Justice O’Connor’s Complex Election Law Legacy

Condolences to the family of Justice Sandra Day O’Connor, who passed away after a long illness.

Justice O’Connor was a trailblazer, the first woman Justice and a former state legislator. She came to her election law cases with a kind of pragmatism, with a conservative bent that was not always consistent. Because she was a swing Justice on the Court for some time, her sometimes idiosyncratic views carried the day.

She changed her views in the campaign finance cases multiple times: first supporting some limits on corporations in elections (MCFL), then opposing such limits (dissenting in Austin) then embracing them again (in McConnell v. FEC). In her later years she was one of the Court’s strongest supporters of limits on money in politics, voting to uphold much of the 2002 McCain-Feingold law. After she left the Court and was replaced by Justice Alito, much of her work here was reversed, in cases including WRTL II and Citizens United.

Justice O’Connor was also in the majority in Republican Party of Minnesota v. White, a case striking down rules on judicial candidate speech. As Linda Greenhouse reports, it was the only case she publicly said she regretted voting for. After retiring, she tried to support efforts to move from judicial election to appointment, without success.

She invented the cause of action for an unconstitutional racial gerrymander in Shaw v. Reno, setting forth a test that was not well developed and ultimately changed by other Justices in cases such as Miller v. Johnson. Those cases have now morphed into junior varsity vote dilution cases (and I’ve thought these cases poorly reasoned whether used by those first on the right and later on the left).

She supported the constitutionality of the Voting Rights Act, as it was challenged in some Section 2 cases, but she wanted to read the act more pragmatically, as in the Georgia v. Ashcroft case.

Perhaps her most consequential election law vote was in Bush v. Gore, where she joined the majority supporting George W. Bush’s presidential election in embracing an equal protection holding that one would have expected liberals to embrace (the liberals mostly rejected it in that case). The per curiam opinion was unsigned and people speculated it was written by O’Connor and Justice Kennedy. We now know from the release of Justice Stevens’ files that O’Connor was an early advocate of what went into Chief Justice Rehnquist’s concurrence, that we now call the “independent state legislature” theory. It’s not clear why she abandoned it and embraced the equal protection holding that appeared to have originated with Justice Kennedy.

In the end, Justice O’Connor’s election law legacy was a mixed bag from the perspective of voting rights and democracy. She disappointed everyone some of the time, and surprised some of the time. I suppose that’s the true definition of a swing Justice.

Rest in peace.

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