[EL] Lack of Deference to Congress, but Deference to States, in Election Administration Cases

[Josh Douglas]

Rick correctly points out, below, that the Supreme Court has refused to
defer to Congress in recent election law cases, particularly over campaign
finance and the Voting Rights Act.  Notably, however, the Court has
deferred to state legislatures quite broadly in election administration
cases.  With apologies for the self-promotion, for those who are interested
I have a new draft that examines this phenomenon of undue deference to
states in regulating elections, while not deferring to Congress:
*(Mis)trusting
the States to Run Elections* (forthcoming in the Wash. U. Law Review).  It
hasn't entered the editing stage yet, so comments are welcome!  You can
find it here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2405396

Best,

Josh

On Mon, Jun 30, 2014 at 1:05 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>
>      #HobbyLobby: When is Congress “Wise?” When the Court Agrees with
> Congress’s Wisdom <http://electionlawblog.org/?p=62877>
>  Posted on June 30, 2014 8:50 am <http://electionlawblog.org/?p=62877> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Near the end of Justice Alito’s majority opinion in the Hobby Lobby
> <http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf> case today,
> he writes that it is not the Court’s job to question the “wisdom” of
> Congress in using the compelling interest test in RFRA, but the Court
> applies that RFRA test strongly, and in a way which shows the Court
> apparently giving great deference to Congress’s judgment about how to
> balance the government’s interest in generally applicable laws with the
> accommodations of religious freedoms. It reminded me of Justice Scalia’s
> pleas in Windsor
> <http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf>last term for
> deference to Congress on the need for the Defense of Marriage Act.
>
> The Court has shown no such deference when it comes to the need for
> campaign finance regulation or to protect the voting rights of racial
> minorities and others. The Roberts Court has overturned or limited every
> campaign finance law it has examined (aside from disclosure laws). It has
> struck down a key provision of the Voting Rights Act. How much deference
> did Congress get in those cases? None.
>
> Well when is Congress wise and entitled to deference? When the Court
> agrees with Congress’s approach. Let’s call that “faux deference,” to go
> with the “faux-nanimity
> <http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2014/scotus_roundup/scotus_end_of_term_massachusetts_abortion_clinic_buffer_zone_law_goes_down.html>”
> of the rest of the term.
>  [image: Share]
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D62877&title=%23HobbyLobby%3A%20When%20is%20Congress%20%E2%80%9CWise%3F%E2%80%9D%20When%20the%20Court%20Agrees%20with%20Congress%E2%80%99s%20Wisdom&description=>
>    Posted in Supreme Court <http://electionlawblog.org/?cat=29>
>
>
-- 
Joshua A. Douglas
Assistant Professor of Law
University of Kentucky College of Law
620 S. Limestone
Lexington, KY 40506
(859) 257-4935
joshuadouglas at uky.edu
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