How Scalia's Absence Impacts Democracy Rulings

AP Photo/Jim Mone, File

In this October 20, 2015 file photo, Supreme Court Justice Antonin Scalia speaks at the University of Minnesota in Minneapolis. Senate Minority Leader Harry Reid of Nevada, on Thursday blasted Scalia for uttering what he called "racist ideas" from the bench of the nation’s highest court. 

The death of Justice Antonin Scalia has both short- and long-term implications for a host of judicial disputes over democracy and election law, in areas from redistricting to voting rights, corruption statutes and campaign-finance rules.

Over the long term, a reconstituted Supreme Court could make it easier for reform advocates to reverse Citizens United v. Federal Election Commission, the 2010 ruling that for many voters has become a symbol of campaign deregulation run amok. While Scalia staunchly defended political disclosure, he was part of a conservative majority under Chief Justice John Roberts that tossed out one election regulation after another, and that drastically narrowed the legal definition of corruption.

“There are a lot of areas of jurisprudence that are now going to be subject to a potential course correction, depending on who ultimately takes Scalia’s position,” says Robert Weissman, president of Public Citizen. “Money and politics issues are definitely at the top of that list.”

In the short term, Scalia’s death could dramatically change the outlook for a string of cases involving redistricting and racial gerrymandering that are now pending before the high court. As in other pending cases involving such issues as labor unions and affirmative action, Scalia’s absence could lead the high court to stalemate 4-4 along partisan lines. That would leave in place lower court rulings that in many cases favor voting-rights advocates.

The most important of these is Evenwel v. Abbott, a constitutional challenge to legislative district lines drawn in Texas. Conservatives there argue that the district lines should be drawn to include only eligible or registered voters, not the entire population. Voting-rights advocates argue that counting only eligible voters, which would eliminate many children and non-citizens, would threaten long-cherished constitutional principle of “one person, one vote.”

A Supreme Court ruling for the plaintiffs in Evenwel would disenfranchise large blocs of voters, including Latinos, young people, and those living in urban areas, say voting-rights advocates at the Brennan Center for Justice at New York University’s School of Law. It would necessitate a massive redrawing of district lines around the country, a recent Brennan Center analysis shows.

“We would redraw districts in every state, and there would be an enormous transfer of political power,” says Wendy Weiser, the Brennan Center’s democracy program director. A lower court upheld the “one person, one vote” principle and the state’s existing district lines, so a 4-4 high court ruling—which many court watchers now expect in the Evenwel case—would allow that finding to stand.

A high court deadlock could also alter the outlook for pending cases involving racial gerrymandering, including a challenge to Virginia’s Republican-drawn district map. At issue is whether Republicans illegally packed Virginia’s 3rd Congressional District with black voters. A lower court invalidated the district map on the grounds that it violated the Voting Rights Act. The Virginia challenge has been closely watched as a bellwether of minority voting rights.

Another pending case that Scalia’s absence may impact is former Virginia Governor Robert McDonnell’s appeal of his conviction on 11 counts related to corruption. A lower court has affirmed McDonnell’s conviction, which came with a two-year jail sentence. In January, the Supreme Court agreed to hear his case.

McDonnell defends his actions on the grounds that they involved access and influence, not corruption. It’s a distinction that the high court spelled out in its 2014 McCutcheon v. FEC ruling, which concluded that the only type of corruption that may be constitutionally regulated is quid pro quo corruption. If the court agrees with McDonnell that garden-variety influence peddling doesn’t violate the law, that narrow definition of corruption could extend beyond the campaign-finance laws to include the bribery statutes. But 4-4 split in the McDonnell case, which many now anticipate, would leave existing rules in place—and send McDonnell to jail.

No one can predict how the high court will look in six months or a year, of course. President Barack Obama has pledged to nominate a successor to Scalia, but Senate Republicans appear bent on blocking confirmation until after the November election. Other justices may retire, and the court’s composition hangs both on who wins the White House and on which party controls the Senate next year.

But whoever succeeds Scalia, the court faces growing pressure for a course correction, particularly in the arena of political money. One path that could bring the Citizens United ruling back before the high court would be for a state to enact legislation that directly challenges that ruling. In that event, changes in the court’s composition could have sweeping impacts.

“It’s a hugely consequential time for the law of democracy, and for the future of our democracy,” says Weiser. “These issues are definitely in play, both in our politics and in the courts. And it’s an important time to get it right.”

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