This article is part of Symposium In the “shadow table” of the Supreme Court.
Edward B. Foley is the Ebersold Chair in Constitutional Law at The Ohio State University, where he also directs the Electoral Law program. His latest book is Presidential elections and majority rule.
The really important decision in Bush up In practice, it was not the substantive ruling issued on Tuesday, December 12, 2000, but rather, the moratorium issued on the previous Saturday, December 9, and this stay is certainly among the most shade file rulings the Supreme Court has ever issued . Spread. The other reasonable contender, at least among the election issues, is the rooming inside that Judge Hugo Black awarded Lyndon Johnson’s victory in the race that propelled his career to the Senate – a story vividly told with all of Robert’s inherent drama. Award-winning Caro Means of climb And a summary of its historical significance in the relationship with Bush up in a Ballot battles.
It was the residency on December 9 that halted the Florida recount and made it impossible to complete the recount by the alleged deadline for a safe harbor, the date by which the state must complete its presidential vote-counting procedures if the state wishes that. Take advantage of Congress’s promise to accept the outcome of these actions as “final.” The deadline was crucial when it came time to determine whether Florida would have another chance to resume the recount – the answer was no, according to a majority of the Supreme Court in Bush up The decision is worth – but the clock will not run out if the court is willing to allow the recount to end over the weekend and then see if there is a need for a remedial adjustment in the voting totals.
This key point – that preliminary rulings, rendered on the basis of emergency, can be at least as important as the official opinions of the court – apply in other areas of the law. For example, in litigation over the school’s voucher program in Cleveland (which – disclosure – I was liable on the part of the defendant as an Ohio attorney), the decisive decision as a practical matter was the emergency suspension of a preliminary injunction granted by the Supreme Court in 1999, allowing students access On their scholarships while litigation over the program continued. The Referee deserves program support It didn’t come until after three years. That ruling was undoubtedly important – but to the lives of the children in question, it would have seemed somewhat hollow if it had come after they had forever lost the education they deserved in the transition period.
While this point applies generally, it has special force in the context of elections. There are few areas of law that are invariably dominated by one critical history. For any lawyer with experience in death penalty and election cases, the similarities between emergency residency litigation are clear. Election Day has a finality within its own domain as fixed, or perhaps more constant than scheduled executions in their ranges. This means that many of the election law disputes that reach the Supreme Court are It effectively solved the shade table (And why read Caro’s Means of climb It is a smart move to Litigants).
And emergency election litigation has the added risk of being fraught with potential partisan bias – or at least the emergence of it. It cannot be denied that requests for emergency residency in death penalty cases have an impact, but the strong divisions among judges in these cases can be understood as purely jurisprudential. More “conservative” and more “liberal” judges have a simply different view of the role that the constitution and federal courts play in monitoring states’ implementation of the death penalty.
But in the context of elections, jurisprudential differences in good faith can inevitably take partisan overtones. This became sharply evident in April of this year in the first of a series of shadow tables apps related to the 2020 elections. The app included the Wisconsin primary, and an emergency suspension of a district court order that – in light of the coronavirus pandemic and the resulting increase in absentee voting – Extend the deadline for election officials to receive absentee votes in order for them to be counted.
The case name at least has the merit of being frank: Republican National Committee v. Democratic National Committee. The partisan divide between the two sides – with the Republican Party opposing one element of the extension (allowing ballots to be cast, not just by mail, after legally designated election day) and the Democratic Party supporting it – couldn’t be more pronounced. When the case was brought this way, it was not yet known that the judges themselves would apparently split along party lines. If the court decided the case unanimously, or even in any way differently from what actually happened, the decision may have confirmed Supreme Court Chief Justice John Roberts’ view that there are no “Obama judges or Trump judges” – only judges do their case. But when all five Republican appointees lined up in court in support of the Republican National Congress, and all four Democratic nominees lined up on the other side, the president’s claim became visibly hard to believe. To be sure, this point is a point of view: even assuming that all the justices were acting in good faith based solely on their fundamentally divergent jurisprudential views, the fact that this jurisprudential difference was fully compatible with the different party backgrounds of the inevitably created judges. Embarrassing appearance in an electoral case.
Of course, what’s the worst Bush up Is that the apparent bias of the decision appears to be inconsistent with jurisprudence. The five “conservatives” in the court adopted an equal interpretation of protection and a methodology for reaching it, which appeared to be inconsistent with their basic jurisprudential obligations, and thus were supporting a candidate from the same party as the presidents who appointed them to court. In contrast, the four “liberals” in court were defending the independence of the state in its electoral process, apparently inconsistent with their normal position of firmly protecting voting rights against state-based denial. Few observers believe the result would have been the same if this were the case Push up – That is, if everything was identical except in the case of Al Gore, not Bush, sparking the equal protection claim that state officials were arbitrarily treating identical ballots differently in the same statewide recount. The inevitable optics explained by partisanship, not principle Bush up It is a uniquely troubling stain on the court’s record of exercising its power of constitutional interpretation.
The current court must definitely bear in mind this tarnished legacy. Roberts, in his view of the court, in the 2019 Constituency fraud case Rochow v. Common causeBy invoking the principle of the “political question,” he made it clear that he wanted to keep the court as far from partisan as possible. But RNC vs. DNC, Decided less than a year later, indicates that staying above the battle is not easy.
The problem with the court’s shadow table is that it is by nature very fast-moving. Judges have little time to deliberate on these appeals, and as a result, instinct is easy to overwhelm. Finding common ground, which is very difficult to do in normal situations, becomes virtually impossible when judgment must be handed down immediately.
The court split 4-4 in The Pennsylvania Affair Earlier this week, there was another indication of just how dangerous this type of emergency litigation over the election is. Chief Justice Roberts Join the three liberals on the one hand, Along with the other four Republican-appointed judges, all willing to agree to the Republican request to block a lower court ruling extending the deadline for receiving absentee votes. With no accompanying opinions to this matter, one cannot help but guess at the thinking of the various judges. However, one imagines that Roberts wants to avoid yet another purely partisan judgment on an important issue from a presidential battlefield state. But only two days later, partisanship emerged with an emergency ruling Allow Alabama officials to reimpose a curbside voting ban. The vote this time was 5-3, with Roberts joining the other Conservatives.
The court is called on to take more major emergency decisions that could shape this year’s elections. As of this writing, there are issues pending from Wisconsin And the North Carolina, With Potentially more to follow. And the ninth justice soon You join the court. If future decisions relate to Pour Of the vote, it may be acceptable – though not desirable – if it comes up again with a Republican majority ruling in favor of all Republican applicants. Decisions about casting their vote at least determine the rules of the game before play begins.
On the contrary, if the court makes emergency decisions regarding Count From the votes, it will be difficult for the country to deal with the straight-line partisan divide in court, especially if that split includes the Republican court judges who actually award elections to President Donald Trump. It would appear to be another grab for power.
How do you avoid this?
This is one idea. Roberts, Judge Elena Kagan, and Judge Neil Gorsuch have recently shown signs of principled middle ground tendencies, to varying degrees. Suppose they can persuade the court to agree to appoint a “special director” to be in the state of a request for litigation for emergency elections that may appear after November 3. Better yet, one of three judges.A private main boardSimilar to labor administration arbitration. In both cases, the idea is a neutral judgment that is equally acceptable to both sides of the party divide.
In any case – and this is the key point – Roberts, Kagan and Gorsuch pledge not to deviate from the recommended outcome of the impartial judgment unless they all agree. That way, they can ensure they avoid making a purely partisan ruling in Trump’s favor, and thus avoid the inflammatory perception of an election that was stolen by the court. The score could be 7-2 in Trump’s favor, with Kagan reluctantly continuing her pledge. Or it could be 5-4 for Joe Biden, with Roberts and Gorsush joining the Liberals. (It does not need to be an absolute undertaking; it suffices that the undertaking be hypothetical acceptance of the judgment of the impartial referee unless for some reason the impartial judgment is deemed unacceptable.)
No split decision would be perfect – only a unanimous court ruling in a disputed presidential election would achieve this goal – but both would be better for the nation than the purely partisan divide that would give Trump a second term. It will be difficult for many Biden voters to accept this result as the rule of law.
The symposium: Risks of emergency election issuesAnd the
Scotus Blog (October 23, 2020, 5:28 p.m.), https://www.scotusblog.com/2020/10/symposium-the-particular-perils-of-em emergency-election-cases /