A CONSTITUTIONAL OUTLIER: LEGITIMACY AS A STATE INTEREST AND ITS IMPLICATIONS IN ELECTION LAW.

• Author: Garriott, Boyd

INTRODUCTION

A common theme throughout election law jurisprudence is the idea of legitimacy. As one scholar put it, "election law jurisprudence is preoccupied with appearances." (1) Whether one refers to it as legitimacy or appearances, the idea is the same: because elections undergird a functioning democracy, (2) people must have trust and confidence in those elections and their results. (3) Electoral legitimacy, while always important, is at the center of many important debates unfolding right now. James Clapper, the former director of national intelligence, has reported that intelligence agencies' assessment of Russian interference in the 2016 election "cast doubt on the legitimacy" of President Donald Trump's victory. (4) President Trump added an asterisk of his own to the 2016 election results when he claimed that he lost the popular vote because millions of undocumented immigrants voted against him. (5) In addition to the concerns about the 2016 election, the Supreme Court's campaign finance decision in Citizens United v. FEC (6) has resulted in worries about political corruption; one New York Times headline read "American Democracy Is Drowning in Money." (7) As with any important political debate, legitimacy and its appearance also matter in the Supreme Court. For example, in the oral argument in Gill v. Whitford (8) this Term, Chief Justice Roberts explicitly questioned whether hearing political gerrymandering claims would hurt the legitimacy of the Supreme Court. (9) In the Court's oral argument for Minnesota Voters Alliance v. Mansky, (10) also this Term, one of the advocates explicitly argued that speech restrictions in polling places could be justified in order to avoid a "perception problem." (11) Although there are many contexts in which legitimacy rears its head in election law, (12) this Note focuses on two: voter ID laws and campaign finance.

Using Crawford v. Marion County Election Board (13) and Buckley v. Valeo (14) as case studies, this Note will explore the Supreme Court's willingness to accept legitimacy as a government interest in voter ID and campaign finance regimes, respectively. Part I compares legitimacy justifications with public perception justifications in other constitutional contexts, concluding that the Supreme Court's embrace of these justifications in election law is in tension with its rejection of them in other First and Fourteenth Amendment contexts. Part II suggests that treating election law differently from other areas of constitutional law is not easily justified and warrants further discussion. Part III shows that the Court's consideration of legitimacy interests can lead to a lower standard of review, often resembling rational basis. Part IV argues that legitimacy justifications counter-intuitively give partisan actors ex ante incentives to damage electoral legitimacy. Part V contends that legitimacy justifications create a dangerous slippery slope for future election law cases. Part VI concludes that the Supreme Court should take a harder look at allowing public perceptions as a state interest in election law jurisprudence.

1. PUBLIC PERCEPTIONS IN FIRST AND FOURTEENTH AMENDMENT JURISPRUDENCE

   The Supreme Court has generally declined to consider public perceptions as a state interest in its constitutional jurisprudence, leaving election law as an outlier in the doctrine. When evaluating Fourteenth Amendment claims, the Supreme Court generally uses three standards of review: strict scrutiny, intermediate scrutiny, and rational basis review. (15) The most exacting review is strict scrutiny, which is generally reserved for classifications based on race or national origin and laws affecting fundamental rights. (16) In order to withstand strict scrutiny, the government actor in question must prove that its actions serve a "compelling interest" and are "narrowly tailored" to that end. (17) At the other end of the spectrum is rational basis review, which applies to non-fundamental social and economic legislation and allows nearly any law to stand so long as there is a rational justification for the law, even if the justification is questionable or post-hoc. (18) In between those two extremes lies intermediate scrutiny, which has traditionally been applied to classifications based on sex or illegitimacy and requires that the classification "must be substantially related to an important governmental objective." (19)

   This three-tiered standard of review framework is often relevant in election law. Because First Amendment rights are fundamental, classifications affecting political speech or campaign finance trigger a heightened form of scrutiny, sometimes on par with strict scrutiny. (20) Although there is some debate over whether voting is a fundamental right, (21) the Court nevertheless applies a heightened balancing test that weighs the "character and magnitude" of the voting burden against the state's interests and justifications, while also considering tailoring. (22) Thus far, the Court has declined to label this voting rights balancing test with one of the traditional levels of scrutiny. (23) First and Fourteenth Amendment jurisprudence analyzes constitutional rights under this framework in both the election law and nonelection law context. (24)

   1. Fourteenth Amendment

      1. Strict Scrutiny Review

         Under the strict scrutiny triggered by racial classifications, the Court has refused to consider public perception as a state justification. In Palmore v. Sidoti, (25) the Supreme Court reviewed a child custody case in which a Florida state court awarded custody to the father instead of the mother, in part because the mother was in an interracial relationship. (26) The Florida court believed that having an African American stepfather would cause the child to be "more vulnerable to peer pressures, [and to] suffer from the social stigmatization that is sure to come." (27) The Court did not disagree with the lower court's premise, noting that one would have to "ignore reality" to suggest that there was no longer racial stigma with which the child might have to contend. (28) Nonetheless, the racial classification triggered strict scrutiny, and the Supreme Court concluded that the Florida court's consideration of race in the custody context was impermissible under the Fourteenth Amendment's Equal Protection Clause. (29) The Palmore Court's reasoning is worth quoting at length, given its relevance:

         The question, however, is whether the reality of private biases and the possible injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural mother. We have little difficulty concluding that they are not. The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held. (30) Thus, the Palmore Court refused to consider private biases and their effects as a justification for limiting an individual's Fourteenth Amendment rights. (31)

      2. Heightened Review

         Under the heightened review triggered by a fundamental rights deprivation, the Court has refused to consider public perception as a valid state justification. In O'Connor v. Donaldson, (32) a patient was confined against his will in a mental institution for fifteen years, even though he was not dangerous to himself or others. (33) The patient sued under 42 U.S.C. [section] 1983, alleging that the mental institution staff had deprived him of his due process right to liberty. (34) Finding that the patient's physical liberty had been infringed, the Court considered a possible justification: keeping the patient away from the public, which may harbor stigma against the mentally ill. (35) The Court roundly rejected this justification, instead holding: "Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty." (36) Although the Court did not explicitly state a standard of review, it spoke in terms of "every man's constitutional right to liberty," and rejected multiple rational bases for confinement, suggesting that it was either employing strict scrutiny or some other form of heightened review. (37) Thus, Donaldson rejects the idea that public distaste for an individual or his practices may constitute an interest sufficient to deprive that individual of a fundamental right.

         The Court's rejection of private biases as a justification for infringing on constitutional rights also applies to property rights. In Buchanan v. Warley, (38) a white man tried to sell a black man his home, but the transaction was nullified by a city ordinance that forbade African Americans from buying homes in white neighborhoods. (39) The white seller sued, arguing that his right to dispose of his property as he saw fit had been abridged. (40) The city argued that the ordinance "promote[d] the public peace by preventing race conflicts." (41) Working under the premise that the right to use property was a fundamental right under the Fourteenth Amendment, the Court wholly rejected the city's justification. (42) In doing so, the Court implicitly rejected the use of widely held prejudice as a permissible justification for infringement of constitutional rights. (43)

      3. Rational Basis Review

         Under rational basis review, the Court has also refused to consider public perception as a state justification. In City of Cleburne v. Cleburne Living Center, (44) a Texas city denied a permit for the construction of a group home for the intellectually disabled. (45) The basis for the denial was, among other reasons, negative attitudes and fears about the intellectually disabled held by nearby property owners. (46) The Supreme Court refused...