If they had their druthers, Supreme Court justices would probably prefer to avoid deciding election disputes. Resolving election law cases draws the justices closer than they like to the political stage.
Lately, however, the justices seem to be encountering election law disputes at every turn. Multiple cases from North Carolina, Ohio and Michigan have called on the court to act quickly in reviewing emergency applications to stay lower court rulings.
The volume of election law issues has made it seem at times as though the justices are standing in the shoes of a state board of elections, deciding which practices will be allowed and which will not as voters prepare to cast ballots for president, Congress and scores of local candidates on November 8.
Why is there an unusual spate of election disputes? While there may not be a single answer that explains all of the cases, the politics of the nation are deeply divided, and our differences have spilled over more than ever into the very fundamentals of how we vote.
Republicans control the majority of state legislatures in the country, and, asserting the need to prevent and avoid voter fraud, they have passed legislation in various states that: requires voters to have specific forms of identification to register or to vote; blocks early voting options; or eliminates other practices like straight-party-ticket voting. Democrats maintain that there is little or no evidence of voter fraud and that some of these regulatory practices are designed to make it more difficult to vote for minorities, the poor and the elderly.
Enter the Supreme Court, itself caught in the swirl of politics as Republicans refuse to confirm President Obama’s nomination of U.S. Court of Appeals Judge Merrick Garland to fill the ninth seat left vacant when Justice Antonin Scalia died eight months ago. Not surprisingly, the swirl has expanded to make the future direction of the court an election issue, particularly as Donald Trump and Hillary Clinton sparred over their visions of the court in the final presidential debate.
Even before the Supreme Court settled the 2000 presidential contest in the highly controversial Bush v. Gore ruling, few experts would have argued that resolving election disputes was a strong suit of the justices. In 2013 it became more likely that the justices would have to review changes in election law, because the court invalidated a key provision of the Voting Rights Act of 1965 that required many voting changes to be precleared with the Justice Department or a federal court before they could be implemented.
It is worth reviewing what the justices have had on their plates this election season.
First, on August 29, the court rejected a request by the Libertarian Party of Ohio to have Libertarian presidential and vice-presidential nominees Gary Johnson and William Weld listed on the ballot under their party name. The two are listed as independents but wanted to be shown on a Libertarian Party line. Denied that ballot identification by the Ohio secretary of state and in the lower federal courts, the party appealed for emergency relief to Justice Elena Kagan, who handles stay requests from the U.S. Court of Appeals for the 6th Circuit. Kagan referred the request to the full court, which turned it down by a unanimous vote.
Next up was North Carolina on August 31. The North Carolina legislature in 2013 passed a law that required presentation by voters at the polls of photo identification from a specified list, that shortened the early-voting period prior to the election and that prohibited preregistration for 16- and 17-year-olds indicating they planned to vote when they turned 18. Civil rights groups and the Justice Department challenged the new law, arguing that it would make it harder for many people in North Carolina to vote. The U.S. Court of Appeals for the 4th Circuit, which includes North Carolina, ruled last summer that portions of the 2013 law discriminated against minority voters and were invalid.
North Carolina officials went to the Supreme Court for an emergency stay. Chief Justice John Roberts, who oversees emergency applications from the 4th Circuit, referred the matter to the full court. The result was a 4-4 tie, which meant the stay was rejected and the North Carolina law remains blocked for the current election. (It takes five votes to grant a stay.)
To draw the court even further into the political eye, the 4-4 vote was split along party lines, with justices appointed by Democratic presidents (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Kagan) against the North Carolina law, and justices appointed by Republican presidents (Chief Justice Roberts and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito) in favor of allowing some or all of the law to go into operation. To be sure, there can be non-partisan reasons for this split: Liberal justices tend to have a broader view of voting rights and of the scope of anti-discrimination laws; conservatives tend to think more narrowly about constitutional protections for voting and to weigh deference to state lawmakers more heavily in the mix. But partisan or not, it is difficult for the court to escape the appearance that this was a political decision of a political issue.
The court barely got a breather before a Michigan stay application arrived, needing immediate attention. On September 9, the justices rejected the request to reinstate a Michigan law that blocked straight-ticket voting. Straight-ticket voting is a process that allows voters to indicate with one mark that they are voting for all of the Republicans or all of the Democrats on the ballot. The Michigan legislature abolished straight-ticket voting in 2015, but federal courts overturned the new law, holding that it discriminated against minority voters who might be more inclined to use the straight-ticket process. In the Supreme Court, Justice Kagan once again referred the matter from the U.S. Court of Appeals for the 6th Circuit to the full court. Justices Thomas and Alito voted to grant the stay, which would have allowed Michigan to prohibit straight-ticket voting in the current election, but six other justices rejected the state’s request, meaning straight-ticket voting will remain in place this year.
Just four days later, Ohio law was back on September 13. This time it was the state Democratic Party with an emergency application trying to save what is known as “golden week,” the beginning of the early voting period during which people can register and vote on the same day. The Ohio legislature abolished golden week in 2013; Democrats tried to get the law invalidated on the ground that it would be harder for minorities to vote without golden week. A federal district court agreed and ordered golden week reinstated, but the 6th Circuit upheld the Ohio law abolishing the early voting week. With Kagan again referring the application to the full court, the justices denied the stay without any dissents.
Yet another Ohio case is awaiting action by the justices. A coalition of advocates for the homeless has been challenging a 2014 law that invalidates absentee and provisional ballots that include mistakes in the informational sections detailing a voter’s name, address, birthdate, identification and signature. The law requires that a ballot be invalidated even if election officials are able to identify the voter from the available information. A federal appeals court struck down much of the law, but the 6th Circuit reinstated it. The coalition has asked the Supreme Court to block the new law, voiding the stringent accuracy requirements in time for the current election. Kagan has asked the state of Ohio to respond by Monday morning.
With all of this activity, it is likely that the justices will be almost as relieved as the candidates when the election is passed. But it is worth remembering that all these requests were emergency stay applications that asked the justices to make procedural decisions on what rules should apply on Election Day. Any one or all of these cases could still be appealed to the Supreme Court for decisions on the merits of the constitutional issues after the election is over. For the Supreme Court, Election Day may not be the last word.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in Northeast Ohio Coalition for the Homeless v. Husted. The author of this post, however, is not affiliated with the firm.]