As I have been writing, there is no question that whoever replaces Justice O’Connor on the Supreme Court can have a great deal of influence on election law. Depending upon how that new Justice votes, we could potentially see an end to the current rules for campaign financing (for example, making it easier for corporations and unions to spend money for election related activities), a change in the rules for partisan gerrymandering claims, and potentially a holding that a reauthorized preclearance provision of the Voting Rights Act is unconstitutional as exceeding Congressional power.
President Bush’s newly named nominee to replace Justice O’Connor, D.C. Circuit judge John G. Roberts, Jr., does not appear to have much of a paper trail on election law issues. We are told that Roberts will be a lot like Chief Justice Rehnquist, that he could make a dynamic center of the Court (with Justices Kennedy and Breyer), and that he is someone with reverence for the Court, not anger like a Justice Scalia or Thomas.
These generalizations don’t help much in knowing how a Justice Roberts would rule in election law cases. For example, even if he believed that it should be unconstitutional to limit corporate and union expenditures in elections, an “institutionalist” with respect for stare decisis might move slowly, not boldly, to overturn precedents such as McConnell or Austin.
Opponents of Judge Roberts have tried to paint him as an opponent of the Voting Rights Act. This San Francisco Chronicle editorial, for example, states that Roberts advocated “against a congressional effort to make it easier for minorities to argue that their votes had been diluted under the Voting Rights Act.”
Although this statement appears technically true, it tells us nothing about what Judge Roberts actually thinks of the Voting Rights Act. I found this information on page 4 of this Alliance for Justice report opposing the nomination of Roberts for confirmation to the D.C. Circuit:
- After a 1980 Supreme Court decision, Mobile v. Bolden, dramatically weakened certain sections of the Voting Rights Act, Roberts was involved in the administration