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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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Will Election Law Become Clearer This Year?

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January 3, 2006

In this new year, the new Supreme Court, under the leadership of Chief Justice John Roberts, has the opportunity to add substantial clarity to election law, which urgently needs clarification. Between now and March 1, the Court will hear argument in three major cases, two concerning campaign finance and the other redistricting. Both topics, like others within election law, are beset with unusual uncertainty: rather than merely confronting murkiness around the edges of settled doctrines, lawyers do not even know the basic principles that control in these areas.

With respect to campaign finance, the extraordinary uncertainty stems largely from the changing composition of the Court. Justice O'Connor, who retires upon the confirmation of Judge Alito (or, if he is rejected, a future nominee), joined the four liberals on the Court - Stevens, Souter, Ginsburg, and Breyer - to uphold in 2003 the key provisions of the McCain-Feingold campaign reform law. Chief Justice Rehnquist, whose death resulted in the appointment of Chief Justice Roberts, joined the three conservatives on the Court - Scalia, Thomas, and (on this topic) Kennedy - in voting to invalidate the McCain-Feingold law.

The dissenters in the McCain-Feingold case, McConnell v. FEC, staked out a clear philosophical position that would nullify most campaign finance restrictions (apart from disclosure rules or constraints on direct quid pro quo purchasing of legislative favors). They also made clear that they were prepared to overrule the Court's precedents that they viewed inconsistent with their philosophical position. If both new Members of the Court share the same philosophical commitment as the three McConnell dissenters, then campaign finance law may look entirely different after the Court decides the two pending cases, Randall v. Sorrell and WRtL v. FEC. Although Justice O'Connor will still be on the Court for the argument in WRtL (scheduled for Tuesday, January 17), her vote will not count if her replacement is confirmed before the Court issues its decision. Moreover, unless there is a filibuster, Judge Alito is likely to be on the Court in time for the argument in Randall (scheduled for Tuesday, February 28), where he can make clear his agreement with the McConnell dissenters, if he wishes to do so, thereby superseding any temporary impact a contrary result in WRtL might have. In any event, if Justice O'Connor's replacement also misses the Randall argument but, after eventual confirmation, must vote to break a 4-4 tie, then the case can be rescheduled for a second argument.

Of course, if either Chief Justice Rehnquist or Justice O'Connor's replacement (presumably Judge Alito) refuses to join the McConnell dissenters in their effort to transform campaign finance law, and instead chooses to follow Justice O'Connor's precedent-respecting approach in this area, then future unpredictability in this field will be confined to the normal kind of figuring out how these precedents apply to novel circumstances. But the point is that, as matters stand now at the beginning of this new year, the nation does not know which it will be: wholesale revision or incremental refinement? All participants in the electoral process - candidates, parties, interest groups, and ordinary citizens - will be much better off once we have an answer to this key question.

As for redistricting, the extreme uncertainty extends beyond the effect of new Justices. It encompasses the fact that in 2004 the prior collection of nine Justices could not settle on a definitive position concerning the issue. Four of them - Scalia, Thomas, and the now-superseded Rehnquist and (soon-to-be) O'Connor - would have ruled that legislative redistricting cannot be challenged as unconstitutional on the ground of partisan gerrymandering. The four liberals, who are all still on the Court, would have subjected partisan gerrymanders to constitutional scrutiny, but they could not agree on a standard for doing so. Justice Kennedy, the decisive vote in the case, Vieth v. Jubelirer, was neither willing to accept any of the liberals' standards nor prepared to foreclose all constitutional challenges to partisan gerrymanders.

The redistricting case currently on the Court's docket, LULAC v. Perry, which involves Tom DeLay's plan to capture additional Republican seats in Texas's congressional delegation through mid-decade "re-redistricting," gives Justice Kennedy another chance to declare a position on the issue, while at the same time allowing the new Justices to weigh in with their views. It is possible that the Court will still stand silent on the basic question of constitutional challenges to partisan gerrymanders, instead releasing a narrow ruling that focuses on the mid-decade feature of the Texas case. But as the nation's political system prepares itself for the inevitable legislative remapping after the 2010 census - and the onslaught of litigation that will ensue if the Court does not rule definitively, one way or the other, on the constitutionality of partisan gerrymanders in LULAC - the Justices would better serve American democracy if a majority of them could settle decisively on a principle that governs these disputes.

Campaign finance and redistricting, alas, are hardly the only areas of election law subject to extreme uncertainty. Remaining up in the air, for example, is the fundamental question whether a federal court can declare a state's entire electoral infrastructure - from voter registration procedures, through the hiring and training of poll workers, to the counting of provisional ballots - unsound, with the consequence that the federal court assumes responsibility for supervising election administration in the state (much as federal courts supervised educational administration in school desegregation cases). A case presenting this fundamental question is pending in Ohio: League of Women Voters of Ohio v. Blackwell. The federal district court there recently rejected the state's motion to dismiss the case, in effect accepting in principle the idea that it would hold the state's electoral process in receivership if the facts at trial proved the process to be as dysfunctional as alleged. It is very much debatable, however, whether the district court's view of the case will prevail on appeal. The main precedent that the district court cited to justify letting the case go forward was Bush v. Gore, but that Equal Protection decision was notoriously opaque, and it is far from clear the Supreme Court would want that controversial ruling, which after all shut down judicial interference in the Florida recount process, to be cited as authority for permitting judicial supervision of a state's entire electoral infrastructure.

The Supreme Court is unlikely to have a chance this year to issue an opinion in the Ohio case. Therefore, we cannot expect clarification concerning the scope and meaning of the Bush v. Gore precedent anytime soon. But the Court can begin the process of bringing some predictability to election law in the campaign finance and redistricting cases. In fact, because the redistricting case involves an Equal Protection claim, just as Bush v. Gore did and the Ohio case does, the Court can use LULAC not only to resolve the uncertainty over partisan gerrymanders, but also to send a broader signal about the applicability of the Equal Protection Clause to election disputes. As I have argued previously, because of the inherently and intensely partisan nature of these disputes, election law is a field that especially needs clarity in its rules.

Therefore, we must hope that, by the beginning of 2007, as the nation embarks on the two-year cycle leading up to the federal election of 2008, the Court has provided some clear direction concerning the future of election law. The participants in the electoral process - who ultimately include all of us voters - are entitled to know the basic groundrules that govern the process. If 2006 passes without definitive pronouncements from the Court in the pending campaign finance and redistricting cases, it will have been a disservice to democracy.