All posts by Franita Tolson

A few more quick thoughts on Moore

Moore v. Harper, much like Allen v. Milligan, was a shocker for me. Given how the posture of the case had changed, I didn’t expect the justices to reach the merits. I’m glad they did. A few thoughts:

1) In some ways, Moore v. Harper reads as a reaffirmation of the concept of judicial review, closing the loop on this idea that the Elections Clause is an exception to this principle that insulates state legislative action over federal elections from review in federal court and, until this case, possibly state court. While state courts are differently positioned than their federal counterparts, I had underestimated how much the Supreme Court might view this case as a threat to the concept of judicial review, more generally.

In Rucho v. Common Cause, the Supreme Court held that partisan gerrymandering claims were nonjusticiable political questions that would not be heard in federal court. But the Court also explicitly rejected the idea that claims brought under the Elections Clause, unlike those brought pursuant to the Guarantee Clause, were judicially unreviewable. These two principles are not necessarily in tension because it could be the case that partisan gerrymandering claims are just not the type of Election Clause claims that the Court feels capable of resolving even though other types of claims under this provision might be more manageable. Despite the Court’s assertions to the contrary, however, Rucho might have opened the door for the Elections Clause to function as a provision that has limited judicial enforcement, a sentiment that the Court sought to shut down in Moore v. Harper.

2) Second, what does Moore mean in light of Milligan, the Alabama Section 2 case from a couple of weeks ago that shocked every election scholar I know? One might say that the Court is affirming that it is still very much a player in the democracy space, again pushing back against the (rightful) perception that, after Rucho and Bronovich, the Court is less committed to policing our system of democracy. In addition, both Milligan and Moore offer an opportunity for the Court to push back against these negative perceptions by simply reaffirming the status quo. Milligan reaffirmed that Section 2 vote dilution claims are still actionable under the Gingles framework, and Moore rejects a theory that would have caused a sea change in how state courts oversee the actions of state legislatures with respect to federal elections. The Court gets a huge pay off, in terms of maintaining its legitimacy, but by structurally changing very little.

3) There are a couple things at play in Moore that run contrary to our assumptions about the Court’s more general anti-Democratic posture that are worth pointing out. First, there may just be some arguments that go too far, and would be too disruptive should they become law, that they turn off some of the more conservative members of the Court. That says a lot about where we are as a democracy, and where this Court is as an institution.

To this point, Chief Justice Roberts (writing for the majority) discusses Arizona State Legislature v. Arizona Independent Redistricting Commission as proof that legislatures are not the sole source of lawmaking authority over federal elections within a state, even though he wrote a lengthy dissent in that case arguing that the term “legislature” as used in the Elections Clause means the institutional legislature and not the broader lawmaking processes. He reliance on this case, despite his very heated dissent, is further proof (along with Justice Thomas’ reliance on the case as well) that the goal posts have moved from basic questions of whether “legislature” means “legislature” to more nuanced concerns about whether legislatures should be given broad authority, subject only to very little oversight from a massively dysfunctional Congress, to blow up any notion of democracy within their borders. Roberts is known for using subsequent cases to minimize or subvert holdings that he doesn’t necessarily agree with, but he doesn’t do that here (at least not as much as he normally does, see point 4 below).

Second, John Roberts, in rejecting the independent state legislature theory, might be defending his legacy. He wrote Rucho, which asserted that state law and state courts could be a more than adequate response to the ills of partisan gerrymandering than any remedy the federal courts could provide. Would he be willing to sign on to any theory that could call into question a decision (and a controversial one, at that) that Roberts authored less than five years ago? Probably not. Again, it is not that the author of Shelby County has become a huge democracy advocate but he might feel the need to defend his turf a bit.

I am sure that, given these stakes, 100 years of precedent rejecting the idea that state legislatures have exclusive authority to regulate federal elections is much more persuasive than the Federalist 78, which the dissenters rely on to argue that state legislatures are empowered in this manner. Moore is also a very common-sense decision – state legislatures cannot be free of the constraints of the documents (state constitutions) that created them nor has it been true that state legislatures exercise power in this domain independent of the other branches of state government. The fact that we had to contemplate otherwise is an insane bit of nonsense that I hope died a sure death today.

4) To be clear, I am not asserting that the Roberts Court has all of a sudden become the Warren Court. Towards the end of the opinion, in typical Roberts form, he offers some vague constraints on state courts that apply when they are policing state legislative action on the Elections Clause, a standard that (as Derek points out here) very much resembles the standard offered by Chief Justice Rehnquist over two decades ago in Bush v. Gore. In some ways, this standard is Roberts’ attempt to make sure that “legislature” means “legislature” as much as he possibly can without explicitly running afoul of Arizona Independent Redistricting Commission while staying true to the text of the Elections Clause, which empowers the legislature to set the manner of federal elections. What this vague test – that “state courts may not transgress the ordinary bounds of judicial review” – actually means will almost certainly be a point of controversy in years to come. Policing whether state courts have crossed this line will keep federal courts in the business of overseeing federal elections for the foreseeable future, contrary to what Roberts had hoped to achieve in Rucho.

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A Few Preliminary Thoughts on Allen v. Milligan

I agree with Nick that today’s decision in Allen v. Milligan was stunning. I don’t want to give the Supreme Court too much credit, for reasons that Melissa Murray identify here, but I had prepared myself for the worst (and this is certainly not that!!). Below are a few preliminary (very preliminary!) thoughts on the decision. I don’t usually do this, especially so soon after a decision comes out, preferring to leave the real time analysis in the capable hands of others. But since I am in my feelings:

1) Not only does the Supreme Court uphold Section 2, but Roberts (who is, by no means, a VRA supporter – Shelby County anyone???) relied on forty years of precedent without gutting the decisions or distorting them. One of my never ending gripes with the Parents Involved affirmative action case was how Chief Justice Roberts subverted the meaning of Brown v. Board of Education into a requirement of colorblindness arguably not within the contemplation of the Warren Court in limiting the scope of affirmative action.

Roberts could have went down this road with the VRA, especially given that Alabama was arguing that, in the last forty years, the Gingles framework had evolved into a proportionality standard that contradicted the express prohibition in Section 2. Instead, the Court went out of its way to distinguish cases in which courts were seeking proportional representation by elevating race and sacrificing traditional redistricting critieria from the facts of Milligan.

2) In a number of Section 2 cases, courts opposed to the Voting Rights Act have tended to parse the history in order to defeat the claim, i.e., the allegations of discrimination in voting were too long ago to support Section 2 liability. For example, some of the Fifth Circuit’s decisions regarding Texas’ voter identification law dismissed much of the history of discrimination for this very reason. Roberts did not do that here, simply deferring to the district court on the history of discrimination. That was surprising to me as well given how common it has become for the history to be dismissed as too distant from the violation.

3) The Court found that adopting Alabama’s proposed race neutral benchmark would require the plaintiffs to essentially prove the existence of discriminatory intent (in the context of a statute that does not require intent) because the plaintiffs would have to show that the state’s plan has the same amount of majority–minority districts as the race neutral benchmark for no other reason than race. The Court says that this is inconsistent with Section 2. Instead, deviation from the maps produced by the plaintiffs show that race could have been a factor, and the other Gingles factors seek to flesh out how likely it is that race was a factor. This is consistent with the congressional intent behind the statute in 1982. Roberts resisting an opportunity to elevate intent over effect was also something that was incredibly surprising to me.

4) The Court’s finding that adherence to a previously used plan does not insulate a state from Section 2 liability was also notably. This is oddly consistent with Abbott v. Perez (a decision I detest with every fiber of my being) where the Court held that discriminatory intent does not carry over from one legislature to the next. But in a twist of fate, it should also be true that a plan that is legitimate and constitutional for one cycle is not necessarily legitimate for another, especially in light of demographic changes. Just like bad intent doesn’t carry, good intent doesn’t either.

5) Despite my positive emotions about the decision, it is also important to note that Roberts also uses the occasion to reaffirm Supreme Court decisions that are very conservative on race. Milligan reaffirms the Court’s prior limits on the consideration of race in drawing district lines. States are still prohibited from adopting maps in which racial considerations predominate without a compelling reason. It is just that, in the Alabama case, it is clear that this line between considering race and being motivated by race had not been crossed. But Shaw v. Reno is still the law of the land.

6) I would remiss if I did not mention that the Court explicitly rejected an argument that Section 2 is unconstitutional as applied to single member redistricting. Does that mean that Section 2 is constitutional and won’t go the way of preclearance? Maybe not, but I think Section 2 is okay for now. I do not think this a parallel situation to NAMUDNO v. Holder and Shelby County v. Holder in which the Court invited Congress to fix a constitutionally problematic statute before invalidating it. Here, the Court is clear that, in 1982, Congress was aware that Section 2 would apply to redistricting by drawing on/amending the statute in light of White v. Regester and City of Mobile v. Bolden (both of which were cases about redistricting). But this is a 5-4 decision and I suppose the fate of Section 2, like many things, will turn on who the next president will be after the 2024 or (dare I say it) 2028 elections. In addition, as Spencer notes (looks like he was posting about this point at the same time I was updating my post to make this point – great minds and all that), Justice Kavanaugh, in his concurrence, makes the point that Congress’s use of race based redistricting as a remedy has to be time limited, setting the scene for what will surely be another showdown over the constitutionality of Section 2. Only time will tell.

I have other thoughts and will try to continue to update this post. But I have to go do dean stuff so I am not sure when that will be. Big day for VRA folks, but we still have to be cautious in our optimism. The independent state legislature decision is still out there and this is not the last challenge that the VRA will face, I’m sure.

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Delaware Supreme Court holds that Vote by Mail and Same-Day Voter Registration statutes violate the state constitution

This order from the Delaware Supreme Court affirms in part and reverses in part an earlier Court of Chancery decision resolving the constitutionality of the two statutes. The Court of Chancery found that the Delaware General Assembly, in adopting same day voter registration, did not violate Article V, Section 4 of the state constitution, which required “at least” two registration days. The court found that the state constitution established a floor, and not ceiling on voter registration days, a sentiment with which the state supreme court disagreed.

However, the Court of Chancery struck down the statute permitting no excuse mail-in voting. In a holding affirmed by the Delaware Supreme Court, the court argued that the circumstances for absentee voting enumerated in the state constitution are exhaustive. The state legislature is not permitted to expand the list of circumstances in which vote by mail is permitted.

A full opinion from the Delaware Supreme Court is forthcoming. A statement from Common Cause Delaware is here.

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“Faulty Textbooks: The Strip Mining of Anthony Downs’ ‘Economic Theory of Democracy'”

New article by Steven Hill at DemocracySOS that does a deep dive into Anthony Downs’ seminal work, Economic Theory of Democracy, and its ramifications for today’s politics. In particular, the article focuses on how Downs’ work has been misrepresented so as to mask the instability and polarization of the U.S. political system. Check it out!

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“RNC seizes on political affiliations of poll workers in swing states”

The Washington Post reports that there have been increased efforts to recruit partisan poll workers in swing states. Notably, Republicans have filed lawsuits in a number of swing states challenging the regulations that govern poll workers, seeking to make the jobs more accessible and to increase transparency about who has worked the polls.

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“Can Stakeholders Mobilize Businesses for the Protection of Democracy? Evidence from the U.S. Capitol Insurrection”

New article by Zhao Li and Richard Disalvo in the American Political Science Review. The abstract reads:

An unprecedented number of major U.S. companies announced changes to their campaign contributions following the Capitol insurrection on January 6, 2021. We analyze the role of corporate stakeholders in these announcements as well as their implications for democratic institutions and business–government relations. Mirroring polarized public reactions to the Capitol insurrection, companies with more Democratic-leaning stakeholders (e.g., employees, consumers, shareholders) were more likely to publicly refuse contributing to Republican legislators who objected to the electoral college results. Moreover, these pledges held up in available campaign finance records through the third quarter of 2021, implying significant losses in corporate political action committee contributions for said Republican legislators. Given increasing polarization and heightened expectations of the civic responsibility of businesses, the partisanship of corporate stakeholders may prove important in mobilizing businesses to protect democratic institutions. However, such stakeholder pressure may also weaken businesses’ bipartisan legislative coalitions and compel corporate influence-seeking activities to go dark.

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“Hand-counting ballots may sound nice. It’s actually less accurate and more expensive.”

This is the second article in a series that NPR is running to shed light on how our voting process works. The article refutes claims that hand-counting ballots are preferable for tabulating votes because the research shows that hand-counts are “significantly less accurate, more expensive and more time consuming” than machine tabulation.

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“Voting Systems: How They Work, Vulnerabilities, and Mitigation”

New report from Steven Rosenfeld (National Political Report, Voting Booth) and Duncan Buell (Chair Emeritus, USC Dept. of Computer Science). Short description of the report from its authors:

This report describes how the systems that create ballots and detect and count votes work. The national media often trivializes this aspect of elections. They talk about clerical tasks, not properly programming and syncing 100s of devices. In 2020, errors by officials in a few rural counties with setting up and using these computers led to wrong election night results. Trump votes were bumped down in spreadsheets and assigned to Biden. Or officials double-counted votes but blamed the computers. Though found and fixed, the errors helped MAGA provocateurs and legislators to launch bogus post-election inquiries. These charades, featuring self-appointed experts spouting irrelevant and made-up technical-sounding claims, became fixtures on right-wing media.

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Monopoli on the Nineteenth Amendment

Paula Monopoli (University of Maryland Francis Carey School of Law) has a new article out entitled, “Gender, Voting Rights, and the Nineteenth Amendment.” The article is forthcoming in the Georgetown Journal of Law & Public Policy. The abstract is below:

One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that ‘there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment’. This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct constitutional history and meaning. The unique historical context preceding and following the Nineteenth’s ratification militates for courts to adopt a holistic interpretative approach when considering a Nineteenth Amendment claim. Such an approach has both expressive and doctrinal implications, providing support for courts to adopt disparate impact, rather than intentional discrimination or discriminatory purpose, as a threshold standard for such claims. Reasoning beyond the text—from legislative intent, purposes, structure, and institutional relationships—could restore the lost constitutional history around the Nineteenth Amendment, making it a more potent tool to address gendered voter suppression today, especially for women of color. This paper provides a framework for judges willing to move away from rigid textual analogy toward a more holistic constitutional interpretation when evaluating a constitutional claim under the amendment.

Can’t wait to read this one! Important and timely.

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