The Supreme Court no longer has a conservative majority, and that could significantly change the way the 2016 election plays out.
Elections are not simply fought out at the polls. They are also fought in state legislatures. Voter ID laws disproportionately disenfranchise groups that are likely to prefer Democrats to Republicans. Changes to voter registration rules and rules regarding which ballots are discarded can subtly shift the electorate to the right. In Florida, one Republican consultant admitted that state lawmakers eliminated early voting on the Sunday before Election Day “because that’s a big day when the black churches organize themselves” to bring voters to the polls.
And, after legislators enact laws that could change who actually gets to cast a ballot, elections are fought in courts as well. Before Justice Antonin Scalia’s death earlier this month, the Roberts Court greenlighted voter ID laws and gutted a key provision of the Voting Rights Act. During the 2014 election cycle, the Supreme Court also blocked several lower court orders halting changes to state voting law which were handed down close to the election. Notably most (although not all) of these lower court decisions would have protected voting rights if they had not been suspended by the Supreme Court.
This election, however, there will not be a conservative majority on the Supreme Court. Indeed, unless President Obama finds a way to break through Senate Republican’s planned blockade of his Supreme Court nominee, it’s unlikely that the Court will have any majority at all in many politically charged cases.
As election law expert Rick Hasen notes, there is already one early sign that Scalia’s death has moved the Court’s center of gravity in voting rights cases. After a lower federal court held that two of North Carolina’s congressional districts are unconstitutional racial gerrymanders, many experts (including Hasen) expected the Supreme Court to stay this decision. It didn’t.
Because the Court denied such a stay without explanation, it is impossible to know what the vote was among the justices or why the stay was not granted. Nevertheless, as Hasen explains, the Court’s decision in this North Carolina case may be a sign that the justices will no longer keep such a tight leash on lower court judges who decide voting rights cases close to elections.
As the election approaches, there will no doubt be several rounds of last minute voting rights litigation, just as there was in the 2014 cycle. Should the Court split 4-4 in any of these voting rights cases, the ordinary rule is that the lower court’s decision continues to control the case. That means that the scope of an individual’s voting rights may turn on whether the federal appeals court that oversees their state has a liberal or conservative majority.
Of the ten closest states in the 2012 presidential election, half (North Carolina, Virginia, Pennsylvania, Nevada, and New Hampshire) are located in federal appellate circuits with fairly solid left-leaning majorities. Meanwhile, two states, Iowa and Ohio, are located in conservative circuits. The remaining states, Colorado, Florida and Wisconsin, are located in circuits that are evenly divided or that are close to evenly divided.
It should be noted that the ideological makeup of a court does not offer certainty about how it will decide cases. Most federal appeals court decisions are handed down by randomly selected panels of three judges, so a liberal panel can be drawn in a conservative court, and vice-versa. In the 2012 cycle, for example, an important early voting case was heard by a left-leaning panel drawn by the conservative United States Court of Appeals for the Sixth Circuit. The panel voted to allow early voting in Ohio for the three days prior to Election Day, despite an Ohio law that would have cut off these early voting days for most voters.
Such randomness aside, however, the fact remains that a voting rights plaintiff is much more likely to draw a liberal panel if they live in, say, Virginia or North Carolina than they are to draw such a panel if they live in Ohio. It should also be noted that, on rare occasions, a panel consisting of every active judge on a federal appeals court will convene to decide a case — a process known as “en banc” review.
In Colorado, Wisconsin, and Florida, the swing states with the most evenly divided courts, random panel assignments are especially likely to be decisive in voting rights cases. Colorado is located in the Tenth Circuit, where Democratic appointees enjoy a 7-5 majority over Republicans. At least one of President Obama’s nominees to this court, however, sided with the court’s conservatives in a major birth control case. So there is at least some reason to question whether this Court has a liberal majority.
Wisconsin, meanwhile, is in the Seventh Circuit, where Republican appointees enjoy a 7-3 majority. Two of the Republican appointees, however, voted to en banc a major voter ID case after a conservative panel upheld Wisconsin’s law. Thus, this court may be evenly divided in voting rights cases, and a random panel assignment is especially likely to determine the outcome of such a case.
The biggest wildcard, meanwhile, may be Florida — the only state where the margin between President Obama’s 2012 vote total and Republican candidate Mitt Romney’s was less than 1 percent. Florida is in the Eleventh Circuit, which, on its surface, appears to be a very liberal court. There are 8 Democratic appointees and only 3 Republicans.
Looks can be deceiving, however, because several of the Eleventh Circuit’s Democratic appointees are the product of compromises with Republican senators. One of these compromise appointments, Judge Frank Hull, even voted to strike down the Affordable Care Act.
Thus, depending on the random panel assignment, it is possible that a challenge to voter suppression in the state of Florida could be rejected by a panel of Democratic appointees to the Eleventh Circuit, even though a more moderate panel would have sided with the challengers.