DEMOCRATIC PARTY OF WISCONSIN, et al., Plaintiffs-Appellants, v. ROBIN VOS, et al., Defendants-Appellees.
No. 19-3138
United States Court of Appeals For the Seventh Circuit
July 16, 2020
Appeal from the United States District Court for the Western District of Wisconsin.
No. 19 C 142 — James D. Peterson, Chief Judge.
ARGUED MAY 18, 2020 — DECIDED JULY 16, 2020
Before WOOD, BARRETT, and SCUDDER, Circuit Judges.
Dismayed by these measures, the Democratic Party of Wisconsin (“Party”) and several of its individual members brought suit in federal court under
I
The plaintiffs based the district court‘s subject-matter jurisdiction on
We assess de novo the district court‘s grant of a motion to dismiss for lack of subject-matter jurisdiction, “taking the facts alleged in the complaint as true and drawing reasonable inferences in [the nonmovant‘s] favor.” Miller v. Fed. Deposit Ins. Corp., 738 F.3d 836, 840 (7th Cir. 2013). We may affirm a dismissal for lack of subject matter jurisdiction on any ground supported by the record. Fuqua v. United States Postal Serv., 956 F.3d 961, 964 (7th Cir. 2020).
II
As we noted, the plaintiffs raise three claims: first, one based on their First Amendment rights to freedom of expression and freedom of association; second,
A
Before a plaintiff may invoke the federal courts’ judicial power,
As the district court pointed out, “Acts 369 and 370 do not restrict or regulate plaintiffs’ conduct in any way.” Rather, the Acts reduce the power of the governor and the attorney general, who were initially named as defendants in the action and never formally re-designated as plaintiffs. “[W]hen the plaintiff is not himself the object of the government action ... [that] he challenges, standing is not precluded, but it is ordinarily substantially more difficult to establish.” Lujan, 504 U.S. at 562 (internal quotation marks omitted).
The plaintiffs here seek to base their standing on “constitutional provisions that protect their voting rights.” They contend that the legislature‘s passage of Acts 369 and 370 violated their First Amendment right to participate effectively in the political process and degraded the effectiveness of the votes cast by supporters of the Democratic Party, in violation of the Equal Protection Clause. Those people voted for Governor Evers and Attorney General Kaul with the understanding that the winners in the election would be vested with certain powers upon taking office; the result of the Acts is that the plaintiffs did not get what they believe they were entitled to. They refer to this as “vote dilution.” But this is an unprecedented application of the familiar vote-dilution theory, and one that we cannot accept.
The plaintiffs attempt to marshal major voting-rights precedents in support of their claims, but all are inapposite. Baker v. Carr, 369 U.S. 186 (1962), and Reynolds v. Sims, 377 U.S. 533 (1964), addressed vote dilution that arose through state legislative apportionment that did not reflect the actual population distribution of the state. Anderson v. Celebrezze, 460 U.S. 780 (1983), decided the constitutionality of ballot-eligibility restrictions on candidates. Meyer v. Grant, 486 U.S. 414 (1988), concerned First Amendment rights to circulate and sign petitions. California Democratic Party v. Jones, 530 U.S. 567 (2000), considered the type of primary election a state runs (i.e., closed versus blanket) and the implications that choice had for voters and
All these cases are about the legality and fairness of the process of raising issues, nominating candidates, and voting for those candidates. None raises the type of concern that is at the heart of this case: whether elected officials are able to achieve the substantive policy outcomes their constituents expect or desire. In fact, the Supreme Court recently signaled that disputes of this sort are nonjusticiable. Gill, 138 S. Ct. at 1931 (“[T]he citizen‘s abstract interest in policies adopted by the legislature on the facts here is a nonjusticiable general interest common to all members of the public.” (internal quotation marks omitted)). We see no reason why that observation does not apply with equal force to a citizen‘s abstract interest in the powers and policies of the governor and attorney general conferred by state law.
The individual plaintiffs in this case were able to vote in the 2018 state election for their preferred candidates. There is no allegation that their votes were not counted or were counted differently from those of all other Wisconsin voters. Evers and Kaul won their elections and assumed the offices of governor and attorney general. To that degree, the plaintiffs’ votes were effective. Only after the plaintiffs voted for Evers and Kaul did the legislature (we can assume for partisan reasons) decide to strip those offices of certain powers through Acts 369 and 370. As understandably frustrating as that is, the United States Constitution does not guarantee that state officials will have any particular powers once they assume office; that is the domain of state constitutions and statutes. The United States Constitution guarantees only that each citizen‘s vote will be counted equally.
The partisan motive reflected in the fact that Republican legislators took away the specified powers from the offices of the governor and attorney general only because Democrats won does not save the plaintiffs’ case. The Supreme Court has stated that, standing alone, the partisan intentions of legislators are not constitutionally suspect and that pursuing partisan ends does not violate the rights of people who disagree. See Rucho v. Common Cause, 139 S. Ct. 2484, 2503 (2019) (“A permissible intent—securing partisan advantage—does not become constitutionally impermissible, like racial discrimination, when that permissible intent ‘predominates.’”).
We therefore agree with the district court that the individual plaintiffs have not pleaded a constitutional injury-in-fact and do not have standing under Article III.
B
Next, we turn to the Party‘s standing, both on behalf of its members and in its own right. The Party‘s associational standing claim can be resolved easily: because the Party‘s members do not have standing to sue in their own right, the Party does not have standing to sue on their behalf. See Hunt v. Wash. State Apple Advert. Comm‘n, 432 U.S. 333, 343 (1977).
With respect to its effort to support standing on its own injuries, the Party runs into the same problem as the individual plaintiffs. The Acts do not target the Party nor do they formally restrict the
The Party fares no better with Crawford v. Marion Cnty. Election Bd., 472 F.3d 949 (7th Cir. 2007), and Common Cause Ind. v. Lawson, 937 F.3d 944 (7th Cir. 2019), which concerned voter identification and voter registration laws, respectively. In both those cases, the organizational plaintiffs had an injury sufficient to confer standing because the laws at issue affected their members’ ability to vote and as a consequence forced the organizations to devote resources to counteracting the effects of the laws. There was no such injury here: Acts 369 and 370 were enacted after the election in question and do not address the process of voting or other forms of political mobilization. The named individual plaintiffs were able to, and indeed did, vote for Governor Evers and Attorney General Kaul, and there is no allegation that Wisconsin Democrats will find it more difficult to vote in future elections or elect the candidates of their choice as a result of these laws.
The immediate harm the Party has suffered is psychological: it asserts that it will have a harder time organizing voters and fielding candidates because of concerns that Democrats who win elections will have less power in office than they expect. The Party also expects an added financial burden insofar as it must spend more money to generate enthusiasm among the populace. But mobilizing voters who are discouraged or apathetic, but not actually impeded in their ability to achieve desired electoral outcomes, is “baseline work” for a political party; it is an “ordinary program cost[],” not an “injury in fact.” Common Cause, 937 F.3d at 955.
C
In a final effort to establish standing, the plaintiffs contend that Governor Evers is a de facto plaintiff even though he is named in his official capacity as a defendant. They have some cause for taking this position: Evers asked to be considered as a plaintiff in the pretrial conference report, and he filed a brief in support of the plaintiffs’ preliminary injunction and in opposition to the legislative defendants’ motion to dismiss. But the plaintiffs never moved to dismiss him as a defendant, nor did they formally request realignment. The district court concluded that it could not “realign the parties to preserve standing without a proper motion” and thus declined to treat Evers as a de facto plaintiff.
The plaintiffs argue that this was error, because
It is also notable that the complaint does not allege that either Evers or Kaul suffered First Amendment and Equal Protection violations in their roles as governor and attorney general. It confines itself to the constitutional rights of voters and the Party. Evers remains free to sue on his own behalf if he wants to allege constitutional violations that injure him in his role as governor (as opposed to as a member of the Democratic Party and voter), though we make no prediction about the fate of such an action. See generally Arizona State Legislature v. Arizona Indep. Redistricting Comm‘n, 135 S. Ct. 2652, 2665–66 (2015) (finding that the Arizona Legislature had institutional standing to challenge a redistricting map drawn by an independent commission). No matter: those claims are not present in this suit, and so the plaintiffs cannot establish standing on that basis.
Democratic voters in Wisconsin may have been disheartened by the Republican-controlled legislature‘s gambit, but that frustration is not a federal constitutional injury. As the plaintiffs themselves admit, “[p]olitical parties obviously have no constitutional right to ensure their policy preferences are adopted.” Their recourse is to the voting booth, i.e. winning control of the state legislature (which, if held in the future by members sharing the goals of the Democrats here, could easily undo whatever the lame-duck Republican legislature crafted), or to the state courts, not to the federal courts.
III
Plaintiffs also invoke the Guarantee Clause, to which we now turn.
Plaintiffs argue that this statement in Rucho does not reflect a bright-line rule that Guarantee Clause claims are never justiciable, but rather acknowledges only that the Supreme Court has not yet been presented with a justiciable claim. In support,
We do not interpret Rucho or any other decision by the Supreme Court as having categorically foreclosed all Guarantee Clause claims as nonjusticiable, even though no such claim has yet survived Supreme Court review. The district court thus went too far in saying that no Guarantee Clause claim could proceed to adjudication on the merits. Instead, it should have decided simply whether this particular Guarantee Clause claim is among the rare ones that can survive a motion to dismiss. We conclude that it is not.
Once again, standing poses a problem. See Largess, 373 F.3d at 224 n.5 (“It is of note for purposes of the standing inquiry that the Guarantee Clause makes the guarantee of a republican form of government to the states; the bare language of the Clause does not directly confer any rights on individuals vis-á-vis the states.” (emphasis in original)). Moreover, even if we could surmount the standing problem here, on the theory that state officials stand on a different footing than individuals and could establish the necessary personal stake, causation, and redressability, other obstacles remain.
Our opinion in Risser v. Thompson, 930 F.2d 549 (7th Cir. 1991) is instructive. There, Wisconsin state legislators alleged that the partial veto provision of the Wisconsin Constitution violated the First Amendment, Due Process and Equal Protection, and the Guarantee Clause. We held that the legislators had standing to sue because they alleged that the partial veto diminished the effectiveness of their votes, but we then determined that none of the constitutional claims had merit. With respect to the Guarantee Clause claim, which we noted was nonjusticiable in that case, we commented that the “[t]he [federal] Constitution does not prescribe the balance of power among the branches of state government.” Id. at 552. This observation is not one that is favorable to plaintiffs. Within broad boundaries, state legislatures may enact measures that reallocate power between duly elected branches of state government, at least as far as federal law is concerned.
The legislative defendants here are elected officials, just like the governor and attorney general, but a “modest shift of power among elected officials is not a denial of republican government or even a reduction in the amount of democracy.” Id. at 553. The First Circuit‘s decision in Largess is on point: “The Guarantee clause does not require a particular allocation of power within each state so long as a republican form of government is preserved. ...
IV
One final issue remains: the legislative defendants’ motion for sanctions against the plaintiffs under
Under Rule 38, the court may award “just damages and single or double costs to the appellee” when an appellant files a frivolous appeal.
The legislative defendants contend that it is “obvious” that plaintiffs’ appeal is a “futile” “political statement” and that sanctions are therefore warranted. We do not take such a harsh view of their case. As discussed above, we do not interpret Rucho as having categorically foreclosed the plaintiffs’ Guarantee Clause arguments. Furthermore, although we conclude that the plaintiffs do not have Article III standing to pursue either their own claims or those of Governor Evers, the record reflects that Governor Evers conveyed to the district court, though not in a motion for formal realignment, a desire to be treated as a plaintiff. Thus, the plaintiffs were within the bounds of good-faith argument to assert on appeal that the district court should have taken Governor Evers‘s interests into account in its standing analysis. Their jurisdictional and merits arguments ultimately may have failed, but that does not mean they are so patently frivolous as to be worthy of sanction.
V
Because plaintiffs did not establish their standing under Article III with respect to their First Amendment and Fourteenth Amendment claims, we AFFIRM the judgment of the district court on those points. With respect to the Guarantee Clause claim, although we conclude that it is not categorically foreclosed, we nonetheless AFFIRM the judgment of the district court that this particular claim is nonjusticiable. The defendants-appellees’ motion for sanctions under Rule 38 is DENIED.