A guest post by Lawrence Friedman
In Republican National Committee v. Democratic National Committee, the U.S. Supreme Court ruled that absentee ballots in Wisconsin had to be postmarked by election day or earlier, which meant that many citizens would have to brave the polls and risk exposure to the novel coronavirus in order to vote. A New York Times story subsequently observed that the per curiam decision “was in keeping with a broader Republican approach that puts more weight on protecting against potential fraud — vanishingly rare in American elections — than the right to vote, with limited regard for the added burdens of the pandemic.”
This view aligns with that of the critics who note that the results in many of the Court’s recent voting rights decisions tend as a practical matter to inure to the benefit of the Republican Party. Indeed, a central question raised by the Court’s rulings in this area is whether the prevailing majority in these cases – Chief Justice John Roberts, along with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – is motivated solely by partisanship. Writing in The Atlantic about the decision in the Wisconsin case, for example, Garret Epps asked whether the majority was “guided by principle or by simple allegiance to the party that has gone to such lengths to seize control of the Court.”
There is an argument to be made that there is a principle at work in election cases—that the Court’s rulings reflect neither the majority’s embrace of dubious theories about voter fraud nor a bare desire to harm Democrats but, rather, a commitment to resolving disputes about who gets to vote on neutral grounds. Indeed, the Roberts court’s voting rights decisions can be seen as expressions of the majority’s abiding interest in avoiding – seemingly at all costs – any judicial involvement in the way state governments run elections. This interest follows from the premise that, as the majority reads it, the constitution is pre-political: there are no Republicans and Democrats, only candidates; and the rules under which elections are run are, other than when they are expressly discriminatory on the basis of race, the purview of legislators.
Of course, while the framers may not have contemplated the two-party system as we know it today, neither could they have imagined the lengths to which a party might go to entrench itself. Yet, even in the face of radical efforts to diminish the weight of some votes, as the Court faced last term in Rucho v. Common Cause, a majority refused to act, concluding that the issue of partisan gerrymandering presents a non-justiciable political question. Such avoidance has real-world consequences. The Supreme Court is not immune from Newton’s laws of motion: a determination, for instance, that the federal courts should not review an egregious partisan gerrymander will encourage parties to continue to subscribe to a practice that has little salutary effect, at least if the constitutional goal is appropriate representation. Other institutional actors, moreover, may lack either the political will or authority to change that practice.
It doesn’t have to be this way. In Rucho, it was possible for the Court to endorse a role for the judiciary that would express appropriate deference to the state’s primary authority for running elections, while at the same time allowing federal judges some limited discretion to act in the face of extraordinary circumstances. It is possible, in other words, to abide by the principle that favors political control over the electoral process but recognize extraordinary circumstances—such as abject efforts to diminish the votes of certain citizens based upon presumed party affiliation. What the Court did – or, rather, failed to do – in Wisconsin represents a different but arguably more troubling case, for there the majority was unwilling to permit judicial intervention simply to allow voters the opportunity to participate in an election without having to violate state-issued social distancing mandates.
In a recent article in the Harvard Law & Policy Review, Lynn Adelman, a sitting federal district court judge, openly criticizes the Roberts Court’s voting rights decisions, arguing that they have “contributed to insuring that the political system in the United States pays little attention to ordinary Americans.” Siding with the critics who see the Court as engaged in results-oriented decision-making in the area of voting rights, Adelman recalls Chief Justice Roberts’s comparison, during his confirmation hearings, of a justice’s role to that of an “umpire who [merely] calls the balls and strikes,” and deems the statement as a “masterpiece of disingenuousness.”
But the chief justice may have been on the right analogical track. Judges, like umpires, call balls and strikes—and like umpires, judges strive to set strike zones that are fair to both sides. Umpires recognize that when they throw too far inside the strike zone, pitchers risk removal—a call that may well affect the result of the game. Such calls are a part of the job and umpires recognize that they do not stand outside the game being played in front of them—they are a part of it, too. Judges likewise are a part of our constitutional system—which means that there are times when, in addition to calling balls and strikes, they must act to keep the players on the field in line.