This article deals with the electoral jurisdiction of the Supreme Court in Roberts Court. The Supreme Court’s opinions and motions have been searched for the term “election” from 2005 to date. All cases were investigated and all cases related to elections or voting procedures were retained in the data set. The cases have been broken down into different thematic areas, including voting rights and procedures, vote counting, campaign finance and primaries. In several cases, issues of the first amendment related to elections within the meaning of the Minnesota Voters Alliance against Mansky were also addressed but were not used as they dealt with marginal issues rather than voter turnout. The breakdown of the case types by frequency is as follows.
The judges’ votes were then coded as conservative or liberal in all cases. Conservative positions that have been postponed to state electoral law in voting cases often restrict the electorate according to certain requirements. In campaign funding cases, conservative positions were less of a limitation on financial contributions. Even in the court’s decisions on emergency requests related to the 2020 elections, there are numerous examples of the different positions.
Justice Brett Kavanaugh articulated conservative respect for constitutional law in his concurring position in Andino v Middleton.
However, one risk of perpetuating government decisions is that it can lead to inconsistent rules in all jurisdictions. In contradiction to Moore v. Circosta, Judge Neil Gorsuch highlighted various emergency results involving election deadlines in Wisconsin and North Carolina. Gorsuch complained that in both cases the court was not equally ready to uphold the constitutionality of state proceedings.
The more liberal judges of the court are generally pushing for decisions to expand the franchise, as evidenced by Judge Ruth Bader Ginsburg’s rejection of the Democratic National Committee on the Republican National Committee.
Similar concerns were raised by Justice Sonia Sotomayor during the COVID-19 pandemic in her dissent in Merrill to People First of Alabama over voter health.
Of course, these different judges’ views go back well before the 2020 presidential election. Some might say that the lines were clearly drawn in Shelby County’s 5-4 ruling against Holder, the most rigorous suffrage ruling in the last decade. This decision put down the formula of the Voting Rights Act that was used to determine which jurisdictions were required to obtain prior approval from the federal government before changing their voting procedures due to voting discrimination. The majority opinion was written by Chief Justice John Roberts and supported by Judges Clarence Thomas, Antonin Scalia, Anthony Kennedy and Samuel Alito. Ginsburg, along with Judges Stephen Breyer, Sonia Sotomayor, and Elena Kagan, disagreed. Many later franchise decisions were made by similar coalitions with predictable behavior on both sides of the debate.
The direction of the flood of electoral decisions by the court can be seen in the following graphic, in which the decisions coded since 2005 are differentiated according to ideological direction.
With a Conservative majority, the court was well positioned to go in that direction when Roberts took over the helm in 2005. Since then, the court’s decisions in electoral cases have been more than twice as often conservative as liberal. With the recent ratification of Justice Amy Coney Barrett and the new Conservative 6-3 majority in the court, judges should be even better able to maintain state voting restrictions that are restricting the entire electorate.
The judges’ voices in these cases reflect these deep entrenchments. The following graphic shows the votes of the individual judges according to whether they were coded as conservative or liberal. The graph on the left shows the absolute number of suffrage cases in which a judge has voted, while the graph on the right shows the corresponding percentages.
While the conservative judges in the court tended to vote predominantly in the conservative direction, there are some differences in these votes. Roberts is the conservative judiciary with the highest number of liberal votes. His percentage of liberal votes is almost exactly the same as Kennedy, who was often viewed as more moderate than Roberts until he retired in 2018. Alito, Thomas and Scalia voted conservatively in over 90% of the cases. Gorsuch is just behind and votes conservatively in 88.89% of the cases.
The more liberal judges also voted conservatively, at least in part. The judiciary with the highest proportion of liberal votes is Sotomayor with 80.56%. Sotomayor’s 19% of the vote in the conservative direction is more than double the rate at which the most conservative judges voted in the liberal direction. None of the other liberal judges passed the 80% liberal vote mark. Breyer has the highest proportion of conservative decisions by the liberal candidates still sitting in court. 65.22% of its decisions were classified as liberal, compared with 34.78% as conservative.
If we look at the frequency of judges in the majority, we also see that the conservative judges were more often in the majority in these cases.
The three judges in the majority in these cases were most often those with a more moderate conservative ideology – Kavanaugh, Kennedy, and Roberts. All three judges were in a majority in around 90% of these cases. The other Conservative judges were in the majority at least 70% of the time, which is far more common than the Liberal judges’ participation in the majority. In contrast, the majority of the two liberal judges were Kagan and Breyer, both in the low 60% range. Although the majority of all judges scored 50%, Judges John Paul Stevens and David Souter scored exactly 50%, while Sotomayor scored 55.56% of the majorities and Ginsburg 56.01%.
Majority judges in these cases often had alternative views on the case law to the majority opinion author, resulting in a high number of matches. The match numbers including votes and authorship are listed below.
The more conservative judges make up the top of this graph, with Thomas paving the way with 13 matches. Thomas is often ahead in court cases with matches in general, but his lead isn’t that far. Scalia and Alito are the other judges with at least six matches in these cases. The only liberal judiciary with at least four matches in these election cases is Breyer. Kagan and Sotomayor only agreed once each.
These statistics illustrate the growing divide between courts in election-related cases. The sustained conservative majority could explain why liberal judges are more likely to vote in these cases in the conservative direction than conservative judges in the liberal direction: Liberal judges could join a conservative majority to limit the scope of the outcome or to form an alliance that could trigger a more liberal decision in the future. Another explanation could be that conservative judges simply lean further to the right on electoral issues than liberal judges to the left.
Together with ideology, we see from the high level of agreement that the judges each have different perspectives and successes that they put on their decisions in order to convey independent views on the different areas of the electoral law. Ultimately, however, given the current court and the direction it is headed, we can expect additional state restrictions on voting rights, upheld by the majority of the court.
This post was originally published on Empirical SCOTUS.
Adam Feldman, Empirical SCOTUS: How the Court’s Decisions Restricted National Voters
SCOTUSblog (November 18, 2020, 3:05 pm), https://www.scotusblog.com/2020/11/empirical-scotus-how-the-courts-decisions-have-limited-the-national-electorate/