Breaking: Supreme Court to Hear Arizona Redistricting Case and Florida Case on Judicial Campaign Speech: Analysis

The number of election laws the Supreme Court has heard with a full argument has dropped off in recent years, I believe in part because voting rights advocates have tried to stay out of the Supreme Court. (See my ELJ analysis: The Supreme Court’s Shrinking Election Law Docket, 2001-2010: A Legacy of Bush v. Gore or Fear of the Roberts Court?.)  If you think of the major election cases the Supreme Court has heard in recent years, they have been cases brought by the more conservative side aimed at shrinking voting rights or loosening campaign finance rules (Citizens UnitedMcCutcheonShelby County).  Today’s emergency petition from voting rights advocates in Wisconsin is somewhat of an exception, but the petition raises issues not about voting rights more broadly, but about changing rules mid-election, an issue on which I think voting rights advocates could win.

But today’s Supreme Court grants to hear two new election cases fit into the category of petitions to move the law in more conservative directions. In the Arizona State Legislature case, the Court has the potential to prevent the increasing use of citizen commissions to decide congressional redistricting, taking the issue out of the hands of self-interested legislatures. Here is how the Court phrased the issue in the Arizona redistricting case:

13-1314 AZ STATE LEGISLATURE V. AZ INDEP. REDISTRICTING, ET AL.
Further consideration of the question of jurisdiction is postponed to the hearing of the case on the merits limited to the following questions: 1) Do the Elections Clause of the United States Constitution and 2 U. S. C. §2a(c) permit Arizona’s use of a commission to adopt congressional districts? 2) Does the Arizona Legislature have standing to bring this suit?

 I had expected the Court not to take this case but to summarily affirm.  The key question is whether the state “Legislature’s” power under the elections clause to set the manner for congressional elections includes the power for state voters to set those rules by initiative. It seems to me the matter is pretty settled that the answer is yes (for reasons given in my Hastings Constitutional Law Quarterly article: When ‘Legislature’ May Mean More than ‘Legislature’: Initiated Electoral College Reform and the Ghost of Bush v. Gore).  But maybe the issue is to be reopened? Perhaps some Justices are interested in a more textualist reading of “Legislature,” even if it is at odds with earlier precedent.  Will Baude suggests that the Arizona case may be distinguishable from earlier precedent in that in those other cases the state legislature retained some role in the process.

Regardless of the arcane nature of the legal issue, it would be a big deal to take away the potential for citizen redistricting reform as to congressional elections.

The Florida judicial speech case concerns the ability of states (or state supreme courts) to limit some of the campaign activities of judicial candidates—in this case, the personal solicitation of campaign contributions by judicial candidates. (Adam Liptak previewed the Williams-Yulee judicial elections case in this recent column.) The Supreme Court last weighed into this arena in 2002 in a case called Republican Party of Minnesota v. White. Then, the Court divided 5-4 in striking down on First Amendment grounds some limitations on what judicial candidates could say. Justice O’Connor later expressed her regret for her vote in this case, and now we have a number of new Justices on the Court. If the case follows the typical pattern, this will end with a 5-4 decision with the conservatives striking down the solicitation rule on free speech grounds. The theory is, if you are going to have judicial elections, especially with outside groups weighing in thanks to Citizens United, you cannot stop what judicial candidates say or do. The question is whether it might be possible to convince a Justice or two (thinking here mainly of the Chief Justice or Justice Kennedy) that judicial elections could be subject to special rules because of the key importance of the impartiality and dignity of the judiciary.

These will be interesting ones to watch!

[This post has been updated.]

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