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Tuesday, October 11, 2016

Biggest election law question of the decade (2010-2020)???

Since this month of guest-blogging is supposed to be a kind of round-robin, I'm very curious as to other participants thoughts on this question, and I suppose there are many possible candidates, including:

  1.  Will new Supreme Court overrule Citizens United (and perhaps even reject the D.C. Circuit position in SpeechNow) in an effort to reign in superPACs?
  2. Will the Supreme Court resolve the indecision in Vieth and adopt an enforceable constitutional constraint on partisan gerrymandering?
  3. Will the new Supreme Court overrule Shelby County, or will Congress adopt new legislation, that will resurrect section 5 of the Voting Rights Act and its nonretrogression principle, or alternative will the Court use the Fourteenth Amendment and VRA's second 2 to moot the necessity of a resurrected section 5?

But, after watching the political events of the last 24 hours, I offer this morning one more plausible candidate for the most important election law question of the decade: will the GOP be able to change its internal party rules to avoid the kind of internecine split that we are witnessing this year?  (Relatedly, does election law--which presumably is designed to serve the public's overall general interest in a competitive, healthy democracy--have a role to play if and when one of the two major parties in the existing political system seems incapable of managing its own internal deliberations about what it wants to offer to the electorate?) 

Posted by Edward Foley on October 11, 2016 at 10:38 AM | Permalink


To be clear (and in response to howard), my point doesn't at all depend on "departmentalism." Even under the most aggressive versions of judicial supremacy and cooper v. Aaron, it wouldn't have been unconstitutional for sowhite parents to sue their school board to enforce a school segregation law that was invalid under brown, if the point of the lawsuit was to confess error in the lower courts and then ask the sct to reconsider brown.

Posted by: Hash | Oct 12, 2016 2:29:12 AM

There's an even easier way for the Court to revisit Shelby even absent Congressional action -- namely, a private pltf could bring an Allen suit seeking to enjoin a covered jurisdiction's non-precleared change. The jurisdiction would of course successfully defend in the lower courts on the ground that Section 5 was unconstitutional, and the pltf then could seek cert. There's nothing "unconstitutional" about a private pltf trying to assert a cause of action under a statute that's been held unconstitutional; and the complaint wouldn't violate Rule 11 so long as the pltf had a good-faith argument for why the SCt should overturn Shelby.

Actually, DOJ could bring exactly the same suit for the same reason -- namely, that executive non-compliance typically involves regulation of primary conduct, not merely filing a lawsuit under a statute that's previously been held unconstitutional. That said, I agree that DOJ is much less likely to do so, purely for optical reasons (and the ease with which it can get the NAACP or ACLU to do so instead).

Posted by: Hash | Oct 12, 2016 1:50:42 AM

A couple of thoughts on how the reversal might arise. It depends on how departmentalist a Clinton Administration wants to be.

The Shelby County injunction presumably only bars pre-clearance with respect to Shelby County and that election. So the administration could seek to enforce the preclearance provisions against some state laws and seek to overrule Shelby County through that litigation.

Alternatively, if the Shelby County injunction is broader than that (which would be an overbroad injunction, but anyway), perhaps the government could seek reversal through a motion to modify that injunction. This is not how a Rule 60 motion is supposed to be used, but it is not so far a step from what the Court did a few years ago in Agostini.

Posted by: Howard Wasserman | Oct 12, 2016 12:09:39 AM

I doubt that there has ever been a case in which (a) the government relied on a given part of a statute to do something, and not on another, previously invalidated part, (b) the Court held the government couldn't do what it did on the part of the statute it relied on, (c) the Court then overruled its prior precedent invalidating the other part and held the government could do what it did under that part. The Court may affirm judgments on alternative grounds; I don't think it's in the business of upholding government action on grounds other than those relied on by the government, especially if those grounds are grounds the Court previously held unconstitutional. But I could be entirely wrong about this.

Posted by: Asher Steinberg | Oct 11, 2016 10:41:31 PM

Edward Foley:
You're right, it wasn't a statutory ruling. My mistake. Still, I can't think of a case where a law or part of a law was struck down as unconstitutional and then later revived. Generally reversals in course are more roundabout than that.

Posted by: Anonymous | Oct 11, 2016 4:37:22 PM

"seems incapable of managing its own internal deliberations about what it wants to offer to the electorate?) "

Again, the people not managing are members of Congress. That's not the fault of party rules (unless it's your idea to revive King Caucus). The party brokers prior to 1950 tended to be mayors and governors.

While we're at it, all of 26% of the popular votes in the primaries and caucuses repaired to candidates careerists like Rob Portman might have preferred (Rubio, Kasich, Jeb!, and Christie). Let's just dissolve the GOP electorate and appoint a new one. Barbara Comstock's upset.

Posted by: Art Deco | Oct 11, 2016 4:31:10 PM

will the GOP be able to change its internal party rules to avoid the kind of internecine split that we are witnessing this year?

What, so actual policy disputes don't affect the course of nomination battles? There may be something wrong with their rules, but the rules aren't why the GOP is having problems. They're having problems because a huge slice of their congressional caucus take their cues not from GOP voters but from their donors and their nexus of personal associates, hence they're scattering like roaches because 'everyone' they know is 'appalled' by Trump. This has happened before. The GOP is execrably led by a claque of careerist poltroons. (The Democrats are led by criminals).

Posted by: Art Deco | Oct 11, 2016 4:24:30 PM

Shelby County was not a "statutory ruling" in the sense of being an interpretation of the statute's meaning. Rather it was a holding that the particular statute was unconstitutional (beyond the power of Congress under the Fourteenth Amendment, in large part because of the equal state sovereignty principle, as the majority saw it). In that respect, analytically, it would be no different than overruling Citizens United, which invalidated a section of BCRA as well as a section of the predecessor Taft-Hartley Act.

In terms of how the issue could get to the Court, I haven't thought that through rigorously, but it could come up in the context of an attempt to use section 3 of the Voting Rights Act to substitute for the invalidation of the coverage formula in section 4. Perhaps US DOJ made an aggressive argument on how to interpret section 3 (as grounds for subjecting a state to section 5), and the Court would say that while section 3 was unavailable (too much of a reach), they were revisiting Shelby County's invalidation of section 4 as an alternative ground for sustaining federal power.

Posted by: Edward Foley | Oct 11, 2016 2:26:58 PM

Yeah, I would like to know how such a case would even come to the Court. Would DOJ unconstitutionally (according to Shelby County) start demanding that covered states submit their plans for preclearance? I've heard of agency/executive noncompliance with lower courts - it's usually justified, I think, in terms of creating circuit splits and avenues to Supreme Court review - but I haven't heard of executive/agency noncompliance with the Supreme Court, outside of things like Ex parte Merryman that wouldn't seem at all apposite.

Posted by: Asher Steinberg | Oct 11, 2016 1:02:11 PM

Re: Shelby County
Are there many cases where the Supreme Court overturned a statutory ruling and revived a void statute without any action from a legislature? There seems something vaguely uncouth about that.

Posted by: Anonymous | Oct 11, 2016 12:17:12 PM

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