would prefer. See
United States v. Windsor, 570 U.S. 744, 789 n.3 (2013) (Scalia, J., dissenting). A Legislature
could seek an injunction any time the Executive declines to prosecute an offense against its laws.
Surely that is not a coherent standing doctrine.
The Legislature’s interest in the constitutionality of its laws is doubly abstract in this
case. Even if the Legislature were appealing from a final decision on the merits, it would have to
show that invalidating a single law affects legislative power, not just legislative interests. That
alone is a dubious proposition. The Supreme Court explained in Bethune-Hill that “[t]his Court
has never held that a judicial decision invalidating a state law as unconstitutional inflicts a
No. 20-1931 Priorities USA, et al. v. Nessel, et al. Page 15
discrete, cognizable injury on each organ of government that participated in the law’s passage.”
Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1953 (2019). In this case, we are
one step removed from that question because the district court has not even issued a final ruling
on the validity of the state law.
No court has ever extended such a sweeping invitation to Legislatures to call upon the
powers of the courts without suffering an injury. Despite the majority’s suggestion, Windsor
certainly does not resolve this case. Indeed, the majority’s exclusive reliance on Windsor is
surprising given that the Supreme Court expressly declined to decide in that case “whether [the
Legislative representatives] would have standing to challenge the district court’s ruling” on its
own authority. Windsor, 570 U.S. at 761. The Court determined that the initial parties—the
United States and Windsor—still had an active stake to meet Article III’s standing requirements
because the Executive refused to pay the money ordered by the district court. Id. at 757-58
(“Windsor’s ongoing claim for funds that the United States refuses to pay thus establishes a
controversy sufficient for Article III jurisdiction.”). Therefore, the Court did not require the
Congressional representatives in Windsor to establish standing on their own behalf and allowed
them to continue as intervenors. Id. at 761. For Windsor to be even remotely analogous to this
case, the Attorney General would need to remain involved. As such, the Windsor opinion offers
no guidance in the instant case.
The dissenting Justices in Windsor—who disagreed that Article III requirements were
met by the initial parties and had to reach the question of legislative standing—shed better light
on our present dispute. According to Chief Justice Roberts and Justices Scalia and Thomas,
Congress has standing “only to vindicate its own institutional powers to act,” not “to correct a
perceived inadequacy in the execution of its laws.” Id. at 788-89 (Scalia, J., dissenting). Justice
Scalia thus proposes the same rule for legislative standing as proposed here in dissent: Where the
“validity of a mode of congressional action” is challenged, the Legislature has standing to
reassert its “institutional powers.” Id. But a Legislature may not assert a concrete injury every
time one of its laws is not fully enforced. Id.
Finally, a note on the majority’s invocation of federalism. The majority assumes that
because “Michigan has adopted the same basic division of legislative, executive, and judicial
No. 20-1931 Priorities USA, et al. v. Nessel, et al. Page 16
power as the federal government,” that indicates that “the state has similar interest as the federal
government against allowing the executive to nullify a law unilaterally.” Maj. Op. 5. That is a
bold assumption that proves to be unsupported by Michigan’s law. Only a matter of months ago,
the Michigan Court of Appeals considered “whether or not the Senate and House of
Representatives had standing to seek to uphold the constitutionality of a validly enacted [election
law] statute” in light of the Attorney General’s agreement with plaintiffs that the Act was
unconstitutional. League of Women Voters of Mich. v. Sec’y of State, No. 350938, 2020 WL
423319, at *1 (Mich. Ct. App. Jan. 27, 2020). The Michigan Court of Appeals held that “[w]hile
the Legislature asserts that it is the only real party in interest in ensuring that Michigan laws are
enforced and upheld when the Attorney General will not do so . . . we find the legislature’s
position unavailing.” Id. at *6. In other words, the state court explicitly considered and rejected
the fundamental basis of the majority’s opinion. See id. at *7 n.10 (considering and rejecting the
Michigan Legislature’s argument that the opinion “will result in a single member of the
executive branch being able to exercise unchecked veto power over a bill that has already been
passed and enacted into law”).
The Michigan Court of Appeals continued to analyze the Michigan Legislature’s “interest
in upholding the legislation that it has passed,” finding “that injury is not personal or unique to
the Legislature.” Id. at *7. The court explains “[t]his is particularly so, given that once the votes
of the legislators have been counted and the statute enacted, ‘their special interest as lawmakers
has ceased.’” Id. (quoting Killeen v. Wayne Co. Road Comm’n, 357 N.W.2d 851, 855 (1984)).
Finally the court expresses concern that “[t]o accept the Legislature’s argument that it has
standing here would open the door for the Legislature to seek a declaratory judgment whenever
the constitutionality of a statute was challenged.” Id.This leaves the majority’s conclusions on shaky ground, particularly the notion that
“Michigan law authorizes its legislature, both houses acting in concert, to defend a state election
law in court when the attorney general will not.” Maj. Op. 6. Most of all it shows that while the
majority pays lip service to federalism, its opinion actually takes sides in a controversial state
debate. Far from respecting federalism, the majority uses an extraordinary remedy to throw
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federal judicial weight behind one branch of state government against the express disagreement
of the other two branches.
A principled system of jurisprudence cannot treat the injury requirement as malleable
clay, made to bend into whatever shape might be needed to reach the merits. I would stay within
the limits of this court’s constitutional authority and deny the stay for lack of standing.
II. Likelihood of Success
Though I would not reach the merits of this issue, given that the majority has offered its
view of the merits, I offer mine here as well. I conclude that the Legislature would be unlikely to
prevail on the merits because FECA preempts the voter-transportation law and there is doubt
about the law’s constitutionality.
FECA includes an express preemption provision, which states that “the provisions of this
Act, and of rules prescribed under this Act, supersede and preempt any provision of state law
with respect to election to Federal office.” 52 U.S.C. § 30143(a). Notably, the federal law has
broad preemptive scope. It preempts any state law “with respect to election to Federal office.”
Id. And Congress intended to occupy the field of federal election law. The House Committee
drafted the preemption provision “to make certain that the Federal law is construed to occupy the
field with respect to elections to Federal office and that the Federal law will be the sole authority
under which such elections will be regulated.” H.R. Rep. No. 1239-93, 93 at 10 (1974).
To clarify FECA’s broad statement of preemption, the FEC issued regulations that clearly
delineate the kinds of state laws that are and are not preempted. The FEC lists three categories
of state laws that are definitely preempted by FECA. 11 C.F.R. § 108.7(b).1 As relevant here,
FEC regulations state that “Federal law supersedes State law concerning the . . . [l]imitation on
1Under the majority’s reading, these subsections of the regulation narrow the scope of FECA’s broad
preemption provision. Maj. Op. 8. But the FEC may only clarify, not alter or narrow, express statutory language.
A more natural reading (and a reading that keeps the FEC within its regulatory authority) is that subsections (b) and
(c) clarify, by way of concrete examples, which state laws are definitively covered or excluded by FECA’s
comprehensive scheme. But in no way do FEC regulations change the preemption language drafted by Congress
nor does they absolve our responsibility as a federal court to interpret the statute’s text.
No. 20-1931 Priorities USA, et al. v. Nessel, et al. Page 18
contributions and expenditures regarding Federal candidates and political committees.”
11 C.F.R. § 108.7(b)(3).
The Michigan law limits expenditures regarding Federal candidates. Plaintiffs, a Super
PAC and two other non-profits, believe that encouraging voter turnout would help their
candidates of choice and want to spend their money to transport voters to the polls. But
Michigan law prevents organizations from spending money to support federal candidates if that
money goes to pay for transportation. The law definitionally limits expenditures, which are
defined broadly as “anything of value” provided to “any [] person in connection with any
election to” federal office. 11 C.F.R. § 114(a)(1). The Michigan law effectively sets a spending
limit of $0 on transporting voters to the polls. This directly contravenes federal law which
precludes states from placing limitations on expenditures regarding federal candidates.
11 C.F.R. § 108.7(b)(3).
Finally, federal preemption becomes even clearer when we look to other FEC regulations.
FECA allows corporations and unions to “provid[e] transportation to the polls.” 11 C.F.R.
§ 114.4(d)(1). Regulations note that “providing transportation to the polls” is an expenditure that
is regulated by FECA unless it is conducted in accordance with paragraphs (d)(2)(i)-(v). Id.These provisions require, among other things, that the organization make rides available
regardless of support for particular candidates.
These regulations demonstrate two things. First, as an interpretive matter, providing
transportation to the polls is generally considered an expenditure. Congress and the FEC
evidently thought that providing transportation was a contribution or expenditure because they
developed detailed rules to exempt corporations and labor organizations from federal laws
governing contributions. Second, as a preemption matter, FECA and subsequent regulations
govern providing transportation to the polls and supersede contrary laws like Michigan’s.
Perhaps this analysis clarifies why it is no great mystery that other laws such as “local
bans on election-day alcohol sales” have not been challenged. Maj. Op. 8 n.1. Buying alcohol
on election day is not an expenditure regarding a federal candidate. The bright line rule is clear:
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If a person makes a contribution or expenditure in support of a federal candidate, those
expenditures are covered by FECA.
I now turn to address the majority’s contention that the voter-transportation law falls
within the carve-out for state laws that provide for the “[p]rohibition of false registration, voting
fraud, theft of ballots, and similar offenses.” 11 C.F.R. § 108.7(b)(3). The majority finds that
the voter-transportation law is a similar offense. But paying for rides to the polls is not in any
sense similar to theft of ballots or voter fraud unless the similarity is defined at such a level of
generality as to allow the exception to swallow the rule. Apart from the majority’s speculation
that [t]he Michigan statute “is assuredly aimed at preventing a kind of voter fraud,” there is no
actual evidence that the law has any fraud-prevention purpose. Maj. Op. 9.
The majority points to the fact that the voter-transportation law is “one provision among
several others in the statute intended to prevent fraud and undue influence.” The voter-
transportation law is found in Act 116 which consolidates all Michigan election laws under
section 931. That section lists all “prohibited conduct” that qualifies as a misdemeanor. MCL
§ 168.931. It is unsurprising that Michigan also prohibits bribing voters. The majority’s
argument can hardly be that because both acts are prohibited during elections, thus codified in
the same section on prohibited conduct, both must be fraudulent.
Without any evidence of an anti-fraud purpose, we would need to conclude that voter-
transportation fundamentally promotes voter fraud. This proposition beggars belief given that
the activity is expressly permitted under FECA regulations and allowed in 49 other states. The
majority’s invocation of vote-hauling is unpersuasive. Plaintiffs want to rent buses to help
people get to the polls; companies like Uber want to provide discounted rides to the polls in
Michigan as they have in every other state. These prohibited activities are a far cry from the
majority’s specter of vote-hauling.
I think it important to note that the majority does not mention plaintiffs’ constitutional
argument. Had they reached the issue, they may well have decided that the stay should be
denied. Instead, without spending a single sentence on the merits of the constitutional issue, the
No. 20-1931 Priorities USA, et al. v. Nessel, et al. Page 20
majority grants a stay, reimplementing a potentially unconstitutional law days before the
election.
I therefore respectfully dissent.