The Supreme Court currently has no oral arguments scheduled in election law cases, but that could soon change. At least four significant cases are working their way toward consideration by the Court. Here is a summary and some predictions:
Vermont Republican State Committee v. Sorrell (formerly Landell v. Sorrell) (docket; Second Circuit opinion; cert petition; Response of Respondents/Intervenors). This case considers the constitutionality of Vermont’s spending limits for legislative races. It is on the conference for today, but if it is a close vote it will probably be put over so that Chief Justice Roberts can vote on the petition. Here is what I wrote in an earlier post, questioning the strategy of the winners in the 2d Circuit to support the petition for cert (see the original post for the hyperlinks):

You can find six amicus briefs supporting the winning side of the Second Circuit Sorrell case here. Usually, of course, the side that wins in the Court of Appeals opposes a grant of cert. But for years it has been the mission of some of the amici, such as NVRI [CORRECTION: NVRI is an attorney for Respondents-Intervenors, not amici], to try to get the Supreme Court to reconsider that aspect of Buckley v. Valeo striking down spending limits as violating the First Amendment rights of speech and association. Here’s a chance, the argument must be, to push the issue, by noting the circuit split, and lining up some heavy hitters (current and former Senators, state Secretaries of State, state judges, and attorneys general) on the winning side to support review to revisit this issue in a high profile case.
On reflection, I think this strategy could well backfire. I had predicted a cert denial in the earlier 10th circuit spending limits case, Homans, because I doubted that the Supreme Court would grant review to upset the settled law that spending limits violate the First Amendment under Buckley. And the Court denied cert.
Now I’ve been predicting a cert. grant, except noting the odd procedural posture: the Second Circuit has remanded for additional findings, and there’s a chance that this issue goes away after the case comes back to the Second Circuit after remand. For this reason, Tom Goldstein concluded that it is “very, very unlikely” that cert. is granted.
After Tom posted his comment, I started thinking about why I am more confident (though far from certain) about a cert grant. And the reason is this: it is hard for me to imagine that Justices Kennedy, Scalia, Thomas and the Chief (four votes for cert, assuming no retirements) would want to allow a Second Circuit opinion holding that spending limits may be constitutional to remain on the books for the year to two years likely before the case returns to the Second Circuit. So the impetus for cert. granting is going to be coming from those who would reverse the holding of the Second Circuit. We can never be sure where O’Connor’s vote would be, but she has been a supporter of the entire Buckley framework (maybe the last real supporter on the Court), and if I were Justice Breyer or Ginsburg (or Stevens or Souter), I wouldn’t be betting that she’d vote to allow spending limits at this point. So those who might be more sympathetic to the arguments of the Vermont plaintiffs should want to vote to deny cert., so things can percolate in the lower courts and there can be some experimentation, at least in the Second Circuit, with spending limits.
So in the end this strikes me as a big gamble. Plaintiffs should be careful what they wish for: a decision to grant cert now might mean a losing decision down the line, whereas waiting this out for another half decade or so, depending upon the composition of the Court, could have been a wiser strategy.

I wrote this, of course, before the death of Chief Justice Rehnquist and the nomination of Judge Roberts. I expect that Justices Kennedy, Scalia and Thomas might want to put off the decision here, ideally until President Bush nominates someone to fill Justice O’Connor’s seat. I think it is likely that whomever the President nominates will be someone opposed to the constitutionality of spending limits challenged under the First Amendment. Once these Justices are convinced that the nominee fits that bill, I think it is likely that cert. will be granted so as to reverse the Second Circuit.
Wisconsin Right to Life v. FEC (docket; Jurisdictional statement; three-judge-court opinion (pages 41-52 of pdf)). This case, another campaign finance case, is an appeal that is on today’s conference list. WRTL involves an as-applied challenge to the electioneering communications provisions of BCRA. The gist of the case is that BCRA’s ban on broadcast ads paid for with corporate funds cannot apply to a corporation that is running a genuine issue ad not intended to influence the outcome of an election. On page 55 of my recent University of Pennsylvania Law Review article on McConnell v. FEC, I express doubts that an as-applied challenge like WRTL’s challenge will succeed. You can find other commentary by Bob Bauer and Marty Lederman and Lyle Denniston of SCOTUSBlog linked here. I predict a summary affirmance of the lower court, and I don’t think the vote of Chief Justice Roberts will be determinative. Even though Justices Scalia, Kennedy, and Thomas would likely disagree with the three-judge court ruling, it is hard for me to see two other Justices willing to wade into these McCain-Feingold waters again so soon. I think a much more likely case for a hearing is Sorrell, where there will almost certainly see a majority for reversal if cert is granted.
Johnson v. Bush (docket; Petition for cert.; Eleventh Circuit en banc opinion) This case challenges Florida’s felon disenfranchisement rules as violating the United States Constitution and section 2 of the Voting Rights Act. The response to the cert. petition is due mid-October, and this should present the first (or one of the first) opportunities for Chief Justice Roberts to vote on a Voting Rights Act case. Here is what I wrote in an earlier post on this topic:

Based on everything I have seen about Judge Roberts’ views of section 2, I find it very difficult to believe he would interpret section 2 to cover felon disenfranchisement absent evidence of discriminatory purpose (though that issue is indeed presented in the Florida case). We know he opposed the broad effects test from section 2, and, as I noted here, he fought to have section 2 interpreted as narrowly as possible once it was passed. As I noted:
In this memorandum to Ken Starr (see page 2 of the pdf), Roberts recommended that the DOJ intervene in a voting rights case in Chicago, writing: “it is critical that the Department participate in the developing process of giving meaning to the vague terms of the new section 2, and help courts avoid the outcomes we argued against and which the proponents of an amended section 2 assured us were never intended.”

The liberals on the Court could vote against cert. in this case, out of fear of creating a national precedent that would narrow the reach of section 2. A cert. denial at least keeps the Ninth Circuit’s case alive for now.

For more on the existing precedents and background to the decision (including the Ninth Circuit case), see Lyle Denniston’s excellent SCOTUSblog post. Former Roberts’ co-worker at the Reagan Justice Department, Chuck Cooper, is representing Florida in this case.
Henderson v. Perry (Texas redistricting cases) (Docket; opinion of the three judge court; Jurisdictional Statement (Henderson) [UPDATE: Another jurisdictional statement] ) This is an direct appeal from a three-judge court, meaning the Supreme Court will have to do something with this case—summarily affirm (i.e., affirm without opinion), summarily reverse (exceedingly unlikely) or note probable jurisdiction and set the case for oral argument. Texas waived its right to respond to the petition, likely expecting a quick summary affirmance. I think that this is likely too, unless the Justice who is appointed to replace Justice O’Connor would side with the four dissenters in the Vieth partisan gerrymandering case from 2004 to hold such claims are justiciable. This is not out of the question, because the issue is not strictly a left-right issue (even though the four Vieth dissenters are the most liberal members of the Court). As I explain here, if Tenth Circuit Judge Michael McConnell were nominated to fill Justice O’Connor’s seat, there might indeed be five votes to give partisan gerrymandering claims some teeth (even not knowing how Chief Justice Roberts would vote).