I have now posted a revised version of Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn but with Speed Bumps and Surprising Twists, forthcoming Stanford Law Review (2016). Though revised, the revision was completed before Justice Scalia’s death. Here is the abstract:
The first decade of election law cases at the Supreme Court under the leadership of Chief Justice Roberts brought election law down a strong conservative path. Citizens United v. Federal Election Commission freed corporate money in U.S. candidate elections and opened up a deregulatory era increasingly dominated by nominally independent “Super PACs.” Shelby County v. Holder eviscerated the congressional regime codified in Section 5 of the Voting Rights Act under which Congress required states and localities with a history of racial discrimination in voting to obtain federal permission before making a change in voting rules by proving that the change would not make minority voters worse off. In its wake, previously-covered jurisdictions have adopted a number of election changes which no doubt have made minority voters worse off. In Crawford v. Marion County Election Board the Court gave the green light for state voter identification laws, despite a lack of evidence that such laws are necessary to deter fraud or instill voter confidence. Republican states have increasingly tightened voting rules in Crawford’s wake. Finally, the Court will soon consider whether to place new restrictions on application of the one person, one vote rule which would hurt Latino representation and strengthen rural and Republican power. The Court took the case, Evenwel v. Abbott, despite having apparently resolved the legal question it presents in 1966.
Nonetheless, the Roberts Court, while dominated by a majority of five conservative Justices, has not gone as far right as it could have or as some, including I, had predicted. In the campaign finance arena, the Court has thus far refused to take cases to strike down the ban on direct corporate contributions to candidates, or to reopen the ability of political parties to take large “soft money” contributions. It has not eliminated individual contribution limits, even as Super PACs and other campaign groups undermine them. In the voting rights arena, the Court so far has declined cases which would further limit the scope of, or find unconstitutional, Section 2 of the Voting Rights Act, a key remaining protection for minority voters, and it has revived the racial gerrymandering cause of action in a way which can help minority plaintiffs fight Republican gerrymanders. Most recently, the Court surprisingly rejected the opportunity to use the Elections Clause to kill independent commission-based congressional redistricting and other electoral reforms, and it upheld against First Amendment challenge a rule barring judicial candidates from personally soliciting campaign contributions.
In this Essay I describe the path of election law jurisprudence in the Roberts Court and then consider two questions. First, what explains why the Court, while shifting in a strongly conservative direction, has not moved more extremely to the right? Second, what options has the Court left for election reformers who are unhappy with the strongly conservative, although not maximally conservative, status quo?
On the first question, a combination of factors appears to explain the trajectory and speed of the Roberts Court’s election law decisions. The Roberts Court is fundamentally conservative, but for jurisprudential, temperamental, or strategic reasons Justices holding the balance of power appear to prefer incrementalism to radical change. Mandatory appellate jurisdiction appears the best way to force the Roberts’ Court’s hand, and it often but not always leads to a conservative result. Nearly half of the Roberts Court’s election cases came on mandatory jurisdiction. Progressives meanwhile have limited the number of cases they present for Court review to avoid adverse precedent. Finally, the five conservative Justices are not monolithic in their views and are capable of surprise, as evidenced by the recent Arizona redistricting decision, in which Justice Kennedy joined with the Court’s liberals, and the recent judicial elections case, in which Chief Justice Roberts joined with the Court’s liberals.
On the second question, the Court has left very limited space for reform in certain areas, such as campaign finance. Where the Court has greatly constrained choice, only minor improvements are possible absent a change in the Supreme Court’s personnel. In these areas, the problem is not that reformers have a “romanticized” vision of democracy; it is that the structural impediments erected by the Court have hobbled meaningful reform efforts. In contrast, in areas in which the Court has mostly left room for decentralized election law approaches, such as in the arena election administration, election fights are becoming both legal and political. Polarization and decentralization have led to the emergence of “red state election law” and “blue state election law,” with voting restrictions increasingly enacted in many Republican-leaning states but not Democratic-leaning states or states with mixed control.
Part I briefly describes the path of election law in the Roberts era across key election law areas including campaign finance, voting rights, and election administration. Part II explains why the Roberts Court is deeply conservative but not consistently maximalist. Part III considers the space for election reform in the Roberts Court era and beyond.