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

[Josh Douglas]

Although there was non-deferral to Congress in *Shelby County*.  So it's
both federal versus state *and* campaign finance versus election
administration.  Or, more accurately, it's non-deferral to either state or
federal legislatures in campaign finance, non-deferral to Congress in
election administration (although it's only a sample of one), but deferral
to states in election administration.  Put another way, it's non-deferral
in all of election law *except* to states in their election administration.


On Mon, Jun 30, 2014 at 2:18 PM, Dan Meek <dan at meek.net> wrote:

>  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 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> 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
>
>
>
> _______________________________________________
> Law-election mailing listLaw-election at department-lists.uci.eduhttp://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>


-- 
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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