[Bumping to the top for the new year.]
I expect a lot of litigation over election issues in 2016, including emergency last minute litigation making it to the Supreme Court as part of what Will Baude calls the Supreme Court’s “shadow docket.” When that litigation makes it to the Supreme Court, perhaps as the date for printing ballots approach or early voting begins, the Court may continue to apply the “Purcell principle,” which has been to caution courts against making last minute changes in voting rules. I’ve been pushing back against aggressive use of this principle, arguing that the Court needs to balance other factors too in handling emergency election litigation. See Reining in the Purcell Principle, Florida State University Law Review (forthcoming 2015) (draft available).
In terms of pending litigation, here are the highlights of the most important cases:
- North Carolina. Last summer there was a trial over North Carolina’s strict new voting rules, all except the voter id portion of that case, which was put on hold as North Carolina tweaked (and somewhat loosened its requirements). The lawsuit claims that the tightening of voting and registration rules violated both Section 2 of the Voting Rights Act and the U.S. Constitution’s guarantee of equal protection. From reports at the trial, the trial judge seemed skeptical of the claims. But no opinion has been forthcoming, even though many of us expected something in September or October. Meanwhile, the voter id portion of the case is set for trial, and there is a state case as well. Perhaps the federal court is waiting to roll voter id into a single opinion, but that might push things too far into election season. There will be an inevitable appeal to the Fourth Circuit, and this case could well end up at the Supreme Court too. (Moritz page for federal case.)
- Texas voter id. A trial court issued a massive opinion holding that Texas’s strict voter identification law violated both the Voting Rights Act and the U.S. Constitution. A Fifth Circuit panel, in a somewhat surprising decision, affirmed that Texas’s voter id law violated Section 2 of the Voting Rights Act, but ordered the case remanded for a narrower remedy to deal with the problem (rather than holding the law wholly unconstitutional). However, there has been a pending request from Texas for the entire Fifth Circuit to hear the case en banc. The en banc petition has been pending for months. I think this means it is fairly likely that en banc will be denied, and Texas will seek to take this case to the Supreme Court, which could well take the case, setting up a major test of the meaning of Section 2 of the Voting Rights Act in what Dan Tokaji has called the new vote denial cases. (Moritz page.)
- Republican Party of Louisiana challenge to federal soft money ban. In Citizens United, the Supreme Court struck one of the McCain-Feingold law’s two pillars: the ban on corporate and labor union general treasury funding of sham issue ads/electioneering communications. Campaign finance opponent Jim Bopp has been angling to challenge the other pillar, the ban of party soft money, before the Supreme Court. After a few failed attempts, he now has maneuvered the case before a three-judge court in Washington D.C., which greatly increases the odds the Supreme Court will take the case and kill party soft money. This is perhaps the most important election case to come in 2016, but it likely won’t make it to the Supreme Court before the 2016 elections. (FEC page.)
- Evenwel One person, one vote case. This case was argued at the Supreme Court earlier in December, and a decision is expected by June. I am not worried that the Supreme Court will side with the plaintiffs and require jurisdictions to redistrict using total voters rather than total population (a move which would shift lots of power to rural, Republican areas). Nor am I worried that the Court will require jurisdictions to draw districts which equalize both total voters and total population. But I have heard from a lot of Democrats who are worried that the Court will affirm the right of jurisdictions to choose total voters or total population (which is what I’ve always thought the law is now), and that places like Texas will try to do this in their next round of redistricting, to try to get rid of some more Democratic/Latino districts. That would set up a new round of lawsuits, and a possible clash between constitutional principles and the Voting Rights Act. (SCOTUSBlog page.)
- Redistricting cases. As we enter the second half of the decade, redistricting litigation is still going strong. The Supreme Court in the Harris case is considering when partisanship in redistricting can limit deviations from perfect population equality in drawing districts. The Court is also hearing a racial gerrymandering case out of Virginia, a follow on to the Alabama redistricting case of last year. (I discuss the Alabama case, and the follow on racial gerrymandering cases in Racial Gerrymandering’s Questionable Revival, Alabama Law Review (forthcoming 2015) (draft available).) Racial gerrymandering cases may also hit the Court from North Carolina, another from Virginia, and the Alabama case on a return trip. Meanwhile, the never-ending litigation over whether Texas’s redistricting violates the Voting Rights Act awaits decision before a three-judge court in San Antonio. (Moritz page for Texas case.) There is also new life breathed into partisan gerrymandering claims, in Wisconsin and Maryland.
- Voting Wars litigation. Marc Elias, who is Hillary Clinton’s campaign lawyer, has brought a series of cases (not on behalf of Clinton but supported by the Clinton campaign) challenging restrictions in voting rules in Wisconsin, Ohio, and elsewhere. The cases are controversial in the voting rights community, who worry they could set some bad precedents. In Ohio, for example, the ACLU settled a suit raising similar claims to the one Elias brought a few months before Elias filed this suit. These cases could heat up on an emergency basis as the 2016 election approaches, and end up before the Supreme Court.
Lots to watch to 2016.