"The Supreme Court's Shrinking Election Law Docket, 2001-2010: A Legacy of Bush v. Gore or Fear of the Roberts Court?"

I have posted this short draft on SSRN. Here is the abstract:

A funny thing happened after the Supreme Court decided Bush v. Gore, the controversial December 2000 case ending the presidential election litigation between Al Gore and George W. Bush: over the next decade, from 2001 to 2010, the number of election law cases decided by the Supreme Court with a written opinion fell to 30 cases, the lowest level since the 1950s. The drop occurred at the Supreme Court even as the amount of election litigation in the lower courts more than doubled compared to the period just before Bush v. Gore and even as the scholarly field of election law exploded.

This brief Article describes the drop in Supreme Court election law cases in the first decade of the twenty-first century, and offers at least a partial explanation as to the reasons for the drop. Although the general amount of election law litigation has risen dramatically since 2000, the number of cases in which parties sought Supreme Court review declined by more than 36 percent from the 1991-2000 decade compared to the 2001-2010 decade. The decline appears particularly steep after Justice O'Connor left the Court, replaced by Justice Alito.

Factoring that decline into account, the data show that the Court issued written opinions in nearly the same percentage of election law cases each decade in which parties sought Supreme Court review -- 11.9% of cases in the 1991-2000 decade, and 10.5% of cases in 2001-2010. While I cannot exclude the possibility that the Court shied away from hearing some election law cases out of Bush v. Gore fatigue or as the result of random noise, the drop in the number of election law cases in which litigants sought Supreme Court review cases seems to explain a great deal of the decline.

This Article concludes by considering why the number of cases in which litigants sought Supreme Court review dropped so precipitously in 2001-2010 even as the total number of election law cases in the lower courts increased dramatically. One reason is that liberal litigants who had sought review especially in voting rights cases in the 1990-2000 period were less willing to do so in the 2001-2010 period, likely because they expected unfavorable results before the more conservative Roberts Court. The 2005-2010 period is especially important; the number of election law petitions in the Supreme Court dropped precipitously after Justice Alito joined the Court. The other reason is that many of the lower court cases making up the election law explosion were state cases involving state statutory interpretation issues, rarely raising federal constitutional or statutory claims within the Supreme Court's purview.

This is a very early draft---comments welcome! ELB readers might find of special interest Figure 4, tracking total petitions, Voting Rights Act petitions, and campaign finance petitions filed with the Supreme Court from 1991-2010.

Posted by Rick Hasen at March 8, 2011 07:51 AM