Brandon Johnson: “Election Aggrandizement”

The following is a guest post from Brandon Johnson, who begins as an Assistant Professor at the University of Nebraska on August 14:

The Supreme Court received praise for two election law decisions issued in the waning weeks of its October 2022 term. In Allen v. Milligan  and Moore v. Harper, Chief Justice Roberts authored majority opinions rejecting arguments that would have further defanged the Voting Rights Act and removed state constitutional constraints on state legislatures’ abilities to regulate federal elections. Advocates, scholars, and commentators expecting far more conservative outcomes reacted positively to these opinions. The New York Times even cited these cases in an article claiming that this term reflected a chastened, less partisan Court. Some scholars, like Rick Hasen, however, cautioned that the majority opinions in both Milligan and Moore, were not the big liberalwins they were portrayed as in the media.

What has gone largely unexplored in all of this debate, however, is the way in which these two cases are consistent with a growing trend in politically charged Roberts’ Court decisions—namely, the Court’s attempts to aggrandize its own power by inserting itself into ever increasing swaths of state and federal policy. In an apparent break with earlier Roberts’ court election law decision—which had taken steps towards limiting the role of the federal courts in reviewing state election laws—both Milligan and Moore arrogate to the Court significant authority to single-handedly reshape state election laws. The discussion below examines this overlooked aspect of the cases.

  1. Milligan and Moore: Holdings and Reaction

Both Allen v. Milligan and Moore v. Harper have been discussed at length by scholars and journalists alike. The overview here does not attempt to provide an exhaustive recap of the cases, but rather to sketch out the basics of the cases in order to provide context for the reactions sparked by the holdings.

In Milligan, the Court heard an appeal from a district court ruling enjoining the use of a redistricting map in Alabama. The district court had determined that the map included a likely racial gerrymander. In addition to challenging the district court’s decision, Alabama asked the Court to deem § 2 of the Voting Rights Act unconstitutional as applied to redistricting claims. A five-justice majority opinion, authored by Chief Justice Roberts rejected the as-applied challenge, and affirmed the district court ruling finding a likely racial gerrymander.

 A few weeks later, the Court issued its opinion in Moore, rejectingthe petitioners’ primary argument under the so-called Independent State Legislature theory that state legislatures are not confined by state constitutions when regulating federal elections. The opinion did, however, assert that when state court interpretations of state constitutions “transgress the ordinary bounds of judicial review,”then the Supreme Court has the obligation to reverse. The majority opinion then highlighted the fact that the petitioners explicitly eschewed any argument that the underlying state court opinion incorrectly interpreted the North Carolina constitution and declined to evaluate the merits of the opinion.

The public reaction to these opinions was largely positive. The Chief Justice in particular was applauded by many observers for keeping the Voting Rights Act alive and for rejecting a radical version of the Independent State Legislature theory. Not everyone, however, exhibited such a sanguine approach to these opinions.

Those urging a more restrained reception of Milligan, for example, reminded Court watchers that although the majority refused to fire a “kill shot,” at the Voting Rights Act, the act itself had already beensignificantly weakened by the Chief Justice’s opinions in Shelby County v. Holder. Others, like Melissa Murray, observed that the racially gerrymandered map at issue in Milligan had already been used in the 2022 election thanks to the Court’s prior Shadow Docket ruling allowing the map to go into effect pending a final decision on the case. Still others questioned the practical impact of Milligan given the Court’s 2019 decision in Rucho v. Common Cause holding that partisan (as opposed to racial) gerrymanders presented a non-judicable political question.

Nor was Moore universally praised. While some framed Moore as a rejection of a fringe theory from the conservative legal movement, the Independent State Legislature theory, others noted that the majority only dismissed the most extreme version of the theory, reserving for itself a role in evaluating future state election regulations.

  1. Election Aggrandizement

Lost in the excitement (both positive and negative) generated by these cases, however, is a contextualization of the ways in which these decisions have altered the trajectory of the Roberts’ Court’s election law jurisprudence—transitioning away from a steady retreat from federal court intervention to a “judicial power grab” that aligns with the Court’s recent jurisprudence more generally. What makes this particular mode of aggrandizement so striking is the fact that previously the Roberts Court, and the Chief Justice himself, seemed intent on removing the Court from election law disputes.

In 2013, Chief Justice Roberts authored Shelby County v. Holder, which invalidated the preclearance requirement contained in § 5 of the Voting Rights Act. Up until this decision, changes to election regulations in certain states (those with the worst history of racially discriminatory voting laws) had to be approved by the Department of Justice prior to implementation. The Chief’s majority opinion in Shelby County struck down this provision, claiming that it interfered with state sovereignty in an impermissible way. This holding was greeted with enthusiasm from right leaning scholars and commentators, and it significantly reduced the role the federal government—including the federal judiciary—would play in reviewing election regulations. When other VRA cases did come before the court in subsequent years, opinions like Abbot v. Perez and Brnovich v. Democratic National Committee placed additional obstacles on plaintiffs further discouraging litigation.

A little more than five years later, the Chief Justice penned another majority opinion further removing the courts from election disputes. In Rucho v. Common Cause, the Court held that that partisan gerrymanders lay outside the bounds of justiciability. Though the majority opinion left open the possibility of state courts entertaining the question under their own constitutions, Rucho shut the door on further federal intervention into redistricting maps drawn for partisan benefit. Given the prevalence of redistricting claims in the Supreme Court’s election law docket, this decision seemed poised to result in a significant reduction in the Court’s ability to police state election regulations.

Then, in the months leading up to the November 2020 contest, the Court repeatedly invoked the so-called Purcell principle—the idea that federal courts should avoid upsetting voter expectations too close in time to an election—in an attempt to maintain the status quo in state election regulations. The Court’s use of Purcell in the election cycle is not entirely consistent with a retreat from judicial intervention because the Purcell principle was invoked on both sides of many of these 2020 cases. In Republican National Committee v. Democratic National Committee, for example, the per curiam majority invoked Purcell to justify staying a district court injunction extending the time for Wisconsin voters to post their mail-in ballots. The dissent argued in turn that adhering to Purcell would actually weigh against a stay because the stay itself changed voter expectations.

But as the Court moved towards reducing (or at least appearing to reduce) its role in election disputes, a pattern of judicial aggrandizement began emerging in other areas of law. Josh Chafetz has described this pattern in several substantive areas of law and Mark Lemley has attributed it to a newly emboldened “Imperial” Court. The thrust of this trend has been for the Court to inject itself into an ever-widening circle of policy questions and to position itself as the best (and perhaps only arbiter) of these debates. Chafetz, for example points to recent decisions regarding congressional oversight, the Major Questions Doctrine, and judicial elections (notably Chafetz does not discuss other areas of election law) to show that the Court has installed itself as the separation-of-powers police, giving it control over Congress, the President, and the administrative state.

 Until recently, this aggregation of judicial power had seemed to skip traditional election law disputes. In the last month of the October 2022 term, however, the Court—or at least a five-justice majority, notably including the Chief Justice—appears to have reversed course and has begun aggrandizing the judiciary’s role in (non-judicial) election law as well, all while receiving credit for issuing more moderate opinions.

In Milligan for example, Chief Justice Roberts, writing for the majority, rejected a challenge to the constitutionality of applying § 2 of the VRA to redistricting claims. As discussed above, election law experts and voting rights advocates breathed sighs of relief when the opinion came down as many expected the Court to further eviscerate the Act. The opinion breathed new life into racial gerrymandering claims, which may have the downstream effect of increasing federal litigation that may not have been pursued given the burdens imposed by earlier opinions. As Beau Baumann and Allen Sumrall have explained, the scholarship has not been clear on distinguishing between judicial review and judicial aggrandizement, and the result of Milligan could be seen as a restoration of the proper role of judicial review in evaluating VRA claims. Given the Court’s previous moves to limit its oversight in this area, however, the opinion can also be seen as a reclamation of judicial power in line with other Roberts’ Court efforts at judicial aggrandizement.

But perhaps more importantly, the Milligan opinion did nothing to deter future use of the Court’s Shadow Docket to manipulate state election districts based on the majority’s political preferences. By failing to acknowledge the electoral impact of the Court’s prior decision to allow Alabama to use its racially gerrymandered map in the 2022 elections, the Milligan opinion left the door open for the Court to continue to play a significant role in election results on a case-by-case basis, while shielding itself from criticism by “correcting” itself on the merits docket.

The Chief’s opinion in Moore will likely have an even larger impact, giving the Court a more prominent role to play. The concluding section of the opinion introduced, for the first time, an unqualified assertion claiming for the Court the ability—and in fact the duty—to evaluate the merits of state court decisions applying state constitutional provisions to election regulations. While cabined to the last few pages of the opinion, this assertion created a profound change in federal oversight of state election regulations. As noted in the oral argument for Moore the Court has never reversed a state supreme court’s interpretation of its own constitution, demonstrating the significant expansion of judicial power created by the Court’s ruling.

The majority opinion made clear that it was not prescribing an exact standard for the Court to apply when evaluating future state supreme court rulings. But the inescapable result of the opinion is the adoption of something very like what former Chief Justice Rehnquist urged in his concurrence in Bush v. Gore—namely, a claim that the Court has the unilateral authority to determine when a state court has “impermissibly distorted [state election law] beyond what a fair reading required.”This point was emphasized by Justice Kavanaugh in a concurrence that added little to the majority’s substantive discussion but suggested that future courts should simply adopt the Rehnquist standard in full.

 So, while many in the media, and some in the academy, applauded the Court for rejecting the ahistorical and unsupported Independent State Legislature Theory,the opinion itself embraced a new role for federal judicial review that had been viewed by many as a similarly fringe theory, espoused in a minority opinion in one of the most politically charged cases in this century,  and which at least implied that it should be a non-precedential opinion. In one fell swoop, the Chief Justice’s opinion granted the Court a new and powerful tool for reviewing state supreme court interpretations of state court constitutions, while appearing to many as a reasonable and moderate result.

Rather than reflecting a larger project of judicial aggrandizement, it is, of course, possible that the Moore and Milligan opinions demonstrate nothing more than the Chief Justice’s (and to a lesser extent Justice Kavanaugh’s) concern about the institutional reputation of the Court. The significant decrease in public approval of the Court following the Dobbs v. Jackson Women’s Health Organization decision last term and a series of journalistic critiques of the Court’s ethics, may have pierced the hallowed walls at One First Street and convinced Chief Justice Roberts of the wisdom of a more incremental judicial approach (an approach he has long employed in many areas). Though perhaps more distasteful to doctrinal purists, this explanation does seem to fit with the types of case-by-case tools the Moore and Milligan opinions have handed future Court majorities.

            Regardless of the cause, the Chief Justice’s election law opinions this term have resulted in an appreciable (if modest) increase in electoral protections. But the cost of these rulings will be further arrogation of power to an increasingly self-empowered court—and in a substantive area of law that had previously seemed to resist the aggrandizing trend that has been a hallmark of the Roberts’ Court.

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