On March 5, the U.S. Supreme Court issued a six-page opinion in Lance v Coffman, 06-641. The Court had not heard oral arguments in this Colorado redistricting case. In its unsigned March 5 opinion, the U.S. Supreme Court explained why the case should never have been heard in the lower federal court in Colorado. The case had been brought by six Colorado voters who were unhappy that the Colorado legislature had never been given a chance to implement its own redistricting plan for Congress, after the 2000 census.

The U.S. Supreme Court decision of March 5 simply says that ordinary voters don’t have standing to file a lawsuit, arguing that Article One of the U.S. Constitution (specifically, the “Elections” Clause, which says that state legislatures may write laws governing congressional elections but that Congress may supercede them if it wishes) has been violated.

After the 2000 census, the 2001 Colorado legislature tried and failed to draw new congressional districts. Therefore, a Colorado state court stepped into the breach and drew its own plan, which was used in 2002. It was considered somewhat favorable to Democrats. In 2003, both the legislature and the Governorship were in the hands of Republicans, and the legislature drew a new congressional districting plan. But the Colorado Supreme Court said that the state constitution only permits congressional districts to be drawn once in each decade, and since a lower court had done that already in 2001, that plan could not be altered by the legislature.

Since the Elections Clause of Article One of the U.S. Constitution says state legislatures (not courts) shall enact election laws, the voters (who were favorable to Republicans) then filed a federal lawsuit, claiming the Elections Clause had been violated because a state court, instead of the state legislature, had drawn the lines. But the March 5, 2007 decision of the U.S. Supreme Court says ordinary citizens cannot bring such a lawsuit; only a state government may do so.

The unspoken question hovering over this case is why (given the standing rule announced by the Court on March 7) George W. Bush had standing to bring his case, Bush v Gore, in November 2000. The March 5, 2007 decision does not say anything about Bush v Gore. In Bush v Gore, Governor (now President) Bush had argued that the Florida Supreme Court had no right to alter election law concerning recounts, since the Elections Clause says only the legislature can write laws about federal elections. In Bush v Gore, the U.S. Supreme Court did not answer that question, but instead settled Bush v Gore under the 14th amendment, claiming that some voters’ votes were recounted under different rules than other voters’ votes, and that violated Equal Protection. If courts would follow the Equal Protection principle set forth in Bush v Gore, it would be far easier to win ballot access lawsuits. But lower courts have been timid about following Bush v Gore.