Role of Judiciary in Elections

On October 4, the Arizona Supreme Court decided that the measure had garnered enough signatures to remain on the ballot for the November election, affirming the vote for open primaries. I reflected on the implications of that ruling. If the measure passes, taxpayer dollars will no longer fund presidential preference elections unless the respective parties agree to allow participation from voters who are not registered with any political party, independent voters, and those whose party does not have a candidate on the November ballot. If choosing not to hold the more inclusive primary, the respective party will be required to finance its own presidential preference election. The letter of the law did not excite me intellectually – fiscally, I agreed with the principle that public funds should not  underwrite any single party’s election. The more interesting implications of an approved Prop 140 were this: candidates from both parties will have to change how they campaign. With the partisan primary system eliminated, candidates will need to adopt a more centrist position to garner the votes of the opposing party and of Independents. Even party affiliation may be affected—if one is no longer required to declare a party in order to participate in the primary process, we may see a spike in Registered Independents or voters who chose no party affiliation at all. All of this was swirling in my brain as I wondered whether the Founding Fathers contemplated the role that the judiciary would play in modern elections.

The U.S. Constitution does not explicitly outline the role of judges in deciding elections, but it does provide a framework that allows for judicial involvement in electoral matters.

1. Cases Arising Under the Constitution & Laws of the United States

“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, Article 3, Section 2. “In all cases in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact… Id.

2. Election Disputes

The Constitution allows for judicial resolution of disputes arising under federal law; this includes elections; which the Framers felt important enough to include in Article 1 of the Constitution, which gave the States the responsibility of overseeing the times, places, and manner of federal elections.

3. Supremacy Clause

Establishes the Constitution, along with laws and treaties made by the United States, as “the supreme Law of the Land;” and mandates “Judges in every State be bound thereby any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, § 1, cl. 2. This means that federal law takes precedence over state laws, thus judges in every state are bound by the Constitution, even if it conflicts with their respective state law. Gibbons v. Ogden, (upholding the supremacy of federal law over state law by ruling that Congress has the power to regulate commerce in a state).  

4. Judicial Review

The best-known power of the Supreme Court is not found within the text of the Constitution itself. The principle of Judicial Review, established by the landmark case Marbury v. Madison, is the ability of the Court to declare a Legislative or Executive act in violation of the Constitution. In this case, the Supreme Court ruled that an Act of Congress that conflicted with the Constitution could not stand. The Constitution does not explicitly grant this power, but it is considered an implied power derived from Article III and Article VI. 

Article I, Section 4 grants each State the authority to regulate the "Times, Places and Manner" of elections. In Pinal County, Arizona, voters who show up to vote at the wrong polling place on Election Day will not be provided a way to vote the correct ballot at that location, despite a new state rule. In December 2023, AZ Secretary of State Adrian Fontes created a rule requiring Arizona counties that assign voters to a specific polling place to make it possible for voters to cast the correct ballot, even if they go to a site other than the one to which they’ve been assigned. However, the Arizona Supreme Court ruled that the county does not have to provide the correct ballot to voters who go to the wrong polling place this election. Pinal County argued this rule is violative of State law, which leaves it up to county officials to decide whether their county will operate voting using a precinct model, which restricts voters to voting at an assigned location, or a vote center model, which allows them to vote anywhere.  Chief Justice Ann Scott Timmer wrote that the Supreme Court would uphold the lower court decision, which said that requiring the county to follow the rule now would create “unacceptable risk of chaos, uncertainty, and confusion.”  

“On Oct. 4, the trial court issued a mixed ruling, finding that the county didn’t need to follow the rule because it was too close to the election to change election procedures. But the court also found that the rule was valid and did not violate state law, as Pinal County had claimed. The Supreme Court did not consider whether the rule conflicted with state law. It considered the closeness to Election Day the most important factor, Timmer wrote.

The Secretary of State’s Office fears this will disenfranchisement of Pinal County voters will become the subject of post-election legal challenges.  Based on past patterns, it’s likely that a few hundred of Pinal County’s voters will vote at the wrong location on Nov. 5 and will have their ballots rejected--which happened to 274 voters in November 2020 and 235 voters in November 2022.”

User error among voters was recently a matter for judicial review in Pennsylvania as well in Genser v. Butler County Board of Elections. “The manner in which mail-in ballots are to be submitted by a voter is prescribed in the Election Code.” Genser v. Butler Cnty. Bd. of Elections, [J-82A-2024 and J-82B-2024], Pa. 2024). Mail-in ballots are provided to voters in packages that contain the ballot and two envelopes. One marked “Official Election Ballot,” commonly called the “Secrecy Envelope;” the second envelope, or “Outer Envelope” bears the return address for the ballot. Some voters neglected to include the “Secrecy Envelope” when mailing their ballots, thus rendering their vote “voided.”

On Wednesday, October 23rd, the Pennsylvania Supreme Court ruled that voters who cast a mailed-in ballot improperly would be allowed to cast a ballot on Election Day; opining that the Pennsylvania Election Code required their ballots to be counted. Although this legal action was brought by only two voters, the impact of this decision will be resounding.  It is estimated that thousands of Pennsylvanians will regain their ability to vote in the November election if the state supreme court’s decision, a 4-3 split, remains in effect.

The following Monday, the Republican Party sought U.S. Supreme Court intervention, arguing that the Genser decision, predicted solely on state law, violates the U.S. Constition.  If this challenge is successful, it will effectively disenfranchise the thousands of voters who would have been allowed to make their voices heard but for an envelope.

As the cable news pundits drone on in the background, one particular prediction catches my attention: “the U.S. Presidential election will come down to which candidate wins Pennsylvania.” If true, the Court’s decision whether to allow or deny these voters a second bite at the apple effectively decides the leader of the country for the next four years.

My initial question reverberated in my head: Did the framers contemplate the role that jurists occupy in today’s electoral process?  While the Constitution does not provide a detailed blueprint for judicial roles in elections, it establishes a framework that courts have used to ensure fair electoral processes. Courts play a critical role in enforcing voting rights and providing redress when they are violated. Several significant elections in U.S. history have been influenced or even decided by court rulings.

1. Reynolds v. Sims (1964): addressed apportionment in state legislatures. The Supreme Court ruled that legislative districts must be roughly equal in population, impacting how state elections were conducted and ensuring more equitable representation.
2. Bush v. Gore (2000): This Supreme Court case effectively decided the 2000 presidential election. The Court's ruling halted a Florida Supreme Court decision that required a recount of votes, thereby awarding Florida's electoral votes to George W. Bush and securing his presidency.
3. Chadwick v. State Board of Elections (2004): A North Carolina case that dealt with challenges to voting methods and ballot counts, affecting local elections.
4. Crawford v. Marion County Election Board (2008): The Supreme Court upheld Indiana's voter ID law, which had implications for how elections were conducted and access to voting, influencing the outcome of elections in the state.
5. Shelby County v. Holder (2013): While not a direct election result, this decision invalidated key provisions of the Voting Rights Act, affecting states' election laws and leading to changes in how elections were conducted, particularly in states with histories of voting discrimination.

These cases illustrate the role of the judiciary in adjudicating election-related disputes, shaping electoral laws, and influencing outcomes—but I believe it was a blind spot for our Framers.