While we are still waiting for the decision on the two partisan and one racial gerrymander cases (with less than two weeks to go in the term), we did receive two opinions related to the election process.  The first case — Husted vs. A. Phillip Randolph Institute — was a 5-4 decision on the validity of Ohio’s process for verifying the address of voters and correcting their voter rolls by, in theory removing the voters who had moved or died.  The second case — Minnesota Voters Alliance vs Mansky — was a 7-2 First Amendment case on wearing political apparel into the precinct on election day.

As the close vote indicates, the issue in Husted was more significant and more controversial.  The basic conflict is that federal election law both requires states to take efforts to improve the accuracy of the voter registry and forbids states from removing a voter solely because they did not vote.  Ohio basically has a three-step process:  Step one — not voting in a cycle (a two-year period); Step 2 — a verification notice sent to voters who did not vote in the last cycle; step 3 — not voting in two cycles (a four-year period) after failing to verify their address.   The majority — in an opinion written by Justice Alito — found that the Ohio procedure was consistent with federal law because failure to vote was not the only reason for the removal of the voter.  The main dissent, by Justice Breyer, critiques Step 1.  According to Justice Breyer, Step 2 and Step 3 comply with the “confirmation process” authorized by federal law that states are to use if they believe that a voter may have changed their address.  However, Justice Breyer interprets federal law as requiring that the election authority have a reason — other than the failure to vote — to believe that a voter has moved.  Justice Breyer argues that common sense and census data reveals that Ohio’s method is likely to result in the removal of a significant number of voters who have not changed address.  In a separate dissent, Justice Sotomayor notes that these overly aggressive purges tend to eliminate voters from vulnerable populations — minorities and the poor who already vote infrequently — thereby suppressing their votes.  Even aside from federal law on voter registration, this disparate impact may violate the Equal Protection Clause and Voting Rights Act.   While not discussed in these opinions, my hunch is that Ohio makes no effort at outreach to notify voters that these notices are coming and that they need to respond.  That lack of outreach and simple experience of recent Republican efforts to make voting more difficult confirms Justice Sotomayor’s theory that this law has nothing to do with complying with the federal requirement that states make efforts to improve the accuracy of voter registration information.

Not surprising for a First Amendment case, the majority opinion in Mansky is written by Chief Justice Roberts.  The Minnesota law at issue bans the wearing of political apparel in the polling place.  While finding that polling places are “non-public forums” for the purpose of First Amendment law (meaning that the government can ban speech),  the majority finds a problem with the way that Minnesota has written its law.  The essential problem is that Minnesota law does not define what qualifies as political apparel (unlike many other states with similar laws).   While the state election authority has attempted to give local election authorities some guidance on this issue, even that guidance is somewhat ambiguous.  This lack of clarity was made abundantly clear during the oral argument in Mansky during which the only conclusion that could be drawn about the current state of the law in Minnesota is that the definition of political falls into the “I know it when I see it” category.  Given the broad discretion that the law appears to place in election judges and the lack of clear notice to the voter, the majority found that, as currently written, the law is not reasonable.

With twenty-one opinions left, we are starting to have some idea for every month but February and April as to who might have the opinions.  For October, the only case left is Gill, the Wisconsin partisan gerrymander case, and the only Justice without an opinion is Chief Justice Roberts.  For December, it is likely that Chief Justice Roberts has the only remaining case on court orders for cell phone records.  For January, there are two minor cases left — and Justices Breyer and Kagan are still due an opinion.  There are two problems with projecting February — the Supreme Court dismissed two cases without opinions (meaning that with only seven other cases argued that month, we will not know which two justices originally got those two cases until the last opinion for February is issued); and we still have five cases outstanding.  In March, which only had eight cases to start with, there are two cases left — the California Pregancy Resource (anti-abortion counseling) centers disclosure regulations and the Maryland partisan gerrymander case — and three justices without an opinion — Justices Thomas, Justice Breyer, and Justice Sotomayor.  With both remaining cases likely to be controversial decisions, I can’t see Chief Justice Roberts assigning Justice Thomas to either case (especially the pregnancy resource center case unless Chief Justice Roberts want feminists to be even more riled up at the judiciary).   At this point, I am seeing a good possibility that Justice Breyer is going to get his wish and have re-argument in the fall on the two current partisan gerrymandering cases along with the North Carolina partisan gerrymander case.  If not, I am seeing two narrow opinions that recognize some limited ability to challenge a partisan gerrymander but with different standards than used by either lower court.  Finally, for April, as is typically the case up until the last week of the term, as the most recent month, there are still eight cases to be decided out of twelve cases (three opinion and one tie-vote).  Additionally, since one of the February non-decisions came before the April arguments, it is unclear if one of the justices will get a make-up assignment from the April argument.  (At this point, none of the justices has a full complement of seven opinions — assuming that the three non-opinion cases count toward the full quota, but Justice Ginsburg has six — one from every session but February.  As such, it is more likely than not that any additional opinion — and there should be no more than one such opinion — from Justice Ginsburg will be from the February argument, and we can only pray that it is Janus).