North Carolina

Gerrymandering as Viewpoint Discrimination: A “Functional Equivalence” Test

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A First Amendment test for identifying when a map is functionally equivalent to a facially discriminatory statute.

After listening to the oral arguments in the Supreme Court’s two gerrymandering cases last week, one from North Carolina and the other from Maryland, I think there may be a way to simplify the First Amendment analysis that is causing the Court (and the litigants) so much trouble.  The simplification would be based on a distinction between (a) the applicable standard in principle and (b) the statistical evidence required in practice to show a violation of the applicable standard.

The applicable standard would be based on the recognition that it would violate the First Amendment for a state legislature, when enacting election laws, to engage in any facially explicit discrimination on the basis of partisanship.  Suppose, for example, that Maryland’s legislature enacted a law explicitly providing that to win an election a Republican candidate must receive a majority of votes (more than 50%), but to win the same election a Democratic candidate must receive only a plurality of votes (more than any other candidate). This law, in other words, would make any votes for third-party, independent, or write-in candidates work to the advantage of the Democratic candidate at the expense of the Republican candidate. Under this hypothetical statute, there would be a runoff only if and when the Republican won a plurality but not a majority; the Democrat would be declared the winner without a runoff based on a mere plurality.  This facially asymmetrical state law would be undoubtedly unconstitutional under the First Amendment, as a form of blatant viewpoint discrimination on the basis of partisanship.

It would not matter that the degree of facial asymmetry was relatively small.  This hypothetical is not as extreme as if the legislature required Republicans to win elections by a two-thirds supermajority (otherwise, the Democrat would be seated).  But that fact would make no difference. Any degree of explicit partisan asymmetry would be a form of unconstitutional viewpoint discrimination.

Justice Alito recognized this point during the oral argument in the Maryland case.  He asked the plaintiff’s counsel (at 34): “if your claim is based on the First Amendment, doesn’t that necessarily mean that partisanship cannot be taken into account at all, not one iota?” When the lawyer demurred, Justice Alito pressed: “Have we ever said that there’s such a thing as benign viewpoint discrimination under the First Amendment? . . . Or, you know, you can discriminate on the basis of viewpoint, but it just has to be small?”

The difficulty with gerrymandering litigation under the First Amendment, as I’ve discussed previously, is that it is not a form of facially explicit discrimination.  Redistricting laws are not written explicitly in terms of partisanship, but instead in terms of facially neutral lines on a map or words that demarcate geographical boundaries.  The challenge is knowing when those facially neutral laws function as a form of viewpoint discrimination on the basis of partisanship.

To be sure, there may be rare cases in which a state legislature brazenly acknowledges that it is drawing the lines in order to discriminate on the basis of partisanship.  Indeed, the two pending cases before the Court may be rarities of this kind.  But, as several of the Justices observed during the arguments, if the Court condemns self-declared partisan gerrymanders as unconstitutional, then legislatures will not be so brazen in the future, and the Court will need a way to determine which maps actually operate as a form of unconstitutional viewpoint discrimination.

Here is where it may be useful to distinguish between (a) the standard itself and (b) the evidence that shows a violation of the standard.  We can state the standard this way: a redistricting map violates the First Amendment if it is the functional equivalent of facial discrimination on the basis of partisanship.  A plaintiff is able to win a claim based on this standard if, but only, if the plaintiff presents evidence demonstrating that the map is in fact the functional equivalent of facial discrimination based on partisanship.

How is a plaintiff able to do that? In the absence of an explicit admission, the only way is the kind of statistical evidence that the plaintiffs relied upon in the North Carolina case.  If thousands of alternative maps randomly generated by computers demonstrate that the actual map is an extreme statistical outlier insofar as it advantages a political party more than all the alternative maps do, then one can confidently say that the actual map is the functional equivalent of a state statute that contains a facially explicit preference for that political party.

But there still remains the question of how much partisan advantage the statistics must show.  The actual North Carolina map is superficially extreme, without regard to statistical analysis, insofar as it regularly produces a 10-3 split in favor of Republicans when the state is more evenly balanced between the two major political parties.  Statistical analysis, in fact, confirms that the actual map would not be chosen except by a legislature deliberately wanting to create a structural advantage in favor of one political party—making the map the functional equivalent of facially discriminatory legislation on the basis of viewpoint.

Suppose, however, that statistical analysis would also show that a 9-4 map, or an 8-5 map, would be an extreme outlier relative to all the randomly generated maps; would this showing, then, demonstrate the legislature’s chosen map to be the functional equivalent of facial viewpoint discrimination?

Although the plaintiffs seemed to waffle when faced with this kind of questioning at the oral argument, I think upon reflection that the correct answer clearly must be yes.  As a practical matter, this situation seems unlikely.  The nature of the statistical analysis is such that a relatively small deviation partisan balance—an 8-5 map, instead of 7-6, for example—is unlikely to end up an extreme outlier in the tail of a statistical distribution.  But if it did, it would be demonstrable evidence that the 8-5 map was the product of partisan favoritism, and not viewpoint-neutral legislation.  To Justice Alito’s crucial point, if a little bit of viewpoint discrimination is unconstitutional under the First Amendment, then legislation deliberately designed to produce an 8-5 partisan advantage (when viewpoint-neutrality would yield a 7-6 map) is just as improper as legislation deliberately designed to produce a 10-3 map.

In an effort to be clear on this point, if the statistical analysis does notdemonstrate an 8-5 map to be an extreme outlier, then the map cannot be challenged as the functional equivalent of facial viewpoint discrimination.  But if the statistics does show an 8-5 map to be an extreme outlier, then it is the functional equivalent of a statute that is facially discriminatory on the basis of partisanship.  It all depends upon what the statistical analysis actually shows. The principle remains the same: maps that are statistical outliers are the functional equivalent of facial discrimination.  But it depends on the actual evidence of the random maps generated by the computer simulations to know whether a particular map is, in fact, a statistical outlier.

It seems also important to acknowledge that point that several Justices emphasized: deviations from proportionality are relevant to determining whether a map is unconstitutionally discriminatory.  In this regard, consider another example: suppose in a given state, the actual map regularly produces an evenly balanced 5-5 split between Republicans and Democrats, but statistical analysis shows that this map is an extreme outlier because most computer-generated maps based solely on nonpartisan geographical considerations yield 7-3 splits in favor of Democrats.  Suppose, further, that in this state the statewide balance between Republicans and Democrats is roughly 50%-50%, and thus the 5-5 split in the actual map corresponds to this statewide balance, thereby offsetting the “disproportionality” caused by geographical considerations.  If in this situation the actual map would be valid, as it would seem to be under the holding of Gaffney v. Cummings, the reason is that the map does not discriminate against either political party relative to the statewide baseline of partisan balance, and it is not discriminatory for a state to endeavor to replicate this statewide balance when drawing district lines even when doing so is to offset a geographical advantage that one party otherwise might have.

Another way to make this point is to say that if a facially neutral statute achieved proportionality it would not be unconstitutional.   For purposes of determining representation in a state legislature, there would be nothing wrong with a state statute explicitly providing that each political party receives the same number of seats as its share of the statewide vote.  Although the federal Constitution does not command this kind of strict proportional representation, it also does not condemn it. (This point, by the way, answers Justice Alito’s separate concern about access of speakers to a public park. Making shares of legislative seats turn on a party’s share of votes is not the same as the government making its own viewpoint-based determination, distinct from any content-neutral criteria, of which speakers get to use a public park.)

But a state statute could not, consistent with the First Amendment, explicitly state: “When Republican candidates receive 60% of the votes, they shall receive only 40% of the seats.”  That would be another form of facially explicit viewpoint discrimination. Thus, when a map is the functional equivalent of this facial disproportionality, it is equally problematic under the First Amendment.  Acknowledging this point does not mean that the First Amendment requires strict proportional representation.  It does not. At the same time, however, it can be recognized that deviations from proportionality is relevant to determining whether viewpoint discrimination, or its functional equivalent, is occurring.

Does all this analysis mean that any partisan favoritism in the drawing of district lines is unconstitutional viewpoint discrimination? I don’t think so, and the reason is that partisan favoritism as the motivation underlying a statute is not necessarily the functional equivalent of facial discrimination on the basis of partisanship.  A facially discriminatory law has both a discriminatory intent and a discriminatory effect imbedded in the text of the statute itself. The discriminatory effect follows from the operation of the facial discrimination.  For example, a tax law that explicitly sets a different rate of taxation for Democrats and Republicans inevitably has the effect of discriminating on the basis of the facial distinction.  By contrast, a law that is not facially discriminatory but is motivated by bias might not actually have a discriminatory effect in operation: the example of a facially neutral law that is premised on an inaccurate hunch that it might favor one party is a law that has a discriminatory motive but not necessarily a discriminatory effect.

The “functional equivalence” standard prevents laws motivated by partisanship from being unconstitutional unless they also exhibit a distinct discriminatory effect.  A facially neutral law is invalid viewpoint discrimination if, but only if, it operates to have a discriminatory effect that makes it the functional equivalent of facially explicit viewpoint discriminatory.

This standard, in other words, does not invalidate a state legislature’s redistricting map just because it was motivated by partisan favoritism. Instead, it invalidates the map only if that partisan favoritism is tantamount to facially explicit discrimination on the basis of partisanship.  But defining the scope of constitutionality liability in this way is just as it should be given the First Amendment.  What is impermissible is for the legislature to enact election laws that explicitly turn on viewpoint discrimination, and this standard invalidates those laws—but only those laws—that are essentially the same.

The Gerrymandering Cases

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A memo analyzing the First Amendment and Article I issues, explaining why the latter is the better basis for judicial review of congressional gerrymanders.      

[In my final exams, I often ask students to write “bench memos” to Supreme Court justices in important pending cases. For a change, I thought it might be interesting to put the shoe on the other foot, so to speak, and to require myself to do what I routinely ask of my students.]

The two pending cases to be argued March 26—Rucho v. Common Cause and Lamone v. Benisek, the first from North Carolina and the second from Maryland—attack congressional gerrymanders on multiple grounds: primarily, the First Amendment; and secondarily, Equal Protection and Article I.

The First Amendment and Equal Protection challenges suffer from what seems to be a conceptual difficulty.  But the same problem does not afflict the Article I claim. There are additional reasons, moreover, why the correct understanding of Article I leads to a modest and appropriate role for judicial invalidation of extreme gerrymanders that function as obstacles to the electorate’s ability to remove incumbent representatives whose performance in office the electorate repudiates.  The Court, therefore, should embrace Article I as a basis for judicial review of congressional gerrymanders pursuant to the exercise of its interpretative authority under Marbury v. Madison, while simultaneously eschewing the First Amendment and Equal Protection as grounds for this review.

 

The Problem with the First Amendment and Equal Protection Claims

Both the First Amendment and Equal Protection claims in these cases rest on the same proposition that gerrymandering wrongly discriminates against members of a political party because of their partisan affiliation.  Given this commonality, as well as the fact that the plaintiffs themselves prioritize their First Amendment argument, this memo will also focus on the First Amendment. But this memo’s analysis of the First Amendment issue applies as well to plaintiffs’ Equal Protection claims.  Both share the same weakness, which is the difficulty of condemning the choice of a legislative district’s boundaries as a form of unconstitutional discrimination based on the party identification of voters who reside in the district.

While some forms of government discrimination on the basis of partisanship violate the First Amendment, not every kind of governmental differentiation based on party affiliation is unconstitutional. The majority party in each chamber of Congress gives itself more seats on legislative committees and subcommittees than it gives to the opposition party.  Similarly, administrative agencies, like the FCC, often have more members from one political party than another.  And even though the First Amendment has been construed to prevent partisanship as a basis for employment decisions with respect to subordinate federal employees, Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), a president clearly can make party affiliation a factor in appointing cabinet-level and other policymaking officials.

The question is whether the First Amendment prevents making partisanship a factor in drawing legislative districts.  Can the majority party favor itself, at least to some extent, when exercising the discretion of where to draw the district lines, just as it favors itself (at least to some extent) when determining legislative committee assignments, or hiring some policymaking staffers? Or instead is legislative districting the kind of decision, like determining who gets a license for a parade on a public street, or who gets hired as a state university professor, for which the First Amendment requires that partisanship play no role whatsoever?

To ask these questions, drawing this conceptual distinction, would seem to suggest legislative districting belongs on the side of the line that permits consideration of partisanship as part of the government’s discretion to organize its own operations.

Historically, it has long been thought that it is permissible, even if sometimes objectionable, for partisanship to play a role in the drawing of district lines. When Patrick Henry had to decide where to draw the lines for Virginia’s districts in the first congressional election, one way to draw the lines would favor one nascent political faction (to which Henry and James Monroe belonged), while another way to draw the lines would favor a different political faction (to which James Madison belonged).  It might have been “pure politics” rather than “good government” to decide to draw the district line to favor the preferred faction, but this political decision was not in and of itself unconstitutional. And although the First Amendment did not exist until after Madison won this first election and drafted the Bill of Rights, it is unreasonable to think that the purposes of the free expression clauses of the First Amendment were even in part to render invalid the kind of political districting decision that Patrick Henry had made.

The plaintiffs in these cases do not agree among themselves on how the First Amendment applies to redistricting.  The Common Cause plaintiffs in the North Carolina case take the position that any redistricting motivated by “invidious” partisanship violates the First Amendment regardless of what actual effect that partisan motive might have.  That position, however, seems flatly inconsistent with the Court’s decision in LULAC v. Perry, 548 U.S. 399 (2006), a case these plaintiffs do not cite.  That position also seems contrary to basic First Amendment principles (the government does not violate a citizen’s rights to free expression simply because government officials have bad thoughts about the citizen’s political views) as well as the Court’s election administration jurisprudence under Anderson-Burdick-Crawford balancing. While the degree of scrutiny under A-B-C balancing varies with degree of burden on voting rights, there presumably needs to be some measurable harm to voting rights in order to trigger even the most minimal level of judicial review. Improper intent, without any showing of actual harm, would not be enough.

To illustrate this point, suppose the government must decide where to locate a new polling place.  There are two options, X and Y.  The government has no evidence that either X or Y would be better or worse for either Democrats or Republicans.  But on a hunch the government officials responsible for this decision think that X might be better for Democrats and for that reason choose X.  This invidious intent, without some actual evidence of harm, would not be a sufficient basis under the First Amendment for the judiciary to enjoin the choice of X as the new polling location.  All voters, whether Democrats or Republicans, who live in the relevant precinct would be equally entitled to vote at this new location. There would be no formal discrimination among voters on the basis of party affiliation.  Without any proof that it actually would be more burdensome for Republicans than Democrats to go to X to cast their ballots, there would be no basis for invalidating the government’s choice of location even with the evidence of improper motive.  In the absence of such evidence of discriminatory effect, Y might be just as bad or even worse.  If voters did not actually suffer, there is no point undoing the government’s inappropriately motivated decision.

Under the test advocated by the Common Cause plaintiffs, however, a government’s redistricting decision would violate the First Amendment without any showing of actual harm (beyond the bare minimum necessary for standing) simply because the government officials had a hunch that drawing the district one way, rather than another, might have the effect of benefiting one party over another.  The North Carolina map at issue in Rucho may be an especially egregious gerrymander, which in fact gives considerable electoral advantage to one party over another.  But the test proposed by the Common Cause plaintiffs is hardly limited to such “outlier” maps.  Just the opposite.  It would invalidate any map upon a showing that any district line was drawn because of favoritism for one party.  (See especially pages 44 & 56 of their brief.) That test would rule out, it would seem, any redistricting whatsoever undertaken by a state legislature—a result that might be desirable as a matter of policy, but one that hardly seems compelled as an interpretation of the First Amendment.

The League of Women Voters plaintiffs in the North Carolina case do not advocate such a lenient standard. They say that the discriminatory effect of a gerrymandered map must be “large” and “durable” (at page 55) to be unconstitutional. But they do not offer any principle rooted in the First Amendment for determining when a map has a “large” and “durable” effect of the wrong kind. They offer multiple metrics for showing that a map has an asymmetrical bias in favor of one party. But the First Amendment does not require that legislative districting satisfy a symmetry standard (see LULAC v. Perry); there are entirely valid reasons of geography why a redistricting map would by asymmetrical, and these plaintiffs do not explain the degree of asymmetry that would cause a map to be unconstitutional.  After each decennial census, when it is time to draw new legislative districts, there is no federal constitutional obligation on the part of the mapmaker to draw maps that satisfy a partisan symmetry standard at the same time that the mapmaker considers other redistricting criteria.

In a footnote (at 60 n.17), these plaintiffs say that in future litigation an “asymmetry threshold” could be developed that is similar to the “population deviation threshold [of] ten percent” for adjudicating Reynolds v. Sims claims. But this footnote misses a key distinction between the two types of claims. Equality is the constitutional standard under Reynolds, and 10% is considered a tolerable deviation for purpose of practical implementation.  By contrast, perfect symmetry (in other words, zero asymmetry in favor of a political party) is not the constitutional standard, and thus the search is not merely for some practical way to implement an identified constitutional standard, but instead the search is to determine the constitutional standard itself.  That key component of the First Amendment claim is still missing.

The Benisek plaintiffs in the Maryland case offer yet a third theory for when a gerrymander violates the First Amendment.  In their view (see especially pages 34-35 of their brief), the First Amendment constitutionalizes a prohibition against vote dilution on the basis of party affiliation that is equivalent to the statutory prohibition against vote dilution on the basis of race under the Voting Rights Act.  But VRA vote dilution claims can be especially difficult to adjudicate; LULAC v. Perry, again, is a good example. If Congress passed a statute that made vote dilution on the basis of party affiliation unlawful, then the judiciary would be required to consider these claims, as it does under section 2 of the VRA. But the difficulty of these dilution claims is reason to pause before concluding that the Constitution itself imposes this standard (and has ever since the adoption of the First Amendment as part of the Bill of Rights).

One way to see why race-based vote dilution claims do not translate easily into similar party-based claims is to consider the issue of at-large elections. If a government employs at-large elections with the intent to dilute African-American voting power, that intentional race discrimination is directly actionable under the Fifteenth Amendment.  Rogers v. Lodge, 458 U.S. 613 (1982).  But suppose a government decides to use at-large elections, rather than district-based elections, based on a belief that at-large elections will favor one political party in its competition with an opposing political party.  (At-large elections are impermissible for elections to the U.S. House of Representatives, but that is only because of a congressional statute.  Plaintiffs’ First Amendment theory would apply to all state and local elections.)  At-large elections provide all voters equal voting rights in terms of Reynolds v. Sims.  But, as is well known, at-large elections can give a hugely disproportionate boost to the majority party in a locality.  Imagine a city where recent elections indicate that Democrats have a 60-40 advantage over Republicans citywide.  At-large elections for city council seats would make it likely that Democrats could win all the seats, whereas it might be possible with district-based elections for Republicans to have representation on the city council.  If Republicans made this proposal, the Democrats in control might reject it solely because they view retaining at-large elections as advantageous to their party.  While that kind of partisan motivation for at-large elections is hardly good government, it has never been deemed unconstitutional. It would be a revolution in First Amendment jurisprudence to hold that plaintiffs could invalidate at-large elections, replacing them with district-based elections, based solely on a showing that at-large elections were retained for reasons of partisan advantage.

There is a simple explanation why the three groups of plaintiffs offer three different versions, each conceptually flawed, of how the First Amendment applies to gerrymandering.  The explanation is that the First Amendment is ill-suited to imposing constraints on legislative districting, given that all districts already must comply with the basic equality principles of Reynolds v. Sims.  How the drawing of district lines unconstitutionally favors one political party in violation of a “neutral redistricting requirement” embedded in the First Amendment is a hard argument to make, as a matter of both history and First Amendment theory. (The strongest version of the First Amendment argument is presented, not by any of the plaintiffs, but instead in the amicus brief submitted by the ACLU.  Even in this brief, however, there is a tension between the general “neutrality” idea it advances and the specific “entrenchment” standard it proposes: partisan favoritism in redistricting that falls short of entrenching a structural advantage for one party would contradict nonpartisan neutrality; yet if the First Amendment only bars gerrymandering that amounts to entrenchment, the brief does not explain how this limited anti-entrenchment doctrine is derived from the much broader neutrality idea or from the First Amendment itself.)  But the First Amendment is not the only provision at issue, and the difficulties it suffers in this context do not apply to the separate Article I analysis.

 

 Article I’s Aversion to Incumbency Protection

Unlike the First Amendment, Article I does not contain an anti-discrimination principle that is conceptually difficult to apply in the context of drawing legislative districts. Instead, Article I contains the principle that elections to the federal House of Representatives should be responsive to the changing political views of the electorate.  This principle is reflected in the basic Article I requirement that all House members must face the voters every two years, whereas Senators have six-year terms.

This responsiveness requirement has implications for judicial review under Marbury v. Madison. If a state legislature decided that it did not like the frequency of biennial elections and wanted to insulate the state’s congressional representatives from the obligation to seek reelection every two years, the state legislature might enact a law saying that the state will not actually hold these elections “every second year” but only every fourth or sixth.  Or even if the state undertakes the effort of conducting the polls biennially, it could decide not to use the results as a basis for ousting an incumbent who loses the poll, but instead treats the result as a Gallup-type public opinion survey to learn the mood of the electorate but without any actual electoral consequences for the incumbent.  These hypothetical state laws would be blatantly unconstitutional under Article I, and it would be the obligation of the federal judiciary under Marbury to invalidate them.  This point would be true whatever Congress had, or had not, said on the matter pursuant to its own supervisory power to regulate congressional elections—a point that makes clear, contrary to the assertion in Paul Clement’s brief for the Rucho Appellants, that state laws regulating congressional elections are not immune from judicial review (under the political question doctrine) simply because Congress has the power to override state laws on this topic.

It is possible to imagine other state laws that would violate this Article I responsiveness principle.  Suppose, for example, that a state law required challengers to win two-thirds of the vote in order to unseat House incumbents.  This supermajority requirement, although not as extreme as giving challengers zero chance to defeat incumbents, would still be inconsistent with the basic principle that the electorate is entitled to “throw the bums out” every two years, if that’s what the electorate wants.  Given the essential nature of the federal House of Representatives created by Article I, as the primary locus of popular sovereignty in the national government, a state’s rules for electing Representatives should not have a built-in structural advantage for incumbents. (If a state legislature endeavored to undermine popular sovereignty in the election of the federal House of Representatives in ways other than the protection of incumbents—for example, by insisting that incumbents win by two-thirds of the vote in order to retain their seats—that kind of impediment to popular sovereignty would also violate Article I.  See Cook v. Gralike, 531 U.S. 510 (2001).  But to consider the constitutionality of the legislative districting in these cases under Article I, it suffices to focus on the way in which the improper protection of incumbents contravenes the responsiveness principle inherent in Article I.)

Extreme gerrymanders can function as incumbency-protection mechanisms antithetical to this basic responsiveness principle.  Although not exactly the same mechanism as a two-thirds voting requirement, a gerrymandered district can operate as the functional equivalent of a supermajority voting rule.  Consider how gerrymandering works in comparison to at-large elections. Imagine a state in which at-large elections to the federal House would be intensely competitive (if Congress permitted at-large House elections, as it used to do and constitutionally could do again), with the expectation that the statewide electorate would be divided close to 50-50 between the competing candidates.  Now suppose that the state legislature replaced at-large elections with a gerrymandered district-based map so that each gerrymandered district was electorally uncompetitive, and the incumbent had a 65-35 advantage over the challenger.  The resulting situation, which is possible for gerrymandering to accomplish even when statewide races would be 50-50 competitive, would be essentially equivalent to imposing a two-thirds supermajority voting requirement on challengers.  Just as an explicit two-thirds voting requirement for House elections imposed by state law would violate Article I because of its inconsistency with the basic responsiveness principle, so too should the gerrymandering of House districts by state law that operates essentially as the same supermajority voting requirement and thus is equally antithetical to the fundamental responsiveness principle.

It is possible to measure the degree to which a gerrymandered map insulates incumbents from electoral competition. The same technique of statistical simulation that plaintiffs use (see pages 12-16 of their brief) in an effort to measure partisan bias could be employed to measure what’s relevant for Article I: improper incumbency protection.  Here’s how it would work: the computers would be programmed to generate thousands of random maps using geographically valid districting criteria (equal population, compactness, respect for municipal and other local boundaries, and so forth).  For each map, it would be possible to compute an average competitiveness score for all districts; this would be similar to computing a competitiveness score for at-large elections, but instead of a single statewide competitiveness measure, there would be a series of district-specific competitiveness measures, and the average of this series would be calculated.  (The Cook Political Report’s PVI is one commonly used measure of a congressional district’s competitiveness.) The average competitiveness scores of all these randomly generated maps would be plotted on a graph, and it presumably would look something like the traditional bell curve. The average competitiveness score of the actual map adopted by the state legislature—the one alleged to be a gerrymander—could be compared to this graph.  If the actual map was a statistical outlier, in the extreme tail of the bell curve, then it would mean that the actual map adopted by state law insulated incumbents from electoral competition to an extreme degree and in a way not necessitated by geographically valid districting criteria. To be sure, a state always should be entitled to offer a defense of a map that is a statistical outlier, but if the state can offer no legitimate reason for its incumbency-insulating map, then the map should be invalidated under Article I as inconsistent with its basis responsiveness principle.

This Article I analysis does not suffer from the defect that afflicts the First Amendment inquiry.  The Article I analysis identifies the relevant principle (responsiveness) and the problem that contravenes that principle (incumbency insulation).  The analysis then employs a measure of the problem itself (degree of incumbency insulation), not any proxy for the problem. It calls for the invalidation of maps if, but only if, they exhibit the problem to a statistically significant degree. Gerrymanders do not violate Article I if they give a slight edge to incumbents, and this is true even if they are motivated by an improper incumbency-protection purpose.  (For the same reason, at-large elections to the House, if ever permitted by Congress again, would not violate Article I even if a state adopted at-large elections in the hope that they would give an advantage to incumbents.  The capacity to “vote the bums out” always exists in an at-large election, as long as there is no supermajority voting requirement.   Only a gerrymander that gives an artificial edge to incumbents beyond what would exist in at-large elections—an artificial edge equivalent to a supermajority voting requirement—would be actionable under Article I.)  In sum, a gerrymander must generate a statistically measurable structural advantage for incumbents, amounting to an extreme impediment to electoral competition between incumbents and challengers in comparison to what would occur in the absence of the gerrymandered map, in order to justify judicial invalidation of the map under Article I.

This Article I analysis has additional advantages absent from the First Amendment (or Equal Protection) inquiry.  It applies only to congressional elections, not state or local ones.  Therefore, with respect to a topic that has proved judicially difficult for decades, it is advantageous that this approach applies only to a relatively small subset of the topic—and the one most appropriate for the federal judiciary’s involvement.  The gerrymandering of state and local elections can be handled by state courts under state constitutional law in our federal system.  The gerrymandering of congressional elections, by contrast, requires the federal judiciary to remediate (assuming, as analyzed above, that Article I imposes a constraint on gerrymandering).

This Article I analysis also can acknowledge an appropriate role for Congress in policing the gerrymandering of congressional districts by state legislatures, if Congress chooses to exercise this constitutional authority.  The fact that Congress has this power does not mean that the political question doctrine bars the exercise of judicial review under Marbury.  As indicated above, the courts must block state laws violative of Article I even if Congress has not acted.  But insofar as Congress does have legislative authority in this area, the federal judiciary can appropriately take a subsidiary role and defer to Congress if and when Congress chooses to develop its own rules and procedures for policing improper state-law gerrymanders.  While not exactly the same as “dormant Commerce Clause” jurisprudence, judicial enforcement of Article I can recognize the primacy of Congress to regulate this political subject matter that minimizes the risk of judicial overreach.  In this respect, Article I (like the Commerce Clause) is in sharp contrast to the First Amendment or Equal Protection: with respect to those constitutional clauses, if the Court issues a pronouncement it necessarily occupies the entire field, crowding out any contrary Act of Congress on the matter.  By contrast, with respect to Article I, like the Commerce Clause, the judiciary can give Congress the last word, assuming that Congress has acted within the scope of its own authority.  The judicial invalidation of a state law on Article I grounds, like the judicial invalidation of a state law on “dormant” Commerce Clause grounds, can yield to supervisory congressional legislation that appropriately enforces Article I. In this way, a judicial invalidation of a state-law gerrymander on Article I grounds is not nearly so momentous a ruling as would be a judicial decision resting on First Amendment or Equal Protection grounds. (It is possible also that extreme partisan gerrymanders might violate the “fair play” principle inherent in due process, but that kind of constraint against outlier maps would not entail strict partisan neutrality in redistricting, and in any event is an analytically distinct claim that the plaintiffs have not argued in these pending cases.)

 

Conclusion

Based on the foregoing analysis, this memo recommends vacating the decisions below insofar as they rest on the First Amendment or Equal Protection and remanding for consideration of the whether the challenged maps violate Article I’s responsiveness principle because they improperly insulate incumbents from electoral competition.  On remand, the courts below can consider whether there is adequate evidence already in the record to conduct this Article I inquiry and, if not, whether it would be appropriate procedurally to reopen the record for this purpose.

The Perils of Voting by Mail

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by Steven F. Huefner

Anecdotal evidence of fraudulent absentee ballot harvesting in North Carolina in last month’s midterm election already demonstrates the need for greater vigilance in how states conduct voting by mail, whether or not North Carolina ultimately must rerun the election for its 9th Congressional District.

Bladen County, North Carolina, provides the latest object lesson for anyone genuinely interested in improving American elections. Each day this past week brought a new revelation about apparent absentee ballot fraud there, fraud that appears increasingly likely to lead North Carolina authorities (or the U.S. House of Representatives) to call for a new election for the state’s 9th Congressional District. But whether or not that entire congressional race must be rerun, the story that has emerged from Bladen County already makes clear the need for all states to be vigilant in how they manage their absentee voting processes.

At issue in North Carolina is the reliability of vote totals showing the leading candidate ahead by just over 900 votes, in light of questions about whether those vote totals accurately reflect the votes of over 14,000 voters in the 9th Congressional District who requested absentee ballots, including more than 3,000 such voters whose absentee ballots were not returned. North Carolina officials justifiably have refused to certify the results of this race pending an investigation into a panoply of allegations about these absentee ballots, many concerning the activities of the Red Dome Group (a political consulting firm working for the leading candidate) and one of Red Dome’s operatives, L. McCrae Dowless Jr.

For multiple reasons, absentee voting outside the watchful eyes of election officials, often called voting by mail (in contrast to early voting that occurs in-person at a voting center), has long been the weak link in the reliability of our elections. Central to the North Carolina investigation now underway is the practice of “ballot harvesting,” in which a candidate’s or a party’s supporters round up as many voted absentee ballots as they can for hand delivery. Arguably, an innocent version of this practice exists, a practice not much different from traditional Election Day get-out-the-vote drives, in which the harvested ballots are all cast legitimately by eligible voters and returned to election officials for counting. But unfortunately, absentee ballot harvesting all too often devolves into electoral fraud, as every indication now suggests has occurred in Bladen County and perhaps elsewhere in the 9th Congressional District.

At least three distinct kinds of fraud can occur when political operatives “assist” in returning absentee ballots. First, those collecting the ballots can intentionally discard (or conveniently lose or misplace) any ballots they suspect or know (perhaps even by opening the ballot envelopes) have been cast in favor of the “wrong” candidate(s). Second, those collecting the ballots can open the ballot envelopes and change or alter whatever votes the voter originally recorded. Third, those collecting the ballots can collect unvoted ballots (or partially voted ballots) and complete the ballots themselves.

Although this third type of fraud may sometimes depend on the complicity (or negligence) of an absentee voter in possession of an incomplete absentee ballot, the first two types of ballot harvesting fraud can occur without any wrongdoing on the part of the absentee voter, other than being duped into turning the ballot over to a ballot harvester. Moreover, even the third type of fraud sometimes can occur without the complicity of an eligible voter, if the perpetrator is able to request absentee ballots on behalf of eligible voters without those voters’ knowledge and then control the locations to which the ballots are delivered.

Yet a fourth type of problem can arise if the person collecting the ballots improperly influences the voters’ choices in marking the ballots. Although improper influence in the marking or casting of an absentee ballot can occur not only with harvested ballots but also with any other absentee ballot cast outside the presence of election officials, including undue influence exerted by family members within the same household, the practice of ballot harvesting exposes whole groups of absentee voters to greater risks of such influence. Some may be reluctant to call this conduct “fraud,” but it too is an unlawful distortion of a fair voting process.

While it is still early to be sure of the extent or impact of the misconduct in last month’s North Carolina election, preliminary investigation suggests that perhaps all four of the above-described types of misconduct may have occurred in the 9th Congressional District. The leading candidate’s most recent campaign finance disclosure report (filed after the election) revealed that the candidate owes the Red Dome Group some $34,000 for the “door to door” activities of “early voting poll workers” – in other words, for ballot harvesting. Meanwhile, an increasing number of stories specifically about the activities of Mr. Dowless suggest that the actual harvesting activities in which he engaged were not of the pure get-out-the vote kind, but instead ran the gamut of the kinds of vote harvesting fraud described above.

This year’s ballot harvesting fraud in North Carolina is hardly the first time such problems have occurred. On the contrary, comparable absentee balloting abuses have been all too frequent, if not as high-profile. For instance, absentee ballot fraud resulted in a state court throwing out the results of a Miami mayoral contest in 1997, and an ostensibly above-board absentee ballot harvesting effort proved the undoing of the Detroit City Clerk in 2005.

Because of the various risks of absentee ballot harvesting, many states, including North Carolina, laudably have laws that prohibit or regulate the practice. In North Carolina, a statute already on the books provides that only a voter or a voter’s family member (or the U.S. Postal Service) may legally return a voted absentee ballot. Yet from the reports this week, apparently many North Carolina absentee voters are unaware of this anti-harvesting provision, while at least some North Carolina county election offices accept hand-delivered absentee ballots without regard to whether they have been returned in compliance with the anti-harvesting measure.

Other observers of elections also have recognized the problems of ballot harvesting. Earlier this year, a federal district court in Arizona upheld over a Democratic Party challenge a state statute adopted in 2016 to prohibit the practice. Meanwhile, the American Law Institute, in its just published volume Principles of the Law: Election Administration [for which I served as the Associate Reporter], has articulated the principle that anyone returning absentee ballots on behalf of another person must not be allowed to return more than two ballots per day. However, other states, as well as various advocacy groups, continue to defend or promote absentee ballot harvesting as a way to offer additional voting convenience and (arguably) to increase turnout.

But the North Carolina story makes clear that it behooves states to do more to promote the security of absentee voting by mail. For starters, reform advocates must recognize that the convenience of absentee voting comes with a cost. By contrast, in-person voting, whether on Election Day or beforehand, has none of the risks that the unfolding scandal in North Carolina has exposed. (Additionally, though unconnected to the problems of ballot harvesting, in-person voting also has much lower rates of lost votes or invalid ballots than does mail-in voting.)

Meanwhile, efforts to impose strict voter identification requirements ostensibly to secure voting against the hypothetical and seldom realized possibilities of in-person “voter fraud” do nothing to reduce the very real – and frequently realized – risks of absentee voting fraud, and if anything serve to misdirect attention away from where it is needed. Instead, measures necessary to promote the integrity of absentee voting include, among others, prohibitions on ballot harvesting, enforcement of these prohibitions through monitoring of the ballot return process, public education about the proper way to return a voted absentee ballot, and absentee ballot tracking tools for voters.

Indeed, absent public awareness of the hazards of ballot harvesting, the first form of ballot harvesting fraud – when operatives collect a batch of absentee ballots only to discard them – can be especially difficult to detect and prevent. So it also behooves each voter both to know that delivering a voted ballot to any intermediary is fraught with risk (and may be illegal, depending on the state), as well as to take advantage of whatever mechanisms election officials make available to track the status of an absentee ballot to make sure that the voter’s voted ballot has reached the election officials. But after witnessing what has happened this past election in Bladen County, no state should hesitate to make absentee ballot harvesting illegal, and to take steps to increase awareness and enforcement of this prohibition.

North Carolina’s disputed race for governor: historical context

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Federal courts have a power to protect voting rights that they lacked until recently.

Rick Hasen makes the correct and important observation that, if North Carolina’s General Assembly were to overturn the state’s gubernatorial election based not on the evidence of the actual valid votes, but solely because of a partisan desire to keep control of the governorship, then the federal judiciary would have the power to invalidate that “brazen power grab” as a violation of the Fourteenth Amendment.

In this post, I wish only to supplement Rick’s point with a historical perspective drawn from my new book, Ballot Battles: The History of Disputed Elections in the United States.

At the moment, no one knows for sure that the still-unsettled governor’s race in North Carolina will end up in the scenario that Rick envisions: a federal-court order, based on the precedent of Bush v. Gore or Roe v. Alabama, that nullifies the state legislature’s attempt to overturn the administratively certified result of the vote count. But if it does end up that way, it would underscore the 180-degree reversal of jurisprudence that has occurred over the course of the twentieth century concerning the power of the federal courts in this kind of case.

In 1900, the U.S. Supreme Court had a case involving exactly this same situation. In Kentucky’s gubernatorial election, the Republican candidate had been certified the winner, but the state’s legislature—controlled by the Democrats—overturned that outcome. Awarding the election to the Democratic candidate, the legislature’s move was a “brazen power grab” of the kind that Rick envisions occurring in North Carolina this year. Under the Kentucky constitution, the state’s judiciary was powerless to prevent this transparently partisan theft of the election. The Republicans, therefore, sought relief from the U.S. Supreme Court, arguing that the legislature’s conduct was the functional equivalent of stuffing the ballot box with fraudulent votes and thus a violation of fundamental rights protected by the Fourteenth Amendment of the federal Constitution.

The U.S. Supreme Court, however, rejected the Republicans’ claim, ruling it was barred by the so-called “political question” doctrine, meaning that the federal courts lacked jurisdiction to review the conduct of state institutions, including a state’s legislature, over the counting of votes in a state election. The Court’s decision, denominated Taylor v. Beckham, was 8-1. Only Justice John Marshall Harlan dissented.

“The overturning of the public will, as expressed at the ballot box, without evidence or against evidence,” Justice Harlan exclaimed, “is a crime against free government” and thus a violation of due process. He continued: “I cannot believe that the judiciary is helpless in the presence of such crime. The person elected, as well as the people who elect him, have rights that the [federal] courts may protect.” But Justice Harlan did not prevail, and the Kentucky legislature got away with its theft of the state’s gubernatorial election.

The jurisdictional barrier announced in Taylor v. Beckham prevailed in the U.S. Supreme Court throughout the twentieth century. This jurisdictional barrier, for example, is the basis on which Justice Hugo Black in 1948 ordered the federal court in Texas to shut down its investigation into whether Lyndon Johnson was the beneficiary of ballot-box stuffing in the crucial runoff election that was part of his race for the U.S. Senate that year. The same jurisdictional barrier is the reason why Richard Nixon in 1960 could not go to federal court to claim that John Kennedy’s victory in that year’s presidential election rested on election fraud perpetrated in Illinois and, again, Texas.

If the precedent of Taylor v. Beckham were still good law, it would block any federal court review of North Carolina’s proceedings concerning the counting of votes in the state’s gubernatorial election this year. This jurisdictional barrier would be absolute—no matter how egregious the partisan theft of the election by the state legislature might be. Yes, a “brazen power grab,” in Rick’s words, but indistinguishable in this respect from what the Kentucky legislature did in the gubernatorial election at issue in Taylor v. Beckham itself.   The case, as lawyers like to say, is “on all fours”—meaning that there is no plausible argument that the precedent, if still valid, is inapplicable.

But Taylor v. Beckham is no longer good law in light of Bush v. Gore. Although the latter case did not explicitly overrule the former, the two are logically irreconcilable. If the jurisdictional barrier announced in Taylor v. Beckham still prevailed, then the U.S. Supreme Court in Bush v. Gore could not have intervened on Fourteenth Amendment grounds to stop the recount ordered by the Florida Supreme Court to determine whether there were “hanging chads” (or dimpled ones) still to be counted in the 2000 presidential election.

No matter how much the majority of the U.S. Supreme Court might have thought that the Florida Supreme Court was attempting to steal the election for Gore, that theft would have been indistinguishable in principle from the one perpetrated by the Kentucky legislature in the gubernatorial election at issue in Taylor v. Beckham. The reasoning of Taylor v. Beckham was that a state’s vote-counting proceedings were off-limits to the federal judiciary, including the U.S. Supreme Court itself, because of the “political question” doctrine, and that reasoning—if still valid—would have been fully applicable to the 2000 presidential election, just as it was to the 1960 presidential election, or to the 1948 U.S. Senate race. Thus, the fact that the U.S. Supreme Court did intervene in Bush v. Gore necessarily demonstrates that the jurisdictional barrier articulated in Taylor v. Beckham is no longer good law.

How to explain this 180-degree transformation? The answer lies in Baker v. Carr and the “reapportionment revolution” that occurred in the Warren Court during the 1960s. Baker v. Carr was a radical reconceptualization of the “political question” doctrine, drastically curtailing its domain, and specifically rendering it inapplicable to Fourteenth Amendment claims concerning the malapportionment of state legislatures. Baker v. Carr quickly led to Reynolds v. Sims and its “one person, one vote” doctrine, which in turn the Warren Court invoked to invalidate Virginia’s poll tax.

Although none of these Warren Court precedents involved a state’s procedures for the counting of ballots, the new “one person, one vote” doctrine easily could apply to that particular aspect of election law as much as it does to redistricting or to prerequisites for the right to cast a ballot, like payment of poll tax. Indeed, the Warren Court itself signaled its potential applicability in a 1966 case involving a special runoff procedure that Georgia used in its gubernatorial elections, Fortson v. Morris.   The Court there divided 5-4 over whether Georgia’s runoff mechanism violated one-person-one-vote, with the majority concluding that it did not; but all nine justices signaled that the one-person-one-vote doctrine in principle was just as applicable to the back end of the voting process, where recounts and runoffs occur, as to the front end of the process, over matters like redistricting and the prerequisites for casting a ballot.

In the decades between the sixties and Bush v. Gore, the lower federal courts heeded the Court’s signal and began to apply the new one-person-one-vote jurisprudence to vote-counting disputes. As Rick notes, the most significant of these lower-court cases is Roe v. Alabama, which involved the Eleventh Circuit’s intervention in Alabama’s 1994 election for the state’s Chief Justice. The federal district court viewed manipulation of the state’s vote-counting rules as “the functional equivalent of altering ballots or stuffing the ballot box” and thus a violation of due process. The court’s reasoning was essentially identical to Justice Harlan’s dissent in Taylor v. Beckham—and thus to the position that did not prevail in that case. Indeed, if Taylor v. Beckham were good law, the federal judiciary had no role to play in the counting of ballots in Alabama’s election for its chief justice. But the Eleventh Circuit affirmed, not reversed, the federal district court’s ruling on the strength of the “one person, one vote” jurisprudence, thereby indicating just how thoroughly that jurisprudence had repudiated the jurisdictional barrier that had previously existed pursuant to Taylor v. Beckham. Moreover, unlike Justice Hugo Black in 1948, Justice Kennedy refused to order the federal court to withdraw from interfering in the Alabama vote-counting process. In this way, Justice Kennedy—and the U.S. Supreme Court as a whole—indicated that the precedent of Taylor v. Beckham no longer prevailed, and thus would not be a jurisdiction barrier six years later in Bush v. Gore.

It is an understatement to say that Bush v. Gore was a controversial ruling. But it is important to evaluate Bush v. Gore in historical context. Taylor v. Beckham was not a wise decision. Justice Harlan’s lone dissent had the much better argument in the case—in the same way as did his lone dissent in Plessy v. Ferguson (the infamous “separate but equal” decision). The episodes analyzed in Ballot Battles reveal that America’s ugliest experiences with vote-counting disputes have been in those instances where a state legislature brazenly steals a gubernatorial election in order to keep its own party’s candidate in power. Indeed, in the Kentucky gubernatorial election at issue in Taylor v. Beckham, one of the two candidates for governor was assassinated while the legislature was in the midst of its proceedings to overturn the certified election results. Thus, insofar as Bush v. Gore repudiated Taylor v. Beckham, thereby vindicating Justice Harlan’s dissent and confirming the power of the federal judiciary to thwart a state legislature’s transparently partisan theft of a gubernatorial election, that aspect of Bush v. Gore is actually a salutary development in American election law.

As for this year’s gubernatorial election in North Carolina, let’s hope that the current controversy never gets near the point that it begins to look like a repeat of Kentucky’s gubernatorial election in Taylor v. Beckham. Let’s hope, in other words, that the state legislature refrains from perpetrating anything looking like a partisan theft, solely to keep its preferred candidate in power. But if the state legislature were to go down this despicable road, then we must place our confidence in the federal courts to recognize that today, unlike in 1900, the words of Justice Harlan state the governing principle of law: “The overturning of the public will, as expressed at the ballot box, without evidence or against evidence,” as he put it, “is a crime against free government” and “[t]he person elected, as well as the people who elect him, have rights” protected by due process and enforceable by federal courts.

The Supreme Court and the Right to Vote

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by Daniel P. Tokaji

“[T]he political franchise of voting . . . . is regarded as a fundamental political right, because [it is] preservative of all rights….”

– Yick Wo v. Hopkins (1886)

For over 130 years, the U.S. Supreme Court has said that the right to vote fundamental. The idea is that voting for candidates who represent our views is the primary means through which we protect our interests, whatever they might be. While the Court has often repeated this constitutional principle, it hasn’t always honored it.  In fact, at the very moment that the Court first declared the right to vote fundamental, African Americans were being systematically and brutally excluded from voting throughout the states of the former confederacy.  As a result, all their other rights – including education, employment – were denied.

Contemporary threats to the right to vote are much less egregious than the racist exclusionary practices that predominated in the late 19th Century and persisted through most of the 20th Century, but today’s threats are nonetheless real. Recent events raise serious questions about the currently short-staffed Supreme Court’s capacity to protect the right to vote against 21st Century threats.  The vacancy created by Justice Scalia’s death has now existed for over seven months and counting.  The split arising from this vacancy compromises the Court’s ability serve as a bulwark against denial of the right to vote.

Recent developments in a voting rights case from two swing states, North Carolina and Ohio, are especially troubling. North Carolina enacted an omnibus voting bill shortly after the Supreme Court’s decision in Shelby County v. Holder (2013), which freed it from the strictures of preclearance under Section 5 of the Voting Rights Act.  Although Section 5 wasn’t used to stop vote denial as often as is commonly supposed (p. 79), there’s no doubt that Shelby County led directly to North Carolina’s 2013 voting restrictions.

North Carolina’s law was especially sweeping, imposing voter ID, limiting early voting, eliminating same-day registration, restricting the counting of provisional ballots, and abolishing pre-registration for 16- and 17-year olds. Despite substantial evidence that African Americans would be especially hard hit by North Carolina’s new restrictions, the district court in NC NAACP v. McCrory denied relief.  Its very lengthy opinion missed the forest through the trees, examining each voting restriction separately, while downplaying their cumulative effect on black voters as well as evidence of the legislature’s racially discriminatory intent.

The Fourth Circuit Court of Appeals reversed the district court, finding that North Carolina’s voting restrictions “targeted African Americans with almost surgical precision.”  The court cited evidence that North Carolina’s Republican leadership specifically asked for racial data on the usage of particular voting practices, then adopted a law restricting those means used predominantly by African Americans.  Based on this and other evidence, the Fourth Circuit concluded that this law was motivated by discriminatory intent.

While racially discriminatory intent is hard to prove, the Fourth Circuit’s conclusion that North Carolina’s legislature had acted with such intent was amply justified by the evidence. To be sure, the ultimate reason for North Carolina’s Republican legislature adopting this law was partisan.  As in other states, North Carolina’s African Americans vote overwhelmingly Democratic, providing a strong motivation for the Republican majority to make it harder for them to vote.  The Fourth Circuit correctly reasoned that racial and partisan motivations aren’t mutually exclusive – to the contrary, they are mutually reinforcing.  That’s especially true in North Carolina, where being African American is a better predictor of voting Democratic than being registered as a Democrat.

In these circumstances, it should come as no surprise that the Supreme Court denied North Carolina’s motion to stay the Fourth Circuit order, especially given the state’s tardy filing of its motion. What was surprising is that there was a 4-4 tie, with the four conservative justices voting to reinstate the restrictions (Chief Justice Roberts, Justice Kennedy, Thomas, and Alito). Those justices dissented from the denial of a stay, even though it’s hard to imagine a broader and deeper package of voting restrictions or, at least in 2016, one with a more evident racial discriminatory purpose than that of North Carolina.

Given the split in the North Carolina case, there was no real hope that the Court would intervene in Ohio Democratic Party v. Husted.  That case challenged Ohio’s elimination of “Golden Week,” the five-day period for same-day registration and early voting.  African Americans disproportionately relied on this window, leading the federal district court to conclude that it violated Section 2 of the Voting Rights Act.  Although this restriction was less onerous than those adopted in North Carolina, Ohio’s anti-fraud justification was especially flimsy.  It defied both credulity and the evidence to argue, as did Ohio, that there was a significant risk of fraud with ballots cast thirty days before election day.

Ohio’s pretextual justification suggested that, as in North Carolina, the Republican-dominated legislature’s real goal was to gain partisan advantage by restricting a means of voting disproportionately used by African Americans. The highly respected district judge ruled against Ohio, doing exactly what the law requires by carefully sifting through the evidence on both sides. The fact that the district judge was appointed by George W. Bush and formerly served as Chief Counsel to Republican Governor George Voinivich adds credibility to his studied conclusion that Ohio’s voting restrictions violated both the Fourteenth Amendment and the Voting Rights Act.

The Sixth Circuit nevertheless reversed, beginning its opinion with an ideological statement of opposition to judicial intervention in voting disputes:  “This case presents yet another appeal …asking the federal courts to become entangled, as overseers and micromanagers, in the minutiae of state election processes.”  The court’s reasoning on the Voting Rights Act claim is even more troubling.  Remarkably, it found that plaintiffs had failed to prove the requisite disparate impact on African Americans, even though they were heavy users of the voting opportunity that the state eliminated. Though the Sixth Circuit opinion isn’t a model of clarity, it seems to suggest that a racial minority group is foreclosed from prevailing if its overall turnout is equal to that of the majority group, emphasizing that “the statistical evidence shows that African Americans’ participation was at least equal to that of white voters.”  This suggests that a racial group should always lose if their overall turnout equals that of the majority.  The proper threshold question is whether the challenged law eliminates opportunities that African Americans predominantly use, as I’ve explained in this article (pp. 473-80).

Despite the problems with the Sixth Circuit’s reasoning, there was practically no hope of the Supreme Court staying its order. There was no reported dissent from the Court’s denial of a stay, but that says little or nothing about what would have happened if the Court had a full complement of justices.  The same is true of the Sixth Circuit’s most recent decision in NEOCH v. Husted, mostly rejecting a challenge to procedures used for provisional voting, absentee voting, and voter assistance.   Although there are similar problems with the Sixth Circuit’s analysis of the Voting Rights Act claim in that case, seeking Supreme Court review would be similarly futile.

These cases create serious doubts about whether the Supreme Court, as presently constituted, can be trusted to protect the fundamental right to vote. As a practical matter, it means that federal appellate courts now enjoy a great deal of power, as Rick Hasen has noted.  Divisive voting issues are very likely to split the Court in half, meaning that the lower court’s ruling will be affirmed.  And this is to say nothing of looming controversies over partisan gerrymandering and campaign finance, also likely to divide the current Court in half.

Sadly, it is a virtual certainty that the Court will remain understaffed for the remainder of the current election season, with several voting cases still pending and more likely to come up. As long as this seat remains open, there will be a 4-4 split on several important issues, but none are more important. The fundamental right to vote, and therefore all of our rights, are at stake.

NC Supreme Court Recount Could Be Legal Focal Point

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One to watch very closely.

From an election law perspective, the biggest potential development I’ve seen early Wednesday morning after Election Night is not in U.S. Senate races, or even gubernatorial ones, but rather the fight for a seat on North Carolina’s Supreme Court.

The reason is that before Election Day North Carolina already was the focus of intense federal court litigation concerning changes in that state’s voting rules, particularly those concerning the elimination of same day registration during early voting and a new requirement to invalidate provisional ballots cast in the wrong precinct.  The U.S. Court of Appeals for the Fourth Circuit preliminarily indicated that those changes violated the federal Voting Rights Act.  Although the U.S. Supreme Court put that Fourth Circuit decision on hold for the purpose of administering ballot-casting procedures yesterday (Election Day), the Supreme Court did not decide the merits of the federal-law claims.  Consequently, the Supreme Court did not rule on the status of any provisional ballots cast in North Carolina as a consequence of the state’s changes to its voting rules.  As Josh Douglas and I addressed in our op-ed yesterday, the supremacy of federal law means this: assuming the Fourth Circuit adheres to its position on the invalidity of the new North Carolina rules under the federal Voting Rights Act, then North Carolina may not reject a provisional ballot solely because of noncompliance with its new law.

Thus, the status of provisional ballots may become important in a recount over the state’s supreme court seat.

Ten years ago, North Carolina had major litigation over provisional ballots in a statewide race for its chief education officer.  That led to a big decision in the North Carolina Supreme Court, James v. Bartlett, 607 S.E.2d 638 (2005), only for that decision to be subsequently reversed in the state’s legislature, with additional state-court litigation thereafter.

It is obvious that litigation over a state supreme court seat is a matter more difficult for the state supreme court itself to resolve that litigation over a separate statewide office, like superintendent for public instruction.  The apparent conflict of interest is obvious.  The last time an election for a state supreme court seat was seriously disputed was in 1994, over Alabama’s Chief Justice election.  That dispute ultimately was resolved in federal court, in the important precedent-setting case of Roe v. Alabama, 68 F.3d 404 (11th Cir. 1995), which ruled that it violates Due Process to change the rules for counting ballots after they are cast.

Since there already is pending litigation over North Carolina’s voting rules, it would not be at all surprising if the election for this state supreme court seat was resolved in federal rather than state court.  Indeed, it could become the crucible for litigating the merits of the pending federal claims.

A Comparison of North Carolina and Ohio (and Wisconsin)

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Main points: (1) Ohio’s elimination of Golden Week has some differences than NC’s elimination of same-day registration throughout all of early voting; and (2) NC’s reversion to a rule disqualifying out-of-precinct ballots has an outright disenfranchising effect lacking in Ohio’s case, but present in Wisconsin’s.

Of the three election administration cases that have made it to the U.S. Supreme Court in the past couple of weeks—Ohio’s, Wisconsin’s, and North Carolina’s—I find North Carolina’s the most difficult.  I can see the Court granting a stay, as it did in the Ohio case, because the Fourth Circuit made a late change in North Carolina’s voting procedures.  Indeed, the Fourth Circuit’s October 1 ruling, which reversed the district court’s denial of a preliminary injunction, came almost a month after the Ohio preliminary injunction, entered on September 4.  Given the Supreme Court’s previous admonition against such last-minute judicial disruption to a state’s voting procedures, the Fourth Circuit’s October 1 order would appear particularly vulnerable, and indeed Judge Motz (a Clinton appointee) dissented from the Fourth Circuit’s ruling essentially because of this timing concern.

Like Judge Motz, however, I think the underlying merits of the case may be much trickier than the timing issue alone would suggest.  The underlying merits, at least has the case has developed to this point in its preliminary injunction posture, primarily concern the application of section 2 of the Voting Rights Act to recent changes in a state’s voting procedures.  The two rule changes that the Fourth Circuit preliminarily enjoined were (1) the elimination of “same day registration” during North Carolina’s early voting period and (2) the reinstatement of a requirement that a provisional ballot be cast in the voter’s correct precinct in order for any vote on the ballot to count.

The first rule change makes the North Carolina case appear, at least superficially, similar to the Ohio case.  Ohio eliminated “Golden Week,” a five-day period at the beginning of early voting in the state during which it had been possible to register and vote at the same time.  Despite this superficial similarity, however, there are factual differences that ultimately may prove important on the merits.  Ohio’s “Golden Week” was an anomaly in the context of that state’s overall early voting process; during the bulk of early voting pre-registration had been required.  Moreover, this anomaly had been the result of an accidental legislative oversight: the five-day overlap between the end of registration and the availability of absentee ballots had existed when absentee voting in Ohio had been a very limited, excuse-based system; then, when Ohio moved to no-excuse absentee voting and decided to permit in-person absentee voting (which the world calls “early voting”), Ohio suddenly realized that it had inadvertently created a “Golden Week” during which was possible to register and in-person absentee vote, without an excuse, at the same time.  By contrast, North Carolina had made a deliberate policy choice to permit same-day registration throughout its early voting period.  Thus, Ohio’s subsequent legislative decision to jettison an inadvertent anomaly, so that its entire early voting period is consistent with the state’s overall policy goals concerning registration and early voting, is arguably a very different kind of statutory correction than North Carolina’s decision to reverse course on the entirety of its same-day registration policy.

There is also the issue of partisanship.  As I discussed previously, Ohio’s new early voting rules are derived largely from a recommendation of the bipartisan Ohio Association of Election Officials.  Although my Moritz colleague Dan Tokaji sees the structure of OAEO as flawed insofar as it over-represents low-population rural counties and under-represents high-population urban counties, it nonetheless is a bipartisan body that negates the charge that Ohio’s new rules are a thoroughly partisan manipulation of the electoral process designed to rig the rules in one party’s favor.  By contrast, I did not see any evidence in the North Carolina case to inoculate that state from the charge of blatant partisanship in manipulation of the voting rules.

The second rule change in North Carolina, concerning out-of-precinct ballots, presents the risk of outright disenfranchisement not associated with an elimination of same-day registration.  Under the new North Carolina rules, any ballot cast in the wrong precinct will not count.  Period.  There is no way for the voter to validate any portion of that ballot, even with respect to statewide or countywide offices for which all precincts are eligible to participate in the election.  Thus, a voter who mistakenly is told to vote a provisional ballot in the wrong precinct—it happens—will be disenfranchised with no remedy under state law.  By contrast, a voter who registers in advance of the registration deadline will be able to vote a ballot that counts, either during early voting or on Election Day.  Thus, the consequence of North Carolina’s rule change concerning out-of-precinct ballots is much more severe to any of the adjustments to early voting, either in North Carolina or Ohio.  In this respect, the disenfranchising consequence of the new disqualification of out-of-precinct ballots in North Carolina makes that case more like the Wisconsin one concerning the addition of a new stringent voter identification requirement.

This fact alone does not make the new disqualification of out-of-precinct ballots in North Carolina a violation of section 2 of the Voting Rights Act—just like a new voter ID rule does not automatically violate section 2.  But insofar as the new rule causes a disproportionate disenfranchisement of minority voters, the stakes are obviously much higher and directly implicate the primary concerns of the Voting Rights Act.  The North Carolina case thus raises a key question about the proper interpretation of section 2.   What more (if anything), beyond the discriminatory effect of disenfranchising more minority than nonminority voters, must a plaintiff show in order to prevail on a section two “vote denial” claim?

North Carolina is hardly the only state that disqualifies out-of-precinct provisional ballots.  Florida also does, as does Ohio (except to the extent constrained by Sixth Circuit precedent concerning “right church, wrong pew” ballots cast in the correct multi-precinct polling location).  But, unlike North Carolina, neither Florida nor Ohio enacted a law that permitted the counting of out-of-precinct ballots before reverting back to a practice of disqualifying them.  Assuming that Florida’s and Ohio’s rules disproportionally disenfranchise minority voters as much as North Carolina’s, are they equally unlawful under section 2 as North Carolina’s?  Or is the reversionary rule change a relevant factor in calculating liability under section two?  If so, then does not section 2—at least to that extent incorporate a kind of anti-retrogression principle—despite protests to the contrary?

These are vexing questions for which there are no obvious answers, which is why I find the North Carolina case particularly difficult on the merits.  It raises, to my mind, profoundly important questions about the proper interpretation of section 2, a hugely significant statute to our national identity as a democracy committed to equal voting rights.   It may be surprising that such an iconic statute about to celebrate its fiftieth birthday lacks a clear standard for determining liability under its most important provision.  Yet that is the situation today.  It will be necessary for the Supreme Court to clarify the standard, either in the North Carolina case or one like it.

But the time for that clarification is still down the road a bit.  Not now, during the flurry of these emergency stay petitions.  Meanwhile, like many others, I will watch the development of the records in the pending cases, including North Carolina’s, as well as the development of the briefing on the merits of what that clarifying standard should be.  Maybe any state that disqualifies out-of-precincts ballots violates section two if that disqualification causes disproportional disenfranchisement of minority voters, and it does not matter whether this disqualification rule is a new, old, or reversionary law?  Maybe this kind of discriminatory disenfranchisement violates section 2 only when it is the consequence of new or reversionary laws, but longstanding unchanged rules are somehow protected from section 2 liability, at least absent some showing of racially discriminatory intent?   Or maybe liability hinges in part on the extent to which a state has been a bad actor in the past, so that North Carolina’s history of racial discrimination will condemn current practices for which there is no showing of intentional discrimination?  If so, then the same disproportional disenfranchisement of minority voters may be permissible under section two in a northern state, like Massachusetts or Michigan, which lacks the same segregationist history as a southern state, like Florida or North Carolina.  Although this interpretative approach would seem to run counter to the Court’s recent decision in Shelby County, perhaps it is an option available under section 2 even though it was not under sections 4 and 5.

North Carolina might end up being decided as a special case insofar as it involves a package of rule changes that should be evaluated as a package rather than as a series of separate changes.  The “totality of circumstances” inquiry that Congress explicitly built into section 2 would seem to permit, and perhaps even require, that sort of analysis.  But at this juncture, I wish to leave my own thinking on this case as undecided and tentative, while watching how it and the others unfold.