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Free & Fair

The Supreme Court and Election Law: In Search of Doctrinal Specificity

Listen to Professor Foley's podcast on Washington State Grange & Washington v. Washington State Republican Party , et al. by clicking here.

The Supreme Court opened its term yesterday with an election law case, Washington State Grange v. Washington, and it will hear oral argument in another one tomorrow, New York State Board of Elections v. Lopez Torres. Last week, it added a third to its calendar, Crawford v. Marion County Election Board, better known as the Indiana voter identification case, which instantly overshadowed the others and became one of the handful of cases that Court-watchers will watch most closely.

All three cases share a common attribute: they will be challenging for the Court because they each require distinguishing when one burden is too much, and when another is not, based on nothing more than the vague phrases of the Constitution’s equality and liberty guarantees. Take the voter identification case for purposes of illustration. Although some of the rhetoric surrounding the case might make one think any voter identification requirement is inherently evil, or inherently innocuous, depending on one’s point of view, the truth of the matter is that determining the constitutionality of specific voter identification laws will require a much more nuanced analysis, focusing on the factual details of the particular law at issue.

Some forms of a voter identification requirement undoubtedly would be unconstitutional. Think of a statute that required voters to present three forms of photo identification, including one that cost voters $100 to obtain. Conversely, asking voters to sign a poll book is a form of an identification requirement, one that has existed for decades and obviously is permissible. So, too, presumably would be a law requiring voters to bring any postmarked piece of mail delivered to their residence showing their name and address, or else swear out an affidavit of homelessness.

Once the status of these two “polar” examples is accepted, it becomes quickly apparent that the Court faces a difficult line-drawing challenge. There is little to guide the Court in drawing this line between permissible and impermissible voter identification laws, except the bare concept of equal citizenship in a democracy. The Justices can also use their basic powers of reason, to consider how onerous a particular voter identification requirement may be in relation to the objectives it purports to serve. But in a close case, where the burden is slight (the government pays for procuring documentation of a voter’s U.S. citizenship), and the benefit not entirely illusory (proof of U.S. citizenship makes negligible the risk of non-citizens voting), there is nothing in the Constitution itself—or even in the Court’s precedents—requiring it to rule one way or the other.

The same observation applies in the case that the Court heard yesterday. There the question is whether Washington State’s particular form of a “top two” primary, one in which candidates are permitted to identify a “party preference” on the ballot, is compatible with the party’s own constitutionally protected freedom of association. (The top two vote-getters might both self-identify as Republicans, for example, even though only one of them is the party’s officially endorsed candidate.) We already know that one form of inter-party (or “blanket”) primary is unconstitutional: one in which all voters, regardless of their own party affiliation, are permitted to select a party’s official nominee. Conversely, the Supreme Court has already told us that a different version of a “top two” primary would be unproblematic: one which did not list any partisan affiliation on the ballot. The Washington case thus requires the Court to explain more precisely what distinguishes the permissible from the impermissible—and whether Washington’s party “preference” label crosses the line. (If Washington allowed a party to disown an objectionable candidate, presumably its labeling law would be permissible. But what if the state adopts a generic disclaimer, that a candidate’s statement of party “preference” entails no implication that the party itself accepts the candidate’s affiliation with it?)

Tomorrow’s case likewise involves some tricky line-drawing. The details of that case are complicated. It concerns the method by which New York State selects a party’s judicial candidates to run in the general election. The method involves both a primary and a convention: the primary chooses the convention delegates, and the delegates nominate the judicial candidates. The complaint is that the structure of the combined primary-convention process has the effect of foreclosing judicial candidates not favored by party bosses. Assessing the merits of this complaint is made more difficult by recognizing that some candidate-selection processes would undoubtedly be unconstitutional (for example, a primary in which party bosses received extra votes by virtue of their official positions within the party leadership), while others would be undoubtedly unobjectionable (for example, a primary in which one candidate appeared on the ballot as the officially endorsed candidate of the party’s central committee). The Court may well reject this complaint, on the ground that that there are no formal barriers to mounting a challenge to an insider candidate (the challenger can run a slate of delegates at the primary stage, who if successful will control the convention)—but to do so will require the Court to rule irrelevant all the evidence of the practical impediments that the current system imposes.

The common feature of these three cases—difficult line-drawing with little guidance from the Constitution itself or the Court’s precedents—calls upon the Court to think more systematically about the development of doctrine that can do more to constrain the Court in future related cases. It is not as if the Court has never decided relevant election law cases previously. On the contrary, the Court decided cases involving state primary laws in both 2000 and 2005, and of course 2000 was the year of Bush v. Gore. It is just that the Court’s articulation of the constitutional principles governing election cases has been so abstract and diffuse as to impose little in the way of further specification of the controlling constitutional standards. It is not just Bush v. Gore that reflects the Court’s intensely fact-specific approach to the resolution of election cases. Rather, it is the entire array of election cases that the Court has decided in recent years.

Heather Gerken has usefully described this period as one of “doctrinal interregnum,” but it is now time for the Court to lay down some binding law. As Chris Elmendorf observes in a major scholarly project designed to offer structure to organize the existing nebulousness, “where judicial intervention [in election cases] is highly discretionary, unconfined by clear rules,” there is a “particularly acute” risk that the Court’s “reputation for political neutrality” will suffer irreparably. Accordingly, the Court needs not just to decide its three pending cases, but to do so in a way its new precedents establish more law to be followed than its previous precedents have done.

This brief overview is not the place to offer the specific intermediary rules that the Court ought to adopt in each of the cases. Professor Elmendorf has already developed a menu of analytically rigorous options that the Court could pursue in the New York judicial candidates case, and his larger project has promised a later installment that provide something similar for the Indiana voter identification case. Whether or not the Court embraces any of the particulars of his analysis, the Court should heed his basic message (one that I’ve also echoed previously): election law as a subfield within constitutional law is in an especially urgent need for doctrinal specification. The Court would do well to use the three pending cases to this end, coordinating their writing and release as necessary—not merely to avoid conflicting signals, but to advance a coherent vision of the extent to which the Constitution governs election law. This vision can then become the reference point for further elaboration of the specific rules that, rather than ad hoc judicial predilections, will serve to distinguish permissible and impermissible provisions of state election statutes.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


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