Justices with Political Backgrounds, such as Justice O’Connor, and Judicial Oversight of Districting

As many have noted, Justice O’Connor was the last Justice on the Court who had a political background. She was the majority leader of the Arizona state senate, before becoming a judge and then Justice.

Can we say anything about how that type of background influences a judge’s view about whether courts have a role to play in constraining the political process of drawing election districts? In Justice O’Connor’s case, it led her to conclude that partisan gerrymandering claims should not be justiciable in the federal courts. When the Court first recognized a cause of action for partisan gerrymandering under the federal constitution, in Davis v. Bandemer, (1986), she wrote the principal dissent. Then in Vieth v. Jubelirer, (2004), she joined Justice Scalia’s plurality opinion that would have held such claims non-justiciable. Her dissent in Bandemer ultimately won a majority on the Court after she had left, in Rucho v. Common Cause, (2019) [disclosure: I represented Common Cause in that litigation].

To give a flavor of her view, this is one the opening paragraphs in her Bandemer dissent:

There can be little doubt that the emergence of a strong and stable two-party system in this country has contributed enormously to sound and effective government. The preservation and health of our political institutions, state and federal, depends to no small extent on the continued vitality of our two-party system, which permits both stability and measured change. The opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the United States, and one that plays no small role in fostering active participation in the political parties at every level. Thus, the legislative business of apportionment is fundamentally a political affair, and challenges to the manner in which an apportionment has been carried out — by the very parties that are responsible for this process — present a political question in the truest sense of the term.

Does this mean Justices with political backgrounds tend to see the area of districting as off-limits to the Courts?

Not at all. When the Court was first asked to hold that malapportioned legislative districts were unconstitutional, the Court in Colegrove v. Green (1946), refrained on the ground this too was a political question. But it’s noteworthy that of the three Justices in dissent, two had political backgrounds. Justice Black had been a Senator from Alabama and Justice Murphy, the Governor of Michigan. And when the Court finally did overturn this political question holding and established the one-person, one-vote principle, it was CJ Earl Warren, former Governor of California, who wrote Reynolds v. Sims (1964).

If anything, this pattern suggests it has been judges with political backgrounds who have been most strongly of the view that the courts have a role to play in overseeing political linedrawing. But that was not the case for Justice O’Connor, in the context of partisan gerrymandering claims.

Share this:

“Justice Sandra Day O’Connor Dies; Had Been One of the Last Justices to Help Ballot Access”

Richard Winger:

On December 1, former U.S. Supreme Court Justice Sandra Day O’Connor died. She had been one of the last justices to write anything favorable about minor parties. In 2005, in Clingman v Beaver, she wrote, “Although the State has a role to play in regulating elections, it is not a wholly independent or neutral arbiter. Rather, the State is itself controlled by the political party or parties in power, which presumably have an incentive to shape the rules of the electoral game to their own benefit…As such restrictions become more severe, and particularly where they have discriminatory effects, there is increasing cause for concern that those in power may be using electoral rules to erect barriers to electoral competition. In such cases, applying heightened scrutiny helps to ensure that such limitations are truly justified and that the State’s asserted interests are not merely a pretext for exclusionary or anticompetitive restrictions.”

Clingman v Beaver was not a ballot access case. It was a Libertarian Party case on the ability of parties to control their own nomination process. But O’Connor as well as Justice John Paul Stevens were moved to write about ballot access restrictions. Justice Stephen Breyer co-signed the O’Connor language quoted above.

No full decision of the U.S. Supreme Court since then has talked about minor party or independent candidate ballot access.

Share this:

“Republicans again target Democrat Lucy McBath in Georgia congressional map that keeps 9-5 GOP edge”


Georgia Republicans on Friday proposed to redraw the state’s congressional districts to create a new court-ordered Black majority district, maintaining the current 9-5 Republican congressional majority and again targeting Democratic U.S. Rep. Lucy McBath’s district for wholesale transformation.

It’s unlikely any of the proposed districts would produce competitive races between Republicans and Democrats. That’s also true of Georgia’s current map.

If it passes, the map could set up a court fight over whether the federal Voting Rights Act protects McBath’s current district from being wiped out. She currently represents Atlanta suburbs including southern Gwinnett County and northern Fulton County. No ethnic group has a majority in the district, but Black, Asian and Hispanic voters collectively favor Democrats….

Republicans said in debate Friday that their plans comply with Jones’ order. Democrats though, predict Jones will find the Republican plans are still illegal and draw his own maps.

Share this:

“Biden campaign prepares legal fight against election deepfakes”


President Joe Biden’s 2024 campaign has assembled a special task force to ready its responses to misleading AI-generated images and videos, drafting court filings and preparing novel legal theories it could deploy to counter potential disinformation efforts that technology experts have warned could disrupt the vote.

The task force, which is composed of the campaign’s top lawyers and outside experts such as a former senior legal advisor to the Department of Homeland Security, is exploring what steps Biden could take if, for example, a fake video emerged of a state election official falsely claiming that polls are closed, or if an AI-generated image falsely portrayed Biden as urging non-citizens to cross the US border to cast ballots illegally.

The effort aims to produce a “legal toolkit” that can allow the campaign to quickly respond to virtually any scenario involving political misinformation and particularly AI-created deepfakes — convincing audio, video or images made using artificial intelligence tools.

Share this:

“Federal Judge Rejects Trump’s Immunity Claims in Election Case”


A federal judge on Friday rejected claims by former President Donald J. Trump that he enjoyed absolute immunity from criminal charges accusing him of seeking to reverse the 2020 election, slapping down his argument that the indictment should be tossed out because it was based on actions he took while he was in office.

The ruling by the judge, Tanya S. Chutkan, was her first denying one of Mr. Trump’s many motions to dismiss the election interference case, which is set to go to trial in Federal District Court in Washington in about three months. It offered a sweeping condemnation of what Judge Chutkan called Mr. Trump’s attempts to “usurp the reins of government” and cited foundational American texts like the Federalist Papers and George Washington’s farewell address.

Mr. Trump’s lawyers had expected the immunity motion to fail. They have, in fact, been planning for weeks to use the defeat to begin a long-shot strategy to put off the impending trial. They intend to appeal Judge Chutkan’s ruling all the way to the Supreme Court if they can, hoping that even if they lose, their challenges will eat up time and keep the case from going in front of a jury until after the 2024 election.

Share this:

“Florida Democratic Party says Biden is the only candidate, angering rivals”

From the Washington Post, this can be viewed as a story about how parties seek to recapture control of the nominations process in an age of primaries:

With presidential primaries looming, there is only one name on the official list of Democratic presidential candidates in Florida — President Biden — a move that angered the incumbent’s long-shot challengers, who say they’re being unfairly left out.

The decision is the latest setback for Rep. Dean Phillips (D-Minn.) and Marianne Williamson, both of whom trail Biden in public polling and fundraising.

Under Florida rules, the state’s party votes on who will appear on primary ballots. Florida’s Democratic Party said in a statement Friday that the executive committee voted unanimously late last month to name Biden, and only Biden, to its list of candidates.

If a presidential primary has a single candidate, state election law says that the uncontested race will not appear on the state’s primary ballot.

“Americans would expect the absence of democracy in Tehran, not Tallahassee,” Phillips said in a statement. “Our mission as Democrats is to defeat authoritarians, not become them.”

Williamson said in a statement that the move in Florida is meant to help Biden win the nomination “without any opposition.” Both candidates’ statements said their campaigns are considering legal options to gain access to Florida’s ballot.

In its statement, the Florida Democratic Party said the party’s actions were part of a “standard process,” and that “it is not uncommon for an incumbent President to be declared the automatic winner of a presidential primary.” The last time it happened was in 2012, when President Barack Obama ran for reelection, according to the statement.

Share this: