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electionlineWeekly — July 2, 2015

Table of Contents

I. In Focus This Week

SCOTUS ruling has broader impact than just redistricting
Ruling impacts elections administration in two key ways

By Edward B. Foley, Director, Election Law @ Moritz
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law
Moritz College of Law

What does this week’s U.S. Supreme Court decision in the Arizona redistricting case mean for the world of election administration?

We know it gives a green light to the use of ballot referenda and initiatives to create the kind of nonpartisan redistricting commission that Arizona and California have, and that is potentially a huge development in the world of redistricting itself.

We know, too, that the jurisprudential debate between Justice Ruth Ginsburg opinion for the Court’s five-member majority (including the all-important swing vote, Justice Anthony Kennedy) and Chief Justice John Roberts for the four dissenters has the potential for overarching theoretical significance concerning the nature of appropriate judicial interpretation of the U.S. Constitution—as I’ve already touched on elsewhere.

But in terms of the rules and institutions for administering the voting process itself, is this week’s decision of particular significance?

Yes. For two reasons.

First, more narrowly, a variety of voting-related rules were potentially threatened if the decision had gone the other way. As had been raised during the litigation of the case, and as specifically mentioned by Justice Ginsburg in her opinion for the Court, several states had used the procedure of ballot initiatives to make changes to their voting rules.

For example, Oregon had used the initiative to shorten the deadline to register to vote to only 20 days. If the Supreme Court had adopted a literal reading of the U.S. Constitution, as Chief Justice Roberts and the three other dissenters urged, then this Oregon rule (and others like it) would have been invalid.

The relevant provision of the U.S. Constitution — Article One, section 4 — says that the “Manner” of holding congressional elections “shall be prescribed in each State by the Legislature thereof,” unless Congress itself decides to set these rules. The claim in the case was that “Legislature” means “Legislature,” the body of representatives elected to enact the laws of the state, and thus does not mean the electorate itself acting by initiative.

It was a powerfully straightforward argument, one made even more so by the fact that elsewhere the same Constitution clearly used the word “Legislature” to mean “Legislature,” and not the electorate — as when the original Constitution specified that U.S. Senators would be “chosen by the Legislature” of each State, not elected by the citizens, as would be the members of the U.S. House of Representatives.

There needed to be a Seventeenth Amendment to undo this particular use of the word “Legislature” in the original Constitution. Why, then, Chief Justice Roberts asked, was a constitutional amendment not necessary to undo the word “Legislature” in the particular provision of the U.S. Constitution concerning enactment of procedural rules for congressional elections?

Justice Ginsburg’s response for the Court was, essentially, “We don’t absolutely have to interpret the word ‘Legislature’ literally; it could be interpreted, with a stretch, to encompass the electorate itself in a lawmaking capacity through the use of the initiative; and since we don’t have to be literal, we won’t, since being literal, at least in this context, would lead to really bad consequences.” Some of those bad consequences concerned gerrymandering specifically. But other bad consequences would have included the potential invalidation of a whole host of election administration rules.

As Justice Ginsburg observed, at risk were not only those election administration rules adopted through the use of initiatives and referenda; also vulnerable to invalidation were any rules applicable to congressional elections contained in a state’s constitution, rather than enacted through ordinary legislation. These included absentee ballot rules in a state’s constitution, or secret ballot rules.

Chief Justice Roberts himself cited a nineteenth century contested election in Michigan, where the outcome had turned on whether the Michigan statute or the Michigan constitution prevailed. The statute would have permitted absentee voting by soldiers, whereas the state’s constitution would not. The Chief Justice suggested that a literal interpretation of the word “Legislature” in the Constitution would require the Michigan statute to prevail over the Michigan’s constitution in this context.

Although Chief Justice Roberts resisted the conclusion that the consequences of this literalism would be dire, at the very least it would have been deeply destabilizing.

All that concern, however, has now been avoided by the majority opinion for the Court. Going forward, states can adopt their rules for administering elections — including congressional elections — by whatever lawmaking method they chose, whether ordinary legislation enacted by the state’s conventional Legislature, “direct democracy” legislation enacted by ballot initiative, or constitutional amendment adding a new provision to the state’s constitution.

Indeed, according to the logic of the majority opinion, a state could even choose to delegate its legislative authority for enacting election administration rules to a special-purpose body, like the kind of independent Election Commissions that exist in Australia and other countries. In fact, Justice Ginsburg’s majority opinion in the Arizona case specifically sustained precisely that sort of delegation, since the initiative merely created Arizona’s redistricting commission; it was the redistricting commission itself that adopted the new map for the state’s congressional districts.

Thus, the first and most immediate significance of the Court’s decision in the Arizona case is to confirm the freedom of states to choose whatever method of enactment they wish for the adoption of their own election laws.   This freedom means that prior enactments, like Oregon’s concerning the voter registration deadline is no longer in jeopardy. It also means that, in the future, the citizens of each state can decide whichever legislative method is best for their particular circumstances.

The second and potentially broader significance of the decision stems from the Court’s underlying rationale for giving the states this freedom. The theme that underlies the Court’s reasoning is that partisan manipulation of the voting process is wrongful and has no redeeming virtue. The Court made this point, of course, specifically in the context of partisan gerrymandering, since that was the specific form of partisan manipulation at issue in the case.

But the Court’s disdain for partisan manipulation of the electoral process — changes in voting procedures designed to advance one party’s electoral interest at the expense of the other — would extend to partisan manipulation of electoral administration rules, whether involving voter identification, early voting, same-day registration, the counting of provisional ballots, or other issues.

The Court premised its flexible approach to constitutional interpretation on the fact that the Framers themselves abhorred partisanship in politics. In the Constitution, the Framers adopted specific provisions in an effort to thwart the rise of political parties and their pursuit of narrow partisan advantage at the expense of the general public interest. The Framers were not successful in this regard with respect to specific provisions they adopted, and the majority of the Court recognized this.

But the majority took from this historical lesson the implication that it should interpret the Constitution in order to advance the Framers’ own goal of thwarting partisan distortion of the political process, rather than interpreting the Constitution’s specific provisions literally when doing so would be counterproductive to the Framers’ own goals in this respect.

Thus, insofar as partisan manipulation of the voting process affects other cases that reach the Court in the future, the Court will look on that manipulation with an inquisitive eye. First of all, in light of the Arizona precedent itself, the Court will inquire about the extent to which the state undertook efforts at institutional reform to avoid such partisan manipulation. If a state’s traditional legislature or secretary of state have adopted rules that appear purely partisan, the Court may point out that the state now has the option of employing alternative lawmaking procedures in an effort to curb those partisan distortions. The extent of a state’s efforts — or lack of efforts — to pursue such institutional reforms may become a factor in the Court’s constitutional analysis (as it is likely to do in the gerrymandering context).

In addition, the Court’s hostility to pure partisanship in the context of making the rules for the electoral process may emerge whenever a state attempts to defend its rules on the ground that it is just “party politics” at play.

If in an Equal Protection or Voting Rights Act case, the Court asks a state why it adopted a voting rule, and the answer is “the effort of one party to obtain a partisan advantage over the other,” that answer may no longer fly.   While the Court used to consider pure partisanship an acceptable motive, the Arizona case is a signal that the Court may no longer do so.

It is still too early to tell, and one or more of the Voting Rights Act cases in the litigation pipeline might provide further indications on this point. But it is evident from the majority opinion in the Arizona case that the Court is well aware of the heightened partisan polarization that is presently afflicting the nation, and the Court appears ready to let its jurisprudence be affected by a desire to counteract this tendency, which it perceives as pernicious.

Of course, all these tentative judgments about the potential future direction of the Court’s jurisprudence are necessarily contingent on the composition of the Court in the future.

The Arizona case, to reiterate for emphasis, was 5-4, with Justice Kennedy playing his usual pivotal role. Whenever it comes that Justice Kennedy is no longer on the Court, or Justice Ginsburg, and depending on who their replacements are, the jurisprudential landscape could look very different.

But for now, partisan manipulation of voting rules is suspect to deep suspicion, and the states have free rein to employ institutional innovation in an effort to combat this evil.