A “cf.” seldom stirs up controversy. But when “cf.” is the signifier to the first case cited by the United States Supreme Court in support of a legal proposition, that “cf.” should raise a red flag to the reader. The United States Supreme Court’s recent Per Curiam opinion in Benisek v. Lamone dropped a “cf.” that deserves heightened scrutiny.
“Cf.” is short for compare. The Bluebook informs law students and legal practitioners that “cf.” denotes the cited authority may not expressly (or even obviously) support the stated proposition, but the cited authority is analogous enough to lend support to the proposition. Black’s Law Dictionary defines “cf.” as “a citation signal [that] directs the reader’s attention to another authority or section of the work in which contrasting, analogous, or explanatory statements may be found.” (243). Often, a parenthetical accompanies the case citation to illustrate the analogy between the stated legal proposition and the case cited in support thereof.
Yet, sometimes (maybe too often) the author fails to provide the reader with any information on the cited case and supplies no reason to support its analogy to the stated legal proposition. Worse, considering Black’s Law definition of “cf.,” without an explanatory parenthetical, the reader cannot know for sure whether the cited authority is used to contrast, analogize, or explain the stated legal proposition. The reader is left with a choice: take the author at his or her word that the cited case supports the legal proposition, or read the cited case and draw his or her own conclusion as to whether it is sufficiently analogous to the stated legal proposition. The former choice may be warranted at times when the source is trustworthy—maybe the United States Supreme Court is one of those sources. The latter choice is wise regardless of the source—it’s the only way to ascertain whether you can truly, and without question, trust the source.
The Partisan Gerrymanding Cases
Benisek v. Lamone is one of two cases the Supreme Court recently considered in which the constitutionality of partisan gerrymandering was at issue. The other case was Gill v. Whitford. The Court in Gill held that the plaintiffs failed to demonstrate standing—specifically a particularized and individual harm to each plaintiff—but remanded the case to the district court to provide the plaintiffs an opportunity to demonstrate particularized and individual injuries, reasoning that a remand was necessary due to the unresolved constitutional contours of partisan considerations in drawing legislative districts.
The Court in Benisek issued a Per Curiam opinion affirming the district court’s denial of the plaintiffs' request for a preliminary injunction. The plaintiffs were Republican voters in Maryland who challenged a congressional district that they claimed was redrawn in 2011 on partisan grounds, specifically to “retaliate against them for their political views.” The plaintiffs sought, among other things, an injunction prohibiting state officials from holding elections in 2018 under the 2011 map.
The district court denied the request for an injunction and stayed further proceedings pending the Supreme Court’s ruling in Gill v. Whitford in order to be “better equipped to [apply the proper legal standard] and to chart a wise course for future proceedings.” The Supreme Court affirmed, holding, among other things, that the plaintiffs failed to show “reasonable diligence” in seeking injunctive relief, having waited until “six years, and three general elections, after the 2011 map was adopted, and over three years after the plaintiffs’ first complaint was filed.” Notwithstanding the diligence requirement, the Supreme Court also held that the district court’s decision to deny injunctive relief was supported by “a due regard for the public interest in orderly elections, as the deadline for injunctive relief articulated by the plaintiffs had passed by the time the district court ruled, and the constitutional contours of partisan considerations in legislative district drawing remain unclear.
A Paragraph in Benisek Worth a Book of Scrutiny
The Court’s conclusion in Benisek is largely uncontroversial. The district court is vested with discretion to grant or deny injunctive relief. When, as here, the proper legal standard to apply over the controversy remains unsettled or unclear, it is very difficult to justify completely halting electoral processes. Moreover, as the Supreme Court noted, “the ‘purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.’”
What is controversial about the Court’s opinion, however, is the paragraph setting forth the legal requirement of “reasonable diligence”:
First, a party requesting a preliminary injunction must generally show reasonable diligence. Cf. Holmberg v. Armbrecht, 327 U. S. 392, 396 (1946). That is as true in election law cases as elsewhere. See Lucas v. Townsend, 486 U. S. 1301, 1305 (1988) (KENNEDY, J., in chambers); Fishman v. Schaffer, 429 U. S. 1325, 1330 (1976) (Marshall, J., in chambers). In this case, appellants did not move for a preliminary injunction in the District Court until six years, and three general elections, after the 2011 map was adopted, and over three years after the plaintiffs’ first complaint was filed.
(emphasis added). What should not only surprise but shock readers is that the Court supported the first legal proposition in the above paragraph with a case citation preceded by the “cf.” signal. Surely, in the 229 years of U.S. federal jurisprudence, the Court must have something a little more concrete than a compare-this-to-that citation to support the proposition that “a party requesting a preliminary injunction must generally show reasonable diligence.”
The Court supplied no additional information as to the facts, holding, or reasoning in Holmberg v. Armbrecht, leaving the reader to either trust that Holmberg supports the stated legal proposition or to read Holmberg and decide whether it is sufficiently analogous to the case at hand. So why Holmberg? And is Holmberg analogous to the stated legal proposition in Benisek?
In Holmberg, the plaintiffs were creditors of the Southern Minnesota Joint Stock Land Bank who sought to enforce liability for the debt against the shareholders pursuant to the Federal Farm Loan Act. The federal act only provided equitable relief in the form of an enforcement proceeding to the creditors. The shareholder defendants raised statute of limitations and laches as affirmative defenses. The district court overruled both defenses. After a judgment against them, the defendants appealed and the appellate court reversed, holding that the state statute of limitations applied, citing to Guaranty Trust Co. v. York, 326 US 99 (1945).
On Writ of Certiorari, the Supreme Court considered the issue whether the state statute of limitations controlled in a suit based on a federal statute that allowed only equitable relief. The court held that the state statute of limitations did not control. Guaranty Trust involved a state-created right asserted in federal court with jurisdiction predicated upon diversity of citizenship. The Court in Guaranty Trust held that “when a State statute bars recovery of a suit in a State court on a State-created right, it likewise bars recovery on such a suit on the equity side of a federal court brought there merely because it was ‘between citizens of different states. . . .”
The Holmberg Court noted that the present action was not based on a state-created right, nor was jurisdiction predicated on diversity of citizenship. Rather, federal law created the right at issue. The federal statute at issue, however, did not articulate a statute of limitations. The Court held that, when Congress is silent as to the time limit within which to bring an action in equity, federal courts must turn to equitable principles to determine the time frame within which a litigant must enforce its right or lose it: “A federal court may not be bound by a State statute of limitation and yet that court may dismiss a suit where the plaintiffs’ ‘lack of diligence is wholly unexcused; and both the nature of the claim and the situation of the parties was such as to call for diligence.”
There are a myriad of ways in which the Holmberg opinion is nothing like the situation or suit in Benisek. For one thing, Holmberg did not involve a preliminary injunction. For another, Holmberg involved a federal right created by statute for creditors against bank shareholders (suits between individuals); whereas, Benisek involves Constitutional rights that prohibit certain government action against citizens. Also, Holmberg dealt with laches and statute of limitations due to the statutory remedy at issue; Benisek did not involve a statute of limitations issue or laches issue—in fact, when considering the constitutional rights at issue (equal political participation guaranteed by Article 1 Section 2 of the U.S. Constitution, and the First Amendment’s protection of political association), a statute of limitations or laches analysis suggests that government may violate constitutional rights with impunity.
So why Holmberg? Maybe the Supreme Court was signaling its intent to impose the Holmberg laches-like analysis to future requests for injunctive relief in election-law, political-participation cases involving government. The paragraph in Benisek that we’ve been analyzing also cited to Lucas v. Townsend, 486 U. S. 1301, 1305 (1988) (KENNEDY, J., in chambers); Fishman v. Schaffer, 429 U. S. 1325, 1330 (1976) (1976) (Marshall, J., in chambers). These cases involved election-law issues. Neither of them actually creates, though, a “reasonable diligence” requirement that, alone, could bar the injunctive relief sought.
Justice Kennedy in Lucas granted an injunction, enjoining the challenged election, based on the elements necessary for a Circuit Justice to grant an in-chambers application for equitable relief, one element of which was a showing by the applicant that irreparable harm would likely result from a denial of the injunction. In considering the “irreparable harm” element, Justice Kennedy reasoned, “Permitting the election to go forward would place the burdens of inertia and litigation delays on those whom the statute was intended to protect, despite their obvious diligence in seeking an adjudication of their rights prior to the election.” Lucas, 486 U. S. at 1305. Nowhere in Justice Kennedy’s opinion is “diligence” made a prerequisite to injunctive relief to enjoin an alleged constitutionally-tainted election.
Justice Marshall in Fishman came close to articulating a “reasonable diligence” factor in determining whether to grant an in-chambers application for injunctive relief; however, unlike in Lucas, his opinion did not state the necessary elements to grant such relief. Rather, Justice Marshall cited to an amorphous standard: “such power should be used sparingly and only in the most critical and exigent circumstances.” Fishman, 429 U. S. at 1326. After determining that the application should be denied because “the question [at issue was] too novel and uncertain to warrant a single Justice acting unilaterally to strip the State of its chosen method of protecting its interests in the authenticity of petition signatures,” Justice Marshall added a few more considerations militating against injunctive relief, among them lack of diligence. Id. at 1330.
Indeed, many “cf.” go unscruntized, whether because the “cf.” is buried in an opinion, partially justified by a parenthetical, or given deference based on the status of the author. But a critical thinker should never pass on an authors signal to compare cases for one’s self.