December 10, 2015 — Professor Derek Muller‘s discovery of a long-lost footnote is discussed in a Huffington Post article entitled “How a Long-Lost Footnote Could Save the Supreme Court from Itself: The biggest voting rights case of the year may depend on a few sentences that never saw the light of day — until now.” The article discusses a footnote in Burns v. Richardson, a 1966 redistricting case from Hawaii, which is the subject of an article by Professor Muller that will appear in the Harvard Journal of Law and Public Policy.
Excerpt from The Huffington Post:
Or as the court put it in Baker, the 14th Amendment requires that a person’s right to vote be “free of arbitrary impairment by state action.”
That sounds like a laudable result. But not so for Pepperdine University law professor Derek Muller, the discoverer of the lost footnote. His research has led him to conclude that Baker and the cases that followed it — including 1964’s Reynolds v. Sims, which cemented “one person, on vote” as a constitutional maxim — were all a big mistake.
“These are very political cases,” Muller told The Huffington Post. “For a long time they were deemed something politicians should decide, and not the court.”
In an article to appear in the Harvard Journal of Law and Public Policy, Muller explains how the court went astray in these cases. And with his sights set on the Evenwel case, he argues that the dispute presents the Supreme Court with an opportunity to avoid the error of going back “to the judicial nationalization of state legislatures.”
All questions with no easy answers. Which brings us back to the long-lost footnote.
Muller unearthed it when he dug through Supreme Court archives at the Library of Congress, with a special focus on the Baker case and others that followed. As he advances in his soon-to-be-published Harvard article, the footnote practically resolves the dispute in Evenwel and provides the Supreme Court with a clean, uncontroversial and deferential path that should help it steer clear of messy politics.
For the complete article, visit: HuffPost Politics