Should district court judges go "Reinhardt" on election laws during the coronavirus pandemic?

That’s the gist of Professor Nicholas Stephanopoulos’s conclusion in a recent University of Chicago Law Review Online piece.

If there’s a saving grace here, it’s the ratio of lower court to Supreme Court activity: about twenty-to-one, so far, in the area of pandemic-related election litigation. The sheer volume of these suits guarantees that the vast majority of them will never be subjected to Supreme Court review. To be sure, the Court will probably decide additional pandemic-related cases—and decide them badly, misapplying sliding-scale scrutiny and furthering its ideological agenda. But as Judge Stephen Reinhardt once said of the Justices, their limited caseload means “[t]hey can’t catch ’em all.” What they don’t catch in the leadup to the November election is likely to be better, legally and democratically, than what they do.

Professor Stephanopoulos believes that the Supreme Court is wrong on law (and on the political consequences) on a variety of election law cases, including the Supreme Court’s recent decision in RNC v. DNC out of Wisconsin. But advocating for district courts to, for lack of a better phrase, “go Reinhardt” on the Supreme Court struck me as particularly notable.

Oral argument analysis: Will the Tenth Amendment make a comeback in the faithless electors cases?

A pair of faithless electors cases from 2016 have made their way to the Supreme Court. (Disclosure: I filed an amicus brief on behalf of myself in support of neither party here.) SCOTUSblog posts for Chiafalo v. Washington and Colorado Department of State v. Baca are here and here.

The Tenth Amendment argument unfolded in a curious way because of the Court’s new format of oral argument, where justices asked questions one by one.

The framing here is important before we get to the questions. In 1995, the Supreme Court decided U.S. Term Limits v. Thornton. That case held that states cannot add to the qualifications enumerated in the Constitution for members of Congress, because the Constitution fixes the qualifications and states have no power to add to them.

It was a 5-4 decision (written by Justice Stevens, joined by, among others, Justice Kennedy). Among the arguments rejected by the majority was that the Tenth Amendment empowered states to add qualifications. The majority, relying on the work of Justice Story and others, argued that the states had no reserved powers over federal elections, because there were no federal elections prior to the enactment of the Constitution. Instead, all state power over federal elections must come from an affirmative grant in the Constitution. I think that’s the right argument, as I lay out, in part, in Weaponizing the Ballot.

Justice Thomas dissented on behalf of four justices. He argued that the Tenth Amendment did include such a power. He lost, but still—he had four justices who agreed with him.

Fast forward to today. Justice Thomas asked Professor Larry Lessig, who represented petitioner Chiafalo in the first argument, about a reserved powers of the states claim. Washington did not raise a Tenth Amendment, Professor Lessig notes, but regardless the Constitution empowers electors to have certain discretion, which states cannot take away.

Questions when down the line until it reached Justice Kavanaugh, the most junior justice. He also raised the Tenth Amendment argument with Professor Lessig. Professor Lessig notes that Washington didn’t raise it, and there’s no tradition of state power to control presidential electors.

Now, this is a moment. Justice Kennedy had rejected the Tenth Amendment argument in Thornton. Justice Kavanaugh has replaced him and seemed receptive to the Tenth Amendment.

So, oral argument goes back to the top, to the Solicitor General of Washington. And on down the line until it comes to Justice Sotomayor, who takes the opportunity to push back on the Tenth Amendment claim. In a real-time argument, this would probably have happened when Justice Kavanaugh spoke. But she emphasized, “two of my colleagues” raised it, but Washington never did, and it seems a strange reserved power when states never knew they had it.

Then, on back to Colorado’s oral argument. Colorado did raise a Tenth Amendment claim. Justice Kagan pressed, “Why doesn’t Thornton foreclose that argument?”

So Justices Sotomayor and Kagan, in my view, were very much pushing back against the concerns raised by Justices Thomas and Kavanaugh (and, speaking with more speculation, specifically Justice Kavanaugh) on the Tenth Amendment.

Justice Gorsuch didn’t weigh in on the Tenth Amendment piece, but I want to highlight n.60 of a law review article he wrote in 1991 on term limits, expressly reserving addressing the Tenth Amendment question that would later be address in Thornton. Not that his former views would offer any insight, but, there, he did believe that term limits are a “manner” of holding elections and within state power. It’s unclear whether his views (or reserved views) from that day would carry over here.

A few other highlights from oral argument.

Limiting principles. It’s hard to overstate how many times the justices asked either side about limiting principles—do electors have unfettered discretion? Can states condition electoral appointments however they want? Both sides continued to exert fairly maximalist interpretations, in my view, rather than a claim more closely hewing to the facts presented. That said, it’s in part because the justices are looking for larger principles. But the frustration was palpable. Chief Justice Roberts asked about casting a vote for a giraffe, and Justice Thomas about a vote for Frodo Baggins. Pressing Washington about the limits of its power, claims like “the Equal Protection Clause” and the like were the boundaries. It’s hard to know if either side made much headway here.

Bribery. Professor Lessig made an important—and, I’m not sure entirely necessary—claim during argument, one that multiple justices later seized upon. If an elector was bribed, could that elector be removed? Only after a criminal conviction, Professor Lessig noted. That seemed a bridge too far for many members of the court, who seemed concerned that a bribed elector could still vote if the wheels of justice hadn’t moved swiftly enough.

Manufactured case. The justices at a few points wondered about Baca in particular as a manufactured case. Justice Breyer pressed both sides on the claim that Section 1983 did not allow a state to be sued, so why should a court hear the case? Both sides argued it was non-jurisdictional and how they wanted to strategically present the case. Justice Alito went a step farther, questioning Professor Lessig’s motivations in helping invite chaos in the 2016 presidential election.

Pragmatism. Many justices—particularly Justices Breyer, Alito, and Kavanaugh, but also in strains of Justices Kagan and Gorsuch—echoed practical concerns of two kinds. First, if a judicial decision would render significant uncertainty or unpredictability, perhaps that decision should not be issued—as Justice Kavanaugh put it, the “avoid chaos” theory of judging. Second, in the absence of very clear guidelines from the Constitution, perhaps the courts should just defer to the state judgment, which sometimes binds electors and sometimes doesn’t. Justice Kagan openly floated this possibility, as she seemed unconvinced by either textual or historical arguments, suggesting deference would be warranted.

In the end, there’s plenty of uncertainty in the two cases. And the justices have… six or seven weeks to sort it all out….

Washington Post significantly overstates Supreme Court's role in RNC v. DNC absentee ballot dispute

The headline at the Washington Post in the aftermath of the Wisconsin presidential primary election (and, among other elections, state supreme court election) is a bit curious: “Unexpected outcome in Wisconsin: Tens of thousands of ballots that arrived after Election Day were counted, thanks to court decisions.” Why “unexpected”? Well, unexpected if you didn’t read what the lower courts were doing and only focused on certain opposition to the Supreme Court’s decision in RNC v. DNC.

A three-journalist by-line offer some of these takes:

But in the end, tens of thousands of mail ballots that arrived after the April 7 presidential primaries and spring elections were counted by local officials, a review by The Washington Post has found — the unexpected result of last-minute intervention by the U.S. Supreme Court.

…

The surprising outcome after warnings that many Wisconsinites would be disenfranchised amid the pandemic was the result of a largely unexamined aspect of the court’s decision that temporarily changed which ballots were counted. Because of the order, election officials for the first time tallied absentee ballots postmarked by Election Day, rather than just those received by then — underscoring the power of narrow court decisions to significantly shape which votes are counted.

…

Democrats think they have secured a game-changing precedent from the Supreme Court’s 5-to-4 order.

…

In Wisconsin, the Supreme Court’s ruling opened the door to a surge of valid absentee ballots that officials would have otherwise rejected under a state law requiring them to be received by Election Day.

…

The five conservative justices sided with the GOP, issuing an opinion on the eve of in-person voting that a blanket extension of the deadline would improperly allow voters to cast their ballots after April 7. Instead, they said ballots had to be postmarked by Election Day — effectively imposing a new standard.

…

When Republicans appealed to the Supreme Court, they challenged the decision of lower courts to extend the ballot deadline but did not explicitly seek a postmark deadline.

In bold, in the last portion of my excerpt, is a line that appears in the 45th paragraph of the piece.

What’s “surprising,” “unexamined,” and so on is because the obsessive focus was never on the lower courts’ proceedings, but instead on one aspect of the Supreme Court’s decision (highlighted by the dissenting justices, which cued how many journalists framed the litigation).

The Supreme Court concluded that an April 2 District Court order, effectively extending the election from April 7 to April 13 (refusing to count ballots until then, counting all ballots received until then, and so on), was too dramatic a departure too late in the election process. Four dissenting justices focused on disenfranchised voters—i.e., those who wanted to vote by mail but would have difficulty doing so by April 7. That’s what many journalists “examined.”

But the District Court did extend the deadline for receiving absentee ballots. Some states authorize jurisdictions to count ballots received days after Election Day, as long as they were postmarked by Election Day. Other states, like Wisconsin, require absentee ballots to arrive by Election Day to count. The District Court, as a part of the litigation, determine that the present circumstances required extending the absentee ballot deadline beyond Election Day, as long as it was postmarked by then. (It made other changes, too, like extending the deadline to require absentee ballots.)

Republicans expressly opted not to challenge this portion on appeal. Indeed, while the Washington Post’s 45th paragraph says that Republicans “did not explicitly seek a postmark deadline” (which, I think, means “did not seek to challenge the postmark deadline rules”), it’s actually more than tacit acquiescence: Republicans expressly did not appeal that part of the order. From its emergency application in the Supreme Court:

The relief that Applicants seek here is exceedingly modest. Applicants appreciate the challenges that the current pandemic creates for voters and election officials. They have not appealed other adjustments made by the district court, such as its extension of the deadlines to remotely register to vote and to request an absentee ballot. And although Applicants maintain that the issue of late-arriving ballots is premature and could be addressed when and only if the predicted mail delays actually materialize, Applicants only ask for a partial stay of the portion of the district court’s order, making clear that the extension of the deadline for the receipt of ballots applies only to those that were postmarked (or otherwise delivered) by April 7. This would give the Respondents the relief they actually requested, respect this Court’s warnings about courts altering the rules on the eve of elections, and prevent the serious possibility of fraud and misconduct created by the district court’s order.

Republicans affirmatively did not appeal this aspect of the District Court’s order. They wanted modest relief. They acknowledged remaining disputes on the facts but also acknowledged the tradeoffs of changing rules prior to the election (essentially, an inversion of the Purcell principle).

Additionally, the Washington Post is overstating it to say that the Supreme Court “effectively impos[ed] a new standard.” It did no such thing. The standard was one created by the District Court. And it was one the parties never litigated, from the very opening of the the Supreme Court’s opinion:

Wisconsin has decided to proceed with the elections scheduled for Tuesday, April 7. The wisdom of that decision is not the question before the Court. The question before the Court is a narrow, technical question about the absentee ballot process. In this Court, all agree that the deadline for the municipal clerks to receive absentee ballots has been extended from Tuesday, April 7, to Monday, April 13. That extension, which is not challenged in this Court, has afforded Wisconsin voters several extra days in which to mail their absentee ballots. The sole question before the Court is whether absentee ballots now must be mailed and postmarked by election day, Tuesday, April 7, as state law would necessarily require, or instead may be mailed and postmarked after election day, so long as they are received by Monday, April 13. Importantly, in their preliminary injunction motions, the plaintiffs did not ask that the District Court allow ballots mailed and postmarked after election day, April 7, to be counted. That is a critical point in the case.

One more line later in the opinion:

The Court's decision on the narrow question before the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough.

In short, the Supreme Court never examined the extended absentee ballot receipt deadline. While it’s “important[]” that that issue was not appealed, that’s because it makes its per curiam decision not effectively extend Election Day to April 13, as it opens, a “narrow, technical” question.

It would be remarkable if the Supreme Court overturns a lower court decision that neither party challenges on appeal. To say that failure to do so is “effectively impos[ing] a new standard” is something of an overstatement.

Now, I don’t doubt that litigants will seize on the District Court’s action to seek opportunities—frankly, on thin records at the moment ahead of the November election—to claim that absentee ballots received after Election Day but postmarked by then should be counted in those states that require receipt by Election Day. The NCSL reports that 42 states and DC require mail-in ballots to be received by Election Day. So it would be a fairly significant departure for district courts to start revising election laws right now—particularly given that (1) legislatures have ample opportunity to address the matter ahead of November, and (2) there is deep uncertainty about what voting in November 2020 looks like. That said, there will undoubtedly be increased requests for vote-by-mail opportunities, increased snafus in trying to meet demand, and increased challenges in the Post Office trying to deliver ballots by Election Day. How individual district court judges handle these requests—how quickly, and with what kinds of appeals—remains deeply uncertain.

That said, I don’t think RNC v. DNC tells us very much, if anything, about these matters. It’s hardly a “game-changing precedent.” If anything, it indicates that, with a thin record, a decision close to the election, and a properly-framed appeal, the Supreme Court would find such a judicial order unwarranted. But we’ll see how the litigation unfolds in the months ahead.

Note: I’m fairly sloppy with my use of “absentee” and “vote-by-mail” in blog posts, often using them interchangeably, so please forgive me!

The fundamental weakness of flabby balancing tests in federal election law litigation

Professor Rick Hasen has some thoughts on RNC v. DNC at his blog. (I looked at the case from the perspective of the Purcell principle but not much else.) One passage struck me: “Not only does the Court’s opinion show a nonchalance about the importance of voting rights in the most dire circumstances. It shows that the Court majority did not look for a way to build a bridge for a unanimous compromise opinion.”

To one larger point that probably merits much more attention from me in some more formal way…. One problem, in my view, with this framing is that this case was brought under the flabby Anderson balancing test, an ad hoc totality-of-the-circumstances examination of burdens and interests in the generic language of the "freedom of association." (Now, assuredly others will point out the Court's approach in Shelby County, in Rucho, and so on as indicative of greater "voting rights" concerns, but my claim here is narrower and relates to this particular cause of action.)

What started in the 1960s as a way to prevent minor party candidates from ballot exclusion has become a last-best-hope kind of claim for litigants tossing a claim into federal court. It's the kind of test where Judge Mark Walker in Florida would find that it's a "severe" burden on voting rights if the Republican candidate is listed first on the ballot when a Republican is governor; and where Justice John Paul Stevens would find a photo identification law in Indiana to be a "limited" burden on voters in a record with "no evidence of any" in-person voter "fraud actually occurring in Indiana at any time in its history."

It's not "voting rights" generally; it's, I think, about a particularly weak constitutional test that serves as an emergency catch-all for any election law-related claim that one wants to bring into federal court. Maybe I'm just repeating a point that Professor Guy-Uriel Charles has already made, but litigants' hopes should not ride on a federal court coming to the rescue under this doctrine. The Court may be "nonchalant," but, I think, this doctrine in particular is unusually weak as a vehicle for protecting "voting rights" under the Constitution.

It’s also consistent with the views of Dean Vik Amar and Professor Jason Mazzone looking at this very case. “Applying a very open-ended balancing test that the Supreme Court has used in some but not all cases alleging violations of the federal constitutional right to vote” (emphasis added), they find that the district court’s reasoning was weak.

This brings me to a recent Sixth Circuit decision in Daunt v. Benson regarding Michigan’s recently-enacted ballot initiative establishing a new “independent redistricting commission.” Judge Chad Readler concurred in the judgment. He expressed concern with the majority’s evaluation under the Anderson test: “Following the Supreme Court's lead, we have thus utilized that framework in cases where it is alleged that a state election law burdens voting, from ballot-access laws, to early-voting regulations, to prohibitions on party-line voting.” He continued:

But Michigan's redistricting initiative does not regulate the mechanics of an election. Far from it, in fact. It simply sets the qualifications for Michigan residents who, if they satisfy certain eligibility criteria and are selected by the Secretary of State, will serve as commissioners who, working together as a commission, will draw electoral districts for the State, districts in which as-yet-unknown candidates will seek legislative office in a general election, following party primaries. In other words, the only sense that an election comes into play is the one that will ensue once these many tasks are completed. And neither the commissioners nor the commission, it bears noting, will have an impact or influence on how that election is administered. As the majority opinion thus seemingly acknowledges, it is quite a jurisprudential leap to view this case through Anderson-Burdick's election-focused lens.

Judge Readler emphasizes, “The temptation to overindulge in the Anderson-Burdick test has not gone unnoticed.” Another Sixth Circuit panel recently noted that there can be “legal gymnastics” applying Anderson to some cases. Judge Readler worries, “My concern is more than conceptual. For Anderson-Burdick is a dangerous tool. In sensitive policy-oriented cases, it affords far too much discretion to judges in resolving the dispute before them. Anderson-Burdick relies on a sliding scale to weigh the burden a law imposes against the corresponding state interests in imposing the law. . . . But the test otherwise does little to define the key concepts a court must balance, including when a burden becomes ‘severe.’” He continues, “Absent stricter rules and guidelines for courts to apply, Anderson-Burdick leaves much to a judge's subjective determination.”

Judge Readler’s opinion is worth reading in its entirety, because it relies on a number of other sources I omit here. But it’s emphasize some stirring in the lower courts of the weakness of Anderson. It’s a flabby test, but it’s the most common kind of claim one can raise in federal court on an election law challenge. It gives federal courts generous discretion in all election law cases, not just those implicating race (like the Voting Rights Act or the Fifteenth Amendment), and not just those concerning the enumerated powers of the federal government like, say, the Elections Clause. It allows wholesale review of all state election-related decisions.

So I don’t know that the federal courts are necessarily “nonchalant” about voting rights, at least when it comes to Anderson-style claims. Instead, it’s that federal courts are, I think, not the best (and sometimes, not even the right) place to raise all election law-related concerns. And that’s a weakness of the existing legal regime. Perhaps we want more robust federal statutes within Congress’s purview, or more express guidance from state legislatures. But the federal courts are simply not going to provide the robust judicial review that litigants may seek because the legal framework isn’t designed for it.

Justice Ginsburg turns the "Purcell Principle" upside down in Wisconsin primary case

The coronavirus pandemic has led to a number of late-breaking election law challenges since mid-March in states holding primaries. The Wisconsin primary is the most recent saga. After a growing pandemic concern, including a “stay at home” order issued March 24, a federal court issued a preliminary injunction on April 2 changing some election procedures ahead of the April 7 election. The Supreme Court on April 6 effectively put some of those changes on hold in its decision in Republican National Committee v. Democratic National Committee.

That’s all the summary or commentary I’ll provide on the merits—changes to the primary could have occurred in the state legislature or, in some jurisdictions, by executive order, and there are challenging questions to consider in primary elections as the election approaches in the midst of a pandemic.

Instead, one item struck me in the dispute between the five justice per curiam majority opinion, and the opinion Justice Ruth Bader Ginsburg wrote on behalf of herself and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. It concerns an interpretation of Purcell v. Gonzalez (2006).

There, the Court reversed a lower court decision that altered an election rule close in time to the election. The Purcell Court emphasized:

Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases and its own institutional procedures. Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.

Professor Rick Hasen has referred to this as the “Purcell Principle,” and the Supreme Court has, for the most part, adhered to it—it has reversed lower court injunctions that have altered election rules close in time to the election (the Court’s per curiam opinion cites a couple in RNC v. DNC). It would be nice if the Court articulated better standards than Purcell provides, but the point remains.

But note what these decisions do—the Supreme Court changes a lower court ruling, which had changed an election rule. Purcell is designed to rein in lower courts that change rules. It’s not designed to rein in the Supreme Court and prevent the Court from restoring the original rule.

Consistent with Purcell, the majority opinion tells a lower court not to change the election rules too close in time to the election (here, five days before the election);

This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election. See Purcell v. Gonzalez, 549 U. S. 1 (2006) (per curiam); Frank v. Walker, 574 U. S. 929 (2014); Veasey v. Perry, 574 U. S. __ (2014).

But that’s where I noticed a couple of passages from Justice Ginsburg’s dissenting opinion interpreting Purcell differently:

This Court’s intervention is thus ill advised, especially so at this late hour. See Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per curiam). Election officials have spent the past few days establishing procedures and informing voters in accordance with the District Court’s deadline. For this Court to upend the process—a day before the April 7 post-mark deadline—is sure to confound election officials and voters.

…

Second, the Court’s order cites Purcell, apparently skeptical of the District Court’s intervention shortly before an election. Nevermind that the District Court was reacting to a grave, rapidly developing public health crisis. If proximity to the election counseled hesitation when the District Court acted several days ago, this Court’s intervention today—even closer to the election—is all the more inappropriate.

That can’t be what Purcell dictates. Purcell’s entire point is that lower courts can’t change the rules of elections close in time to the election—not that once they do so, the Supreme Court (which always hears the case even closer to the election) can’t restore the original rule.

Now, had Justice Ginsburg offered an alternative interpretation of Purcell—say, a Purcell exception—it might have been more persuasive. For instance, she notes that “the District Court was reacting to a grave, rapidly developing public health crisis.” If Purcell dictates that election rules shouldn’t be changed close in time to elections, perhaps there are times when facts are so late-breaking and so dire that Purcell should give way.

But that would require the Court to articulate a deeper understanding of Purcell, including its contours and its potential exceptions. Justice Ginsburg’s dissenting opinion doesn’t do so, turning Purcell on its head and rendering it largely meaningless.

While one can have varying views on the majority and dissenting opinions, their rightness or wrongness, and the challenges in Wisconsin, I do think this misunderstanding of Purcell was significant enough to draw a little attention to it.

This post has been updated.

"A Future Justice Kavanaugh and Executive Privilege"

Over at Law and Liberty, I have a piece on Judge Brett Kavanaugh and his views on executive privilege. It's titled A Future Justice Kavanaugh and Executive Privilege. From the opening:

If a prosecutor one day decided to indict President Donald Trump, a future Justice Brett Kavanaugh might not be the one to stop it.

Media reports, like this one over at the Washington Post, or this take over at Vox, concerning Kavanaugh’s views on executive power are too quick to assume that he would shield the executive branch during criminal investigations. His writings paint a very different portrait.

Kavanaugh, currently a judge on the District of Columbia Circuit, is a widely discussed candidate to replace Justice Anthony Kennedy on the United States Supreme Court. Kavanaugh has worked extensively in the White House for President George W. Bush. That might lead one to believe that he has a strong view of executive power. But it’s an earlier career experience that may have shaped Kavanaugh’s views, and they are not views that tend to defer to executive power.

Quick thoughts from today's oral argument in Minnesota Voters Alliance v. Mansky

Here are a few quick running thoughts from today's oral argument in Minnesota Voters Alliance v. Mansky. This post will be updated. The transcript PDF is here. (As an I aside, I wrote an article about the concept of "ballot speech," or the contents of the ballot itself as communicating expressive and informative content for voters, in this piece in the Arizona Law Review. Mansky involves a related question on restrictions on speech in the polling place.)

Express advocacy? Justice Kagan early in the argument, along with Justice Kennedy, wondered about more narrowly-drawn rules on matters like express advocacy for or against a particular candidate rather than broader political messages. That might be an attractive option for a Court looking to fashion a rule that offers the state some flexibility to regulate in the future.

Content and overbreadth: Justice Alito later pressed on this issue to wonder if candidate-based content might be somehow a separate matter properly subject to regulation. Justice Kagan in particular was concerned about how a proper overbreadth challenge might look. Justice Gorsuch later in the argument wondered about Minnesota acting as "outlier" when examining whether Minnesota had a compelling interest to justify the potential (as he said, "often undocumented") chilling effect.

Scope of intimidation: Chief Justice Roberts wondered about this notion of "decorum" in the polling place, emphasizing that freedom from intimidation is a distinct issue. At the same time, he wondered, "maybe bitter, sharp, political campaign going on, and maybe, just before you cast your vote, you should be able to have a time for some quiet reflection or to do that important civic obligation in peace and quiet without being bombarded by another campaign display." Later Justice Kennedy wondered about the difficulty of enforcing decorum if it largely turned on individualized determinations from polling officials.

Late in the oral argument, Justice Kagan wondered about how to evaluate "decorum." The courtroom was a good place for decorum, she thought. But she wondered why the polling place sounded "a little bit church-like," when it came at the end of "often a rowdy political process."

First Amendment issues at all? Justice Kennedy wondered, "Why should there be speech inside the election booth at all, or inside the what you call the election room?" From a justice usually known for his robust First Amendment views, this struck me as notable. Justice Ginsburg jump in to join the concern.

Facial challenge: One related question to the overbreadth concern was the scope of the challenge, as a facial challenge as opposed to as-applied. The Court's doctrine in this area has not been the most coherent, so I won't dig into issues now. But Chief Justice Roberts wondered about the "tiniest little logo" as being subject to the law and somehow affecting "decorum" as potentially a problem.

Arbitrary enforcement and defining political matters: Justice Alito wondered about the risk of arbitrary enforcement and the difficulty of election officials line-drawing in the application of this statute. In a series of hypotheticals testing this limit, Justice Alito got the state's attorney to say that a T-shirt with "the text of the Second Amendment' Could be viewed as political, but notthe text of the First Amendment. (Oral arg. transcript at 40.) It highlighted a very basic problem with a statute that had as broad a scope as Minnesota suggested--and perhaps suggests that the Court would require something narrower.

Justice Alito later worried about partisan election judges determining the political connotations of materials. The state's response? This is not terrible unusual, given that election judges make all kinds of determinations.

Burson: The Court showed no interest in overruling Burson. (But such things may remain unsaid....) Late in the oral argument, Justice Gorsuch seemed satisfied that Burson would be the narrower case of "campaign speech," compared to Minnesota's law of "additional political speech." But, returning to the definitional concerns of the Court noted earlier, that may not be satisfactory.

Compelling interests: Near the end, Chief Justice Roberts emphasized that it did not appear that the state's interest were "terribly strong." Only time will tell....

Quick thoughts from today's oral argument in Gill v. Whitford

This is the third in a series about Gill v. Whitford, the partisan gerrymandering case the Supreme Court is hearing this week. The first is here. The second is here.

Here are a few quick running thoughts from today's oral argument in Gill v. Whitford. This post will be updated. The transcript PDF is here.

Standing? A question mostly ignored in the run-up to argument was the question of standing, because plaintiffs challenged the entire map, not specific districts. But it lurked in the background: Professor Ned Foley has mentioned it, and it's been looming ever since the Court accepted the case leaving open the question of jurisdiction. Right off the top, Justice Kennedy concedes, "You have a strong argument" on the standing issue. That remains a major question as the case moves forward. I wonder, however, if Justice Kennedy feels more comfortable with a more, shall we say, "creative" standing analysis if the claim arose under the First Amendment, a place known for exceptions to standing (e.g., the overbreadth doctrine). When the appellees rose to argue, Chief Justice Roberts came out of the gate calling it "arresting" to have racial gerrymandering claim that must be district-specific but partisan gerrymandering statewide.

Justice Kagan pushed back that in one-person-one-vote cases, the person in an overpopulated district can challenge the entire map.

First Amendment v. Equal Protection: Justice Kennedy has long suggested he prefers the case to turn on the First Amendment rather than the Equal Protection Clause. He returned to this theme repeatedly in this argument, too. A three-judge panel in Maryland seized on the First Amendment claim earlier. Whether it's a better doctrinal foothold is one thing; whether it gives rise to a more workable standard is another. Only time will tell.

Justice Breyer's Multi-Step Test: He quick offered a multi-step test. First, was there one-party control? If not (e.g., a bipartisan commission), end of case. (As a note, this would tend to insulate a good number of partisan gerrymandering challenges.) Second, is there partisan asymmetry? (And here the "efficiency gap" makes an appearance.) Third, is it "persistent" over a "range of voters." Next (he didn't number it), he looked to whether it's an "extreme outlier." Finally, then ask if there's "any other motive" or justification. Justice Breyer wasn't "positive" it's manageable but offered it quite early.

Justice Kagan and Evidence: Justice Kagan pinned Wisconsin on points about the evidence. She emphasized that if legislators are capable of considering the evidence, why not courts? She noted that there's "good evidence" of partisan intent, and intent that led to an effect, "which was to entrench a party in power." She tended to emphasize the problems in this record and the capability of the courts to handle it. What that looks like in a standard is a different matter.

Justice Kagan also believed that Wisconsin went "over pretty much every line you can name," but wondered about line-drawing for future cases to prevent "a world in which in every district somebody can come in and say: A-ha, there's been a violation of partisan symmetry; we're entitled to a redrawn map." The word "outlier" arose as a possible standard.

Justice Gorsuch and Guidance: Justice Gorsuch wondered how the Court's standard might guide the legislatures in the future: what would it need to know "to avoid having every district and every case and every election subject to litigation"? He wondered, "how durable" the efficiency gap might look like in the event a standard like Justice Breyer's was adopted. He later worried that "it would yield about a third of all the districts in the country winding up in court."

Predictability of voters: A common theme was not just durability, but the extent to which voters' preferences are predictable--and the relevance that should have. Justice Kagan and Sotomayor noted that the legislature wanted to maximize Republican seats, and it predicted how voters behaved, and they did a great job in doing so--the predictions were quite accurate, so why complain that voters preferences might vary from case to case? Chief Justice Roberts, in contrast, was concerned that it was "stereotypical" to assume that voters are going to vote simply based on partisan affiliation, and that people "vote for a wide variety of reasons."

The judicial function: Chief Justice Roberts emphasized the concern that if courts throw out a map because one party wins too often, "the intelligent man on the street is going to say that's a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. And that's going to come out one case after another as these cases are brought in every state." He worried, "It is just not, it seems a palatable answer to say the ruling was based on the fact that EG was greater than 7 percent. That doesn't sound like language in the Constitution." He continued that it would sound like "sociological gobbledygook."

Justice Gorsuch later wondered where the judicial power resides; Congress has the power, why judges? (Justice Ginsburg rejoined that one-person-one-vote came from the same place.)

Proportional representation? Proportionality only made a brief appearance when Chief Justice Roberts suggested that partisan asymmetry sounded "exactly like proportional representation to me," something "which has never been accepted as a political principle in the history of this country."

Guarantee Clause: It made a brief appears when Justice Gorsuch, no stranger to the Clause!, raised the issue that the heart of the claim was really a more specific claim in the Guarantee Clause rather than an Equal Protection Claim.

Prediction: No prediction from me! Nothing terribly remarkable from oral argument, but Justice Breyer's suggested path might be a starting point in the event the Court does decide to articulate a test. The question of a limiting principle, as Justice Kagan suggested, would be firm in their minds. I do expect, however, an important standing analysis to follow....

Would Jesus oppose partisan gerrymandering?

The title may be slightly glib, but a biblical allusion caught my attention as I was reading the briefs in Gill v. Whitford, the partisan gerrymandering case before the Supreme Court. The reference appeared in the amicus brief of Heather Gerken, Jonathan Katz, Gary King, Larry Sabato, and Sam Wang--an impressive lineup, to be sure! The biblical references occur in a passage about the ubiquity of the principle of symmetry:

While modern discrimination law is replete with examples of symmetry standards, the principle’s roots are ancient. One finds, for instance, examples in Judeo-Christian ethics, Genesis 13:8-9; Matthew 7:12. The notion of turning the tables is so powerful that it is a canon of literature, William Shakespeare, A Mid-Summer Night's Dream; William Shakespeare, Twelfth Night; Mark Twain, The Prince and the Pauper (1881), music, W.S. Gilbert & Arthur Sullivan, H.M.S. Pinafore (1878), and moral philosophy, John Rawls, A Theory of Justice 73-78 (rev. ed. 1999). This measure of fairness is deployed across cultures. See Cinderella Across Cultures (Martine Hennard Dutheil de la Rochère et al. eds. 2016); Heather K. Gerken, Second Order Diversit, 118 Harv. L. Rev. 1099, 1146 & n.124 (2005) (discussing Japanese tradition). Even children rely on the time-honored strategy of “I cut, you choose.”

So, no, the brief is not about whether Jesus would support or oppose partisan gerrymandering. Instead, it is a biblical allusion to the principle of symmetry.

Matthew 7:12 is the "Golden Rule": "So whatever you wish that others would do to you, do also to them, for this is the Law and the Prophets."

Unfortunately, I think this gets symmetry wrong--the Christian faith, rightly understood, including the Golden Rule, is quite asymmetrical.

Consider the Golden Rule itself: it is to do to others as you would wish they would do to you. There is no expected return from others. Indeed, there is a likelihood that others would not reciprocate. But there is no expectation of anything in return for those who adhere to the Golden Rule. The command from Jesus is to do without any expectation of anything in return. The Golden Rule can be misconstrued as anticipating or expecting some kind of mutual respect toward one another. It isn't that, as much as we might want everyone to respect one another. Instead, it is about the radical self-giving of the Christian to all others--giving, without expecting anything in return.

The brief offers the simple summary of symmetry: "Partisan symmetry is a deeply intuitive standard for measuring discrimination. It asks a simple question: what would happen if the tables were turned?" But, I think, the Gospels are replete with expectations for the Christian tradition of asymmetrical treatment and expectations.

From earlier in the Sermon on the Mount in Matthew 5, for instance, Jesus expressly rebukes a "turn the tables" standard: "You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, Do not resist the one who is evil. But if anyone slaps you on the right cheek, turn to him the other also. And if anyone would sue you and take your tunic, let him have your cloak as well. And if anyone forces you to go one mile, go with him two miles. Give to the one who begs from you, and do not refuse the one who would borrow from you."

This, of course, doesn't mean that principle of governance can't be dictated by norms like symmetry. The brief is correct that symmetry has an extensive legal and non-legal tradition. (Indeed, the "eye for an eye" reference was omitted, surely a strong symmetrical standard!) And it might be that in establishing rules pertaining to representative government, symmetry is a sensible standard.

But, it is to suggest something slightly more modest. Biblical allusions can be a valuable device in making a persuasive argument. But precision of understanding biblical claims is, perhaps, just as important.