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The future of federalism is on the ballot

October 24th, 2020, 1:21pm by Sam Wang


In our system, states have a measure of independence of the federal government. This is newly important because in many places, state courts have become the best route for protecting voting rights. But that’s in question, as evidenced by a 4-4 Supreme Court ruling last week.

However, this is one area where you have a lot of indirect leverage in the matter. In the November election, you may have even more influence on the survival of federalism than you do over the Presidential race.

Last week, the Supreme Court let stand a ruling by the Pennsylvania state Supreme Court, in which the state court allowed the counting of mail-in ballots to continue until the Friday after Election Day. The idea that a state court could interpret its own election laws is pretty anodyne. Yet four Justices voted to intervene: Alito, Thomas, Gorsuch, and Kavanaugh. Chief Justice Roberts joined the three liberals, creating a deadlock.

As soon as Tuesday, that divide may be resolved with the confirmation of Amy Barrett. At that point the median justice is likely to be Gorsuch or sometimes Kavanaugh. Roberts will no longer be a deciding vote. That’s what comes with a 6-3 supermajority.

If the Supreme Court asserts precedence over state law in the local administration of elections, that would be a fairly radical expansion of its power. Essentially, the concept would be that the Constitution says “legislatures” administer elections. Based on the view from the Court’s right wing, this excludes state-level authorities that interpret the law, i.e. state courts would not get a say.

(Alternatively, the Court could do what it often does in fraught situations: issue a ruling that happens to coincide with its partisan preferences, and say that the ruling is narrow in scope, without precedential value. Finally, there’s even a more rosy scenario in which the Court finds a way to avoid such disputes. See Ned Foley’s essay today over at SCOTUSblog describing such an escape route.)

Such a shift in power would have deep implications for voting rights. Voter-approved redistricting commissions in Michigan and Colorado couid be invalidated. State constitutional provisions protecting the right to vote could be overriden. To get a sense of the pro-democracy tools that could be invalidated, see my law article on how state constitutions contain protections against partisan gerrymandering. The provisions we review are equally applicable to a wide range of voting rights – for now.

This could be countered by federal court reforms. However, reform of federal courts, such expanding the size of circuit courts or even the Supreme Court itself, requires legislation. That, in turn, requires a means of getting past the legislative filibuster in the Senate. Currently, it is said that five Democratic Senators oppose such a change in Senate rules.

Take a look at the PEC Senate poll rankings. Currently, Democrats lead by 5 points or more in enough races to reach 48 seats in 2021. Republicans lead by the same margin in enough states to reach 43 seats. That leaves 9 swingable races – and a wide range of future possibilities. If Democrats fail to gain control or end up at the low range, say 50-52 seats, then deadlock is inevitable in many domains. If they get to 55-57 seats, then legislation and reform are possible.

This graph shows what happens if election outcomes differ from current polls. Basically, one percentage point of shift in voting leads to a change of one Senate seat, more or less. That’s a huge amount of leverage, especially in small states where the margins are close.

Among small states, the closest Senate races are in Alaska, Montana, and Kansas. Your get-out-the-vote activity and donations will make a big difference there. See the ActBlue (for Democrats and retained federalism) and WinRed (for Republicans a shift away from federalism) links in the left sidebar.

Tags: 2020 Election · Senate · Supreme Court · U.S. Institutions

3 Comments so far ↓

  • Frank

    Unless we know the reasoning behind the decision, we have no basis to assess the influence of a ninth Justice. Plus, the expansion to which you allude is not radical. (Cf., Article I Section 4 of the Constitution as well as such cases as Baker v. Carr and Reynolds v. Sims in pursuit of the “one person, one vote” principle)

  • NSW

    I’m deeply encouraged by the renewed interest in federalism on all sides. As a practical matter, I think you have to devolve power on most issues to the states in a country of 330 million. And of course the states should still be subject to federal enforcement of constitutional and other federal rights.

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