"The Supreme Court's Shrinking Election Law Docket, 2001-2010: A Legacy of Bush v. Gore or Fear of the Roberts Court?"

I have posted this short draft on SSRN. Here is the abstract:

A funny thing happened after the Supreme Court decided Bush v. Gore, the controversial December 2000 case ending the presidential election litigation between Al Gore and George W. Bush: over the next decade, from 2001 to 2010, the number of election law cases decided by the Supreme Court with a written opinion fell to 30 cases, the lowest level since the 1950s. The drop occurred at the Supreme Court even as the amount of election litigation in the lower courts more than doubled compared to the period just before Bush v. Gore and even as the scholarly field of election law exploded.

This brief Article describes the drop in Supreme Court election law cases in the first decade of the twenty-first century, and offers at least a partial explanation as to the reasons for the drop. Although the general amount of election law litigation has risen dramatically since 2000, the number of cases in which parties sought Supreme Court review declined by more than 36 percent from the 1991-2000 decade compared to the 2001-2010 decade. The decline appears particularly steep after Justice O'Connor left the Court, replaced by Justice Alito.

Factoring that decline into account, the data show that the Court issued written opinions in nearly the same percentage of election law cases each decade in which parties sought Supreme Court review -- 11.9% of cases in the 1991-2000 decade, and 10.5% of cases in 2001-2010. While I cannot exclude the possibility that the Court shied away from hearing some election law cases out of Bush v. Gore fatigue or as the result of random noise, the drop in the number of election law cases in which litigants sought Supreme Court review cases seems to explain a great deal of the decline.

This Article concludes by considering why the number of cases in which litigants sought Supreme Court review dropped so precipitously in 2001-2010 even as the total number of election law cases in the lower courts increased dramatically. One reason is that liberal litigants who had sought review especially in voting rights cases in the 1990-2000 period were less willing to do so in the 2001-2010 period, likely because they expected unfavorable results before the more conservative Roberts Court. The 2005-2010 period is especially important; the number of election law petitions in the Supreme Court dropped precipitously after Justice Alito joined the Court. The other reason is that many of the lower court cases making up the election law explosion were state cases involving state statutory interpretation issues, rarely raising federal constitutional or statutory claims within the Supreme Court's purview.

"Between the Lines: Partisanship on Center Stage in Redistricting Fights"

Roll Call reports.

"REGION: Legal primer set for redistricting panel"

News from San Diego.

"The conservatives' case for campaign finance reform"

Ezra Klein asks the question (though he doesn't even try for a serious answer, which is that many conservatives are deeply skeptical of government regulation generally, and especially of government regulation of political activity). I'd note, however, that Senator Rand Paul has proposed pretty radical campaign finance regulation and lobbying regulation, as I detail at the beginning of my lobbying paper.

"Are Republicans Trying to Disenfranchise Liberal Voters?"

Michael Warren has written this blog post for the Weekly Standard.

"U.Va. Law School Symposium to Examine Controversial Supreme Court Campaign Finance Ruling Citizens United"

I have posted this press release about a March 19 symposium hosted by the Journal of Law and Politics at the University of Virginia. The end of the press release lists the speakers and schedule for what looks like an excellent event.

"How Presumed Presidential Candidates Skirt Contribution Limits & the FEC Turns a Blind Eye: Legal Center Releases White Paper"

See this press release about this new report.

"Voting in Florida: From Bad to Worse"

Laughlin McDonald blogs.

von Spakovsky Wants Apology on Voter ID

See here.

How Independent is Koch Money Helping Senator Brown?

This is interesting.

"The Liberal Campaign Against SCOTUS Conservatives"

Politico offers this must-read report. I've been getting a lot of pushback for my criticism of Common Cause's attacks on these Justices, so I was especially happy to see the quote in this article from the Brennan Center's Michael Waldman: "And Michael Waldman, executive director of the left-leaning Brennan Center for Justice at New York University's School of Law, called the allegations that Thomas and Scalia were biased by their affiliation with the Koch retreat 'meritless. We see no basis for the accusations that the Justices' decisions are based on anything but the merits.'" He warned that 'people should think very hard before asking prosecutors to investigate judges just because they dislike the decisions they make.'"