This election, however, there will not be a conservative majority on the Supreme Court. Indeed, unless President Obama finds a way to break through Senate Republican’s planned blockade of his Supreme Court nominee, it’s unlikely that the Court will have any majority at all in many politically charged cases.
As election law expert Rick Hasen notes, there is already one early sign that Scalia’s death has moved the Court’s center of gravity in voting rights cases. After a lower federal court held that two of North Carolina’s congressional districts are unconstitutional racial gerrymanders, many experts (including Hasen) expected the Supreme Court to stay this decision. It didn’t.
Because the Court denied such a stay without explanation, it is impossible to know what the vote was among the justices or why the stay was not granted. Nevertheless, as Hasen explains, the Court’s decision in this North Carolina case may be a sign that the justices will no longer keep such a tight leash on lower court judges who decide voting rights cases close to elections.
As the election approaches, there will no doubt be several rounds of last minute voting rights litigation, just as there was in the 2014 cycle. Should the Court split 4-4 in any of these voting rights cases, the ordinary rule is that the lower court’s decision continues to control the case. That means that the scope of an individual’s voting rights may turn on whether the federal appeals court that oversees their state has a liberal or conservative majority.