[EL] Judge Merrick Garland: A Moderate Liberal on Election Law Issues, With Questions About Boldness

[Rick Hasen]

    Judge Merrick Garland: A Moderate Liberal on Election Law Issues,
    With Questions About Boldness <http://electionlawblog.org/?p=80981>

Posted onMarch 17, 2016 10:02 am 
<http://electionlawblog.org/?p=80981>byRick Hasen 
<http://electionlawblog.org/?author=3>

I have now had a chance to review the substantive election law decisions 
of Judge Merrick Garland that my research assistant and I have 
identified (listed after the jump). With the caveat that the job of a 
lower court judge is to implement the Supreme Court’s rulings and the 
job of a Supreme Court Justice is to make those rulings not bound by a 
higher court, my view is that a Justice Garland would be moderately 
liberal on election law issues, probably voting with the four more 
liberal Justices in most election cases. I suspect he will be very 
willing to uphold challenged campaign finance regulations, especially 
disclosure regulations; that he would support relatively strong readings 
of the scope of the Voting Rights Act in protecting minority voting 
rights and voters’ rights in general; and that he would carefully 
balance the First Amendment rights of political parties and government 
interests in party cases, but not be very generous to third party 
claims. The big question is how far he would be willing to go in 
overturning or greatly extending precedent. For example, I am unsure 
given the kind of judicial restraint and cautiousness he has shown so 
far whether he would be a fifth vote to overturn/Citizens United/. I 
don’t know what he would do about partisan gerrymandering. And I do not 
expect him to be bold on voting rights: witness his decision on a 2-1 
district court panel rejecting the right of D.C. residents to vote in 
U.S. House elections.  Below is a bit more detailed analysis on these 
points.

/*Campaign finance*/. YesterdayI noted 
<http://electionlawblog.org/?p=80929>that we should not read too much 
into Judge Garland’s vote in the /SpeeechNow/case, the case which 
established Super PACs. As I explained that unanimous ruling was 
compelled by the Supreme Court’s /Citizens United/decision. Far more 
important to understanding Judge Garland’s views in this area are 
/Wagner v. FEC/(2015), a case upholding the ban on government 
contractors making campaign contributions to federal candidates, and 
/NAM v. Taylor/(2009), a case upholding disclosure provisions relative 
to lobbyists. /Wagner/was a majority en banc decision, meaning liberals 
and conservatives signed on to the opinion and so the result was not all 
that controversial. But the /way/that Judge Garland wrote the decision 
indicates that he accepts Congress’s role in crafting reasonable 
campaign finance regulations aimed at protecting government interests. 
Judge Garland could have written the opinion in a reluctant way, noting 
that Supreme Court cases like /Citizens United/and /McCutcheon /may have 
undermined the constitutionality of total bans on contributions by any 
class of contributors. But Judge Garland did not write such a decision 
(as we recently saw another DC panel do in a disclosure case). He wrote 
an opinion which was thoughtful, meticulous, and a full-throated 
endorsement of the ban on contractor contributions. This reads to me as 
an opinion of a judge who believes in reasonable regulation. The same is 
to be said for his /NAM/decision, which carefully applies precedent, and 
is not reluctant to uphold disclosure requirements in the face of 
unsubstantiated claims of harassment. the judge also signed a 2008 
decision, /Shays v. FEC/, which required the Federal Election Commission 
to craft tougher regulations to implement the campaign finance law.

The harder question is what a Justice Garland would do, if faced on the 
Supreme Court with the opportunity to overturn /Citizens United/. On the 
merits, I have little doubt he would have been in the dissent in the 
original /Citizens United/case. But the question is one of /stare 
decisis /(respect for precedent) now. Would he be willing to overturn 
such a case, just a few years after the controversial ruling? My guess 
is that his would be a struggle for him, less about the merits of the 
case and more about the proper role of the Justice (particularly if he 
becomes the new swing Justice) on a Court that is ideologically and 
politically divided.

/*Voting rights.*/Judge Garland has not decided many voting rights 
cases, but one that is important is /Florida v. U.S./(2012). In that 
case, the question was whether Florida, which was partially covered by 
the Voting Rights Act, was entitled to preclearance for its cutbacks in 
early voting (as well as for some other changes). Judge Garland sat on a 
three judge district court that issued a per curiam (unsigned) opinion, 
so we do not know if he was an author. But I would suspect he had a big 
hand in crafting this opinion which again is erudite and careful. The 
judges reached the conclusion that Florida’s cutbacks in early voting 
violated the Voting Rights Act because Florida could not show that the 
changes would not make minority voters worse off. The court essentially 
told Florida it had to keep the same number of hours of early voting as 
it had offered before to get preclearance.  The court approved other 
changes to Florida election law, finding they would not make minority 
voters worse off. The Supreme Court eliminated preclearance the next 
year in the /Shelby County/case, and so this precise holding would no 
longer have direct relevance. Nonetheless, the tone of this opinion is 
one who takes seriously to protect voting rights.

Judge Garland seems much less likely to go out on a limb, however. He 
was in a majority in a 2-1 per curiam case,/Adams v. 
Clinton/(2000),  rejecting D.C. residents’ attempts to get courts to 
declare they have the right to representation in Congress. Again we have 
a very scholarly opinion, but this is one that leaves the question of DC 
representation to the political process. The dissenter read the 
Constitution to require DC representation in Congress. (The Supreme 
Court affirmed the Garland position.)

*/Political Parties./*//Judge Garland does not seem overly protective of 
third party voting rights, deciding in /Libertarian Party v. DC Board of 
Elections /(2012) that a third party had no right to have the number of 
write-ins tallied for its candidates.  (Richard Winger, who cares deeply 
about third party issues,disagrees strongly 
<http://ballot-access.org/2016/03/16/merrick-garland-has-mixed-record-on-issues-involving-minor-party-and-independent-candidates/>with 
Garland’s position in this case, but sees his overall record on third 
parties as “mixed”.).  But the liberal Justices on the Court have not 
always been great protectors of third party rights, and I don’t expect 
that to change no matter who is chosen for the Court. Perhaps more 
interesting, given the current machinations over a possible constested 
Republican convention this summer, is Judge Garland’s opinion in 
LaRouche v. Fowler (1998). The case involved various challenges that 
fringe candidate Lyndon LaRouche brought against the DNC for how it 
conducted its convention. Much of the opinion deals with whether 
political parties are subject to preclearance under the (now-moribund) 
Section 5 of the Voting Rights Act. But in the latter part of the 
opinion, Judge Garland address constitutional claims against the 
Democratic party, and specifically whether the delegate rules at a 
convention are subject to judicial review. The opinion was careful and 
thoughful, balancing the hybrid nature of political parties as state 
actors and as private actors entitled to First Amendment rights. 
  Ultimately he sided with the party’s rights to decide its own 
nominees. Here’s a snippet:

    Moreover, the Party’s interest is not merely legitimate. Here, the
    associational rights of the Democratic National Party are at their
    zenith. The Party’s ability to define who is a “bona fide Democrat”
    is nothing less than the Party’s ability to define itself.
    In/Eu,/for example, one of the challenged state laws “prevent[ed]
    party governing bodies from stating whether a candidate adheres to
    the tenets of the party or whether party officials believe that the
    candidate is qualified for the position sought.”489 U.S. at 223, 109
    S.Ct. 1013.
    <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1989027115&pubNum=708&originatingDoc=I3a6e3974910011d98e8fb00d6c6a02dd&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29>The
    Court struck the law down. “Freedom of association,” Justice
    Marshall said, “means … that a political party has a right to
    ‘identify the people who constitute the association’ … and to select
    a ‘standard bearer who best represents the party’s ideologies and
    preferences.’ ”/Id./at 224, 109 S.Ct. 1013
    <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1989027115&pubNum=708&originatingDoc=I3a6e3974910011d98e8fb00d6c6a02dd&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29>(quoting/Tashjian,/479
    U.S. at 214, 107 S.Ct. 544,
    <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1986160455&pubNum=708&originatingDoc=I3a6e3974910011d98e8fb00d6c6a02dd&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29>and/Ripon,/525
    F.2d at 601
    <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1975113034&pubNum=350&originatingDoc=I3a6e3974910011d98e8fb00d6c6a02dd&refType=RP&fi=co_pp_sp_350_601&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29#co_pp_sp_350_601>(Tamm,
    J., concurring));/see also//LaFollette,/450 U.S. at 122 n. 22, 101
    S.Ct. 1010
    <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1981108555&pubNum=708&originatingDoc=I3a6e3974910011d98e8fb00d6c6a02dd&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29>(“
    ‘Freedom of association would prove an empty guarantee if
    associations could not limit control over their decisions to those
    who share the interests and persuasions that underlie the
    association’s being.’ ”) (quoting L. TRIBE, AMERICAN CONSTITUTIONAL
    LAW 791 (1978))…

    The answer to this aspect of LaRouche’s complaint is that the
    Party’s First Amendment rights extend not only to defining itself,
    but also to determining how to define itself. The Supreme Court made
    this point in both/Cousins/and/LaFollette/by upholding the Party’s
    right to determine who could select its delegates, notwithstanding
    the states’ views that a different process would be more
    appropriate./See, e.g.,//LaFollette,/450 U.S. at 124, 101 S.Ct. 1010
    <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1981108555&pubNum=708&originatingDoc=I3a6e3974910011d98e8fb00d6c6a02dd&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29>(“A
    political party’s choice among the various ways of determining the
    makeup of a State’s delegation to the party’s national convention is
    protected by the Constitution.”). The Court faced a similar question
    again in/Eu,/where the California Elections Code dictated, among
    other things, the organization and composition of the state parties’
    official governing bodies. To ensure fairness to the state’s various
    regions, the Code required that the position of party chair rotate
    between residents of northern and southern California./See/489 U.S.
    at 216, 109 S.Ct. 1013.
    <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1989027115&pubNum=708&originatingDoc=I3a6e3974910011d98e8fb00d6c6a02dd&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29>Citing
    its decisions in/Cousins/and/LaFollette,/the Court struck the law
    down, saying: “[A] political party’s determination … of the
    structure which best allows it to pursue its political goals is
    protected by the Constitution. Freedom of association also
    encompasses a political party’s decisions about the identity of, and
    the process for electing, its leaders.”/Eu,/489 U.S. at 229, 109
    S.Ct. 1013
    <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1989027115&pubNum=708&originatingDoc=I3a6e3974910011d98e8fb00d6c6a02dd&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29>(internal
    quotations and citations omitted). “[A] State cannot,” the Court
    said, “substitute its judgment for that of the party as to the
    desirability of a particular internal party structure.”/Id./at 233,
    109 S.Ct. 1013
    <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1989027115&pubNum=708&originatingDoc=I3a6e3974910011d98e8fb00d6c6a02dd&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29>.

    This court reached the same conclusion in/Ripon,/where we rejected
    the contention that the Equal Protection Clause required the
    Republican Party to allocate its national convention delegates on a
    one-person, one-vote basis. In letting stand the Party’s practice of
    awarding “victory bonuses” to states voting Republican in prior
    elections, we observed:

    A party is …. more than a forum for all its adherents’ views. It is
    an organized attempt to see the most important of those views put
    into practice through control of the levers of government. One party
    may think the best way to do so is through a ‘strictly democratic’
    majoritarianism. But another may think it can only be done (let us
    say) by giving the proven party professionals a greater voice….

    /Ripon,/525 F.2d at 585
    <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1975113034&pubNum=350&originatingDoc=I3a6e3974910011d98e8fb00d6c6a02dd&refType=RP&fi=co_pp_sp_350_585&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29#co_pp_sp_350_585>(footnote
    omitted).

    A party may, of course, pay heavily at the polls for the perception
    that it treats its members, delegates, or candidates unfairly. But
    that is a matter for the party to weigh, and for the people to
    decide in the general election. It is not a basis upon which a court
    can intervene as long as the party’s processes rationally advance
    its legitimate interests.

    Rule 11(K) and the Fowler letter were issued pursuant to the
    authority duly granted to the DNC and Chairman Fowler by the Charter
    and Bylaws of the Democratic Party.^35
    <http://electionlawblog.org/#co_footnote_B035351998172755_1>If
    LaRouche disputed Fowler’s authority or conclusions, the place to
    take that dispute was to the national convention’s Credentials
    Committee and, if he received no satisfaction, to the floor of the
    convention itself.^36
    <http://electionlawblog.org/#co_footnote_B036361998172755_1>As the
    Supreme Court said in/O’Brien,/“[i]t has been understood since our
    national political parties first came into being as voluntary
    associations of individuals that the convention itself is the proper
    forum for determining intra-party disputes as to which delegates
    shall be seated.”409 U.S. at 4, 92 S.Ct. 2718.
    <http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1972127193&pubNum=708&originatingDoc=I3a6e3974910011d98e8fb00d6c6a02dd&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.UserEnteredCitation%29>^37
    <http://electionlawblog.org/#co_footnote_B037371998172755_1>Because
    the First Amendment protects the decisions made by defendants in
    this case, we are unable to afford plaintiffs the relief they seek.

/*Conclusion.* /Judge Garland, more than anything else, appears to be a 
thoughtful and scholarly judge who takes serious claims seriously and 
who shows liberal, but not radically liberal, leanings in election law 
cases. Whether he would pass a Bernie Sanders or Hillary Clinton litmust 
test to overturn /Citizens United/is highly doubtful. If faced with the 
chance, he could well become a bold Justice; who knows? But his record 
of caution and incrementalism says that would be no sure bet.

Continue reading→ <http://electionlawblog.org/?p=80981#more-80981>

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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
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