This past argument session (the February Session) saw the last gasps of the 2020 election. There were three very different issues on the table: 1) the Trump attempts to overturn the election for alleged failure to follow election procedures: 2) the role of state legislatures, state election officials, state courts, and federal courts in setting the rules for election; and 3) the Voting Rights Act.
On the first issue, there are apparently two cases still pending at the U.S. Supreme Court — one a Wisconsin case that will likely be turned down on the March 8 order list and the other will not be considered until later (either the March 19 or March 26 conference). The second one is a Pennsylvania case involving the issue discussed below. Assuming that the Wisconsin case is denied, the Supreme Court will have denied Trump’s requests for review in all of the cases involving alleged fraud in the election over the past several weeks.
The second issue is likely to arise again. Article I, Section 4, Clause 1 gives the primary authority to set the “times, places, and manner” of congressional elections to the “legislature” of each state subject to the ability of Congress to also legislate on these issues. Similarly, Article II, Section 1, Clause 1 gives the power to direct the “manner” of choosing electors to the “legislature” of each state. In recent years, there has been a significant amount of litigation involving these clauses. There are two key legal questions: 1) what is the scope of “manner”; and 2) what is the “legislature.”
On the question of manner, one view is that “manner” is just limited to the basic method of conducting the election — e.g. ranked choice voting vs. first-past-the-post; top two primary vs. partisan primary. For electors, manner would include appointment vs. popular vote and winner-take-all by state result vs. winner-take-most vs. winner-take-all by national result. The alternative view is that manner includes all of the rules related to the conduct of the election. On this issue, there is a little bit of hypocrisy in the arguments being made. Progressives want to narrowly interpret “manner” for Article II to give more scope for courts and executive branch officials to modify the rules for presidential elections, but broadly interpret “manner” for Article II to give Congress the power to right laws governing congressional elections. On the other hand, conservatives are taking the opposite approach. The discussion of Article I in the Federalist Papers tends to support the broad reading of “manner” as short hand for all regulations of elections outside of time and place.
But the bigger question is what “legislature” means. At the time of the framing, there were thirteen state governments. Today, there are fifty. While the guarantee of a “republican” form of government implies the existence of some legislative body, there were differences in 1787 as to how state legislatures were structured and functioned and, today, there are even more differences. The conservative position that the legislature is the legislature is over-simplistic and ignores reality. It fails to answer the question of how you determine if the legislature has validly acted.
In almost every state, the state constitution requires laws to be enacted by both houses, gives the governor a veto, and allows both houses to override the governor’s veto. most states have separate houses (a fact recognized by the Constitution’s requirement that eligibility for voting for Congress is based on eligibility to vote for the lower house of the state legislature) and give the governor a veto. Now the rules on the process and vote required to pass a bill, what bills can be vetoed, and what vote is required to override the veto are set forth in the state constitution.
Generally speaking, the courts are available in most states to resolve disputes about whether the legislature has followed the proper procedures to enact a statute. I do not know any conservative who would support a claim that the legislature had enacted a regulation just because it passed one of the two houses (even if the vote in favor of that bill represented a majority of all legislatures) or who would deny the right of a governor to veto an election bill. But if the procedural limits in a state constitution are relevant to whether the legislature has enacted a valid law, there is no coherent constitutional theory that would ignore substantive limits. If a state constitution can require a two-thirds vote for certain limits on the right to vote, it should also be able to simply ban certain limits on the right to vote.
Normally, the judicial branch is given the authority to interpret the law. And in interpreting laws, there is a hierarchy — federal constitution, federal laws, state constitution, state laws, state regulations. When possible, the judicial branch is required to interpret lower laws in a way, if possible, that avoids a conflict with a higher law. If it’s not possible, the lower law is invalid. And, unless there is a conflict with federal law, the normal rule is that state courts have final say over the meaning of state laws. Now both sides, with some validity, have examples that they can use of judicial activism of the left or the right re-writing or invalidating laws. For example, it is hard to credibly read the Supreme Court opinion invalidating Section 5 of the Voting Rights Act as anything but conservative judicial activism. But the claim that a state court is misinterpreting state laws is not a federal constitutional claim, it is a matter for the state to resolve through its own processes — appeal, a state constitutional amendment, or a new statute to resolve the issue.
Similarly, just as at the federal level, many state statutes delegate powers to implement state laws to executive branch officials. Many states expressly authorize the adoption of regulations by the secretary of state to assure the uniform application of the state laws in all counties. And, by necessity, many decisions about the application of election laws to individual voters and the running of elections will have to be made by local election authorities. Challenges to these decisions are normally a matter for the state court to decide whether the state or local election authority has acted within the scope of the state election laws.
Because conservatives are upset with how state courts and state executive officials have interpreted state laws, we will probably see this issue come back again prior to the 2024 election
The final issue from this past cycle concerns the Voting Rights Act. While the Supreme Court invalidated Section 5 during the Obama Administration, Section 2 remains. The big difference between Section 2 and Section 5 is that Section 5 required states with a continuing history of discrimination in voting to get advance approval before any change to election laws went into effect. Section 2 allows those changes to go into effect (but the court can stay their effectiveness) with the court’s reviewing their validity post-enactment. The two sections use slightly different language for measuring the validity of a new law. Under Section 5, any new law that has the effect of moving backwards is invalid. Under Section 2, the new law must impair the opportunity to participate. This week, the Supreme Court heard two cases out of Arizona that attempt to define impairment.
As an initial matter, one of the complaints made in the Arizona case is that the test used by the Ninth Circuit makes what is improper a state-by-state matter. Unfortunately, any useful test will suffer from the same problem. The circumstances of minority voters will not be the same in every state. A rule that has no impact on minority voters in one state could strike at the core of the traditional practices of minority voters in another state. The ultimate issue in this case is whether the final opinion in the two Arizona cases issued in June will establish a useful test which will limit laws designed to reduce minority voting.
One thing that is clear from the arguments of Arizona Republicans is that they have a very narrow view of minority voting rights. In their mind, there is very little that would violate the voting rights law as long as a minority could theoretically vote even if the law will make it harder for minorities to vote than for whites to vote. We also had a very candid admission that Republicans do not view elections as being about what most people want. They view it as a zero-sum gain in which preventing people from voting is as valid a strategy as persuading people to vote for them. If a fair election means that you lose, it is acceptable to change the rules so that you win.
The two particular provisions of election law at issue in these two cases are likely to provoke some controversy. The first provision involves “ballot harvesting.” Many states have laws that limit who can pick up and deliver absentee ballots. And there are good reasons for these limits. As we have seen recently from Republicans in North Carolina, there are some unscrupulous politicians who will use ballot harvesting to commit fraud. But, when people live in isolated areas where you have to go into town to drop off the mail, it makes sense to let a neighbor take your mail with her if she has to go to town.
The other law limits out-of-precinct voting. Now other countries do permit out-of-precinct voting. Whether to permit out-of-precinct voting is normally a matter of convenience. There are pros to limiting out of precinct voting — ease of administration for example. But there are ways to restructure things to allow out-of-precinct voting. Whether you want election judges in the precincts to access the full county registration list on election day is a matter worthy of debate, but it is possible. It is also possible to have a printer set up to print ballots if a voter went to the wrong precinct and to have a separate ballot box for out-of-precinct ballots. And one of the pains of election day is a voter getting their precinct wrong. Rather than having to figure out the right location and having the voter have to get back in their car and take additional time, it would be more convenient to the voter to permit out-of-precinct voters.
In short, for both of the Arizona laws, you can make arguments for or against the Arizona law in a vacuum. But the Voting Rights Act is about the impact of laws on minority voters in a particular jurisdiction. And that is ultimately going to be a question of fact. In some states, these laws might be overly burdensome. In other states, these laws are simply a policy choice within the discretion of the legislature.
In summary, the past twelve months has seen a lot of action surrounding elections in the courts. For the most part, the courts have ruled in favor of voting and against attempts to challenge valid election results. But the challenges will continue. And the current Supreme Court, while rejecting the wildest attacks on democracy, has also demonstrated a lack of commitment to protecting voters from state legislatures. We will see this summer if that tendency continues.
Of course, Congress retains the power to enact new election laws to remedy most of the shortcomings of the Supreme Court. Those bills are either pending in the House or have already passed the House. Their fate lies in the hands of an evenly-divided Senate. I’ll have more to say about the Senate in the weeks to come.
