Learning From Brnovich

The U.S. Capitol and a statue from outside the U.S. Supreme Court sinking into a red pile of quickstand, accompanied by a warning sign that reads "DANGER QUICKSAND"

As Democrats plan the next steps for their democracy agenda — and as commentators offer new proposals — one common theme is emerging: federal courts will play a pivotal role no matter what laws Congress enacts (if any). The For the People Act allows voters to enforce its provisions in federal court. The Preventing Election Subversion Act lets local election officials removed by the state sue in federal court. And Manchin’s Grand Compromise would rein in the authority of the attorney general under the John Lewis Voting Rights Advancement Act and leave more power in — you guessed it — the “hands of the court.”

But these proposals will only protect voters so long as the judiciary is willing to enforce them. And as the U.S. Supreme Court demonstrated in Brnovich v. Democratic National Committee, robust enforcement cannot be taken for granted.

In Brnovich, the Court’s conservative wing weakened the ability of voters to bring claims under one of the few significant federal voting rights laws still on the books: Section 2 of the Voting Rights Act. Section 2 was designed to ensure minority voters an equal opportunity to participate in the political process and to elect representatives of their choice. But in his opinion in Brnovich, Justice Samuel Alito cut back the scope of circumstances in which the law would apply, calling a more powerful reading of the law too “radical.”

This should be a wake-up call. How can Congress protect democracy with a high court hostile to voting rights?

As many scholars have observed, the Court’s law of democracy jurisprudence strengthens the case for court reform. Some suggest bold changes: expanding the size of the Supreme Court or removing its jurisdiction over voting rights cases entirely. These proposals are worth serious consideration, but they are also likely to face strong headwinds given political constraints in Washington.

Reforming litigation procedures in this way would offer greater predictability and clarity to voters, candidates and election administrators alike. And these changes would limit the power that incumbents have to tilt elections in their favor — a power the Supreme Court has been all too willing to enable.

If the political will to pass a narrower set of democracy reforms develops before the midterms (a big “if”), might there be a more limited set of judicial reforms that could survive as well?

Below are three ways Congress can rein in the influence of the Supreme Court in election lawsuits and help voters get a fairer shake within our existing court system at the same time.

First, election cases should be assigned in a way that minimizes the risk of undue partisan influence. Under current law, the outcome of a case may turn on the luck of the draw: whether the judge (or, for some redistricting cases, trio of judges) assigned to the case is ideologically inclined to rule in favor of Democrats or Republicans. This is not to say many or even most judges today decide cases based solely on the partisan identities of the parties before them. When the law is clear and the facts are stark, the risk of partisan priors influencing the decision is limited. (The bevy of failed lawsuits challenging the 2020 election are a testament to that.) Most election law doctrines, however, give enormous discretion to judges. Consider the predominance standard for redistricting or the Anderson-Burdick test for voting restrictions: These leave plenty of space for judges’ values and commitments to subtly shape the outcome of a case or the remedy imposed.

To be clear, strict rules and formalism cannot (and should not) always be the answer. Leaving judges room to exercise judgment is an important feature of our constitutional system. But that power is a great one all the same.

To ensure this power is exercised equitably, Congress should create a new process for selecting judges in voting rights and redistricting cases. To start, the chief judge of the applicable circuit court would randomly select two circuit judges and two district judges. Of these four, no more than two could be appointed by presidents of the same party. This bipartisan panel of four would then unanimously select a fifth judge drawn from any federal court in the country. This fifth judge would conduct all proceedings and issue any necessary orders, with these orders subject to review and reversal by the full five-judge court. 

This system would help litigants (and a polarized public) have greater confidence that elections are free, fair and lawful. And no matter how stacked the lower courts are (or become) from appointments by one party or the other, election cases would always be heard (and remedies imposed) by a balanced panel.  

Second, Congress should eliminate the Supreme Court’s mandatory jurisdiction for redistricting cases. Because the justices usually have discretion over which cases they hear, the typical voting rights case never goes all the way to the Supreme Court. But constitutional challenges to state and congressional redistricting plans are another matter: these are appealed directly to the Court, which is required by law to hear them.

With a new round of redistricting around the corner, Congress should end mandatory review of these cases. How would this help? It is one thing for the Supreme Court to overturn a lower court’s judgment when the justices must decide the case one way or the other. It takes a bit more temerity to pluck a case out for overruling if you aren’t required to hear it in the first place — especially if that case was decided by a bipartisan five-judge court.

Finally, Congress should instruct courts that strict compliance with federal law must be prioritized when deciding when and how to remedy a voting rights violation. When courts hold a law has been violated, they face a second question: what to do about it? In designing remedies, courts are often deferential to a fault: letting states decide how to fix the violation, even if that means allowing an election to go forward under unlawful conditions in the meantime.

One argument for this deference is that state legislatures are elected and courts are not. But if Congress set out clearer rules for judicial remedies, that calculus would change — it would be the preference of one elected branch versus another. And the Constitution is clear on who gets the final word between the two with respect to federal elections: While the “Times, Places and Manner” of holding federal elections “shall be prescribed in each State by the Legislature thereof,” Congress may “at any time by Law make or alter such Regulations.”

The For the People Act — thanks to an amendment by the House — includes such remedial instructions for redistricting litigation. For example, if a final decision in a congressional redistricting case is not expected at least three months prior to an election, the court would be required to provide an interim remedy rather than just deferring to the state or allowing the election to go forward despite the map’s unlawfulness. The legislation also substantially raises the threshold required for a higher court to pause that interim remedy during the appeals process.

These protections should be extended to cover all federal voting rights litigation. Combined with the other proposals above, these protections would ensure that any disputes about electoral rules would be resolved and remedied by a bipartisan five-judge court and that the procedures, rules or maps put in place would remain settled up to and through election day. The federal appeals courts and the Supreme Court would still be able to weigh in on the substantive merits of a case over the long run, but they would be prevented as an equitable matter from rolling back the interim remedies imposed by the bipartisan district court until after an intervening election has occurred. 

Reforming litigation procedures in this way would offer greater predictability and clarity to voters, candidates and election administrators alike. And these changes would limit the power that incumbents have to tilt elections in their favor — a power the Supreme Court has been all too willing to enable.

Too often, the promises made on the floor of Congress only become a reality within the walls of a courthouse. But more and more, the courts are at risk of failing precisely when they are needed most. Democrats should take this threat seriously and learn from Brnovich: to protect voting rights, they must reform the courts.

G. Michael Parsons is a program affiliate scholar at New York University School of Law and an expert on constitutional law and the law of democracy.