In each election, the Supreme Court’s rulings on election law (from the one person, one vote rules, to gerrymandering rules, to interpretations of the Voting Rights Act and BCRA) have a great effect on how elections are run and who wins. There will be many analyses, for example, of whether the results of the House elections show that the Supreme Court need not—or still should—regulate partisan gerrymandering. (That debate is already heating up on the election law listserv.)
But rather than look at those macro-trends now, I want to focus on a few noteworthy recent opinions that seemed to affect individual races:
1. TX-22: The ruling of a federal district court, affirmed by the Fifth Circuit, preventing Texas Republicans from naming a replacement for Tom DeLay, coupled with the mechanical difficulty of casting a write-in ballot on the electronic voting machines used in the race, likely cost Republicans that seat. (More on this race here).
2. FL-16: Despite Negron’s attempts to tell voters to “Punch Foley for Joe,” the Republican lost in this race. Florida law provided that when Mark Foley resigned amid scandal, his name remained on the ballot. Democrats, in my view indefensibly, fought to keep signs out of the polling place informing voters in a neutral way that a vote for Foley would count for Negron. A state court judge initially agreed the signs should not be posted, but a Florida appellate court reversed and Democrats abandoned the appeal. Negron lost narrowly despite the signs, thanks to Florida’s ridiculous election law. The law should allow for ballots to be changed (assuming there is time to do so) to reflect a change in the candidates running for office.
3. TX-23: Thanks to the Supreme Court’s opinion in LULAC, three Texas districts were redrawn to comply with what the Court found to be a Voting Rights Act violation. The formerly safe Rep. Bonilla has been forced into a runoff.
4. Senate (Pa): Republicans fought hard to help the Green party candidate qualify for this race, and the Democrats succesfully got the candidate removed for failing to turn in enough valid signatures. In the end, the Democrat Casey trounced Republican Santorum, but the parties could not have known that at the time they fought over the third party candidate.
It is also worth mentioning the law that did not exist. Unlike many other states, Connecticut does not have a “sore loser law.” If it did, we’d likely be looking at Sen. Lamont rather than Senator Lieberman. Lieberman won despite very poor ballot position.