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Why Supreme Court Nonpartisanship Is Important in the Ohio Early Voting Lawsuit

This comment builds on my earlier one on the need for nonpartisanship in the Supreme Court's decision in this case.

Having now read the Supreme Court filings in Husted v. Obama for America, I remain of the view the Court has plausible grounds under the existing state of law in this area to either grant or deny the emergency stay application filed by Ohio’s Secretary of State, Jon Husted.

The Court could take the view, argued forcefully in Husted’s reply brief, that first, the district court should not have issued the preliminary injunction in the first place (because the Equal Protection claim on which it is predicated is significantly flawed), and second, it is important for the highest Court in the land to remind lower courts not to interfere with a state’s electoral process shortly before voting is about to begin unless there is a compelling need for such interference (which is there is not when the Equal Protection predicate for such interference is weak).

Conversely, the Supreme Court could reach the opposite conclusion, argued cogently by the Obama campaign: one, the district court’s preliminary injunction (whatever its merits) is not harmful to Ohio, as the only thing it does is permit—but not require—local election boards to offer early voting on November 3, 4 & 5 (and therefore cannot interfere with whatever preparations local officials consider necessary to be ready for Election Day itself), and two, there is no urgency to the Supreme Court’s becoming involved at this time with the merits of the underlying Equal Protection claim, which (even if dubious) has enough plausibility under the Court’s precedents that it does not deserve summary reversal when all four judges who considered the claim below sustained its validity.

Since the Supreme Court reasonably could rule either way on the stay application, one might think it naïve to expect all nine Justices—from Ginsburg to Scalia, who disagree about so much else—to end up taking the same position in this case. Nonetheless, I think it important that they do so, even to the point of Justices declining to publish a dissent if they initially vote in a way that does not prevail among the nine.

Why is unanimity more important in this case than in others that come before the Court? My answer is that partisan litigation over casting and counting of ballots in a presidential election, which pits Democrats and Republicans against each other in seeking the Court’s approval for their view of the voting rules that govern the process for determining which side wins the White House, calls for a visibly nonpartisan response from the Court.

Yes, it may be regrettable if the all the Court’s Republican appointees line up on one side of the pending affirmative action case, with the Democratic appointees on the other side. (Justice Kagan has recused herself in that case, meaning that a thoroughly partisan split there would be 5-3 instead of the typical 5-4.) But affirmative action is not election law and thus the litigation itself is not directly a case of Democrats versus Republicans over the rules of the voting process.

Even the 5-4 split in Citizens United, the campaign finance case, is not as troubling as the same 5-4 split would be in Husted v. Obama for America. To be sure, campaign finance is subset of election law, and Citizens United affects presidential elections as well as others. Thus, arguably it is more disconcerting that the Court’s Republican and Democratic appointees would uniformly reach opposite conclusions in Citizens United than in cases involving non-electoral issues, like affirmative action or abortion.

Still, Citizens United is not a lawsuit between Democrats and Republicans over the rules for casting and counting ballots in a particular presidential election. Citizens United concerns campaign practices, rather than voting itself, which is an important distinction. As important as the funding of campaign advertisements may be to the political climate in which an election held, ultimately it is the ballots themselves that determine the winner. Thus, a Supreme Court decision about the rules for casting or counting those ballots has a direct effect on a presidential election in the way that a decision about campaign finance only has an indirect effect.

The Supreme Court’s decision in Crawford v. Marion County Elections Board, the 2008 case involving Indiana’s voter identification law, comes closer to raising the concerns of a non-unanimous decision in the currently pending Husted v. Obama for America. Crawford was far from unanimous. There, the deeply fractured Court essentially divided 3-3-3 over how to analyze the constitutional challenge to the voter ID law. The Court’s only two Democratic appointees at the time (Ginsburg and Breyer) were among the three dissenting Justices (the other being Souter) who would have invalidated the law in its entirety. The Court’s three most conservative Justices (Scalia, Thomas, and Alito) would have categorically rejected any Equal Protection attack on the statute. The balance of power at the Court in the case was held by a trio of three more moderate Republican appointees (Stevens writing, with Roberts and Kennedy), who rejected across-the-board invalidation of the statute but left open the possibility of specific challenges raises by particular voters capable of showing inappropriate hardship as a result of the statute’s applicability to them.

Crawford was decided in the spring of a presidential election year (April 28 to be exact), and a voter ID law certainly concerns the rules for casting and counting of ballots. Moreover, the lawsuit was filed by the Democratic Party in the state, where the officials defending the law were Republicans—and the legislation had been enacted on a party-line vote.

Accordingly, it would have been preferable if the Supreme Court had been able to achieve unanimity in its disposition of that case. But at least the 3-3-3 divide in the case was not the same as all the Court’s Republican appointees lining up against all the Court’s Democratic appointees, or even all the Court’s conservatives arrayed against the Court’s liberals. Justice Stevens joining with Chief Justice Roberts and Justice Kennedy to reject the across-the-board challenge to the law avoided that outcome.

Furthermore, Crawford lacked an element that is present in Husted v. Obama for America. The complaint in Crawford had been filed in 2005, shortly after the enactment of Indiana’s new voter ID law. The litigation clearly was designed to affect all elections, not just presidential ones, and it was hardly foreordained that it would ready for a Supreme Court decision in a presidential year.

Husted v. Obama for America, by contrast, is a lawsuit filed by a presidential campaign, seeking to affect the rules for the conduct of the immediately upcoming presidential election specifically. Consequently, a Supreme Court ruling in this case much more directly involves the Court in playing umpire for the current presidential election than did Crawford.

In this respect, Husted v. Obama for America comes closer to Bush v. Gore itself. To be sure, Bush v. Gore occupies a different point on the spectrum, perhaps the polar point where a partisan divide in the Supreme Court is most troubling. Bush v. Gore involved the counting of presidential ballots after they had been cast, where the Court’s umpiring of the presidential election was as direct as it could be. Husted v. Obama for America does not involve the rules for counting ballots, only when they can be cast. And even though early voting has already started in Ohio, this litigation remains on the “pre-election” side of the line between lawsuits over the rules before ballots are cast, compared to “post-election” lawsuits afterwards, insofar as this lawsuit concerns the rules applicable specifically to the casting of ballots on November 3, 4 & 5—which have not yet occurred.

Therefore, in considering the various points along the spectrum, a 5-4 thoroughly partisan ruling in Husted v. Obama for America would not be as deeply troubling as one in a “Romney v. Obama” that hypothetically might arise after November 6 concerning the counting of ballots already cast—and thus sharing this same feature as Bush v. Gore.

Still, a 5-4 partisan split in Husted v. Obama for America would be troubling enough. It would be the Court’s Republican appointees agreeing with Ohio’s Republican officials who want to limit the availability of opportunities to cast ballots in this year’s presidential election, with the Court’s Democratic appointees at the same time agreeing with the Obama campaign’s effort to extend the opportunities to cast those ballots. That kind of partisan split would cast doubt on the ability of the nine-member Court to be a fair and neutral arbiter of this sort of fight over the rules for determining which party wins the White House.

Therefore, whether the Supreme Court rules in favor of limiting or extending early voting in Husted v. Obama for America, it would be vastly more preferable if the Court’s ruling is not susceptible to the perception of Republican justices simply siding with what Ohio Republicans want, while Democratic justices simply do what the Obama campaign wants.

The Supreme Court managed to avoid such an outcome in Brunner v. Ohio Republican Party, a unanimous October 2008 decision, which much more than the Crawford decision of six months earlier raised the specter of an ugly partisan divide over rules for casting ballots in a presidential election.

Let’s hope the Supreme Court can repeat the same success of Brunner v. Ohio Republican Party.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile

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