Is HR4 the Start of Meaningful Reform Which Will Rein In the Outlaws?

House Democrats Just Got Serious About Reining In the Supreme Court

Their new voting rights bill limits the court’s power to greenlight voter suppression.

AUG 20, 2021 | REPUBLISHED BY LIT: AUG 21, 2021

On Tuesday, Democrats in the House of Representatives introduced the John R. Lewis Voting Rights Advancement Act, also known as H.R. 4. As Ian Millhiser explained in Vox, H.R. 4 essentially overturns the Supreme Court’s recent attacks on voting rights: Its central provisions give both the Justice Department and federal courts sweeping authority to block voter suppression laws.

But one crucial section takes a more creative approach: The House bill actually repeals the court’s own rules for deciding election-related cases—which strongly favor states’ ability to suppress votes—replacing them with voter-friendly directives that would force the justices to safeguard equal suffrage.

H.R. 4 also takes on the “shadow docket,” prohibiting the Supreme Court from issuing unreasoned emergency orders reversing lower court decisions that protected the franchise. And it abolishes the legal doctrine that allows the justices to shield anti-voting laws from judicial scrutiny in the run-up to an election.

H.R. 4, in short, is court reform. It is the clearest indication yet that House Democrats are getting serious about reining in an out-of-control Supreme Court.

To understand H.R. 4’s court reform provisions, it’s important to remember how the Supreme Court tried to curb voting access during the 2020 election. In light of the pandemic, many citizens filed lawsuits alleging that various voting restrictions were illegally burdensome.

These suits typically sought modest alterations to election law, such as liberalizing vote-by-mail, allowing curbside voting for at-risk groups, and expanding ballot drop boxes. Lower courts frequently granted these requests, finding that Americans’ right to vote without fear of a COVID infection outweighed states’ interest in enforcing their election laws.

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— LawsInTexas (@lawsintexasusa) August 4, 2021

The Supreme Court’s conservatives repeatedly quashed these lower court decisions, reinstating stringent voting restrictions in the midst of the pandemic.

They issued these decisions on the court’s shadow docket, with minimal briefing and no oral arguments, in unsigned orders that provided little to no reasoning. When the court did deign to justify its actions, it relied upon several dubious arguments.

First, the conservatives turbocharged “the Purcell principle,” the doctrine that federal judges shouldn’t change voting laws on the eve of an election. The Purcell principle began as a modest warning against confusing voters who are already on their way to the polls.

But throughout the 2020 election, SCOTUS wielded the Purcell principle to insulate state voting procedures from judicial review in the months before Election Day.

Second, the conservatives consistently ignored or rejected district courts’ factual findings that election regulations would severely burden the right to vote.

Third, and relatedly, these justices valued states’ interest in enforcing their own election laws over citizens’ right to cast a ballot. They even seemed to reject the notion that the public has an interest in protecting the right to vote; instead, they assumed that the public’s only interest lay in enforcing restrictive statutes.

Because the court had to weigh the public interest when deciding whether to halt a lower court order, this hostility led the majority to block multiple orders expanding access to the vote.

Three Republican-appointed justices also pushed the court to the brink of the (previously) unthinkable: Nullifying ballots cast pursuant to a lower court order.

On Sept. 18, 2020, a district court suspended South Carolina’s requirement that a “witness” sign mail ballots. The federal appeals court declined to halt the decision, so for weeks, thousands of voters returned mail ballots lacking a witness signature. Then, on Oct. 5, the Supreme Court restored this requirement.

Alarmingly, three justices—Clarence Thomas, Sam Alito, and Neil Gorsuch—would’ve voided every ballot lacking a witness signature, including those cast in reliance on the lower courts’ decisions. Ballots, in other words, that were perfectly legal at the time they were mailed back.

Unlike some other court reform proposals, H.R. 4’s new limits are, for the most part, obviously legal.

H.R. 4 is a frontal assault on every component of the Supreme Court’s voting rights shadow docket. It repeals the Purcell principle, forbidding both SCOTUS and the federal appeals courts from citing proximity to an election as an excuse to reinstate a voting restriction. (There are minor exceptions for extreme circumstances on the eve of Election Day.)

It bars the justices from considering “a state’s generalized interest in enforcing its enacted laws” when deciding whether to block or permit an election regulation. And it instead compels the court to “give substantial weight to the public’s interest in expanding access to the right to vote.”

Under H.R. 4, the Supreme Court may not set aside a lower court decision expanding voting access unless it finds that burdens on the state “substantially outweigh” the “public’s interest in expanding access to the ballot.

The court may not set aside the district court’s factual findings unless they’re “clearly erroneous.” And it must provide a “written explanation” laying out its reasoning.

Finally, H.R. 4 preempts the Supreme Court from issuing a future decision nullifying valid ballots, as Thomas, Alito, and Gorsuch tried to do in South Carolina.

The justices “shall not order relief,” the bill states, that abridges the right to vote of “any citizen who has acted in reliance” on a lower court order that suspended voting restrictions.

These provisions do not just overturn the court’s previous decisions.

They modify the court’s rules, weakening its authority to intervene in elections, and diminishing its power to side against voting rights in cases when it does step in.

H.R. 4 obviously isn’t court expansion, but it does constitute a different kind of court reform: a limit on the court’s jurisdiction.

And unlike some other proposals, H.R. 4’s new limits are, for the most part, obviously legal.

The Constitution grants Congress the power to regulate SCOTUS’s jurisdiction and to craft judicial remedies for violations of federal law.

Michael Morley, a right-leaning professor at Florida State University College of Law, said this section “may be among the least constitutionally vulnerable provisions” of H.R. 4.

“Congress seems well within its rights to adjust the balancing test that courts must apply in deciding whether to grant relief” under federal voting rights laws, Morley told me. Because Congress passed the federal statute that allows citizens to sue over voting restrictions, it also gets to decide what factors courts must consider (or ignore) in these cases.

For similar reasons, Congress “almost certainly has authority” to overturn the Purcell principle, which is not “a constitutional requirement” but rather “a default rule that Congress can supersede through clear statutory language.”

Morley did assert, however, that the provision excluding consideration of states’ interest in enforcing their laws “raises substantial federalism concerns” because it “squarely repudiates states’ sovereign interests.”

Aderson Francois, a professor at Georgetown University Law Center, saw it differently.

“My reading of the statute is that Congress is neither telling states not to care for their interests, nor directing the court to ignore those interests when they are concrete,”

Francois told me.

“The way I read it is that you cannot use an abstract state interest in enforcing your laws to outweigh an actual burden on the right to vote.”

But, he added,

“I’m never going to predict what crazy reading of federalism this court will embrace.”

Because the Supreme Court answers to no one, it can always, in theory, adopt a “crazy reading” of the Constitution that requires federal courts to suppress the vote.

But with H.R. 4, House Democrats have made a bet that the justices will stand down in a game of chicken over voting rights.

If it exerts extraordinary new powers to avoid the bill’s limits, the conservative supermajority will only demonstrate the need for much more sweeping court reform.