The voting rights and campaign finance wars have been fought on terrain largely shaped by two major and controversial decisions: the Crawford case on voter ID requirements, and Citizens United on independent spending. Critics have lamented Crawford’s naiveté about the stated value and inevitable partisan misuses of ID requirements, but it seemed that supporters had going for them the “common sense” judgment that voters required to have an ID to board a plane can be reasonably asked to produce one to vote. So one might have thought that Crawford was here to stay, even as the Justice who wrote for the Court, John Paul Stevens, has expressed regret.

Citizens United got more bad press in many quarters for opening up direct corporate political spending and for giving a boost to Super PACs. Its author, Anthony Kennedy, continues to defend it. He points to the silver lining: the court’s brief, arguably cursory, salute to disclosure, even as Kennedy concedes it is not yet working in practice as he had hoped it would. The critics who think the court flipped open the Pandora’s Box of campaign finance have put whatever hopes on the antidote of disclosure, and more speculatively on a constitutional amendment to overturn the case’s core permissiveness.

In light of developments of recent weeks, it is interesting to consider where the law set in motion by these cases is heading.

Campaign Finance and Disclosure. The United States Court of Appeals for the District of Columbia may have seemed to give a limited victory to the parties complaining about Super PAC disclosure rules. They allowed a single-candidate or any other independent PAC to declare its candidate support openly on its Facebook or other webpage, by striking down an FEC regulation that barred unauthorized committees from using the candidate’s name in that manner. The government insisted it was attempting to protect against voter confusion and that this was the only effective way to do it. The Court replied that there were other more limited remedies that did not interfere with the Super PAC’s speech. Rather than preventing a PAC from titling a page “I like Huckabee,” the government could simply have the PAC “disclaim” that it was an authorized Huckabee-liking committee.  So the government did not completely lose its point.

But this is the same appellate court that recently declared that basic campaign finance jurisprudence was headed into trouble if it aimed to expand disclosure requirements, and in this most recent decision, there is more than a trace of this view. In the earlier decision, the Van Hollen case, the Court declared that free speech and transparency cannot be weighed against each other on the same scale: the first was a constitutional right and the second only an extra-constitutional value. The case decided yesterday makes a similar point about the higher, constitutional standing of the speech right. It insists that disclosure requirements cannot cut into the amount of speech available to the speaker but may for legitimate purposes, like avoiding fraud, require some addition to that speech. The speaker cannot be barred from saying that it likes Huckabee; it can only be compelled to add the disclaimer stating the absence of a Huckabee authorization.

The Court emphasizes that it is not challenging the legitimacy of the government’s purpose in avoiding voter confusion. But a benign or worthy purpose cannot, in its view, raise elevate transparency requirement beyond the extra-constitutional level and justify a limit on content-based speech. From a regulatory perspective, the result is that the government must resort to second-best disclosure—less effective transparency, and a higher risk of risk of voter confusion. So be it, the Court holds: the speech right trumps the disclosure value, and the government has to live with second-best.

Voting Rights and ID Requirements. Meanwhile, the string of recent victories in federal court by challengers to ID requirements can be explained by any number of factors, but one of particular importance is the clumsiness with which partisan ID proponents have pursued their objectives in recent years. They badly overreached and, as been noted, their excesses have caused them no end of trouble even in a forum, like the Fifth Circuit, where they might have expected a sympathetic hearing.

Those who have closely studied the ID issue know that when asked about identification taken at face value, for the purpose of preventing fraud, survey respondents typically, and by overwhelming majorities, favor ID. Reframe the question somewhat and characterize ID requirements as the product of one political party changing the voting rules for its narrow political self-interest, and the numbers virtually flip, against these restrictions. Legislatures in recent years have walked directly into the second perception–that they had taken a legitimate policy interest in protecting against fraud and seized upon it to advance partisan political purposes, to build bias into the law against minorities of low-income groups, or both.

The Fifth Circuit opinion finding that Texas had enacted laws with discriminatory effect and possibly with discriminatory intent notes the legislature’s flagrant maneuvering to enact restrictive identification requirements with modest policy but significant political impact. The Court notes the variety of legislative shortcuts taken to pass the bill from which had been excluded a number of reasonable accommodations for voters lacking the required ID and facing impediments in obtaining them. In a telling footnote, the Court disposes of the defense that the legislature’s purpose was not discrimination against minorities but only partisan political advantage. “Intentions to achieve partisan gain and to racially discriminate are not mutually exclusive,” the Court answers: “[A]cting to preserve legislative power in a partisan manner can also be impermissibly discriminatory.” Veasey v. Abbott, No. 14-41127, slip op. at 31 at n.30.

The problem, of course, is precisely that: with virtually no evidence of impersonation fraud and certainly none on a meaningful scale, the legislatures have exposed themselves to the obvious conclusion that their motivation was to manipulate the rules of political participation in order to help themselves rather than the voters. Crawford assumed good faith in the passage of laws against fraud. Experience showed that the assumption was misplaced.

It turns out that of the two major and most controversial election law cases, Crawford and Citizens United, Crawford may be the one to go, or at least the first. Citizens United remains fairly securely in place, with indications of a rapidly fading “silver lining” of enhanced disclosure.

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