[EL] Supreme Court, With Justices Thomas and Alito Dissenting, Refuses Michigan Voting Stay; Three Ideological Camps at SCOTUS

[Rick Hasen]

Supreme Court, With Justices Thomas and Alito Dissenting, Refuses Michigan Voting Stay; Three Ideological Camps at SCOTUS<http://electionlawblog.org/?p=86371>
Posted on September 9, 2016 7:19 am<http://electionlawblog.org/?p=86371> by Rick Hasen<http://electionlawblog.org/?author=3>

After an unexplained delay<http://electionlawblog.org/?p=86369> in ruling last night, the Supreme Court without comment<https://twitter.com/chrisgeidner/status/774244060865368065> has turned down Michigan’s request to overturn a stay blocking the state’s elimination of straight ticket voting. Justices Thomas and Alito would have granted the stay.

This to me reflects less a ruling on the merits than the fundamental weakness<http://electionlawblog.org/?p=86158> in how Michigan has litigated its case so far. It could well win after a full trial and a chance to develop its evidence (that is, it may not be that the elimination of straight ticket voting actually violates Section 2 of the Voting Rights Act).

As is typical with the Court’s shadow docket<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545130> (especially in election cases<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>), the Court gave no explanation for its ruling, and Justices Thomas and Alito did not explain the reason for their dissent. So why the delay and no decision last night? It could well have been that at least four Justices had indicated they would not grant the stay, but more Justices were waiting to weigh in. Since they were not granting the stay anyway, waiting a little longer did not change the outcome.

More interesting is the noted dissent of Justices Alito and Thomas. That these two very conservative Justices would side with Michigan, even given the weak procedural case, is not surprising<http://electionlawblog.org/?p=86369>. But the fact that their dissents are publicly noted is a bit surprising. The Justices do not always publicly reveal their votes in ruling on these types of motions. My sense is that Justices Alito and Thomas have become more assertive in expressing their views since the February death of Justice Scalia.  On the left, we are more likely to see such noted dissents coming from Justices Sotomayor and Ginsburg.

So it is fair to view our current 8-Justice Supreme Court as falling into three camps. Two on the left (SS and RBG), two on the right (SA and CT), and four Justices in the middle: Breyer, Kagan, Kennedy, and Roberts, whose votes could be up for grabs in a compelling enough case.

And this is the answer to the question of how do you write a brief<http://electionlawblog.org/?p=86119> to get 5 votes on an evenly divided ideological Supreme Court: you aim for the four in the middle and expect one of the tails to come along.

Let’s watch what happens in the upcoming Ohio case. I expect it will lose, perhaps on a 6-2 vote,<http://electionlawblog.org/?p=86121>with Justices Sotomayor and Ginsburg dissenting.
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Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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