Election laws path in the Roberts Court's first decade: a sharp right turn but with speed bumps and surprising twists.

• Author: Hasen, Richard L.
• Position: Ess

Table of Contents Introduction I. The Roberts Court's Election Law Path A. Campaign Finance B. Voting Rights Act C. Election Administration D. Other Cases II. Explaining the Conservative, but Not Maximalist, Turn A. The Long Game? B. Mandatory Appellate Jurisdiction and Strategic Litigation Choices C. Conservative Variance III. Options for Election Reform in the Roberts Court Era A. Campaign Finance Reform B. Voting Rights Act Reform C. Partisan Gerrymandering Reform D. Election Administration Reform E. Expectations for the Future Conclusion Appendix Roberts Court Election Law Opinions 2006-2015 Introduction

The first decade of election law cases at the Supreme Court under the leadership of Chief Justice Roberts brought election law down a strong conservative path. Citizens United v. FEC (1) freed corporate money in U.S. candidate elections and opened up a deregulatory era increasingly dominated by nominally independent "Super PACs" and other outside groups. (2) Shelby County v. Holder (3) eviscerated the congressional regime codified in section 5 of the Voting Rights Act, under which Congress required states and localities with a history of racial discrimination in voting to obtain federal permission before making a change in voting rules by proving that the change would not make minority voters worse off. In the case's wake, previously covered jurisdictions have adopted a number of election changes, (4) which no doubt have made minority voters worse off. In Crawford v. Marion County Election Board, the Court gave the green light to state voter identification laws, (5) despite a lack of evidence that such laws are necessary to deter fraud or instill voter confidence. (6) Republican states have increasingly tightened voting rules in Crawford's wake. (7)

Nonetheless, the Roberts Court, while dominated by a majority of five conservative Justices until the recent death of conservative Justice Antonin Scalia, (8) had not gone as far right as it could have or as I, among others, had predicted. (9) In the campaign finance arena, the Court refused to take cases to strike down the ban on direct corporate contributions to candidates or to reopen the ability of political parties to take large "soft money" contributions. (10) It did not eliminate individual contribution limits, even as Super PACs and other campaign groups undermined them. (11) In the voting rights arena, the Court declined cases that would further limit the scope of, or find unconstitutional, section 2 of the Voting Rights Act, a key remaining protection for minority voters, and it revived the racial gerrymandering cause of action in a way that can help minority plaintiffs fight Republican gerrymanders. (12) Most recently, the Court surprisingly rejected the opportunity to use the Elections Clause to kill independent commission-based congressional redistricting and other electoral reforms, (13) and it upheld against First Amendment challenge a rule barring judicial candidates from personally soliciting campaign contributions. (14)

In this Essay, I describe the path of election law jurisprudence in the Roberts Court and then consider two questions. First, why has the Court, while shifting in a strongly conservative direction, not moved more extremely to the right? (15) Second, what options has the Court left election reformers who are unhappy with the strongly conservative, although not maximally conservative, status quo? (16)

On the first question, a combination of factors appears to explain the trajectory and speed of the Roberts Court's election law decisions. The Roberts Court, with its five-justice bloc of Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas, was fundamentally conservative, but for jurisprudential, temperamental, or strategic reasons, the Justices holding the balance of power appeared to prefer incrementalism to radical change. Mandatory appellate jurisdiction appeared the best way to force the Roberts Court's hand, and it often, but not always, led to a conservative result. Nearly half of the Roberts Court's election cases came on mandatory jurisdiction. (17) Progressives meanwhile limited the number of cases they presented for the Court's review to avoid adverse precedent. (18) Finally, the five conservative Justices were not monolithic in their views and were capable of surprise, as evidenced by a recent Arizona redistricting decision, in which Justice Kennedy joined with the Court's liberals, (19) and a recent judicial elections case, in which Chief Justice Roberts joined with the Court's liberals. (20)

On the second question, the Court has left very limited space for reform in certain areas, such as campaign finance. Where the Court has greatly constrained choice, only minor improvements are possible absent a change in the Supreme Court's personnel. In these areas, the problem is not that reformers have a "romanticized" vision of democracy; it is that the structural impediments erected by the Court have hobbled meaningful reform efforts. In contrast, in areas where the Court has mostly left room for decentralized election law approaches, such as in the arena of election administration, election fights are becoming both legal and political. Polarization and decentralization have led to the emergence of "red state election law" and "blue state election law," with voting restrictions increasingly enacted in many Republican-leaning states but not Democratic-leaning states or states with mixed control.

Part I briefly describes the path of election law in the Roberts era across key election law areas including campaign finance, voting rights, and election administration. Part II explains why the Roberts Court was deeply conservative but not consistently maximalist. Part III considers the space for election reform in the Roberts Court era and beyond.

1. The Roberts Court's Election Law Path

   The Supreme Court moved far to the right in key election law areas from 2005, when Chief Justice Roberts joined, (21) and more significantly, from 2006, when Justice Samuel Alito replaced former swing Justice Sandra Day O'Connor, (22) until Justice Scalia's death in 2016. Indeed, the Court's decisions in the campaign finance case of Citizens United (23) and the Voting Rights Act case of Shelby County (24) are among the most prominent and controversial decisions of the first decade of the Roberts Court across all areas of law, not just election law. (25) Nonetheless, the Court during this period notably turned down opportunities to move election law jurisprudence even further to the right, and in a few recent cases the Court has reached what most observers consider to be more liberal results.

   This Part describes the Roberts Court's election law jurisprudence through the death of Justice Scalia, including the thirty election law cases with a written opinion from 2006 to 2015, (26) with mention of the three additional cases decided in the October 2015 Supreme Court Term. (27)

   1. Campaign Finance

      Before John Roberts replaced Chief Justice William Rehnquist and Samuel Alito replaced Justice Sandra Day O'Connor, the Supreme Court went through its period of greatest deference to campaign finance regulation, as illustrated by four cases I dubbed the "New Deference Quartet." (28) The Court in Shrink Missouri upheld extremely low Missouri campaign finance limits, (29) enunciating a standard making it quite easy for courts to reject First Amendment challenges to campaign finance laws. (30) It upheld limits on political party contributions to candidates in Colorado II. (31) It rejected a challenge to the total ban on corporate contributions to candidates in FEC v. Beaumont. (32) Perhaps most significantly, the Court in McConnell v. FEC upheld the key provisions of the Bipartisan Campaign Reform Act (33) (BCRA or McCain-Feingold), including provisions barring corporations and labor unions from spending non-PAC treasury funds on "issue ads" in federal elections (34) and barring political parties from collecting unlimited "soft money." (35)

      The campaign finance landscape changed dramatically with the emergence of the Roberts Court, turning a Court that usually voted in favor of campaign limits by a 5-4 vote into one usually voting against such limits by a 5-4 vote. The move toward deregulation began rather slowly, with the Court first punting on an as-applied challenge to McCain-Feingold in Wisconsin Right to Life, Inc. v. FEC (WRTL I) (36) and issuing a fractured decision in Randall v. Sorrell, striking down Vermont's very low campaign contribution limits as a First Amendment violation. (37) Randall has not led to a flood of contribution limits being struck down as unconstitutionally low, (38) showing the limited reach of its decision.

      Things then shifted dramatically. In FEC v. Wisconsin Right to Life, Inc. (WRTL II), Chief Justice Roberts, joined by Justice Alito, wrote a controlling opinion that undermined the corporate and union campaign spending limits of McCain-Feingold through a strict interpretation of the statute, (39) in a move Justice Scalia called "faux judicial restraint" because it failed to straightforwardly hold the statute unconstitutional. (40) Within two years, however, the restraint was gone, and the Court in a 5-4 opinion in Citizens United simply struck that portion of McCain-Feingold as a First Amendment violation. (41) In the process, the Court overruled both Austin v. Michigan State Chamber of Commerce, a 1990 case that had upheld corporate and labor union spending limits dating back to the 1940s, (42) and that part of McConnell upholding BCRA's limits on corporate and union "issue advocacy" spending (43) The Citizens United opinion spawned follow-on lawsuits and FEC proceedings, (44) which prompted the growth of "Super PACs," groups nominally independent of candidates but cooperating to the fullest extent allowed by law and perhaps beyond and funded with huge...