The Supreme Court issued this per curiam opinion this morning in Lance v. Coffman. The case, an appeal from a three-judge court, was brought by private plaintiffs alleging that the Colorado Supreme Court’s opinion in an earlier case holding that the state’s constitution barred redistricting more than once per decade violated the U.S. Constitution’s Elections Clause, which gives state legislatures the power to draw district lines (subject to congressional override). Here is a relevant snippet:
- The plaintiffs here are four Colorado voters. Three days after the Colorado Supreme Court issued its decision in Salazar, they filed a complaint alleging that ‘Article V, s 44 of the Colorado Constitution, as interpreted in Salazar, violated [the Elections Clause] of the U. S. Constitution by depriving the state legislature of its responsibility to draw congressional districts.’ Lance v. Davidson, 379 F. Supp. 2d 1117, 1122 (2005). In light ofthe discussion above, the problem with this allegation should be obvious: The only injury plaintiffs allege is that the law–specifically the Elections Clause—has not been followed. This injury is precisely the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past. It is quite different from the sorts of injuries alleged by plaintiffs in voting rights cases where we have found standing. See, e.g., Baker v. Carr, 369 U. S. 186, 207-208 (1962). Because plaintiffs assert no particularized stake in the litigation, we hold that they lack standing to bring their Elections Clause claim.
Interestingly, the Court went on to discuss two cases “construing the term ‘Legislature’ in the Elections Clause” that it said were distinguishable because the cases were filed on behalf of the state. But the Court today did not distinguish Bush v. Gore, a case in which George W. Bush raised a parallel “Legislature” claim under Article II of the Constitution (alleging that the Florida Supreme Court’s decision to hold a partial recount violated the Constitutional requirement that the Legislature direct the means of choosing presidential electors). The Court today did not explain the standing of a candidate to raise such an issue, a point that has proven to be somewhat controversial in the extensive Bush v. Gore literature.
Indeed, this is not the first opportunity in this controversy for the Court to have cited Bush v. Gore. As I have noted about the earlier Salazar case:
- Chief Justice Rehnquist did not even cite his concurring opinion in Bush v. Gore in his dissent from the denial of a writ of certiorari in Colorado General Assembly v. Salazar, 541 U.S. 1093 (2004). Salazar considered the Colorado Supreme Court’s power to prevent the state legislature from enacting a mid-decade redistricting. Id. at 1093. It concerned questions of state court power over state legislative decisions that exactly paralleled the Article II argument the Chief Justice, joined by Justices Scalia and Thomas, endorsed in his concurring opinion in Bush v. Gore. Justices Scalia and Thomas joined the Chief Justice in the Salazar dissent as well. Id.