Condolences to the family of Justice Sandra Day O’Connor, who passed away after a long illness.

Justice O’Connor was a trailblazer, the first woman Justice and a former state legislator. She came to her election law cases with a kind of pragmatism, with a conservative bent that was not always consistent. Because she was a swing Justice on the Court for some time, her sometimes idiosyncratic views carried the day.

She changed her views in the campaign finance cases multiple times: first supporting some limits on corporations in elections (MCFL), then opposing such limits (dissenting in Austin) then embracing them again (in McConnell v. FEC). In her later years she was one of the Court’s strongest supporters of limits on money in politics, voting to uphold much of the 2002 McCain-Feingold law. After she left the Court and was replaced by Justice Alito, much of her work here was reversed, in cases including WRTL II and Citizens United.

Justice O’Connor was also in the majority in Republican Party of Minnesota v. White, a case striking down rules on judicial candidate speech. As Linda Greenhouse reports, it was the only case she publicly said she regretted voting for. After retiring, she tried to support efforts to move from judicial election to appointment, without success.

She invented the cause of action for an unconstitutional racial gerrymander in Shaw v. Reno, setting forth a test that was not well developed and ultimately changed by other Justices in cases such as Miller v. Johnson. Those cases have now morphed into junior varsity vote dilution cases (and I’ve thought these cases poorly reasoned whether used by those first on the right and later on the left).

She supported the constitutionality of the Voting Rights Act, as it was challenged in some Section 2 cases, but she wanted to read the act more pragmatically, as in the Georgia v. Ashcroft case.

Perhaps her most consequential election law vote was in Bush v. Gore, where she joined the majority supporting George W. Bush’s presidential election in embracing an equal protection holding that one would have expected liberals to embrace (the liberals mostly rejected it in that case). The per curiam opinion was unsigned and people speculated it was written by O’Connor and Justice Kennedy. We now know from the release of Justice Stevens’ files that O’Connor was an early advocate of what went into Chief Justice Rehnquist’s concurrence, that we now call the “independent state legislature” theory. It’s not clear why she abandoned it and embraced the equal protection holding that appeared to have originated with Justice Kennedy.

In the end, Justice O’Connor’s election law legacy was a mixed bag from the perspective of voting rights and democracy. She disappointed everyone some of the time, and surprised some of the time. I suppose that’s the true definition of a swing Justice.

Rest in peace.

Moore v. Harper note:

“[T]he biggest threat to US democracy since January 6.”¹ “[A] theory that could upend elections.”² “It’s Hard to Overstate the Danger of the Voting Case the Supreme Court Just Agreed to Hear.”³ These headlines highlight that many feared the Court would adopt the “Independent State Legislature Theory” (ISLT) — a theory that, in its maximalist form, would let state legislatures write congressional election rules without regard for state constitutional limits and with no role for state judicial review.⁴

These fears now seem mostly moot. Last Term, in Moore v. Harper,⁵ the Supreme Court held that state courts may exercise “ordinary judicial review”⁶ of state rules governing congressional elections.⁷ This ruling rejected the maximalist ISLT, preserving state courts’ power to strike down election laws — such as partisan gerrymanders or schemes to skew ballot counting — if they violate the state’s constitution. One once-fearful commentator now sees Moore as a “resounding and reverberating victory for American democracy.”⁸ But the case is not so simple. While Moore stops some threats to fair elections, it asserts a muscular vision of federal judicial power that raises new democratic difficulties.

Allen v. Milligan note:

Moreover, the Court does not need to invalidate a race-conscious section 2 to limit its reach. For example, if most Justices doubted that racial minorities’ representation is itself a compelling interest, they could insist that plaintiffs show more in the totality of the circumstances — where courts look for election procedures that are stacked against minorities, racial disparities in economic or social life, campaigns with racial dog whistles, and other evidence of a political system that does not respond to racial minorities’ interests.⁸⁷ By making this prong more demanding, the Court could limit section 2 to instances of racially hostile politics that are egregious enough to qualify as discrimination in the Justices’ eyes. In short, even if a Fourteenth Amendment challenge does not lead to section 2 being struck down, it could make these cases harder for plaintiffs to win.⁸⁸ Even as Milligan ruled against Alabama at every turn, it left these arguments — and this result — available to the next Alabama.

Meanwhile, Milligan positively invited a separate constitutional challenge. Justice Kavanaugh — the swing vote in Milligan — surfaced the principal dissent’s argument that “even if Congress in 1982 could constitutionally authorize race-based redistricting under § 2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future.”⁸⁹ And he pointedly proclaimed that since Alabama had not raised this issue, he “would not consider it at this time.”⁹⁰ The invitation to future defendants seems clear.⁹¹ Especially after Students for Fair Admissions, Inc. v. President & Fellows of Harvard College⁹² (SFFA), which emphasized that race-conscious remedies must have clear endpoints.⁹³ Scholars have argued that Gingles builds in an endpoint: because plaintiffs must show that voting is racially polarized, once race no longer divides voters, plaintiffs will never make it past Gingles’s preconditions and race-conscious districts will fade into history.⁹⁴ But the Supreme Court might see things differently. It has suggested — including in Milligan⁹⁵ — that race-conscious districting itself divides voters by race and makes race play a larger political role.⁹⁶ The Court seems unlikely to accept that section 2 has endpoints if it thinks that the statute makes those endpoints harder to reach.

Already, defendants seem intent on forcing lower courts to address the constitutional issues that Milligan avoided. Just one week after the Court decided SFFA, Louisiana argued that a district court should reassess whether section 2 is still constitutional.⁹⁷ And Alabama has defied the Supreme Court’s order to draw a second majority-Black district, forcing the case to continue in the lower courts (if only long enough for the State to lose again).⁹⁸ To be sure, Milligan put race-conscious districting remedies on the safest ground that they have held for decades. But it did so by holding only that section 2 requires them. It left open, and even encouraged, the claim that a race-conscious section 2 must yield to a race-blind Fourteenth Amendment. If that argument succeeds, it would significantly reduce how much racial minorities can influence politics, elect representatives who will respond to their voices, and create legislatures that look like the state they represent.⁹⁹ After Milligan, that challenge is coming next.

F

The drumbeat for several months has been, “Whatever happens with these state-level challenges to Trump’s candidacy, the Supreme Court will have the final word.” That’s possible, and even likely, but not guaranteed. And if (an if, not a when) the Court does weigh in, when might it do so? Context matters. Here, I’ll sketch out a few paths as they stand today, in early November 2023.

This term, which was also shaping up to be a monumental one on social media companies and free speech, gets even more significant in light of this order in Murthy v. Missouri. Justice Alito, for himself and Justices Gorsuch and Thomas, dissented from the lifting of the injunction limiting the government’s ability to communicate with certain entities.

You can watch here: