I did not have time when I was at the Library of Congress looking at Justice Stevens’ papers to give a close read to the file in Vieth v. Jubelirer, a 2004 partisan gerrymandering case. In that case, four Justices, led by Justice Scalia, took the view that such claims were not justiciable (that is, could not be heard) in federal courts. [This is the position that the Supreme Court eventually took in the 2019 Rucho case.] Four Justices, including Justice Souter, dissented. Justice Kennedy agreed with the Scalia group that the standards for policing partisan gerrymandering put forward by the dissenters did not work. But he disagreed with Scalia about non-justiciability, believing the issue should percolate longer. Scalia’s opinion was not for the Court, but a plurality opinion joined by 3 other justices.
In the file, I found that Scalia originally was writing a majority opinion for the Court, with Kennedy joining Scalia, Thomas, Rehnquist, and O’Connor. Between the 4th and 5th drafts, Kennedy advanced his lone view to keep the issue open but not embrace any standards. That 5th draft was still called a majority opinion, but Scalia began attacking Kennedy’s position in that draft.
Also, interestingly, Justice Souter began his dissent as an opinion concurring in the judgment, drawing a distinction between statewide claims and district by district claims.
I’m sure there’s a lot more to do with this file for someone who has time. You can find the selected documents I copied at this link.
More than 20 years ago, then-Supreme Court Justice David Souter tried to warn that big money in politics risked turning United States officials into tools of an emerging “plutocracy.” We now know from recently-released case files that Souter had to strike the language in his draft Supreme Court opinion in a 2000 campaign finance case, Nixon v. Shrink Missouri Government PAC, as the price to secure Justice Sandra Day O’Connor’s vote. It’s too bad, because Souter’s warning is one that American political leaders, including justices on the Supreme Court itself, needed to hear. That warning was never made and thus never heeded. Today, American plutocracy—from Congress to inside the walls of the court itself—is alive and well.
Justice Souter was one of the most important, if underrated, voices among Supreme Court justices on questions of money in politics. His opinion in Shrink Missouri and similar cases in the early 2000s offered a jurisprudence of the First Amendment that is so different from the current Citizens United-fueled era in which limits on money in politics are mostly meaningless.
More than 20 years ago, then-Supreme Court Justice David Souter tried to warn that big money in politics risked turning United States officials into tools of an emerging “plutocracy.” We now know from recently-released case files that Souter had to strike the language in his draft Supreme Court opinion in a 2000 campaign finance case, Nixon v. Shrink Missouri Government PAC, as the price to secure Justice Sandra Day O’Connor’s vote. It’s too bad, because Souter’s warning is one that American political leaders, including justices on the Supreme Court itself, needed to hear. That warning was never made and thus never heeded. Today, American plutocracy—from Congress to inside the walls of the court itself—is alive and well.
Justice Souter was one of the most important, if underrated, voices among Supreme Court justices on questions of money in politics. His opinion in Shrink Missouri and similar cases in the early 2000s offered a jurisprudence of the First Amendment that is so different from the current Citizens United-fueled era in which limits on money in politics are mostly meaningless.
Writing in Shrink Missouri, Souter opined that limits on huge donations were essential to a functioning democracy and the public’s confidence in it: “Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.” This was an important warning, but Souter wanted to go much further. Souter’s original note of caution, not previously reported to my knowledge, was that there existed “broader threat that politicians grown dependent on large contributions will lose critical independence and instinctively identify interests of a plutocracy with the public good.” Tragically, this is very much what has happened in the years since the Supreme Court’s balance of power shifted when Justice O’Connor retired in 2006 and the Citizens United era ushered in a new gilded age….
An early draft of Justice Souter’s majority opinion in Shrink Missouri sought to expand the definition of corruption to include concepts of political equality. After quoting Buckley about the dangers of “improper influence” and “opportunities for abuse” that justified some campaign finance limits, Souter’s Shrink Missouri draft explained that in Buckley the court “made clear that we recognized a concern not confined to bribery of public officials, but extending to the broader threat that politicians grown dependent on large contributions will lose critical independence and instinctively identify interests of a plutocracy with the public good.”
Unfortunately, Justice Souter’s warning of an emerging plutocracy never made it into the final version of Shrink Missouri. O’Connor complained about the line, calling it an “unnecessarily sweeping definition of ‘corruption’ … one which goes beyond Buckley’s concern with quid pro quo corruption and the appearance thereof.” Justice Souter agreed to remove the line, remarking to O’Connor: “You drive a hard bargain.” The new language more meekly described the broader threat of big money as “politicians too compliant with the wishes of large contributors.”
The omission was unfortunate because Souter’s original insight was profound and surely right. When politicians spend all their time around the super-wealthy and depend upon their support, they will increasingly identify with their interests and values. And this is as true of Justice Clarence Thomas and his benefactor Harlan Crow as it is all of the presidential candidates that now depend upon megadonors to fund super PACs to support their campaigns…
Joan Biskupic and Derek Muller have covered the most important news I saw in Justice Stevens’ Bush v. Gore files: that the Article II (independent state legislature theory) emanated from Justice O’Connor, not Chief Justice Rehnquist, and that Justice O’Connor inexplicably abandoned the argument. As I saw in Justice Stevens’ notes, the Article II argument was originally in the per curiam opinion, but the Chief Justice stripped it out when Justice Kennedy said he would not join.
But I did also come across this draft per curiam order in Justice Stevens’ file, which indicates that someone (I think Justice Stevens, because of the handwritten correction) wrote up a proposed order that would have at least kept open the possibility of a recount of Bush and Gore ballots under a uniform standard set by the Florida Supreme Court to be done within six days of the order.
Note the reference at the end of the proposed order to uncertainty as to “whether there is time” to resolve claims about uniform standards “before December 18, 2000,” and with instructions to the Florida Supreme Court “either to terminate the recount or to enter an appropriate order providing assurance that like ballots will be given like treatment.”
I don’t know from my quick review of the file if this was circulated to any other Justices, but I did not see any such indication in the file.
Via Tierney Sneed at CNN, comes this cert. petition before the Supreme Court in No. 22-1138. Eastman is asking for a Munsingwear vacatur of a federal district court ruling, which would wipe that case off the books on grounds it is moot. The case held that Trump and Eastman likely committed a crime in how they tried to interfere with the electoral college vote and turn an election loser into an election winner. Eastman now argues the case is moot because the documents and been released, and the ruling “created a stigma for both Petitioner and his client, the former President of the United States and current candidate for the presidency.”
Of particular interest to me was Eastman’s warped view of the facts of the 2020 election aftermath in his brief. It makes no mention of the crimes that Eastman and Trump were accused of participating in, only indirectly suggesting that Eastman did nothing wrong.
It also wrongly suggests that because the Wisconsin Supreme Court more than a year after the 2020 election found the use of drop boxes did not comply with Wisconsin law, that “thousands of illegal votes [were] included in certified votes in the election.” That is false. There was no finding that any illegal votes were cast in Wisconsin via drop boxes, even if the method used to collect those ballots cannot be used in future elections. Teigen v. Wis. Elections Comm’n, 976 N.W.2d 519 (Wis. 2022), did not involve any allegation that ballot drop boxes were used to commit election fraud, and there was no credible evidence presented that drop boxes in Wisconsin or anywhere else facilitated such fraud. Id. at 583 (Ann Walsh Bradley, J., dissenting) (“There is no evidence at all in this record that the use of drop boxes fosters voter fraud of any kind. None. And there certainly is no evidence that voters who used drop boxes voted for one candidate or party or another, tilting elections either direction.”); see also Trump v. Biden, 951 N.W.2d at 583 (Hagedorn, J., concurring) (“At the end of the day, nothing in this case casts any legitimate doubt that the people of Wisconsin lawfully chose Vice President Biden and Senator Harris to be the next leaders of our great country.”).
Eastman’s brief also wraps itself in the most extreme version of the independent state legislature theory, suggesting any time a state or local administrator administered an election in a way not explicitly described in a state statute, the election was conducted illegally. (See my amicus brief in Moore v. Harper for the absurdity of this position.)
Given Ginni Thomas’s involvement in some of these same events, I hope that Justice Thomas will be recusing from considering this cert. petition.
Below the fold you can find Eastman’s statement of facts:
The Colorado Supreme Court in 2003 found that the state constitution precluded the legislature from mid-decade redistricting. That was despite the fact that the 2002 congressional map was implemented by a state court because the Assembly had failed to pass a congressional redistricting plan in time. The legislature wanted a shot at drawing a map in 2003. No dice, said the Colorado Supreme Court. The assembly appealed, citing its power to as the “legislature” to determine the manner of elections under the Elections Clause.
The Court denied cert in 2004. Chief Justice Rehnquist, joined by Justices Scalia and Thomas, dissented, relying on a version of his concurring opinion in Bush v. Gore (without citing it, opting, instead, to cite McPherson v. Blacker (1892) with a “cf.” signal): “Legislature” must mean something under Article I of the Constitution, and here the institutional legislature has been cut out of the process.
I have always been curious about the failure of the Chief Justice to cite his own Bush v. Gore concurrence which was directly on point. Surely it must have occurred to him to do so and he decided not to do so because the case was so controversial at the time.
I took a look this week at the (very thin) Salazar file in the newly released papers of Justice Stevens. Nothing there directly sheds light on Rehnquist’s citation decision, but the issue was flagged by then-clerk and now California Supreme Court Justice Leondra Kruger in her memo to Justice Stevens recommending a cert denial in the case:
I am pleased to welcome to ELB Book Corner Steve Vladeck, author of the new book, The Shadow Docket. Here is the last of three posts:
After introducing Purcell and how the Court used it inconsistently in the 2020 election cycle in ways that tended to favor Republicans and disfavor Democrats, Chapter 6 of my new book on the shadow docket turns to a pair of unsigned, unexplained decisions handed down in 2022 redistricting cases—and makes the case that here, as much as in any other set of shadow docket rulings, the Supreme Court’s behavior was undermining the republic (a charge leveled in the book’s subtitle), with hard-to-defend (and undefended) rulings that may well have altered which party currently controls the House of Representatives. It’s not a charge the book makes lightly, but the evidence is … significant.
When Alabama redrew its seven US House districts following the 2020 Census, the map included only one district where Black voters would form a majority, even though 27 percent of the state’s total population in the 2020 Census identified as Black. On November 4, 2021—the same day the map was signed into law by Governor Kay Ivey—a group of plaintiffs brought suit, arguing that the state had impermissibly engaged in “vote dilution” in violation of the Voting Rights Act. The suit was assigned to a special three-judge district court that featured two Trump- appointed district judges and the Clinton-appointed Eleventh Circuit judge Stanley Marcus.
On January 24, 2022, the three judges unanimously sided with the challengers. After a seven-day hearing featuring live testimony from seventeen witnesses, the court concluded that the plaintiffs had made out their case for a violation of the Voting Rights Act under the Supreme Court’s 1986 ruling in Thornburg v. Gingles—and that Alabama should have drawn a second “majority-minority” district. Noting that there was still plenty of time for the state to try again before the map needed to be finalized for the 2022 primary and general elections (it had taken less than a week to draw the unlawful map), the court ordered Alabama to redraw its map to include a second “majority-minority” district. That district would almost certainly create a second Democratic seat within Alabama’s 6–1 Republican House delegation.
Alabama appealed the ruling (and a separate one from a single district judge), but also asked the Court to stay both injunctions pending those appeals, to allow the unlawful map to be used for the 2022 midterms. On February 7, the Court agreed. There was no majority opinion, but a concurring opinion by Justice Kavanaugh, joined by Justice Alito, rested heavily on Purcell. Now promoting the Purcell principle to “a bedrock tenet of election law” (emphasis mine), Kavanaugh wrote that, “when an election is close at hand, the rules of the road must be clear and settled.” Thus, even though the district court injunction had specifically left it to the state to redraw its map in time for the 2022 midterm cycle (and had concluded that there was plenty of time for the state to comply), Kavanaugh complained that the district court was “swoop[ing] in and re-do[ing]” Alabama’s laws “in the period close to an election.”
There’s just one problem with Kavanaugh’s Purcell analysis: It makes no sense. The district court decision (which Kavanaugh referred to as a “late-breaking injunction”) came on January 24, more than nine months before the 2022 congressional election. And even if the Alabama primary was the relevant deadline, that election wasn’t until May 24, still four months away. Moreover, the challengers in the Alabama case had filed suit on the very day that the map had been adopted—the earliest possible moment for such legal action under the Supreme Court’s own precedents. Thus, Kavanaugh’s Purcell analysis effectively suggested that there was nothing the district court could have done to stop Alabama from using an unlawful map for at least one election cycle. Like the principle of tort law that “every dog gets one free bite,” every state would get one free election cycle using unlawful district maps every ten years.
I am pleased to welcome to ELB Book Corner Steve Vladeck, author of the new book, The Shadow Docket. Here is the second of three posts:
Yesterday’s post introduced the discussion of election cases in my new book on the shadow docket (out today!) by focusing on the significant and subjective ways in which the “Purcell principle” pushed courts to depart from regular equities-balancing analysis in election-related litigation as Election Day drew near. ELB’s Rick Hasen and others have written in detail about how this played out in cases throughout the 2010s, but perhaps the clearest crystallization of Purcell’s subjectivity—and how the Supreme Court’s use of it tended to favor Republicans and hurt Democrats—came in cases arising out of the 2020 election, and efforts to either change (or challenge local and state governments’ refusals to change) voting rules in response to the COVID pandemic.
It started with Wisconsin. Early in the pandemic, with COVID cases exploding across Wisconsin (and long before any vaccine was available), a federal district court in Madison ordered the state, among other things, to extend the deadline for receiving mail-in ballots for the state’s 2020 spring election, which included the 2020 presidential primaries plus contests for a seat on the Wisconsin Supreme Court, three seats on the intermediate state court of appeals, and several thousand other positions. Because of delays by the state in processing the record number of applications for mail-in ballots, and by the US Postal Service in delivering those ballots to voters, the district court held that a number of voters who had requested mail-in ballots in a timely fashion risked being disenfranchised through no fault of their own. Thus, the court ordered the state not only to extend the deadline for when mail-in ballots needed to be received (to six days after Election Day), but also to extend the mailing deadline, such that every mail-in ballot received by that date should be counted, even if they were mailed the day after the election.
The Seventh Circuit stayed part of the injunction but left the extension of both the mailing and receipt deadlines intact. The Supreme Court, in an unsigned, 5–4 ruling, put the original mailing deadline back into effect. Although the Court went out of its way to take no position on the merits (a punt made possible only by Purcell, since the merits would be one factor under “normal” stay analysis), it invoked Purcell for the proposition that “this Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”
But as Justice Ginsburg pointed out in her dissent on behalf of all four Democratic appointees, invoking Purcell in this context was more than a little ironic. The district court ruling extending the postmark deadline for mail-in ballots posed little risk of voter confusion, since uninformed voters would just return their ballots earlier. The Supreme Court’s own ruling was instead the one that risked creating confusion. After all, one day before the election, it was the justices themselves who had moved the postmark deadline back up to Election Day. Worse still, Ginsburg wrote, the tens of thousands of Wisconsin voters who still had not even received their mail- in ballots would now be forced to vote in person, even as COVID cases were increasing dramatically both within the state and nationwide. Under any conventional balancing of the equities, the Supreme Court should (and would) have stayed its hand. Under Purcell, it could—and did—ignore those powerful, countervailing considerations.
The inconsistency pervading the Court’s approach to Purcell was made even clearer three months later in a case arising out of Florida. In 2018, Florida voters had amended the state constitution to restore the right to vote to convicted felons who had fully served their sentences, an amendment that would re-enfranchise as many as one million voters. Florida’s Republican- controlled political branches vehemently opposed the amendment; because the population to whom it applied was overwhelmingly poor and nonwhite, the widespread assumption was that it would favor Democrats. Thus, the governor and state legislature interpreted the amendment as only applying to those released felons who had also cleared all outstanding fines, fees, and restitution, even if they could not afford to do so, or even if, as was usually the case, Florida wasn’t sure how much they even owed, because of faulty recordkeeping or a lack of clarity in the underlying judgments. When those interpretations of the felon re-enfranchisement amendment were challenged in 2019, a federal district court temporarily blocked them, holding that they were likely unconstitutional violations of due process (because many convicted felons did not and could not know how much they owed); equal protection (because they imposed a wealth barrier to voting); and the Twenty-Fourth Amendment (which prohibits poll taxes). In May 2020, the district court issued a final judgment after an eight-day trial, striking down the pay-to-vote requirements.
The Supreme Court issued a decision in National Pork Producers Council v. Ross, holding that California may regulate sale of pork products in state even if it may affect interstate commerce. Not much of an election law angle.
One theory advocated by the petitioners, per the Court: “Failing in their first theory, petitioners retreat to a second they associate with Pike v. Bruce Church, Inc., 397 U. S. 137 (1970). Under Pike, they say, a court must at least assess ‘”the burden imposed on interstate commerce”‘ by a state law and prevent its enforcement if the law’s burdens are ‘”clearly excessive in relation to the putative local benefits.”‘”
Here, the Court has a lot to say about balancing tests–some very skeptical.
I suggested last year that I thought the Anderson-Burdick balancing test for reviewing election rules in federal court may not survive the decade. So the Court’s overly skeptical language on these points is worth noting, I think–although only three justices expressed the greatest skepticism.
In an opinion by Justice Gorsuch, joined only in this part by Justices Thomas and Barrett (all selections lightly edited):
I am pleased to welcome to ELB Book Corner Steve Vladeck, author of the new book, The Shadow Docket. Here is the first of three posts:
The subtitle of my new book on the Supreme Court’s “shadow docket,” which hits bookstores tomorrow, is deliberately provocative—promising to demonstrate “How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.” Of course, the power-amassing features of the shadow docket are neither especially contested nor especially new; as Chapter 1 of the book recounts in detail, the rise of certiorari in the early 20th century reflected a deliberate effort by the Court’s champions, including Chief Justice William Howard Taft, to strengthen the Court by giving the Justices more control over their caseload—a project in which Congress may have acquiesced, but in which the Court repeatedly went further than it had promised the legislature it would. But the claim that the Court has used unsigned, unexplained orders in recent years “to undermine the republic” requires a bit more explication and defense. That’s the focus of Chapter 6 of the book—and of this post (and two subsequent posts) about the book for Election Law Blog’s “Book Corner,” which includes edited excerpts from the book. Today’s post focuses on the rise of the “Purcell principle”; tomorrow’s looks at how the Court’s inconsistent use of Purcell in the 2020 election cycle had the remarkable tendency to benefit Republicans at the expense of Democrats. And Wednesday’s post uses the 2022 redistricting cases to demonstrate how a pair of unsigned, unexplained orders may have helped to ensure Republican control of the House in the 118th Congress.
Part I: The Purcell Problem
Readers of ELB are likely already familiar with Purcell v. Gonzalez—and the cryptic, unsigned majority opinion in a 2006 dispute, itself on the shadow docket, about a series of Arizona voter ID requirements. In a nutshell, Arizona had asked the Court to stay an injunction pending appeal that the Ninth Circuit had issued, which would have prevented the requirements from being used in the 2006 elections).
Rather than grant a stay, the Supreme Court treated Arizona’s application as a petition for certiorari, granted it, and summarily reversed the Ninth Circuit. The unsigned and cryptic majority opinion articulated a new and infamously subjective principle. At its simplest, the principle is that, to avoid confusion among voters and election administrators, courts should generally not change the rules governing elections as Election Day approaches, meaning that injunctions against even unlawful election rules are increasingly disfavored as Election Day draws near.
Purcell is not an argument against the power of lower courts to provide remedies for unlawful election laws; rather, it’s an argument against allowing injunctions of election laws to go into effect too close to elections. Although it’s directed toward district courts, Purcell is as much a principle for appellate courts to apply, to justify stays of district court injunctions issued too closely to an election, or, as the Supreme Court held the Ninth Circuit should have in Purcell, to justify staying their hand when district courts had, as well.
At first blush, that principle seems reasonable enough: court orders— especially competing court orders— changing the rules in the run-up to Election Day can easily cause chaos, risking not just the potential disenfranchisement of confused voters, but potential headaches for election officials tasked with administering an election and tallying results under shifting legal foundations. Indeed, perhaps the best defense of Purcell is that it was an attempt by the Supreme Court to introduce rigidity into an area in which the justices believed there was too much discretion— to tightly circumscribe the power of courts as Election Day approaches.
But in the seventeen years since Purcell was handed down, numerous problems have emerged with the principle it espoused. First, on its own terms, Purcell never explained when it’s “too close” to an election for courts to intervene. In Purcell itself, the Ninth Circuit injunction came thirty-three days before the Arizona election—far enough out to seemingly abate any confusion or concern (the Supreme Court’s decision, in contrast, came just eighteen days before the election). But if thirty-three days is too close, what about forty-three? Or sixty-three? Indeed, in a 2022 ruling we’ll come back to on Tuesday, the Court appeared to rely on Purcell to block a district court injunction handed down over nine months before the election— and twelve weeks before the primary (which, unlike the general election, could have been moved if necessary). Right off the bat, then, Purcell’s seeming nod toward a bright-line rule turns on the grayest of temporal considerations—inviting the very subjective decision-making from judges that the decision claimed it was trying to eliminate.
It’s a case about the dormant commerce clause and California’s power to prohibit the in-state sale of pork that comes from conditions California deems cruel. But the Supreme Court’s decision last week in National Pork Producers Council v. Ross had multiple invocations of Shelby County v. Holder and its statements on “equal sovereignty.”
From III-B of the opinion, written by Justice Gorsuch, and joined by Justices Thomas, Sotomayor, Kagan, and Barrett:
To resolve disputes about the reach of one State’s power, this Court has long consulted original and historical understandings of the Constitution’s structure and the principles of “sovereignty and comity” it embraces. BMW of North America, Inc. v. Gore, 517 U. S. 559, 572 (1996). This Court has invoked as well a number of the Constitution’s express provisions—including “the Due Process Clause and the Full Faith and Credit Clause.” Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 818 (1985). The antidiscrimination principle found in our dormant Commerce Clause cases may well represent one more effort to mediate competing claims of sovereign authority under our horizontal separation of powers. But none of this means, as petitioners suppose, that any question about the ability of a State to project its power extraterritorially must yield to an “almost per se” rule under the dormant Commerce Clause. This Court has never before claimed so much “ground for judicial supremacy under the banner of the dormant Commerce Clause.” United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Management Authority, 550 U. S. 330, 347 (2007). We see no reason to change course now.[n.1]
[n.1:] 1Beyond Baldwin, Brown-Forman, and Healy, petitioners point to Edgar v. MITE Corp., 457 U. S. 624 (1982), as authority for the “almost per se” rule they propose. Invoking the dormant Commerce Clause, a plurality in that case declined to enforce an Illinois securities law that “directly regulate[d] transactions which [took] place . . . wholly outside the State”and involved individuals “having no connection with Illinois.” Id., at 641–643 (emphasis added). Some have questioned whether the state law at issue in Edgar posed a dormant Commerce Clause question as much as one testing the territorial limits of state authority under the Constitution’s horizontal separation of powers. See, e.g., D. Regan, Siamese Essays: (I) CTS Corp. v. Dynamics Corp. of America and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 Mich.L. Rev. 1865, 1875–1880, 1897–1902 (1987); cf. Shelby County v. Holder, 570 U. S. 529, 535 (2013) (“[A]ll States enjoy equal sovereignty”). But either way, the Edgar plurality opinion does not support the rule petitioners propose. That decision spoke to a law that directly regulated out-of-state transactions by those with no connection to the State. Petitioners do not allege those conditions exist here. To the contrary, they acknowledge that Proposition 12 regulates only products that companies choose to sell “within” California. Cal. Health & Safety Code Ann. §25990(b).
And in Part IV-D of the opinion (joined here only by Justices Thomas and Barrett), Gorsuch takes aim at Chief Justice Roberts’s opinion concurring in part and dissenting in part, invoking Shelby County (perhaps, in part, because Roberts wrote that opinion):
Seeking a way around that problem, the lead dissent stumbles into another. It suggests that the burdens of Proposition 12 are particularly “substantial” because California’s law “carr[ies] implications for producers as far flung as Indiana and North Carolina.” Why is that so? JUSTICE KAVANAUGH’s solo concurrence in part and dissent in part says the quiet part aloud: California’s market is so lucrative that almost any in-state measure will influence how out-of-state profit-maximizing firms choose to operate. But if that makes all the difference, it means voters in States with smaller markets are constitutionally entitled to greater authority to regulate instate sales than voters in States with larger markets. So much for the Constitution’s “fundamental principle of equal sovereignty among the States.” Shelby County v. Holder, 570 U. S. 529, 544 (2013) (internal quotation marks omitted).
The Supreme Court on Thursday overturned the 2018 conviction of a former aide to New York Gov. Andrew M. Cuomo (D), once again expressing skepticism of the ways federal prosecutors combat public corruption and influence peddling.
The justices took the case to determine whether Joseph Percoco could be convicted of depriving the public of his “honest services” given thathe was working for Cuomo’s reelection campaign — rather than in his former role as an aide to the governor — when he accepted $35,000 in payments from a construction company.
Percoco made calls to state officials on the company’s behalf just before returning to government employment.
He was convicted on instructions “that required the jury to determine whether he had a ‘special relationship’ with the government and had ‘dominated and controlled’ government business,” Justice Samuel A. Alito Jr. wrote for his unanimous colleagues.
“We conclude that this is not the proper test for determining whether a private person may be convicted of honest-services fraud.”
In a separate case, the court was also unanimous in overturning the conviction of business executive Louis Ciminelli and others who won a $750 million development contract as part of Cuomo’s Buffalo Billion revitalization project.
Common Cause takes the position the case is not moot and the Supreme Court can still decide it. It adds: “Although the Court has pending before it another petition for certiorari raising a similar question from Ohio, see Huffman v. Nieman, No. 22-362, it is not clear that the Elections Clause question was preserved in that case, and this Court would need to accelerate its review dramatically to resolve the case in time for maps to be finalized for the 2024 election cycle. Such accelerated review would be regrettable in resolving an issue of this magnitude.”
Jimmy Hoover for the National Law Journal, examining the Stevens papers:
Among the many insights from Stevens’ papers are the once-private internal court memos in which justices offer suggestions or critiques of each other’s draft opinions in particular cases.
The court’s campaign finance ruling in McConnell v. FEC, upholding various aspects of the BCRA, is no exception.
Alongside Stevens and O’Connor, Rehnquist had assigned himself one of the three majority opinions in the case, and had circulated a draft to his fellow justices. But his use of the phrase “exacting scrutiny” to refer to the standard of review courts should apply to limits on campaign contributions under the First Amendment set off alarm bells by several of his colleagues.
“I write at this point only to speak to the question of replacing ‘exacting scrutiny’ with ‘heightened scrutiny,’ as Sandra requested,” Justice David Souter wrote in a letter to Rehnquist in late November, just weeks before the decision was set to be announced.
Souter said the court had explained just a few years earlier in the 1999 case Nixon v. Shrink that the appropriate test was whether a contribution limit was “closely drawn” to match a “sufficiently important interest.”
“To switch back now to the simple modifier ‘exacting’ would risk leaving readers uncertain of what we mean,’” Souter wrote Rehnquist.
Other members of the court expressed similar concerns over the phrase “exacting scrutiny,” but Justice Antonin Scalia chimed in to defend that more rigorous standard of review in a letter to the chief justice that November, copies of which were sent to other chambers.
Souter and company appear to have won out, and Rehnquist’s final opinion made no mention of the phrase, much to Scalia’s chagrin. “[T]he ‘exacting scrutiny’ test of Buckley (v. Valeo) … is not uttered in any majority opinion, and is not observed in the ones from which I dissent,” he wrote in his dissenting opinion.
Debate over a simple phrase may seem like a trivial point, but underpinning the discussion is a debate about how much deference courts should give legislative bodies to enact campaign finance rules.
“The reason why that is significant is that the term ‘exacting scrutiny’ could make it more likely that a court would strike down a contribution limit as unconstitutional,” said Rick Hasen, an expert in election law at the UCLA School of Law, who runs the Election Law Blog.
“At the time that Souter is writing this, he has been the main driving force in a series of campaign finance cases making it clear that contribution limits should generally be upheld even when they’re really strict,” Hasen said. “And exacting scrutiny could suggest something like strict scrutiny.”
Souter’s deferential approach to campaign finance laws would ultimately give way to a more skeptical one employed by the Supreme Court in later years, as exemplified in rulings like McCutcheon v. FEC.
Hasen said O’Connor’s retirement in 2006 shifted the “balance of power” on the court and that “everything that Souter was trying to accomplish there is now water under the bridge.”
“It’s gone,” Hasen said. “When you read McCutcheon and you read Americans for Prosperity Foundation v. Bonta, it’s well established now that exacting scrutiny applies to both contribution limits and to disclosure laws.”
