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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.

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Election Law at the High Court: Big Cases Leave Little Footprints

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August 18, 2006

This piece appeared initially, on August 15, 2006, as part of commentary on Supreme Court decisions at law.com

How can a Supreme Court decision be momentous if it is written as narrowly as possible, deferring to the future the really important questions? While that paradox may exist in other areas of the Court's docket, it certainly describes the Court's trilogy on election law this year.

It started in January, with Wisconsin Right to Life, Inc. v. Federal Election Commission, 546 U.S. __ (2006), 126 S. Ct. 1016 (2006), where the Court unanimously remanded the case to the district court for consideration of an "as applied" challenge to the McCain-Feingold campaign reform law, but conspicuously offered no guidance on what sort of standard should govern such "as applied" challenges. It continued in the last week of the term, with two deeply fractured decisions: Randall v. Sorrell, 126 S. Ct. 2479 (2006), in which the Court invalidated Vermont's excessively strict limits on campaign contributions without indicating where it eventually would draw the line; and League of Latin American Citizens v. Perry, 126 S. Ct. 2594 (2006), in which the Court rejected the claim that the mid-decade redistricting of Texas's congressional delegation was unconstitutional just because it was motivated by a Republican desire to gain seats at the expense of Democrats, while the Court kept open the possibility that the Court will invalidate a redistricting plan when and if plaintiffs can show a measurable injury from such partisan motivations.

All three of these cases had been identified by Court-watchers as big items on the docket this year. The oral argument in the Texas redistricting case was a particularly "hot ticket" because of the notoriety associated with Tom DeLay's involvement with this redistricting plan. But blockbuster decisions could have resulted from any of the three. In Wisconsin Right to Life, a key component of the McCain-Feingold law might have been invalidated, notwithstanding having been upheld just three years earlier in McConnell v. Federal Election Commission, 540 U.S. 93 (2003). In Randall, the Court might have announced that the First Amendment precluded limits on campaign contributions altogether, thereby overturning the post-Watergate landmark decision in Buckley v. Valeo, 424 U.S. 1 (1976). And in LULAC, the Court might have ruled off-limits any judicial challenge to a redistricting plan as being tainted by excessive partisanship.

It is hardly surprising that such blockbuster rulings did not, in fact, occur. Justice Samuel Alito hadn't even arrived at the Court in time for the argument in Wisconsin Right to Life. Even the end of this term was too early for Alito and the other newcomer, Chief Justice John Roberts, to make major pronouncements of constitutional law as it concerns the regulation of the electoral process. The topic is simply too complex -- and too important -- to cause any but the most intrepid to want to settle in to their new chambers before staking out categorical positions. With Justice Anthony Kennedy also especially cautious on the issue of partisan redistricting, despite his 18 years on the Court, it was unlikely that we were going to see complete closure on that question.

Some might say that this election law trilogy ended up a fizzle, but I would disagree. I think these cases, correctly identified as important from the outset, remain significant precisely because their rulings were so limited. To be sure, they may be superseded in time by much more consequential decisions, but meanwhile they collectively reveal the Court's current indecisiveness concerning the constitutional law of democracy. This indecisiveness is likely to have a significant effect on the conduct of key participants in the political process -- candidates, political parties, other political interest groups and lower courts -- as opposing political forces attempt to exploit the current uncertainties to their advantage.


This process is already occurring with respect to the unsettled issue of "as applied" challenges to the McCain-Feingold law in the wake of Wisconsin Right to Life. In Maine, a conservative Christian group sponsored a radio advertisement calling upon the state's two senators to support a constitutional amendment banning gay marriage. Because one of these two senators, Olympia Snowe, is running for reelection this year, McCain-Feingold bans the use of corporate money to pay for this ad. Rather than claiming it receives no funds from business corporations, the ad's sponsor instead argues that the ad must be exempt from the ban because its content concerns congressional deliberations rather than the upcoming election. This new Maine case, Christian Civic League v. Federal Election Commission, is likely to be the first of many in which the sponsors of broadcast advertisements argue that attacking members of Congress because of their legislative positions must be exempt from the McCain-Feingold prohibition as long as these attacks do not explicitly oppose the incumbent's bid for reelection. Lower-court judges will have to wrestle with the difficulty of distinguishing ads that deserve exemption from the prohibition from those that do not, a difficulty that prompted the McCain-Feingold law to contain a general prohibition applicable to all broadcast ads that mention a candidate during the specific weeks before an election when the campaign is most intense. But because the Supreme Court has now said that the general prohibition must be open to challenge when the particular content of an ad does not warrant the prohibition's applicability, uncertainty will reign -- and will be exploited strategically where reelection efforts are most significant politically -- until the Supreme Court either develops a standard to govern these "as applied" challenges or else abandons the effort by ruling the prohibition invalid in all circumstances.


A similar potential for strategic litigation over contribution limits arises in the aftermath of Randall. We now know that a $400 contribution limit is too low for statewide races, at least in the context of the specific features of Vermont's law, which: (a) made this limit applicable to both primary and general elections in the same year; (b) applied this limit to contributions from political parties as well as from individual donors; (c) included within the limit travel and other incidental expenses incurred by campaign volunteers; and (d) did not index this limit for inflation. What we do not know, however, is how the Court would handle a higher limit, even the $1,000 limit that the Court has sustained in the past. Nor do we know what difference it would make if Vermont eliminated all the problematic specifics. Suppose Vermont came back to the Court with a $500 limit, indexed for inflation, applicable to primary and general elections separately, and which exempted political parties and volunteer-related expenses. Would the Court then accept this low-dollar limit? Probably not, but who really knows? Randall gives us little guidance on this point. All we can be sure of is that there will be litigation to test how far the Court will be willing to go in striking down campaign contribution limits. We can expect, moreover, that this litigation will be brought in states where invalidation of existing limits most likely would make a difference in politically high-profile races.


Similarly, as soon as the Court announced its LULAC decision, there began immediate speculation whether state legislatures would take advantage of the Court's refusal to rule out mid-decade redistricting. But whether or not states draw new maps before the 2010 census, we can confidently predict that some legislatures will attempt to engage in as much partisan gerrymandering as they can get away with when they are required to redistrict after the new census. Unless and until the Court sets a constitutional boundary to such partisan manipulation of legislative mapmaking, political parties that happen to be in power when it comes time to draw these new maps will be constrained only by their fear of retribution if they are out of power the next time around -- a constraint that has proved largely ineffectual in recent decades. These new gerrymanders will, in turn, breed new lawsuits, as the political parties harmed by them will attempt to articulate a standard that the Court might be willing to adopt in an effort to set a constitutional boundary. Likewise, the lower courts will struggle over the proposed standards offered by these parties, attempting to guess whether any of them might appeal to the Court.


All this potential litigation over the constitutionality of election laws is unhealthy. It destabilizes the environment in which the political parties and their candidates run their campaigns. It is unknown whether the corporate funding of advertisements about candidates will be permitted or not. It is unknown whether campaign contributions to candidates above a certain amount will be allowed or not. It is unknown even whether the district in which the candidate is running for office will need to be redrawn. Rulings one way or the other on these contested issues can dramatically change the dynamic of a campaign.

As disconcerting as these prospects may be, they pale in comparison to potential adverse consequences of litigation in an area of election law that was not before the Supreme Court this year: the constitutional law of vote-counting procedures. As any observer of the Court well knows, in Bush v. Gore, 531 U.S. 98 (2000), the Court ruled that the recount procedures implemented in Florida during the presidential election of 2000 to handle the problem of hanging and dimpled chads violated the Equal Protection Clause of the U.S. Constitution. The constitutional defect, according to the Court, was that these recount procedures lacked sufficiently precise standards to prevent different recount teams from treating similar ballots differently.

Whatever else one may say about Bush v. Gore, one fact is that it has spawned a slew of copycat lawsuits and has the potential of spawning many more. Lawsuits over voting machine technology, the processing of provisional ballots and the administration of voter ID rules have all invoked Bush v. Gore as precedent for the proposition that any variation in the counting of votes caused by these parts of the electoral process violates the Equal Protection Clause. Similar suits can be imagined over the handling of absentee ballots, the management of voter registration databases and the training of poll workers, among other aspects of the electoral process.

None of these Bush v. Gore derivative suits may ultimately be successful. But that is not the point right now. Instead, they are all currently plausible, given the indeterminacy of the Equal Protection ruling in Bush v. Gore itself and the fact that the Court has not since had occasion to clarify it.

While any litigation over uncertainties in election law is unsettling for the reasons described earlier, litigation over the vote-counting process is especially unnerving. The reason is that the risks of strategic manipulation of the uncertainty for political gain are particularly acute. As damaging as strategic exploitations of uncertainties in campaign finance or redistricting law may be, at least those uncertainties may be temporarily resolved in particular states before the voting itself occurs. By contrast, strategic manipulation of uncertainties in the law of vote counting can occur during the process in which the ballots are being counted, with the consequence that the accuracy and integrity of the vote itself may be irredeemably impaired by litigation over uncertainties in the vote-counting rules. There is also the necessity of resolving contests over election results with special haste, leading to the increased likelihood of judicial errors -- which in turn invite further questioning of the legitimacy of the election's outcome.

Imagine a case in which the decision of whether or not 10,000 provisional ballots will count turns on whether variation in their treatment violates the Equal Protection Clause according to the principle of Bush v. Gore. Imagine further that the election in which these provisional ballots were cast was sufficiently close that only 1,000 votes separates the two leading candidates, with all ballots counted except for these disputed provisional ballots. In this situation, the judiciary cannot decide the Bush v. Gore issue without necessarily determining which candidate wins the election. This judicial determination of the election's winner, by taking sides on a question that lacked a clear answer to begin with, is much more problematic than judicial resolution of campaign finance or redistricting questions. Settling the ground rules for the election ahead of time is one thing; picking the winner, based on an interpretation of precedent that could go either way, is quite another.

Thus, the country can tolerate the uncertainties generated by this year's trilogy of election law decisions, because these cases concern pre-election ground rules for conducting campaigns. But the current Court had better resolve its tentativeness concerning the constitutional law of elections before the Court confronts another case that specifically involves the vote-counting process. To leave the law of vote counting as uncertain as the Court this year left the law of campaign finance, or the law of redistricting, would do double damage to our nation's democracy. For one thing, it would undermine the legitimacy of the Court itself, as the public comes to accept accusations that the Court intentionally reserves for itself the authority to resolve each disputed election as its wishes. But equally if not more ominous would be the public's loss of faith in our nation's ability to conduct elections democratically, believing instead that the outcome of any close election would be at the arbitrary whim of the Court.

We must hope, then, that the indecisiveness of this year's election law cases is nothing more than the first-term jitters of an understandably cautious Roberts Court. We can anticipate the Court acting more decisively the next time it considers a campaign finance or redistricting case. But much more importantly, as a nation, we can and should collectively plead that the Court rule definitively whenever it has occasion to entertain a follow-up to Bush v. Gore concerning the applicability of the Equal Protection Clause to the vote-counting process.