Analysis: U.S. liberals see dwindling legal options to challenge voting
curbs
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[August 31, 2021]
By Andrew Chung and Lawrence Hurley
(Reuters) - During the bitter legal battles
over the 2020 presidential election, conservative U.S. Supreme Court
justices signaled an embrace of a once-marginal legal doctrine that
largely gives state legislatures power to set election rules.
If applied aggressively by the court, the "independent state legislature
doctrine," could further empower states to limit voting rights at a time
when Republicans, emboldened by former President Donald Trump's baseless
claims of election fraud after his loss to Democratic President Joe
Biden, are enacting new restrictions.
"It is a ticking time bomb," said Rick Hasen, a professor at the
University of California, Irvine School of Law.
The doctrine could limit the ability of courts to block voting rules
that violate state law. It could also make it harder to challenge the
drawing of electoral districts to entrench one political party in power
- known as gerrymandering - and factor into lawsuits that arise in the
heat of an election.
The doctrine threatens another avenue for challenging election
restrictions and maps as plaintiffs and voting rights advocates have
increasingly turned to state courts for relief. Unlike the U.S.
Constitution, which implies the right to vote but does not explicitly
grant it, most state constitutions expressly protect the right to vote.
"It would give the legislatures the authority to pass any voting rules
they want without meaningful oversight, particularly under the state
constitution," said Josh Douglas, a voting rights expert at the
University of Kentucky Rosenberg College of Law. This can undermine
voting rights by letting legislators craft rules that help them win
re-election, he added.
The doctrine is based in part on language in the U.S. Constitution that
the "times, places and manner" of federal elections "shall be prescribed
in each State by the Legislature thereof."
Four of the Supreme Court's six conservative justices appeared to lend
weight to the doctrine during the flurry of litigation around the 2020
election, when Republican lawmakers or officials sought to block lower
court decisions allowing or requiring changes to election deadlines and
other rules to account for the coronavirus pandemic.
In a Wisconsin case, Justice Brett Kavanaugh, agreeing with the court's
Oct. 26 decision to prevent an absentee ballot deadline extension, said
in his opinion that "state courts do not have a blank check to rewrite
state election laws for federal elections."
Two days later, in a similar case from North Carolina, Justice Neil
Gorsuch called it "egregious" that a state court and election officials
"worked together to override a carefully tailored legislative response
to COVID."
Justice Samuel Alito and Justice Clarence Thomas raised similar concerns
about the Pennsylvania Supreme Court's decision to extend ballot
deadlines.
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Unused privacy booths are seen at a voting site in Tripp Commons
inside the Memorial Union building on the University of
Wisconsin-Madison campus on Election Day in Madison, Dane County,
Wisconsin, U.S. November 3, 2020. REUTERS/Bing Guan
'VERY DIFFICULT ROAD'
Given the court's higher hurdles for proving violations of the
federal Voting Rights Act, a law that prohibits racial
discrimination in voting, or the U.S. Constitution, election law
attorneys and voting rights advocates say they are concerned.
"When you add all that together, it signals a very difficult road
for voting rights litigation in the future," said Dale Ho, an
American Civil Liberties Union lawyer.
The increasing rightward shift of the nine-member Supreme Court also
raises questions whether it will overturn a 2015 ruling that
narrowly upheld Arizona's decision to establish an independent
commission to draw congressional districts.
The court interpreted the constitution's "times, places and manner"
provision as referring not to a specific legislative body but
instead to a state's general authority to legislate on the issue.
Two of the justices in the majority in 2015, including the late
liberal Justice Ruth Bader Ginsburg, who authored the decision, are
no longer on the court.
"It’s a very open question whether, with the change in composition
of the court: is that subject to overruling?” said University of
Kentucky's Douglas. If it is, it could at a minimum threaten
redistricting commissions in other states that were established via
ballot initiatives.
Michael Morley, a professor at Florida State University College of
Law, who earlier this year published an article in support of the
doctrine, said it is a misconception that it would let legislatures
"run amok."
Even without limits under state law, they would still be constrained
by protections enshrined in the U.S. Constitution, he said.
(Reporting by Andrew Chung and Lawrence Hurley; Editing by Scott
Malone and Grant McCool)
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