By Richard Hasen
on Sep 29, 2020 at 3:30 pm
This article is the first entry in a symposium on the jurisprudence of the late Justice Ruth Bader Ginsburg.
Richard L. Hasen is the chancellor’s professor of law and political science at the University of California, Irvine School of Law and the founder of Election Law Blog. He is the author, most recently, of Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy.
During her tenure on the Supreme Court, Justice Ruth Bader Ginsburg unfailingly sided with voters in election cases and viewed the Constitution as giving Congress broad power to protect voting rights. Sitting on a mostly conservative Supreme Court (when it came to these issues) from 1993 to 2020, Ginsburg unsurprisingly wrote more often in dissent than as the author of majority opinions in election cases. I count 14 dissents, six majority opinions and four concurrences — concurrences that proved exceptionally influential.
The most important election case decided while Ginsburg sat on the Supreme Court was Bush v. Gore, the 2000 case ending the state-court-ordered recount of votes in Florida, effectively handing the presidency to Republican George W. Bush over Democrat Al Gore. Ginsburg’s dissent calling for the Florida recount of ballots to continue was one of four dissenting opinions issued in the case; she told Professor Jeffrey Rosen in 2014 that issuing four dissents was a tactical error that “confused the press.” She encouraged dissenters to speak in one voice in future cases.
The dissenters followed her advice in the two biggest election law cases so far under the Roberts court, Citizens United v. Federal Election Commission and Shelby County v. Holder. Ginsburg joined in Justice John Paul Stevens’ dissent in the 2010 Citizens United case, holding that corporations have a First Amendment right to spend unlimited sums supporting or opposing candidates in elections. Ginsburg told Rosen that Citizens United was the number one Roberts court decision she would overturn: “I think the notion that we have all the democracy that money can buy strays so far from what our democracy is supposed to be.”
Ginsburg listed the 2013 decision in Shelby County as only number three on her list of Roberts court cases she would overrule, but her dissent in that case is probably her most important election law dissent. Joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, Ginsburg argued that Congress has broad power to enforce the Constitution’s voting amendments. That power, Ginsburg wrote, authorized a provision of the Voting Rights Act of 1965 that required states with a history of racial discrimination in voting to get federal approval, or “preclearance,” before they could make changes to voting rules. In response to Chief Justice John Roberts’ argument that things have changed in the South and that preclearance was no longer needed, Ginsburg famously replied that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
One other Ginsburg dissent in an election case stands out. In her dissent in the 2002 case Republican Party of Minnesota v. White, which struck down a state judicial speech code as a First Amendment violation, Ginsburg argued that states have more power to regulate campaigning in judicial elections than they have in other elections. Although Ginsburg’s rejection of the “unilocular” “an election is an election” argument did not carry the day against Justice Antonin Scalia’s majority opinion in White, Justice Sandra Day O’Connor, who concurred in White, later said that her vote with the majority gave her pause. And the court in a majority opinion by Roberts pulled back from White in the 2015 case Williams-Yulee v. Florida Bar, upholding Florida’s limits on personal solicitation of campaign contributions by judicial candidates. Ginsburg in her Williams-Yulee concurrence would have allowed even greater regulation of judicial candidates to preserve an independent judiciary.
Ginsburg was not always in dissent in election cases, however. She wrote two particularly important majority opinions in this area. In her 2015 opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, Ginsburg wrote that Arizona voters acting via initiative could remove the power to draw congressional districts from Arizona’s legislature and place it in the hands of a redistricting commission. The Constitution vests the power to draw such lines in state “legislatures,” and Ginsburg, joined by Breyer, Sotomayor, Kagan and Justice Anthony Kennedy, read the term “legislature” broadly to include the legislative process of a state, including the initiative process. A contrary ruling would have endangered many election reforms applicable to congressional elections passed via voter initiative.
In the 2016 case Evenwel v. Abbott, Ginsburg wrote for a unanimous court (with Justices Clarence Thomas and Samuel Alito concurring in the judgment and writing separately) that a state engaging in redistricting could create districts with equal numbers of people in them rather than equal numbers of eligible voters. The opinion ducked a key subsidiary question: “Because history, precedent, and practice suffice to reveal the infirmity of appellants’ claims, we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population.”
Developments after Ginsburg’s death, particularly if President Donald Trump is successful in nominating another conservative to the high court, could take these two important precedents in directions Ginsburg surely would have abhorred. Roberts wrote a particularly vehement dissent for four justices in the Arizona case, and if the meaning of the term “legislature” comes back before the court (as it soon seems likely to do in 2020 election litigation), Roberts will be confronted again with the question whether to stick with precedent or adhere to his own view on the merits of a constitutional case. A result overturning Arizona would call into question congressional redistricting commissions around the country, as well as other election reforms.
And after the next round of redistricting in 2021, the question left open in Evenwel could well be decided in favor of states like Texas that may want to draw districts with equal numbers of eligible voters, rather than equal numbers of people. Allowing states to do so would shift political power into the hands of more rural and whiter voters, because cities have higher percentages of noncitizens and children who would no longer count in the denominator for redistricting.
Many of Ginsburg’s voting rights decisions did not command a majority on the court. But when reading her decisions, and especially her dissents, it is clear that she was writing for the ages, putting forward a strong vision of voting rights protected by the Constitution. This was especially true in her final election law dissent, in this April’s Republican National Committee v. Democratic National Committee case. There, she lamented the majority’s decision not to extend the time for Wisconsin voters to return absentee mail ballots for the April 7 primary in the midst of a pandemic:
Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance — to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.
