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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

Precedent and the Constitutional Law of Elections

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February 24, 2006

It is evident from this Electronic Roundtable so far that leading specialists in the field differ on what the Supreme Court should do in these two cases. That divergence of opinion, while perhaps inevitable, is somewhat regrettable. After all, election law is supposed to serve as an agreed-upon set of ground rules by which citizens with sharply divergent views of social policy can choose the representatives who will write the laws that govern them.

Moreover, when discussing the Court's role in election law, we are not talking about what ground rules as a democracy we ought to adopt for electing our representatives. That discussion might well trigger a difference of opinion among political scientists on the optimal design of electoral systems (and, if we were going to decide democratically which, among these views, was our collective preference, we presumably would need some mutually acceptable procedure for making this choice).

But, no, the Court's job is to discern the meaning of the ground rules that, for better or worse, we already have adopted. One important function of those ground rules is to be clear about the procedures for selecting our representatives, so that our deep-seated disputes over substantive issues of social policy don't spill over into distrustful arguments over what procedures apply to identify the winners and losers of these substantive battles. Thus, it would be preferable if election law experts could agree upon the requirements of the ground rules currently in place, even if they diverged over what new set of ground rules should be adopted instead.

The problem, however, is that the existing ground rules are notoriously vague. The Vermont campaign finance case concerns "the freedom of speech," a wonderful but distressingly elusive idea (at least at the margins). The Texas redistricting case involves "equal protection," a principle every bit as essential as "freedom of speech" but one whose contours are perhaps even murkier.

It might have been wise if the Supreme Court had never let these lofty but ill-defined concepts serve as the basis for superseding clearly written rules for the operating of the electoral process, at least not unless it is indisputable that a clear election rule contradicts the core reason the murky principle was added to the Constitution. (A clear rule prohibiting citizens from uttering opinions that tend to injure an incumbent's reputation, and therefore chances at reelection, comes to mind as violating the core reason for inserting "freedom of speech" into the Constitution.)

But we are far past that point. The Supreme Court already has held that "freedom of speech" prohibits, among other clear rules, those that regulate whether or not voters in a primary election must be party members. Likewise, the Court has decided that "equal protection" invalidates poll taxes and candidate filing fees that, despite their clarity, impose barriers to electoral participation.

Perhaps then we can turn to the Court's precedents as a way to discern the correct meaning of the Constitution as applied to the two pending cases, even if we might prefer that the Constitution contain some new provisions that would necessitate different results. (In the Texas redistricting case, Professor Pildes offers a powerful argument that the Elections Clause of Article I, which authorizes state redistricting plans in the absence of superseding congressional provisions, does not encompass the authority to draw anticompetitive districts. But even Professor Pildes would agree, I think, that the text of the Election Clause does not unambiguously compel this conclusion and that it would be possible to infer, instead, that the Election Clause leaves to Congress-not the Court-the task of determining when states have abused their redistricting authority.)

In the Vermont campaign finance case, adherence to precedent would invalidate the spending limit. While I might not like what Buckley said about spending limits, there is no good reason to overrule that decision (disagreement with it being an insufficient reason, as explained in both the Roberts and Alito confirmation hearings). And as for the argument that Buckley doesn't bar spending limits on candidates, but only subjects them to strict scrutiny, that's the kind of argument that gives lawyers a bad reputation among lay persons. Buckley saw spending caps on candidates and their independent supporters as inherently antithetical to free speech, and it is inconceivable that the Court there would have permitted any such caps on the ground that they help protect a candidate's time from fundraising chores.

With respect to Vermont's contribution limit, which Brad Smith is correct to say that this portion of the case will likely prove the most important, the relevant precedent is the colorfully named Shrink Missouri case: Nixon v. Shrink Missouri Government PAC, 527 U.S. 377 (2000). That case said that contributions limits are constitutional unless they "render political association ineffective, drive the sound of a candidate's voice below the level of notice, and render contributions pointless" (id. 397). This test may be undesirably stringent, but it is what the Court established.

Applying this test, the district court found that Vermont 's limits were not too low. It is hard to say that this factual finding was incorrect given the available evidence in the record. Even so, the limits are low enough that, while rejecting the plaintiffs' challenge to them in this case, the Court could explicitly leave the door open to future challenges if stronger evidence emerges. As long as such future challenges would be required to show that candidates as a group are systematically stifled from waging meaningful campaigns, not merely that one particular candidate failed to raise enough funds to be competitive, leaving the door ajar in this way would be consistent with Shrink.

In the Texas redistricting case, precedent is less directly instructive. Twice before, once in 1986 and then again in 2004, the Court has tried but failed to issue a majority opinion on the standard for evaluating the constitutionality of partisan gerrymanders. Moreover, the Court has never before considered the constitutionality of mid-decade re-redistricting.

There is one venerable precedent that is relevant to the particular problem of mid-decade gerrymanders. That precedent is the one-person-one-vote requirement adopted in Reynolds v. Sims. It would be an extension of that precedent to say that one-person-one-vote bars redrawing a legislative district's lines absent a new census. But it would not be much of an extension.

Necessarily inherent in the rule of one-person-one-vote is the precept that districting is based on an accurate population count. To adopt a new districting map without a new count is willfully to contravene this precept. (Correcting a court-found flaw in a previously adopted map would not require a new census because that correction is a continuation of the initial, single decennial districting process. But the Texas legislature's decision to replace the existing court-ordered map, which was required because of the legislature's failure to draw a decennial map in the first place, is more properly viewed as the start of a new redistricting process rather than a completion of the initial decennial one.)

One-person-one-vote has acquired a special, bedrock status in our constitutional law. It was recently ratified as such in Justice Alito's confirmation hearings. That ratification-for the Senate's consideration of a Supreme Court nominee has become, however imperfect, the current method by which the country updates its understanding of the Constitution-indicates that one-person-one-vote should continue to be enforced robustly.

Moreover, in the wake of Bush v. Gore, which was itself an extension of Reynolds v. Sims, it would seem arbitrary for the Court now to say that it will apply one-person-one-vote to the novel circumstance of recounts conducted with insufficiently specified standards, and yet not apply the principle to the new development of re-redistricting without the benefit of an updated census.

The continued vitality of one-person-one-vote in recent years suggests that the better decision, in terms of fidelity to precedent, is to invalidate the Texas mid-decade redistricting plan. It would be an auspicious development if a strong majority of the Court-six or even seven justices-could coalesce around this proposition, even if they still cannot agree on a standard for judging conventional decennial gerrymanders.

I am not so naïve as to think that my appeal to precedent will dissipate the disputes among election law scholars concerning the correct outcomes of these two pending cases. Nonetheless, I would like to hope that a focus on precedent might narrow the scope of disagreement. I wish, too, that my reasons for resorting to precedent will resonate with election law scholars: (1) that election law should be a generally acceptable foundation on which to conduct our political battles and (2) that, given the vagueness of the relevant constitutional provisions, fidelity to precedent is the only potential means of approaching this sort of consensus about the procedures that control the functioning of our democracy.

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