Is the Supreme Court’s shrinking election law docket a legacy of Bush v. Gore or fear of the Roberts Court?

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Richard Hasen describes the drop in Supreme Court election law cases in the first decade of the twenty-first century, and offers at least a partial explanation as to the reasons for the drop. Although the general amount of election law litigation has risen dramatically since 2000, the number of cases in which parties sought Supreme Court review declined by more than 36 percent from the 1991-2000 decade compared to the 2001-2010 decade. Factoring that decline into account, the data show that the Court issued written opinions in nearly the same percentage of election law cases each decade in which parties sought Supreme Court review – 11.9% of cases in the 1991-2000 decade, and 10.5% of cases in 2001-2010. While I cannot exclude the possibility that the Court shied away from hearing some election law cases out of Bush v. Gore fatigue or as the result of random noise, the drop in the number of election law cases in which litigants sought Supreme Court review cases seems to explain a great deal of the decline. This article concludes by considering why the number of cases in which litigants sought Supreme Court review dropped so precipitously in 2001-2010 even as the total number of election law cases in the lower courts increased dramatically. One reason is that liberal litigants who had sought review especially in voting rights cases in the 1990-2000 period were less willing to do so in the 2001-2010 period, likely because they expected unfavorable results before the more conservative Roberts Court. The 2005-2010 period is especially important; the number of election law petitions in the Supreme Court dropped precipitously after Justice Alito joined the Court.

Peter Schorsch is the President of Extensive Enterprises and is the publisher of some of Florida’s most influential new media websites, including SaintPetersBlog.com, FloridaPolitics.com, ContextFlorida.com, and Sunburn, the morning read of what’s hot in Florida politics. SaintPetersBlog has for three years running been ranked by the Washington Post as the best state-based blog in Florida. In addition to his publishing efforts, Peter is a political consultant to several of the state’s largest governmental affairs and public relations firms. Peter lives in St. Petersburg with his wife, Michelle, and their daughter, Ella.