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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

Doubleheader Tests the Court's Impartiality: EL@M to host Electronic Roundtable on Pending Pair

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February 14, 2006

It may be a coincidence, but it causes the Supreme Court to confront in an unusually systematic way its role as the umpire of American democracy. In two weeks, on back-to-back days, the Court will hear arguments in two potentially monumental cases, one concerning campaign finance and the other redistricting. Because of the unprecedented significance of these essentially simultaneous deliberations, Election Law @ Moritz will host an electronic roundtable discussion of the two cases and their potential implications, including those that might result from their fortuitous conjunction on the Court's docket. In this space, beginning a week from today and continuing through the arguments on February 28 and March 1 to the end of that week (March 3), this Electronic Roundtable will include recognized election law experts Rick Hasen, Dan Lowenstein, Rick Pildes, and Brad Smith, as well as members of our own Moritz team.

As fodder for this conversation, I offer the following preliminary observation. In the campaign finance case, it is the Republican Party that asks the Court to intervene to protect what conservatives (or at least those of a libertarian stripe) see as essential prerequisites to a fair democratic process: the opportunity of candidates to spend however much of their own personal wealth as they wish, as well as however much they are able to raise from likeminded supporters, to advance their candidacies. In the redistricting case, by contrast, it is Democrats who seek the Court's intervention for what they believe is crucial to a fair democracy: the invalidation of mid-decade "re-redistricting" undertaken solely to advantage one political party over another. (Further analysis of the campaign finance case is here; a useful overview of the redistricting case is here, although requiring subscription.)

In both cases, the opposite party is resisting the judicial intervention requested by its adversary. Thus, the Democratic Party is urging the Court to refrain from repudiating campaign spending limits, while the Republican Party has intervened to argue that the Court should refuse involvement in the redistricting dispute.

It is possible that one of these two parties is correct to maintain its superficially inconsistent positions on judicial involvement in these two cases. In other words, Republicans may be right – as a matter of constitutional principle – that the Court should intervene in the campaign finance case yet simultaneously reject any possibility of judicial relief in the redistricting case. Conversely, Democrats may be correct – again, as a matter of constitutional principle – that the Court should put a stop to mid-decade gerrymanders yet at the same time give the green light to stringent campaign spending limits.

But it would be difficult to convince either party that its opponent is on the side of constitutional truth in both cases while its own position is nothing but constitutional falsehood on both counts.

And therein lies the rub for the Court in these cases. If it rules for the Republicans in both, intervening in the campaign finance case while withholding relief in the redistricting dispute, it will look like the Court is merely siding with Republicans, and ruling against Democrats, without a principled basis for explaining when it will get involved in setting the ground rules for fair elections and when it won't. Similarly, if the Court rules for the Democrats, it will be subject to the same criticism, although perhaps less so, since it is a Court where Republican nominees outnumber their Democratic counterparts seven to two (although two of these Republican nominees, Stevens and Souter, arguably have become consistently liberal in their jurisprudence over the years).

It would seem tempting, then, for the Court to either intervene in both or instead deny relief in both, just to show that it can be impartial to Republicans and Democrats when exercising its role as umpire of electoral fairness. Justice Kennedy, who is likely to cast the decisive vote in both cases, might well be affected by this sort of consideration, even if only subliminally. If he is predisposed to intervene in both cases, as would seem true from his past writings on these topics, his willingness to do so – when the proverbial moment of truth arrives in the next few days – might be reinforced by a recognition that he would be giving one win and one loss to the Republicans and an equal outcome to the Democrats.

Now, one might well argue that no Justice should be influenced by this sort of consideration. Rather, he or she should decide each case on the merits, as best as he or she can discern them, without regard to political consequences. Thus, if Justice Kennedy's best understanding aligns with the arguments of the Republican Party, and against the Democrats, in both cases, so be it. He's just doing his job, as he should in any constitutional case where the views of Republicans and Democrats are likely to diverge. (Church-state disputes or criminal procedure cases come quickly to mind.)

The problem, however, is that election cases are different from other kinds of constitutional cases in this respect. With election cases, if the Court systematically aligns itself with one major political party against the other, the Court undermines its institutional legitimacy regardless of the motivations for its decisions. In this situation, the appearance of bias is itself a reality of bias. The reason is that in election cases, for the electoral system to be fair to both sides, it must appear fair to both sides.

If either the Democratic or Republican Party considers the electoral system in the United States fundamentally unfair - structurally biased in favor of the other party in a way that prevents citizens from exercising their right to elect the representatives of their own choosing - the situation is ultimately unsustainable. It would be necessary to change the system so that both sides could "sign on" to it as a fair contest between their competing visions for the electorate to choose between.

Thus, if the Supreme Court interprets the Constitution in a way that makes either the Democratic Party or the Republican Party perceives that the Constitution-so-construed is structurally biased against its ability to wage a fair contest against its political adversary, the result will be intolerable. The systematically losing party will believe it necessary to undermine the Constitution-so-construed in order to return to a situation of electoral equilibrium, in which it has a fair chance of electoral success. The Court, as the author of this newly and perniciously unfair Constitution, will be the principal target of the party's attack, and any future success that this party eventually has in restoring electoral fairness will come at the expense of the Court.

A double defeat for the Democrats, or the Republicans, in these two pending cases won't by themselves be enough to indicate the kind of systemic bias that could lead to the intolerably unstable situation just described. But especially for Democrats, a loss in both these election cases coming in the aftermath of their still bitter defeat in Bush v. Gore would begin to raise in their minds the question whether the system is rigged against them.

The special connection in election cases between the appearance and reality of fairness might be reason enough for the Court to refrain from involvement across-the-board in all these case. But, however desirable that posture might be, it seems particularly unlikely given the Court's previous willingness to become involved in campaign finance cases like the pending one. Thus, perhaps the best one can hope for – if one is considering the overall impartiality of the electoral system as policed by the Court – is that the Court adopt an interventionist posture in both the campaign finance and redistricting contexts.

That result at least would have the virtue of signaling that the Court is capable of operating as a neutral umpire between Republicans and Democrats, protecting what it independently considers to be essential ingredients of electoral fairness, regardless of what each party thinks of the particular matter at hand. Sometimes the Court's conception of these essentials coincides with one party and sometimes with the other. But "win some, lose some" is a situation both sides can live with.

It will be interesting to see how participants in our upcoming Electronic Roundtable react to this preliminary observation as well as to other aspects of the two pending cases.