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Election Case Risks Awkward About-Face for Biden Administration

Nov. 23, 2020, 10:01 AM

President-elect Joe Biden’s top lawyer at the Supreme Court may have no choice but to change the government’s position in an election dispute out of Arizona, the sort of pivot that is awkward for lawyers and irritates the justices.

The case, Brnovich v. Democratic National Committee, takes aim at voting restrictions passed by the state to limit out-of-precinct voting and restrict who can collect and return mail-in ballots. Republicans say the law is designed to prevent voter fraud while Democrats say it disenfranchises minority voters, who disproportionately vote outside their precincts and rely on others to handle their mail-in ballots.

That case is one in which the incoming Biden administration may do an about face, said Paul Bender, who was the second in command in the solicitor general’s office during the Clinton administration.

The new solicitor general will try to do as much as possible to avoid that, Bender said. “But sometimes, you just can’t.”

If pushed to change positions it could hurt the incoming solicitor general’s reputation as an apolitical actor, making arguments based on the law rather than political considerations.

Deference Compromised

In addition to the Arizona election case, the Biden administration seems likely to say it no longer supports GOP-led states in their efforts to take down Obamacare, given the former vice president’s critical role in getting it passed in 2010.

The next administration’s SG also seems likely to ask the court to nix cases involving controversial Trump-era policies, including the “remain-in-Mexico” immigration policy at issue in Wolf v. Innovation Law Lab, and funding for the border wall in Trump v. Sierra Club.

Still, such changes “of position are relatively rare, even when the party in power changes,” said Morrison & Foerster’s Joseph Palmore.

That’s in part because a large number of cases handled by the office don’t have a political bend.

“For example, a large part of the docket is criminal, and the government’s positions in criminal cases tend to be consistent across administrations,” said Palmore, an alumnus of the SG’s office.

There’s a perception that changes in position occur more frequently than they actually do, Palmore said, likely because changes “are most likely in politically charged, high-profile cases.”

But there’s “also a general reluctance to change positions for fear of hurting the Office’s credibility with the Court,” Palmore said.

President Barack Obama’s SG Donald Verrilli was sharply questioned in 2012 by the late Justice Antonin Scalia in a case dealing with human rights abuse abroad, Kiobel v. Royal Dutch Petroleum.

“General Verrilli, that’s a new position for the State Department, isn’t it?” Scalia interrupted.

“Why should we listen to you rather than the solicitors general who took the opposite position?” Scalia asked.

“Justice Scalia’s point means whatever deference you are entitled to is compromised by the fact that your predecessors took a different position,” Chief Justice John Roberts added.

But Democratic administrations aren’t the only ones to change course this way.

Justice Sonia Sotomayor expressed similar sentiments in a 2018 case about public sector unions, Janus v. AFSCME. “Mr. General, by the way, how many times this term already have you flipped positions from prior administrations?” she asked President Donald Trump’s solicitor general, Noel Francisco.

It had already happened three times during the administration’s first full Supreme Court term.

But fear of a rebuke during oral arguments isn’t the only factor urging caution when considering whether to change the federal government’s position.

The Office of the Solicitor General likes to be seen as an apolitical institution. But switching sides makes it seem like the government’s position is based on politics, not law, Bender said.

That’s why a big factor in whether the administration will change course dramatically is how strongly the new solicitor general—or the person acting the part while the nominee goes through Senate confirmation—feels about the issue, Bender said.

High Stakes

In the Arizona case now before the Supreme Court, the Biden administration may feel strongly about striking down voting restrictions given that the state voted for a Democratic presidential candidate for just the second time since 1952.

Democrats challenging the laws say they disproportionately disenfranchise minority voters—voters who tend to cast their ballots for Democratic candidates.

Republicans supporting the laws say they are needed to fight voter fraud.

But strong feelings and high-stakes don’t guarantee that the new solicitor general will have to change sides, Bender said.

Opening briefs are due Nov. 30, meaning that a Trump administration brief in support of the laws would be filed in early December—just weeks before Biden takes office.

While not unheard of, that timing may convince the Acting Solicitor General Jeffrey Wall to stay his hand. The Justice Department didn’t respond to a request for comment.

If Wall does file a friend-of-the-court brief, however, “it would be a big problem for the Biden administration,” Bender said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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