Election Law @ Moritz

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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

Incrementalist Election Law?

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March 7, 2006

This comment concludes the Electronic Roundtable that we have been hosting in this space over the last two weeks. Election Law @ Moritz is extremely grateful to our guest participants - Rick Hasen, Dan Lowenstein, Rick Pildes, and Brad Smith - for providing such thoughtful contributions to this collaborative venture. If some of the normative views expressed in the Roundtable are unlikely to prevail in the two cases we have been discussing, others will. Likewise, some of the predictive judgments - for example, the significance of the contribution limits part of the campaign finance case - are likely to prove accurate. Moreover, the important debate over the proper role of the federal courts with respect to democratic governance, so ably represented in the diverse perspectives of our participants, is sure to continue long after these cases are decided. As we await the Court's decisions, we can be assured that the future of this field will remain interesting, in both the near term and longer term, and we will want to continue following the scholarship of these four distinguished contributors as they endeavor to illuminate the legal issues that affect the operation of our democracy.

If last week's oral arguments are any indication, the Vermont and Texas election cases are unlikely to produce major pronouncements on either campaign finance or redistricting. The most probable outcome of the Vermont case is an invocation of precedent to invalidate the state's spending and contribution limits. While the result of the Texas case is more uncertain, the best guess is that a majority of Justices will vote to void the removal of approximately 100,000 Latino residents from Rep. Henry Bonilla's old district (District 23), but that they won't reject the state's new districting plan on the ground that it was an impermissible mid-decade partisan gerrymander.

Many may applaud such modest steps as a sign that the Court is moderate and circumspect in its approach to election cases. But would that assessment be accurate? An appearance that the Court is sticking with the status quo may say more about the particular circumstances of these two cases than it does about the Justices' own views on election issues.

Let's assume that the Court says that invalidation of Vermont's contribution limits is consistent with the standard set forth in Nixon v. Shrink Missouri PAC, the case that said that contribution limits must be upheld unless they render campaigning futile. Such a ruling does not necessarily mean that the Court is adhering to the Shrink Missouri precedent. Rather, it means only that the Court need not abandon that precedent in this case in order to reject Vermont's especially stringent contribution limits. The same Justices might well be prepared to jettison the Shrink Missouri standard if more generous contribution limits were tested in another case.

Let's assume also that the Court says that mid-decade redistricting plans are subject to the same constitutional analysis as conventional decennial plans and that plaintiffs' challenge to the 2003 Texas plan must fail because they alleged only that the plan was motivated by partisan purposes without offering any test to measure whether the plan's effect was to create an excessive partisan gerrymander. This ruling would not necessarily mean that in a future case a majority of Justices, including Justice Kennedy, will embrace a substantive standard that enables plaintiffs to contest excessive partisanship. Nor would it mean the Court, including Kennedy, will necessarily reject all such substantive challenges as "nonjusticiable." Rather, it means only that if and when the right case comes along, perhaps after the round of redistricting that follows the 2010 census, Justice Kennedy may then choose to join four colleagues in ruling decisively one way or the other on the constitutionality of partisan gerrymanders.

These possibilities suggest that election law is presently unstable and will remain so after the decisions rendered in the Vermont and Texas cases.

The situation could become even more dynamic after the 2008 elections, in light of their potential effect on the future of election law. If Justices Stevens and Ginsburg retire during the term of the new president inaugurated in 2009, and they are replaced by Justices who align themselves with Scalia and Thomas in election cases, as Roberts and Alito apparently will, then Kennedy will no longer operate as a swing vote in these cases. Instead, the possibility arises that there would be a decisive six-member majority prepared to repudiate whatever moderate positions Justice Kennedy might have preferred.

Thus, the true significance of the Vermont and Texas cases will probably unfold only after the 2008 election and the new Supreme Court nominees expected to follow thereafter. "We've heard this before," some might say. The replacement of Rehnquist and O'Connor with Roberts and Alito was predicted to cause a profound shift in election cases, among other areas of constitutional law. "But now you say that these two substitutions, which still leave Kennedy at the center of the Court, merely cause incremental rather than sweeping changes. This is a bit like the boy who cried wolf."

Whatever the future effect of replacing Stevens and Ginsburg may be, in comparison with the effect of replacing Rehnquist and Alito, one truth remains undeniable: the content of America's election law depends on the identity of the particular individuals who sit on the Supreme Court. Different Justices view these election cases differently, and thus the outcome depends upon whether we have more Justices of one kind or another.

Thus, if it turns out that this year's decisions in the Vermont and Texas cases don't change the law very much, that scenario probably shouldn't be seen as an impressive victory for the status quo. Instead, they may mean simply that the current Justices are waiting for other cases, with different sets of facts, before striking off in a new direction that they are prepared to take. Or it may mean that the significance of these decisions will be superseded once some more new Justices arrive in the not-too-distant future.

Either way, the deep uncertainty that currently pervades the constitutional law of elections is likely to persist after the Court issues its decisions in these two prominent cases.