With speculation continuing to swirl about the possibility that President Obama will nominate Judge Diane Wood of the Seventh Circuit to the Supreme Court, I thought I would take a look at some of the judge’s opinions in the field of election law. My bottom line: though there is not much to go on, Judge Wood’s opinion in the Crawford dissent from denial of rehearing en banc makes me confident that she would bring a welcome and nuanced approach to election law questions. It is not clear, however, where she stands on campaign finance issues; it should be noted that some other eminent short-listers have a deregulatory view of campaign finance regulation that places them closer to Justice Thomas than to Justice Souter on this question.
In any case, here’s the little I’ve found so far.
Via this SCOTUSBlog post comes a reminder that Judge Wood wrote a very thoughtful and subtle dissent from denial of rehearing en banc in Crawford v. Marion County Election Board, the case concerning Indiana’s voter identification law. Judge Wood’s analysis of the standard to apply in reviewing such laws is well worth reading, and she was right on the money in saying that the standard for reviewing under Burdick v. Takushi is not clear. Indeed, the Supreme Court’s opinions Crawford, reviewing the same case, have further muddied the waters on this question. Interestingly, I think Judge Wood’s position in Crawford comes close to the position that Justice Souter articulated in his Crawford dissent.
Judge Wood also wrote the opinion of unanimous 3-judge-panel in a Voting Rights Act case in 2000, Harper v. City of Chicago Heights. The opinion reads to me as squarely in the mainstream of VRA section 2 decisions. Of note, Judge Wood rejected a cumulative voting remedy proposed for Voting Rights Act violations because under existing Supreme Court precedent, the court is to defer to the proposed remedy put forward by the defendant in the case. She was careful to note, however, that her opinion “should not be understood as a condemnation of cumulative voting.”
Judge Wood, writing for herself and Judge Posner in the 1998 case of Bradley v. Work held that judicial retention elections were subject to section 2 of the Voting Rights Act, but that the plaintiffs could not prove a voting rights act violation under Lake County, Indiana’s judicial retention election system. Judge Manion, concurring, did not believe section 2 applied to judicial retention elections.
Finally, Judge Wood concurred in an opinion written by Judge Posner in Nader v. Keith, a ballot access case in which Judge Posner opines on the role of third parties in American politics. (Richard Winger offers scathing criticism of that opinion from the perspective of a strong believer in third party rights.)