Fig leaves and tea leaves in the supreme court's recent election law decisions

Supreme Court Review

Volumn 2008, Issue , 2008, Pages 89-130

  Persily, Nathaniel ^a  

^a Columbia Law School ^*  (United States)

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EID: 67650422501     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/655123     Document Type: Review

References (188)

1. Davis v FEC. 128 S Ct 2759 (2008).
2. Crawford v Marion County Election Bd. 128 S Ct 1610 (2008).
3. Riley v Kennedy. 128 S Ct 1970 (2008).
4. Wash. State Grange v Wash. State Republican Party. 128 S Ct 1184 (2008); New York v Lopez Torres. 128 S Ct 791 (2008).
5. See. for example. Michael Cooper. McCain to Obama: "Keep Your Word." NY Times Polit Blog (Apr 11. 2008). online at htttp://thecaucus.blogs.nytimes.com/2008/04/ll/ mccain-to-obama-keep-your-word.
6. See. for example. Katherine Q. Seelye. Florida and Michigan May See Delegates Halved. NY Times (May 29. 2008). online at http://www.nytimes.com/ 2008/05/r29/us/politics/29 dems.html?ppartner = permalink&exprod = permalink; Katherine Q. Seelye. Clinton Camp's Argument: No Michigan Delegates for You. NY Times Polit Blog (May 30. 2008). online at http:// thecaucus.blogs.nytimes.com/2008/05/30/clinton-camps-argument-no-michigan- delegates- for-you/; Order Granting Motion for Summary Judgment; Motion to Dismiss. Nelson v Dean. No 4:07cv427-RH (entered Dec 14. 2007). online at http://moritzlaw.osu.edu/electionlaw/ liagation/documents/Nelson-ORDER12-14-07. pdf.
7. See Crawford. 128 S Ct 1610 (2008).
8. See Riley. 128 S Ct 1970.
9. 28 S Ct 1610.
10. See Purcell v Gonzalez. 127 S Ct S (2006) (sustaining at a preliminary stage a district court decision upholding a voter ID law); Common Cause/Georgia v Billups. No 07-14664 (11th Cir 2009). online at http://www.call.uscourts.gov/opinions/ops/200714664.pdf (rejecting challenge to Georgia photo ID law). Weinschenk v State. 203 SW3d 201 (Mo 2006) (striking down Missouri voter ID law).
11. See Siobhan Morrissey. Newsmaker of the Year. 94 ABA J 26 (2008) (naming Alberto Gonzales "Newsmaker of the Year." largely for his role in the firing of eight U.S. attorneys); Philip Chignon. Democrats Were Targets in Inquiries. Panel Is Told. NY Times (Oct 24. 2007). online at http://www.nytimes.com/2007/10/24/Washington/24prosecute.htmlPscp = 2&sq = gonzales+U.S.+attorney&st = nyt (discussing U.S. attorney firing scandal).
12. See Stephen Ansolabehere. Access versus Integrity in Voter Identification Requirements. 63 NYU Annual Surv Am L 613. 626 (2008) (demonstrating that the claims of both vote fraud and vote suppression were overblown); Michael J. Pitts. Empirically Assessing the Impact of Photo Identification at the Polls Through an Examination of Provisional Ballots. 24 J L & Pol (forthcoming 2009) (estimating 400 voters in Indiana cast provisional ballots that went uncounted because of an ID problem).
13. 128 S Ct 2759 (2008).
14. Id at 2766.
15. Id.
16. But see Editorial. Millionaires Win. Wash Post B06 Qune 29. 2008); Editorial. Justices for Free Speech. Wall St J (June 28. 2008). online at http://online.wsj.com/article/ SB121460646723712065.html?mod = googlenews-wsj#printMode; Editorial. Millionaire's Amendment. NY Times (Apr 21. 2008). online at http://www.nytimes.com/2008/04/21/ opinion/2lmonl.htmlPscp = 2&sq = Millionaire%92s%20Amendment%20&st = cse (discussing the case prior to oral argument).
17. 128 S Ct 1970 (2008).
18. Id.
19. Id at 1982.
20. 1 28 S Ct 791 (2008).
21. Id at 799.
22. 1 28 S Ct 1184 (2008).
23. Even in that one case. the Texas gerrymandering case LULAC v Perry. he was in the minority on only one aspect of the case: the decision to strike down one district as violating Section 2 of the Voting Rights Act.
24. 531 US 98 (2000).
25. See Heather K. Gerken. Rashomon and the Roberts Court. 68 Ohio St L J 1213. 1213 (2007) (noting the highly fractured decisions in recent election law cases).
26. See Vieth v Jubelirer. 541 US 267 (2004); League of United Latin Am. Citizens v Perry. 548 US 399 (2006) LULAC).
27. See McConnell v FEC. 540 US 93 (2003); FEC v Wis. Right to Life. Inc.. 127 S Ct 2652 (2007) ("WRTL"); Colo. Republican Fed. Campaign Comm. v FEC. 533 US 431 (2001) ("Colorado Republican II').
28. See Republican Party of Minnesota v White. 536 US 765 (2002).
29. See Georgia v Ashcroft. 539 US 461 (2003); LULAC. 548 US 399.
30. See Easley v Cromartie. 532 US 234 (2001).
31. There are just a few exceptions to this general pattern of post-Bush v Gore election law split decisions. In Randall v Sorrell. 548 US 230 (2006). the Court by a vote of six to three struck down Vermont's low contribution limits. In Clingman v Beaver. 544 US 581 (2005). the Court. in a fractured decision. upheld a law that prevented the Libertarian Party from allowing other parties' members to vote in its primary. Also. the first opinion in WRTL. 546 US 410. 412 (2006). was unanimous. but it merely remanded to the district court to entertain an as-applied challenge.
32. See Editorial. The Roberts Court Returns. NY Times (Sept 30. 2007). online at http:// www.nytimes.com/2007/09/30/opinion/3 Osunl.html ("At his confirmation hearings. ChiefJus- tice John Roberts told the Senate he had 'no agenda.' and famously compared his role to that of an umpire calling balls and strikes. He has also said he wants more consensus on the court. and fewer 5-to-4 decisions.").
33. Linda Greenhouse. Supreme Court Memo: At Supreme Court. S-to-4 Rulings Fade. but Why? NY Times (May 23. 2008). online at http://www.nytimes.com/ 2008/0S/23/us/23memo.htmlPpagewanted = print.
34. See Gerken. 68 Ohio St L J (cited in note 25) (noting the unstable middle on the Court in election law cases which has led to a "doctrinal interregnum").
35. See Richard H. Pildes. Foreword: The Constitutionalization of Democratic Politics. 118 Harv L Rev 28 (2004). I should emphasize that advocates of the markets paradigm. such as Rick Pildes and Sam Issacharoff. do not suggest that competition should be the exclusive and outcome-determinative consideration in election law cases. just that it should play a stronger role. Nor would these scholars necessarily advocate a different result in each of the cases from last term. given the relevance of other considerations.
36. A much longer discussion of the changing nature of as-applied doctrine in the recent election law decisions can be found in Nathaniel Persily and Jennifer Rosenberg. Defacing Democracy. Minn L Rev (forthcoming 2009).
37. See Rick L. Hasen. About Face: The Roberts Court Sets the Stage for Shrinking Voting Rights. Putting Poor and Minority Voters Especially in Danger. FindLaw (Mar 26. 2008). online at http://writ.lp.findlaw.com/ commentary/20080326-hasen.html; Dahlia Lithwick. Grandma Got Carded. Slate (Jan 9. 2008). online at http://www.slate.com/id/2181781/pagenum/all/ #page-start (discussing oral arguments in Crawford. Lithwick notes. "With increasing frequency. the court's conservative wing has been chipping away at facial challenges (the better to bar litigation). and today Scalia takes out a sledgehammer: 'I mean. every facial challenge is an immense dictum on the part of this court. isn't it?' He goes on to characterize all facial challenges as the court 'sitting back and looking at the ceiling and saying. oh. we can envision not the case before us. but other cases ⋯"').
38. WRTL. 127 S Ct 2652 (2007).
39. Id at 2673.
40. See Ayotte v Planned Parenthood of Northern New England. 546 US 320 (2006); Gonzales v Carhart. 550 US 124 (2007); Persily and Rosenberg. Minn L Rev (forthcoming 2009) (cited in note 36).
41. United States v Salerno. 481 US 739. 744 (1987) ("[T]he challenger must establish that no set of circumstances exists under which the Act would be valid.") (emphasis added).
42. 128 S Ct 1184 (2008).
43. Idatll95.
44. Id.
45. Id at 1194.
46. See Sample Ballot-Kitsap County. Washington. online at http://www.kitsapgov.com/ aud/elections/archive/08/sample%20ballot%20gen%202008. pdf.
47. See Crawford v Marion County. 128 S Ct 1610. 1622 (2008) ("Our reasoning in that case [Washington Grange] applies with added force to the arguments advanced by petitioners in these cases.").
48. 472 F3d 949. 951-52 (7th Cir 2007).
49. Crawford. 128 S Ct at 1626 (Scalia concurring).
50. The Court split into three equal camps in Crawford. Justice Stevens wrote the controlling opinion for himself. Justice Kennedy. and Chief Justice Roberts. Justice Scalia's concurrence was joined by Justices Alito and Thomas. Justices Souter. Ginsburg. and Breyer dissented.
51. 128 S Ct at 1622.
52. The Court adopted a similar approach in Baze v Rees. 128 S Ct 1520 (2008). rejecting a facial challenge to the three-drug protocol Kentucky uses in its executions. The mere risk that the protocol might be misused in a way that led the condemned to suffer did not justify striking it down on its face. What an as-applied challenge to the method might look like in the future is somewhat difficult to contemplate. given that someone else besides the person "injured" by the misuse of the protocol would then need to bring the case. Perhaps the next person who is to be subjected to the protocol could bring an "as-applied" challenge based on what was learned from the previous mistake.
53. 128 S Ct at 1622.
54. See Associated Press. Nuns with dated ID turned away at bid. Polls (May 6. 2008). online at http://www.msnbc.msn.com/id/24490932/; Michael Scherer. 7 Things That Could Go Wrong on Election Day. Time (Oct 26 2008). online at http://www.time.com/time/specials/ packages/article/0.28804. 1853246-1853243-1853238.00.html?imw=Y. Great disagreement exists as to how many people do not vote or end up voting a provisional ballot as a result of strict voter ID laws. Survey research suggests that ID laws have little effect on turnout. See Ansolabehere. 63 NYU Annual Surv Am L (cited in note 12). Relying on interviews of county election officials. the one study of the effect of voter ID in Indiana estimated that approximately 400 people cast provisional ballots that went uncounted in the 2008 presidential primary because of ID problems. See Pitts. 24J L & Pol (forthcoming 2009) (cited in note 12). The state does not release data that classify provisional ballots by "cause." nor do they release information as to how many ballots cast because of ID problems go uncounted or how many people are turned away because of ID problems. Therefore. those attempting to establish the ID requirement as a significant barrier to voting or one that has a measurable disparate impact on distinct groups will face great difficulties.
55. 129 S Ct 1622.
56. 540 US 93 (2003).
57. 1 27 S Ct 2652 (2007).
58. 58 McConnell. 540 US at 157 n 52.
59. WRTL. 127 S Ct at 2667. This creation of a rule pursuant to an as-applied challenge is all the more peculiar in the context of the BCRA. given that the statute included a backup "secondary definition" of electioneering communications that would be triggered if the primary definition were declared unconstitutional. The effect of WRTL was to redefine the primary definition of express advocacy without triggering the secondary definition and in effect rewriting a statute to produce regulatory language for which Congress never voted. See Persily and Rosenberg. Minn L Rev (forthcoming 2009) (cited in note 36).
60. WRTL. 127 S Ctat2684n 7 (Scalia.J. concurring in part. concurring in the judgment) (arguing for facial invalidation and describing WRTL's controlling opinion as exercising "faux judicial restraint"). WRTL and Washington Grange's discussions of the as-applied/ facial distinction are peculiar in another respect. Both constituted First Amendment challenges to election laws. In general. the Salerno rule is relaxed in the First Amendment context because of the fear of a chilling effect on speech. See. for example. Ashcroft v Free Speech Coalition. 535 US 234 (2002) (suggesting that a law will be facially unconstitutional if it prohibits a "substantial amount of protected speech"). These two cases almost appear to craft an election law exception to the general First Amendment overbreadth exception to facial challenges.
61. See Stewart v Marion County. 2008 WL 4690984. *3 (SD Ind. Oct 21. 2008).
62. See Common Cause/Georgia v Bilhips. No 07-14664 (11th Cir 2009). online at http:// www.call.uscourts.gov/opinions/ops/200714664.pdf.
63. In other words. the most opponents could hope for is a ruling that strikes down the law. for example. as applied to poor people who find it very difficult to get the required documents. such as a birth certificate. to then get an ID. But "very difficult" is probably not good enough. Most people falling into that category conceivably can get such documents; they just will not do so merely for the trivial benefit of voting.
64. See Michael C. Dorf. Facial Challenges to State and Federal Statutes. 46 Stan L Rev 235. 294 (1994) (suggesting the distinction between as-applied and facial challenges is largely dependent on the appropriate test determined by substantive doctrine).
65. The effects may already be seen in Florida Conference of the NAACP v Browning. 2008 WL 2567204 (ND Fla 2008) (rejecting facial challenge to Florida's "no match. no vote" law).
66. See Harper v Virginia Bd of Elections. 383 US 663 (1966). The Crawford Court tried to distinguish Harper by suggesting that. unlike there. an election-related state interest (preventing fraud) justifies the Indiana ID rule and a poll tax was unrelated to voter qualifications. See Crawford. 128 S Ct at 1615; see also id at 1624 & n 1 (Scalia. J. concurring) ("[W]e have never held that legislatures must calibrate all election laws. even those totally unrelated to money. for their impacts on poor voters or must otherwise accommodate wealth disparities."). Of course. the proponents of the poll tax thought it was very relevant to voter qualifications. One might also ask whether. as to the state justification. the tax would then be constitutional if used to fund elections. Implicitly. perhaps. the Court is also reaffirming the constitutionality of literacy tests. which it upheld in Lassiter v Northampton County Board of Elections. 360 US 45 (1959). and has never repudiated. even though the Voting Rights Act later made such tests illegal. One could easily make arguments as to the importance of literate voters for the integrity of elections.
67. 128 S Ct at 1626 (Scalia. J. concurring) (discussing the potential implication of striking down voter ID for the constitutionality of all types of election laws).
68. Compare Richard Fallon. As-Applied and Facial Challenges and Third Party Standing. 113 Harv L Rev 1321. 1324 (2000) (suggesting all constitutional challenges "are in an important sense. as-applied"). with Matthew D. Adler. Rights Against Rules. 97 Mich L Rev 1. 157 (1998) (arguing there is "no such thing as a true as-applied constitutional challenge").
69. See Baze v Rees. 128 S Ct 1520 (2008); Carhart v Gonzalez. 127 S Ct 1610. 1639 (2007); Ayotte v Planned Parenthood of Northern New England. 546 US 320 (2006).
70. I am indebted to Pam Karlan for this quip.
71. See Nathaniel Persily. The Place of Competition in American Election Law. in Michael P. McDonald and John Samples. eds. The Marketplace of Democracy: Electoral Competition and American Politics 172-74 (Brookings. 2006) (summarizing academic discussion and caselaw).
72. See Samuel Issacharoff and Richard H. Pildes. Politics as Markets: Partisan Lockups of the Democratic Process. 50 Stan L Rev 643 (1998); Richard H. Pildes. Foreword: The Constitutionalization of Democratic Politics. 118 Harv L Rev 28. 55 (2004); Samuel Issacharoff. Gerrymandering and Political Cartels. 116 Harv L Rev 593. 642-43 (2002).
73. See Lopez Torres v N.Y. State Bd of Elections. 462 F3d 161 (2d Cir 2006) (observing that "[s]ince 1944 New York's judicial nominating system has been described as exclusionary and boss-dominated; reports and newspaper editorials from that time forward have decried an electoral practice 'that mocks choice.' and criticized a system in which 'voters can never know the candidates and have to accept party slates.' while the 'real choice is left to political bosses⋯ who control nominations'").
74. See Crawford v Marion County Election Bd. 472 F3d 949. 954 (7th Cir 2007) (Evans dissenting).
75. See League of United Latin American Citizens v Perry. 548 US 399.458 (2006) (Stevens. J. dissenting); Vieth v Iubelirer. 541 US 267. 332-33 (2004) (Stevens. J. dissenting) ("when partisanship is the legislature's sole motivation-when any pretense of neutrality is forsaken⋯ - the governing body cannot be said to have acted impartially."); Karcher v Daggett. 462 US 725 (1983) (Stevens. J. concurring).
76. See Timmonsv Twin Cities Area New Party. 520 US 351. 378 (1997) (Stevens. J. dissenting) (arguing that the intent of an antifusion law to promote the two-party system ought to weigh against the constitutionality of the law).
77. See Clingman v Beaver. 544 US 581. 614 (2005) (Stevens. J. dissenting).
78. Crawford. 128 S Ct at 1624. Stevens's position in Crawford may not be as surprising as I suggest. given his general aversion to purpose-based tests. See. for example. Washington v Davis. 426 US 229. 252. 254 (1976) (Stevens. J. concurring) ("the line between discriminatory purpose and discriminatory impact is not nearly as bright. and perhaps not quite as critical. as the reader of the Court's opinion might assume").
79. Justice Souter emphasized that "[t]ens of thousands of voting-age residents lack the necessary photo identification" and "[a] large proportion of them are likely to be in bad shape economically" yet did not argue that such residents were more likely to be Democrats. See Crawford. 128 S Ct at 1638 (Souter dissenting). Justice Breyer would have found the law unconstitutional because it "imposes a disproportionate burden upon those eligible voters who lack a driver's license or other statutorily valid form of photo ID."
80. 128 S Ct 791 (2008).
81. Lopez Torres vN.Y. State Bd of Elections. 462 F3d 161.200-01 (2d Cir 2006) ("[T]hrough a byzantine and onerous network of nominating phase regulations employed in areas of one-party rule. New York has transformed a de jure election into a de facto appointment. '[I]n every practical sense.' these regulations preclude all but candidates favored by party leadership 'from seeking the nomination of their chosen party. no matter how qualified they might be. and no matter how broad or enthusiastic their popular support.'") (internal citations omitted); Lopez Torres v New York State Bd of Elections. 411 F Supp 2d 212. 255 (EDNY 2006) ("[T]he New York system is designed to freeze the political status quo. in which party leaders. rather than the voters. select the Justices of the Supreme Court.").
82. Lopez Torres. 128 S Ct at 801; id at 803 (Kennedy. J. concurring).
83. Id at 801.
84. See McConnell v FEC. 540 US 93. 249-50 (2003) (Scalia. J. dissenting) ("As everyone knows. this is an area where evenhandedness is not fairness.&mellip [A]ny restriction upon a type of campaign speech that is equally available to challengers and incumbents tends to favor incumbents."); Colorado Federal Campaign Committee v Federal Election Com'n. 518 US 604. 644 n 9 (1966) (Thomas. J. dissenting) ("There is good reason to think that campaign reform is an especially inappropriate area for judicial deference to legislative judgment. What the argument for deference fails to acknowledge is the potential for legislators to set the rules of the electoral game so as to keep themselves in power and to keep potential challengers out of it.") (citations omitted).
85. 548 US 230 (2006).
86. Idat 237.
87. Id at 248.
88. Davis. 128 S Ct at 2771 (The BCRA "imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right [to spend personal funds for campaign speech].").
89. Id at 2773. The Court also rejected the state interest in preventing the perception that offices are for sale to the highest bidder.
90. Brief of Gene DeRossett and J. Edgar Broyhill II as Amici Curiae Supporting Appellant at 13.26-27 n 15. Davis. 128 S Ct 2759 (No 07-320) (quoting legislative history); Robert Bauer. The Travails of Reform. in Its Encounters with the Very Wealthy. More Soft Money Hard Law (Aug 16. 2006). online at http://moresofrnioneyhardlaw.com/moresoftmoneyhardlaw/updates/ federal-candidates-officeholders.html?AID = 794 ("The Millionaire's Amendment-meant to provide some protection for opponents of the rich. 'self-financed' candidate-is straightforward in purpose and design. It is born of much fretting about the danger presented to incumbency by rich people.").
91. 147 Cong Rec S 2845-02. S 2852 (Mar 26. 2001) (statement of Sen. Harry Reid in opposition to BCRA).
92. 148 Cong Rec H 256-03. H 261 (Feb 12. 2002) (statement of Rep. Thomas Reynolds. opposing the House version of BCRA because the Millionaire's Amendment did not go far enough to protect incumbents).
93. Alison Mitchell. Senate Votes to Aid Candidates Facing Deep Pockets. NY Times A16 (Mar 21. 2001).
94. Professor Richard Pildes suggests that. although it goes unmentioned. the animating force of the majority opinion must be its concern about entrenchment. See Rick Pildes. When Do Campaign Finance Laws Become a Way to Protect Incumbents? Balkinization (June 26. 2008). online at http://balkin.blogspot. com/2008/06/sympathy-for-millionaire-self.html ("And a key aspect to this case is only hinted at in the Court's opinion but nonetheless undoubtedly shapes the decision: the enormous risk that this provision-and others like it Congress might adopt-is a way for incumbents to manipulate election laws so as to make it even harder for challengers to take them on."). I am not sure I even see the hints. Nevertheless. it takes great effort to do so. whereas. in other opinions. such as Justice Scalia's dissent in McConnell. the point is made explicit. This alleged sub silentio adoption of the markets approach is all the more remarkable given that the Court reached out in Randall v Sorrell to strike down the law because of its anticompetitive effect. even though no one plausibly argued the contribution limits there were motivated by incumbent entrenchment.
95. Davis. 128 S Ct at 2779 (Stevens. J. concurring in part. dissenting in part) (arguing that rules for election spending by candidates ought to be similar to rules for speaking by litigants in court).
96. Id at 2781 ("[W]e have long recognized the strength of an independent governmental interest in reducing both the influence of wealth on the outcomes of elections. and the appearance that wealth alone dictates those results.").
97. Id at 2782.
98. See Barthtt v Strickland. 2009 WL 578634; Northwest Austin Mun. Util. Dist. No. One v Mukasey. 573 F Supp 2d 221 (DDC 2008). prob juris noted (US Jan 9. 2009) (No 08- 322).
99. See Citizens United v Federal Election Commission. No 07-2240 (probable jurisdiction noted Nov 14. 2008) (addressing whether corporate-sponsored films critical of Hillary Clinton and Barack Obama would violate the "electioneering communications" provision of the BCRA as interpreted by the Court in McConnell and WRTL); Caperton v A.T. Massey Coal Co.. No 08-22 (cert granted Nov 14. 2008) (addressing whether a judge who has accepted donations from an individual or firm involved in a case before his court must be disqualified on due process grounds).
100. See Davis v FEC. 128 S Ct 2759. 2774 (2008); WRTL. 127 S Ct 2652 (2007); Randall v Sotrell. 548 US 230 (2006); LULAC. 548 US 399 (2006).
101. 424 US 1 (1976).
102. 548 US 230 (2006).
103. See Nixon v Shrink Missouri Gov't PAC. 528 US 377. 395 (2000) (quoting Buckley v Valeo. 424 US 1. 21 (1976)).
104. See Nixon. 528 US 377.
105. Randall v Sorrell. 548 US 230. 248 (2006).
106. For example. the opinion added that the contribution limits would hinder political parties' ability to target their contributions to competitive races. and would generally reduce the voice of political parties "to a whisper." Id at 253. 254. 256. 257. It also pointed out that the Vermont law did not adjust the contribution limits for inflation. that they were the lowest in the nation. and that many volunteer services were considered contributions. Id at 261. 250.
107. See Nixon v Shrink Mo. Govt PAC. 528 US 377. 398 (Stevens. J. concurring); Colorado Republican Federal Campaign Committee v Federal Election Commission. 518 US 604. 648 (1996) (Stevens. J. dissenting).
108. See id at 263 (Alito. J. concurring).
109. See Davis v FEC. 128 S Ct 2759. 2774 (2008) ("If the normally applicable limits on individual contributions and coordinated party contributions are seriously distorting the electoral process. if they are feeding a 'public perception that wealthy people can buy seats in Congress.' and if those limits are not needed in order to combat corruption. then the obvious remedy is to raise or eliminate those limits.") (internal citation omitted).
110. Id at 2770.
111. WRTL. 127 S Ct 2652. 2674 (2007) (Alito. J. concurring).
112. Id at 2664-72; Randall v Sorrell. 548 US at 243; Davis v FEC. 128 S Ct at 2770-74.
113. WRTL. 127 S Ct at 2674-87 (Scalia. J. concurring in part. concurring in the judgment); Randall. 548 US at 2 65-66 (Thomas. J. concurring in the judgment); Richard Hasen. Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life. 92 Minn L Rev 1064 (2008) (noting the tension between McConnell and WRTL).
114. No 07-2240 (probable jurisdiction noted Nov 14. 2008).
115. 495 US 652 (1990). According to campaign finance expert Robert Bauer. this case "has the potential to leave a large and ever widening crack in the foundation of contemporary campaign finance regulation." See Robert Bauer. Citizens United: The Olson Brief. online at http://viTvw. moresofrmoneyhardlaw.corn/updates/outside-groups.htmlPAID = 1404.
116. See Editorial: Campaign finance on trial. again. Wash Times (Nov 13. 2008). online at http://www.washingtontimes.com/news/2008/nov/13/campaign- finance-on-trial-again/ (describing lawsuit).
117. See Jeanne Cummings. Obama. the billion dollar man. Politico (Dec 2. 2008). online at http://www.politico.com/news/stories/1208/16115.html.
118. See Davis v Bandemer. 478 US 109 (1986); Vieth v Jubelirer. 541 US 267 (2004). Although the Roberts Court considered the issue of partisan gerrymandering in LULAC. 548 US 399 (2006). it did not rule such claims nonjusticiable nor did it come up with a standard for when such gerrymanders are unconstitutional. Justice Kennedy's opinion in Vieth remains the "law." in that such claims are justiciable but no standard exists to adjudge their constitutionality. The 2006 and 2008 elections probably put a nail in the coffin for future partisan gerrymandering claims. which had never been on more than life support. The fact that the Democrats were able to capture Congress in 2006 and extend their margin in 2008 despite aggressive Republican gerrymanders has added greater credibility to the claims that partisan gerrymanders are self-correcting and judicial venturing into this political thicket is unnecessary and perhaps counterproductive. Some consider partisan gerrymanders to be self-correcting because the more aggressive the line-drawing party is in spreading its supporters. the greater the risk that a small shift in voters leads to a loss of a great number of seats. See Davis v Bandemer. 478 US 109. 152-55 (1986) (O'Connor. J. concurring) (making such an argument as a basis for finding such claims nonjusticiable). As it turns out. Democrats picked up seats across states with redistricting plans that presented a variety of partisan or incumbent biases. However. in the face of the Republican gerrymander in Pennsylvania that gave rise to Vieth. the Democrats captured five Republican-held seats. such that they now hold twelve of the nineteen seats in the delegation.
119. See. for example. Georgia v Ashcroft. 539 US 461 (2003); Reno v Bossier Parish School Board. 528 US 320 (2000); Johnson v DeGrandy. 512 US 997 (1994).
120. See. for example. Shaw v Reno. 509 US 630 (1993); Miller v Johnson. 515 US 900 (1995); United States v Hays. 515 US 737 (1995); Shaw v Hunt. 517 US 899 (1996); Bush v Vera. 517 US 952 (1996); Hunt v Cromartie. 526 US 541 (1999); Easley v Cromartie. 532 US 234 (2001).
121. 128 S Ct 1970 (2008).
122. 548 US 399 (2006).
123. 2009 WL 578634.
124. Northwest Austin Mun. Util. Dist. No. One v Mukasey. 573 F Supp 2d 221 (DDC 2008). prob juris noted (US Jan 9. 2009) (No 08-322).
125. See. for example. Grutter v Bollinger. 539 US 306 (2003); Georgia v Ashcroft. 539 US 461 (2003); Easley v Cromartie. 532 US 234 (2001); Shaw v Reno. 509 US 630 (1993); Richmond v J.A. Croson Co.. 488 US 469 (1989); Adarand Constructors. Inc. v Pena. 515 US 200 (1995).
126. See generally Heather Gerken. Justice Kennedy and the Domains of Equal Protection. 121 Harv L Rev 104 (2007); Guy-Uriel Charles. Race. Redisricting. and Representation. 68 Ohio St L J 1185 (2007). Professors Gerken and Charles view Justice Kennedy's opinions as evolving toward a more complex view of race than expressed here. They consider his recent opinions as softening on the themes of colorblindness and racial essentialism. whereas I see them as relatively consistent with his prior decisions on racial gerrymandering and affirmative action.
127. See Parents Involved in Community Schools v Seattle School District No. 1. 127 S Ct 2738. 2788 (2007) (Kennedy. J. concurring in part and concurring in the judgment).
128. 128 LULAC. 548 US at 424-47.
129. See id at 446 (worrying about an interpretation of the VRA that "unnecessarily infused race into virtually every redistricting. raising serious constitutional questions"); Nathaniel Persily. The Promise and Pitfalls of the New Voting Rights Act. 117 Yale L J 174. 246-17 & n 254 (2007).
130. 130 LULAC. 548 US at 428-43; Daniel R. Ortiz. Cultural Compactness. 105 Mich L Rev First Impressions 48 (2006). online at http://www.michiganlawreview.org/firstimpressions/ voll05/oritz.pdf. Because Justice Kennedy voted to strike down a district as violating the Voting Rights Act. one might consider him more receptive than he is to claims of race- based vote dilution. I think it is fair to say that Kennedy was less concerned about the district (District 23) that he struck down than he was about a nearby Hispanic district (District 25) that allegedly compensated for its loss. That district. which he viewed as cobbling together distant and distinct Hispanic communities. was subject to a Shaw claim of racial predominance. Kennedy could not get a majority to strike down that district as excessively race-based. so instead he sided with the four more liberal Justices to craft an opinion that effectively said such a far-flung district was inadequate compensation for the loss of a different district that was culturally compact. He did not rule on the Shaw claim for District 25 because he assumed (correctly) than any remedial plan that addressed the VRA violation in District 23 would require a redrawing of District 25.
131. See LULAC. 548 US at 429 ("[T]he State [can] use one majority-minority district to compensate for the absence of another only when the racial group in each area had a 2 right.⋯"); see also Ortiz. 105 Mich L Rev First Impressions at 49 (cited in note 130) (describing the importance of the Court's move from a geographic to a cultural theory of compactness).
132. See. for example. Miller v Johnson. 515 US 900. 927 (1995) (subjecting Georgia congressional district to strict scrutiny because it was excessively race-based); Bitsb v Vera. 517 US 952. 999 (1996) (Kennedy. J. concurring) ("If. however. the bizarre shape of the district is attributable to race-based districting unjustified by a compelling interest (e.g.. gratuitous race-based districting or use of race as a proxy for other interests). such districts may 'cause constitutional harm insofar as they convey the message that political identity is. or should be. predominantly racial.'"); see also Georgia v Ashcroft. 539 US 461. 491 (Kennedy. J. concurring) (expressing concern about the necessarily predominant use of race in districts drawn pursuant to the Voting Rights Act).
133. 1 28 S Ct 1970 (2008).
134. See Rick Hills. Civil Rights Lawyers' Ignorance of Local Government Law. Prawfsblawg (May 30. 2008). online at http://prawfsblawg.blogs.com/ prawfsblawg/2008/05/civil- rights-la.html (arguing that the case represents the trivialization of voting rights litigation); Pamela Karlan. Rick Hills' Marshall McLuhan Moment. Balkinization (June 4. 2008). online at http://balkin.blogspot.eom/2 008/06/rick-hills-marshall-mcluhan-moment.html (providing a pointed critique of Hills's post from the lawyer who argued Riley); Mike Pitts. Pitts on Hills on Riley and the VRA. Election L Blog (June 2. 2008). online at http:// electionlawblog.org/archives/010956. html (refuting Hills's claim that the law at issue benefited minority voters); Rick Pildes. Pildes on Riley Decision. Election L Blog (May 27. 2008). online at http://electionlawblog.org/archives/010904.html (arguing that the majority opinion and dissent suggest greater skepticism of the Section 5 regime).
135. 135 LULAC. 548 US at 511 (Roberts. CJ. dissenting).
136. 2009 WL 578634. transcript online at http://www.supremecourtus.gov/oral- argu- ments/argument-transcripts/07-689.pdf (comments of Chief Justice Roberts. Justice Kennedy. and Justice Alito expressing concern about an interpretation of the VRA that would lead it to apply to a greater number of districts).
137. See Pender County v Bartlett. 649 SE2d 364. 372 (NC 2007). cert granted Bartlett v Strickland. No 07-689 (oral arguments heard Oct 14. 2008) ("Although the United States Supreme Court has left open this issue. the majority of federal circuit courts confronting the question have concluded that. when a district must be created pursuant to Section 2. it must be a majority-minority district.").
138. See LULAC. 548 US at 445 (opinion of Kennedy) (rejecting claim that white Democrat constituted African American candidate of choice. in part because of constitutional questions that would be raised). In several other cases the Court has assumed without deciding that districts under 50 percent minority might be protected under Section 2. Johnson v De Grandy. 512 US at 1009; Voinovich v Quilter. 507 US 146. 154 (1993); Thornburgh v Gingles. 478 US 30. 46-17 n 12 (1986).
139. Northwest Austin Municipal Utility District Number One v Mukasey. 557 F Supp 2d 9 (DDC 2008). prob juris noted (US Jan 9. 2009) (No 08-322) ("NAMUDNO").
140. Voting Rights Act (VRA). § 5. 42 USC § 1973c (2000).
141. See 89 PL 110; 79 Stat 437.
142. See42 USC § 1973b(a)(l) (2000). On the history ofbailout. see Michael P. McDonald. Who's Covered? Coverage Formula and Bailout. in David L. Epstein et al. eds. The Future of the Voting Rights Act 255. 257 (2006).
143. NAMUDNO. 557 F Supp 2d 9. 24 (DDC 2008). prob juris noted (US Jan 9. 2009) (No 08-322).
144. Almost all of Virginia and one-third of North Carolina (two states Obama won) are covered. as are a few localities in New York. California. Florida. New Hampshire. and Michigan. However. Alabama. Alaska. Arizona. Georgia. Louisiana. Mississippi. South Carolina. and Texas (all states Obama lost) are covered in their entirety. See Section 5 Covered Jurisdictions. http://www.usdoj.gov/crt/ voting/sec-5/covered.php. It is worth noting that Obama lost all states that are completely covered by Section 5. In an amicus brief filed in the NAMUDNO case. Stephen Ansolabehere. Charles Stewart. and I point out that the 2008 election. far from counting against the constitutionality of Section 5. actually helps distinguish the covered and uncovered jurisdictions. Using both exit poll and actual election results at the county level. we argue that the gap in the voting preferences of whites and minorities remains much wider in the covered jurisdictions. See Brief Amicus Curiae of Nathaniel Persily. Stephen Ansolabehere. and Charles Stewart in Support of Neither Party. Northwest Austin Municipal Utility District v Holder (No 08-322). prob juris noted (US Jan 9. 2009).
145. Compare Abigail and Stephan Thernstrom. Racial Gerrymandering Is Unnecessary. Wall St J (November 11. 2008). available at http://onhne.wsj.com/article/SB1226373739375 16543.html (suggesting that an Obama victory means that "the doors of electoral opportunity in America are open to all" and arguing that "the Voting Rights Act should therefore be reconsidered") to Kristen Clarke. The Impact of the 2008 Presidential Election on Efforts to Measure Racially Polarized Voting in Future Voting Rights Act Litigation. Harvard L & Policy Rev (forthcoming 2009) (arguing that the Obama victory should not fundamentally alter the concerns that undergird the VRA).
146. See Persily. 117 Yale L J at 251-53 (cited in note 129).
147. The plaintiffs cleverly anticipated this by phrasing their claim. alternatively and ambiguously. as an as-applied challenge. See NAMUDNO. 557 F Supp 2d at 76. It is possible that the Court might take their invitation and declare the law unconstitutional as-applied to such a small jurisdiction or strike down parts of the statute that prevent such a jurisdiction from independently bailing out. Doing so would allow the Court to escape the headlines of striking down the VRA. while chipping away at the coverage regime. There are several problems with this approach that would not be applicable to a later attempt to challenge a refusal of bailout as unconstitutional. First. it is unclear as a threshold matter whether one can launch as-applied challenges to exercises of Congressional power on federalism grounds. See Gillian E. Metzger. Facial Challenges and Federalism. 105 Colum L Rev 873 (2005). Second. the Court has already upheld the coverage of subjurisdictions as constitutional and the statute does not contemplate the possibility of every subjuris- diction independently seeking a declaratory judgment in the U.S. District Court for D.C. to escape coverage. See City of Rome v United States. 446 US 156 (1980). Instead. the Court may simply say that the remedy for the utility district here is for the state of Texas to attempt to bail out. and if it is denied. the Court can then review and recraft the criteria for bailout.
148. Even the more conservative members of the Court have suggested that the previous incarnation of the VRA was constitutional. See LULAC. 548 US at 517 (Scalia. J. dissenting in part) (joined by Roberts. Alito. and Thomas); Nathaniel Persily. Strict in Theory. Loopy in Fact. 105 Mich L Rev First Impressions 43 (2006) (highlighting the unprecedented move by Scalia to vote to uphold a racially gerrymandered district on the basis of the compelling state interest of complying with Section 5 of the Voting Rights Act).
149. See. for example. Timmons v Twin Cities Area New Party. 520 US 351 (1997) (rejecting claim by minor party for fusion candidacy); Munro v Socialist Workers Party. 479 US 189 (1986) (upholding ballot access requirement); Clingman v Beaver. 544 US 581 (2005) (rejecting Libertarian party's right to allow members affiliated with other parties to vote in its primary); Arkansas Ed. Television Comm'n v Forbes. 523 US 666 (1997) (rejecting claim of independent candidate to be part of candidate debate on public television). But see Norman v Reed. 502 US 279 (1992) (vindicating rights of minor party in Illinois).
150. See Tashjian v Republican Party of Conn.. 479 US 208 (1986).
151. See California Democratic Party v Jones. 530 US 567 (2000); see also En v San Francisco County Democratic Central Comm.. 489 US 214 (1989).
152. See Nathaniel Persily. Toward a Functional Defense of Political Party Autonomy. 76 NYU L Rev 750 (2001); Nathaniel Persily and Bruce E. Cain. The Legal Status of Political Parties: A Reassessment of Competing Paradigms. 100 Colum L Rev 775 (2000); Bruce E. Cain. Point/ Counterpoint: Party Autonomy and Two-Party Electoral Competition. 149 U Pa L Rev 793 (2001); Samuel Issacharoff. Private Parties with Public Purpose: Political Parties. Associational Freedoms. and Partisan Competition. 101 Colum L Rev 274 (2001).
153. Timmons. 520 US 351. 370 (Stevens. J. dissenting).
154. Clingman. 544 US 581. 608 (Stevens. J. dissenting).
155. LULAC. 548 US at 447 (Stevens. J. dissenting); id at 483 (Souter. J. dissenting).
156. See Timmons. 520 US 351. 382 (Souter. J. dissenting).
157. l" Jones. 530 US at 590 (Stevens. J. dissenting).
158. See New York v Lopez Torres. 128 S Ct 791. 801 (2008) (Stevens. J. concurring).
159. See Randall v Sorrell. 548 US 230 (2006) (opinion of Breyer).
160. LULAC. 548 US at 491-92 (Breyer. J. concurring in part and dissenting in part); Vieth vjubelirer. 541 US 267. 355-68 (2004) (Breyer. J. dissenting).
161. See Clingman. 544 US at 603 (O'Connor. J. concurring) ("[T]he State itself is controlled by the political party or parties in power. which presumably have an incentive to shape the rules of the electoral game to their own benefit.").
162. Lopez Torres. 128 S Ct at 801 (Kennedy. J. concurring).
163. The two cases that do not fit this mold are Timmons. in which Breyer joins the majority to uphold the antifusion ban. and Jones. where Breyer joins the majority to strike down California's blanket primary.
164. See tones. 530 US 567; Timmons. 520 US 351.
165. Kennedy expressed these concerns in a case before Breyer even joined the Court when he dissented from a decision that upheld Hawaii's ban on write-in voting. See Burdick v Takushi. 504 US 428. 442 (Kennedy. J. dissenting) (arguing that the ban on write-in votes alongside restrictive ballot access laws diminished the right to cast a meaningful vote).
166. California Democratic Party v Jones. 530 US 567. 586. 590 (2000) (Kennedy. J. concurring) ("When the State seeks to regulate a political party's nomination process as a means to shape and control political doctrine and the scope of political choice. the First Amendment gives substantial protection to the party from the manipulation. In a free society the State is directed by political doctrine. not the other way around.").
167. Vieth. 541 US at 316 (Kennedy. J. concurring).
168. See Colo. Republican Fed. Campaign Comm. v Fee. 518 US 604 (1996) {"Colorado Republican I'); Colo. Republican Fed. Campaign Comm. v FEC. 533 US 431 (2001) ("Colorado Republican II').
169. Wash. State Grange v Wash. State Republican Party. 128 S Ct 1184 (2008).
170. LULAC. 548 US at 492 (Roberts. J. concurring in the judgment in part. concurring in part. dissenting in part) ("The question whether any such standard [for partisan gerrymandering] exists-that is. whether a challenge to a political gerrymander presents a justiciable case or controversy-has not been argued in these cases."). Roberts's curt treatment of the partisan gerrymandering claim in LULAC is bizarre. given that the Court had earlier remanded the case in light of Vieth. Vieth was only about partisan gerrymandering. The district court's post-Vietb opinion. which led to the appeal the Supreme Court considered in LULAC. was almost exclusively about whether the Texas gerrymander failed any possible standard that could have satisfied Justice Kennedy's opinion in Vieth. The justiciability of partisan gerrymandering claims and the presentation of alternative standards were certainly argued in the case.
171. Randall. 548 US at 236.
172. If one views the case more as one about judicial elections. it is even less surprising. The Court has hinted at its discomfort with judicial elections while protecting judicial campaign speech. See Republican Party of Minnesota v White. 536 US 765 (2002). The antidemocratic form judicial elections take in New York might be less troublesome to one who believes electing judges is a mistake from the outset.
173. Purcell v Gonzalez. 127 S Ct S (2006).
174. Id at 7.
175. 175 Brunner v Ohio Republican Party. 129 S Ct 5 (2008).
176. The only two instances of in-person fraud the controlling opinion identifies are one case in Washington and one anecdote from the days of Tammany Hall. See Crawford. 128 S Ct at 1619 nn 11-12. The Circuit Court opinion suggested that such lack of evidence is likely the result of nonenforcement of minor criminal laws. akin to littering. as well as the inherent difficulties of detecting such fraud. Crawford. 472 F3d 949. 953-54. Heated debate may continue over these empirics of voter fraud. but few argue that no ineligible voters end up casting votes in elections. At the same time. concerted efforts by groups to commit fraud by voter impersonation almost never happen. The benefits of such a strategy are too low or too difficult to quantify given that the conspirator must coordinate a number of voters sufficient to overcome the expected margin of loss. And the costs are too high (both in terms of moving from one polling place to the next and potentially getting caught) to make this a smart strategy to rig an election. This is especially true given that other means of fraud. such as through absentee ballots or tampering with vote totals. might require less effort. better avoid detection. and work more effectively.
177. See Nathaniel Persily and Kelli Lammie. Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law. 153 U Pa L Rev 119. 122-23 (2004).
178. Crawford. 128 S Ct at 1620 ("[P]ublic confidence in the integrity of the electoral process has independent significance. because it encourages citizen participation in the democratic process.").
179. Indeed. one also must have some sympathy for Justice Stevens's evaluation of the threat of voter fraud: as a Republican growing up in Chicago. election fraud was not a theoretical problem for him; it was a way of life.
180. See Stephen Ansolabehere and Nathaniel Persily. Vote Fraud in the Eye of the Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements. 121 Harv L Rev 1737 (2008).
181. In applying Crawford so as to uphold a similar photo ID law in Georgia. an Eleventh Circuit panel did not even seem to leave open the possibility of as-applied challenges. See Common Catise/Georgia v Billups. 554 F3d 1340 (11th Cir 2009).
182. See Rotten Acorn. Recent Fraud. online at http://www.rottenacorn.com/ activity Map.html.
183. See Ian Urbina. Voter ID Battle Shifts to Proof of Citizenship. New York Times (May 12. 2008). online at http://wwwr.nytimes.com/2008/05/12/us/ politics/12vote.html?-r= 1 &hp&oref= login (describing proposed. but as yet unpassed. constitutional amendment in Missouri that would require proof of citizenship from voters and noting similar bills in nineteen others states).
184. See League of Women Voters of Florida v Browning. 575 F Supp 2d 1298 (SD Fla 2008) (citing Crawford's analysis of both fraud and as-applied challenges and upholding regulations of third-party registration drives).
185. Brunner v Ohio Republican Party. 129 S Ct 5 (2008).
186. See Title 42 USC 15483 (2000 ed. Supp V) (describing requirement of statewide voter registration database).
187. See Justin Levitt. Wendy R. Weiser. and Ana Munoz. Making the List: Database Matching and Verification Processes for Voter Registration ii (Brennan Center. 2006).
188. See Florida State Conference of the NAACP v Browning. 569 F Supp 2d 1237 (N D Fla 2008) (upholding Florida's "no-match. no-vote" law). The law required that individuals whose voter registration forms could not be verified against DMV or Social Security databases needed to resolve the discrepancy. They could do so by presenting in person or mailing a copy of their ID to their local board of elections. If they failed to do so before the election. they would be required to cast a provisional ballot. which they could cure by producing an ID to the board shortly afterward. As with Crawford. the state justified the law as an antifraud measure that would build public confidence. despite little historical evidence in Florida of fraud occurring. outside the context of absentee ballots. 569 F Supp 2d at 1261. The plaintiffs. as in Crawford. could not produce before the election anyone who would not be able to vote as a result. The Court took refuge in Crawford's holding concerning facial and as-applied challenges to suggest that burdened voters could seek a remedy as applied to themselves.