[EL] skepticism that Chief Judge Roberts cares about voting rights

[Richard Winger]

Chief Justice Roberts and the whole US Supreme Court has turned a deaf ear to every single cert petition filed by minor parties and independent candidates, since Roberts has been chief justice.

That includes a case from Georgia challenging that state's ballot access law for minor parties and independent candidates to get on the ballot for US House, which is so restrictive, the existing law (which has existed since 1965) has never been used.  The prior law was almost as bad, had existed since 1943, and was never used after 1964.  The right to vote includes the right of choice for whom to vote, and a state with that kind of record for US House is clearly violating prior US Supreme Court favorable ballot access precedents.

The Roberts court refused to hear an ACLU appeal against the Connecticut public funding law, which does not require any signatures for a member of a party that polled 20% of the vote in the last election, but requires independent candidates and members of new parties to submit a petition of 20% of the voters to get equal public funding.  Former US Senator and Governor Lowell Weicker had testified in that case that if that law had existed in 1990 (the year he won for Governor as a new party nominee) he could not have been elected.  The US District Court invalidated it but the 2nd circuit reversed by a vote of 2-1.

The Roberts court refused to hear the 2012 Libertarian case against Michigan for keeping its presidential nominee, Gary Johnson, off the November ballot because his name had appeared on the February 2012 Republican presidential primary even though the Michigan "sore loser" law was passed in 1955 (before Michigan had a presidential primary), has not been amended, and in 1980 was interpreted by Michigan not to apply to presidential primaries (so that John Anderson was able to be the nominee of his own Anderson Coalition Party in November in Michigan even though his name had been on the 1980 Republican presidential primary ballot).

The Roberts court refused to hear a 2008 Libertarian case against New Hampshire, which printed two presidential candidates on the November ballot, one nominated by the state and national Libertarian Parties, and one who got himself on the ballot with the support of no party, and yet the state printed "Libertarian" for both of those candidates.  Furthermore the state listed the rogue Libertarian first on the ballot.

The Roberts court also refused to hear a Libertarian case against Massachusetts' policy of refusing to let petitioning groups use a stand-in on the petition for either president or vice-president.  Since the petition is due at the end of July, this forces minor parties to nominate in the spring so they have time to get the signatures.  This completely eviscerates what Anderson v Celebrezze said, that states cannot discriminate against new and minor parties and independent candidates in the matter of timing.

The Roberts court refused to hear a Nader case against Hawaii, against Hawaii's policy of requiring six times as many signatures for an independent presidential candidate as for an entire new party.  The independent presidential petition was so restrictive, as of 2011 when the US Supreme Court rejected it, no one had used the procedure since 1992.

The Roberts court refused to hear a Libertarian case against North Dakota, which won't let any party nominate candidates for legislature unless between 10% and 15% of all the primary voters choose the primary ballot of the minor party.  This policy seems to ignore Williams v Rhodes.  No minor party candidate for the legislature has been on the general election ballot in North Dakota since 1976.

The Roberts court refused to hear an independent candidate's case against an Alabama law which requires an independent candidate for US House to obtain more signatures than an independent presidential candidate needs.  The lower court decision utterly defies the holding in Illinois State Board of Elections v Socialist Workers Party, which said states cannot require more signatures for office in just part of the state, than in the state as a whole.

The Roberts court refused to hear an independent candidate's case against Illinois policy, which is that in years after redistricting an independent for US House needs 5,000 signatures exactly, but in other years he or she needs between 15,000 and 18,000 signatures.  The case had been filed by an independent candidate who had over 5,000 valid signatures but unfortunately for him he was running in a year other than the year after redistricting.

The Roberts court refused to hear several cases against Pennsylvania policy that if an independent or minor party petition lacks enough valid signatures, that minor party or independent candidate must pay court costs of between $85,000 and $110,000, all because Pennsylvania has no procedure for checking the validity of signatures except to adjudicate it in court.

Roberts could not even bring himself to put an independent candidate for US House on the Virginia ballot, who had been kept off because the candidate himself circulated his own petition but he did not live in the district.  Eventually Virginia's residency requirement that the circulator live in the district was struck down, but before that happened, Roberts acting as the Circuit Justice for 4th circuit during the court's summer recess (September 30, 2010), was asked to put the candidate on the ballot, but refused.  

 
Richard Winger
415-922-9779415-922-9779
PO Box 470296, San Francisco Ca 94147


________________________________
 From: "Kelner, Robert" <rkelner at cov.com>
To: Marty Lederman <lederman.marty at gmail.com> 
Cc: "law-election at uci.edu" <law-election at uci.edu>; Election Law <Law-election at department-lists.uci.edu> 
Sent: Saturday, April 19, 2014 2:07 PM
Subject: Re: [EL] McCutcheon -- identifying the nature of the contributor's constitutional right(s)
 

Marty has a lot packed in here, and I won't attempt to answer most of the points he raises. But I did want to respond to the skepticism that the Roberts Court would apply the principles of McCutcheon to voting rights, in addition to campaign finance
 regulation. I think, actually, the Court might do precisely that. But nothing in McCutcheon or any of the Court's recent campaign finance cases would preclude modest regulation of contributions like the requirement that a contributor must be a US citizen or green card holder, that their contribution generally must be disclosed, that they may use only permissible sources of funds for contributions, and so forth. Likewise, the Court has upheld, and presumably would continue to uphold, modest regulation of voter registration and admission to polling places along similar lines.

But there is little doubt that if any state were to impose the degree of restriction on voting rights that the Federal Election Campaign Act imposed on campaign finance, the Roberts Court would lower the boom with dispatch.  We are quite far, at this point, from seeing that kind of voting rights regulation by the states.  Requiring a photo ID, as does most of the
 industrialized world (and indeed much of the non-industrialized world), for example, certainly doesn't rise to that level.

Sent from my iPhone

On Apr 19, 2014, at 4:42 PM, "Marty Lederman" <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>> wrote:

On the LawCourts list, someone asked whether anyone had encountered an intellectually credible defense of the First Amendment jurisprudence underlying the plurality opinion in McCutcheon.  This led to a discussion of how contributions are, or are not, a form of "free speech," and about whether the Roberts opinion makes any such argument.  This was my response; I'd be interested in others' reactions, thanks:


The new majority has invoked at least four different notions of what
 the contributor's constitutional right might be.  Two of those notions (nominally) depend upon the idea of the contribution furthering the contributor's interest in speech, or expression -- but those rationales aren't really doing the serious work, I think.  The other two rationales are now dominant -- so much so that the cases might even come out the same if there were no Free Speech Clause.

1.  Enhancing the contributor's speech to the electorate.  This is the rationale that Mark Tushnet invokes [in an earlier post].  I give money to a candidate because I want to persuade the electorate, through advocacy, to vote for her -- and I can do so much more efficiently by pooling my money with others and by facilitating the use of that pooled money for candidate's own speech, which will be much more effective than my stand-alone speech ever could be.  (This notion goes back all the way to Buckley, of course -- that
 independent expenditures are less effective than the candidate's use of the same $$ for her own speech, and thus less valuable to the candidate.)

This rationale does not get much of a workout in McCutcheon and recent cases, except when the Court repeats its view (p. 2 of McCutcheon) that if the state's interest were "simply to limit" such political speech, such an objective would be constitutionally impermissible, because . . . well, because the First Amendment prohibits the states from seeking to limit campaign speech as such, even if the way it attempts to do so is by regulating conduct (contributions) antecedent to the speech.  Cf. Justice Kagan's free speech article; Texas v. Johnson; etc.

The problem with this horn of the argument is that although some proponents of campaign finance have been motivated by a desire to limit campaign speech, that doesn't describe what Congress has done over the years.  Generally speaking,
 Congress does not treat contributions of money to current and prospective officeholders worse if that money is intended to be spent on campaign speech; it treats such speech-facilitating transfers of money more favorably than comparable non-campaign-related donations.  If I were to give an officeholder even $1000 to buy a yacht, or to help pay for her son's tuition, I would probably be convicted of a crime.  Not so if I "only" intend that same $1000 to facilitate her speech so that she might be re-elected.  Contributions for campaign speech, that is, are generally given preferred treatment, not disfavored treatment, under the law.

To the extent contribution limits are, indeed, designed not to affect campaign speech, but instead to be one variant of a broader regulation of a form of conduct without regard to communicative impact -- i.e., a general presumption that transfers of money to officeholders qua officeholders are disfavored,
 no matter what the dollars are to be used for -- they should be subject to the O'Brien intermediate scrutiny test, which is generally very deferential to the government, and under which the Court should sustain most contribution limits, at least as long as the regulation is not "aimed in part at equalizing the relative ability of all voters to affect electoral outcomes."  The "original sin" in this regard was the opinion in Buckley, which mistakenly rejected O'Brien scrutiny after the government and the lower court had argued for it.  424 U.S. at 15-17.

2.  Preserving the contributor's right to "speak" to the candidate.  You're all familiar with this one:  The contribution is a way of my showing the candidate that I care.  This, too, plays almost no role in McCutcheon and similar opinions (other than making a cameo appearance), for at least two reasons.  First, same as above -- since the government's interest is
 not in stopping the donor from expressing her support to the candidate, the regulation should be subject to O'Brien scrutiny at most, and survive it.  Second, caps on amount do not have much, if any, effect, on my ability to demonstrate to the candidate that "I support you."

3.  Protecting the right of "political participation."  I apologize if this has already been discussed on-list and I missed it, but I thought the most remarkable, the most surprising, part of the Roberts opinion was its very first paragraph, which pivots away from a speech rationale to something much different:

There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is
 about the last of those options.

Has the Court ever said anything quite as unequivocal as this before?  That the most basic constitutional right (presumably one that antedates the Bill of Rights and that needs no textual hook) is the right to participate in the electoral process -- a right that includes not only making political contributions and engaging in political speech (independent expenditures), but also running for office, voting, and working on a campaign?  (Although the plurality states in the next paragraph that it's the "First Amendment" that protects contributions, in particular, that statement doesn't mention the Free Speech Clause -- and, in any event, who needs the First Amendment if, even prior to 1791, there was an even more fundamental right to participate in elections?)

Now, I'm not naive enough to think that the Roberts Court is about to start protecting the right to vote, etc., to the same extent that it is
 now protecting the right to make political contributions, much less as a right that "more basic" than any other constitutional rights.  But this paragraph, taken seriously, could be the source of a new flourishing of voting rights and other election-related rights.  More to the immediate point, regardless of its generative impact, the remainder of the Roberts opinion is much more attuned to this notion of a basic "participation in elections" right than to any notion of contributions as "free speech" under the First Amendment.  And if there were such a "basic" right, the opinion would make much more internal sense than if viewed through a Free Speech Clause lens.

4.  A "right" of responsiveness of officeholders?

Finally, there is the theme in the opinion that will undoubtedly be its most controversial -- namely, that the ingratiation and access that are purchased with political contributions are not a problem to be
 addressed by Congress, but instead, a fundamental constitutional virtue, "embody[ing] a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns."  (Of course, the logic of the Roberts opinion is even stronger than that--namely, that the "central feature" of the U.S. system as they understand it is that elected officials should not merely be responsive to all of their constituents, or to all of their supporters, in equal measure, but instead that officeholders should be more responsive to those constituents who have contributed the most money . . . and that it is illegitimate for the legislature to try to shift such responsiveness away from such a money-based correlation.)

If, as this suggests, there is some sort of fundamental "democratic" right of constituents to have their representatives act in a way that is
 "responsive" to the concerns reflected in the amount of money contributed by various actors during an election, then contribution limits are a direct suppression of that "central feature" of the Constitution, and would be for that reason alone constitutionally suspect.  Under this rationale, too, the opinion would "make sense."  (Of course, as others have suggested, it would also call into question why quid pro quos aren't even more of a "central feature" of democracy worthy of constitutional protection -- after all, there's no more direct and efficient way of ensuring that officials are "responsive" to the concerns underlying the $$.)

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