Elections staff load ballots into machine as recounting is underway at the Broward County Supervisor of Elections Office on November 11, 2018 in Lauderhill, Florida.
Joe Skipper/Getty Images
The Supreme Court’s 5–4 decision in Rucho v. Common Cause opened the floodgates for lawmakers to draw egregious partisan gerrymanders without fear of federal lawsuits. By declaring that gerrymandering presents “a political question beyond the competence of the federal courts,” SCOTUS ensured that the 2020 redistricting process will be infected with extreme partisan bias in most states. That ruling was harmful enough on its own terms. On Wednesday, however, an influential federal judge suggested that Rucho’s rule should be expanded to prevent judges from intervening when lawmakers manipulate the outcome of elections through voting laws. If more courts adopt that theory, it will become harder than ever to challenge partisan prejudice in the administration of elections.
Wednesday’s decision in Jacobson v. Lee involves a Florida law that dictates that candidates who share a party with the current governor are listed first in every race on every ballot. Because Republicans have long held the Florida governorship, this law grants a huge benefit to GOP candidates. As U.S. District Judge Mark Walker explained when he blocked the measure in November, the first candidate listed on a ballot benefits from the “primacy effect”—voters’ tendency to favor the first choice at the top of a list. Political scientists calculate that, in Florida, the primacy effect gives Republican candidates a five percentage-point advantage over their competitors. This windfall is called the “donkey vote,” and it will give Donald Trump a significant advantage in the must-win state come November.
Walker found Florida’s system to be “a discriminatory burden” on citizens’ constitutional right to cast an equal vote in a “free and fair election.” The law, he concluded, “systematically advantages candidates of one party,” putting an illicit “thumb on the scale in favor of the party in power.” Walker ordered the state to adopt a neutral scheme for ballot placement, like alphabetical order or a random lottery (as some other states do).
The 11th U.S. Circuit Court of Appeals reversed on Wednesday in an opinion by Judge William Pryor, a George W. Bush appointee who was one of the most conservative judges in the country before Trump infused the judiciary with underqualified reactionaries. Pryor’s majority decision did not address the merits, instead holding that the plaintiffs—voters and Democratic organizations—lacked standing to bring the suit. No plaintiff, Pryor wrote, had proved “injury in fact,” or a concrete harm inflicted by the law. As a result, federal courts have no authority to address their claims. Under that holding, a different plaintiff could still contest the law—including, perhaps, a candidate whom it handicaps.
In a strange move, though, Pryor went much further in a separate opinion concurring with his own majority opinion. Rucho, he asserted, was about more than gerrymandering: It stood for the broad principle that federal courts cannot resolve a “complaint of partisan advantage” in election law. When a law benefits one party but does not directly burden a citizen’s ability to cast a ballot, Pryor wrote, it does not implicate any constitutional rights. Instead, it asks courts to determine a “standard of fairness,” presenting a question that is “political, not legal.” Moreover, courts lack the ability “to answer the determinative question: How much partisan advantage from ballot order is too much?” When courts have to decide “basic questions” of fairness and figure out “how much partisanship is too much” in election administration, they’ve entered the political thicket and must butt out.
Pryor’s concurrence telegraphs to the rest of the judiciary that judges skeptical of voting rights lawsuits should use Rucho to throw them out of court. (In an apparent dig at Walker, a frequent critic of Florida’s voter suppression laws, Pryor wrote that his principle “may seem counterintuitive to federal judges who are used to usurping the authority of state legislatures to regulate elections.”) It gives conservative judges a powerful weapon against such suits, allowing them to claim that voters are asking for political “fairness,” not constitutional equality, and therefore have no business in federal court.
As Marc Elias, the voting rights attorney who brought this case, noted in the Washington Post, this sweeping interpretation of Rucho could let lawmakers inject even more partisanship into each election. Legislatures could insist that candidates of one party are always listed first. They could concoct a formula that ensures candidates of the minority party are buried beneath third-party candidates. They could keep straight-ticket voting for one major party but not the other. None of these laws would impose a direct burden on a citizens’ ability to cast a ballot; they would merely affect the “fairness” of the election. According to Pryor, that’s not enough to justify a federal lawsuit.
Depending on Pryor’s understanding of what constitutes a “burden” on “individual voting rights,” states could go farther. A Republican-controlled legislature could allow more early voting days in GOP-heavy counties. It could place ballot drop boxes in predominantly Republican neighborhoods. It could require voter ID, then permit IDs more likely to be held by Republicans than Democrats (like a gun permit). A governor could even cancel a special election if she feared her preferred candidate might lose. All these cases would turn on the constitutionality of state efforts to benefit candidates from one party without denying the ballot to voters from the opposite party. And Pryor’s theory suggests that, under Rucho, federal courts could not decide them.
It’s notable that Pryor raised Rucho in a separate concurrence rather than his majority opinion. One judge, Jill Pryor (a Barack Obama appointee, no relation to her colleague) rebuked him in a partial dissent, insisting that Rucho’s “reasoning was specific to the gerrymandering context.” The other judge on the panel, Robert Luck (a Trump appointee) simply signed onto the majority. Pryor’s theory, then, has not yet gained support on his courts.
But Trump has appointed plenty of judges, including at least one on the 11th Circuit, who are clearly gunning for voting rights. The Supreme Court, meanwhile, has totally abdicated its responsibility to protect the franchise. Whenever a new theory hostile to equal suffrage floats up from the lower courts, it’s a trial balloon that may well catch the justices’ attention. Rucho was a terrible decision by itself. But it will be so much worse if conservative judges use it to shield countless partisan election laws from judicial scrutiny.
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