Common Cause Rhode Island v. RI Republic Party ( 2020 )

United States Court of Appeals
For the First Circuit
No. 20-1753
COMMON CAUSE RHODE ISLAND; LEAGUE OF WOMEN VOTERS OF RHODE
ISLAND; MIRANDA OAKLEY; BARBARA MONAHAN; MARY BAKER,
Plaintiffs, Appellees,
v.
NELLIE GORBEA, in her official capacity as Secretary of State of
Rhode Island; DIANE C. MEDEROS, in her official capacities as
member of the Rhode Island Board of Elections; JENNIFER L.
JOHNSON, in her official capacities as member of the Rhode
Island Board of Elections; ISADORE S. RAMOS, in his official
capacities as member of the Rhode Island Board of Elections;
LOUIS A. DIMONE, JR., in his official capacities as member of
the Rhode Island Board of Elections; WILLIAM E. WEST, in his
official capacities as member of the Rhode Island Board of
Elections; RICHARD H. PIERCE, in his official capacities as
member of the Rhode Island Board of Elections; DAVID H. SOLES,
in his official capacities as member of the Rhode Island Board
of Elections,
Defendants, Appellees,
REPUBLICAN NATIONAL COMMITTEE; REPUBLICAN PARTY OF RHODE ISLAND,
Movants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary S. McElroy, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Michael Courtney Keats, with whom Christopher H. Bell,
Nicholas Carre, Avani Uppalapati, Jonathan Diaz, Fried Frank
Harris Shriver & Jacobson LLP, Julie A. Ebenstein, Dale E. Ho,
American Civil Liberties Union Foundation, Inc., Lynette J.
Labinger, American Civil Liberties Union Foundation of Rhode
Island, Jonathan Diaz, Danielle Lang, Paul March Smith, and
Campaign Legal Center were on brief, for appellees Common Cause
Rhode Island, League of Women Voters of Rhode Island, Miranda
Oakley, Barbara Monahan, and Mary Baker.
Angel Taveras, with whom Gustavo Ribeiro, Elliot H. Scherker,
and Greenberg Traurig LLP were on brief, for appellee Nellie M.
Gorbea.
Raymond A. Marcaccio, with whom Oliverio & Marcaccio LLP was
on brief, for appellees Diane C. Mederos, Jennifer L. Johnson,
Isadore S. Ramos, Louis A. DeSimone, Jr., William E. West, Richard
H. Pierce, and David H. Sholes.
Cameron Thomas Norris, with whom Thomas R. McCarthy, Patrick
N. Strawbridge, Consovoy McCarthy PLLC, Brandon S. Bell, Fontaine
Bell, Joseph S. Larisa, Jr. were on brief, for appellants
Republican National Committee and Republican Party of Rhode
Island.
August 7, 2020
Per curiam. In an action brought by Common Cause Rhode
Island, the League of Women Voters of Rhode Island, and three
individual Rhode Island voters against the Rhode Island Secretary
of State and members of its Board of Elections, the district court
denied a motion to intervene filed by the Republican National
Committee and the Republican Party of Rhode Island (jointly
referred to here as the "Republicans"). Following briefing and a
hearing at which the court nevertheless let the Republicans
participate more or less as if they had been allowed to intervene,
the court entered on July 30 a consent judgment and decree.
Effective for the September and November 2020 elections, the decree
suspended the state's requirements that a voter using a mail ballot
mark the ballot (and sign its envelope) in the presence of two
witnesses or a notary; and that the witnesses or notary, in turn,
sign the envelope, provide their addresses, and affirm in the space
provided that "Before me . . . personally appeared the above named
voter, to me known and known by me to be the person who affixed
his or her signature to this ballot envelope." See R.I. Gen. Laws
§§ 17-20-2.1(d)(1), 17-20-2.1(d)(4), 17-20-2.2(d)(1), 17-20-
2.2(d)(4), 17-20-21 and 17-20-23(c).
The Republicans promptly appealed the denial of their
motion to intervene and the entry of the consent judgment and
decree. They also filed a motion to intervene to appeal and to
stay the district court's judgment and decree pending a decision
- 3 -
on the merits of the appeal. After receiving expedited briefing
and hearing oral argument on the motion to intervene and stay, we
now reverse the denial of the motion to intervene for the purposes
of appeal only (we otherwise refrain from deciding the full scope
of intervention until we review this case on its merits).
We deny the Republicans' motion to stay the judgment and decree
pending the outcome of the appeal.
In reviewing a motion to stay a consent judgment and
decree pending appeal, we consider the following factors: "(1)
[W]hether the stay applicant has made a strong showing that it is
likely to succeed on the merits, (2) whether the applicant will be
irreparably injured absent a stay, (3) whether [the] issuance of
the stay will substantially injure the other parties interested in
the proceeding, and (4) where the public interest lies." Nken v.
Holder, 556 U.S. 418, 426 (2009) (quoting Hilton v. Braunskill,
481 U.S. 770, 776 (1987)). The first two factors "are the most
critical." Id. at 434. "It is not enough that the chance of
success on the merits be better than negligible. . . . By the same
token, simply showing some possibility of irreparable injury fails
to satisfy the second factor." Id. at 434–35 (citations and
internal quotation marks omitted).
The parties agree that, at least in the first instance,
the likelihood of success turns in great part on whether enforcing
the two-witness or notary requirement in the midst of the pandemic
- 4 -
is constitutional. The First and Fourteenth Amendments prohibit
states from placing burdens on citizens' rights to vote that are
not reasonably justified by states' "important regulatory
interests." Anderson v. Celebrezze, 460 U.S. 780, 788–89 (1983);
see also Burdick v. Takushi, 504 U.S. 428, 430 (1992) (ruling that
Hawaii's prohibition of write-in voting did not unreasonably
burden Hawaii citizens' constitutional rights). So under the
Anderson-Burdick framework we weigh the "character and magnitude
of the asserted injury to" the voters' rights against the "precise
interests put forward by the State as justifications for the burden
imposed." Anderson, 460 U.S. at 789. We note as preliminary
matters first that the burdens imposed in this case may affect
more fundamental rights than those at issue in Anderson and Burdick
-- that is, they affect the voter's ability to actually cast a
ballot, not just the procedures for getting candidates on a ballot.
And second, unlike the process contemplated by the Court in
Anderson, we are unable to consider the "justifications put forward
by the State" here, as the "State" of Rhode Island has not objected
to the consent decree in any way.
The burden imposed by these requirements in the midst of
a pandemic is significant. First, many more voters are likely to
want to vote without going to the polls and will thus only vote if
they can vote by mail. Second, many voters may be deterred by the
fear of contagion from interacting with witnesses or a notary.
- 5 -
Could a determined and resourceful voter intent on voting manage
to work around these impediments? Certainly.1 But it is also
certain that the burdens are much more unusual and substantial
than those that voters are generally expected to bear. Taking an
unusual and in fact unnecessary chance with your life is a heavy
burden to bear simply to vote.
Turning to the other side of the Anderson-Burdick
scales, we agree with the Republicans that, in the abstract, the
broader regulatory interest -- preventing voting fraud and
enhancing the perceived integrity of elections -- is substantial
and important. But the incremental interest in the specific
regulation at issue (the two-witness or notary rule) is marginal
at best. Only two other states have such a rule, and only a total
of twelve require even one witness. In the current COVID-19
pandemic, Rhode Island may be the lone state where the election
laws still facially require the voter to mark his or her ballot
(as well as sign the envelope) before two witnesses or a notary.
Cf. Ala. Code § 17-11-10(b); N.C. Gen. Stat. Ann. § 163-231(a)(1);
N.C. Session Law 2020-17 § 1.(a) (reducing North Carolina's two-
witness requirement to one witness for the 2020 elections).
1 For example, counsel for the Republicans suggested at
argument that senior voters, facing a higher risk of COVID-19
complications, could ask food delivery drivers to act as witnesses.
Of course, this suggestion would require that another witness be
available simultaneously with the food delivery driver, and that
the food delivery driver be able to certify the voter's identity.
- 6 -
Moreover, Rhode Island just successfully completed an election
without the two-witness or notary requirement in which over 150,000
mail-in ballots were requested and no evidence of fraud resulted,
much less material evidence of the type of fraud that could be
prevented by the two-witness or notary requirement in the first
place. So the state itself views the rule as -- at best -- required
in only some elections, with no coherent view (that we have heard)
about which elections those might be. And Rhode Island officials
charged with the conduct of fair elections apparently view the
regulation's possible benefits as far outweighed by its burdens in
this unusual circumstance. Indeed, no Rhode Island official has
stepped forward in these proceedings, even as amicus, to tout the
need for the rule. This silence certainly does not mean that the
rule is not current Rhode Island law. But it does fairly support
the view that the rule is not of great import for any particular
regulatory purpose in the eyes of Rhode Island officials and
lawmakers.
The Republicans also struggle to establish any
significant likelihood of irreparable harm. They claim that their
candidates may be the victims of fraudulent ballots. This is
surely correct as a matter of theory. But it is dubious as a
matter of fact and reality. It is not as if no protections remain.
Rhode Island law provides for a local board of canvassers which
ensures that the signature on all mail ballot applications (which
- 7 -
must be signed by the voter) matches the signature on the voter's
registration card. R.I. Gen. Laws. § 17-20-10. Once a voter
submits their ballot, the Board of Elections "[c]ompare[s] the
name, residence, and signature [on the ballot] with the name,
residence, and signature on the ballot application for mail ballots
and satisf[ies] itself that both signatures are identical." R.I.
Gen. Laws. § 17-20-26 (c)(2).2
Given the Nken standard, and given the deference
accorded to a district court's exercise of its equitable
discretion, Purcell v. Gonzalez, 549 U.S. 1, 5 (2006) (per curiam)
(explaining that it is "necessary, as a procedural matter, for the
Court of Appeals to give deference to the discretion of the
District Court"), the foregoing would normally doom the
Republicans' motion for a stay. The Supreme Court, however, has
offered a special caution about the perils of federal courts
changing the rules on the eve of an election. Republican Nat'l
Comm. v. Democratic Nat'l Comm., 140 S. Ct. 1205, 1207 (2020)
("This Court has repeatedly emphasized that lower federal courts
should ordinarily not alter the election rules on the eve of an
2 The Republicans also argue that they will suffer irreparable
harm without a stay because allowing the elections to move forward
per the consent decree will effectively moot their challenge to
it. Without passing on whether this alleged harm is an appropriate
one to consider for the purposes of irreparable
injury, see Providence Journal Co. v. F.B.I., 595 F.2d 889, 890
(1st Cir. 1979), we note that the appellees would face precisely
the same harm if we were to grant the stay.
- 8 -
election." (citing Purcell, 549 U.S. at 4–5 ("Court orders
affecting elections, especially conflicting orders, can themselves
result in voter confusion and consequent incentive to remain away
from the polls."))). Given those admonishments we would be
inclined to grant the stay requested -- especially as to the
September primaries -- but for two unique factors in this case.
First, even in the wake of this much-publicized
litigation, Rhode Island itself has voiced no concern at all that
the consent judgment and decree will create any problems for the
state or its voter. To the contrary, the elected constitutional
officers charged with ensuring free and fair elections favor the
consent judgment and decree and credibly explain how setting aside
the consent judgment and decree would confuse voters. Nor has any
other Rhode Island government entity sought to intervene or make
its opinion known. This fact materially distinguishes this case
from every other case the Republicans cite to illustrate the
"Purcell principle." See Republican Nat'l Comm., 140 S. Ct. at
1205 (Wisconsin legislature joining with the Republican National
Committee to challenge the district court's order); Purcell, 549
U.S. at 2 (State of Arizona and four counties seeking relief from
a Ninth Circuit injunction); People First of Ala. v. Sec. of State
for Ala., 2020 WL 3478093, at *1 (11th Cir. June 25, 2020) (State
of Alabama and Alabama Secretary of State seeking stay of district
court injunction), rev'd 2020 WL 3604049, at *1 (U.S. July 2, 2020)
- 9 -
(staying the district court's preliminary injunction pending
appeal); League of Women Voters of N.C. v. North Carolina, 769
F.3d 224, 248 (4th Cir. 2014) (ordering the district court to enter
a preliminary injunction challenged by the State of North Carolina
and members of its Board of Elections enjoining legislation setting
forth new voting rules), stayed at 574 U.S. 927 (2014); Ohio State
Conf. of N.A.A.C.P. v. Husted, 768 F.3d 524, 561 (6th Cir. 2014)
(affirming district court injunction enjoining the Ohio Secretary
of State from preventing individual counties from setting
additional voting hours, challenged by Secretary of State and Ohio
Attorney General), stayed at 573 U.S. 988 (2014); Perry v. Perez,
835 F. Supp. 2d 209 (W.D. Tex. 2011) (adopting an interim
redistricting plan against the objections of the state of Texas),
stayed at 565 U.S. 1090 (2011).
Second, Rhode Island just conducted an election without
any attestation requirement, in which 150,000 mail-in ballots were
requested. So the status quo (indeed the only experience) for
most recent voters is that no witnesses are required. Instructions
omitting the two-witness or notary requirement have been on the
state's website since at least mid-July. See Rhode Island
Department of State, Vote from Home with a Mail Ballot,
https://vote.sos.ri.gov/Voter/VotebyMail. And to the extent
certain voters expect the two-witness or notary requirement, we
cannot imagine that it will pose any difficulty not to have to
- 10 -
comply with it. For this reason, the consent judgment and decree
poses no conflict with the sort of expectations that concerned the
court in Purcell and no substantial specter of confusion that might
deter voters from voting. To the contrary, in the absence of the
consent decree, it is likely that many voters will be surprised
when they receive ballots, and far fewer will vote. Perhaps as a
result, the Republicans make no claim that the decree will cause
a decrease in election participation.
Because of the unusual -- indeed in several instances
unique -- characteristics of this case, the Purcell concerns that
would normally support a stay are largely inapplicable, and
arguably militate against it. Moreover, our reliance on Rhode
Island's passive reaction to the litigation precludes our holding
from being relied upon to open any floodgates. To the contrary,
as experience shows, states will be quick to defend election laws
that they see as important and worth keeping, even when they might
burden voting.
We have paid attention, too, to the possibility that
this litigation is collusive, with defendants having agreed to
judgment just days after the suit was filed. A state official
unhappy with the lawful decisions of the state legislature should
not be able to round up an agreeable plaintiff who then uses
collusive litigation to "force" the state to do what the official
wants. Here, though, all other representatives of Rhode Island's
- 11 -
government have gone silent, voicing no objection at all to the
consent judgment and decree. Furthermore, if state officials
fairly conclude, as credibly happened here, that enforcement of a
law is unconstitutional in certain circumstances, one can hardly
fault them for so acknowledging. Indeed, the Secretary of State
and Board of Elections are obligated to enforce Rhode Island's
voting laws, provided those laws are not deemed unconstitutional.
R.I. const. art. III, § 3; R.I. const. art. IV, § 12. 17 R.I. Gen.
Laws §§ 17-7-4, 17-7-5. Notice, too, was given to the attorney
general, who by law is obligated to act as legal advisor for all
state agencies and officers acting in their official capacity and
to defend them against suit, R.I. Gen. Laws § 42-9-6, and who
advised the defendants, herein, throughout the proceedings below.
And it would be odd indeed to say that a plaintiff cannot get
relief from an unconstitutional law merely because the state
official charged with enforcing the law agrees that its application
is unconstitutional. Finally, there is no claim that the details
of the consent decree were not negotiated at arm's length. All in
all, we see no collusion, and counsel for the Republicans expressly
so agreed at argument.
Finally, as to the Republicans' status as intervenors in
this case, the district court's order denying intervention is
reversed in part, only for purposes of appeal, and the motion for
stay pending appeal is denied.
- 12 -