Monthly Archives: June 2022

Supreme Court to hear case on state authority over elections

From the AP:

“This case could profoundly alter the balance of power in states and prevent state courts and agencies from providing protections for people’s right to vote,” said Rick Hasen, a law professor at the University of California, Irvine. “There’s a wide range of ways the court could rule on this. Taken to its extreme, it would be a radical reworking of our system of running elections.”

In the most extreme example, lawyers said, if the Supreme Court were to rule that no entity besides state legislatures can set rules regarding federal elections, that could stop a governor from vetoing election bills or a state court from blocking rules that set up different voting hours in urban and rural precincts.

Jason Torchinsky, a Republican lawyer who wrote a legal brief urging the high court to take the case, said it is absurd to think the Supreme Court would ultimately allow that. He noted that as recently as 2015, the court agreed that legislatures do not have absolute power in elections, ruling that Arizona’s voter-approved redistricting commission could legally take the authority away from lawmakers to draw district lines.

“I don’t think you can take the theory as far as ‘the legislatures alone can do whatever they want,’” Torchinsky said. “The problem is we have these rogue state courts.”

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Breaking and Analysis: Supreme Court Will Hear Moore v. Harper, the Independent State Legislature Theory Case from North Carolina; This Case Could Severely Curtail the Ability of State Courts to Protect Voting Rights and Stop Partisan Gerrymandering

The Supreme Court today just agreed to hear Moore v. Harper, an “independent state legislature” theory case from North Carolina. This case has the potential to fundamentally rework the relationship between state legislatures and state courts in protecting voting rights in federal elections. It also could provide the path for election subversion.

The issue presented in this case has been a recurring one in recent years. Two parts of the Constitution, Article I, Section 4 as to congressional elections and Article II as to presidential elections give state “legislatures” the power to set certain rules (in the Art. I, section 4 context, subject to congressional override). The Supreme Court has long understood the use of the term legislature here to broadly encompass a state’s legislative process, such as the need for a governor’s signature on legislative action (or veto override) about congressional elections. See Smiley v. Holm. As recently as 2015, the Supreme Court held that the voters in Arizona could use the initiative process to create an independent redistricting commission to draw congressional districts even when the state legislature objected. See Arizona Independent Redistricting Commission v. Arizona Legislature.

But that latter case was 5-4 with a strong dissent by Chief Justice Roberts, who believed the legislature could not be cut out of the process. Most of the Justices in the majority in that case are now off the Court.

There’s a more radical version of the idea that the Legislature has power, standing on its own as a body and not part of the general structure of state government, in the independent state legislature theory.

Take the facts of the Moore case. The North Carolina Supreme Court, interpreting a provision of the state constitution protecting the right to vote, held that partisan gerrymandering violated the state constitution and required drawing fairer lines, including in Congressional districts. That state court is majority-Democrat and the NC General Assembly is majority Republican. The Republican legislature argued that this holding usurped its sole and plenary power to choose the manner for drawing congressional districts.

Pause on that for a moment: the theory in its extreme is that the state constitution as interpreted by the state supreme court is not a limit on legislative power. This extreme position would essentially neuter the development of any laws protecting voters more broadly than the federal constitution based on voting rights provisions in state constitutions.

And this theory might not just restrain state supreme courts: it can also potentially restrain state and local agencies and governors implementing rules for running elections.

And this kind of argument shows how the ISL theory, if taken to its extreme, could help foment election subversion. How so? Suppose a state agency interprets state rules to allow for the counting of certain ballots, and doing so favors one candidate. If the leaders of the legislature are from the other party, and they say that the interpretation does not follow the views of the legislature, it’s impermissible and the results need to flip.

Now there may be many responses to such arguments, including arguments like laches—you can’t start raising these arguments after an election when things don’t go your way.

This was in fact the theory that Trump allies tried to raise after the PA Supreme Court extended the time to receive absentee ballots in the 2020 elections because of covid, relying on voter protective provisions in the State constitution. Trump allies argued this usurped the power of the state legislature to set deadlines, and Justice Alito at the time (Circuit Justice for the Third Circuit) put the counting of such ballots on hold. There were about 10,000 such ballots, far fewer than the 80,000 vote victory of Biden in the state. But if it had been closer, a radical reading of ISL could have led to a flipping of results.

Now may be more limited ways of reading the ISL theory, such as to apply only when a state court or agency decision very strongly deviates from legislative language about how to run federal elections.

There are also strong originalist arguments that might persuade some of the Justices not to adopt such a radical reading of these constitutional provisions.

But buckle up! An extreme decision here could fundamentally alter the balance of power in setting election rules in the states and provide a path for great mischief.

[This post has been updated]

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Analysis: Supreme Court in EPA Case, Like the OSHA Case Earlier This Term, Shows The Court is Not Really “Textualists” and Applies Statutory Canons Reflecting Its Values

Dissenting today in West Virginia v. EPA, Justice Kagan writes: “Some years ago, I remarked that “[w]e’re all textualists now.” Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes (Nov. 25, 2015). It seems I was wrong. The current Court is textualist only when being so suits it.”

This term surely proves the point. The “normal” mode of textual analysis we see from Justices like Justice Gorsuch begin with the words of a statute, often read in the context of surrounding text, looking to dictionaries and other tools of ordinary meaning. And the approach avoids relying on legislative history as unreliable or even unconstitutional. The larger debate over textualism and the flaws in it are well covered in the late Judge Bob Katzmann’s excellent book, “Judging Statutes.”

But put aside that debate for today and take textualism on its own terms. In today’s EPA case, like the Supreme Court’s earlier ruling saying OSHA had no authority to require covid vaccines in larger workplaces, show that the conservative Justices are fair weathered textualists. In both cases, they don’t turn to dictionaries to figure out if the relevant agency has the authority from Congress to take on key issues in its area (EPA to deal with climate change threats from greenhouse gases and in OSHA the authority to regulate workplace safety).

Instead, the Justices pull a rabbit out of a hat and avoid the words of the statute almost in their entirety. How do to so? Textualists have adopted certain “canons” or rules of thumb to decide cases. Many of these canons are about how to read punctuation and grammar (like the last antecedent rule). But there are also “substantive canons” that put a thumb on the scale when it comes to interpreting cases. A rule for example that says to read criminal statutes leniently to favor criminal defendants is one example, because of constitutional protections for criminal defendants. Justice Scalia, who claimed to be an avid textualist, said that such canons cause whole a lot of trouble for an honest textualist. (I wrote a lot about this in a chapter in my book on Justice Scalia, The Justice of Contradictions.)

Today, as in the OSHA case, the Court pulls a rabbit out of a hat using what it now calls the “major questions doctrine.” It says that on big issues, the presumption is—even if Congress’s language is broad and wide as in these two cases—that Congress did NOT delegate the power to the agency to regulate a big issue. Congress has to be really clear and specific — again, even if as in the EPA and OSHA cases, there is a broad general grant of authority.

Why this substantive canon? It comes from the value judgments of the conservative Justices and from nowhere else. These justices are skeptical of broad administrative power, and of executive power generally. These justices know that in a closely divided Congress, its rulings like this will stymie legislative action on issues like climate change or preventing the spread of Covid. And they are fine with that.

You don’t pull a rabbit out of a hat as a judge unless it gets you somewhere. And this gets the justices to the ideological position they like. So much for honest textualism.

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Florida Republicans turn school elections into new political battlegrounds

From Politico:

Florida Republicans are capitalizing on the national movement surrounding parental rights and education by jumping into local school board races with crucial endorsements and much-needed cash.

Dozens of political committees with ties to Florida conservatives are funneling thousands of dollars toward candidates who share Gov. Ron DeSantis’ priorities by campaigning against issues like critical race theory. DeSantis endorsed a slate of 10 school board candidates — a rare, if not unprecedented, move for a Florida governor that could help Republicans capture more support in the midterms from parents energized by contentious issues such as masking students during the pandemic.

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The Supreme Court has chipped away at the Voting Rights Act for 9 years. This case could be the next blow.

From Politico:

The Voting Rights Act of 1965 has been slowly whittled away over the last decade by the Supreme Court — and a case set to be heard in the fall could shrink the protections offered by the law to the smallest level yet.

Now, a still-more conservative Court will hear arguments in the fall about Alabama’s redistricting, in a case targeting the other central piece of the Voting Rights Act: Section 2, which prohibits voting practices and procedures that discriminate on the basis of race. The result of the case could make it more difficult for minority communities to claim new election laws are discriminatory — and raise the bar for what has to happen to get relief from the courts.

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Wisconsin Court Allows Republican to Stay on State Board After Term Ends

From the NYTimes:

The Wisconsin Supreme Court on Wednesday effectively handed the Republican-controlled State Senate broad authority over the composition of state boards and commissions, three and a half years into the term of a Democratic governor whose duties include naming board members.

The ruling allows a Republican member of the state Natural Resources Board whose term expired in May 2021, Frederick Prehn, to keep his position. Dr. Prehn had refused to step down, arguing that a replacement to his post has not been confirmed.

The court’s 4-3 opinion, which fell along partisan lines, turned on a technical question of when the seat on the board would be legally vacant. But its practical effect was to affirm a strategy devised by the State Senate to keep Republican board members in office simply by refusing to confirm replacements nominated by Gov. Tony Evers, a Democrat.

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Ex-Giuliani Associate Is Sentenced to Prison in Campaign Finance Scheme

From the NYTimes:

When Lev Parnas was arrested in 2019, he was known mainly as a minor presence in Republican political circles: someone who traded on connections with allies of Donald J. Trump, including the president’s personal lawyer, Rudolph W. Giuliani, to gain access to other Republican candidates.

But prosecutors say Mr. Parnas had broader — and illegal — aims: He conspired to funnel money from a Russian oligarch to candidates as part of an influence-buying scheme to benefit a cannabis business, according to charges that led to his conviction last year on campaign finance offenses.

On Wednesday Judge J. Paul Oetken of Federal District Court in Manhattan sentenced Mr. Parnas to 20 months in prison.

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ELB Book Corner: George Thomas: “The Inescapability of Constitutional Judgment”

I am pleased to welcome to ELB Book Corner George Thomas, author of The (Un)Written Constitution. Here is the final of three posts:

ELB Book Corner

In the first post I pointed out that unwritten understandings play a central role in attempting to faithfully interpret constitutional text, which was followed by the second post where I argued that this leads to a process where constitutional meaning is constructed over time, rather than simply being draw out from the text itself. In this last post, I highlight the fact that we must inescapably make judgments about how to order, weigh, and understand different textual provisions and values as part of a constitutional whole.

There is no getting around this. There is no safe space that allows us to avoid making constitutional judgments that are not determined by text, just the reasons we give for making them. When should courts defer to democratic legislation, and when should they protect rights against democratic legislation? The text does not answer these question for us.

In a recent voting rights case, Justice Ginsburg argued that given the history of discriminatory voting procedures—particularly against blacks in many southern states—the Court ought to give wide latitude to Congress in order to protect minority voting rights. In doing so, she urged the Court to defer to Congress’s information gathering and past record in eliminating race-based discrimination in voting, which had historically plagued America’s democratic process.

The Court, in an opinion by Chief Justice Roberts, argued that on the basis of “principles of federalism,” the Congress should not require that certain states and counties get approval from the national government before enacting any law related to voting. True, there was a history of racial discrimination in these districts, but given that it was 50-plus years ago, the Congress should not treat states differently in this regard without a recent showing of discriminatory voting practices on the part of particular states. Chief Justice Roberts would defer to states and, in doing so, overturn sections of a congressional statute. Roberts took seriously the gravity of his decision, but argued it was unconstitutional to subject certain jurisdictions to rules from the federal government without new evidence that these jurisdictions had engaged in racially discriminatory voting practices.

Like Justice Ginsburg’s judgment, the chief justice’s judgment was rooted in how he constructed relations among the states and national government, voting rights, and the Court’s role in the constitutional scheme. Neither simply turned to constitutional text. Rather, based on different textual provisions, an examination of history, and weighing constitutional principles, they arrived at their judgments of what the Constitution, taken as a whole, required. Most crucial to their respective judgments was the weight they gave certain constitutional principles. Justice Ginsburg prioritized voting rights against a history of racial discrimination, while Chief Justice Roberts prioritized federalism given the recent decline in racial discrimination in voting.

It was these judgements about how to order different part of the Constitution that informed their understanding of text. Textual readings we take for granted are often built up as part of an historical process and are not simple givens. Such constructions are a sort of political theory, guiding us to make sense of text, offering standards to shape our judgment in applying the written Constitution to particular cases.  At the most foundational level, how we view the character and nature of the Constitution—what we imagine the Constitution to be—will shape our reading of its text.

There is no getting around these “unwritten” understandings. We should acknowledge them, justifying why we think they make the best sense of our written Constitution as part of our ongoing project of constitutional self-government.

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A Risky Tactic: Democrats Supporting Extremist Republican Candidates to Enhance November Prospects

A Politico article by Stephen Shepard highlights efforts by Democrats in several primary races to influence the outcome of Republican primaries to boost far right candidates that they believe will be easier to beat in November:

Tuesday’s races feature four races in which Democratic candidates or groups are seeking to influence Republican primary voters, including a more-than-$30-million effort in the Illinois governor’s race. There are also multi-million-dollar campaigns to boost far-right Republican statewide candidates in Colorado, the one-time swing state where then-President Donald Trump was trounced two years ago.

Cross-party influence efforts can take two forms: 1) independent spending on media and 2) organized or spontaneous efforts by supporters of one party to vote in the primary of the other party to favor a particular opposing party candidate. The first tactic, cross-over spending on a primary contest, is primarily what seems to be going on in the campaigns leading up to Tuesday’s primaries, and we shall see how successful it is.  

The other tactic, cross-over voting, was much debated decades ago as states moved increasingly to various types of open primary rules.  (In closed primary states, voting in another party’s primaries is more evocatively described as party-raiding.)  A number of ELB people were involved in a case involving California’s blanket primary, and subsequently produced a book on the topic (Cain, Bruce E., and Elisabeth R. Gerber, editors Voting at the Political Fault Line: California’s Experiment with the Blanket Primary. Berkeley:  University of California Press,2002.). The conventional wisdom that emerged from this and other studies is that most cross-over voting is sincere and not strategic: that is, voters were entering the other primary when there was no contested contest on their side of the ballot to support the other party candidate that was sincerely their top choice, not the one that they least preferred but was thought to easier to beat.

A recent post in the Monkey Cage by Christopher Cooper and Michael Bitzer reports a similar finding. They have evidence that enough Democrats went through the process of re-registering as Independents to vote in South Carolina’s semi-open primary and defeat Madison Cawthorn.

Given the growing number of safe seats enhanced to some degree by the “make incumbents safer in the face of electoral uncertainty strategy” that prevailed in many state redistricting efforts, one wonders whether we will see more cross-over voting if Trump and his followers are on the ballot in 2024 running against another less plausibly sinister Republican.  Or perhaps, Democratic voters will cross-over to support any remaining pro-choice Republicans in safe Republican seats.

People crossing over sincerely are doing what reformers wanted when they pushed for more open primary rules.  The intent was to allow independents and moderates from the other party to create centripetal forces on the opposing party contest, producing more moderate candidates on both sides.  To date, this has not happened neither frequently nor effectively enough to lessen polarization. 

But apparently, it can occasionally take out an extremist with lots of personal problems like Madison Cawthorn.  I guess we can thank heaven for small political favors.  Crossing over to favor candidates like Donald Trump or Madison Cawthorn because they would be easier to beat is however a much riskier bet, and probably one most Democrats should not take. 

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Illegal Attempts to Access Voting Machines Didn’t Stop with Jan. 6 Insurrection

From the Brennan Center:

While the Janu­ary 6 commit­tee has rightly focused on the crim­inal conspir­acy to over­turn the 2020 elec­tion, it is crit­ical to remem­ber that this threat is ongo­ing, and many of the people implic­ated continue to work to under­mine future elec­tions. One of the most troub­ling connec­tions can be found in the persist­ent effort to illeg­ally access elec­tion systems that could be used in 2022 and 2024. Increased secur­ity fund­ing is needed to protect upcom­ing elec­tions, espe­cially from insider threats.

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