"No Exit? The Roberts Court and the Future of Election Law"

I have posted this draft article on SSRN. This is still a work in progress, and comments are welcome. Here is the abstract:

This article, prepared for a symposium on voting rights in the South Carolina Law Review, examines the future of election law in the Roberts Court. Even before the death of Chief Justice William H. Rehnquist and the announced retirement of Associate Justice Sandra Day O'Connor, election law scholars had declared that the Supreme Court had reached "doctrinal interregnum." In the campaign finance arena, the Court's jurisprudence was becoming increasingly incoherent; voting rights law was said to be "at law with itself;" partisan gerrymandering claims in flux; and the question of Supreme Court oversight of the "nuts-and-bolts" of elections after Bush v. Gore a big mystery.

With the change of two Justices on the Supreme Court, exit from doctrinal incoherence and uncertainty becomes possible. The replacement of Chief Justice Rehnquist with new Chief Justice John Roberts and the replacement of Justice O'Connor with a new Justice appointed by President Bush could provide an opening for major changes in Supreme Court election law doctrine. This is especially true with Justice O'Connor's departure, because she has held the swing vote in key election law cases.

What sort of changes should we expect from the Roberts Court? Making predictions is exceedingly difficult when the swing votes likely will be held by those who have not expressed (or not expressed recently) views on these subjects, and concern for respecting (even wrong-headed) precedent could prove a strong force. And Justices' views certainly may change over time. Still, I work under the assumption that a conservative president who had apparently committed himself to appointing Justices in the mold of Justices Thomas and Scalia is unlikely to appoint Justices who in fact move the Court to the left, and could well move the Court to the right in key election law cases.

The result is that 5-10 years from now, the ground rules for American political competition could undergo a major change. Within the next decade, we could well see deregulation of campaign financing, a limiting of Congressional power to impose national solutions to problems of minority voting rights, and an upholding of state power to redistrict for partisan gain and impose increasingly draconian election administration tools enacted in the name of fraud prevention. The ability of states to manipulate election rules for partisan gain may present the greatest danger, as the Court exits from that corner of the political thicket. For those who look to courts for the promotion of political equality, the signs are not encouraging.

"Voter ID memo stirs tension"

This Atlanta Journal-Constitution report, following up on a Washington Post report that I covered yesterday, begins: "The chief sponsor of Georgia's voter identification law told the Justice Department that if black people in her district 'are not paid to vote, they don't go to the polls,' and that if fewer blacks vote as a result of the new law, it is only because it would end such voting fraud." See also this reaction from Dan Tokaji.

Significant FEC Advisory Opinion Gives Breathing Room for Election-Related Blogging, For Now

Yesterday the FEC approved by a 5-0 vote Advisory Opinion 2005-16 (Fired Up!). This development apparently received no coverage yet in the mainstream media, though you can find good analysis in the blogosphere by Adam Bonin, Bob Bauer, and Allison Hayward. The opinion gives an election-related website (or blog) with a definite partisan position the ability to claim the same exemption from certain campaign finance laws that the mainstream press may claim when reporting or editorializing on election-related issues.

This is an important development, because---at least for the time being---it gives some breathing room to political blogs. One of the concerns I had was a significant chilling of election-related activity in the 2006 elections out of fear that complaints would be filed with the FEC at a time of regulatory uncertainty (the FEC internet rulemaking remains pending). It may be that the FEC rules (which could well be adopted by an FEC comprised of up to four new commissioners) will differ in some respects from the position of the FEC AO in Fired Up!. But in the meantime this looks like good news for political bloggers. Perhaps most significantly, the FEC rejected the arguments of some in the reform community that the partisan nature of the speech should be relevant to the speech exemption. As I have argued, this was neither a workable nor desirable test to separate the press from everyone else.

"Lawmakers Still Spinning Wheels on Campaign Finance Reform"

See this report from Connecticut.

"Texas Republicans Agree to Limit Use of Corporate Funds"

The Washington Post offers this report.

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org