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

Mon Jun 30 13:13:26 PDT 2014

It strikes me that this is a very poor conception of why justices do and should give deference. Fundamentally, it misses the distinction between allowable and prohibited.

The Constitution establishes certain governmental powers, and also includes many provisions delineating specific rights that cannot be infringed. Deference is granted when no Constitutional right is involved, or when Congress passes laws that expand rights beyond the minimum of the Constitution. Deference is not granted if Congress's actions infringes on the Constitution.

Hence, the Court would not defer to Congress's wisdom if Congress were to pass a law, for example, that denied jury trials and assistance of counsel to people accused of crimes carrying the death penalty (on the rationale that it is especially important to gain convictions of such dangerous people, perhaps); but it would grant deference if Congress were to pass a law that provided that in cases where the death penalty was a possibility, the accused would be entitled to two independent jury trials, with convictions required in each to render an ultimate guilty verdict.

RFRA does not infringe on a guaranteed right - indeed, it expands religious rights beyond the constitutional guarantee. The Court will defer to Congress on creating such an added statutory right. Campaign finance laws (the majority believes) infringe on free speech, a constitutionally guaranteed right. Thus, there is no room for deference.

Scalia's opinion in Windsor, which Rick mentioned, does not challenge this paradigm, because Scalia doesn't believe there is a constitutional right to same sex marriage. Thus, Scalia will defer to Congress on DOMA, and alternatively he would have deferred to a congressional statute recognizing same sex marriage for federal benefits, on the same grounds - no constitutional right is infringed, and it is therefore for Congress to decide. Similarly, the Court may give less deference in campaign finance regulations because they violate a clear provision of the Constitution (or to voting rights cases that violate - the majority believes - principles of federalism included in the Constitution). It will grant more deference to election administration questions which it does not see as infringing on constitutionally guaranteed rights.

Simply put, you cannot insist on your values or your theory of Constitutional interpretation, and then declare that people following another theory are acting inconsistently because they don't reach the same results you would reach under your system. You can think that their system sucks (and they can think that of yours), but hypocrisy or inconsistency are pretty weak charges.

The deference in Hobby Lobby and the lack of deference in the campaign finance cases are not in the least contradictory.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Dan Meek [dan at meek.net]
Sent: Monday, June 30, 2014 2:18 PM
To: Josh Douglas; law-election at uci.edu
Subject: Re: [EL] Lack of Deference to Congress, but Deference to States, in Election Administration Cases

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.

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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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