The liberals haven’t had a good couple of weeks in the S.C. Supreme Court. Well, they never have, because we don’t have a liberal Supreme Court; we don’t have a conservative court either, at least not in the way that word has been misused in recent decades. But the court has been particularly unaccommodating on two of the left’s priorities.
On Wednesday, the unanimous court dismissed the League of Women Voters’ lawsuit challenging the constitutionality of South Carolina’s congressional districts, ruling that it was a political dispute outside the court’s jurisdiction.
Of course this was expected; I ‘d be surprised if even the plaintiffs honestly thought they would prevail on the emerging legal theory that state constitutions can do what the U.S. Constitution can’t to stop gerrymandering for non-racial reasons.
What was surprising was the bone they got from Chief Justice John Kittredge, who — perhaps in an effort to help the public understand that the decision had nothing to do with the justices’ feelings about the political question they couldn’t decide — wrote in a concurring opinion that extreme partisan gerrymandering is “diminishing our constitutional republic as a whole,” and implicitly urged the nation’s highest court to find a way to rein it in.
The problem with the lawsuit was that it asked the court to declare the Legislature’s partisan gerrymandering unconstitutional in a state where the court has always held — and would-be justices are expected to swear their allegiance to the doctrine — that legislative enactments are presumed to be constitutional. That — more than the partisan or nonpartisan content of the underlying statute — helps explain why most efforts to get state laws declared unconstitutional fail.
In fact, the current court is pretty much the Legislature’s response to a decade of the court declaring state laws unconstitutional: mostly those that violate our constitution’s prohibitions on single-county laws and laws that deal with multiple topics, but also the statutory and funding regime that failed to provide adequately for a decent education for poor kids.
The bigger blow for liberals was the decision six days earlier — also unanimous — to lift temporary orders that were blocking the State Election Commission from providing sensitive voter registration information to the U.S. Justice Department.
Or at least that’s a bigger blow to anybody who didn’t read the order. Do that, and it’s hard to object.
I haven’t entirely decided what to think about the propriety of the Trump administration’s effort to seize state voter databases. On the one hand, the administration already has access to our complete Social Security numbers. That’s why I’ve never bought into the hysteria — which used to reside on the right and has now migrated to the left — about the federal government getting its hands on our personal data, by which critics mean government-created data. See the problem with that?
On the other hand, there’s the question of why a presidential administration — to which the Constitution gives no role in running elections — needs states’ voter data; if it’s to investigate fraud, you’d think the requests would be targeted, and you wouldn’t think they would include information about election officials. And then there’s the matter of the identity-theft threat posed by shipping off neatly packaged tranches of that sensitive personal data to an administration that has a less-than-stellar record of keeping secrets secret.
But our state court didn’t get into any of that.
Instead, it focused on its job: determining whether the lower-court judge had followed the rules in issuing a temporary restraining order and a preliminary injunction. The answer in both cases was an unequivocal no.
First, the justices wrote, well-established court rules say that in order to issue a temporary restraining order before the defendant even knows the lawsuit had been filed, a judge must “define the injury and state why it is irreparable and why the order was granted without notice” to the defendant. Circuit Judge Diane Goodstein’s order issuing an ex parte TRO did none of that.
Second, the court has held repeatedly that judges can’t issue an ex parte restraining order against the state, as the judge did.
Third, in order to issue an injunction, a judge must find that the plaintiff will suffer “immediate, irreparable harm” without it, that the plaintiff is likely to succeed on the merits of the case and that the plaintiff has no other legal remedy. Here, the justices noted, Judge Goodstein did state that the plaintiff in Crook v. S.C. Election Commission would suffer irreparable harm if the database were sent to Washington, but she didn’t explain how, as required. And she didn’t even address the other two mandatory elements of the test.
Think the justices were grading on a curve? Here, absent only scheduling matters, is the judge’s order: “Upon due consideration of the Plaintiff’s verified Petition for a Temporary Restraining Order filed by Plaintiff herein, the Court finds that there is a likelihood that immediate and irreparable damage will result to Plaintiff if her personal information data is released in violation of her right to privacy, which is protected in South Carolina by the South Carolina Constitution, the United States Constitution, and applicable state privacy laws, election laws, and criminal laws. Therefore, the Court GRANTS Plaintiff’s Petition for an ex-parte Temporary Restraining Order and Motion for Preliminary Injunction.”
That’s it. The whole thing.
I don’t read enough U.S. Supreme Court opinions to know how often those decisions are similarly apolitical, although those unsigned, unexplained emergency docket orders worry me. But decisions that are based on the rules and the law and the state constitution are commonplace in South Carolina, and it’s important at this moment of plummeting trust in the judiciary to realize that. Don’t take my word for it: Start reading the opinions yourself.