ICYMI: Even in Election Law Cases, a Plaintiff is Necessary

Tuesday, the Sixth Circuit decided that a district judge erred in ordering the polls to be kept open an additional hour for the Ohio primary:

A three-judge panel of the U.S. Sixth Circuit Court of Appeals agreed that the federal district judge in Cincinnati erred in ordering Hamilton, Butler, Clermont, and Warren counties to keep the polls open an extra hour because of an anonymously reported accident on I-275. 

Although today’s ruling has no retroactive effect on the election, Secretary of State Jon Husted and the boards of election in Hamilton and Butler counties filed the appeal of U.S. District Court Judge Susan J. Dlott’s order to prevent similar action in the future. . . . The anonymous call came in shortly before the polls closed at 7:30 p.m. The polls had indeed closed by and the affected polling places had to scramble to reopen by the time Deputy Secretary of State Matt Damschroder could respond to a 7:28 p.m. voicemail from the district court clerk. 

Judge Jeffrey Sutton wrote the opinion, finding that because there was no plaintiff to make a proper complaint, and thus no case or controversy to give the court jurisdiction, the judge could not act (internal citations omitted):

One elemental precondition for acting is a “case[]” or “controvers[y].” And one elemental precondition for meeting the case-or-controversy requirement is a claimant with standing. There is no plaintiff with standing if there is no plaintiff. . . . To permit plaintiff-less complaints is to permit the federal courts to issue advisory opinions and non-advisory orders in all manner of circumstances prompted by all manner of anonymous phone callers. . . .

Nor is it enough just to have an identified individual claimant. A complaint must link the claimant to the entities or individuals being asked to do something. In this instance, that meant the district court at a minimum needed four plaintiffs, one registered to vote in each of the four covered counties but who had not yet voted. Otherwise, there was no concrete and redressable injury, no case or controversy, and no authority to order the relevant election board to do anything. 

Plaintiff-less complaints are no less problematic when the court denies relief on the merits. How will the court inform an anonymous plaintiff of the order? How will the caller know whether or when to appeal? One question leads to another. And the answers to all of them counsel in favor of standing by the Article III requirements that establish when federal courts have power to act and when they don’t. . . .

The district court judge, we realize, was in a difficult spot. She was out of the office. It was late. She had little time to act. All of this presumably led her to err on the side of protecting people’s right to vote. But none of this explains why the clerk’s office or the court couldn’t answer the phone call with the most natural of questions: “Who is it?” And none of this allowed the court to sidestep the Article III limitations on our power. 

A decision whether and when to extend polling hours in the event of some unexpected catastrophe is always difficult, but the Sixth Circuit wisely recognized that courts must act within the confines of their power and role, especially when deciding important issues of election administration that affect citizens' right to vote.