Priorities USA v. Nessel, 102120 FED6, 20-1931

Docket Nº:20-1931
Opinion Judge:BOGGS, Circuit Judge.
Party Name:Priorities USA; Rise, Inc.; Detroit/Downriver Chapter of the A. Philip Randolph Institute, Plaintiffs-Appellees, v. Dana Nessel, Defendant, Republican National Committee; Michigan Republican Party, Intervenors, Michigan Senate; Michigan House of Representatives, Intervenors-Appellants.
Attorney:Patrick G. Seyferth, Michael K. Steinberger, BUSH SEYFERTH PLLC, Troy, Michigan, for Appellants. 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, Michi...
Judge Panel:BOGGS, J., delivered the order of the court in which COOK, J., joined. COLE, C.J. (pp. 13-19), delivered a separate dissenting opinion. Before: COLE, Chief Judge; and BOGGS and COOK, Circuit Judges. COLE, Chief Judge, dissenting.
Case Date:October 21, 2020
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Priorities USA; Rise, Inc.; Detroit/Downriver Chapter of the A. Philip Randolph Institute, Plaintiffs-Appellees,

v.

Dana Nessel, Defendant,

Republican National Committee; Michigan Republican Party, Intervenors,

Michigan Senate; Michigan House of Representatives, Intervenors-Appellants.

No. 20-1931

United States Court of Appeals, Sixth Circuit

October 21, 2020

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.

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.

Before: COLE, Chief Judge; and BOGGS and COOK, Circuit Judges.

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 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 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 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,...

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