Justice O’Connor’s Complex Election Law Legacy

Condolences to the family of Justice Sandra Day O’Connor, who passed away after a long illness.

Justice O’Connor was a trailblazer, the first woman Justice and a former state legislator. She came to her election law cases with a kind of pragmatism, with a conservative bent that was not always consistent. Because she was a swing Justice on the Court for some time, her sometimes idiosyncratic views carried the day.

She changed her views in the campaign finance cases multiple times: first supporting some limits on corporations in elections (MCFL), then opposing such limits (dissenting in Austin) then embracing them again (in McConnell v. FEC). In her later years she was one of the Court’s strongest supporters of limits on money in politics, voting to uphold much of the 2002 McCain-Feingold law. After she left the Court and was replaced by Justice Alito, much of her work here was reversed, in cases including WRTL II and Citizens United.

Justice O’Connor was also in the majority in Republican Party of Minnesota v. White, a case striking down rules on judicial candidate speech. As Linda Greenhouse reports, it was the only case she publicly said she regretted voting for. After retiring, she tried to support efforts to move from judicial election to appointment, without success.

She invented the cause of action for an unconstitutional racial gerrymander in Shaw v. Reno, setting forth a test that was not well developed and ultimately changed by other Justices in cases such as Miller v. Johnson. Those cases have now morphed into junior varsity vote dilution cases (and I’ve thought these cases poorly reasoned whether used by those first on the right and later on the left).

She supported the constitutionality of the Voting Rights Act, as it was challenged in some Section 2 cases, but she wanted to read the act more pragmatically, as in the Georgia v. Ashcroft case.

Perhaps her most consequential election law vote was in Bush v. Gore, where she joined the majority supporting George W. Bush’s presidential election in embracing an equal protection holding that one would have expected liberals to embrace (the liberals mostly rejected it in that case). The per curiam opinion was unsigned and people speculated it was written by O’Connor and Justice Kennedy. We now know from the release of Justice Stevens’ files that O’Connor was an early advocate of what went into Chief Justice Rehnquist’s concurrence, that we now call the “independent state legislature” theory. It’s not clear why she abandoned it and embraced the equal protection holding that appeared to have originated with Justice Kennedy.

In the end, Justice O’Connor’s election law legacy was a mixed bag from the perspective of voting rights and democracy. She disappointed everyone some of the time, and surprised some of the time. I suppose that’s the true definition of a swing Justice.

Rest in peace.

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RNC backs Donald Trump in ballot access dispute–when it didn’t back John McCain, Rick Perry, or Ted Cruz in years past

The Republican National Committee (joined by the National Republican Congressional Committee and the National Republican Senatorial Committee) filed an amicus brief in support of Donald Trump in the Minnesota ballot access dispute. In one sense, I suppose, that’s not so remarkable–parties file briefs in support of the party’s candidates. And the RNC brief is filled with references about the important associational interests of the party at stake if a candidate is kept off the ballot. These outfits also has requested to participate in the Colorado litigation as amicus (no briefs filed yet, just the request, which I assume will include an argument similar to the one in Minnesota).

But it made me go back and check the RNC’s behavior in other recent cases where primary (and occasionally general) election presidential candidates faced significant litigation. As far as I can tell (and someone can correct me if I’m wrong), the RNC never got involved as intervenor or amicus. In 2008, when John McCain faced a flurry of challenges over whether he was a “natural born citizen,” the RNC didn’t formally participate in the litigation (except in the occasional case where the RNC was named a defendant alongside McCain). In 2012, when Rick Perry and a bevy of other Republican primary candidates failed to appear on the Virginia primary ballot and sued, the RNC likewise didn’t file any briefs in the case. The candidates lost on laches–so the candidates didn’t appear on the ballot, and the associational consequences were grave. And in 2016, when Ted Cruz faced a blitz of challenges over whether he was a “natural born citizen,” the RNC likewise didn’t participate. Cruz had to field the challenges on his own.

In fact, and relatedly, the RNC did not appear to participate in litigation when Trump faced a ballot access challenge in Minnesota in 2016, where the Republican Party of Minnesota needed to step in and defend the last-second addition of the Republican ticket on the state ballot.

Again, I might be missing a brief somewhere, and I’ll happily correct if so. But it struck me as a pretty significant change of behavior. Usually, the RNC has let the candidates fend for themselves in these matters, perhaps in some effort to appear neutral and particularly in the primaries–until this case.

Now, there are many reasons for such a change.

One is, of course, money. The massive cash infusions to political parties earmarked for election litigation may well mean there’s simply more money to spend on stuff like this.

Another is likelihood of success and severity. The party may well have viewed the threats to McCain and Cruz as insubstantial and opted not to spend resources. Perry, of course, faced a very serious consequence, but perhaps the party viewed involving itself in litigation as unfairly assisting a candidate (or viewed Perry as an insignificant candidate). But then that raises the question about whether it’s unfairly assisting a candidate at the expense of the rest of the Republican field. (And some of the challenges to McCain continued into the general election season, when the RNC’s interests would havebeen at their height.)

A third reason might be an overall change in strategy, a new desire to protect “serious” candidates more generally and intervening in litigation to protect their ballot access. (If Nikki Haley faces any “natural born citizen” challenges this cycle, for instance, one would expect the RNC would intervene.)

But a fourth reason is a narrower version of this third reason fed by the second–some sense that the RNC views it as uniquely important to protect Trump’s candidacy, when it has not protected other candidacies in recent years. (And it’s an interesting wrinkle to see the NRSC and NRCC get involved, when no congressional candidates are at issue here, only more abstract associational interests–and, as the NRCC did not get involved in Section 3 challenges to Madison Cawthorn or Marjorie Taylor Greene in the 2022 cycle.)

I can only speculate as to whether these, or other, circumstances resulted in the change of approach. But it’s certainly a break from the recent past in these cases. And it offers litigation assistance to Trump who, as a candidate, would be spending more of his campaign’s resources in the litigation, as candidates like McCain, Perry, and Cruz had to do in the past. That is, in a sense, a material advantage the RNC is providing to Trump that serves to help him–and help that comes at the expense of other challengers like Haley and Ron DeSantis, who face a Trump candidacy with cash advantages backed by the RNC.

Again, there are many possible reasons for the changes, and perhaps I’m missing some formal RNC involvement in past litigation, but it did make me take note about a change in approach.

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“Haley and DeSantis are relying more on outside campaign groups with time running out to stop Trump”

From the AP:

Florida Gov. Ron DeSantis and former United Nations Ambassador Nikki Haley are increasingly outsourcing central parts of their campaigns, drawing on the growing urgency of Donald Trump opponents to find a single alternative to the former president.

Struggling to energize his campaign, DeSantis this week privately encouraged his donor network to support a newly formed super PAC that’s taking over advertising responsibilities. That’s after a leadership shakeup at the pro-DeSantis super PAC that for months has been handling the bulk of both his advertising and his get-out-the-vote operation.

At the same time, Haley’s self-described “scrappy” political campaign, which has never enjoyed the same level of funding or manpower as DeSantis’ operation, won the support of the the Koch network, the largest conservative grassroots organization in the nation. By week’s end, scores of Koch-backed activists are expected to begin advocating on Haley’s behalf at the doorsteps of tens of thousands of Republican primary voters.

The extraordinary reliance on independent groups for the two Republicans who increasingly appear to be Trump’s closest challengers is testing the practical and legal limits of modern-day presidential campaigns.

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“Georgia vs. Trump: Mega-Hearing Set for Friday in Fani Willis’ RICO Case”

From the Messenger:

Friday is set to be a packed day for Fulton County Superior Court Judge Scott McAfee with morning and afternoon hearings scheduled to sort through a raft of pretrial motions in the ongoing Georgia election racketeering criminal case against Donald Trump and the former president’s 14 remaining co-defendants. 

The morning session will cover eight pre-trial motions to dismiss the charges or quash the entire 41-count Fulton County grand jury indictment originally brought in August against 19 people overall, including the former president. It also marks the first time that Trump’s Georgia-based legal team of Steve Sadow and co-counsel Jennifer Little will be in position to go directly toe-to-toe with District Attorney Fani Willis’ prosecutors.

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Supreme Court weighs hearing Jan. 6 cases that could affect Trump prosecution

From Lawrence Hurley at NBC News:

The Supreme Court on Friday is set to consider for the first time whether to hear appeals brought by people charged with offenses relating to the Jan. 6, 2021, assault on the U.S. Capitol in cases that could have a major impact on the criminal prosecution of former President Donald Trump.

The justices, in their regular private meeting to discuss which new cases to take up, are scheduled to consider three different appeals brought by defendants Joseph Fischer, Edward Lang and Garret Miller.

The three men are seeking to dismiss a charge accusing them of obstructing an official proceeding, namely the certification by Congress of President Joe Biden’s election victory, which was disrupted by a mob of Trump supporters

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“GOP will allocate a clear majority of delegates before Trump’s D.C. trial ends”

NBC News:

It’s now official: The day after former President Donald Trump’s federal election-interference trial begins in DC on March 4 — so after Super Tuesday — Republicans will have allocated nearly half of their delegates (47%) from the contests in the 2024 GOP presidential race. 

A week later, by March 12, that percentage will grow to 54%. After the primaries on March 19, it will be 69%. And after Louisiana’s primary on March 23, 71% of all delegates in the Republican race will have been allocated.  

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