In an extraordinary dissenting opinion, Sixth Circuit Court of Appeals Judge Karen Nelson Moore called out the Republican corruption of the federal courts in support of the “concentrated effort” of GOP voter suppression. (h/t Election Law Blog).
Judge Moore was appointed to the Sixth Circuit Court of Appeals in 1995 by President Bill Clinton. She graduated from Harvard Law School magna cum laude in 1973. She clerked for Judge Malcolm Wilkey of the United States Court of Appeals for the District of Columbia Circuit from 1973 to 1974 and for Associate Justice Harry Blackmun of the United States Supreme Court from 1974 to 1975.
The Republican majority of the Sixth Circuit panel decided the case primarily on standing grounds to reject a challenge to Tennessee’s absentee ballot verification procedures.
But Judge Moore in her stinging dissent had much more to say about what this case was really all about:
Make no mistake: today’s majority opinion is yet another chapter in the concentrated effort to restrict the vote. See, e.g., Raysor v. DeSantis, 140 S. Ct. 2600 (2020) (mem.); Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020); Democratic Nat’l Comm. v. Bostelmann, — F.3d —-, 2020 WL 5951359 (7th Cir. 2020) (per curiam); New Ga. Project v. Raffensperger, — F.3d —-, 2020 WL 5877588 (11th Cir. 2020); A. Philip Randolph Institute of Ohio v. LaRose, — F. App’x —-, 2020 WL 6013117 (6th Cir. 2020); see generally Richard L. Hasen, The 2016 U.S. Voting Wars: From Bad to Worse, 26 Wm. & Mary Bill Rights J. 629 (2018). To be sure, it does not cast itself as such—invoking instead the disinterested language of justiciability—but this only makes today’s majority opinion more troubling. As a result of today’s decision, Tennessee is free to—and will—disenfranchise hundreds, if not thousands of its citizens who cast their votes absentee by mail. Masking today’s outcome in standing doctrine obscures that result, but that makes it all the more disquieting. I will not be a party to this passive sanctioning of disenfranchisement. I dissent….
“While I am saddened, I am not surprised by today’s ruling.” Warshak v. United States, 532 F.3d 521, 538 (6th Cir. 2008) (en banc) (Martin, J., dissenting). That is because many federal courts—more specifically, many federal courts of review—have sanctioned a systematic effort to suppress voter turnout and undermine the right to vote. Rarely does this have anything to do with the merits of the case. No, the effort has not been so bold as that. Most often, Purcell provides the cover—a convenient court-made doctrine that provides plausible deniability sounding in vague cries of “confidence in the electoral process.” See Purcell, 549 U.S. at 4. Today, however, standing is the shroud of choice. Whatever the disguise, the result is the same.
Hiding behind closed courthouse doors does not change the fact that ruling by ruling, many courts are chipping away at votes that ought to be counted. It is a disgrace to the federal courts’ foundational role in ensuring democracy’s function, and a betrayal to the persons that wish to participate in it fully. See Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (“Other rights, even the most basic, are illusory if the right to vote is undermined.”).
On its own, today’s ruling may not—likely will not—change the course of this election. But it is another drop in the bucket that is the degradation of the right to vote in this country. See, e.g., Raysor, 140 S. Ct. at 2600 (“This Court’s order prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.”) (Sotomayor, J., dissenting); Republican Nat’l Comm., 140 S. Ct. at 1211 (“The majority of this Court declares that this case presents a ‘narrow, technical question.’ That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic.”) (internal citation omitted) (Ginsburg, J., dissenting); Bostelmann, 2020 WL 5951359, at *13 (“It is a virtual certainty that current conditions will result in many voters, possibly tens of thousands, being disenfranchised absent changes to an election code designed for in-person voting on election day.”) (Rovner, J., dissenting). I fear the day we come out from behind the courthouse doors only to realize these drops have become a flood.
We need a lot more judges in the federal judiciary to show the courage that Judge Karen Nelson Moore did to speak truth to power and call out her Republican colleagues for what they are doing in the federal courts. The GOP corruption of the federal courts is how they intend to maintain an anti-democratic tyranny of the minority over a democratically elected majoritarian government.
UPDATE: In the New York Times today, “Progressive activists who want Democrats to expand the Supreme Court and pack it with additional liberal justices are mustering a new argument: Republican-appointed jurists, they say, keep using their power to make it harder for Americans to vote.” G.O.P.-Appointed Judges Threaten Democracy, Liberals Seeking Court Expansion Say:
Backed by a new study of how federal judges and justices have ruled in election-related cases this year, the activists are building on their case for why mainstream Democrats should see their idea as a justified way to restore and protect democracy, rather than as a radical and destabilizing escalation of partisan warfare over the judiciary.
The study, the “Anti-Democracy Scorecard,” was commissioned by the group Take Back the Court, which supports expanding the judiciary. It identified 309 votes by judges and justices in 175 election-related decisions and found a partisan pattern: Republican appointees interpreted the law in a way that impeded ballot access 80 percent of the time, versus 37 percent for Democratic ones.
The numbers were even more stark when limited to judges appointed by President Trump, who has had tremendous success at rapidly reshaping the judiciary. Of 60 rulings in election-related cases, 85 percent were “anti-democracy” according to the analysis.
“There is a systematic pattern of Republican-appointed judges and justices tipping the scales in favor of the G.O.P. by making voting harder,” said Aaron Belkin, a political-science professor and the director of Take Back the Court.
Mr. Belkin argued that the study results should be seen as part of a larger critique of how American democracy has become “rigged” in favor of conservatives, entrenching minority rule of the country.
Even when Democrats enjoy the support of a majority of voters, they often still lose elections, he said: The Electoral College in presidential races and the Senate’s structure disproportionately empower conservative-leaning voters in sparsely populated states. He called that an undemocratic advantage augmented by partisan gerrymandering of House districts and by Republicans’ increasing imposition of voting restrictions that tend to impede groups that lean Democratic.
And even when Democrats do manage to win elections, he said, they have a harder time governing. Senate Republicans can use the filibuster to obstruct enacting new laws on matters like expanding health care or limiting greenhouse-gas emissions. If Democrats succeed in enacting new such laws or regulations anyway, Republicans turn to their allies in the judiciary to strike them down.
A majority of American voters cast their ballots to give Democrats the White House — and with it, the power to appoint judges — in all but one presidential election dating to 1992, and Democrats appear likely to win the popular vote for the fourth straight cycle next month. Nevertheless, conservative, Republican-appointed judges firmly control the judiciary.
That is because the Republican presidential candidate twice prevailed despite losing the popular vote — in 2000 and 2016 — and because Senate Republicans, empowered by low-population states, have used hardball tactics to block nominees by Democratic presidents, like Judge Merrick Garland in 2016, and then to rapidly confirm those put forward by Republican ones, as they are about to do with Judge Amy Coney Barrett.
Against that backdrop, Mr. Belkin argued, the new data suggests that even if Democrats win both chambers of Congress and the White House next month and pass laws to make it easier for Americans to vote, like the first bill Democrats introduced after winning the House in the 2018 midterm, they could face a de facto veto by the judges the Republican Party has installed. And more generally, he argued, the entrenched power of that cohort appears likely to keep making it harder for future election outcomes to reflect the will of the majority.
Take Back the Courts declined to identify the political scientist who performed the study but is releasing its methodology and data set for scrutiny.
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Mr. Belkin argued that the American democratic process for deciding who should be elected to Congress and the White House is broken — and should the conservative tilt of the judiciary remain in place for the foreseeable future, it will amplify the problem.
“The data in this scorecard indicate the danger that federal courts pose to democracy,” Mr. Belkin said. “The only way to restore democracy and contain that danger is to reform federal courts.”