Withdrawal: The Roberts Court and the Retreat from Election Law

Last Term the Supreme Court handed down four decisions that upheld diverse efforts by state governments to regulate the electoral process. The Court turned back challenges to New York’s method for nominating judicial candidates, Washington’s modified blanket primary system, Indiana’s voter identification requirement, and Alabama’s use of gubernatorial appointment to fill county commission vacancies in Mobile County. Unlike other recent election decisions, these were not close cases. All nine Justices supported the New York holding, while supermajorities voted in favor of the result in the others. This consensus, moreover, emerged even as the Court voted to reverse unanimous decisions by experienced lower court judges in the Alabama, New York, and Washington cases. The one affirmance came in the controversial Indiana voter ID case and even there six Justices supported the outcome. These four decisions suggest that a distinct approach to election law is emerging in the Roberts Court. It is an approach that seeks to avoid active federal engagement with the state-created rules regulating democratic participation; and it is one that assumes and demands an electorate that is both legally literate and diligent. This approach differs in tenor and substance from the stance the Justices have long taken in electoral disputes. It implicitly rejects the role the Court and Congress have repeatedly played in the electoral arena, and the portrait of the American voter on which federal involvement has previously been premised. This short Article develops and defends these claims. Part I shows how the recent decisions depart from both longstanding and more recent precedent in the field. While the decisions facially overrule nothing, they narrow foundational voting decisions from the Warren and Burger Courts, and disavow the rigorous review the Rehnquist Court repeatedly employed when examining challenges to state electoral processes. The decisions suggest a Court that is eager to withdraw from engaged judicial review of state election laws and receptive to circumscribed federal oversight of state electoral processes more generally