The Volokh Conspiracy

Last week, in RNC v. Mi Familia Vota, the Supreme Court granted a partial stay of a district court order enjoining portions of Arizona's election laws that require proof of citizenship for voter registration. The question splintered the justices. Justices Thomas, Alito and Gorsuch would have stayed the district court order (allowing the Arizona law to take effect) in full, while all four female justices (Kagan, Sotomayor, Barrett and Jackson) would have denied the stay request across-the-board. Thus the Chief Justice and/or Justice Kavanaugh made the difference (possibly "or" because only one of them needs to have voted with the female justices to deny part of the stay request).

Over at the Election Law Blog, there is a little debate over whether this order violates the "Purcell Principle," which seeks to prevent meaningful changes to election laws or election administration in the run up to election day.

Rick Hasen thinks the order violates the principle, because it alters and complicates the rules governing voter registration. Although he's not a fan of Purcell, he thinks the Supreme Court should be criticized for not applying it consistently. He writes:

beginning today, people who try to register to vote using the state form who do not provide documentary proof of citizenship while registering to vote will not be allowed to register at all. This is a change from the past when they could vote at least in federal races. It's going to create administrative confusion and voter disenfranchisement in the period before the election. Although the plaintiffs in the case raised the Purcell issue repeatedly, the Supreme Court ignored it here. . . .

The instructions on the state form are incorrect, there's not going to be enough time to get the word out to voters, and procedures have to change with the election just weeks away. How a court that is committed to Purcell could allow this to happen is inexplicable.

Derek Muller takes a different view. According to Muller, Purcell is not about whether the Supreme Court should stay its hand in the period just before an election, but whether the federal judiciary should. He writes:

I think the opening description of Purcell, one that "discourages court orders in the period before the election on grounds that it can cause election administrator difficulties and voter confusion," isn't necessarily the right framing. I think Purcell is about court orders that change the legal status quo, not simply any change.

Consider three of the major Court decisions here:

Purcell: The Arizona legislature enacted a statute on voter identification; the Court discourages a court from issuing an order changing the status of that statute too close to an election.

RNC v. DNC (2020): The Wisconsin legislature enacted a statute on the date of holding an election; the Court discourages a court from issuing an order changing the status of that statute too close to an election.

Merrill v. Milligan (2022): The Alabama legislature enacted a statute setting boundaries in legislative election; the Court discourages a court from issuing an order changing the status of that statute too close to an election.

RNC v. Mi Familia Vota fits this pattern exactly. The Arizona legislature enacted a statute in 2022 about proof of citizenship; the Court discourages a court from issuing an order changing the status of that statute too close to an election.

So in this posture, here's the typical issue: there is a law on the books (new or longstanding) that a plaintiff tries to enjoin from operation. The plaintiff is likely to succeed on the merits, but the defendant argues the timing precludes the injunction. . . .

if the Court is serious about Purcell, . . . the majority has it right. The problem is a district court's decision to enjoin operation of a statute close in time to an election. If we are close to an election, the court should not enjoin the operation of a statute under Purcell. There may be other equitable considerations at stake, and there may be concerns about election administration, but those are distinct issues.

Professors Hasen and Muller are both more expert on this question than I am, but Professor Muller's account is more consistent with the way that I have understood Purcell. As I see it, if the principle is to apply to lower courts, then the Supreme Court has no choice but to intervene no-less-close to an election than the offending lower court if the principle is to mean anything at all. To which I suspect Professor Hasen would reply: Perhaps that is a reason not to have this principle in the first place. I take the point, but would question whether abandoning Purcell altogether would make it too easy to game election rules with strategic litigation.

UPDATE: Hasen responds to Muller.

Hi all, in preparation for Dragon Con here in Atlanta this coming weekend, I present "Suddenly, Kahless", a song to the tune of "Suddenly, Seymour" from Little Shop of Horrors. I wrote it during Dragon Con's "Klingon Karaoke" event last year, but didn't have a chance to sing it then — but I hope to do the first public performance during this year's Klingon Karaoke this Sunday. Note: you're unlikely to appreciate this song unless you're into Star Trek.

If you're interested in any of my other (non-academic) work, I recommend you look at my YouTube channel generally, "Honesta homo" (a film about Diogenes in Esperanto), "Palladio Shark", or the Sasha Reads playlist where I do readings of 50 of my favorite poems. Or, if law songs are up your alley, check out "I've Looked at Law from Both Sides, Now", "The Ballad of FDA v. Brown & Williamson", or "You Don't Need a Canon" (studio version and music video version).

The Dispatch reports that congressional Democrats are making plans to "reform" the Supreme Court and counteract recent abortion and voting rights decisions should they obtain unified control of Congress while retaining the White House. This is according to  Senator Sheldon Whitehouse, who appeared on a panel last Thursday during the Democratic convention where he addressed these issues.

If Democrats capture the White House, the Senate, and the House of Representatives, Whitehouse said, Senate Democrats would be "virtually certain" to pass a "Supreme Court reform" bill by a simple majority, evading the current 60-vote requirement for legislation. The senator said Democrats would tie their Supreme Court legislation—imposing 18-year term limits for Supreme Court justices and establishing ethics and recusal rules—to an omnibus package that would include a bill creating a national right to abortion and other top Democratic priorities.

"To get around the filibuster, we're going to have to have a process that allows very substantial debate from the Senate minority," Whitehouse said at an event hosted in Chicago by the Brennan Center for Justice. "We are not going to want to give the Republicans multiple stalls, multiple filibusters on this, so the bill that gets around the filibuster will be virtually certain to include permanent reproductive rights, permanent restored voting rights, getting rid of corrupting billionaire dark money, and Supreme Court reform. If you've got a bill like that moving, that's going to have spectacular tailwinds behind it." . . . .

While Vice President Harris has not publicly endorsed this plan, the Biden-Harris administration has endorsed the broad strokes of such reforms, including term limits for justices. This apparently leads Senator Whitehouse to conclude that a Harris-Walz administration would support his plan.

Whitehouse told Dispatch Politics on Thursday that he expects Harris will support legislation to enact Supreme Court term limits. "They have not gone so far as to say, 'We endorse your bill.' They have said that your bills are precisely aligned with what we are talking about," he said when asked if he had received any formal indication from Harris's campaign that the vice president supports his term-limit legislation. . . .

Whitehouse's Supreme Court term limits bill in its current form requires an intervening presidential election before taking effect, but the senator was noncommittal when asked if that's an essential piece of the legislation. "Everything is subject to the will of the Senate and the House and the input from the president as we do these things," Whitehouse told Dispatch Politics. "The point of that is that we want to make it seem a little bit less like it's an immediate targeting" of Supreme Court justices.

While this would be a big change, Rep. Raskin's remarks suggested that convention organizers did not want to make court reform a major theme, perhaps for fear of alienating moderates.

When the moderator at Thursday's Supreme Court panel asked why there had been so little talk of court reform from speakers at the Democratic convention, Raskin said that he submitted a 5,000-word speech to convention organizers, mostly focused on the Supreme Court, but was asked to cut it down to 500 words. "There was a half sentence where I described them as the kangaroo Supreme Court, and I got that in, but that was all I could get," Raskin said.

Separately, Senate Majority Leader Chuck Schumer has indicated that a change to current filibuster rules is at the top of his agenda. He previously supported passing voting rights legislation by a majority vote and has indicated a willingness to consider avoiding the filibuster for abortion rights legislation as well.

Fun fact, passed along in illustrated form by Brilliant Maps.

There are two staples of every 1L curriculum. First, in Constitutional Law, Employment Division v. Smith drew a distinction between belief and actions. The Constitution squarely protects all religious beliefs, but those protections do not necessarily extend to actions. To use United States v. Reynolds as an example, a person can believe that polygamy is a religious mandate, but that belief does not override a law barring multiple spouses. Smith more-or-less followed this rule, holding that one could believe that peyote is part of a religious ritual, but that belief does not mandate an exemption from controlled substance laws. The second chestnut is Pierson v. Post. This case applied the rule of capture to a fox hunt. The first person to actually lay hands on a fox gains possession. It does not matter that a hunter accompanied by hounds was engaged in a lengthy, regal pursuit. That decision, from 1803, also reflected the rejection of the aristocratic fox hunt by the young-scrappy-and-hungry country.

What do these two cases have in common? Before today, I would have said the answer was nothing. But the doctrines merge!

The United Kingdom banned fox hunts. Now, fox hunters are asserting that their practice is a (religious) belief. I put religious in parentheses, because under English law, there is no requirement that a belief be religious to obtain protected status. But I think this question is in the same ballpark as religious belief.

The New York Times offers a useful summary of the conflict.

Ed Swales, the activist, founded Hunting Kind, a lobby group that aims to protect hunting with dogs and other forms of hunting, in early 2022. He wants to use Britain's Equality Act — which protects people from discrimination because of their age, race, sexuality or religion, among other things — to classify a pro-hunting stance as a protected belief.

That would put it in the same legal category as atheism, pacifism, ethical veganism, and, ironically, a moral opposition to fox hunting.

"If he's 'anti-hunt,' well, you can be 'hunt,'" Mr. Swales said. "It's just the same law."

Mr. Swales, 55, said he was preparing to bring a series of anti-discrimination lawsuits in the hope of setting a legal precedent that could, eventually, help reverse the fox-hunting ban.

"We've been doing this for millennia," he said. Hunting is "literally part of our cultural heritage."

You may think this argument is frivolous, but UK law defines a belief quite broadly.

Several lawyers and academics who study discrimination said Mr. Swales's argument might have some success, but the bar would be high. Under Britain's 2010 Equality Act, a protected characteristic must "be a belief and not an opinion or viewpoint" and it must "not conflict with the fundamental rights of others."

"The test requires that the belief be genuinely held and that it be sufficiently cogent and weighty and coherent," said Colm O'Cinneide, a professor of constitutional and human rights law at University College London. A mere political opinion would not pass muster, he said: "There needs to be some sort of belief structure or framework."

The UK Law has an express requirement that one's belief does not conflict with other "fundamental" rights. This is more-or-less Justice Ginsburg's Hobby Lobby dissent, and one possible reading of Cutter v. Wilkinson. The Supreme Court has not gone down that road, and has more-or-less rejected the third-party harms doctrine. (Do we even care about Justice Kennedy's Hobby Lobby concurrence after Roman Catholic Diocese?)

This definition also relates to difficult questions under American law that I have written about (and enraged people with). What is a religion? And is a religion sincerely held? I do not know how these questions shake out under UK Law, but I am skeptical this Church of Fox Hunting would be considered a religious belief in the United States. And this entire scheme seems like a cynical ploy to let people hunt foxes. It does not strike me as particularly sincere.

The U.S. Court of Appeals for the Eighth Circuit has decided that ATF's Final Rule determining that most pistols with stabilizing braces are short-barreled rifles is arbitrary and capricious.  The case is Firearms Regulatory Accountability Coalition, Inc. v. Garland ("FRAC"), decided on August 9 and authored by Judge Steven Grasz.

The decision is filled with illustrations, beginning with a shooter with the brace's strap wrapped around his forearm and a cuff further supporting the forearm.  The device facilitates holding a heavy pistol with one hand.  At the peak of their popularity in 2020, there were seven million braces owned by the public. Untold numbers were sold between then and when the Final Rule was published in 2023.  ATF previously said the braces are legal.  However, as the court notes, "The consequence of the ATF's about-face is that many individuals, relying on the ATF's previous classifications, were apparently committing felonies for years by possessing braced weapons."

The ATF rule's first step is to see if the rearward attachment of a brace "provides surface area that allows the weapon to be fired from the shoulder," but it gives no mathematical guidance as a standard.  ATF implies that, if actual dimensions are set, cheaters will circumvent the rule.  The court responds: "That the regulated parties wish to see more specific metrics does not mean they wish to skirt or circumvent the law, as ATF insinuates. They may simply wish to comply with the law, by producing or equipping stabilizing braces that do not have a rear surface area that allows for shoulder firing a weapon."

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