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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

Fooling the Court

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March 1, 2006, 9:41 a.m.

The two cases we've been discussing this week share, in my mind, a defining characteristic: each involves attempts to fool the Court about what is going on. I don't see either succeeding.

Let's start with the Texas redistricting case. The major claim is one of partisan gerrymandering. For reasons other participants have discussed, I think this claim is unlikely to go anywhere. I still doubt that the Court can create a workable standard for deciding the issue, so I think it unlikely to strike the Texas plan on that ground. Even if Justice Kennedy decides to side with the Court's liberals and find the issue justiciable, the probable result is a retreat to a Bandemer-like ruling, with a difficult evidentiary standard that is unlikely to be met on the facts - the Texas gerrymander just isn't that bad. And the claim that it is unconstitutional because it is mid-decade, with three year old census data, has always struck me as a non-starter. There's just nothing plainly in the Constitution that would suggest a constitutional issue there, so one has to stretch equal protection and the one person/one vote cases to get there. And in the end, I've seen no analysis to suggest that population distortions are any different than what one normally gets as a redistricting plan gets older. That is to say, the 2003 Texas plan was no more out of date, population wise, than a 2001 plan would have been. This makes it hard to see the equal protection violation. Maybe I'm spectacularly wrong here. We'll see.

The other claims are race based - one that the redistricting violates the Voting Rights Act, the other that it is a "racial gerrymander" in violation of equal protection. I don't think the Court will fall for either argument. In a purely technical reading of the statute and precedent, the Voting Rights claim may have some merit (because no intent is required), but here's the fact: nobody really thinks race was at issue in this redistricting, no matter what plaintiffs' attorney Perales said to the Court. I think, therefore, the Court will be reluctant to use this case to make any new law in this area. Again, I may be spectacularly wrong, but I don't see much new coming out of this case.

Turning to Randall, the Vermont campaign finance case, the problem is a bit different. The State and its allies have made much of the voluminous factual record compiled to "prove" corruption. And that record could be a problem for the plaintiffs, as reviewing courts properly defer to such a record. In this case, however, that record is a fraud.

Virtually all of the evidence of "corruption" consists of opinions from lawmakers who supported the bill that they, and their colleagues, are corrupted by contributions. But none of those lawmakers have resigned their positions; none have pointed to any specific acts of "corruption," and all those who have continued to hold and campaign for public office, we can be sure, have and will continue to vociferously deny that they are corrupt or failing in their duties to represent their constituents effectively. Chief Justice Roberts bore straight in on this issue, forcing Vermont 's Attorney General to admit that he had not prosecuted any politician for corruption. And as Bob Bauer has noted at More Soft Money Hard Law, Vermont seems to be a pretty well governed state. Most of the rest of the state's "factual" evidence consists of public opinion polls, not actual facts about corruption. (Don't get me started on the polls themselves).

But if Chief Justice Roberts was onto the state on the corruption issue, the other part of the state's fraudulent record went unexposed on Tuesday. The State's second argument, after the corruption issue, is that spending limits are needed because otherwise too much time is spent raising money for campaigns. The record in the case, however, shows that the average cost of running for state legislature or state Senate in Vermont is in the vicinity of $4000. Vermont 's representatives are part-time, earning about $8000 for their legislative service in a typical year. Thus, a typical representative, who presumably has other income off which to live, could finance his campaign and never spend a moment fundraising by saving about one-quarter of his gross legislative salary, and not touching his savings or other income. The truth is, most Vermont legislators could readily spend less time fund-raising than they spend brushing their teeth. It's a question of will and priorities, not time. It is hard to see this claim, on these facts, passing even a rational basis test - if the Court connects the dots.

A final word on Vermont . Both Professors Foley and Hasen have suggested that the Court should respect precedent. And I agree that precedent should be respected. But doing so is not always so easy or obvious. For example, in Nixon v. Shrink Missouri Government PAC and McConnell v. FEC, the Court purported to follow the precedent of Buckley. But in reality it did not. As Prof. Lillian BeVier and dissenting judges on the Court have noted, in Nixon the Court Majority appears to have relaxed the level of scrutiny given to contribution limits, even while expressing feality to Buckley . This is even more obvious in McConnell, which also purports to follow Buckley: but as BeVier puts it, and even most reformers admit, the Buckley described in McConnell is, "not your father's Buckley."

What does this mean? It means, I suspect, that whatever the Court decides in Randall, short of finding all contribution limits - not just Vermont's - unconstitutional, it will justify as adhering to the precedents of Buckley, Nixon, and McConnell.

That will give outraged law professors plenty of fodder for publication.

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