This morning, as the Court hears arguments in the Evenwel one person one vote case and the Harris Arizona redistricting case, it issued a short, unanimous 8 page opinion by Justice Scalia in Shapiro v. McManus. The issue in Shapiro is when one is entitled to a three-judge court in a redistricting case. The Fourth Circuit had held that if an issue brought for a three judge court is frivolous, then a single judge can deny the three judge court and dismiss the case. Today the Supreme Court held that the standard imposed by the Fourth Circuit for convening a three judge court was too high, and that it is relatively easy to get a three-judge court when it falls within the ambit of a three-judge court statute. This holding will make it easier for those who want to get election law issues before the Supreme Court, as I’ll explain.
First, to the standard: In Shapiro, the plaintiff challenged an alleged Democratic gerrymander of Maryland congressional districts on grounds that the district violated plaintiffs’ First Amendment political association rights. The idea that there could be a First Amendment violation flows from Justice Kennedy’s opinion in Vieth, which agreed with the Justice Scalia plurality opinion that there were (as yet) no judicially manageable standards for determining what constitutes a partisan gerrymander, but disagreed that the cases were wholly non-justiciable. Justice Kennedy said that courts might eventually come up with a standard, and he suggested that the First Amendment was one place to look.
In today’s case, Justice Scalia said essentially that if one Justice didn’t close the door on such a theory and it hadn’t been contradicted by a majority of the court, it can’t be “wholly insubstantial” and therefore so frivolous as to deny a three-judge court:
Without expressing any view on the merits of petitioners’ claim, we believe it easily clears Goosby’s low bar; after all, the amended complaint specifically challenges Maryland’s apportionment “along the lines suggested by Justice Kennedy in his concurrence in Vieth [v. Jubelirer, 541 U. S. 267 (2004)].” App. to Brief in Opposition 44. Although the Vieth plurality thought all political gerrymandering claims nonjusticiable, JUSTICE KENNEDY, concurring in the judgment, surmised that if “a State did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the State shows some compelling interest. . . . Where it is alleged that a gerrymander had the purpose and effect of imposing burdens on a disfavored party and its voters, the First Amendment may offer a sounder and more prudential basis for intervention than does the Equal Protection Clause.” Vieth v. Jubelirer, 541 U. S. 267, 315 (2004). Whatever “wholly insubstantial,” “obviously frivolous,” etc., mean, at a minimum they cannot include a plea for relief based on a legal theory put forward by a Justice of this Court and uncontradicted by the majority in any of our cases. Accordingly, the District Judge should not have dismissed the claim as “constitutionally insubstantial” under Goosby. Perhaps petitioners will ultimately fail on the merits of their suit, but §2284 entitles them to make their case before a three-judge district court.
Now, the significance of this case: getting to a three judge court matters a great deal. A three-judge court is a fast track to the Supreme Court. Indeed, in a current draft looking at election law cases decided by the Roberts Court, fully half the election law cases the Roberts Court has decided came to the Court via the three-judge court method.
Here’s what I wrote recently about a decision by a district court to give a three-judge court in a case challenging the McCain-Feingold’s ban on party “soft money:”
A federal district court has held that the Louisiana GOP, under the guidance of tenacious campaign finance lawyer Jim Bopp, has the right to have a challenge to McCain-Feingold’s soft money ban applied to state parties through a three-judge court. Getting there took some very clever drafting, as the court recognized…:
Why are the stakes so high? I explained it in August in The McCain-Feingold Law May Doom Itself,National Law Journal, Aug. 16, 2015:
Tucked within the Bipartisan Campaign Reform Act (the formal name for “McCain-Feingold”) is a provision requiring that certain constitutional challenges to the law be heard by a three-judge court, with direct appeal to the U.S. Supreme Court. This special jurisdictional provision makes it much more likely that within the next few years the Supreme Court will strike limits on the amounts people and entities can contribute to the political parties in so-called party soft money.
If the court does so, it would be knocking down the second of McCain-Feingold’s two pillars. The court knocked down the first pillar—the limits on corporate and union spending—in the 2010 case Citizens United v. Federal Election Commission.
It may seem hard to believe that procedural rules for court challenges could make a difference as to the fate of campaign financing in the United States, but it matters. When a case comes up to the Supreme Court through the normal process of federal district court or state court decision followed by appellate court review, the losing side files a petition for writ of certiorari.
A Supreme Court decision to deny certiorari has no precedential value; no one can cite a certiorari denial as proof the Supreme Court believes the lower court got it right.
But in a rare set of cases (these days confined to certain campaign finance, redistricting and voting-rights cases) pursuant to federal statute are heard initially by a three-judge federal district court with direct appeal to the Supreme Court. In these cases, a court decision to affirm a three-judge court or to dismiss the appeal does count as a decision that the lower court got right, even if not necessarily for its reasoning. This fact makes it much more likely that the Supreme Court will hear such cases.
Justices have said the jurisdictional provision matters.
Since I wrote this oped, Chief Justice Roberts at the oral argument in Shapiro v. McManus has confirmed his feeling of the obligation to take three-judge court cases:
CHIEF JUSTICE ROBERTS: I mean, the other alternative is it’s a three-judge district court, and then we have to take it on the merits. I mean, that’s a serious problem because there are a lot of cases that come up in three-judge district courts that would be the kind of case – I speak for myself, anyway– that we might deny cert in, to let the issue percolate. And now with the three-judge district court, no, we have to decide it on the merits…
As I concluded in my August oped:
The Roberts Court has proved itself quite deregulatory in campaign-finance cases. It has struck down or narrowed severely every campaign-finance limit it has ever considered. Further, in the 2014 McCutcheon case, Roberts suggested a soft money ban is unconstitutional.
But the court has also proven itself willing to not hear every campaign-finance case to come its way. Twice, for example, it turned down certiorari petitions testing whether the ban on direct campaign contributions by corporations violates the First Amendment. In 2010, over the dissents of justices Anthony Kennedy, Antonin Scalia and Clarence Thomas, it turned down a certiorari petition in yet another case Republicans brought to challenge the soft-money rules
If the Republican Party of Louisiana is able to convince the courts this time that the three-judge court is the appropriate route to hear its soft-money challenge, then there’s a good chance the court will not only take the case, but will strike down what remains of McCain-Feingold.
So the easier it is to get before the Roberts Court, the more one can move the Court in the direction favored by that majority, even if the majority might otherwise pass on the case.
[This post has been updated.]