The Supreme Court
News & Commentary | Archive

The Supreme Court's intervention in election law has been active, complex, and, in many material respects, indecipherable. The Supreme Court cannot decide what to do, if anything, about partisan gerrymandering, and its decisions on campaign finance—such as McConnell v. FEC—have also left a host of unanswered questions about the reach of Congressional regulation of political fundraising and spending. This space is concerned with the shape or absence of Court doctrine. With the vacancy created by the retirement of Justice O'Connor and still others very possible in the near future, major changes in the constitutional law affecting the conduct of politics may be expected.

Justice Souter and the Legislature, in Crawford and Elsewhere

      Justice Souter gives it his all, and he performs effectively, in his dissent in Crawford.  He persuasively argues that the Indiana legislature did not have enough of a reason to impose on certain voters the burdens associated with its photo ID requirement.  Souter explains the burdens, then picks apart the reasons given for imposing them.

 

Plot Twists and Predictable Turns in the Crawford Decision

     A Supreme Court decision is news, and for a brief spell, it is breaking news, but the headline here—that the Court upheld the Indiana voter ID law—did not come as much of a shock.  The argument over whether it was "reasonable" for a state to impose an ID requirement had been lost long ago.  For purposes of this facial challenge, dissents could be expected but not a victory, not a majority, for the attack on this law.  

 

Considering Again the Impact of the Roberts Court on Campaign Finance Regulation

     For Richard Briffault, the future of the campaign finance laws lies with a Court seemingly eager to accept the responsibility. Writing in The Forum, Briffault  maps the path to constitutional change via cases recently decided, like Wisconsin Right to Life and Randall v. Sorrell, and others on their way to decision in the not too distant future.  Briffault, Richard (2008) "Decline and Fall? The Roberts Court and the Challenges to Campaign Finance Law," The Forum: Vol. 6 : Iss. 1, Article 4.  Available at: http://www.bepress.com/forum/vol6/iss1/art4.   Like others—Rick Hasen among them—he suspects that the arrival of John Roberts and Samuel Alito is sure to doom the development of any expansive jurisprudence within which a regulatory regime can thrive or survive.

 

When There is No Heartbreak for the Victims…

    Rick Hasen notes that the Washington State primary case, "barely noticed," was handed down without making much of a sound.  This is because few outside the election law bar, or the State of Washington, or the community of political parties, cared particularly whether parties controlled the designation of party association on the ballot.  Hasen says that the decision was a good one, allowing voters to have the type of primary they preferred.  But it was not a good one for parties, whose misery might have loved but got precious little company. 

 

Participation Meets Contradiction

    The able defenders of the Millionaire's Amendment, which now awaits it's fate in the Supreme Court, hold high the banner of "participation."  Opponents of millionaires are entitled to special, higher contribution limits, they argue, so that speech can be enlarged, and even if there is a slightly enhanced risk of corruption in the higher limits, the competing considerations must be "balanced."  The Campaign Legal Center, in its amicus brief, punctuates the point by citing the writings of Justice Breyer, who has situated the campaign finance laws within this defined concern with "participation." CLC Brief at 13, n.4.

 

Also...

Political Parties in the Soup, at the Supreme Court  3/19/08

Nonprofit Asks Supreme Court To Review "Support or Oppose" Standard  3/12/08

Scalia at Princeton: “Enough is Enough”  3/11/08

McCain-Feingold and the Roberts Court  1/15/08

Outcomes and Rationalization in Voter ID  1/10/08

Fixing “Broken Windows”—the Wrong Ones—in Voter ID  11/28/07

Irreconcilable Differences on the Court, in Campaign Finance Jurisprudence  11/27/07

A Question about Courts under the (Reformist) Influence  11/14/07

Post-Script to a Times Story  11/13/07

The Supreme Court, Face to Face with the Politics of Voter ID  11/9/07