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.
“Expedited” review of cases may be in the eye of the beholder. Appeals are pending in Section 3 cases in both Colorado and Michigan. Both states have indicated the cases ought to be resolved by the first week of January to avoid ballot printing issues. But neither appears on track for Supreme Court review anytime soon.
In Colorado, a complaint was filed September 6. The trial court issued an order on November 17. The Colorado Supreme Court’s expedited briefing schedule means oral argument will take place December 6.
In Michigan, a complaint was filed September 15. The trial court issued an order on November 14. The Michigan Court of Appeals has expedited the appeal, and reply briefs are due December 8. The parties also asked the Michigan Supreme Court to take the case immediately, but so far the court has not done so (although that could change at any moment, as might happen in fast paced litigation).
It is quite likely that no final decision from either state will come before mid-December. And if, as many have hyped, the United States Supreme Court is expected to weigh in, it will have about three weeks–including the holidays–to reach a decision on the merits. Yes, the Court has moved at breakneck pace before, as it did in Bush v. Gore. But these state courts are not moving with speed one might expect to maximize time for federal review. Instead, they are moving at a relatively expedited pace that seems most consistent with resolution before the ballot printing deadlines in the state, and a bit of time leftover for the Supreme Court. It seems that the most fulsome briefing may not happen if the Court wants to resolve by a ballot printing deadline. We’ll see how these or other cases proceed in the days ahead.
Joan Biskupic for CNN:
A US appellate court decision Monday undercutting the Voting Rights Act of 1965 rejects decades of precedent and appears likely to provoke a confrontation at the US Supreme Court, where the milestone law has been increasingly under attack.
At stake are the voting rights of Blacks, Hispanics and other racial minorities that have been vindicated under a section of the VRA prohibiting discrimination based on race. Section 2 has helped ensure that states draw legislative and congressional districts fairly and that minority voters have an opportunity to elect candidates of their choice.
The Supreme Court – as recently as June – has reaffirmed Section 2. But US appellate judge David Stras, the author of the majority opinion in Monday’s case from Arkansas, observed that Justices Clarence Thomas and Neil Gorsuch have called a key provision of the law into question. His ruling Monday could ultimately gut the law’s protections.
Monday’s appellate court ruling – essentially getting out ahead of the high court – seems certain to instigate a new voting-rights showdown as the nation heads into a presidential election cycle.
The decision is the latest example of former President Donald Trump’s influence over the federal judiciary. Stras, one of Trump’s first appellate court appointees, defied Supreme Court precedent to bolster a conservative interpretation of the law backed by Thomas and Gorsuch, who was Trump’s first Supreme Court appointee.
Derek just blogged about this divided decision of the Eighth Circuit. It’s hard to overstate how important and detrimental this decision would be if allowed to stand: the vast majority of claims to enforce section 2 of the Voting Rights Act are brought by private plaintiffs, not the Department of Justice with limited resources. If minority voters are going to continue to elect representatives of their choice, they are going to need private attorneys to bring those suits.
The majority reaches its decision with a wooden, textualist analysis. It reaches it decision despite recognizing that the Supreme Court and lower courts have for decades allowed such cases to be brought, assuming that Congress intended to allow such suits. And the majority acknowledges that the legislative history of the passage of Section 2 leaves no doubt: Congress intended to allow private plaintiffs to bring suit.
And even a pure texualist analysis should have brought the Eighth Circuit to the same conclusion that the (very conservative 5th Circuit) easily reached: that private plaintiffs have the right to sue.
I wrote in Slate after the Supreme Court’s suprising pro-voter decision in Allen v. Milligan last June:
Despite Roberts’ strong opinion in Milligan reaffirming the vitality of Voting Rights Act jurisprudence and confirming the constitutionality of Section 2, there’s no reason to expect that voting rights’ opponents will drop their attacks as they seek to maximize the power of white majority voters. And the varied opinions in the Milligan case leave open at least two major lines of attack against the VRA—that the act is no longer constitutional and that it does not give private plaintiffs a right to sue—that may once again test Roberts’ and Kavanaugh’s commitment to voting rights in cases down the road.
Given the circuit split now on the private right of action question, it is almost inevitable that the Supreme Court will have to weigh in here. Two Justices (Gorsuch and Thomas) have endorsed this dangerous theory; the question if there will be three more.
“[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.
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.
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.Continue reading When might the Supreme Court weigh in on Section 3 challenges to Trump’s access to the ballot?
I have posted this draft on SSRN. Here is the abstract:
This is the written version of a keynote address delivered to the Southern California Law and Social Science (SOCLASS) Forum, “Elections, Law and Democracy” Conference, Whittier Law School, March 28, 2014. Using examples from ballot access cases, campaign finance cases, redistricting cases, and election administration/voter identification cases, the address makes two arguments: First, in the Supreme Court’s election law cases, talk about “facts” and “evidence” is the tail wagging the dog. The Court is imposing value judgments in these cases, but sometimes camouflaging them behind a search for evidence, or worse yet, asserting facts about the state of the evidence which are not borne out by the evidence. This is true for both liberal and conservative Justices. Second, the Court needs to take one of two paths to correct its approach. Either it needs to get serious about facts and evidence in these cases, a change which has the potential to profoundly change our laws about campaign finance, voter identification, gerrymandering, and ballot access. Or the Court needs to stop camouflaging its value judgments and admit that facts don’t matter and no amount of evidence will matter given the Justices ideological commitments. I strongly favor the first approach, but the second approach would be better than the status quo when it comes to transparency and intellectual honesty. After discussing these two points the paper turns to a final question: how should social scientists and law professors who value social science respond to the Court’s misuse and abuse of social science in the election law cases?
Scott Kafker and Simon Jacobs have posted this draft on SSRN (forthcoming, Wake Forest Law Review). Here is the abstract:
There is a dangerous lack of clarity in the Supreme Court’s recent decision in Moore v. Harper, which held that state supreme courts’ interpretations of their state election laws are subject to review and reversal in federal court when “they transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislature to regulate federal elections.” By resurrecting the reasoning of Bush v. Gore, with particular emphasis on the concurrence by Chief Justice Rehnquist, the Supreme Court risks unleashing the same chaotic reaction to the judiciary caused by the original decision. But this is not necessary. In our view, the original understanding of the Elections Clause provides for a very limited form of additional federal oversight. The provision does not authorize the Supreme Court to substitute its judgment for state courts on the meaning of state election statutes or state constitutions, as Chief Justice Rehnquist did in Bush v. Gore. Nor does it authorize an open-ended inquiry into what it means to transgress the ordinary bounds of judicial review, as there is no consensus on the Supreme Court or other courts on what that means. It also does not prevent state courts from providing greater protection of voting rights than that provided by state legislatures or the federal Constitution when such rights are granted by the state constitution. Nor does it impose a particular interpretive methodology on state courts in interpreting their constitutions or the federal constitutional conception of separation of powers or stare decisis. It only prevents state courts from performing the function of state legislatures, as the state legislatures are expressly responsible under the federal Constitution for prescribing the time, place, and manner of elections, subject to state constitutional review. Justice Souter’s dissent in Bush v. Gore encapsulates the overreach at issue. State courts may not create new election laws untethered to the legislative act or state constitutional provision in question. Such fundamental rewriting of the election laws, and usurpation of the legislative function is forbidden.
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.
Is the Roberts Court shifting on its protection of voting rights?
How has the addition of three Trump-appointed Justices changed the nature of the Supreme Court?
Should we expect a new ethics code for Supreme Court Justices?
On Season 5, Episode 2 of the ELB Podcast, we speak with Joan Biskupic, CNN’s senior supreme court analyst and author of the new book, Nine Black Robes.
You can watch here: