Scalia's Absence Could Have Direct Effect On November's Election

Scalia's absence could shape election rules

In redistricting cases and voter ID challenges, a divided Supreme Court could let liberal rulings by lower courts stand.

By Josh Gerstein

02/17/16

Justice Antonin Scalia’s death is certain to have an impact on the political debate in this year’s elections, but it could also have a far more direct effect on the elections themselves.

There are numerous challenges to Republican-led congressional redistricting plans and new voter ID laws likely to come under Supreme Court scrutiny. Scalia had been a reliable vote for allowing such redistricting plans and voting rules.

A new justice nominated by President Barack Obama and confirmed by the Senate would almost certainly shift the court in the direction of stricter voting rights enforcement and a greater willingness to take account of race when considering redistricting and election law matters.

But the more likely scenario in the near term — deadlock over Scalia’s replacement — could have a similar effect by leaving the court less likely to come up with the five votes required to set precedents on such matters and to issue emergency stays in challenges to last-minute voter ID and election-law changes coming up from lower courts.

“Justice Scalia wasn’t really a friend of voting rights. ... He was the one saying the Voting Rights Act was a racial entitlement,” said Katherine Culliton-González of the Advancement Project, a civil rights group.

The issue isn’t a theoretical or remote one. One-person-one-vote cases from Arizona and Texas were argued in December and are awaiting decision by the high court. The justices also have a Virginia redistricting case set to be argued next month — before what now looks all but certain to be an eight-member court.

The most urgent matter is a pending emergency application to halt a court-ordered redo of redistricting in North Carolina. The stay request from the state’s Republican governor and other officials came to the justices last Wednesday, just three days before Scalia died. Those seeking to stick with the challenged map are hoping the Supreme Court will act before a Friday deadline that a federal appeals court set for the Legislature to redraw the lines because race was improperly used as a factor.

Experts said that, without Scalia, the court is somewhat less likely to come up with the five votes needed to step in, but there’s still a decent chance it will do so because absentee ballots are already being sent out for the March 15 primary and some justices of both parties are often reluctant to interfere with an election already underway.

The 4th Circuit “just gave the Legislature a few days to draw a new map,” noted Dan Tokaji, an election law professor at The Ohio State University. “The justices may think that a little bit hasty.”

“The question is whether or not the court regards this as too late,” said University of California at Irvine law professor and election law blogger Rick Hasen, referring to the appeals court’s Feb. 5 order. “You can actually redo the election at this point,” Hasen observed, pointing to the possibility of delaying the primary by a few weeks and starting the voting again.

The high court could also be hit with a series of election-related stay requests in advance of this fall’s elections, just as it was in 2014, when the justices fielded emergency applications from North Carolina, Ohio, Texas and Wisconsin over issues such as voter ID laws and cutbacks in early voting.
If Scalia’s seat remains vacant, the Supreme Court could be less likely to intercede, leaving appeals courts with broader leeway to act as they see fit in those cases.

“We’re virtually certain to see more of those cases this election cycle. In those cases, it could make a really big difference that Justice Scalia is no longer there,” Tokaji said.

The Heritage Foundation’s Hans von Spakovsky, a former Justice Department official and Federal Election Commission member under President George W. Bush, said: “We're really dependent on the fact that if the justices divide 4-4 over any of those cases, the rulings in the lower courts will prevail. it would be final for this election. In a sense, we’ll be stuck with what the lower court decided.”

Civil rights advocates said in interviews this week that they’d be happy to take cases in election law cases to the 4th Circuit, the 6th Circuit or even the traditionally conservative 5th Circuit because of case law that seems to favor complaints from minority voters. If those courts’ rulings are final for this election because the Supreme Court can’t muster a majority to halt them, that could be a favorable result, those advocates said.

“It could allow voter-friendly circuit decisions to take effect,” Tokaji said.

Active lawsuits over voter ID laws in North Carolina and in Texas might well be taken to appeals courts and to the Supreme Court on an emergency basis before November, activists said.

“You’re, of course, rolling the dice and looking at the odds of which cases you want to go to the circuit court and how is the circuit court there,” Culliton-González said.

One dispute that could be headed to the Supreme Court even sooner accelerated on Wednesday as the League of Women Voters and other groups moved in federal district court in Washington to obtain a restraining order that would block a federal election official’s recent approval of requests from Alabama, Georgia and Kansas to require that people using a federal “motor voter” registration application provide documentary proof of citizenship.

Alabama and Georgia’s voter registration deadlines for their March 1 presidential primaries have already passed, but registration is still open in Georgia for state and federal primaries on May 24. In addition, Kansas is holding caucuses on March 5 and allows voters to register as Democrats as late as caucus day.

If U.S. District Court Judge Richard Leon or the D.C. Circuit were to issue an order reversing the approval of the proof-of-citizenship requirement, proponents of such requirements like Kansas Secretary of State Kris Kobach could ask the Supreme Court for relief. Or the roles could be reversed, with opponents of such requirements heading to the high court. Such a showdown seems likely, either in the coming weeks or before the fall general election.

“That’s an example of things that are bound to come up this election year,” Culliton-González said. “It’s the first presidential election our nation has gone through since 1965 without the full protections of the Voting Rights Act,” she said, referring to the Supreme Court’s 5-4 decision in 2013 striking down the requirement that many Southern states and several others get advance approval for changes to voting procedures. “It could get really complicated.”