Justice Kavanaugh mentions allocation of power over elections in Calvary Chapel dissent
I’m a little late to this (as I’ve been in the midst of a cross-country move!), but I wanted to highlight a passage from Justice Brett Kavanaugh’s dissenting opinion in Calvary Chapel v. Sisolak. The case was about whether regulations opening some businesses but not allowing churches to open were permissible, which I won’t rehash here. But I did want to highlight one portion of his dissenting opinion:
I agree that courts should be very deferential to the States’ line-drawing in opening businesses and allowing certain activities during the pandemic. For example, courts should be extremely deferential to the States when considering a substantive due process claim by a secular business that it is being treated worse than another business. Cf. Jacobson v. Massachusetts, 197 U. S. 11, 25–28 (1905). Under the Constitution, state and local governments, not the federal courts, have the primary responsibility for addressing COVID–19 matters such as quarantine requirements, testing plans, mask mandates, phased reopenings, school closures, sports rules, adjustment of voting and election procedures, state court and correctional institution practices, and the like.
(Emphasis added.) Professor Josh Blackman highlighted that this mention of elections was “not inadvertent.”
This is not a gloss on any notion of the Purcell principle, which says that federal courts should be particularly reluctant to issue orders affecting elections close in time to the election that may result in voter confusion. Earlier this spring in RNC v. DNC, it figured prominently (if disputably).
But those timing-based concerns are different from the recognition that “state and local governments, not the federal courts, have the primary responsibility.” The default power over the times, places, and manner of holding congressional elections is left with the states, unless the federal government chooses to enact legislation on the topic. For state elections, there’s even less for the federal government to do. And while the federal courts have increasingly relied on the Anderson-Burdick framework as a kind of catch-all opportunity for federal review of election rules, some federal courts have begun to push back. Justice Kavanaugh’s inclusion of this phrase suggests a similar reluctance.