Election law cases have come to the Supreme Court in droves in recent years, as conservative activists have taken advantage of federal laws that provide for a direct appeal to the Supreme Court in certain campaign finance and voting rights cases heard by three-judge district courts.  What is similar about Citizens United v. FEC, McCutcheon v. FEC, NAMUDNO v. Holder, and Evenwel v. Abbott?  In each one of these cases, the Justices agreed to hear a direct appeal from a three-judge district court.  Three-judge districts courts (composed of two district court judges and one court of appeals judge) are a rarity in federal law, but play a very significant role in campaign finance and voting rights law. Congress has provided for three-judge courts in constitutional challenges to Bipartisan Campaign Reform Act, certain suits brought under the Voting Right Act, and in constitutional challenges to state redistricting.  A litigant does not have an automatic right to a three-judge court, and various considerations go into the decision to convene a three-judge court, but once convened, a case gets special treatment. Most important, appeals from three-judge courts go straight to the Supreme Court.  In the hands of conservative activists, immediate appeal to the Supreme Court has been a potent weapon for deregulating campaign finance law and gutting the Voting Rights Act.  Since John Roberts became Chief Justice nearly ten years ago, almost every Term has featured a major election law case coming by direct appeal.  And more are on their way. 

That’s why it is significant that the Supreme Court this week agreed to hearShapiro v. Mack, a case concerning the circumstances in which a single federal district court judge may refuse to convene a three-judge court.  In Shapiro, a constitutional challenge to congressional districting by the State of Maryland, the plaintiffs argued that the state’s congressional districts were so badly gerrymandered that they violated the Constitution.  The district court disagreed, finding that the case did not warrant a three-judge court.  Next Term, the Justices will decide whether the case should have been heard by three judges instead of one.  While Shapiro raises only a narrow question of procedure under the Three-Judge Court Act, the consequences are significant.  

Cases decided by a single federal district court judge, which make up the vast majority of federal cases, go through a lengthier judicial process if appealed, including review by the federal court of appeals, and are very rarely accepted for Supreme Court review.  Appeal to the Supreme Court is discretionary, and notoriously difficult to obtain.  Moreover, the Supreme Court has complete control over its certiorari (discretionary) docket, and can refuse to hear a case for any reason without setting any judicial precedent for the future.   But three-judge court cases are radically different, as the Supreme Court is required to act on a direct appeal from the decision of a three-judge court.  When such an appeal is filed, the Justices have three options—either to summarily affirm, to dismiss the appeal for want of a substantial federal question, or to accept the case for full review.  Unlike a denial of a petition for a writ of certiorari, each of these actions sets a precedent for the future.  Because the Justices are often wary of setting a precedent without full briefing, direct appeals from three-judge courts quite often receive full review on the merits.   

When Earl Warren was Chief Justice, direct appeals from three-judge courts were available in a broad range of constitutional challenges to state laws (that part of federal law has since been repealed), and they helped ensure that civil rights cases reached the Justices quickly.  Indeed, the NAACP, under the leadership of Thurgood Marshall, and other civil rights litigators time and again appealed directly to the Supreme Court to help topple Jim Crow and to establish the one person, one vote principle.  Today, it is conservatives who are using direct appeals to get blockbuster cases to the Supreme Court.  

The Evenwel case recently accepted for review by the Justices is a perfect example.  For more than a decade, conservative activists have been pushing the argument that the one person, one vote rule requires states to draw districts that contain equal numbers of voters, and that it is unconstitutional for states to count the total population, including non-citizens and children, even though that is what is required by the Constitution when a state is drawing congressional districts.  Every court to consider the question has rejected that argument, and the Supreme Court on a number of occasions has denied review, most likely because there was no conflict in the lower courts.  Even as late as 2013, the Roberts Court refused to review a case similar to Evenwel, with no noted dissents from that denial of review.  But now, with the question packaged in a direct appeal from a three-judge court, the Justices have agreed to decide it, unwilling to simply affirm the lower court judgment without additional briefing, analysis, or argument.

Not surprisingly, there is often heated debate over whether a three-judge court is appropriate.  When Shelby County v. Holder was filed, the plaintiffs requested that it be heard by a three-judge court.  The district judge in the case, however, determined that it should be heard by him alone.  In that instance, it turned out not to matter.  The Supreme Court agreed to review Shelby County despite the absence of a circuit split, producing a landmark ruling gutting a key part of the Voting Rights Act and striking a blow against the power of Congress to protect the right to vote free from racial discrimination.  Shelby County is the exception that proves the rule.  Virtually all the big Roberts Court cases that have changed the ground rules for our democracy have been direct appeals from three-judge courts.   

What this reflects is a long term conservative strategy for getting blockbuster campaign finance and voting rights cases to the Supreme Court.  It is a strategy that has paid off time and again as John Roberts and his conservative colleagues have made it easier for corporations and the wealthy to spend unlimited sums of money on elections, and harder for Americans to vote in them. 

This post is cross-posted at Balkinization.