The Supreme Court likes to hide behind its popular mythology as a body of disinterested legal minds above the political fray. The court is not made up of Republicans or Democrats, but rather nonpartisan actors. The justices are akin to baseball umpires, simply calling “balls and strikes,” with no interest in the outcome, as Chief Justice John Roberts said in his 2005 confirmation hearing.
And then sometimes the justices drop the mask to reveal their own personal partisan preferences. That is what Justice Samuel Alito did in two recent election law cases when he took the side of Republicans over Democrats by adopting opposing standards in two cases with similar facts.
The first case involved an emergency application from Alabama Republicans challenging a federal district court decision that found the state had violated the Voting Rights Act by not drawing a second majority-Black district in the congressional map it adopted.
In February, five conservative judges approved the emergency application to block the lower court’s ruling in February while the court’s three liberals dissented along with Chief Justice Roberts. In blocking the redrawing of Alabama’s congressional district map, the conservatives argued that it was too close to the state’s May 24 primary elections for a court to change any fact about them. This is the so-called “Purcell principle” that the court’s conservatives raised increasingly during the COVID-19 pandemic to strike down judicial efforts to interpret election law in 2020.
“That principle — known as the Purcell principle — reflects a bedrock tenet of election law: When an election is close at hand, the rules of the road must be clear and settled,” Justice Brett Kavanaugh wrote in a concurring opinion joined by Alito. “Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates, political parties and voters, among others. It is one thing for a State on its own to toy with its election laws close to a State’s elections. But it is quite another thing for a federal court to swoop in and re-do a State’s election laws in the period close to an election.”
Here we see Alito agreeing that a court-ordered change to an election cannot be made when it is close to an election. But one month later, he took the opposite position. The main difference was which side Republicans and Democrats came down on.
On Monday, the court rejected an emergency application to block a congressional district map drawn by a state court from going into effect in North Carolina. Republicans had asked the court to prevent the implementation of the court-drawn map by endorsing a radical legal theory that state legislatures — and only state legislatures — have a say on the setting of district lines and election law.
“The applicants will be irreparably harmed if a stay is not granted because they will be deprived of their constitutional prerogative to draw the congressional map in their State, and the public interest will be disserved if the 2022 congressional elections in North Carolina are held using districts that we eventually determine were unconstitutionally imposed,” Alito wrote in a dissent.
So, in one case where Republicans would be benefited by affirming the Purcell principle of federal courts not changing election law or district maps too close to an election, Alito sided with the Republicans. In the other case, where Republicans would be benefited by not applying the same principle and allowing a federal court, in this case the Supreme Court, to change the terms of the election — an election occurring at an earlier date than the election in the other case — Alito sided with the Republicans.
Perhaps, the date of the election is not the best date by which to judge whether or not the election is too close or not.
In his concurring opinion, Kavanaugh, joined by Alito, pointed out that absentee ballots in Alabama, which are heavily restricted, can be cast as early as March 30. But North Carolina, which allows all voters to cast an absentee ballot, makes absentee ballots available on March 28, two days earlier than Alabama. Further, North Carolina’s early voting period begins on April 28 — nearly a month before in-person voting is allowed in Alabama.
One important difference though is that the North Carolina case revolved around whether the state court that drew the state’s congressional district map was even allowed to do so in the first place. Under a strong reading of the independent state legislature doctrine that Alito endorses, state courts have no role to play in redistricting or judging whether any election law passed by a state legislature violates their respective state constitution.
“The applicants will be irreparably harmed if a stay is not granted because they will be deprived of their constitutional prerogative to draw the congressional map in their State, and the public interest will be disserved if the 2022 congressional elections in North Carolina are held using districts that we eventually determine were unconstitutionally imposed,” Alito wrote.
But, again, Alito’s belief that state courts have no say whatsoever in interpreting how their state constitutions apply to district maps or election laws passed by their state legislatures contradicts an opinion he joined just three years ago.
In the 2019 decision in the Rucho v. Common Cause case, five conservative justices, including Alito, ruled that federal courts had no role to play in judging whether or not a congressional district map amounted to an inappropriate partisan gerrymander. Instead, state courts were the ones who had the power to judge these maps.
“[P]rovisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” Roberts wrote in the Rucho decision.
Alito’s endorsement of the independent state legislature doctrine is in direct conflict with this ruling he joined. But it is no surprise. Just look at who wants the court to rule the way it did in the Rucho decision: Republicans.