The signs that the Supreme Court is grappling with a depleted bench are starting to show. But what has been a trickle of tie-votes, bizarre orders and slowed activity could turn into a series of orders with contradictory effects as the court is confronted with an onslaught of election-related litigation in the lead-up to Nov. 8.
As the last stop for lawsuits challenging voting restrictions and administrative practices, the Supreme Court would normally see an increase in those cases as the 2016 election draws closer. But the ideologically split court will be facing more than the usual uptick in requests for the justices to intervene in legal battles over voting laws. The 2016 election marks the first presidential election since the Supreme Court crippled the Voting Rights Act and ushered in a wave of voting restrictions now tied up in lawsuits.
The Supreme Court will be without its decisive ninth vote just as voting rights advocates will be asking it to come to terms with its 2013 Shelby County v. Holder decision.
“There’s a lot of uncertainty in the field and with a court that is not full, there’s concern that that uncertainty is just going to continue,” Jennifer Clark, a counsel for the Brennan Center’s Democracy Program, told TPM. “That problem is only compounded by the gutting of the Voting Rights Act, which has created this whole new landscape where nobody really knows exactly what the rules that we’re operating in are.”
For the lawyers involved in the legal challenges, the absence of a ninth justice on the court adds a new wrinkle in what was already expected to be a chaotic season of Supreme Court appeals. Will the specter of a 4-4 split affect how the court handles the last-minute petitions to halt certain voting restrictions that are currently being examined by lower courts?
“That is the question we are asking ourselves in the legal community every day,” said Pratt Wiley, who is a legal strategist and Democratic National Committee’s national director of voter expansion. “This is uncharted territory for us to have a situation like this, and potentially going into an election with a court that is evenly divided like this.”
A flurry of lawsuits around elections have long been somewhat of a norm, but the Shelby County decision added a new layer of potential legal chaos. The decision invalidated the formula in Section 5 of the Voting Rights Act, which determined which states and localities needed federal approval for any changes to their election regulations in a process known as “preclearance.”
With “preclearance” no longer in effect, the Department of Justice and outside voting rights groups are depending on another provision of the Voting Rights Act, Section 2, to block elections laws and practices they say make it harder for minorities, young people, the disabled and the poor to vote.
The major post-Shelby lawsuits are in Texas and North Carolina, and are currently being hashed out at the lower court level. There are also lawsuits challenging voting restrictions in Ohio and Wisconsin that touch on similar issues, even though those states weren’t covered by pre-clearance before Shelby. While it’s improbable that any of those cases will make it up to the Supreme Court on the merits before November, it is likely that the parties involved will ask the Court to weigh the decisions by lower courts that either temporarily halt the laws for the election or allow them to go into effect while the litigation proceeds.
The challengers in the Texas case — where the state’s voter ID law has been shot down by a three-judge appeals court panel — have already asked the Supreme Court to intervene and block the law in the November election, while the full appeals court hears the case.
“I do think we could see a situation where the lower courts — whether it’s a 3-judge court, or more likely a federal court of appeals or a state Supreme Court — issues an order and it can be conflicting in its legal reasoning with another court’s order, and the Supreme Court won’t resolve it, because they’ll be split four-to-four,” said Richard Hasen, a professor at UC-Irvine School of Law who also runs the Election Law Blog.
The problem with these emergency Supreme Court orders is that they were already pretty opaque to begin with, Hasen said, and often it is unclear how many justices believed a voting restriction should be halted or implemented based on the order alone.
In this murky environment, federal appeals courts take on additional importance, particularly if it does appear that the Supreme Court is split and whatever the lower court decided stands.
“You end up with a patchwork quilt of voting restrictions, some that are legally questionable and some that are upheld,” Nathaniel Persily, a Stanford Law professor who specializes in election law, said. “There’s a lot of pressure on the Supreme Court to come up with an answer, even if some of them are going to disagree with the results.”
A pattern that emerged in the lead-up to the 2014 election suggests there may be a way out for a Supreme Court ideologically split but looking to avoid tie votes. Hasen dubbed it the “Purcell Principle” after a 2006 Supreme Court case. The reasoning, as Hasen explained, is that courts “shouldn’t make changes to elections rules just before the election.” Hasen saw some evidence during the 2014 cycle that the Supreme Court was acting in a way that would cause the least disruption administratively right before the election.
“It’s not just driven the merits by these laws,” Hasen said, of cases where the justice would have predictably split on ideological lines. “There are certainly some justices on the court [who believe] that it’s more important to preserve the status quo than it is to go in one direction or the other.”
For instance, the court 6-3 temporarily halted Wisconsin’s voter ID law that October, citing the “proximity of the upcoming general election.”
However, if the court did see that as a principle, it was deployed only sporadically in 2014. So there’s no guarantee this time around that an eight-justice court will consistently act in a way that maintains the status quo.
“I suspect that’s what’s going to happen, but people could change their minds and come out differently,” Hans von Spakovsky, a legal fellow at the conservative think tank The Heritage Foundation who is supportive of restrictions like voter ID, told TPM. “We could have a situation that they disagree and there’s a four-four split and whatever the lower court said, that’s what is going to prevails.”