Today’s Legal Times has an article by Tony Mauro on a recently discovered in-chambers election law opinion from 1912, Marks v. Davis. The text of the opinion, co-signed by Justices Pitney and Van Devanter, is available here. The Mauro article suggests that the newly-discovered opinion may be an important precedent; the article is titled “The Case That Could Have Altered Bush v. Gore.” I’m skeptical about that claim, but I think it’s a pretty cool story either way.
What is an in-chambers opinion, you’re wondering? The Supreme Court’s website explains that
[a]n in-chambers opinion is written by an individual Justice, usually the Justice for the Circuit from which the case arises, to dispose of an application by a party to the case for interim relief, e.g., for a stay of the judgment of the court below, for vacation of a stay, or for a temporary injunction.
For much of the Supreme Court’s history, in-chambers opinions were pretty much ignored. According to Cynthia Rapp, Deputy Clerk at the Supreme Court:
In chambers opinions were not reported in a routine manner until the 1969 Term, when they began appearing in the United States Reports. Prior to this time most could be found in unofficial Supreme Court reporters. Some opinions have no official citation.
Marks v. Davis is one of the opinions without an official citation; it was issued and then forgotten. According to Mauro’s article, the opinion was unearthed in the archives of the Kansas State Historical Society by GMU law prof Ross Davies, editor of The Green Bag.
Marks v. Davis arose amidst the Presidential election of 1912, when several electors from Kansas wanted to cast their electoral votes for Theodore Roosevelt instead of William Howard Taft. A lawsuit followed, but the Kansas Supeme Court invoked the political question doctrine and refused to get involved. See Marks v. Davis, 125 P. 344 (Kan. 1912). A concurring opinion by Justice West expressed some uneasiness with this decision:
I am willing to join with my Brethren in saying that the mere announcement of a candidate for presidential elector that he will not vote for the nominee of the party would not be a sufficient ground to enable the signers of his petition to maintain this suit. But, to my mind, the right of the signers, before the primary ballot is printed, to have their names removed, if procured by false pretenses, is probably a legal right which, under the Anglo-Saxon system of law, should not be a right without a legal remedy. It is also apparent that incidentally involved in this proceeding is the right of thousands of voters in this state to vote for the nominee of their party, and, in my opinion, the result is likely to be, to this extent, their political disfranchisement at the coming election.
Just a few days later, the plaintiffs argued their case to Justices Van Devanter and Pitney. The Justices co-authored a very brief opinion issued the same day as the hearing. The opinion expresses a tentative sense that there were important federal questions involved:
Some of the opinions of the court contain expressions which tend to sustain the contentions of the plaintiffs. Whether in view of the facts in the cases in which these expressions occur they should be regarded as deliberate and controlling ought not to be determined otherwise than by the court itself. It is conceded that the questions are important and of large public concern, and we have concluded that those who present them are fairly entitled to the judgment of the court which by the constitution is made the final arbiter of all controversies arising under that instrument. In this situation we think the writ of error should be allowed.
The Justices declined to grant any relief, however:
But as courts are reluctant to interfere with the ordinary course of elections, whether primary or otherwise, as the rights asserted are not clear but doubtful, and as the injury and public inconvenience which would result from a supersedeas or any like order, if eventually the judgment of the state court should be affirmed, or the writ of error dismissed, would equal the injury which otherwise would ensue, we think no supersedeas or kindred order should be granted.
Does the opinion have any legal relevance today? According to the Mauro article, the opinion “stands for the proposition that the Supreme Court should butt out of election disputes until state courts finish their work.” Perhaps. On the other hand, it’s hard to know what to make of the case without knowing what issues the parties raised, or what standards the Court applied to review of such cases back in 1912. Either way, pretty cool.
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