Quick thoughts from oral argument in today's Arizona redistricting case

Following up on my preview of today's oral argument, I read the oral argument transcript in Arizona State Legislature v. Arizona Independent Redistricting Commission (PDF). Here are a few quick thoughts.

At the outset, the Court had basically no interest in the standing issue or the statutory interpretation issue. Chief Justice Roberts and Justices Sotomayor and Ginsburg all sounded very confident that the Arizona legislature had standing in this case. (Indeed, the breadth of the standing analysis may be beneficial to the Colorado legislature in Hickenlooper v. Kerr, except, of course, the part that legislators are suing.) And both Chief Justice Roberts and Justice Alito were openly hostile to the applicability of the statute.

There was also some search for a limiting principle in a number of ways, and to seek out how to articulate the doctrine the Arizona legislature was advocating.

The first question of scope related to the role the legislature must play. Paul Clement, representing the legislature, would use the phrase "cut out completely," or other times articulated as "completely cut out." Justice Kennedy wondered if laws enacted by ballot initiative "about voter ID laws, . . . about absentee ballots" might "completely cut out" the legislature, to which Mr. Clement answered, "[P]robably." Then Mr. Clement and Justice Kagan (and others) walked through a series of hypotheticals about what the legislature's role must be in the process. Mr. Clement argued that "it's okay for a judicial body . . . to do redistricting on a one-off basis," but the problem is this mechanism "wrest[ed] the legislature from that process entirely on a permanent basis."

Justice Kennedy pressed the point as to whether the Arizona legislature had been completely divested of power. That is, he noted that the legislature could proposed an initiative or referendum. Mr. Clement pressed back that all the legislature could do is propose an alternative map via the initiative process--but that puts the legislature "on the same plain as the people," which is insufficient.

The most hostile, I think, was this, from Justice Kagan:

JUSTICE KAGAN: But you see, Mr. Clement, that suggests a very pure rule and and on occasion you said something like this, a legislature means a legislature, and that's what it means, and so a legislature has to do all those things. But you've made many, many exemptions to that over the course of the last 20 minutes.

You've said that as to anything that's not redistricting, it can be done by referendum or initiative without any legislative process whatsoever. You've said that all these kinds of different schemes about the interaction between a legislature and advisory commission are all going to be have to reviewed on a case-by-case basis to determine whether the legislature has primary control.

And when you get through with all that, the sort of purity of the originalist argument that a legislature means a legislature, well, we are miles away from that, aren't we?

Mr. Clement's ultimate response was that "this is about the most extreme case that you're going to have," and that the contours for other cases could be resolved on another day.

The second question of scope came out largely when the United States and appellees argued--could Congress authorize this exercise of power? And how did the clauses of the Elections Clause related to each other (which suggests, I think, that "Elections Clause" is not a great word to use?)

That clause reads:

The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

Mr. Clement emphasized that the legislature could not be completely divested of its power. Indeed, he essentially went so far as to say it could not be given away. So, what about the second clause? Or, as Justice Scalia asked:

JUSTICE SCALIA: Can the second clause be used to revise the first clause? That's what we're talking about here. The second clause can certainly--Congress can do something on its own, but can Congress use the second clause to revise what the first clause says?

That is, if the first clause means the legislature must have some role, or the primary role, or cannot delegate away all its power, or cannot be completely divested of its power, could Congress intervene under the second clause to do just that? And that makes the interpretation of the scope of the first clause all the more important.

It was later in the argument that Justice Breyer began to puzzle through the precedents and reflected his uncertainty about what to do. He seemed more concerned with a lack of precedent and uncertainty about how to move forward (and, with far more emphasis on early 20th century cases than on the Constitution).

Chief Justice Roberts mused that the redistricting commission's interpretation would render the words "by the legislature thereof" "entirely superfluous." Had it been left to each "State," absent any qualifier, then presumably non-legislature-based provisions would control.

Near the end of the case, Justice Kagan interpreted the Court's previous precedents as standing for the provision that "we need to show a lot of respect to the State's own decisions about how legislative power ought to be exercised. And that seems to me the overriding principle of the three cases." And, later, "Congress was also on board with this idea that the Court had, that when you look at that clause, the Elections Clause, that a lot of respect, a lot of deference, has to be given to the State's own definition."

There, then, is a sense of a soft political question doctrine in Justice Kagan's answer, that, perhaps as a near outgrowth of the Court's Guarantee Clause jurisprudence, the Court should defer to a State's governance. That's less, I think, the functionalist or consequentialist view advanced in the briefs, but a possible outcome from at least some members on the Court.

Time will tell what happens to this case. I anticipate seeing it in late June, with some possible unusual alliances and perhaps plenty of dicta for other cases.

Are competitive congressional elections always a good thing?

In today's Arizona redistricting case, the least persuasive arguments focus solely on the good of independent redistricting commissions and the evils of gerrymandering. That, of course, was the thrust of Arizona's ballot initiative that was enacted, and some briefs in this litigation are treating the Supreme Court as a kind of ratifying commission for this political decision.

But here's one question I like to float to students and others skeptical of gerrymandering. (Disclosure: this blog is named after a quotation from Elbridge Gerry.) Are competitive elections always a good thing?

There are at least two immediate costs that come with a competitive election: increased price tag on elections, and increased uncertainty in outcomes leading to recounts and litigation.

Arizona, case in point.

Even though Arizona has just nine members in the 435-member House of Representatives, it boasted two of the four most expensive races in outside spending (or, depending on your politics, "dark money") in 2014. Competitive elections often mean that the price of running an election increases--and that the amount of outside spending increases.

One House race was decided by just 167 votes, certified after a recount--because more competitive elections are closer, and those often trigger recounts and possible litigation.

It might be that, on the whole, voters, as a policy matter, as Arizonans did, prefer competitive elections. But it shouldn't be seen as a costless decision.

Thoughts before today's oral argument in the Arizona redistricting case

Over a year ago, I flagged an underdiscussed case in which Arizona's legislature case challenged the power of a ballot initiative-created redistricting commission to draw congressional districts. The Arizona legislature lost below, hired Paul Clement to help brief the case, and finds itself before the United States Supreme Court today.

There's much to say about this case before oral argument (for a taste of some interesting things already said, see George Will, Michael Ramsey, and Will Baude), but I'm going to highlight a few things to look for.

First, the Court added a question asking whether the legislature had standing to bring this lawsuit. I think the answer is probably yes, with little dissent, but how the Court goes about explaining standing in this case, and its implications in certiorari-pending cases like Hickenlooper v. Kerr, is of some interest.

Second, there's a possible statutory dodge. 2 U.S.C. § 2a(c) may include language broad enough to suggest that Congress authorized redistricting by any means permitted by law, including by ballot initiative. Or it might be deemed unconstitutional as a statute, as other portions of it have been. Or it might not be broad enough to be read that way. Or it might be unconstitutional to divest the legislature completely of its redistricting power. Or it might be that this Court, as it has done in other election cases, will adopt a saving statutory construction and generous dicta on the merits. How much traction any permutation of the statutory argument gets at oral argument will be of interest.

Third, how much will textual-oriented originalism square off against a bevy of alternative constitutional theories--including emphasis on functionalism, limiting principles, and consequentialism? Reading the briefs, I was struck at the stark contrast in arguments. "Legislature" should not be an overly complicated word to understand, particularly as used here and elsewhere in the Constitution. But the respondents briefs often quickly turned to one of these three notions.

My own views? They aren't very strong.

The first argument is a functionalist view of the word “Legislature.” It argues that the word is like a chameleon, adapting with each clause: in one part of the Constitution meaning an electoral body, in another place a ratifying body, and in this place a lawmaking body, which can include the people. But this argument relies more on language from a few previous, and somewhat sloppy, judicial opinions, and less on the text of the Constitution. (It's not hard, after all, to see places where a justice on the Court has used "State" when it should have used the word "Legislature.")

The second argument s a worry about a limiting principle. If “Legislature” means legislature, can the governor veto an election bill? Can an administrative agency regulate an election? Can a court interpret an election law? Those harder questions are best left to another day—here, the Arizona legislature has been frozen out of the redistricting process with no effective role, which, I think, is sufficient to succeed on a claim here.

The third, and most discussed in the briefs, is a consequentialist concern. The people, after all, have been amending election laws by ballot initiatives in many states for decades. If Arizona’s independent redistricting commission falls, other redistricting commissions might fall, too. And not just redistricting commissions—Oregon’s vote-by-mail system, Mississippi’s voter identification law, and California’s top-two primary system, were all enacted as popular ballot measures. And all would be threatened.

These laws would remain in effect for state legislative redistricting and state elections—they simply would not apply in federal elections. And these could be saved, of course. Congress could explicitly pass a law authorizing initiatives as a valid means of enacting federal election laws (assuming that there's not greater constitutional issue with such a law), or the state legislatures themselves could ratify the laws enacted via initiative.

But the consequentialist concern may worry members of the Court—indeed, it often appears to drive judicial decisionmaking in high-stakes litigation. These, to me, are some of the worst kinds of constitutional arguments. Judges aren't supposed to sit in the position of worrying that if they follow the text of the Constitution, something undesirable may follow, and so they should ignore it to prevent the undesirable thing. But I imagine that this may be one of the things most emphasized at oral argument--more so than line drawing, a question of what happens next if the Arizona legislature wins?

I'm attending a conference much of the day and won't have prompt access to the oral argument transcript, but I'll offer my thoughts on it late today.

No substantive changes in Voting Rights Amendment Act of 2015 over last year

Last week, Representative James Sensenbrenner introduced the Voting Rights Amendment Act of 2015, H.R. 885. I compared the bill with last year's version, the Voting Rights Amendment Act of 2014, H.R. 3899. Apart from the year in the title and the initial list of co-sponsors, there are no substantive changes, and only a couple of very minor alterations at all.

First, the bill formerly cited Title 42, the old home of the provisions of the Voting Rights Act. Since there is now a compilation of election laws in Title 52, the new bill properly identifies all of the Title 52 provisions that would be amended.

Second, there were two definitions of "minority" and "nomminority" that referred to persons who were "white." Those have been amended to capitalize the W and read "White."

And that's it. So if you had any praises or criticisms of last year's version of the VRAA, know that they are just as applicable to this year's version.

Everything you need to know about Hickenlooper v. Kerr, the Guarantee Clause case before the Supreme Court

Tomorrow, the Supreme Court will consider a petition for a writ of certiorari in Hickenlooper v. Kerr. Colorado legislators challenged an enacted ballot initiative that prohibited legislative tax increases from taking effect without a popular vote, arguing that it violated the Guarantee Clause. A federal district court, and the Tenth Circuit, agreed that the legislators had standing and that the Guarantee Clause claim was justiciable.

I started tracking this matter over a year ago. I provide the background in these links; below that, I'll discuss the briefs in the case that the Court will consider.

• Tenth Circuit considers justiciability of Guarantee Clause today (Sept. 23, 2013)
• More thoughts on the Guarantee Clause from Michael Ramsey (Oct. 10, 2013)
• BREAKING: Tenth Circuit finds Guarantee Clause claim justiciable (Mar. 7, 2014)
• Kerr v. Hickenlooper: Exploring the Tenth Circuit's Dubious Legal Reasoning, JURIST (Mar. 31, 2014)
• Colorado files petition for rehearing en banc in Guarantee Clause case (Apr. 4, 2014)
• BREAKING: Over four dissents, 10th Circuit denies en banc hearing in Guarantee Clause case (July 22, 2014)

Several amici were filed in the case, available at SCOTUSBlog. Of note (and these are very brief summaries of the major arguments):

• The Colorado Union of Taxpayers Foundation, the Mountain States Legal Foundation, and 22 Colorado state legislators filed a brief in support of the petitioner. They focused primarily on the fact that respondents' injury was abstract, because legislators never enacted a tax increase for the people to vote upon--instead, they simply alleged a dilution of legislative power. That cannot comport with existing standing doctrine. Only if the Colorado legislature enacted a tax increase, then saw the people reject it, would standing exist.
• The National Federation of Independent Business, along with several policy institutes, filed a brief in support of the petitioner. They emphasized the breadth of the impact of a finding that such a case is justiciable, because the decision invites judicial invalidation of direct democracy in a number of states on matters ranging from marijuana legalization to charter schools. They also noted that in the partisan gerrymandering context (Vieth v. Jublier), the Supreme Court has essentially required an articulation of judicially-manageable standards before the case could proceed. Here, the district court insisted (in a rather bizarre fashion) on holding a trial to determine what the Guarantee Clause demands.
• The Center for Constitutional Jurisprudence (with John Eastman) filed a brief in support of the petitioner. It focused upon the inability of the Tenth Circuit to distinguish existing precedent finding the Guarantee Clause usually non-justiciable. Regardless, the case presents a good vehicle for clarifying the language in cases like New York v. United States (1992) suggesting that the Guarantee Clause may be justiciable, and articulating that the standards for justiciability are not met in this case.
• Texas joined by five other states filed a brief joined in support of the petitioner. They argue that the text of the Guarantee Clause protects not the state legislature, but the people, and the States. They also cite other provisions like line-item vetos and supermajority voting requirements that may be called into question if this case is found justiciable.
• The Cato Institute (with Ilya Shapiro) and several other policy institutes filed a brief in support of the petitioner. It asked the Court to avoid addressing the issue of whether the Guarantee Clause is per se non-justiciable and instead emphasized that Colorado's Taxpayer Bill of Rights met the standard of a "Republican Form of Government," drawing heavily from source material at the founding.

The Supreme Court will consider the case tomorrow--and we'll eagerly await their decision as to whether to hear this case.

Quick thoughts from oral argument in today's Alabama redistricting case

Today, the Supreme Court heard oral argument in Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama. (The SCOTUSBlog page is here.)

There are many moving parts in this litigation. (Rick Hasen has a nice summary here.) Redistricting involves a number of decisions that legislators must make, and they are constrained by a variety of provisions of the Constitution, federal law, and state law. Very, very briefly: there must be an equal--or, at least, roughly equal--number of individuals residing in each district. The districts cannot be drawn with the primary intent to draw them among racial lines. They must, however, consider the impact that drawing the lines will have on racial groups if there is polarized voting. The drawing of lines could not, when Section 5 was in effect, be retrogressive on minority groups. And while partisanship is a permissible basis for redistricting, there may be circumstances in which a judiciary would find invalid redistricting for being excessively partisan.

Some of these are slightly vague standards; other are in tension with each other. It's not like these are new--this blog is dedicated, in part, to Elbridge Gerry, and "Gerry's salamander" (i.e., gerrymander) is the graphic at the top of the page.

I had the privilege of attending my first Supreme Court oral argument this morning. Here's what I observed. (Quotations are not direct; they are based on my scrawled notes!)

Bottom line: there seemed to be more sympathy for Alabama's position over that of the petitioners, but the Court was quite scattered at oral argument, and the opinion could be quite narrow.

Chief Justice Roberts opened asking petitioners about the "sweet spot," whether a state could really be expected to navigate having too many minorities in a legislative district and having too few. Justice Scalia chimed in to assert that the "only way to be sure" that Alabama was complying with Section 5 of the Voting Rights Act was to ensure that each legislative district had the same number of minorities under the old and new systems.

Justice Kennedy then tried to wrap his mind around redistricting for partisan gerrymandering reasons, but using race as a proxy for party. He found it hard to conclude that one party could do it, but the other could not because the effect would be a racial gerrymandering claim--a "one-way ratchet" concern. (Justice Breyer would later challenge this conclusion and assert it was actually a two-way ratchet."

In one (gotcha?) moment, Justice Alito asked, "You're just as interested in quotas as Alabama, only lower quotas." To which counsel replied, "I meant to use 'targets'" instead of "quotas."

Justice Ginsburg then wondered about the nature of this claim as a statewide claim instead of a district-by-district claim. This issue was picked up by Justice Alito in further questioning of petitioners' counsel, wondering whether the complaint adequately alleged it or whether the district court misunderstood the claim. Instead, petitioners pressed back, the effect is the same--challenging all 36 districts or challenging each of the 36 districts.

Chief Justice Roberts returning to this concern of the state navigating too few minorities in a district and too many--"If Alabama had reduced the numbers in any significant way, the Attorney General would come in like a ton of bricks."

Justice Sotomayor expressed a more basic problem--the injury. She was worried that the Shaw injury alleged by petitioners was an "ephemeral injury"--"Explain to me why you don't have to be harmed by a specific application of this policy." She would later confess that she was "still having a psychological problem" about whether petitioners had been injured at all. (She never asked a question to Alabama's counsel during argument.)

Justice Breyer expressed pragmatic concerns about remanding the case--would it be incumbent on the petitioners to point to specific districts where the motivation was rational? And then it would be left to Alabama to articulate a reasonable attempt--or a good-faith reasonable attempt--to comply with Section 5?

Solicitor General Verrilli then went on to make the claim that Shaw demanded district-by-district examination. Justice Kagan pushed back--the policy in place was to avoid retrogression, defined in a particular way, and that definition was applied to every single district. Instead, General Verilli countered, the only way the criteria would rise to a Shaw claim is if the district were drawn in derogation of a traditional policy, and that that had not been shown in every district. The policy itself, he said, was not enough.

Justice Alito returned to the question about whether the district court properly understood the claims, to which General Verrilli conceded the issue was "murky." And Chief Justice Roberts pressed the concern that, if remanded and redistricting occurred, Section 5 would no longer control and the Department of Justice would not have a part in the process.

When Alabama's counsel took to the lectern, counsel claimed that the goal was to "preserve the status quo." Chief Justice Roberts answered that the problem is that perhaps the status quo is not the right standard.

Justice Kagan came out with a full-throated defense of petitioners' claims. "You were determined, come what may," to keep the same percentage of minorities in each district? That it was "just a coincidence" that the same number of minorities were in each district?

She noted that this is perhaps a sui generis Shaw claim. Usually, she explained, Shaw claims are circumstantial. But here, we have a policy statement, from the state, that nonretrogression is the second-most important goal (behind Reynolds), and then a clear statement that nonretrogression demanded the same percentage of minority voters in each district. Alabama responded that it was a plausible way of interpreting Justice Souter's opinion in Georgia v. Ashcroft and a basis for Congress's amendments to the Voting Rights Act in 2006.

Justice Kennedy was concerned that the state did not say it was gerrymandering--it said it was trying to comply with Section 5. (In his eyes, the partisan reasons, I think, should have been more obvious.)

Justice Breyer questioned the practicalities of remanding the case--how would Alabama justify its system after Section 5 is out the window?

Finally, Justice Kagan even pressed the state's interest in complying with one person, one vote with a 2% deviation standard in population--she noted that as the Court has upheld deviations of up to 10%, perhaps 2% is not really a state interest.

During rebuttal, Justice Sotomayor again pressed the evidentiary point, asking whether the injury had been adequately established below.

My gut reaction, then, might not comport at all with reality--this case went in so many directions, it's hard to identify how the Court might proceed.

Sample ballot with racial designations from Louisiana, 1961

In Anderson v. Martin (1964), the Supreme Court concluded that Louisiana's practice of listing the race of each candidate on the ballot was unconstitutional. The opinion is here.

Here's a sample ballot from a Louisiana election from that era, printed in the Lake Charles American-Press, April 7, 1961. Enlarge the image to see "Caucasian" or "Negro" listed beside each candidate.

View fullsize

Virgin Islands Supreme Court ignores federal court on election dispute

I blogged earlier about the extraordinary dispute in the United States Virgin Islands, in which the Virgin Islands Supreme Court ordered a sitting senator off the ballot because it concluded she had committed a crime involving moral turpitude that rendered her disqualified for office. In response, the governor pardoned her, and an ensuing case in federal court resulted in an order to get her back on the ballot.

I thought that would end the matter.

It didn't.

The case has become even more surreal.

In a recent decision (PDF or decisions page), the Virgin Islands Supreme Court has decided to ignore the federal court order, concluding the federal court lacked jurisdiction to hear the case; and, further, has ordered Senator Alicia "Chucky" Hansen's name off the ballot, even though ballots have been printed, absentee ballots have been sent out, and early voting is underway.

The opinion is meandering, to say the least. It includes citations to the Rooker-Feldman doctrine, the Supremacy Clause's purported distinction between Article III and Article IV courts, exercises of supplemental jurisdiction, and in personam and in rem proceedings.

There's too much to unpack here, but I'll note three brief points.

First, it notes that Senator Hansen has the ability to petition as a write-in candidate. In U.S. Term Limits v. Thornton, the Supreme Court concluded that a bar on a candidate's name appearing on the ballot was overly burdensome when the only alternative was a write-in candidacy. That, the Court found, was effectively a bar and could not cure the congressional term limits rule that left a candidate's name on the ballot. Here, too, I think the court misses the mark by arguing that a write-in candidacy is a viable alternative.

Second, it rejects not just Purcell v. Gonzalez, but also the four Supreme Court decisions handed down in the last few weeks involving litigation in North Carolina, Ohio, Texas, and Wisconsin. In each, the Court restored the "status quo" prior to an upcoming election--in three cases, allowing a contested law to remain in effect, and in one case, continuing an injunction against a law that had been challenged. Here, the court attempts to distinguish theses on a lack of a record suggesting that there's a problem in altering the ballots--this, despite the fact that early voting is actually underway in the Virgin Islands.

Third, this is the first opportunity for a case to be appealed directly to the United States Supreme Court since a recently jurisdictional law took effect; previously, cases would be appealed from the Virgin Islands Supreme Court to the Third Circuit.

We'll see if anything comes from this case. But it might serve as a fifth instance of the Supreme Court stepping in this election season and addressing the preservation of the status quo.

Sixth Circuit finds Ohio has held illegal elections for over 200 years

In a stunning opinion, the Sixth Circuit just concluded in Ohio State Conference of the National Association for the Advancement of Colored People v. Husted (PDF) that the State has held illegal elections from 1803 until 2005 that unconstitutionally burdened the right of Ohioans to vote.

So let's set aside the snark for a moment. What did the court say?

In 2005, the Republican-controlled Ohio legislature enacted a series of election changes in House Bill 234. It developed no-fault early voting and allowed for early in-person voting at least 35 days before the election. Because voters must register at least 30 days before an election, there was a five-day period in which a voter could register to vote and vote on the same day.

In 2014, the Republican-controlled Ohio legislature enacted additional changes via Senate Bill 238, including moving the first day of early voting to the day after the close of voter registration--essentially, 28 days of early-voting. (Additionally, the governor had instituted standardized early in-person voting hours across counties, the focus of additional litigation.)

So prior to 2005, Ohio had zero days of early in-person voting; until 2014, it was 35 days; and the legislature amended that to 28 days.

That, the Sixth Circuit says, is unconstitutional.

It concludes that this cutback "significantly burdened" African American, lower-income, and homeless voters, so the law was subject to heightened scrutiny.

On what basis? The court notes that African Americans, lower-income individuals, and the homeless are distrustful of voting by mail; the complexities of voting by mail complicate efforts from these affected groups; and that lower-income voters' reliance on public transportation and wage-based jobs would create difficulties in voting in the 28-day period instead of the 35-day period.

So, it logically follows, that must mean that Ohio's decision to have zero early voting days from 1803 until 2005 was also unconstitutional. Those reasons, after all, certainly have applied for centuries to the same groups (with perhaps concessions to the nature of "public transportation" in the early nineteenth century).

Strictly speaking, I suppose, the Equal Protection Clause wasn't enacted until 1868, and the Supreme Court's opinion in William v. Rhodes subjecting election laws to some kind of Equal Protection analysis didn't come down until 1968.

But the court also notes that these groups "disproportionately have used in past elections the EIP voting times that . . . SB 238 eliminated, and that the number of individuals who have previously voted during these periods was not insignificant."

The court's opinion is cagey as to the fact that Group X used Procedure Y frequently. If we eliminate Procedure Y, what happens to the votes of Group X? Presumably, some of that group would find other opportunities to vote. But the court explains why the existing alternatives are insufficient for the reasons articulated (as would have been the case from 1803 to 2005).

And what if Group Y actually uses those other opportunities? It then explains, "the district court properly held that whether voters might adjust to vote during a different time in EIP voting such that overall turnout might not be affected 'is not determinative of the Equal Protection analysis.'" (Slip op. at 19.) Which is a pretty broad claim--one the court uses citing a few scraps from footnotes, concurrences, and dissents to justify. And, in fact, these scraps stand for a very different proposition--one need not "absolute certainty in predicting how many voters would be prevented from voting by laws that impose burdens on the right to vote," but that's quite a different claim than saying that one need not show any effect on voter turnout.

To say it's not determinative is one thing. But if it turns out that voter turnout is unaffected--or is, at best, highly speculative--what, precisely, is the burden? That would suggest, I think, that the burden is slight. That is, if the regulation has no discernible effect on turnout, it's very hard to say that the burden is "significant." The kinds of burdens that rise to the level of "severe" are the kinds that essentially prohibit ballot access, starting with Williams v. Rhodes and moving onward. This is a how hot was it problem--except the court expressly finds that how hot doesn't matter, which is a very different claim from saying that the precision of determining the heat does not matter.

And this portion of the opinion concludes with one of the most grotesque misreadings of Bush v. Gore I've seen. In footnote 4, it explains, "Moreover, while Bush v. Gore did involve disparate treatment, rather than burdens on the fundamental right to vote, we nonetheless find its motivating principle instructive in the present case given that the Equal Protection Clause can be triggered by either disparate treatment or burdens. That is, '[h]aving once granted the right to vote on equal terms"--such as expanding early voting opportunities--'the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another'--for example, by making it substantially harder for certain groups to vote than others. Bush v. Gore, 531 U.S. at 104-05."

If Bush v. Gore stands for any broader proposition beyond the Florida election in 2000, it is not for this.

The per curiam opinion expressed concern that county election boards, and the Florida judiciary, were arbitrarily changing the "value" of a "one person's vote" by instituting different recount procedures. So set aside the fact that it's dealing with a "vote"--that is, a ballot cast, and not with pre-election day opportunities. Even a broad interpretation of Bush v. Gore might apply it to those situations.

Instead, the fundamental problem in Bush v. Gore is the "later . . . treatment" in the context of that very election. Voters went to the polls in Florida in 2000 with Procedure A in place; after the election, Procedure B was instituted. That, to the per curiam majority, was the fundamental problem (whether one agrees or not).

For the Sixth Circuit to extend this principle to all changes ever made to any election system is a sweepingly broad interpretation of Bush v. Gore, one that I don't think can find any real support in the text of the opinion.

But really, this opinion stands for the broader proposition that once a State enacts a voting law, it is almost impossible to amend it in a way that places any change in burden on the people who took advantage of the process in that law.

It might be that SB 238 is a great law, or a terrible law. It might be that this law empowers a lot of voters who'd have no opportunity to vote, or it has no effect on turnout. I don't know. And that's my problem--I can't tell from this record. From the demands of the Court's Equal Protection Clause jurisprudence, I'd probably let the law stand. And the court tortures the law because of the utter lack of meaningful facts that support some kind of finding of burden.

The opinion goes on to some interesting Voting Rights Act Section 2 challenges (an entirely different and, I think, even more complicated analysis) and evaluates the executive order, but I wanted to focus on this narrow slice of the opinion--the slice that cannot possibly mean what it says to anyone in legal practice. As Rick Hasen notes, "If 28 days is unconstitutional and a voting rights violation, what does this say about places like New York, which offer no early voting?"

Or, as I wonder, what about the first 200 years of Ohio's history?