Wednesday, December 14, 2016

Trump and constitutional federalism.

   Liberal Democrats, and even some conservative Republicans, are worried about civil liberties under a Trump administration. The GOP controls the house and senate, and is more polarized than it used to be. Senator Sessions will head the Justice Department. Trump will soon nominate a 5th supreme court judge to the Roberts majority. That's an oversimplification, but a useful one. Over 4 years, Trump will fill numerous vacancies on lower courts.  So it's not going to be a receptive time in federal courts for much of the liberal agenda. What to do?

I am reminded of Justice Brennan's response to Reagan and the Rehnquist court. He wrote a strongly influential article on state constitutions as an alternate path for civil liberties decisions. https://www.jstor.org/stable/1340334

There are several factors that come into play which can lead to different results on state claims than on federal claims. These include text, staffing, and case law, at least.

Text: State constitutions often set out rights with no direct or exact federal analog. For example, the Missouri constitution, like most states, has a right to free and open elections. In Weinshenck, the Missouri Supreme Court, dominated by Republicans, found that voter ID would violate that right.

Staffing: Following Mn GOP v White, we've seen more outside money spent on partisan ideological state supreme court races. None the less, the judicial branches are less republican that state legislatures, and a bit more isolated from political pressures. While the US Supreme Court is going to have a 5 vote Roberts-led majority on many issues, some states will offer a friendlier forum.

Case law: New York has fusion, a form of multi-party democracy, because of an old case which has been treated as Stare Decisis. Indiana gives cars some of the same protection as houses, under its search and seizure clause, even though the text of section 11 is the same as the 4th Amendment.
Election lawyers should get to know their state's case law, and look for opportunities to apply those to current issues.

Under dual federalism, part of the system of checks and balances, state constitutions offer a second bite of the apple. An issue, say partisan gerrymandering, may have been litigated and lost in federal courts. The issue could still be litigated in state courts under state clauses, cases, and judges. Usually state courts will be persuaded by federal decisions, but not always.

Gerrymandering, voter ID, election contests, campaign finance, and election speech cases are a few of the topics that could be addressed at the state constitutional level. One approach is to go right for a knockout; take on the most important issues as quickly as possible. Another approach is to gradually build a body of precedent, by identifying winnable cases, bringing them under state constitutions, well briefed and well-argued.

Thurgood Marshall for the NAACP built up a body of precedent over time, involving voting rights for blacks. So did Ruth Bader Ginsberg, in cases about equal treatment for the sexes.

Right now there are dozens or thousands of skilled lawyers who suddenly find themselves not employed in a Clinton administration. Perhaps a few of them could look into planning, funding,and beginning a campaign of litigating voting rights issues under state constitutions.

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