When it comes to assuring fair elections, the Supreme Court has a new message: Voters can wait.
Its recently completed term featured two key redistricting votes in which the court turned away temporary relief for voters as the court considered each case - not because these voters would eventually lose, but because the justices refused to put voters’ interests first. And these rulings build upon the court’s troubling “Purcell principle,” the idea that courts should not make changes to voting rules close to the election, even if those changes are necessary to protect voting rights.
Last December, North Carolina appealed to the Supreme Court a three-judge court decision holding that the drawing of certain state legislative districts were unconstitutional racial gerrymanders. The lower court also ordered that the state conduct special elections this year to cure the defect. North Carolina appealed that order, too, and it asked the Supreme Court to put the special elections on hold pending a decision on its underlying appeal.
The court put the appeal on hold and then … it did nothing for a long time. The justices held the case for months, as they considered another case from North Carolina alleging racial gerrymanders in the drawing of the state’s congressional districts. At the beginning of June, after the court held in the congressional case that North Carolina’s lines were unconstitutional, the court summarily affirmed (that is, agreeing with the lower court without briefing or argument) the lower court’s ruling that the state legislative districts were unconstitutional, as well. Accompanying the order was a brief unsigned opinion on behalf of the court saying that the lower court had been too hasty in ordering the special election and sending the case back for new consideration under the revised standards.
By that point, it was already June - making it pretty hard for plaintiffs to force North Carolina to hold as-yet-unscheduled special elections in 2017, but not impossible. The lower court issued a statement saying it was ready to consider special elections under the new Supreme Court standard, just as soon as the Supreme Court formally released the case. Plaintiffs moved to have the case released immediately, but the Supreme Court again said no, giving the state time to file a petition for rehearing (which are hardly ever granted) and further increasing the chances North Carolina voters will live under districts the Supreme Court has already ruled unconstitutional until at least 2018.
The North Carolina delay is not isolated. A few weeks ago, the Supreme Court agreed to hear a partisan gerrymandering case involving Wisconsin’s state legislative districts. It is shaping up as the last good chance (before Justice Anthony M. Kennedy, the swing vote, retires from the court) for the court to begin to rein in the drawing of district lines to help one party or the other. The lower court in the Wisconsin case, Gill v. Whitford, had ordered the Wisconsin legislature to draw new district lines by November, so that the 2018 elections could be conducted free of a partisan gerrymander. Wisconsin moved for a stay of the order to redraw the districts and the Supreme Court, over the dissent of its four liberal justices, granted it. Once again, voters may be forced to live longer under unconstitutional districts because the Supreme Court has blocked an interim remedy.
These redistricting cases are in line with a recent trend at the Supreme Court involving last-minute election litigation. The details are technical, but basically the high court has put a big thumb on the scale against courts changing the rules for conducting an election in the period shortly before the election. Under this “Purcell principle,” courts must be especially wary of such changes given the special risk of confusion and tumult near election time.
While that sounds like a laudable principle in the abstract, in practice, it means that even in cases where voters’ rights are being threatened, courts are cautioned against protecting those rights because of the risk of confusion. A fairer rule would require courts to weigh all the factors, including the burden on voters’ constitutional rights.
They say justice delayed is justice denied. If the Supreme Court really cared about voting rights in these election cases, it would be less willing to tolerate delay in protecting voters’ rights.
Richard L. Hasen is the chancellor’s professor of law and political science at the University of California at Irvine and the author of “Plutocrats United.”