Linda Greenhouse in The Atlantic:
Back in February, in a 5–4 vote, the Court’s conservative majority temporarily blocked the district court’s order; the majority didn’t even deign to issue an opinion explaining its reasoning. The justices’ audacious move freed Alabama to hold November’s congressional elections in districts that the lower court had declared invalid. This went too far even for one of the Voting Rights Act’s best-known critics, Chief Justice John Roberts, who dissented. To resurrect a pungent phrase, his colleagues out-segged him. But it would be a mistake to read his dissent as a sign that he has abandoned a project that has obsessed him since his days as a young lawyer in the Reagan Justice Department.
The most likely explanation for his dissent was that he flinched at the optics: Alabama’s request for a stay had arrived on the Court’s “shadow docket.” Every court maintains an emergency docket to handle matters that can’t wait for a full hearing. But during the Trump years, the Supreme Court exploited this device to hand victories to the president without a full briefing, public argument, or even advance notice.
Although Alabama is 27 percent Black, only one of its seven congressional districts—the one that includes Birmingham—has a Black majority, despite large Black populations concentrated in Mobile and in the “Black Belt” counties that stretch across the state. It may have struck the chief justice that using the shadow docket to preserve this status quo in defiance of the lower court’s decision was an unappealing step, and an unnecessary one at that.
When the justices decide the case, Merrill v. Milligan, this term, they will be free not only to overturn the lower court’s decision, but to rewrite the rules governing how the Voting Rights Act applies to similar cases anywhere in the country. Roberts conceded in his dissent that the district court had correctly followed precedent. He also made it clear that, in his view, the precedent is overdue for revision. As we saw in June, overturning precedent is no obstacle to a majority ready and willing to use its power to get what it wants.
Conflicting lower court rulings about removing controversial material from social media platforms point toward a landmark Supreme Court decision on whether the First Amendment protects Big Tech’s editorial discretion or forbids its censorship of unpopular views.
The stakes are high not just for government and the companies, but because of the increasingly dominant role platforms such as Twitter and Facebook play in American democracy and elections. Social media posts have the potential to amplify disinformation or hateful speech, but removal of controversial viewpoints can stifle public discourse about important political issues.
Governments that say conservative voices are the ones most often eliminated by the decisions of tech companies scored a major victory Friday, when a divided panel of the U.S. Court of Appeals for the 5th Circuit upheld a Texas law barring companies from removing posts based on political ideology.
“Big Tech’s reign of endless censorship and their suppression of conservative viewpoints is coming to an end,” Texas Attorney General Ken Paxton (R) said after the decision. “These massive corporate entities cannot continue to go unchecked as they silence the voices of millions of Americans.”
But a unanimous panel of the U.S. Court of Appeals for the 11th Circuit went the other way earlier this year, saying that a similar Florida law violated constitutional protections for tech companies that do not want to host views on their platforms that they find hateful, divisive or false.
Judge Kevin Newsom criticized a depiction of social media platforms as “dumb pipes … reflexively transmitting data from point A to point B.” Instead, he wrote, their “content-moderation decisions constitute the same sort of editorial judgments” entitled to First Amendment protections when made by a newspaper.
All of the appeals court judges considering the Florida and Texas laws have noted the difficulty of applying some Supreme Court precedents regarding legacy media. And all weighing in so far were nominated by Republican presidents, with Newsom and Judge Andrew Oldham, who wrote the conflicting opinion in the Texas case, both nominated by President Donald Trump, who was kicked off Twitter in the aftermath of the U.S. Capitol riot on Jan. 6, 2021.
What is the “independent state legislature theory,” and does a potential Supreme Court embrace threaten American democracy?
Will use of the doctrine raise the risk of election subversion or stolen elections?
How far could the theory go in insulating legislative voting rules from state constitutional review?
On Season 4, Episode 2 of the ELB Podcast, we hear a recent conversation that I moderated with Vik Amar, Derek Muller, Rick Pildes, Carolyn Shapiro, and Franita Tolson.
I have posted on SSRN a draft of this encyclopedia article, forthcoming in the Oxford Handbook of American Election Law (Eugene Mazo, editor, forthcoming 2023). Here is the abstract:
This Chapter considers what election “reform” is and why many Americans want it; who has successfully reformed election rules in the United States and how; the current Supreme Court’s role as a barrier to many progressive election reforms; and the future of election reform in a hyper-decentralized, polarized electoral system. Throughout American history, dissatisfaction with substantive policies and with political and economic inequality, including across race and gender, has fueled interest in changing political arrangements. Proposals for political change also prompt reactions by those opposing them. Some election reforms have already been enacted and implemented, while others have failed. Constitutional change is difficult given a cumbersome amendment process requiring supermajority support. Other reasons for failure include lack of sufficient popular support, self-interested legislative resistance to popular ideas and the absence of a direct democracy workaround, and language in the United States Constitution, at least as interpreted by the Supreme Court. In the current hyper-polarized political system, bipartisan cooperation on large-scale election reforms including constitutional amendments will be rare, and one-party supported statutory reforms or those passed through direct democracy will be more common. The biggest impediment to current progressive-oriented reform is the jurisprudence of the conservative Justices who make up a majority on the Supreme Court. It is harder to predict the success of election reforms in the longer term.
Keywords: election reform, constitutional amendments, voting rights, campaign finance, redistricting, direct democracy, political polarization, Voting Rights Act, Fifteenth Amendment, Seventeenth Amendment, Nineteenth Amendment, Twenty-Third Amendment, Twenty-Fourth Amendment, Twenty-Sixth Amendment
The main dispute in Moore v. Harper, currently pending before the Supreme Court, is whether state legislatures may be constrained by other state actors (such as state courts applying state constitutional provisions protecting voting rights) when they pass rules in federal elections. The argument that legislatures are unconstrained is one based on the language in the Elections Clause (Art. I, section 4) that gives state “legislatures” the right to set the “manner” of conducting congressional elections, subject to congressional override. The question is whether to read the term “legislature” in the context of a state’s lawmaking process, which normally includes state judicial review an application of the state constitution. In Moore, the North Carolina Supreme Court held that the state constitution limited the state legislature’s partisan gerrymandering of congressional districts.
A bunch of briefs got filed today supporting Petitioner and arguing that the Supreme Court can have no role. But those briefs all assume that Congress could override state legislatures on setting rules for congressional redistricting.
All except for Missouri’s brief, for John Ashcroft, the Secretary of State. It makes a convoluted legal argument that redistricting is not a “manner” of conducting elections, and so the Elections Clause would not apply. Under this argument, Congress would have no power to override a state partisan gerrymander of congressional districts. In this view, under the Tenth Amendment, Congress cannot say anything about how states redistrict for congressional elections. From the brief at page 22: “Suppose the Missouri legislature passes a 7R-1D map; absent compactness or racial concerns, can Congress nevertheless revise that map as a 4R-4D map? If Congress can ‘make or alter’ state maps, can it do so for purely partisan reasons?” So the state legislature can engage in whatever partisan gerrymandering it wants, but Congress can do nothing.
Missouri’s theory is bonkers for a few reasons. First, if it were true that redistricting was not covered by the Elections Clause and Congress had no role, why would it follow that the Constitution gives plenary power to gerrymander to the state legislature? Instead, the power to draw districts would be determined under state law, which presumably includes the state supreme court applying the state constitution.
If Missouri was correct, then Congress would lack the power it currently asserts in a federal statute to require congressional redistricting to be done with single member districts.
And if Missouri was correct, then the Supreme Court in a series of cases in which the Court noted that Congress could act to regulate redistricting were wrong. Missouri’s brief on that point says: “To the extent the Court concludes Rucho, Arizona State Legislature, and Vieth nevertheless control, for the reasons articulated in this Brief, those cases should be overruled to the extent they conclude redistricting falls within the ambit of the Elections Clause. See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2265 (2022) (‘An erroneous interpretation of the Constitution is always important’ under existing stare decisis doctrine).”
And if Missouri was correct, it would mean that Congress would lack the power under the Voting Rights Act to require minority voting rights to be considered in drawing congressional districts. This last point shows that Missouri ignores Congress’s other powers to act to regulate redistricting, such as enforcing the 14th and 15th amendments.
I don’t expect this argument to get traction. But I’m surprised that Missouri would go out on a limb like this.
This brief is well done (Carter Phillips/Evan Caminker) but also important in that it represents the views of Chief Justices of states from across the political spectrum. Tom Wolf tweet thread explains the brief’s significance. From the Brief’s summary of the argument:
The U.S. Constitution provides each State with authority over “the structure of its government.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). Both before and after the Framing of the U.S. Constitution, the States authorized judicial review under state charters; and, at the time of the Framing, that state practice was adopted in the U.S. Constitution, see Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), and in numerous state constitutions. See Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 13 (Oxford Press 2018). Further, many state constitutions from the Founding era contained provisions regulating elections. This historical context strongly supports state court review of state election laws under state constitutions. And while the text of the Elections Clause requires that state legislatures prescribe the laws governing federal elections, it does not otherwise displace the States’ established authority to determine the final content of their election laws, including through normal judicial review for constitutionality.
This conclusion is confirmed by the rest of the Elections Clause: the Clause specifies that Congress can override state election laws governing federal elections, yet Congress’s enactments are presumed to remain subject to constitutional review. State election laws likewise remain subject to state court review under the state (and federal) constitutions. State judicial review does not derogate from the primacy of the state legislature’s role. The legislature enacts state election laws and often plays a significant role in shaping the state’s constitution. And this Court’s precedent has explicitly and implicitly authorized significant checks on legislative power to make election laws, including a gubernatorial veto (see Smiley v. Holm, 285 U.S. 355 (1932)), state judicial review (Rucho v. Common Cause, 139 S. Ct. 2484 (2019)), judicial remedial authority (Growe v. Emison, 507 U.S. 25 (1993)), and state plebiscites (Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787(2015))….
Like their federal counterparts, state courts approach judicial decision making using a set of established tools. While they may not always use precisely the same interpretive frameworks as do federal courts—e.g., they may use different resources in determining the legislators’ or Framers’ intent in drafting a law or constitutional provision—they nonetheless are engaged in judicial review, not legislative acts, when they determine the content and constitutionality of state laws. The Elections Clause does not eliminate this consequence of our federal system, and it does not authorize the federal courts to impose their approaches or outcomes on state courts’ interpretation of state laws and state constitutions. Any federal review therefore must be exceedingly deferential.
The Conference is equally focused on the need for clear guidance about any constraints imposed on state courts by federal judicial review under the Elections Clause. Absent a clear standard, state courts will be unsure whether to apply otherwise applicable state laws and constitutional provisions, a consequence damaging to state sovereignty and judicial independence.
This concern is not addressed by the suggestion that state court judicial review is prohibited by the Elections Clause if it involves state constitutional provisions that are deemed too general or that impose substantive rather than procedural requirements. Such formulations do not provide state judges (or federal judges reviewing their decisions) with sufficient clarity to determine which constitutional provisions may be enforced, and the uncertainty will lead to disruptive litigation as state courts attempt to discern in expedited election-related proceedings which provisions they must disregard. Moreover, state courts have construed and developed precedent under so-called general constitutional provisions for decades, just as federal courts have done. Nothing in the Elections Clause suggests that state judicial review—unlike federal judicial review—should be cabined in this manner.
You can watch it here:
Jim Gibson has posted this draft on SSRN. Here is the abstract:
In its ruling abrogating a federal constitutional right to abortion services, the U.S. Supreme Court set off a firestorm of criticism unrivaled in recent times. Indeed, the Dobbs decision may be the most legitimacy threatening decision since the 1930s. At the same time, extant research has not established that displeasure with a ruling by the Court has great consequences for institutional support, largely because, as explained by Positivity Theory, Court decisions are invariability delivered with all the accoutrements of legitimizing judicial symbols. The purpose of this research is to determine whether the ruling in fact lessened the legitimacy of the Court and widened support for fundamental structural reforms to the institution. My most general conclusion is that Dobbs produced a sizable dent in institutional support, perhaps an unprecedented dent, in part because abortion attitudes for many are infused with moral content. Were the Court to go further than it did in Dobbs in its rejection of abortion rights, around one-half of the American people would either approve of the ruling or be willing to accept it despite disapproval. Were the Court to roll back Dobbs, nearly all the American people would either approve of the ruling or be willing to accept it despite disapproval. Especially in light of the substantial tilt of the Court to the right since 2020, the Court’s legitimacy may be at greater risk today than at any time since FDR’s attack on the institution in the 1930s.
You can read the brief here.
You can watch the event that I moderated, from UCLA Law’s Safeguarding Democracy Project, here:
I have written this piece with Dahlia Lithwick for Slate. It begins:
On Monday, the New York Times broke the news that last year conservative mastermind Leonard Leo had obtained control over $1.6 billion through something called the “Marble Freedom Trust” to further his deeply conservative political and legal agenda. While much of the follow up reporting so far has focused on the unusual but apparently legal means by which the donor of the money—an elderly electronics magnate named Barre Seid—structured the transaction to avoid paying at least $400 million in taxes, the longer-term implications for a democracy as we understand it in America are far more dire.
Over the last three decades, Leo brilliantly created an interconnected series of institutions and firms designed to fundamentally reshape the American judiciary and in turn American society. This new infusion of over one billion dollars is going to solidify this effort in a way that will be hard for anyone to counter, in part thanks to new election law rules created by the Leo-shaped judiciary….
Here’s where the bootstrapping comes in. The very same conservative judiciary that Leo helped create has been central to crafting new legal rules which help elect more Republicans to office. Cases like Citizens United and Speech Now have opened the floodgates to fund large outside political groups such as Super PACs. Cases like Americans for Prosperity Foundation v. Bonta are making it easier for that large money to be contributed anonymously or through entities that can mask the identity of those who are pulling the strings, providing an easier path to influence without giving voters valuable information about who is trying to influence them and elected officials.ADVERTISEMENT
Plus, voting rights cases such as Shelby County and Brnovich v. DNC have seriously weakened the protection for minority voters under the Voting Rights Act, providing the path for white Republicans to gain ever more influence. The upcoming Milligan v. Merrill case that the Supreme Court will hear this term threatens to further weaken minority voting power in the redistricting process. Leo’s organizations seed the judiciary with jurists who advance the very theories that undermine core democratic principles from voting rights to financial disclosure rules. As doom loops go, it’s a successful operation in making sure that minorities have fewer and fewer protections while judges arrogate to themselves power to say more and more.
This term, the Supreme Court will hear Moore v. Harper, a case that stands to empower Republican state legislators against Democratic-majority state supreme courts that have been enforcing voting rights protections contained in state constitutions. Not coincidentally, the Leo-backed (and Orwellian-named) “Honest Elections Project” has been involved in efforts to get the Court to embrace a theory in Moore of the “independent state legislature” that would rob state courts of the power to protect voters’ rights. (They’ve tried the same approach in other cases, including one supporting the Republican Party’s attempt to disqualify some 2020 ballots in Pennsylvania.)
These election law rulings are just a means to an end. The end includes rulings like Dobbs on abortion, the loosening of gun laws, the paring back of affirmative action, and reading the religion protections in the First Amendment in ways that will serve not only to put religion into public schools but also to provide a path for anti-LGBTQ discrimination. The new Supreme Court supermajority also has begun hobbling the administrative state and erecting new barriers for the federal government to protect the public through covid vaccines and measures to limit climate change. The end is, and has always has been, to ensure that wildly unpopular ideas and policies can be put into effect by a life-tenured judicial branch that represents a well-funded conservative minority.