News outlets this month are reporting on a flurry of election-related lawsuits that are pending in the nation’s state and federal courts. The high volume of litigation that awaits resolution in the runup to November’s election is attributable to a number of factors: (1) the predicted tightness of the election, in which there is a realistic possibility that a few thousand votes in a given state could determine the outcome of significant races within the state, as well as the makeup of the national executive and legislative branches; (2) the difficulty in bringing some kinds of lawsuits in federal court at an earlier time because of justiciability hurdles, many of which should be reconsidered in the election-law context; and (3) strategic decisions by some lawyers, who, when challenging certain questionable aspects of election operations, would for partisan reasons prefer not to give lawmakers and election officials time to fix glitches after courts rule but before the election is held.
But on top of these reasons, some pending lawsuits are gumming up the judicial system simply because, unfortunately, some lawyers apparently are just not that good at lawyering. Take, for example, a lawsuit filed this summer (and still sitting in federal district court in Michigan) in which Republican plaintiffs are asserting that Michigan Democratic Governor Gretchen Whitmer (and her Secretary of State) illegally designated several state and federal governmental offices as voter registration agencies (VRAs), that is, facilities where persons can register to vote in federal elections. Under the federal National Voter Registration Act of 1993 (NVRA), a law sometimes known as “motor voter,” each state is required to designate as VRAs all state offices that “provide public assistance” or that provide “State-funded programs primarily engaged in providing services to persons with disabilities.” On top of that, each state is required to designate “other” offices within the state as additional VRAs. These additional offices that states are required to designate are not spelled out with complete specificity in the NVRA, but they “may include . . . public libraries, . . . fishing and hunting license bureaus, government revenue offices, unemployment offices” and “Federal and nongovernmental offices [located in the state], with the agreement of such [Federal or nongovernmental] offices.” Federal offices are told, also in the NVRA, that they “shall, to the greatest extent practicable, cooperate with the States” in hosting VRAs.
The gravamen in the Republican plaintiffs’ complaint is that “[u]nder [the Michigan state constitution], the authority to make such [VRA] designations is held solely by the Legislature,” which exercised this power by passing a statute that gave the governor the ability to provide a list of designated facilities, but that required the governor to make such designations on a specific timeline that Governor Whitmer allegedly violated when she designated “several Federal agencies . . . including the U.S. Department of Veterans Affairs (VA)” as VRAs. The complaint also alleges that the Michigan Secretary of State, without any authority under the Michigan constitution or statutes, unlawfully entered into an agreement with the U.S. Small Business Administration (SBA) to designate it as a VRA. As the complaint puts things: “Because the governor and secretary of state lack authority to make unilateral designations of new VRAs, their designations of VA and SBA offices are ultra vires and unlawful under Michigan law.”
We take no position on whether Whitmer and the Michigan secretary of state complied with Michigan law. We are not authoritative experts on the Michigan constitution or statutes. But neither is the federal district court where the action was filed. And that raises the most fundamental of questions: why is there subject-matter jurisdiction in the federal judiciary for what is clearly a dispute about the meaning of Michigan law?
The plaintiffs have no good answer, and their case should have been promptly―and on the court’s own initiative―dismissed for lack of subject-matter jurisdiction. To be sure, the plaintiffs’ complaint does allege that “because the [governor’s and secretary of state’s] unauthorized actions do not represent lawful designations by the State of Michigan for purposes of . . . the NVRA, the designated VA and SBA offices are not lawfully operating as VRAs under federal law” and (relatedly) that the district court “has subject-matter jurisdiction because this case alleges violations of the NVRA.”
But a party’s mere allegation of a violation of federal law is not enough to confer subject-matter jurisdiction upon a federal court. As the Supreme Court made clear in the 1946 seminal ruling in Bell v. Hood, a case can and should be dismissed at the outset for a lack of jurisdiction (and not simply dismissed thereafter on the merits) “where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction, or where such a claim is wholly insubstantial and frivolous.” We appreciate that the Bell language in this passage is talking about exceptional circumstances, when, lawyers have filed a complaint that simply and obviously cannot be brought in federal court and there is no plausible argument to the contrary. But the Bell exception plainly applies here.
This complaint utterly fails requirements for federal jurisdiction, and thus should have been tossed at the outset. It is true that sometimes a federal law will incorporate state-law norms such that successful assertion of a federal cause of action will require a plaintiff to prove violations of state law. So, for example, under the Federal Torts Claims Act (enacted by Congress, coincidentally enough, in the same year that Bell was decided), a person enjoys a federal cause of action to sue a federal entity in federal court over personal injury, death, or property loss or damage caused by the negligent or wrongful act or omission of an employee of the federal government but only if a private defendant would be liable under the law of the state where the negligent or wrongful act or omission occurred. Thus, to make out a federal claim under the Federal Tort Claims Act, one can (and indeed must) show a violation of state law. In this respect, the FTCA incorporates, or federalizes, the state common law of tort for certain purposes. Another example: the so-called federal Assimilated Crimes Act, which provides that federal criminal law incorporates the state criminal law of the state that surrounds a federal enclave (like a National Park). So if a person does something that would be a crime under the law of the surrounding state, he thereby violates federal law in the federal enclave housed within the state.
But there is absolutely nothing in the text of the NVRA, or in any case the plaintiffs cite, that suggests a state’s violation of its own laws also constitutes a violation of the NVRA. The NVRA places many federal duties on states, but nowhere does it say or suggest that states have a federal statutory duty to comply with their own laws. Plaintiffs try to deflect that fatal fact with a series of rather bizarre arguments. But, as we now explain, throwing a bunch of words on the pages of a brief does not make a frivolous contention plausible.
The plaintiffs first assert that “the NVRA presupposes that States act in accordance with their own laws” insofar as a statutory provision in federal law requires that “each State shall establish procedures [for persons] to register to vote … at [designated] Federal, State, or nongovernmental office[s]. . . .” This argument is frivolous because the procedures that are required in the statute that the plaintiffs cite to relate to the actual registration of voters, not the designation of VRAs. So even if a federal requirement to establish procedures might sometimes include an implicit federal requirement to follow those procedures (itself a complicated question ― for example, the Due Process Clause of the Fourteenth Amendment requires states to have procedures before imposing punishment, but not every violation of every state procedural device would constitute a federal Due Process violation), a federal requirement to establish procedures and methods for actual voting registration (e.g., devising forms to permit people to register in person, by mail, etc.) has nothing to do with procedures for designating VRAs (which the NVRA doesn’t mention at all).
Second, the plaintiffs assert that because the NVRA requires and empowers “states” to designate VRAs, and because the Constitution in Article I, section 4 (the so-called “Elections Clause”) says that the “Times, Places and Manner of Holding [federal] Elections . . . shall be prescribed in each State by the Legislature thereof,” the word “states” in the NVRA must refer to the elected legislatures of the states, and not the governors. So (the argument seems to be) if a governor (like Whitmer) violates the will of her elected legislature, she is disobeying the NVRA. This suggestion is frivolous for two reasons. For starters, if the Constitution’s use in the Elections Clause of “legislature” (rather than “state”) were intended to specify a particular organ of state government (namely, the ordinary, elected, standing legislature), then consistency would require that we interpret Congress’s use of “state” (rather than “legislature”) in the NVRA to mean that Congress did not intend to specify any particular organ of state government. Moreover, even if the NVRA meant (which it did not) to incorporate the meaning of the Elections Clause, the plaintiffs’ argument falls completely flat because the Supreme Court just last year, in Moore v. Harper, made clear that the word “legislature” in the Elections Clause does not require a state to vest federal-election regulatory power in any particular organ of government. Emphatically affirming the 2015 Arizona Legislature v. Arizona Independent Redistricting Commission ruling, Chief Justice John Roberts’s majority opinion in Harper flatly declared: “[A]lthough the Elections Clause expressly refers to the state ‘Legislature,’ it does not preclude a State from vesting congressional redistricting authority in a body other than the elected group of officials who ordinarily exercise lawmaking power” because states “‘retain autonomy to establish their own governmental processes.’” The plaintiffs’ failure to account for or even acknowledge this ruling in Harper is truly shoddy.
Finally, the plaintiffs suggest that when a state (via its executive branch) violates state law, it is no longer acting as a “state” for purposes of the NVRA, and thus is in violation of what the NVRA requires of “states.” This strange reasoning fails for two reasons: first, if Whitmer is no longer the state when she flouts state law in making VRA designations, then how is she violating the NVRA, which imposes obligations only on states and not on private individuals? Second, if the plaintiffs’ suggestion were valid, then every single violation of state law by state actors would violate every federal law that imposes duties on states, and that would convert huge swaths of state law into federal causes of action, requiring that federal courts stick their noses into countless murky questions of state law. The idea that Congress would ever intend such a result is absurd on its face.
Unfortunately, even the state defendants in the Whitmer case haven’t raised the subject-matter-jurisdiction flaw crisply, instead making in their motions to dismiss (implausible) arguments under the Eleventh Amendment and sovereign immunity (which are simply beside the point since the plaintiffs sued individual state officials and sought non-monetary relief).
Given the obvious lack of federal jurisdiction in this case (or at a minimum the obvious failure of plaintiffs to state a viable claim under federal law, such that the exotic supplemental state-law claims have no business remaining in federal court), we are at a loss to explain why the district court has not already acted (the case was filed in July) to dismiss the lawsuit, or why the defendants have chosen to wallow around in arguments about the meaning of Michigan law and other issues that are irrelevant to the most basic requirement for a federal court to hear a dispute.
We assume that lawyers who practice in federal court and the law clerks who work for federal judges have taken the basic law school course in Federal Courts, which (we hope at most law schools) covers foundational cases like Bell. The unfortunate trajectory of this lawsuit suggests, however, that some core lessons were never properly learned or have been forgotten.
