[EL] My Candidates For Justice Breyer’s Two Most Important “Law of Democracy” Opinions

Wed Jan 26 11:26:12 PST 2022

Inspired by Rick Hasen, I’ve put up my own post on Justice Breyer’s Two Most Important “Law of Democracy” Opinions:

Two decisions involving race, partisanship, and redistricting stand out for me as Justice Breyer’s two most consequential election-law opinions for the Court.

If we take them in chronological order, the first is Easley v. Cromartie, a 5-4 decision out of North Carolina in 2001. Starting in the 1990 round of congressional redistricting, the Voting Rights Act required the creation of reasonably compact, majority black voting-age population districts where other legal factors established that there would be illegal vote dilution in the absence of such a district. But in the 5-4 Shaw v. Reno decision in 1993, which Justice O’Connor wrote, the Court held that in carrying out this requirement, race could not be used in a way that predominated over various traditional districting principles.

There were concerns about how much Shaw might create confusion and constant litigation in the 2000s. But as that decade began, Justice Breyer’s Easley opinion provided an escape valve from Shaw. In this 5-4 decision that Justice O’Connor was persuaded to join, Justice Breyer held that states could defend their districts by proving that partisan politics, not race, predominated. To be sure, this has led to lots of hair-splitting decisions about whether race of politics “really” predominated in the design of districts, in a world in which the correlation between race and partisan preferences was highly correlated, particularly among black voters. But the decision provided a road-map for how districts could be drawn and defended while at the same time complying with the Voting Rights Act. Easley was a major reason Shaw did not turn out to destabilize districting in the 2000s (Justice Breyer later joined dissents arguing that extreme partisan gerrymandering should be unconstitutional).

Even more important was Justice Breyer’s more recent opinion in Alabama Legislative Black Caucus v. Alabama<https://scholar.google.com/scholar_case?case=13771243071279651220&hl=en&as_sdt=6&as_vis=1&oi=scholarr> (2015).  I might not have the proper perspective on this, because I argued the case. The opinion is not written in the broad terms of many major decisions. But I view it as the most important case involving race and redistricting from last decade’s redistricting. It began the unwinding of unnecessary racial redistricting, which is continuing in cases currently being litigated in many states.

In the 2010 redistricting, several states took the position that the VRA required them to maintain the same levels of black population in these districts that they had used in earlier decades.  But in the years since the VRA regime first went into effect in the 1990s, several  factors have changed. Black registration and turnout rates have increased significantly, reaching comparable levels to those of white voters (or even greater, in some contexts).  In some areas of the country, more whites support black candidates than in earlier decades.  And in the last decade, there has emerged more widespread recognition of the fact that making these districts excessively safe for minority candidates can actually disadvantage minority voters; removing such voters from nearby districts can disadvantage their ability to affect elections in those nearby districts (this concern was recognized much earlier, but it did not become widely accepted until the last decade).

Justice Breyer’s opinion in Alabama Legislative Black Caucus created new constitutional doctrine to address these changing circumstances. His opinion for the Court held that states could not set target black populations for these districts without a “strong basis in evidence” that those population levels are actually necessary to comply with the VRA.  If they did so, the Constitution was violated. That decision was soon followed in the Supreme Court by similar ones from Virginia and North Carolina.  Collectively these decisions have led to the invalidation of numerous districts in which black voters were packed at levels that were unnecessary to ensure an equal opportunity, in the face of racially polarized voting, for minority voters to elect their preferred candidates.

Ironically, both of these major Justice Breyer opinions reflect the effects of Shaw v. Reno on redistricting. In the first, Easley, the Court cabined in the effects of Shaw. In the second, Alabama Legislative Black Caucus, the Court employed Shaw to eliminate the excessive and unjustified use of race in redistricting.

Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Square So.
NYC, NY 10014
347-886-6789

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Rick Hasen
Sent: Wednesday, January 26, 2022 1:42 PM
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] Justice Breyer's Most Significant Election Law Opinion

Justice Breyer’s Most Significant Election Law Opinion<https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fp-3D127176&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=gIO3jP2XChOJKq_wXb8A8t9VZCQCjZBrFUmnrB9_36OhgOrKpI6U6iuZPYlKxdaT&s=dmWDELSSjYcgcqpiXYIYpM8Xi8C5PMZJhCtHRW68PGk&e=>
January 26, 2022, 10:40 am<https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fp-3D127176&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=gIO3jP2XChOJKq_wXb8A8t9VZCQCjZBrFUmnrB9_36OhgOrKpI6U6iuZPYlKxdaT&s=dmWDELSSjYcgcqpiXYIYpM8Xi8C5PMZJhCtHRW68PGk&e=> campaign finance<https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fcat-3D10&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=gIO3jP2XChOJKq_wXb8A8t9VZCQCjZBrFUmnrB9_36OhgOrKpI6U6iuZPYlKxdaT&s=qxVe92BKASP72URcP6bXLDykbHnTkkhVQrvbxs6fny4&e=>, Supreme Court<https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fcat-3D29&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=gIO3jP2XChOJKq_wXb8A8t9VZCQCjZBrFUmnrB9_36OhgOrKpI6U6iuZPYlKxdaT&s=IRz8tFl4gmTWpWbczzQ8jbOc51wxz292ziJpDpZ79RI&e=> RICK HASEN<https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fauthor-3D3&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=gIO3jP2XChOJKq_wXb8A8t9VZCQCjZBrFUmnrB9_36OhgOrKpI6U6iuZPYlKxdaT&s=Tm7Daq3CQ95hR4EfcWQryFfDHdoFWlsco5mQcNA81uc&e=>

With Justice Stephen Breyer’s upcoming retirement<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.nytimes.com_live_2022_01_26_us_stephen-2Dbreyer-2Dretirement_stephen-2Dbreyer-2Dretire-2Dsupreme-2Dcourt&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=gIO3jP2XChOJKq_wXb8A8t9VZCQCjZBrFUmnrB9_36OhgOrKpI6U6iuZPYlKxdaT&s=phESGftFcm4UdTo_qWOLFALZLwjHeB23_9er5TItK6M&e=> from the Supreme Court, it seems appropriate to offer some words about his legacy in the area of election law. Here is an initial post, and I suspect other ELB contributors will weigh in. I want to focus today on what I consider to be Justice Breyer’s most significant option.

Justice Breyer’s most significant election law opinion is his concurring opinion<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.law.cornell.edu_supct_html_98-2D963.ZC1.html&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=gIO3jP2XChOJKq_wXb8A8t9VZCQCjZBrFUmnrB9_36OhgOrKpI6U6iuZPYlKxdaT&s=NZ0vUhC5hL9Nyh5rL9jGeqPGKszbfledlP42DBYe_rk&e=> in the 2000 case, Nixon v. Shrink Missouri Government PAC. The case concerned the question whether Missouri’s campaign finance limits for some state offices were so low as to violate the First Amendment’s rights of free speech and association. The Court, in an opinion by Justice Souter, upheld the limits (under a test that was effectively overruled a few years later in a plurality opinion by Justice Breyer in Randall v. Sorrell).

What made Justice Breyer’s opinion in Shrink Missouri so significant was his discussion of how to conceive of First Amendment challenges when it comes to laws limiting the role of money in politics. On the one hand, Justice Breyer saw the problem of great disparities in economic power translating into great political power to be threatening to American democracy and interfering with free and fair elections. On the other hand, Justice Breyer saw that overregulation in this area could stifle competition and robust political debate. He wrote that “this is a case where constitutionally protected interests lie on both sides of the legal equation.”

Much of what he wrote about the problems of money in politics in Shrink Missouri did not pretend that the problem was all about “corruption.” The corruption frame is necessary because in the 1976 case of Buckley v. Valeo, the Court held that preventing corruption could serve as an important enough government interest to justify some limits on money in politics, but that an interest in political equality could not. (I argue against this framing in my 2016 book, Plutocrats United<https://urldefense.proofpoint.com/v2/url?u=https-3A__yalebooks.yale.edu_book_9780300212457_plutocrats-2Dunited&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=gIO3jP2XChOJKq_wXb8A8t9VZCQCjZBrFUmnrB9_36OhgOrKpI6U6iuZPYlKxdaT&s=VMmNxFdkQVJKXV_0XaQNdT46LDglQPQR5gQT3ShHbnE&e=>.) With the kind of forthrightness rare from other Justices, Justice Breyer wrote:

I recognize that Buckley used language that could be interpreted to the contrary. It said, for example, that it rejected “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others.” 424 U.S., at 48—49. But those words cannot be taken literally.

Justice Breyer expanded on his ideas about the delicate balance between rights of liberty and rights of equality in his 2006 book, Active Liberty<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.amazon.com_Active-2DLiberty-2DInterpreting-2DDemocratic-2DConstitution_dp_0307274942&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=gIO3jP2XChOJKq_wXb8A8t9VZCQCjZBrFUmnrB9_36OhgOrKpI6U6iuZPYlKxdaT&s=3fC-StRfiypbMoThjbaxlBdPr9AlMdBWwk2lK3hyXJc&e=>. His thinking here greatly influenced by own. This kind of subtle thinking was Justice Breyer at his best.

--
Rick Hasen<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.law.uci.edu_faculty_full-2Dtime_hasen_&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=gIO3jP2XChOJKq_wXb8A8t9VZCQCjZBrFUmnrB9_36OhgOrKpI6U6iuZPYlKxdaT&s=6EVSKGEKn_FYrhbm7u2dqwQZFm6q78uOvtcBRKE-oDw&e=>
Chancellor's Professor of Law and Political Science
Co-Director, Fair Elections and Free Speech Center<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.law.uci.edu_centers_fefs_&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=gIO3jP2XChOJKq_wXb8A8t9VZCQCjZBrFUmnrB9_36OhgOrKpI6U6iuZPYlKxdaT&s=8IEh8OTwU-5LUvgyvuemV_5AMjra__zI8Ek5TC0A2ks&e=>
UC Irvine School of Law
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Irvine, CA 92697-8000
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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Coming March 2022: Cheap Speech: How Disinformation Poisons Our Politics—and How to Cure It<https://urldefense.proofpoint.com/v2/url?u=https-3A__yalebooks.yale.edu_book_9780300259377_cheap-2Dspeech&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=gIO3jP2XChOJKq_wXb8A8t9VZCQCjZBrFUmnrB9_36OhgOrKpI6U6iuZPYlKxdaT&s=0vrfqLrVUzx2LwyUjEXFPk5bTYNfjIyG2FsGJRGn78E&e=>

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