The Role of the Judiciary in American Elections

Although the 2018 Midterm Elections were held on November 6, not every race was called by the end of the night. Some elections had results that were too close to call, mechanical and technological issues with voting machines, or provisional ballots left uncounted. In the gubernatorial race in Georgia, the certification of election results was delayed by a federal judge after concerns about the state’s voter registration system and the counting of provisional ballots was brought to the court’s attention. [1]

Judge Amy Totenberg of the Federal District Court in Atlanta ruled that, before the results of the election could be certified, the secretary of state’s office had to establish either a hotline or website where voters could check if their provisional ballots had been counted. In addition, county officials were required to review the eligibility of voters who casted provisional ballots due to registration issues. This ruling stemmed from a lawsuit, Common Cause Georgia v. Brian Kemp, filed a day before the election on November 5. The lawsuit sought to “protect Georgia citizens’ fundamental right to vote from malfeasance or tampering with Georgia’s voter registration database.” [2] In filing this lawsuit, Common Cause Georgia and its co-counsel, the Brennan Center for Justice, attempted to ensure that all eligible voters and provisional ballots were counted.

While Judge Totenberg did grant the Plaintiff’s request for a temporary restraining order to make sure that all votes were counted, she declined to rule on lawsuits brought after election day by Democratic candidate Stacey Abrams and the Georgia Democratic Party that raised concerns about counting absentee ballots and the deadline for the submission of these ballots. While the order did not change the results of the election -- Abrams’ Republican opponent Brian Kemp declared victory by the revised deadline -- Judge Totenberg’s intervention represents a clear example of the United States’ system of checks and balances at work. Intervention by the judiciary branch into the workings of elections for both the legislative and executive branches represents the outsized yet necessary role that the judiciary has in determining how elections are run and how the results comply with the United States Constitution.

In order for the political system of checks and balances to work, however, the judiciary must act independently of partisan politics. While the legislative branch at both the state and federal level have the power to make laws related to local and national elections respectively, the judiciary has the power to deem whether or not these laws are constitutional. Once on the bench, whether elected or not, judges have a large role in determining how elections are held.

Recent cases related to voter ID requirements, voter registration, absentee ballot counting, and gerrymandering have indicated that the court can be a gamechanger in election results. In October, the Supreme Court ruled in Brakebill v. North Dakota Secretary of State that North Dakota was allowed to enforce state law which requires voters to show identification that includes their name, birth date, and a current residential address. This new rule essentially disqualifies voters who use P.O. boxes for their address from voting, a common occurrence amongst Native Americans living on reservations. In a state of just 750,000 people, every vote counts. In 2012, North Dakota Senator Heidi Heitkamp won her seat by just 3,000 votes, due largely to the support of the state’s Native American population. However, with the 6-2 decision by the Supreme Court in October, Heitkamp lost a considerable portion of her base, and ultimately lost the election to her Republican opponent Kevin Cramer. As seen in North Dakota, court rulings over voter ID requirements, which dictate who can vote and how, have immense effects on the outcome of elections, emphasizing the role that the inadvertent role that the court can have in determining election results.

However, the constitutionality of gerrymandering, the process by which legislatures draw the boundaries of electoral districts so as to favor a certain political party, class, or race, is arguably the most significant barrier to a free and fair election that the court can intervene in Gerrymandering allows political parties to win more seats or protect its current seats by siphoning certain groups into oddly shaped districts. For example, despite Democrats winning around the same amount of votes as Republicans in North Carolina’s 2018 state races, the House remained in the hands of the Republicans with a 10-3 majority, showcasing the power of gerrymandering and its suppression of votes in the electoral process. Gerrymandering has also been met with mixed rulings by the different levels of the judiciary depending on the motive of the legislature when it was creating its districts and the level of court that is hearing the case. In June 2018, the United States Supreme Court unanimously declined to throw out district maps that were designed with partisan gerrymandering in Wisconsin with Gill v. Whitford, and in Maryland with Beniseky v. Lamone. In a concurring opinion, Associate Justice Elena Kagan wrote that while partisan gerrymandering “no doubt burdens individual votes” and is “incompatible with democratic principles,” when deciding future challenges, overturning partisan gerrymandering might be more successfully argued as a violation of the First Amendment. Justice Anthony Kennedy wrote in an opinion for California Democratic Party v. Jones in 2000 that “First Amendment concerns arise when a State purposely subjects a group of voters or their party to disfavored treatment,” which in turn “burdens a group of voters’ representational rights.” [3] Those who live in packed districts who support the “disfavored party” experience a diminished ability to exercise their First Amendment right to freedom of speech through the electoral process. Through this lens, future gerrymandering cases should be based upon whether or not partisan gerrymandered districts acted as “punishment for voters” because of past political loyalties. [4]

In comparison, a Pennsylvania Supreme Court decision in January threw out the state’s congressional district map as a violation of the state’s constitution, and in North Carolina, a panel of federal judges nullified North Carolina’s congressional map, saying that it gave Republicans a political advantage and was motivated by “invidious partisan intent.”

Under federal law, any constitutional challenges to district allocations made at the state level are automatically appealed directly to the Supreme Court, and will now potentially face the new test set forth by Justice Kagan where gerrymandering cases are seen as a First Amendment issue. Given that voting for political candidates and choosing representation is fundamentally an example of citizens’ expression of free speech, the decision to view gerrymandering cases through an interpretation of the First Amendment may also apply to other elements of elections that the court can decide.

Due to the court’s important role in determining elections, it is imperative that the court maintain nonpartisanship. However, in recent years, the role of the judiciary has become increasingly political. According to data compiled by the Brennan Center, lawmakers as of April 4, 2018 in at least 16 states have considered legislation that would threaten the independence of courts. [5] Nine bills in six states would make it easier for judges to face retribution for unpopular decisions. [6] In Pennsylvania, a bill to this effect was introduced in the legislature after the Pennsylvania Supreme Court ruled that the state’s congressional map was unconstitutionally gerrymandered. Most shockingly, eight bills in seven states would either restrict the power of the court to find legislation unconstitutional or allow the legislature to veto court decisions. This poses a direct threat to the check that the judiciary branch is supposed to serve on legislatures. [7]

In order for citizens to exercise their right to vote, the court must maintain its ability to serve as a check on legislation related to elections. This power can be used to confirm that all voting rights and electoral laws comply with the First Amendment of the United States Constitution. Free and fair elections are a clear manifestations of citizens’ First Amendment rights to exercise freedom of speech and to petition the government for a redress of grievances.

[1] Blinder, Alan. "Federal Judge Delays Certification of Georgia Election Results." The New York Times. November 13, 2018. Accessed December 09, 2018.

[2] "Common Cause Georgia v. Brian Kemp." Brennan Center for Justice. December 04, 2018. Accessed December 09, 2018.

[3] California Democratic Party v. Jones, 530 U.S. 567, 574 (2000).

[4] Gill v. Whitford, 585 U.S. ___ 2018

[5] "Legislative Assaults on State Courts - 2018." Brennan Center for Justice. February 06, 2018. Accessed December 09, 2018.

[6] Ibid.

[7] Ibid.

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