A VOICE IN THE WILDERNESS: JOHN PAUL STEVENS, ELECTION LAW, AND A THEORY OF IMPARTIAL GOVERNANCE.

• Author: Barnett, Cody S.

TABLE OF CONTENTS INTRODUCTION 338 I. THICKETS AND THORNS: THE EVOLUTION OF ELECTION LAW 346 II. LOCUSTS AND WILD HONEY: A SHORT BIOGRAPHY OF JUSTICE JOHN PAUL STEVENS 355 III. CLEARING THE WAY: THE IMPACT OF JOHN PAUL STEVENS ON ELECTION LAW 363 A. Election Administration 365 B. Legislative Districting 375 C. Campaign Finance 386 D. Deciding a Presidential Election 394 CONCLUSION 402 APPENDIX: JUSTICE STEVENS'S ELECTION LAW OPINIONS 404 INTRODUCTION

President Gerald Ford has not posthumously convinced historians of his lasting legacy on American democracy. (1) After all, voters never even placed President Ford in the Oval Office. He "accidental[ly]" inherited the responsibility following an unprecedented double resignation. (2) Then, after a mere two years, he lost his election bid when voters handed the presidency to Jimmy Carter. "I'm a Ford not a Lincoln," Ford humbly quipped. (3) Surely history would remember him as such. Yet on November 28, 1975, President Ford made one decision that has had an oft-overlooked impact on American democracy: he nominated John Paul Stevens to the United States Supreme Court. (4) Just as history has minimized President Ford's political importance, legal minds have not yet settled on how best to memorialize Justice Stevens's contributions to the Court. Ironically, then, history may best remember John Paul Stevens--the Justice nominated by the man who never even won a presidential election--through the lens of his election law jurisprudence.

Supreme Court appointments can be a president's most lasting legacy. (5) In 1975, however, many commentators thought that John Paul Stevens might prove an exception. "Ford's purpose was not to make a big splash and change the world," Professor Jack Balkin suggested. (6) The nomination did not spark remarkable controversy. Beforehand, some observers believed that President Ford would copy President Richard Nixon's precedent and nominate a candidate who would push the Court further right. (7) Instead, Stevens represented a "maverick." (8) "There was no attempt to nominate a strong ideologue.... [Ford] wanted a straight-arrow, middle-of-the-road, normal guy, excellent lawyer--and that's what they got in Stevens," Balkin reflected. (9) Court-watchers predicted that Stevens would join Justices Lewis Powell and Byron White at the Court's ideological center as swing votes. (10) The stakes of adding another centrist at that time did not seem that high. Accordingly, observers thought that Justice Stevens would play only a small role in the Court's decision-making process. (11) Yet Justice Stevens found himself "in the unexpected position of shaping the [C]ourt's liberal jurisprudence." (12) Many Supreme Court Justices have developed well-known legacies within certain legal fields. "What is a legacy? It's planting seeds in a garden you never get to see." (13) A Supreme Court Justice's legacy is meaningful because it helps to place that Justice within the context of the history that faced the Court while the Justice served. A legacy tells us something important about how that Justice influenced legal doctrine, both while the Justice served and beyond. (14) Chief Justice Earl Warren oversaw a busy Court that churned out groundbreaking civil rights precedents, (15) while his successor Chief Justice Warren Burger scaled back the Court's activism through equally seminal--albeit more conservative--opinions. (16) More recently, Justice Anthony Kennedy has authored every majority opinion expanding the rights of same-sex couples over the last thirty years. (17) Justice Antonin Scalia pioneered a school of jurisprudence on originalism that has dominated legal circles on both the left and right. (18)

Yet historians and legal academics alike have yet to agree on Justice John Paul Stevens's legacy. (19) Some have described Justice Stevens's impact as "unexpectedly liberal," without much more. (20) Others have stated that, while having "[u]nquestionable [i]ntegrity," Justice Stevens exercised "[q]uestionable [I]egal [j]udgment" during his long jurisprudential career. (21) One scholar looked at his prolificacy, particularly in writing dissents. (22) Overall, Justice Stevens has received a "[m]ixed [v]erdict." (23) These disparities show that, almost a decade after his retirement, few scholars have noted a settled legacy for Justice Stevens.

Undoubtedly, Justice Stevens authored landmark decisions. In FCC V. Pacifica, a case stemming from comedian George Carlin's famous "Filthy Words" sketch, Stevens wrote the majority opinion giving the Federal Communications Commission the authority to regulate indecency over the airwaves. (24) He set down an important precedent for copyright law in Sony Corp. of America v. Universal City Studios, Inc., the "Betamax" case. (25) Justice Stevens expanded the government's power to invoke its eminent domain authority in Kelo V. City of New London. (26) In perhaps the most important case for Administrative Law, he created the well-known Chevron two-step process for reviewing agency decisions. (27)

Yet, although these precedents are important in their respective areas, scholars do not generally credit Justice Stevens with an outsized role in any of these fields. But scholars should recognize Justice Stevens for his election law jurisprudence. In a series of cases involving the law of democracy, Justice Stevens espoused a consistent theory that greatly influenced a newly formed field. His jurisprudence deeply affected the Court's approach to election law, embracing the Court's plunge into the political thicket and even more directly inserting judges into the most controversial disputes surrounding our democracy. He ultimately trusted judges to resolve issues involving elections with disinterested impartiality, moving the judiciary deep into the political thicket. Good or bad, no one can deny the significance of this transformation. Given the increasing importance of election law cases to the operation of our democratic system, this utmost trust of judges to resolve election law disputes fairly and impartially comprises a previously unrecognized legacy.

Justice Stevens was a devotee of sovereign impartiality, or the notion that governments should serve the people with total neutrality. (28) Yet Justice Stevens also recognized the breathing room that governments require to function properly, particularly in administering elections. Seeing these two conflicting thoughts, Justice Stevens removed election law from the world of strict scrutiny and harsh lines. Instead, he planted the jurisprudential flag squarely in the land of pragmatic realism and balancing tests, with judges playing the largest role. These two strands continue to play tug-of-war in election law cases today.

During his long tenure, Justice Stevens authored sixty-seven opinions--majority, plurality, concurring, or dissenting--dealing with the relationship between law and democracy, (29) surely representing more election law writing than any other Justice. (30) At times, the Justice's thoughts moved the field. His opinions in Anderson v. Celebrezze (31) and Crawford v. Marion County Election Board (32) set forth the test, invoked frequently, for weighing burdens on the right to vote when states administer elections. Given the ongoing litigation over voter identification laws and other election administration issues, the way Justice Stevens shaped the doctrine continues to have crucial relevance today. (33) The Justice also wrote fierce dissents. He opposed the Court's inaction regarding political gerrymanders, (34) and he deplored the diluvial impact Citizens United v. FEC would have on money in politics. (35) Justice Stevens also took great umbrage at the favoritism he believed legislators showered on the two-party system. (36) Although dissents do not say what the law is, they can nonetheless gain momentum with "the shifting tides of history." (37)

Justice Stevens strongly believed that American politics operated best when judges could ensure that the system served the citizens impartially. Mapmakers should draw lines fairly without regard to party politics. Congress and state governments should ensure an even electoral playing field through reasonable campaign finance restrictions. Finally, state officials must count ballots fairly and impartially. That said, state governments also needed deference to operate the electoral machine smoothly. For instance, with sufficient justification, states could enact voter identification laws to combat actual or perceived fraud. (38) Justice Stevens reconciled these competing ideas through his pragmatic realism. It was up to the courts, the ultimate neutral arbiters, to ensure that political actors conducted the machinery of democracy impartially.

To be sure, one might see weaknesses in Justice Stevens's election law jurisprudence. First, he often failed to secure five votes and instead frequently wrote in dissent. (39) But this fact might demonstrate that he tried to remain consistent with his own theory of impartial governance, regardless of shifting Supreme Court majorities. His dissents generally came in cases in which he believed the Court had not sufficiently protected democratic (small "d") impartiality. (40) Moreover, some of the seeds that Justice Stevens planted with these dissents have started to bloom.

Second, "impartial governance" might seem malleable, allowing a justice to impart his or her own views into a case. Other members of the Court also sometimes rested on seemingly amorphous concepts of fairness and justice, so one might say that Justice Stevens was not unique in this regard. (41) But Justice Stevens was particularly consistent and prolific in explicitly embracing this theory throughout his election law jurisprudence. (42) The Justice trusted judges to rule impartially--irrespective of their own political beliefs--and he believed that democracy would flourish with impartial election rules...