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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

The Roberts Court and the Law of Democracy

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February 21, 2006

Election Law @ Moritz is pleased to be hosting an Electronic Roundtable on two cases to be argued before the Supreme Court next week. On Tuesday, February 28, the Court will hear argument in Randall v. Sorrell, a case challenging Vermont's limits on campaign expenditures and contributions. The next day, Wednesday, March 1, the Court will hear argument on League of United American Citizens v. Perry and consolidated cases, which concern Texas' mid-decade congressional redistricting (or "re-redistricting").

These cases will provide the first opportunity for the newly reconstituted Supreme Court, which now includes Chief Justice John Roberts and Justice Samuel Alito, to consider issues of election law. While the subjects of the two cases are quite different, both will require the Court to address the circumstances under which it is appropriate for federal courts to intervene in the democratic process, and when they should defer to decisions made by state elected officials. In the Vermont case, the specific questions before the Court concern limitations upon how much individuals may contribute to campaigns, and on how much candidates may in turn spend. In the Texas case, the questions raised have to do with the constitutional limits on partisanship in the drawing of district lines, and with the norms of racial equality under both the Voting Rights Act and the Equal Protection Clause.

We're honored to be joined by a distinguished group of scholars for what promises to be a vibrant discussion of these cases – and, more broadly, of the Supreme Court's role in the law of democracy – over the next two weeks. The participants in the roundtable are:

  • Edward B. Foley, Robert M. Duncan/Jones Day Designated Professor of Law at the Moritz College of Law, and Director of Election Law @ Moritz
  • Richard Hasen, William H. Hannon Distinguished Professor of Law at Loyola Law School
  • Daniel Hays Lowenstein, Professor of Law at UCLA School of Law
  • Richard H. Pildes, Sudler Family Professor of Constitutional Law at NYU School of Law
  • Bradley A Smith, Professor of Law at Capital University School of Law

This promises to be an exciting discussion. That's true not only because our participants constitute a virtual all-star team of election law scholars, but also because they bring a diversity of perspectives on the proper role of the judiciary with respect to democratic politics. Because all of the participating scholars care passionately about democracy, but have very different ideas about what role the Court should play in policing it, we can expect a lively exchange of views.

Here's how the E-Roundtable will work: Professor Foley started off with an introductory comment last week. Today and tomorrow, we'll post opening comments from each of the panelists. We'll post the comments of Professors Hasen and Smith today, and those of Professors Pildes and Lowenstein tomorrow. After that, the panelists will be free to chime in with additional comments, or respond to the thoughts of others. My colleague Steve Huefner and I will play the role of moderators, intervening as necessary to ask questions or invite discussion of particular points. The discussion will continue each day, concluding with some post-argument reflections from our panelists at the end of next week.

We hope you enjoy it!