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

[Dan Meek]

As your article notes, however, the U.S. Supreme Court does not defer to 
the states when it comes to limits on campaign contributions or 
spending.  So it appears that the dividing line between deferral and 
non-deferral is not state v. federal.  It is campaign finance reform v. 
other laws pertaining to elections.

Dan Meek

	503-293-9021 	dan at meek.net <mailto:dan at meek.net>	866-926-9646 fax



On 6/30/2014 10:15 AM, Josh Douglas wrote:
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 
<mailto: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.

    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 <mailto:joshuadouglas at uky.edu>



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