Democrats Take Direct Aim at Judicial Independence and the Rule of Law in Voting and Election Cases | National Review

Democrats Take Direct Aim at Judicial Independence and the Rule of Law in Voting and Election Cases | National Review


House Speaker Nancy Pelosi (D., Calif.) holds a news conference at the U.S. Capitol in Washington, D.C., August 25, 2021. (Jonathan Ernst/Reuters)

Undermining the legitimacy and judicial independence of the Supreme Court has become an increasingly open preoccupation of Democratic politicians and progressive pundits (see e.g., here, here, here, here, and here). In the latest installment, Democrats this Tuesday passed the John R. Lewis Voting Rights Advancement Act. The bill, aptly named for the deceased congressman who publicly refused to accept the legitimacy of the 2000 and 2016 presidential elections and voted to object to certifying the results of the 2004 presidential election, includes a new effort to restrict the Supreme Court’s power under Marbury v. Madison to “say what the law is,” as Chief Justice John Marshall wrote in Marbury.

As Greg Sargent of the Washington Post writes with approval:

The act . . . seeks to limit the court’s ability to uphold measures making voting harder and to strike down measures making voting easier. It requires the court, in hearing cases on election rules, to put greater weight on the “public’s interest in expanding access to the right to the vote.” And it bars the court from overturning lower court rulings that expand voting access unless it determines that this places burdens on the public interest that “substantially outweigh” its interest in expanding that voting access . . . such reforms would make it harder for the court to do things like, say, overturn lower court decisions that strike down restrictive voting rules, or invalidate the ballots of voters (ones who voted in accordance with lower court decisions) after an election.

In short, when the Supreme Court concludes that a lower court has misread the law, its power to reverse the lower court depends on which direction it ruled in. A decision that barred votes from being cast or counted can be reversed, but a decision that allowed illegal votes to be cast or counted must stand even if it violates the law. In addition to being a pro–illegal-votes rule, this is antidemocratic: When a lower court improperly strikes down a democratically enacted voting law passed by the legislature and governor elected by a majority of a state’s people, the law would put a thumb on the scales against the Court reinstating the law. Sargent sees this as a plus. So does Mark Joseph Stern of Slate, who celebrates how the bill would limit the Court, but only in one direction:

H.R. 4 is a frontal assault on every component of the Supreme Court’s voting rights shadow docket. It repeals the Purcell principle, forbidding both SCOTUS and the federal appeals courts from citing proximity to an election as an excuse to reinstate a voting restriction. (There are minor exceptions for extreme circumstances on the eve of Election Day.) It bars the justices from considering “a state’s generalized interest in enforcing its enacted laws” when deciding whether to block or permit an election regulation. And it instead compels the court to “give substantial weight to the public’s interest in expanding access to the right to vote.” Under H.R. 4, the Supreme Court may not set aside a lower court decision expanding voting access unless it finds that burdens on the state “substantially outweigh” the “public’s interest in expanding access to the ballot. The court may not set aside the district court’s factual findings unless they’re “clearly erroneous.” . . . Finally, H.R. 4 preempts the Supreme Court from issuing a future decision nullifying valid ballots, as Thomas, Alito, and Gorsuch tried to do in South Carolina. The justices “shall not order relief,” the bill states, that abridges the right to vote of “any citizen who has acted in reliance” on a lower court order that suspended voting restrictions.

Barring the Court from considering the interests of a state in laws passed through the democratic process may be many things, but pro-democracy, it is not. H.R. 4 allows a rogue lower court to simply invent new rules to stuff the ballot box with flagrantly illegal votes, and the Supreme Court is barred from doing anything about it. Ian Millhiser in Vox is even more ecstatic, enthusing that the bill “provides for preclearance on steroids” and “would light Brnovich on fire” (the Supreme Court decision, not the Attorney General of Arizona).

In the real world, the Court has actually been irresponsibly timid in preventing, say, state courts from throwing out the work of state legislatures in voting and election laws, despite the explicit constitutional role that state legislatures play in federal elections. Democrats know that, for now, they do not have the votes to pass H.R. 4 through the Senate. The point of this is to send a message to the Supreme Court: Don’t get in the way of illegal votes or antidemocratic rulings, or we might take more-extreme measures against you.





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About the Author

Tony Beasley
Tony Beasley writes for the Local News, US and the World Section of ANH.