How a New Justice Could Change Our Elections

Capitol Hill police officers lower the U.S. flag at the Supreme Court in Washington, D.C., after the death of U.S. Supreme Court Justice Antonin Scalia, on February 13. Almost every aspect of election law might be different with an Obama appointee replacing Scalia, the author writes. Carlos Barria/Reuters

This article first appeared on Prafsblawg.

As someone who focuses primarily on election law, the implications of Justice Scalia's death are monumental. Virtually every aspect of election law might be different with an Obama appointee replacing Scalia.

From redistricting, to campaign finance, to voter ID, to the next Bush v. Gore, here is a breakdown of the various areas that may be impacted by the next justice:


First, there is the obvious impact on this Term's one-person, one-vote case, Evenwel, on whether states must use citizen-voting age population (a count of eligible voters), instead of total population, as the measure for achieving population equality between districts.

I think this case was going to come down in favor of allowing the state to choose which measure to use, so Justice Scalia's death may not change this result. But if he was going to vote with the other conservatives and require states to use citizen-voting age population, that probably would have been a 5-4 decision.

Now it will be 4-4, meaning that the lower court, allowing total population, will be affirmed. There could also be an immediate impact on North Carolina's request for a stay of a recent lower court decision striking down that state's congressional maps.

Second—and this is a big one—the federal courts might finally be able to police partisan gerrymandering. In a 2003 decision, Vieth v. Jubelirer, Justice Scalia wrote for a four-justice plurality that claims of partisan gerrymandering are non-justiciable, because there is no manageable standard for a court to use to separate "good" politics from "bad" in the redistricting context.

Four justices—the so-called "liberals"—came up with various standards to use; Justice Kennedy did not like any of the standards but wanted to leave the door open to a potential standard in the future. (The Court in essence affirmed this split in 2006 in LULAC v. Perry .)

Now, if a new justice agrees with one of the standards (such as Justice Kennedy's invocation of the First Amendment for these cases), there would be five votes to police partisan gerrymandering. That is, the Court could become even more enmeshed in policing the worst political abuses in drawing district lines. The Court could go deeper into the "political thicket."

Third, there could be an effect on the scope of redistricting decisions involving race —including the racial gerrymandering cases under the Equal Protection Clause and minority vote dilution claims under Section 2 of the Voting Rights Act. In essence, a new justice may be more willing to invoke the Equal Protection Clause or the Voting Rights Act to ensure greater minority representation in the drawing of district lines.

Voting Rights Act

A new Supreme Court appointment may have major implications for the Voting Rights Act. Shelby County v. Holder, which effectively gutted the Section 5 preclearance mechanism, was a 5-4 decision.

There has been some concern among the voting rights community that the Court could invalidate Section 5 further if the DOJ successfully places Texas under preclearance (under the "bail in" mechanism of Section 3), or that Section 2 (which prohibits discrimination in voting nationwide) could be in jeopardy.

But now, with only 4 true conservative votes, these aspects of the Voting Rights Act may live on much longer. In addition, a new Obama-appointed justice would likely uphold any new coverage formula for Section 5 that Congress could pass (although, of course, the likelihood of Congress acting is pretty slim).

Campaign Finance

In the 10 years of the Roberts Court, the conservative majority has struck down virtually every campaign finance provision it has considered, typically on a 5-4 vote.

Of course, the most notable decision was Citizen United v. FEC . But there have been other significant cases as well, such as McCutcheon (striking down aggregate contribution limitations) and Arizona Free Enterprise (invalidating matching funds in public financing).

Unless the new justice holds stare decisis above jurisprudential considerations, these recent precedents are, all of a sudden, in question. In essence, the past 10 years have been marked by significant deregulation of money in politics. A new Justice may call the entire foundation of recent campaign law into question.

Voter ID

In 2008, in Crawford v. Marion County Election Board, the Court ruled 6-3 to uphold Indiana's voter ID law, which then was considered the strictest in the nation. States around the country followed suit, passing their own strict voter ID measures.

Yet the vote breakdown of the six justices in Crawford was important: Justice Stevens wrote the plurality, joined by Chief Justice Roberts and Justice Kennedy, ruling on somewhat narrow grounds that the challengers did not have sufficient evidence to strike down Indiana's law in a facial challenge.

Importantly, the plurality left the door open to as-applied challenges with a stronger evidentiary record of the burdens the law imposed on voters. Justice Scalia, joined by Justices Thomas and Alito, concurred in the judgment. He would have upheld all voter ID laws on their face; Scalia disagreed with the plurality's approach to invite further as-applied litigation. Justices Ginsburg, Breyer and Souter dissented.

It is quite possible that Justice Stevens voted with the conservative justices, and wrote the plurality opinion, because of what I have termed "strategic compromise." Justice Stevens may have been concerned that, if he did not write a more moderate opinion upholding the law and instead joined the dissent, then Chief Justice Roberts and Justice Kennedy may have instead joined Justice Scalia's opinion, foreclosing any possible challenges to voter ID laws in the future.

That is, without Justice Stevens taking the lead for a more moderate view, Justice Scalia's opinion could have become the lead opinion for a 5-4 conservative majority.

Without Justice Scalia, and with Justices Sotomayor and Kagan on the Court, the consideration of a voter ID law could look very different. It is quite possible that, with an Obama appointee, there will be five justices to strike down a strict voter ID law (such as Texas's, which the 5th Circuit invalidated; that court is currently deciding whether to take the case en banc).

In sum, a new justice could create a new majority that will look much more skeptically at voter ID laws.

Other election administration issues

One of the problems with the Court's recent election law doctrine, as I have argued, is that the Court unduly defers to states in how they run their elections. This means that state legislatures, the majority of which are Republican-controlled, have great leeway in enacting rules for election administration.

Under heightened scrutiny, it is usually the state that has the burden of justifying a law that infringes on the fundamental right to vote. But the Court's recent jurisprudence has been backward on this point: It has deferred to a state's interest, usually agreeing that a general assertion of preserving "election integrity" justifies a law that impacts voting rights.

That is, all states must do is say "election integrity," and the Court has accepted that justification at face value without scrutinizing more closely the real reason behind a law.

A new justice will (hopefully) understand the fallacy of this approach, and instead require states to provide specific, detailed justifications for its voting rules. This is not to say that the Court should strike down every election regulation. Instead, it means that states must more carefully explain the precise rationale for a voting rule.

On a practical level, this might have an impact on cases about early voting, registration rules, provisional balloting, last-minute litigation (the so-called Purcell Principle), and scores of other issues. A change in the level of detail and evidence states must provide to justify their election laws could have a major impact on the scope of election litigation—thereby affecting the manner in which we vote.

Trump v. Clinton

Bush v. Gore was a 5-4 decision. What will happen if this year's presidential election goes into overtime, and the courts must become involved once again? Although not likely, it is not impossible either.

Before Justice Scalia's death, the Court had 5 Republican appointees and 4 Democratic appointees. If Obama is successful in appointing a new justice, that political split will be 5-4 in the other direction.

For those who think that the Court's election law doctrine is influenced by the justice's personal ideologies (a claim that is only partially true, in my opinion), then this shift could have huge implications on how the Court might resolve a disputed election.

A new justice will have an obvious impact on the hot-button issues of the day: abortion, affirmative action, gun rights, etc. Add election law to the mix.

Joshua A. Douglas is Robert G. Lawson & William H. Fortune associate professor of law at the University of Kentucky Law School.

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