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Rick Pildes @rickpildes.bsky.social · 1d

Here's an analogy. If the government imposes financial costs on you, you have standing. But if the government is beneficent and engages in spending you believe is illegal, it can be difficult to find anyone with standing to challenge.

Rick Pildes @rickpildes.bsky.social · 1d

Marty does not understand what's at stake in this case. Political parties and voters have always had standing to challenge voting rules they allege violate their rights, by BURDENING their right to vote. That's the Crawford case...

Marty Lederman @martylederman.bsky.social · 2d

Materially less speculative--and thus more of a "substantial risk"--that the statute could affect the outcome of at least one election in the state, and therefore it saves the Dems some costs of getting those voters to the polls. Or so said the Court in Crawford (affirming Posner), anyway.

Rick Pildes @rickpildes.bsky.social · 1d

That is a significant change in doctrine. And in my view, that would be a good development.

Rick Pildes @rickpildes.bsky.social · 1d

That will bring about a symmetry. Rules that burden voters could already be challenged; now rules that expand voting will also be capable of advance challenge.
That will mean the general legality under federal law of voting rules can be resolved in advance.

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Rick Pildes @rickpildes.bsky.social · 1d

such as having to show a need to expend resources to comply with the rule, or that there's a risk the rule would disadvantage you.
But the practical effect is going to be that a candidate (and party) will be able to bring federal challenges in advance of an election to rules that expand voting.

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Rick Pildes @rickpildes.bsky.social · 1d

The law sometimes embarrasses itself, but a rule that parties can challenge a rule in a candidate's race but the candidate himself cannot challenge that rule, would be bizarre.
The Court might tie itself in knots linking party/candidate standing to some formalistic "injury"...

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Rick Pildes @rickpildes.bsky.social · 1d

What injury does a political party suffer in advance from rules that do not burden voters' rights? Any doctrine that recognizes standing for parties here has to also recognize standing for candidates.

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Rick Pildes @rickpildes.bsky.social · 1d

The Court has never held that political parties, either, can challenge in advance of an election rules that expand voting opportunities.If you say, as Marty does, the case is no big deal because parties can just sue, you're assuming an answer in advance to the question that's actually at issue....

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Rick Pildes @rickpildes.bsky.social · 1d

These laws do not meet the "severe burden" test of Anderson-Burdick. For standing, a voter would have to argue a new form of vote dilution injury, that my vote as an eligible voter is diluted by counting ballots not legally cast. The Court has not yet accepted that form of voter injury.

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Rick Pildes @rickpildes.bsky.social · 1d

But the issue in cases of the type Bost represents is whether anyone can prospectively challenge laws that EXPAND the rights voters have, if they believe that expansion of voting opportunities is illegal. What injury does a voter, for example, have? ...

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Rick Pildes @rickpildes.bsky.social · 1d

Marty does not understand what's at stake in this case. Political parties and voters have always had standing to challenge voting rules they allege violate their rights, by BURDENING their right to vote. That's the Crawford case...

Marty Lederman @martylederman.bsky.social · 2d

Materially less speculative--and thus more of a "substantial risk"--that the statute could affect the outcome of at least one election in the state, and therefore it saves the Dems some costs of getting those voters to the polls. Or so said the Court in Crawford (affirming Posner), anyway.

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Rick Pildes @rickpildes.bsky.social · 2d

I did not listen to the argument. But if candidates do not have standing, on what basis would parties have standing?

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Rick Pildes @rickpildes.bsky.social · 2d

When legal populists of the right mean legal populists of the left. Today's essay in the NYU Democracy Project from Jonathan Mitchell:
"Judicial Supremacy and American Democracy"
democracyproject.org/posts/judici...

Judicial Supremacy and American Democracy

A broad range of views on democracy to help break the stalemate caused by partisan conflict.

democracyproject.org

Rick Pildes @rickpildes.bsky.social · 2d

"But just as important, the precise basis on which the court concludes he has standing will have significant implications for who can bring election law challenges, and when, for the future of election law litigation in the federal courts."

Rick Pildes @rickpildes.bsky.social · 2d

For those and other reasons, my essay concluded:
"Given the strong institutional imperatives courts face in the election context to settle the rules clearly in advance of the election, the court is likely to find Bost has standing to bring his prospective challenge. ...

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Rick Pildes @rickpildes.bsky.social · 2d

My view is that there are strong systemic interests in having election rules clarified in advance of the election, rather in the midst of a dispute after ballots have been cast. The courts also have an institutional interest in adjudicating these issues in advance.

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Rick Pildes @rickpildes.bsky.social · 2d

The Court heard oral argument today in an important election law standing case. I published in advance an essay on the case in Law 360, which is paywalled.

The question is when candidates for federal office can challenge election laws prospectively. For my view, see next post

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Rick Pildes @rickpildes.bsky.social · 4d

Thanks for this comment, much appreciated.

David Froomkin @dfroomkin.bsky.social · 6d

This essay provides an excellent summary of Rick's important recent work on political fragmentation—which is undermining coherent and effective government across developed democracies. In PR systems, fragmentation occurs inter-party. In PV systems (like ours) fragmentation occurs intra-party.

Rick Pildes @rickpildes.bsky.social · 6d

"Democracies in the Age of Fragmentation," my essay in NYU's Democracy Project series, was published this week. Link here, brief excerpts to follow.

democracyproject.org/posts/democr...

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Rick Pildes @rickpildes.bsky.social · 6d

"And when democracies are unable to do so, alienation and anger can give way to worse (or perhaps already has), including yearnings for strongman leaders who promise they alone can deliver. "

Rick Pildes @rickpildes.bsky.social · 6d

"Much turns on whether it is temporary and contingent or more enduring. Political fragmentation reflects continual democratic dissatisfaction, but perversely, also makes it that much harder for governments to respond effectively to citizens’ demands."

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Rick Pildes @rickpildes.bsky.social · 6d

"For better or worse, the U.S. two-party system, during unified government, makes it easier to overcome fragmentation than in Europe."
Perhaps the political fragmentation we see through much of democratic politics today is a “morbid symptom” of transition to a new form of democratic politics. ..

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Rick Pildes @rickpildes.bsky.social · 6d

"Similar forces have been re-shaping U.S. democracy, though they take different form in our 2-party system. The combined approval of the two parties ...is among the lowest ever recorded. Disdain for traditional political elites is reflected in the appeal of outsiders: Trump, Sanders, Mamdani.

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Rick Pildes @rickpildes.bsky.social · 6d

"Across Europe, the average support for right-wing parties is 13 points higher than for left-wing parties, the largest gap since at least 1990. This new landscape, fertilized by the communications revolution, makes politics more fragmented and turbulent...

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Rick Pildes @rickpildes.bsky.social · 6d

"Those who imagine older voters resistant to change drive support for these parties will be surprised. [Among] young voters... these parties are either the most popular or the second most, with more extreme parties of the left the most popular.

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Rick Pildes @rickpildes.bsky.social · 6d

"As this chart shows, across 27 European countries, these parties in the aggregate now capture similar vote shares as the traditional center-left and center-right parties and coalitions:

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Rick Pildes @rickpildes.bsky.social · 6d

"Alienated from traditional political elites and parties, voters in the proportional-representation systems of Europe have turned to new, more extreme parties on the left and right, including anti-system parties....

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