January 04, 2008

The State of the Supreme Court's Election Law Docket

The Supreme Court returns from its winter break next week, and on Wednesday, January 9, the Court will hear argument in Crawford, the Indiana voter identification case. (Paul Smith will argue for the petitioners, Thomas Fisher of the Indiana AG's office and U.S. Solicitor General Paul Clement (as amicus) will argue for the respondents). Now seems like a good time to take stock of the Supreme Court's election law docket this term. This term could turn out to be a very important one for election law.

I. The Cases Already Heard

The Court has already heard two election cases this term, Washington v. Republican Party (argued on the first day of the term) and NY Board of Elections v. Lopez-Torres (argued on the third day of the term). I must say that given the reports from oral arguments I am surprised that the Court has not already issued opinions in this case, with a majority affirming the Ninth Circuit in the Washington case and reversing the Second Circuit in Lopez-Torres. One possibility is that the cases are being held pending the oral argument in Crawford, because all three cases---to one degree or another--raise the question of the level of scrutiny to be applied in election law cases (the so-called "Burdick sliding scale" standard). Or it might just be that the one or more of the Justices needed more time to work on an opinion and the opinions will issue soon after the Court returns to session. Unless we see a reversal in the Washington case, I don't expect these cases to be of major importance for the field of election law.

II. The Upcoming Cases

Crawford certainly has the potential to be a major election law case. I have blogged extensively about the case, written an amicus brief supporting petitioners in the case, and devoted Part III of a recent law review article to the case. So I won't say much more here until after oral argument. I won't be attending the argument (I teach two classes that day), but hope to blog when the transcript is released later on January 9. The key is to listen to the questions and comments of Justice Kennedy, who could well be the deciding vote in this case. For more information on the case, see Ned Foley's case preview for the Election Law Journal. To see the 41 briefs in the case and more, check out this page from the Brennan Center.

The question presented in Riley v. Kennedy (not yet set for oral argument) is "Whether states subject to Voting Rights Act pre-clearance requirements must receive Justice Department approval before implementing decisions of its highest court striking down previously pre-cleared state laws." I haven't been following this case closely at all, but hope to get up to speed in the coming months.

III. Cases Likely to Be Heard by the Supreme Court

Next Friday, the Court is scheduled to consider the petition in Davis v. Federal Election Commission, raising the constitutionality of the so-called "Millionaire's provision" of the McCain-Feingold law (BCRA). I've analyzed the case and think it is likely the Court will set this case for full argument, rather than summarily dispose of it. Given the upcoming election, the Court, if it agrees to hear the case, could expedite its consideration to get an opinion this term.

We are still waiting for a three-judge court to issue an opinion in the NAMUDNO case concerning the constitutionality of the renewed provisions of the Voting Rights Act. It seems very likely that the three-judge court, perhaps unanimously, will vote to uphold the provisions against constitutional challenge. Regardless of what happens in the lower court, I expect the Supreme Court will be asked, and will agree, to consider the case on appeal. Depending upon the timing of the lower court opinion, that may not happen until next term. When the Court does decide the case, it could be the most important election law case of the decade.

IV. Putting the Supreme Court's Election Law Docket in Perspective

In my book, The Supreme Court and Election Law, I noted that the Court decided an average of about 10 cases per decade with a written opinion in the 1900-1960 period, and about 60 cases per decade in the 1961-2000 period. Looking at the current decade, the Court has decided 18 cases from 2001-2006, with at least 4 more expected from the October 2007 term (and of course more from the 08, 09, and 10 terms). As a matter of quantity, the Court perhaps is slowing down. But as a matter of importance, the Court continues to decide important, sometimes blockbuster election law cases in the areas of campaign finance (McConnell, WRTL), voting rights (LULAC, Georgia v. Ashcroft), and election administration (Purcell, and the upcoming Crawford case). The Court remains well ensconced this decade in the political thicket.

Posted by Rick Hasen at January 4, 2008 04:58 PM