Elections, Courts and the Judiciary

Subterms

    More stories

    • 125 Shares129 Views

      in Elections

      In Wisconsin, Governor’s Race Stand Between G.O.P. and Near-Total Power

      by

      KAUKAUNA, Wis. — Nowhere in the country have Republican lawmakers been more aggressive in their attempts to seize a partisan edge than in Wisconsin. Having gerrymandered the Legislature past the point that it can be flipped, they are now pushing intensely to take greater control over the state’s voting infrastructure ahead of the 2024 presidential contest.Two pivotal elections in the coming months are likely to decide if that happens.The soaring stakes of the first, the November race for governor, became clear last week when Tim Michels, a construction magnate endorsed by former President Donald J. Trump, won the Republican primary.His victory raised the prospect that Gov. Tony Evers, a Democrat who has vetoed a range of Republican voting bills, could soon be replaced by a Trump ally who has embraced calls to dismantle the state’s bipartisan election commission, invoked conspiratorial films about the 2020 election and even expressed openness to the false idea that Mr. Trump’s loss can still be decertified.The second election, an April contest to determine control of the narrowly divided Wisconsin Supreme Court, could be even more important.This year alone, the court’s 4-to-3 conservative majority has upheld the most aggressive partisan gerrymander of state legislative districts in the country, prohibited the use of most drop boxes for voters returning absentee ballots, and blocked Mr. Evers from making appointments to state agencies.The Wisconsin Supreme Court has prohibited the use of most drop boxes for voters returning absentee ballots, forcing them to vote by mail or in person.Jamie Kelter Davis for The New York TimesAnd three of the four conservative justices on the court voted to hear Mr. Trump’s objections to the 2020 election, which could have led to overturning Wisconsin’s results. Joseph R. Biden Jr.’s 20,000-vote victory in the state stood only because Justice Brian Hagedorn, a conservative, sided with the court’s three liberals.Electing a liberal justice to replace the retiring conservative, Justice Patience D. Roggensack, would give Wisconsin Democrats an opportunity to enact a host of measures that currently have no shot at passing in the Republican-led Legislature. Bringing new lawsuits through the courts, they could potentially undo the gerrymandered legislative districts; reverse the drop box decision; and overturn the state’s 1849 law criminalizing abortion, which went back into effect in June when the U.S. Supreme Court struck down Roe v. Wade.Wisconsin’s next two elections are inexorably linked. Mr. Michels has said that he will seek to change the state’s voting laws on his first day as governor. If he is indeed elected and moves quickly, new voting procedures could be in place before a new justice is elected to a 10-year term in April — and the court combined with Mr. Michels would have wide leeway to set voting rules for the 2024 presidential election, when Wisconsin is widely expected to again be a central presidential battleground.“If they’re going to cherry-pick things that they know will depress a Democratic vote, it will absolutely impact every Democrat, including Joe Biden,” Mr. Evers said in an interview on Thursday. Referring to Mr. Michels, he added, “His election certainly would focus on depressing the vote of Democrats, no question about it.”Gov. Tony Evers, a Democrat, has vetoed a range of Republican voting bills, including measures to give the Legislature greater control over elections.Youngrae Kim for The New York TimesDuring the primary campaign, Mr. Michels promised to replace the Wisconsin Elections Commission with an agency that would effectively be under the control of Republicans. And while he never explicitly endorsed decertifying Wisconsin’s 2020 presidential election, Mr. Michels did not rule it out, either, saying enough to appease Mr. Trump — who has repeatedly demanded such a move.At campaign stops and during primary debates, Mr. Michels invoked films about the 2020 election that propagate conspiracy theories falsely suggesting that Mr. Trump was the real winner. He claimed without evidence that there had been fraud in the state and pledged to prosecute the perpetrators.“I’ve seen the movies ‘2000 Mules’ and ‘Rigged.’ And I’ll tell you, I know that there was a lot of voter fraud,” Mr. Michels said at a recent rally in Kaukauna, a small industrial city in the state’s politically swingy Fox Valley. “When I am sworn in as governor, I will look at all the evidence that is out there in January and I will do the right thing. Everything is on the table. And if people broke the law, broke election laws, I will prosecute them.” More

    • 125 Shares189 Views

      in Elections

      Next Front Line in the Abortion Wars: State Supreme Courts

      by

      Court challenges to sweeping rollbacks of abortion rights must go through state supreme courts, many of which have been shaped by years of conservative activism.WASHINGTON — Fresh from the political thicket of the United States Supreme Court, the struggle over abortion is now moving to venues that are poised to become the next front line in the country’s partisan warfare: state supreme courts.In Florida, seven justices appointed by Republican governors will decide whether the State Constitution’s explicit right to privacy, which protected abortion rights in past rulings, remains a precedent. In Michigan, a court with a 4-3 majority of Democratic nominees has been asked to conclude whether a 91-year-old law banning abortions is constitutional. In Kentucky, a decision on a ban on almost all abortions appears bound to a Supreme Court composed largely of nonpartisan elected justices.In those states and others, the federal reversal of Roe v. Wade tosses one of the nation’s most politically explosive issues into courtrooms that, until recently, had operated mostly beneath the radar of national politics.The increasing political pressure on justices — and the rightward drift of some courts — suggests that options for abortion rights advocates to soften the impact of the federal abortion ruling may be limited. It also reflects how partisan politics is emerging as a driving force in how some justices rule.Abortion rights protesters gathered at the Florida Supreme Court in May.Kenny Hill/USA TODAY NETWORKOver the past decade or so, the national Republican Party and other conservative groups have spent heavily to move both state legislatures and courts rightward. The party’s Judicial Fairness Initiative says it has spent more than $21 million since its formation in 2014 to elect conservatives to state courts, and will spend more than $5 million this year. The Judicial Crisis Network, a conservative advocacy group that has been a principal backer of recent Republican nominees to the U.S. Supreme Court, also has invested money in state supreme court races.The Democratic Party has also poured growing sums of money into court elections, as have allies like labor unions — but not as much, and not for as long, as have Republicans. But the rightward lurch of federal courts increasingly is leading progressives to see state courts as potential bulwarks against more conservative gains, said Joshua A. Douglas, an elections and voting rights scholar at the University of Kentucky.The right’s focus on the courts could pay off handsomely in legal battles over abortion, according to Douglas Keith, an expert on state judicial issues at the Brennan Center for Justice at New York University.Consider Iowa, whose Supreme Court ruled in 2018 that the due process clause in the State Constitution guaranteed a right to abortion. Aided by an advertising campaign financed by the Judicial Crisis Network, the General Assembly then revised the judicial nominee process, handing more control to the governor, Kim Reynolds.Gov. Kim Reynolds has turned the Iowa Supreme Court into a conservative bastion.Nick Rohlman/The Gazette, via Associated PressMs. Reynolds, a Republican, turned the court into a conservative bastion. Last month, a week before the U.S. Supreme Court overturned its ruling in Roe v. Wade, the Iowa justices reversed their own 2018 ruling on abortion.Montana also recognizes a constitutional right to abortion. In the nonpartisan primary election last month for one of its Supreme Court’s seven seats, both the Judicial Fairness Initiative and the state Republican Party spent money to ensure that a candidate endorsed by abortion opponents, James Brown, would oppose an incumbent judge, Ingrid Gustafson, in November. Ms. Gustafson was nominated to the bench in 2017 by the governor at the time, Steve Bullock, a Democrat.The reversal of abortion rights in Iowa “is not the last one we might see,” Mr. Keith said. “The lack of attention that these courts have gotten from the left, comparatively, is going to come home to roost.”From Opinion: The End of Roe v. WadeCommentary by Times Opinion writers and columnists on the Supreme Court’s decision to end ​​the constitutional right to abortion.David N. Hackney, maternal-fetal medicine specialist: The end of Roe “is a tragedy for our patients, many of whom will suffer and some of whom could very well die.”Mara Gay: “Sex is fun. For the puritanical tyrants seeking to control our bodies, that’s a problem.”Elizabeth Spiers: “The notion that rich women will be fine, regardless of what the law says, is probably comforting to some. But it is simply not true.”Katherine Stewart, writer: “​​Breaking American democracy isn’t an unintended side effect of Christian nationalism. It is the point of the project.”A major test looms in Florida, where the State Constitution’s Bill of Rights declares that “every natural person has the right to be let alone and free from governmental intrusion into the person’s private life.”The Florida Supreme Court previously cited that explicit guarantee of privacy in striking down laws that restricted access to abortion. That precedent now appears endangered.In 2019, the last three justices who had been nominated by a Democratic governor retired. Gov. Ron DeSantis, a Republican who has made opposition to abortion a centerpiece of a possible presidential campaign, replaced them with conservatives.From voting rights to redistricting, the State Supreme Court has ruled reliably in support of conservatives in recent years. Daniel A. Smith, a University of Florida political scientist who watches the court, said he believed that was unlikely to change.“I think the U.S. Supreme Court is sending a signal to justices in state high courts that precedent no longer matters,” he said. Dr. Smith predicted that the constitutional guarantee of privacy “will be whittled away” when the state court makes its abortion ruling.Attorney General Daniel Cameron of Kentucky, a Republican, on Sunday asked the State Supreme Court to issue an emergency order suspending a lower court decision allowing the state’s only abortion provider to remain open. The court denied the request on Tuesday.In elections to the State Supreme Court this fall, State Representative Joseph Fischer, perhaps the Legislature’s leading opponent of abortion, is running to unseat Michelle M. Keller, who was appointed to the court in 2013 by Steve Beshear, a Democrat who was then the governor.State Representative Randy Bridges gave a thumbs down as protesters chanted “bans off our bodies” at the Kentucky State Capitol in April.Ryan C. Hermens/Lexington Herald-Leader, via Associated PressNational political parties and interest groups will focus their money and attention this fall on state supreme courts in four states — Illinois, Michigan, North Carolina and Ohio — where elections could flip the courts’ majority from Democratic to Republican or vice versa. But other states could be in play.Six of seven justices on the Democratic-led Supreme Court in Kansas must stand for retention elections, and some are likely to become targets of Republicans infuriated by the court’s ruling in 2019 that abortion is a constitutional right. Arkansas Republicans are backing a former chairman of the state party against a Democratic incumbent justice in an effort to scrub remaining moderates from the already conservative court.Even more than abortion, the focus on state courts has reflected the politics of redistricting, particularly after a 2019 U.S. Supreme Court ruling that left oversight of partisan gerrymanders to state legislatures and courts. National Republicans say changing state supreme courts is the only way to stop Democrats from gaining power by successfully suing to overturn gerrymandered Republican political maps, a strategy they mockingly call “sue till it’s blue.”“If Republicans and conservatives want to control the redistricting process, then winning control of state legislatures is not enough. You also need to control the supreme courts,” said Andrew Romeo, a spokesman for the Republican State Leadership Committee.Kelly Burton, president of the National Democratic Redistricting Committee, which has backed many of those suits, said the battle was more about stopping a creeping autocracy than about changing political boundaries.“It’s about voting rights cases,” she said. “It’s about fights over access to abortion. And fundamentally, we’re trying to protect these courts as neutral arbiters, while Republicans want to make them less independent and more partisan.”Some justices say they feel caught in the middle as partisan pressures surge.Maureen O’Connor, a Republican who is chief justice of the Ohio Supreme Court, was threatened with impeachment by some in her party this spring after she voted with Democratic justices to strike down political maps gerrymandered by Republicans.To some people, she said, her vote on redistricting “shows integrity and independence and respect for the rule of law and the Constitution. To others, I am a traitor.”Chief Justice Nathan Hecht of the Texas Supreme Court has campaigned for years to scrap the state’s system of partisan elections for judicial positions.Robert Daemmrich Photography Inc/Corbis via Getty ImagesNathan Hecht, the chief justice of the all-Republican Texas Supreme Court, has campaigned for years to scrap the state’s system of partisan elections for judicial positions. “Texas has one of the stupidest systems in the world,” he said, and he worries that growing partisanship will make it even worse.Still, he said he thought there was a good chance that as divisive issues like abortion “devolve down to the states, the states will find ways to reach a middle ground that federal lawmakers have not been able to find.” But he added, “I’m not going to bet on that.”On Friday, the Texas court lifted a lower-court freeze on a 1925 law that bans abortions and holds out the prospect of imprisonment for those who provide them. A full hearing on the law will be held later.Sheelagh McNeill More

    • 163 Shares159 Views

      in Elections

      Pennsylvania Court Orders Undated Ballots to Be Counted, Siding With McCormick For Now

      by

      David McCormick, who was trailing Dr. Mehmet Oz by fewer than 1,000 votes, had sued to have ballots without handwritten dates on their return envelopes counted.Update: David McCormick conceded the exceedingly close race for the Republican nomination for Senate in Pennsylvania on Friday to Dr. Mehmet Oz. Read the news story.A Pennsylvania court ordered election officials on Thursday to count undated mail-in ballots for now in a nationally watched Republican Senate primary, granting a temporary injunction to David McCormick as he trailed Dr. Mehmet Oz amid a statewide recount.Fewer than 1,000 votes separate Mr. McCormick, a former hedge fund executive, from Dr. Oz, the celebrity physician backed by former President Donald J. Trump, in a race that could ultimately determine control of the divided Senate.The Commonwealth Court of Pennsylvania concluded that a May 23 lawsuit by Mr. McCormick had raised sufficient claims that a state law requiring voters to hand-write the date on return envelopes for mail-in ballots could lead to their disenfranchisement.Republicans have fought to enforce the rule, siding with Dr. Oz in the lawsuit.In the 42-page opinion, Renée Cohn Jubelirer, the court’s president judge, directed county election boards to report two sets of tallies to the acting secretary of the commonwealth, one that includes the undated ballots and one that does not. That way, when a final decision is made on whether to accept the ballots, the judge wrote, the vote count will be readily available.In the opinion, Judge Cohn Jubelirer said there was no question that the contested ballots had been returned by the May 17 deadline.“The court notes that no party has asserted, or even hinted, that the issue before the court involves allegations of fraud,” she wrote. “The parties have agreed that this election was free and fair.”A campaign spokeswoman for Mr. McCormick lauded the court order in a statement on Friday.“We are pleased the court agrees on ensuring valid Republican votes that were signed and returned on time, as shown by their time-stamp, are counted so the party can get behind a strong nominee in the fall,” the campaign spokeswoman, Jess Szymanski, said.Casey Contres, the campaign manager for Dr. Oz, declined to comment about the decision on Friday.Judge Cohn Jubelirer wrote that the court’s guidance should be uniform, noting that some counties had decided to accept the undated ballots and others had not.“Without court action, there exists the very real possibility that voters within this commonwealth will not be treated equally depending on the county in which they vote,” she wrote. “The court begins with the overarching principle that the Election Code should be liberally construed so as not to deprive electors of their right to elect a candidate of their choice.”The treatment of undated mail-in ballots is at the heart of another legal dispute in Pennsylvania. That one is before the U.S. Supreme Court, which on Tuesday paused the counting of those ballots in a judicial race in Lehigh County, Pa., a case that could reverberate in the G.O.P. Senate primary.Understand the Battle Over U.S. Voting RightsCard 1 of 6Why are voting rights an issue now? More

    • 100 Shares159 Views

      in Elections

      How Conflicts of Interest Are Hurting the Climate

      by

      Bill McKibben, the environmental activist, explains.From “The Daily” newsletter: One big idea on the news, from the team that brings you “The Daily” podcast. You can sign up for the newsletter here.Conflicts of interest are, by their nature, often obscured. A financial tie here, a family connection there, concealed by the division of public and private life. But what happens when those conflicting interests inform national — and international — policy?In the executive branch, the Trump presidency was dominated by this question. In the judicial branch, Supreme Court Justice Clarence Thomas is under pressure to recuse himself from cases regarding the 2020 election and its aftermath after The Times revealed that Virginia Thomas, his wife, was involved in efforts to overturn the vote. And in the legislative branch, Senator Joe Manchin, Democrat of West Virginia, is facing increasing scrutiny of his financial ties to the coal industry.The influence of money and corporations in the federal government is a “growing problem,” said Aaron D. Hill, associate professor of management at the University of Florida. Nearly one in eight stock trades by members of Congress intersects with legislation, and research shows that members of the House and Senate generate “abnormally higher returns” on their investments. Still, Congress members are subject to less stringent (or, at times, unenforced) oversight on conflicts of interests than those in other branches of government.But what is the impact of this lack of oversight? As you heard on Tuesday’s show, at every step of his political career, Manchin helped a West Virginia power plant that is the sole customer of his private coal business. Along the way, he blocked ambitious climate action.So we reached out to Bill McKibben, environmental activist, professor and author, to ask him about the rippling effects of Manchin’s actions on the climate movement. His responses have been lightly edited.You recently wrote: “The climate movement has come very close — one senator close — to beating the political power of Big Oil. But that’s not quite close enough.” How have Manchin’s actions affected the broader climate movement?For Biden and his climate efforts, Manchin’s opposition seems to be excruciating. The Democrats can’t do anything to offend him for fear of forfeiting his vote. So they’ve largely given up executive authority on climate, but he never quite delivers the vote. Now he seems to be saying that if he gives some money for renewables, it has to come with money for fossil fuel as well. I’d say Big Oil has never made an investment with a higher rate of return.On climate, at least so far, we might have been better off without control of the Senate, because then at least we could have gotten what executive action could accomplish.In the case of Manchin, congressional conflict-of-interest loopholes have consequences well beyond American borders. What equity concerns does this illuminate?Ginni Thomas and the 2020 Presidential ElectionThe conservative activist and wife of Supreme Court Justice Clarence Thomas has come under scrutiny for her involvement in efforts to keep Donald J. Trump in power.A Long Crusade: The Thomases battled for years for a more conservative America. This is how far Ginni Thomas went after the 2020 election.Her Texts: Weeks before Jan. 6, Ms. Thomas sent a flurry of texts imploring Mr. Trump’s chief of staff to take steps to overturn the vote.Embracing Conspiracies: An examination of Ms. Thomas’s texts shows how firmly she was embedded in the fringe of right-wing politics.Will Justice Thomas Recuse?: Legal experts say Ms. Thomas’s texts are enough to require his recusal from election cases, but Chief Justice John Roberts cannot force it.We’re not just gutting America’s energy future to please one corrupt coal baron; he’s managed to upend global climate policy, too. The plan for Glasgow, I think, was for Biden to arrive with Build Back Better in his hip pocket, slam it down on the table and tell the Chinese and Indian delegations to match it. Instead he arrived with nothing, gave a limp speech — I’m not certain he went to sleep afterward, but the conference did.In 2020, fossil fuel pollution killed about three times as many people as Covid-19 did. This statistic can feel overwhelming. As an activist, what are the most effective strategies you see for generating momentum and a sense of urgency in addressing the climate crisis?The sad thing is, we’ve generated a ton of it. It was the biggest voting issue for Democratic primary voters, and the issue where polling showed Trump’s position was furthest off from the mainstream. But the desire of people doesn’t reliably translate into political action in our system anymore. There’s never been a purer case of vested interest thwarting necessary action. As the Exxon lobbyist told a hidden camera last summer, Manchin was the “kingmaker.” Or, alternately, the man who melts the ice and raises the sea.What is making you feel optimistic about climate action lately?Well, it’s the perfect moment for action, and some places we’re starting to see it. Vladimir Putin has reminded us that the daily carnage of pollution and the existential threat of climate damage are joined by the fact that fossil fuel underwrites despotism more often than not. It could be a pivot point, and, in the case of the E.U., may turn out to be. But so far here, Biden and his team haven’t really messaged it that way. They’ve been way more focused on carrying water for Big Oil.But I can tell you that more and more people are getting it, and not just the young people who have been in the lead of the climate fight. Our crew of over-60s at Third Act [a climate action group focused on mobilizing “experienced Americans”] are joining in large numbers this pledge to take on the banks that back the fossil fuel industry. After the record temperatures in the Antarctic combined with the missile strikes on Mariupol, people have had enough.From the Daily team: Remember cheap oil?In April 2020, we explored why the cost of a barrel of oil dropped into the negatives.Bing Guan/BloombergThis week, we sat down with Michael Simon Johnson, a senior producer, for our series in which we ask Daily producers and editors to tell us about their favorite episodes that they’ve worked on.Michael’s pick is “A Glut of Oil,” from the spring of 2020. It’s an episode that looks back at half a century of American foreign and energy policy to explain how, at the time, the price of a barrel of oil dropped into the negatives. And it’s one that has particular resonance today as parts of the world grapple with how to reduce reliance on Russian oil amid the war in Ukraine.What was “A Glut of Oil” about?It was an episode we did in April 2020, when oil prices dropped into the negatives. It required some context, so a huge portion of the episode ticked through history, starting with the Arab-Israeli War in the ’70s, the U.S. stepping in to provide weapons — not unlike the way we are with Ukraine right now — and Arab countries retaliating by cutting off our oil supply, causing an energy crisis. It felt important to start there because that is where it changes our foreign policy. The whole point of energy independence was so that we can exercise control over our foreign policy and not have other countries dictate who we help and why — or where we invade.We spent 50 years trying to solve that problem and we succeeded. Then the pandemic happened and we literally had the opposite problem — what happens when we have too much oil?Why is it one of your favorite episodes that you’ve worked on?What it did for me was take all of these aspects of American history that I don’t tend to think of as related and it drew a line between them; they’re actually all part of a single continuum. I re-evaluated modern American history through the lens of oil, and I saw so many more connections because of that than I would have seen otherwise. Going back in history allowed us to go on this amazing journey through history and through archival tape.How important is it for there to be historical context in climate episodes?Historical context is one of the first tools we turn to when we’re making an episode in general, but it’s not specific to climate episodes. We are generally trying to arm listeners with the tools they need to understand and to have more context for what is happening. We want people to understand what is happening as some part of a continuum.On The Daily this weekMonday: The story of Iryna Baramidze, one of the millions of Ukrainians who have fled their country amid the war.Tuesday: Inside the investigation into Manchin’s conflicts of interest.Wednesday: How Justice Thomas and his wife, Ginni, came to be at the heart of the conservative movement.Thursday: Why this year’s midterms could have the fairest congressional map in a generation.Friday: What is happening inside the besieged Ukrainian port city of Mariupol?That’s it for the Daily newsletter. See you next week.Have thoughts about the show? Tell us what you think at thedaily@nytimes.com.Were you forwarded this newsletter? Subscribe here to get it delivered to your inbox.Love podcasts? Join The New York Times Podcast Club on Facebook. More

    • 100 Shares149 Views

      in Elections

      The Supreme Court Fails Black Voters in Alabama

      by

      You know the Rubicon has been crossed when the Supreme Court issues a conservative voting rights order so at odds with settled precedent and without any sense of the moment that Chief Justice John Roberts feels constrained to dissent.This is the same John Roberts who in 1982, as a young lawyer in the administration of President Ronald Reagan, fought a crucial amendment to the Voting Rights Act of 1965; whose majority opinion in 2013 gutted one-half of the Voting Rights Act and who joined an ahistoric opinion last summer that took aim at the other half; and who famously complained in dissent from a 2006 decision in favor of Latino voters in South Texas that “it is a sordid business, this divvying us up by race.”Yes, that Chief Justice Roberts. What the 5-to-4 majority did was that far out of line.The unsigned order that drew the chief justice’s dissent Monday night blocked the decision by a special three-judge Federal District Court ordering the Alabama Legislature to draw a second congressional district in which Black residents constitute a majority. Alabama’s population is 27 percent Black. The state has seven congressional districts. The lower court held that by packing some Black voters into one district and spreading others out over three other districts, the state diluted the Black vote in violation of the Voting Rights Act.The Supreme Court will hear Alabama’s appeal of the district court order in its next term, so the stay it granted will mean that the 2022 elections will take place with district lines that the lower court unanimously, with two of the three judges appointed by President Donald Trump, found to be illegal.Chief Justice Roberts objected that the ordinary standards under which the Supreme Court grants a stay of a lower court opinion had not been met. “The district court properly applied existing law in an extensive opinion with no apparent errors for our correction,” he wrote. Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, also dissented in a more extensive opinion that accused the majority of using the court’s emergency “shadow docket” not only to intervene improperly on behalf of the state but also to change voting rights law in the process.This is no mere squabble over procedure. What happened Monday night was a raw power play by a runaway majority that seems to recognize no stopping point. It bears emphasizing that the majority’s agenda of cutting back on the scope of the Voting Rights Act is Chief Justice Roberts’s agenda too. He made that abundantly clear in the past and suggested it in a kind of code on Monday with his bland observation that the court’s Voting Rights Act precedents “have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.” But in his view, that was an argument to be conducted in the next Supreme Court term while permitting the district court’s decision to take effect now.While the majority as a whole said nothing, Justice Brett Kavanaugh took it upon himself to offer a kind of defense. Only Justice Samuel Alito joined him. Perhaps the others — Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett — chose not to sign onto his rude reference to Justice Kagan’s “catchy but worn-out rhetoric about the ‘shadow docket.’ ” Or perhaps his “To reiterate: The court’s stay order is not a decision on the merits” rang a little hollow when, as Justice Kagan pointed out, “the district court here did everything right under the law existing today” and “staying its decision forces Black Alabamians to suffer what under that law is clear vote dilution.”In other words, when it comes to the 2022 elections, for Black voters in Alabama the Supreme Court’s procedural intervention is the equivalent of a ruling on the merits.Or maybe the others couldn’t indulge in the hypocrisy of Justice Kavanaugh’s description of the standards for granting a stay. The party asking for a stay, he wrote, “ordinarily must show (i) a reasonable probability that this court would eventually grant review and a fair prospect that the court would reverse, and (ii) that the applicant would likely suffer irreparable harm absent the stay.”But wait a minute. Weren’t those conditions clearly met back in September when abortion providers in Texas came to the court seeking a stay of the Texas vigilante law, S.B. 8, which was about to go into effect? That law, outlawing abortion after six weeks of pregnancy and authorizing anyone anywhere in the country to sue a Texas abortion provider for damages, was flagrantly unconstitutional, and the law was about to destroy the state’s abortion infrastructure. But did Justice Kavanaugh or any of the others in Monday’s majority vote to grant the requested stay? They did not. Chief Justice Roberts did.It’s impossible not to conclude that what we see at work is not some neutral principle guiding the Supreme Court’s intervention but simply whether a majority likes or doesn’t like what a lower court has done. In his opinion, Justice Kavanaugh sought to avoid that conclusion by arguing that when it comes to election cases, the Supreme Court will more readily grant a stay to counteract “late judicial tinkering with election laws.” But there was no late “tinkering” here. The legislature approved the disputed plan in November, after six days of consideration, and the governor signed it. The district court conducted a seven-day trial in early January and on Jan. 24 issued its 225-page opinion. The election is months away — plenty of time for the legislature to comply with the decision.Disturbing as this development is, it is even more alarming in context. Last July, in a case from Arizona, the court took a very narrow view of the Voting Rights Act as a weapon against vote denial measures, policies that have a discriminatory effect on nonwhite voters’ access to the polls. That case, Brnovich v. Democratic National Committee, was brought under the act’s Section 2, which prohibits voting procedures that give members of racial minorities “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Justice Alito’s opinion for a 6-to-3 majority set a high bar for showing that any disputed measure is more than just an ordinary burden that comes with turning out to vote.It was an unusual case, in that Section 2 has much more typically been used as it was in Alabama, to challenge district lines as causing vote dilution. Obviously, at the heart of any Section 2 case is the question of how to evaluate the role of race. In its request for a stay, Alabama characterized the district court of having improperly “prioritized” race, as opposed to other districting factors, in ordering a second majority Black district. In response, the American Civil Liberties Union and the NAACP Legal Defense & Educational Fund, representing the Alabama plaintiffs, called this a mischaracterization of what the district court had actually done when it took account of the compactness and cohesion of the Black community and the history of white Alabama voters refusing to support Black candidates.Stripped to its core, Alabama is essentially arguing that a law enacted to protect the interests of Black citizens bars courts from considering race in evaluating a redistricting plan. Justice Kagan’s dissenting opinion contained a warning that granting the stay amounted to a tacit acceptance of that startling proposition. She said the stay reflected “a hastily made and wholly unexplained prejudgment” that the court was “ready to change the law.”The battle over what Section 2 means has been building for years, largely under the radar, and now it is front and center. The current Supreme Court term is all about abortion and guns. The next one will be all about race. Along with the Alabama case, Merrill v. Milligan, the Harvard and University of North Carolina admissions cases are also on the docket — to be heard by a Supreme Court that, presumably, for the first time in history, will have two Black justices, and all in the shadow of the midterm elections. The fire next time.Linda Greenhouse, the winner of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008. She is the author of “Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 100 Shares99 Views

      in Elections

      North Carolina Court Rejects Republican Gerrymander of Maps

      by

      The State Supreme Court said maps of the state’s 14 House districts and state legislative districts violated guarantees of free elections, speech and assembly.The North Carolina Supreme Court on Friday upended Republican efforts to lock in political dominance in the state, saying that congressional and state legislative maps were partisan gerrymanders that violated the State Constitution.The ruling requires the Republican-controlled legislature not only to submit new maps to the court, but to offer a range of statistical analyses to show “a significant likelihood that the districting plan will give the voters of all political parties substantially equal opportunity to translate votes into seats” in elections.The requirement rebuffed the argument against redrawing the maps that the legislature offered in oral arguments before the court this week: that the court had no right to say whether and when political maps cross the line from acceptable partisanship into unfairness.The justices’ 4-3 decision, split along party lines, not only sets a precedent for judging the legality of future maps in the state, but could play an important role in the struggle for control of the House of Representatives in elections this November. The Republican-drawn maps had effectively allotted the party control of at least 10 of the 14 House seats the state will have in the next Congress, even though voters statewide are roughly equally divided between the two parties.It was a challenge to earlier partisan maps in North Carolina and Maryland that led the U.S. Supreme Court to end decades of federal debate over the constitutionality of partisan gerrymanders, ruling in 2019 that they were political issues beyond its jurisdiction. The justices said then that Congress and state courts should rule on the question, and lawyers for the plaintiffs in the case said on Friday that the new ruling carried out that mandate to the letter.Understand Redistricting and GerrymanderingRedistricting, Explained: Answers to your most pressing questions about the process that is reshaping American politics.Understand Gerrymandering: Can you gerrymander your party to power? Try to draw your own districts in this imaginary state.New York: Democrats’ aggressive reconfiguration of the state’s congressional map is one of the most consequential in the nation.Texas: Republicans want to make Texas even redder. Here are four ways their proposed maps further gerrymandered the state’s House districts.“The U.S. Supreme Court said it’s up to state courts to rein in partisan gerrymandering, and that’s exactly what the North Carolina Supreme Court has done,” said Elisabeth Theodore of the law firm Arnold & Porter. “The court’s direction is clear: The General Assembly must stop cheating and draw fair new maps so that North Carolinians can have a fair say in who governs them.”But one longtime scholar of the state’s politics, Michael Bitzer of Catawba College in Salisbury, N.C., said the Republican legislature could take the case yet again to the U.S. Supreme Court.Citing their brief in the state case, he said the legislators might argue that the state court’s decision violates the provision in the U.S. Constitution that gives Congress the ultimate right to decide the “times, places and manner” of elections.The decision comes as both federal and state courts have lately proved a bulwark against some excessive gerrymanders. A state court in Ohio rejected maps drawn by Republicans in the state legislature last month as unconstitutional partisan gerrymanders, and a federal court in Alabama ruled last month that Republicans had to redraw their congressional map to create a second district that gave minorities a fair shot at electing their preferred candidate.The legal decisions have been a boon for Democrats, who started the latest redistricting cycle at a significant disadvantage. Republicans controlled the map-drawing process in 187 congressional districts, while Democrats were able to draw 75 districts.The court decisions in North Carolina, Ohio and Alabama all forced Republicans back to the drawing table and are likely to result in either more competitive seats or opportunities for Democrats in the midterm elections.The 2019 Supreme Court decision on partisan gerrymandering has led opponents of partisan maps to take their arguments from federal courts to the state benches, where constitutions often give more legal protections to voters. The Pennsylvania Supreme Court gave them an important victory in 2018, striking down Republican-drawn maps that the justices said violated the State Constitution.In the North Carolina case, a lower court said last month that even though the state and congressional maps were extreme partisan gerrymanders by any measure, the State Constitution nevertheless did not outlaw them.How U.S. Redistricting WorksCard 1 of 8What is redistricting? More

    • 125 Shares179 Views

      in Elections

      In North Carolina, a Pitched Battle Over Gerrymanders and Justices

      by

      A fight over who is fit to hear a redistricting case highlights what experts say is the growing influence of ideology and money over state supreme courts nationwide.It is the state that put the hyper in partisan politics, setting the blunt-force standard for battles over voting rights and gerrymanders that are now fracturing states nationwide.So it is unsurprising that North Carolina’s latest battle, over new political maps that decisively favor Republicans, is unfolding in what has become an increasingly contested and influential battlefield in American governance: the State Supreme Court.The court meets on Wednesday to consider whether a map drawn by the Republican-dominated legislature that gives as many as 11 of 14 seats in the next Congress to Republicans — in a state almost evenly divided politically — violates the State Constitution. Similarly lopsided state legislative maps are also being contested.But for weeks, both sides of a lawsuit have been waging an extraordinary battle over whether three of the court’s seven justices should even hear the case. Atop that, an influential former chairman of the state Republican Party has suggested that the legislature could impeach some Democratic justices, a move that could remove them from the bench until their fates were decided.The central issue — whether familial, political or personal relationships have rendered the justices unfit to decide the case — is hardly frivolous. But the subtext is hard to ignore: The Supreme Court has a one-justice Democratic majority that could well invalidate the Republican-drawn maps. Knocking justices off the case could change that calculus.“I think we’re at the brass-knuckles level of political fighting in this state,” said Michael Bitzer, a scholar of North Carolina politics at Catawba College in Salisbury, N.C. “It is a microcosm of the partisan polarization that I think we’re all experiencing. It’s just that here, it’s on steroids.”It also is a reminder that for all the attention on the U.S. Supreme Court this week after Justice Stephen G. Breyer announced his retirement, it is in Supreme Courts in states like North Carolina, Michigan, Wisconsin, Pennsylvania and Ohio that many of the most explosive questions about the condition of American democracy are playing out.State Supreme Courts have become especially critical forums since the U.S. Supreme Court said in 2019 that partisan gerrymanders were political matters outside its reach.In North Carolina, the justices seem likely to reject calls for their recusal. The court said last month that individual justices would evaluate charges against themselves unless those justices asked the full court to rule.But the high stakes reflect what may happen elsewhere — and in some cases, already has. In Ohio, Justice Pat DeWine of the State Supreme Court rebuffed calls last fall to recuse himself from redistricting lawsuits in which his father — Gov. Mike DeWine, a Republican — was a defendant. Days later, the state Republican Party urged a Democratic justice, Jennifer Brenner, to recuse herself because she had made redistricting an issue when running for office.Nationwide, 38 of 50 states elect justices for their highest court rather than appoint them. For decades, those races got scant attention. But a growing partisan split is turning what once were sleepy races for judicial sinecures into frontline battles for ideological dominance of courts with enormous sway over peoples’ lives.The U.S. Supreme Court issued 68 opinions in its last term. State Supreme Courts decide more than 10,000 cases every year. Increasingly, businesses and advocacy groups turn to them for rulings on crucial issues — gerrymandering is one, abortion another — where federal courts have been hostile or unavailing.Campaign spending underscores the trend. A new report from the Brennan Center for Justice, at New York University, concluded that a record $97 million was spent on 76 State Supreme Court races in the most recent election cycle. Well over four in 10 dollars came from political parties and interest groups, including the conservative nonprofit Judicial Crisis Network, which has financed national campaigns backing recent Republican nominees to the U.S. Supreme Court.Most interest group spending has involved so-called dark money, in which donors’ identities are hidden. Conservative groups spent $18.9 million in the 2019-20 cycle, the report stated, but liberal groups, which spent $14.9 million, are fast catching up.The money has brought results. In 2019, a $1.3 million barrage of last-minute advertising by the Republican State Leadership Committee was credited with giving the G.O.P.-backed candidate for the Wisconsin Supreme Court, Brian Hagedorn, a 6,000-vote victory out of 1.2 million cast.Liberal groups have not matched that success. But they have outspent conservatives in recent races in Michigan and North Carolina.“Two things are happening,” said Douglas Keith, a co-author of the Brennan Center report. “There are in-state financial interests that know these courts are really important for their bottom lines, so they’re putting money toward defeating or supporting justices to that end. And there are also national partisan infrastructures that know how important these courts are to any number of high-profile issues, and probably to issues around democracy and elections.”How important is easy to overlook. It is well known, for example, that President Donald J. Trump’s legal efforts to overturn the results of the 2020 election were rejected by every court where he filed suit, save one minor ruling. But when Russell Wheeler, a Brookings Institution scholar and president of the nonpartisan Governance Institute, analyzed individual judges’ votes, he found a different pattern: 27 of the 123 state court judges who heard the cases actually supported Mr. Trump’s arguments.Twenty-one of the 27 held elected posts on State Supreme Courts in Michigan, Pennsylvania and Wisconsin. Both Michigan and Wisconsin are among the top five states in spending for Supreme Court races, the Brennan Center study found.Mr. Keith called that a red flag, signaling the rising influence of money in determining which judges define the rules for political behavior.North Carolina is another top-five state. Of $10.5 million spent on the state’s Supreme Court races in 2020, $6.2 million was devoted to a single race, for chief justice. Both figures are state records.The court has become increasingly partisan, largely at the Republican legislature’s behest. Legislators ended public financing for Supreme Court races in 2013, and made elections partisan contests in 2016.Anita Earls is one of three justices accused of conflict of interest in the redistricting case.Julia Wall/The News & Observer, via Associated PressBut Dallas Woodhouse, a former state Republican Party chair and columnist for the conservative Carolina Journal, said blame for the current tempest lay not with Republicans, but their critics. They kicked off the recusal battle last summer, he said, when the state N.A.A.C.P. sought to force two Republican justices to withdraw from a case challenging two referendums for constitutional amendments.Mr. Woodhouse crusaded against the demands in his columns, and the Supreme Court left the decision up to the justices, both of whom said this month that they would hear the case.How U.S. Redistricting WorksCard 1 of 8What is redistricting? More

    • 113 Shares189 Views

      in Elections

      Pennsylvania Court Says State’s Mail Voting Law Is Unconstitutional

      by

      The decision deals a temporary blow to voting access in a critical battleground state. Democrats pledged an appeal.A state court in Pennsylvania on Friday struck down the state’s landmark election law as unconstitutional, dealing a temporary blow to voting access in one of the nation’s most critical battleground states. The law, known as Act 77, was passed by the Republican-controlled legislature and signed by Gov. Tom Wolf, a Democrat, in 2019. It permitted no-excuse absentee voting, created a permanent mail-in voter list, reduced the voter registration deadline from 30 days to 15 and provided for $90 million in election infrastructure upgrades. It also eliminated straight ticket voting.The opinion from Judge Mary Hannah Leavitt, a Republican, sided with 14 Republican lawmakers who sued last year, arguing that the law was unconstitutional and that the legislature could not make alterations to voting laws without amending the constitution. The bipartisan law was praised by both sides when it was passed, but it became a target of conservatives during the 2020 election, as former President Donald J. Trump unspooled falsehoods and lies about mail-in voting. Eleven of the 14 lawmakers who sued to kill the law had voted for it in 2019.Democrats said they were not surprised that the Commonwealth Court, which they said leans Republican, ruled against the law, and they pledged an appeal to the state Supreme Court, which has sided with the state on voting issues both during and following the 2020 election. “This is just a continuation of attacking and undermining our electoral process,” said State Senator Jay Costa, the Democratic minority leader. He added that an appeal would be filed by the end of the day. “Act 77 will ultimately be deemed to be constitutional.” More