Current Upcoming Supreme Court Election Law Cases

This post comes from a Rick Hasen article for the OC Lawyer.

The Supreme Court will be back in session next month, and once again election law is on the docket. The Court is set to hear three election law cases so far in the October 2015 term, with more likely to come to the Court on an emergency basis as the 2016 elections bring out the inevitable army of election lawyers fighting in the voting wars.

Evenwel v. Abbott, No. 14-940
Since the 1960s, the Supreme Court has required states and localities that draw legislative districts to comply with the “one person, one vote” rule. When the Supreme Court declared that the Fourteenth Amendment’s Equal Protection Clause required states to draw equal districts, it did not explain what should be in the denominator to create such equality. Should it be the total population of each district, the total number of registered voters, the total number of eligible voters, or something else?

In practice, most states use total population, which means that districts include children, non-citizens, felons who did not have their voting rights restored, and others lacking the franchise.

The Supreme Court surprisingly agreed to hear Evenwel after it had turned down a similar case in 2001, over the lone dissent of Justice Thomas. If plaintiffs are successful, a “total voters” denominator rule could shift power to rural and Republican areas in Texas, California, and elsewhere, as those areas have fewer non-voters in their existing “total population” districts.

Shapiro v. McManus, No. 14-990
This case raises the question whether a single Federal District Court judge receiving a redistricting case that should be heard by a three-judge court has discretion not to form the three-judge court if the judge believes the issues raised in the case are frivolous. Shapiro arises out of a challenge to the drawing of a Maryland Congressional district. A Federal district court dismissed the case as frivolous and
denied the request for a three-judge court. The issue may seem arcane, but the stakes are high because the three-judge court is often the best ticket into the Supreme Court.

Nearly half of the twenty-nine election law cases heard by the Roberts Court came up on appeal rather than a cert. petition.

Harris v. Arizona Independent Redistricting Commission, No. 14-232
This case comes to the Supreme Court on appeal from a three-judge court, and it is the second redistricting case from Arizona to make it to the Court in two years. At the end of last term, the Supreme Court released its opinion in Arizona Legislature v. Arizona Independent Redistricting Commission, 576 U.S., 135 S.Ct. 2652 (2015). In this case, the Supreme Court held that Arizona voters could use the initiative process to take away from the state legislature, the right to draw congressional districts and put that power in the hands of an independent commission, much like voters have done in California. The legislature had argued that the Constitution’s Elections Clause (in Article I, section 4) gave the state “legislature” the exclusive right to draw such districts, but the Supreme Court on a 5-4 vote read the term “legislature” expansively to include the power to set these rules via voter initiative.

In the new Harris case, the question concerns not Congressional districts but State Legislative districts. When jurisdictions comply with the one person, one vote rule for state and local elections, redistricting authorities do not have to achieve perfect equality, whatever the denominator. Courts often allow deviations of up to ten percent for legitimate reasons, such as complying with city or county boundaries. The Arizona legislature alleges that the Commission had illegitimate reasons for deviating from perfect equality.

The legislature argues that the Commission was not so independent, and actually drew districts biased toward Democrats. They claim the Commission manipulated the size of the districts to help Democrats and to comply with Justice Department requirements under the Voting Rights Act. These requirements no longer apply to Arizona since the Supreme Court in Shelby County v. Holder, 570 U.S., 133 S.Ct. 2612 (2013) held this part of the Voting Rights Act unconstitutional.

A ruling in this case has the potential to give courts more tools to police partisan gerrymandering, at least when those drawing district lines vary populations a bit to help one party capture extra seats in a State Legislature or in Congress.

What Else Is Ahead
Two important voting rights cases are working their way up the lower courts toward potential Supreme Court review. The U.S. Department of Justice and civil rights plaintiffs have challenged Texas’s strict voter identification law as well as a rollback of voting rules in North Carolina as violations of the Voting Rights Act and the Constitution. As the cases work through their appeals, election deadlines approach and the Supreme Court could be asked to provide emergency relief in the interim.

Campaign finance cases also could make it to the Court, as the Supreme Court’s Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) decision continues to lead to questions about when and whether limits on money in politics violate the First Amendment. With record-setting “Super PAC” fundraising already underway for the 2016 elections, do not be surprised to see the Court asked to weigh in once again on the question.

These days, when election time comes, we all expect the Court to play a major role in crafting the rules of the game.











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