Wednesday, March 23, 2016

Tyson Foods, Inc. v. Bouphakeo - Comcast is Dead

The Court decided Tyson Foods, Inc. v. Bouphakeo yesterday, a case about a Fair Labor Standards Act class-action that was supposed to be the death knell for statistical evidence in class actions and classes that included non-injured members.  The Court held that statistical evidence is sometimes okay and didn't reach the question of non-injured members, after Tyson Foods largely abandoned it.  Commentary so far has mostly addressed the holding on statistical evidence.  But the big news from Tyson, I think, is that Comcast Corp. v. Behrend is now dead as meaningful precedent.

In Comcast, an antitrust case, a district court certified a 23(b)(3) class on the unusual premise that predominance of common questions over individual questions can only be shown if damages could be proven on a classwide basis.  It held that one of the plaintiffs' four theories of antitrust impact could prove damages on a classwide basis, held that a particular damages model was up to that task, and certified the class, limiting proof of damages to the one theory.  The plaintiffs were happy to get a class certified at all, and therefore didn't appeal the dubious aspects, from their perspective, of the certification order.  Comcast did appeal, and the Third Circuit affirmed.  The Court, taking the case on the premise that classwide proof of damages was needed for 23(b)(3) certification, and on the factual background of a certification order that made no attempt to bifurcate liability and damages, held that because the damages model really couldn't measure damages on a classwide basis, individual damages questions predominated over common questions.  A Ginsburg/Breyer joint dissent, joined by Sotomayor and Kagan, argued that the Court had taken the case on odd premises, contrary to settled class-action law, and that the Court's assumption of those premises broke no new ground on predominance.

Comcast caused a great deal of confusion, with many courts, including some circuits, agreeing with the dissent that Comcast changed nothing, and others taking Comcast literally when it said that the plaintiffs "could not show 23(b)(3) predominance . . . [because] [q]uestions of individual damage calculations will inevitably overwhelm questions common to the class," and concluding that any class with time-consuming individual damage issues couldn't satisfy 23(b)(3).  (For a very capable and more nuanced account of post-Comcast confusion, see this excellent Chicago Law Review student comment.)  While Comcast's more careful readers generally agreed with the dissent - after all, the Comcast Court was pretty explicit about having taken the case on the premise that the class-defense bar wanted to take for a holding - it was difficult to escape the impression that Comcast's author (Justice Scalia), at least, agreed with that premise.  Otherwise, the Court's emphatic statements about the plaintiffs' inability to show predominance given the overwhelming individual damage calculations would probably have been couched in terms of concessions and unpreserved arguments.  And, given the collapse of the question presented (a Daubert-at-class-certification question that Comcast turned out to have failed to preserve), the Court probably wouldn't have gone ahead to decide a different issue in the petitioner's favor if there wasn't some zeal among the majority for its holding.

Tyson inters the broad reading of Comcast, which is to say, the only meaningful reading of Comcast (apart from the interesting antitrust-specific reading offered in the comment linked to above).  Writing on predominance, Justice Kennedy says this for the Court, quoting from several treatises:

The predominance inquiry “asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues.”  When “one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.”
And so goes the broad reading of Comcast, in an opinion that doesn't even bother to mention Comcast.  Individual damages questions are not an obstacle to 23(b)(3) certification.  In dissent, Justice Thomas points out, for only himself and Justice Alito, that this is contrary to what the Court recently "held" in Comcast, quoting the passage of Comcast quoted above while not grappling with the fact that the substance of what he quotes was uncontested by the Comcast plaintiffs and not briefed or argued in Comcast.  For good measure, he claims that the Court's "treatise citations" were the same ones relied on by the Comcast dissent to argue the Court's assumed premise was wrong.  (The majority has no response to this, or to any of Justice Thomas's dissent, as is usually the case when Justice Kennedy writes for the Court.)  It would be very funny if it were true, but as it turns out, the Court cited the same unexceptionable treatises as the Comcast dissent (Newberg on Class Actions, Wright and Miller), as the Court often does when writing on Rule 23, but not the same sections.

Finally, class-action buffs who've read the late, great Richard Nagareda's brilliant and influential "Class Certification in the Age of Aggregate Proof" in its entirety,* and not just the anti-certification snippets that Wal-Mart v. Dukes made justly famous, will be very happy to see this elegant line from Nagareda, which could have been intended by Nagareda as a corrective to some of the broad misreadings of Wal-Mart had it been written after Wal-Mart was decided (and clearly is intended that way by the Court):
When, as here, “the concern about the proposed class is not that it exhibits some fatal dissimilarity but, rather, a fatal similarity—[an alleged] failure of proof as to an element of the plaintiffs' cause of action—courts should engage that question as a matter of summary judgment, not class certification.”
* See also his masterful "Common Answers for Class Certification," a pithier article  covering much of the same ground that features a remarkably prescient take on Wal-Mart. 

Tuesday, March 22, 2016

Wittman v. Personhuballah - A Standing-Only Recap

The Court heard argument Tuesday in Wittman v. Personhuballah, a racial-gerrymandering case that presents a fascinating threshold question as to whether candidates whose electoral chances are harmed by the remedy to a racial gerrymander have standing to appeal a judgment finding a racial gerrymander, and some less exciting and fairly factbound merits questions about whether a districting scheme confessedly designed, by its drafter, to arrive at a certain racial mix in some districts is a racial gerrymander when goals of incumbency protection and partisanship would likely have led the state legislature to the same place.  I have previously blogged on the standing question.  

Where the Court comes out on the merits, should it reach them, will probably have considerable impact on the viability of the racial-gerrymandering cause of action as a means of challenging Republican partisan gerrymanders that, in the name of the Voting Rights Act, enhance minority voting strength in a few districts to a degree unnecessary to ensure minorities electoral opportunities in compliance with the Voting Rights Act.  Unfortunately for the people bringing these actions, the more natural cause of action, arguing that overzealous Voting Rights Act compliance violates the Voting Rights Act by packing minority voters into a few districts and diluting minority voting strength statewide, is generally foreclosed by recent precedent.

I have nothing predictive to say on the merits, except to make the somewhat sad observation that since the racial-gerrymandering doctrine became a tool of state Democratic parties, the Court's liberals, some of whom have been on the Court long enough to remember dissenting in every leading racial-gerrymandering case and calling for the cause of action's elimination, have become fairly enamored of racial-gerrymandering doctrine, while the Court's conservatives have become fairly skeptical of it.  Most remarkably, Justice Thomas, who once wrote that any intentionally created majority-minority district was presumptively unconstitutional, dissented last term from a decision remanding a challenge to a Republican racial gerrymander for additional fact-finding, on the incoherent ground that Alabama was "not the one that is culpable" for racially gerrymandering Alabama; rather, Alabama's racial gerrymander was the fault of "the DOJ and special interest groups like the ACLU [that] hijacked the [Voting Rights] Act" and told Alabama it had to racially gerrymander.  Rather than invalidate what by his own lights was an unconstitutional racial gerrymander, Justice Thomas would abjure from "whipsawing" Alabama with conflicting legal commands.

Strange bedfellows of the new racial-gerrymandering cases aside, Personhuballah presents important questions about candidate standing and appellate standing - questions which also have a partisan valence on the facts of this case, given the identity of the appealing candidates (the entire Republican congressional delegation of Virginia), but which are more mediated by the legal craft and transsubstantive commitments that go into standing cases.  To briefly recap my last post, the standing question in Personhuballah is whether the Republican congressmen whose districts have received excess black voters from a racially gerrymandered majority-black district that the court below held unconstitutional and reconstructed have standing to appeal, as intervenors, the holding of unconstitutionality and reconstruction, on the ground that their electoral chances have been diminished by their new black constituents.  While appellants' claim of injury sounds rather sordid when put that way, there is no doubt that some Virginian Republican congressmen's political lives have been up-ended by the remedy the three-judge district court imposed; one incumbent of 15 years, Randy Forbes, saw his district become a 60% Democratic district, and has chosen to run for reelection elsewhere.  Besides the relatively context-specific question of candidate standing to challenge disadvantageous districts, the case also presents the broader question of whether judgment losers have appellate standing when the harm the judgment causes isn't necessarily a harm to a legally protected interest (there is no legal right to a good chance at reelection).

Michael Carvin argued for the appellant congressmen.  Questioning was off to a surprisingly standing-free start for a case where the Court requested briefing on standing twice, when Justice Sotomayor asked Carvin why the case wasn't moot when most of his clients weren't really harmed by the district court's remedy and Forbes had chosen to run elsewhere.  Carvin gamely offered a representation that his client would run in his old district if the district court were reversed. Next, Justice Ginsburg asked why a voter in District Y lacks standing under the Court's precedent to challenge District X, but the representative of District Y has standing to appeal a redrawing of District X.  This elicited the very sensible answer that the voter in District Y lacks standing because he is (under the Court's tortured racial-gerrymandering standing precedent) not the victim of the racial discrimination going on in District X, while Mr. Carvin's clients are not asserting Fourteenth Amendment rights, but rather appealing a judgment finding others' Fourteenth Amendment rights were violated, and therefore don't need to be the victims of racial discrimination in District X.

Carvin's answer to Ginsburg's question spanned two pages of uninterrupted transcript and initially elicited a friendly question from the Chief Justice on the standing of congressmen besides Forbes, so it really seemed, early in the argument, as if standing would be a non-issue.  This rapidly changed, as Justice Breyer opened up a lengthy colloquy on whether Carvin's rule would lead to candidate-intervenor standing for any candidate to defend a state's districting plan, and doubted that the few precedents Carvin could marshal in support of his view helped him, and Justice Sotomayor asked a, frankly, confused question on whether Carvin was arguing that any incumbent had a cause of action when his district was changed to his detriment.  (Of course, Carvin's argument disavows any claim of a cause of action on his clients' part; what's at issue here is appellate standing.)  

At long last, Justice Kagan pointed out that the oddity in Carvin's theory is that, while his clients had injury, something she happily conceded, they haven't suffered injury to a legally protected interest of theirs, which the Court's standing precedents appear to require.  Carvin said that a legally protected interest isn't really required in appellate standing, which, as I explained in my last post, I agree with.  (Tellingly, the Solicitor General's cite for the proposition that a legally protected interest is required in appellate standing really says nothing of the sort.)  Justice Kagan said that might be right, but seemed odd.  Justice Kennedy, who didn't appear to really understand that Carvin was arguing that he didn't need a legally recognized interest, asked him what his legally recognized interest was, and suggested it might be "being re-elected without, I don't know, improper interference or something like that?"  (I take this as a distinctly friendly question.)  Justice Alito, much more pointedly, rhetorically asked whether a congressman had a legally cognizable interest in "running in a district that was lawfully enacted by the state legislature."

Next, Stuart Raphael argued for the Virginia Board of Elections.  The Board of Elections thinks Forbes, at least, has standing, but that the judgment below invalidating Virginia's districting plan should be affirmed.  (There was a great deal of mirth on whether Virginia's change in governor had anything to do with that.)  Justice Breyer, again, doubted that Carvin's best precedent, Meese v. Keene, which held that a state senator had standing to challenge a designation of some films he wanted to show as political propaganda because that designation might harm his electoral chances, was anywhere close to controlling. Raphael said Virginia wasn't happy about "officious intermeddlers" defending its districting schemes, but Keene gave them standing; the Chief Justice asked whether it was fair to characterize Forbes as an officious intermeddler when he was defending "the future of his political career that he's had for 16 years."  On that rather sympathetic note for his adversary, Raphael sat down and ceded the lectern to Marc Elias, counsel for the plaintiff-appellees (and general counsel for the Hillary Clinton campaign).

Elias began by addressing standing, which may have been a wise tactical choice given that four of the Court's eight Justices had some clear interest in his argument, but ran him into a predictable buzzsaw on the conservative side of the bench.  Justice Alito, perturbed by Virginia's refusal to defend his plan, asked whether Carvin's clients wouldn't have standing even if Virginia refused to defend its plan "for a racist reason," which he hastened to add he didn't think was the case of Virginia.  Elias, sticking to principle, said that even then congressmen would lack standing.  (He would later allow that the state legislature might have standing to defend its plan if the Governor wouldn't.)  Justice Kennedy asked a series of questions about whether incumbency protection might be the legally protected interest that would lend appellants standing, and understandably couldn't understand why the state legislature might have standing to appeal the invalidation of the plan it drew on this ground, but the incumbents actually harmed by the invalidation wouldn't.  Elias's confusing answer appeared to assume that incumbency wasn't a legally protected interest, the very premise of Kennedy's questions.

Finally, Ian Gershengorn argued for the United States.  Immediately out of the box, Justice Kennedy asked why incumbency protection couldn't be the appellants' legally protected interest when the state legislature has a policy of promoting incumbency protection.  Gershengorn appeared to say that the state could somehow create a legal right to incumbency protection that would give congressmen standing to challenge changes that threatened their reelection, but that Virginia hadn't done so.  Justice Breyer asked a very sharp question about whether, on the Solicitor General's view, a black candidate would lack standing to challenge a district designed to prevent the election of black candidates, even though a voter would have standing.  Gershengorn said the candidate would only have standing to challenge the district as voter, if he were a voter in the district.  Despite this rather, to my mind, unsatisfying answer, Breyer quickly confirmed that he still doubted standing, asking a series of questions about the supposed unmanageability of letting legislators challenge changes remedial plans make to districts those legislators don't live in.  When Gershengorn said that he agreed, and that candidates don't have a right to choose the voters in their district, Justice Kagan pointed out that Forbes wasn't trying to choose, but rather, trying to keep the ones he had under the legislature's plan, and suggested he might have a legally cognizable interest in keeping them.

Predictive Musings: I tend to think the Court may well equally divide on standing.  Alito, Roberts, and Kennedy look like strong votes for standing, Breyer and Sotomayor look like very strong votes against it, and Ginsburg and Kagan appeared to lean against finding standing, although Ginsburg and Kagan may be persuadable, particularly if the Court can get to a merits judgment they'd like.  The length of time it took Hawkins v. Community Bank of Raymore, yesterday's 4-4 decision, to be released after Scalia's death, and the length of time some other seemingly obvious 4-4 splits are taking to come out, does suggest that the Court is trying to negotiate its way around 4-4 splits wherever possible.  

If the Court does decide in favor of standing 5-3 or 6-2 (I cannot see a majority against standing), it seems rather unlikely that the Court will water down appellate standing requirements and hold that appellants don't need a legally protected interest for standing. Instead, the Court is likely to adopt the Alito/Kagan/Kennedy suggestion that candidates have a legally protected interest in legislatively enacted district lines.  That would leave the broader project of candidate standing in districting cases (to the extent such a project exists outside my febrile imagination) a bit up in the air, as the Court's holding would be limited to cases where candidates defended existing districts, rather than challenging them.  And it would bizarrely suggest that judgment losers, on top of being harmed by judgments, need to show that their legally protected interests were harmed (whatever that might mean) in order to have standing to appeal.  Nevertheless, a holding that appellants had standing in Personhuballah, on whatever grounds, would be a small step in the right direction for standing doctrine in districting cases and for honesty and transparency in litigating them.

Monday, March 21, 2016

Wittman v. Personhuballah, The Term's Standing-Law Sleeper

This morning the Court will hear argument in Wittman v. Personhuballah, a case in which Virginia's Republican congressmen have appealed a three-judge district court's judgment that Virginia's congressional districting map is an unconstitutional racial gerrymander - specifically, that race predominated in the design of Virginia's Third Congressional District, which features a 55% black voting-age population. The district court found that the line-drawers targeted the 55% mark over other line-drawing factors.  Ostensibly the line-drawers did this in order to comply with the Voting Rights Act by preventing forbidden "retrogression" in the ability of black Third District voters to elect their preferred candidates.  However, the district court held that the Voting Rights Act didn't require so much black voting-age population, as its incumbent black congressman had repeatedly been reelected by 4:1 margins.  Virginia's gratuitously generous provision of black voters in the Third District, the district court held, violated the Fourteenth Amendment as interpreted in the Court's Shaw line of cases, which say, roughly, that absent a compelling interest (i.e., compliance with the Voting Rights Act) and narrow tailoring, a district gerrymanders voters by race in violation of the Fourteenth Amendment if race was the predominant factor in its design.  

The remedy for such a gerrymander is to draw a district the design of which is not predominantly motivated by race, which in this instance is to say a district with fewer black voters in it.  When Virginia's state legislature failed to vote on a replacement plan, the district court appointed a special master to draw one, and adopted his plan. The special master's plan reduced the black voting-age population in the Third District to 45%, which the district court found would maintain the ability of black voters in the Third District to elect their preferred candidate (i.e., the popular black incumbent) and thus comply with the Voting Rights Act.  

It takes little political savvy to observe that the district court's ruling created a number of political winners and losers.  The winners, of course, are the Democratic candidates in the districts that received the overwhelmingly Democratic black voters moved out of the Third District; the losers are the Republican candidates in those districts. (The new map's biggest loser, Congressman J. Randy Forbes (R), has seen black voting-age population in his district rise from 31.3% to 40.9%, while support for Obama in the 2012 presidential election has risen from 48.8% to 60.9%.  One month ago, Forbes announced he planned to run in a different district.)  Indeed, it should surprise no one to learn that (a) the old map was drawn by Republicans and signed into law by a Republican governor, (b) that upon the election of a Democratic governor, Virginia chose not to appeal the invalidation of its congressional districting map, (c) that the state's Republican congressmen intervened in the action to defend the map and are now appealing the judgment invalidating it, and (d) that the nominal plaintiffs in the action, voters in the Third District who claim to be offended by its racially motivated composition, are represented by Hillary Clinton's campaign's general counsel.

The fairly gripping, to my mind, threshold question in Personhuballah is whether Personhuballah's political losers, the Republican incumbents whose districts have received the Third District's exiles, have standing to appeal the district court's judgment. By way of background, both historical and autobiographical, the question of standing to make racial-gerrymandering claims has long been a vexing question, both for the Court and election-law scholars, and for me personally.  In the 1990s, the Court struggled to explain who had standing to make a racial-gerrymandering claim, and why anyone would have standing to make one.  The who eventually turned out to be voters who lived in allegedly gerrymandered districts; the why was that voters living in those districts were stigmatized by the state's implicit presumption that all voters of particular races voted alike, and harmed by the "signals" such districts sent to their representatives, according to the Court, that they only represented voters of the district's majority race.  On these theories, the Court acted for about a decade as a modest counterweight to the Clinton Administration DOJ's policy of encouraging southern states, at pains of Section 5 preclearance denial, to maximize minority representation.

Both of the Court's theories of standing were immensely flawed (though the first of the two, it's generally agreed, is by far the more defensible) and wouldn't have passed the laugh test, much less Lujan's test, in most any other context.  Liberal election-law scholars like Pamela Karlan, not normally avatars of modern standing doctrine, turned out in droves to accuse the Court of "turn[ing] its back on the entire fabric of standing law."  When, in 2001, racial-gerrymandering doctrine seemingly died out at the Court, Shaw's critics moved on to criticizing other areas of the Rehnquist and Roberts Courts' election-law jurisprudence.  But when, last term, Shaw returned, this time as a Democratic weapon against Republican gerrymanders cynically dressed up as Voting Rights Act compliance schemes, Richard Hasen reminded Shaw's new fans of the old Shaw orthodoxy - to wit, that Shaw is "incoherent" and "nonsensical," and that "the racial gerrymandering cause of action protects against no real harm."

I have never believed that Shaw is such a wayward cause of action, or that racial gerrymandering is a victimless constitutional violation.  In an article I wrote in college and promptly shelved, because Shaw appeared to be dead at the time, I came to the conclusion that racial gerrymanders are unconstitutional (under existing law) because they set aside districts for candidates of particular races, and that the people who have standing to challenge them are candidates in gerrymandered districts who aren't of the race for which their district has been set aside.  I won't defend that thesis in any detail here, except to say that Voting Rights Act jurisprudence subtly requires (not just tends to cause) states to draw districts that predictably will elect minority candidates.  The mechanics are that, while in theory the Voting Rights Act protects minorities' ability to elect "candidates of choice," all but one or two regional circuits have held* that the ability to elect candidates of choice can only be truly tested in races where minority candidates run against white candidates, and that the test of whether a district can "perform" for minority voters is whether it can perform in such races.  Therefore, when courts and legislatures select VRA-compliant levels of minority voting-age population, what they are selecting are levels sufficient to elect minority candidates.  And, when Republican state legislatures over-comply, as was allegedly the case in Virginia, what they are doing is setting levels of minority voting-age population that are higher than necessary to guarantee the election of minority candidates.  (Recall that Virginia's error in Personhuballah, according to the district court, was drawing a 55% black district when its black incumbent could win with many fewer black votes.)

* For examples, see here, here, here, and here.

The standing theory in Personhuballah is something like the contrapositive of the theory sketched above.  Whereas I maintain that white candidates in racially gerrymandered majority-minority districts have standing because they are denied any electoral chance, the appellants in Personhuballah maintain that Republican candidates outside a racially gerrymandered district have appellate standing to appeal a judgment unscrambling a racial gerrymander, because the ensuing redistribution of minority voters will decrease their electoral chances.  I am, naturally, broadly sympathetic to this argument, having long believed that gerrymandering claims of all stripes should be litigated by parties who have concrete interests in them - the candidates.  There are, however, several difficulties with this particular iteration of candidate standing, which the appellee-plaintiffs and SG, acting as their amicus, have exploited.

First, there is standing law's tautological requirement of a legally protected interest.  Numerous standing cases say that injury is not enough; to show standing, one must show injury to a legally protected, or cognizable, interest.  It is easy enough to see that a candidate who alleges his district was drawn to ensure no one of his race could ever get elected has alleged injury to an interest that is, at least, legally cognizable.  It is harder to see that a Republican candidate living outside an allegedly unconstitutionally gerrymandered district, whose district receives a number of black voters by way of remedying the gerrymander, has suffered some harm to a legally protected interest.  What interest would it be?  The interest in, as a Republican, running for election in as white a district as possible?  In having a good chance at being elected?  These, the SG and appellees argue, are not legally protected interests; nothing in the law entitles appellants to white districts or good electoral chances.

Appellants effectively counter, I think, that only plaintiffs need to assert harms to legally protected interests for standing purposes; defendants or intervenors who lose lawsuits in federal court need not have suffered harm to any legally protected interest to appeal, just so long as they suffer some harm.  To argue otherwise is to say, more or less, that for a defendant to appeal a money judgment, the mere fact that the judgment forces him to pay money doesn't give him standing; he also needs to show something like a cause of action of his own for the money.  Another way of looking at things is that a party to a judgment that's harmed by that judgment and claims the judgment was legally erroneous always has a legally protected interest - the legally protected interest in not being harmed by legally erroneous judgments.  Either way, appellate standing shouldn't demand more.  As for the argument that, aside from whether it's legally protected, an injury to one's electoral chances isn't even legally cognizable, that leads to the reductio that a Democratic candidate, for example, can't challenge a Republican partisan gerrymander qua candidate, but only as interested voter.

Second, there's the difficulty of speculativeness, or probabilistic injury.  The candidate most injured by the plan the district court adopted, Forbes, has suffered a significant blow to his electoral chances, significant enough that he's given up on running for reelection in his own district.  However, appellees point out that an extra 12% of Democratic voters isn't insuperable, and that a loss on Forbes's part wouldn't necessarily be traceable to the new map.  Here, I again think that appellants have the better of the arguments.  The correct way to conceptualize Forbes's injury is not losing reelection itself, but a loss of chance.  Much like a contractor or college applicant whose chances of winning a contract or admission are denied by a racial preference, harms which the Court has held are sufficient for standing, Forbes's chances of reelection are significantly diminished by the district court's judgment.  

It is, of course, often argued that the Court's solicitude for the probabilistically injured in affirmative action cases is incoherent given the Court's treatment of probabilistic injury elsewhere.  Moreover, this is not an affirmative action case, but rather a case in which white candidates seek the reinstatement of something like a racial quota outside their districts in order to decrease party and possibly racial competition for their own seats.  However, the Court's probabilistic injury jurisprudence is (somewhat) more coherent than has been generally allowed for, and tends to cut in favor of appellants.  The Court, while never quite saying so, seems to distinguish between cases in which, on the one hand, parties claim that some government program may harm them in the future, though they have no interaction with its harmful features in the present, and, on the other hand, cases in which parties presently participate in government processes, usually competitive processes, and claim that those processes are presently unlawfully structured so as to decrease their chances of a positive outcome.  A standing doctrine where a purchaser of a state lottery ticket lacked standing to sue about fraud in the lottery, or a candidate for office lacked standing to sue about election rules, would be very strange indeed.

A third difficulty, and perhaps a fatal one, is exactly which if any of the candidates has standing to sue.  Forbes is the most harmed by the new plan; however, that plan was adopted by the district court after he and his colleagues appealed.  Did the plan confer standing on Forbes where none previously existed?  Normally, appellate standing must exist when an appeal is taken.  At the time of the appeal, all the candidates were at risk of a bad re-drawing, it was inevitable that at least one would suffer significant harm to his chances of reelection, but none knew which would bear the brunt of the Third District's reconfiguration.  Is that a problem?  I don't think it should be.  If a district court finds multiple defendants liable in a class action (suppose they're multiple asbestos manufacturers), and saves the apportionment of damages for a later phase, the possibility that any given manufacturer may have to pay nothing shouldn't deprive the manufacturers of standing to appeal the liability judgment, assuming an interlocutory appeal is allowed.

Finally, insofar as appellants rely on Forbes's standing (which they shouldn't, as it only became particularly strong after the appeal), his having abandoned his campaign for reelection in his old district is a problem.  In a footnote in their reply brief, appellants liken Forbes's situation to that of someone challenging an unconstitutional ban of some conduct who stops engaging in the conduct because it's banned.  For that analogy to work, though, there would need to be some evidence in the record that Forbes would run for reelection in his old district were the Court to reverse the judgment below; of course, nothing like that is in the record.  Alternatively, Forbes may have standing if the district in which he's now running for office is tougher than his old district; whether that's the case also isn't clear.

In sum, Personhuballah has the potential to remake standing in election law, moving candidates and their lost chances of electoral success to the forefront of districting litigation where they've always belonged.  But Personhuballah also has the potential to be a seminal case about appellate standing more generally and probabilistic injury.  And with Spokeo likely to be affirmed by a divided court, it may be the only big standing decision this term we get.