Election Law @ Moritz

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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.

Weekly Comment

Fact-Specific Election Law

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July 5, 2005

As has been widely noted over the last few days, Justice O'Connor's approach to deciding cases has been characterized by razor-thin rulings that turned on the specific facts at hand. While this pragmatic, incremental approach may serve the nation well in other areas of law (notably abortion and affirmative action), it is quite problematic in the area of election law. In this field particularly, it is important that the outcome of a case be perceived as unaffected by which political party benefits from the outcome, and that appearance of impartiality is difficult to achieve when the outcome is so heavily fact-dependent.

Justice O'Connor's fact-intensive methodology proved critical in at least three specific sub-domains within election law. First, after initially invalidating the use of race as a criterion for drawing legislative districts, indeed characterizing the practice as akin to "political apartheid," she ultimately approved of race as a districting factor so long as it does not predominate over traditional districting criteria. Second, with respect to campaign finance, after condemning restrictions on the use of corporate money to fund election-specific advocacy as "the rawest form of censorship," she ultimately upheld just such restrictions - at least in the circumstance where the government presents credible evidence that corporate campaign spending has caused legislative corruption (as when, for example, the legislature derails measures adverse to corporate interests for fear of losing access to corporate support). Finally, and most prominently, she was one of the Court's five-member majority that voted in Bush v. Gore to halt the Florida recount while warning that this decision, being limited solely to its specific facts, might lack value as precedent in any future case.

The first two of these three fact-intensive decisions did not provoke the kind of widespread criticism that followed Bush v. Gore. A significant reason for this difference may be that, in the districting and campaign finance decisions, Justice O'Connor's ultimate vote appeared to favor Democratic Party interests at least as much as Republican ones. Approving the limited, non-predominating use of race in districting decisions was a "liberal" rather than "conservative" decision, consistent with the Democratic Party's general desire to increase African-American voting power. Likewise, restricting the use of corporate funds for election-specific advocacy is a position thought to favor Democratic more than Republican candidates.

Not so, of course, with Bush v. Gore. There, the partisan advantage of the Court's decision was plain for all to see. The problem with Republican-appointed Justices using a fact-intensive methodology to achieve this transparently Republican-advantageous result was the inability to show either that the result was compelled by prior precedent or that this new decision itself would prove binding in a circumstance equally disadvantageous to Republicans.

One of the most serious potential issues that loomed large over the 2004 presidential election, and which thankfully was avoided when the Ohio vote fell outside the proverbial "margin of litigation," was whether the same five-member majority that decided Bush v. Gore would again invoke the Equal Protection Clause to strike down a state's vote-counting procedure if doing so would benefit the Democratic candidate this time around. Incubating in the offices of pro-Kerry attorneys, ready to be hatched if the number of provisional ballots in Ohio significantly exceeded Bush's election-night margin of victory among regular ballots, was the argument that the state's procedures for determining the eligibility of these provisional ballots suffered from the same county-by-county, and even precinct-by-precinct, variations as the Florida recount process in 2000. The widespread belief among election law experts is that the primary lesson from the "near miss of 2004" is the overwhelming importance of precise and unambiguous rules in advance of Election Day concerning the evaluation of provisional ballots, so as to minimize the possibility of post-election litigation concerning their eligibility. The kind of fact-intensive jurisprudence favored by Justice O'Connor is contrary to this lesson of '04, thereby suggesting that the nation would benefit from a new Justice who adopts a much more rule-oriented jurisprudence at least in the field of election law.

One of the biggest challenges to the development of a rule-based jurisprudence is the precedent that has developed under Justice O'Connor's fact-based approach. As we have just noted in considering the potential applicability of Bush v. Gore to the 2004 election, fidelity to precedent is crucial if the Court is to appear rule-bound regardless of partisan consequences, rather than appearing unconstrained by rules in a way that enables it to achieve partisan ends on the facts of particular cases. But what if the Court's effort to formulate a rigid rule in the future, which would be binding down the road, conflicts with a particular decision reached in the O'Connor era? Should the Court overrule the O'Connor-era decision as inconsistent with its new rule-oriented approach, or instead should the Court endeavor to craft a narrower, more fact-dependent rule in an effort to accommodate the O'Connor-decisive precedent?

Although this dilemma has no easy solution, it would not be unreasonable for a new majority on the Court to jettison fact-intensive O'Connor era decisions, as long as in doing so the Court clearly explained its new rule-oriented approach in such a way that observers could judge whether over time the Court remains consistent in following the new approach. Consequently, it is incumbent on the Court early in its new post-O'Connor composition to articulate an overarching vision of its approach to election law cases. The Court should announce whether it will follow the "representation-reinforcing" philosophy that uses the Equal Protection Clause to protect majority rule and equal voting rights from entrenched usurpations of the legislative process by powerful "special interests" - a philosophy that animates many of the Warren Court precedents that form the substructure of contemporary election law, including Bush v. Gore. Alternatively, the Court should announce that it will revert to the pre-Warren Court philosophy of judicial "hands off" with respect to electoral disputes. Perhaps the Court can develop some new philosophical approach to election law cases. In any event, the Court should tell the nation what principles will guide its resolution of election disputes, so that the nation can judge whether the Court is following its own principles regardless of partisan consequences.

At the very least, the Court should impose on itself a requirement that in all election law cases it be able formulate a rule that governs not only the case before it but a definable category of cases that have arisen or are likely to arise. Justice Kennedy's demand for such a rule with respect to the problem of political gerrymanders was the right sort of judicial instinct. Although the problem is a pressing one and cries out for a judicial solution, and although Justice Breyer's articulation of a no-systematic-frustration-of-majority-rule standard would seem sufficiently precise to be enforced in a strictly nonpartisan fashion (and would have the added benefit of following in the Warren Court's "representation-reinforcing" tradition), it was appropriate for Justice Kennedy to hesitate until the Court coalesces around a single discernible standard of this kind. For the Court to invalidate a partisan gerrymander without such a standard, just because the gerrymander looks bad and is intuitively wrong, would be to perpetuate the kind of "ad hoc" decision making that characterizes the O'Connor-era Court and disserves the field of election law.

Thus, going forward, it will be better if the Court adopts clear and precise rules for the resolution of its election law cases, even if one might disagree with the substance of the rule the Court adopts, rather than deciding these cases on such fact-specific grounds that no binding rule emerges for application in future cases.