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Electronic Roundtable '06

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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.

Electronic Roundtable '06

The Court's Task is Faithful Interpretation of the Constitution

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February 21, 2006

Professor Hasen suggests that the question for the Court is whether to "act as a group of mighty platonic guardians who increasingly regulate the details of political competition for every state and local government in the U.S.," or to, "act more modestly, deferring to value judgments of states yet carefully balancing state interests against the rights of citizens to organize effectively for political action." Professor Foley expresses concern that the Court decide the cases in such a way that one party is not perceived to have lost both. I will confess, neither of those issues much concerns me.

Professor Hasen's suggestion that the Court should "act more modestly" by "deferring" to the states echoes Justice Breyer's recent book, "Active Liberty." But Justice Breyer's "modesty" is highly selective - for example, he shows no qualms at all about intervening in state decisions to regulate abortion, see e.g. Stenberg v. Carhart, 530 U.S. 914 (2000) (opinion by Breyer, J.) or in micro-managing the standards for assisted suicide statutes. See Washington v. Glucksberg, 521 U.S. 702, 789-92 (1997) (Breyer, J., concurring in the judgment) public religious displays, or innovative public education policies (see Active Liberty at 120-124). Similarly, Professor Hasen has supported Court action to strike down state election laws limiting state "fusion" tickets (an issue on which we agree, but one which I find far less convincing than other statutes Professor Hasen would have the Court be "modest" about.)

So one person's "careful balancing," it seems, is another's "mighty platonic guardian" activism. Talking about "modesty" or "activism" gets us nowhere - if one believes that the Constitution restrains judges at all, then the failure to strike down an unconstitutional statute is as much a form of "activism" as striking down a constitutional statute. The difficulty in LULAC and Randall is determining constitutionality, not deciding whether to be "platonic" or "modest." To me, but for some troublesome precedents - and I believe in respect for precedent - neither case would pose particularly difficult constitutional issues. But this is not to say that my view will carry the day on either case, or that there aren't many very smart people who strongly disagree with me on both the proper results and the degree of difficulty.

The task for the Court then, is more traditional than Professor Hasen would have it - to decide these two cases in line with the Justices' understanding of the Constitution. However that is done (if it is done) I am much less concerned about the partisan fallout of the cases than is Professor Foley.

The immediate partisan consequences of LULAC v. Perry will be obvious, and the losing side is sure to carp that the decision is partisan. But that carping will ring hollow. If the Court rules for the plaintiffs/appellants (i.e. favors the Democrats) the decisive votes will have to come from one or more of three conservative Republicans: Justices Anthony Kennedy and Samuel Alito, and Chief Justice John Roberts. If the Court rejects the Democratic challenge, it will be consistent with the position it has taken since the first partisan gerrymandering cases were brought in the 1960s. In either case, it will be hard to make cries of "partisanship" stick. Moreover, there is no long history of consistent Democratic opposition to partisan gerrymandering, or of Republican support for the practice. Rather, the two parties' positions have historically been determined by whose ox has been gored. A decision for the state will be seen as business as usual, and not something that puts Democrats at a permanent disadvantage generally. A decision striking down the districting will not please Republicans, but will be accepted by all but the most partisan fringe of the GOP, with the party's national majorities as an added salve.

Moving to Randall, it is true that historically most (though not all) liberals, and therefore most (but not all) Democrats have favored campaign finance restrictions, primarily due to ideology but assuredly in part because of explicit or implicit assumptions that a less regulated system of private funding of elections benefits conservatives. Correspondingly, most, (though not all) conservatives, and therefore most (but not all) Republicans have taken the opposite view, again largely due to ideology, but surely in some cases because of assumptions regarding the partisan effects of regulation. Still, it is not entirely clear who benefits, and indeed at the present time the Republican establishment in Washington is promoting campaign finance regulation as a way to gain a partisan advantage over Democrats.

In the 30 years beginning with Buckley v. Valeo, the Court has repeatedly ruled on campaign finance, yet its decisions have not been criticized for partisanship, including McConnell v FEC, upholding the McCain-Feingold law just two terms ago. It seems relatively clear that ideology, not partisanship, is the driving force behind what shows up as a partisan split. And as it is not entirely clear whose partisans benefit, I don't see reaction to the decision being framed in partisan terms, even if it may break along partisan lines than correspond to ideology.

Thus, the only scenario I could see that might create the evils of which Professor Foley warns would be if the Court chose to strike down Texas redistricting, and to uphold the Vermont spending limits. In that case the Court would be seen not merely as siding with Democrats in each, but as going against well established precedent to do so. That combination seems to me a highly unlikely result.

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