Some proponents of campaign contribution limits, including the editorial page of the New York Times, are trying to spin yesterday’s Supreme Court decision their way. They point to the fact that the Court’s two new members, Chief Justice Roberts and Justice Alito, joined Justice Breyer’s opinion, which accepted the general legitimacy of contribution limits but found Vermont’s peculiar mix of restrictions to be beyond the pale. They think this means that in a future case, Roberts and Alito (or at least one of them) will join Breyer and the Court’s three most liberal members-Stevens, Souter, Ginsberg, who would have upheld even Vermont’s law-to sustain strict contribution limits that lack Vermont’s idiosyncratic set of defects.

Perhaps, but I wouldn’t bet on it.

To be sure, Roberts and Alito did not join with Justices Thomas and Scalia, who yesterday reconfirmed their view that all contribution limits are invalid. But it would have been extraordinary if Roberts and Alito had embraced that view. The case did not require a commitment to that position, and as newcomers to the Court the prudent course was to leave their options open.

More significant is the fact that the new Justices did not unconditionally endorse the Court’s existing jurisprudence on the topic of contribution limits. Justice Alito, for one, wrote a separate opinion just to say that his acceptance of the foundational campaign finance precedent, Buckley v. Valeo, was contingent on the fact that the litigants had not offered a basis for reexamining that precedent. To my mind, Alito’s explicitly conditional acceptance of Buckley signals his willingness to consider joining with Thomas and Scalia to overrule Buckley‘s general tolerance of contribution limits, should a case come to the Court in which a party presents an argument for this position.

Roberts did not join Alito’s separate statement or author one of his own. But Breyer’s opinion was written in a way that he did not have to. Breyer’s opinion noticeably did not rely on the Court’s recent reaffirmation of the general legitimacy of contribution limits, Nixon v. Shrink Missouri Government PAC from 2000, but instead depended exclusively on the 1976 Buckley precedent. To be sure, Breyer’s opinion cited Shrink and distinguished it factually, but that is a far cry from invoking its reasoning as the basis for yesterday’s decision.

See the beginning of Part III.B of Breyer’s opinion, pages 13-14, the critical passages where Breyer announces the law to be applied to Vermont ‘s contribution limits. There he states: “Following Buckley,” “as Buckley stated,” “as Buckley acknowledged.” The absence of Shrink from these passages is telling. Indeed, Justice Souter’s dissent chided Breyer for failing to follow Shrink.

Breyer’s opinion, in effect, says no more than that operating with the longstanding Buckley framework yields the conclusion that Vermont’s law is invalid. Roberts therefore remains free to say in a future case, “I joined Justice Breyer’s opinion in Randall on the assumption that Buckley was correct regarding contribution limits, an assumption that was not called into question by that case.”

Roberts, in other words, can say down the road, “My acceptance of Buckley on the issue of contribution limits was contingent in the same way that Justice Alito’s was.” Looking back on Randall from the vantage of that future case, one might retort, “But Chief Justice Roberts did not say so at the time.” He could respond, however, that he did not have to. Indeed, Justice Alito’s opinion made it unnecessary for him to do so, because Justice Alito already showed how joining Justice Breyer in Randall did not commit one to embracing Buckley unconditionally on the issue of contribution limits.

Nor does the fact that Roberts joined Breyer in invoking stare decisis to confirm the validity of Buckley with respect to expenditure limits mean that Roberts must accept the validity of Buckley regarding contribution limits. The Court was explicitly asked to revisit the expenditure side of Buckley in Randall. Roberts did so and found it sound. That conclusion, however, hardly compels him to believe that Buckley is equally sound on the subject of contribution limits, a matter not in play in Randall.

There are, it is true, passages in Breyer’s opinion that suggest a more affirmative endorsement of the constitutionality of contribution limits as a rule and, thus, could be read as committing Roberts, or even Alito who joined these passages, to that endorsement. “Th[e] sort of problems [affecting the Vermont law] are unlikely to affect the constitutionality of a limit that is reasonably high.” (Page 26.) “We also understand the legitimate need for constitutional leeway in respect to legislative line-drawing.” (Page 28.) These passages seem to go beyond a reliance on Buckley as precedent, towards expressing a view that an independently correct understanding of the Constitution would accept the validity of most contribution limits.

But I would be cautious against reading too much into these words. Alito, after all, saw no inconsistency between signing on to them and holding open the possibility of overruling Buckley down the road. And as for Roberts’ relationship to these particular passages, one must add the consideration that he, as the new Chief Justice who assigned the case to Breyer, might be especially reluctant to distance himself publicly from what Breyer wrote, since no other Justice in the majority was willing to join Breyer’s opinion in full.

We can presume that, in the almost four months drafting process since the oral argument, Chief Justice Roberts exacted some concessions from Breyer as the price of his joining the opinion. The absence of Shrink as controlling authority may have been one such prerequisite. So, too, may have been the notable omission of the so-called “equality rationale” as providing any justifiable basis for campaign finance regulations, a rationale that Breyer had invoked in his own previous writings on campaign finance. In any event, when examining the final draft of Breyer’s opinion, as it stood ready for public release, Chief Justice Roberts may have asked himself: “Is there anything in here that I absolutely need to disavow today in order to keep my options open in the future, including the option of joining with other members of the Court to overrule Buckley on the issue of contribution limits?” “No” is the answer that the Chief Justice honestly could have given himself to this question, and that fact alone provides sufficient basis for being cautious about the implications of his joining Breyer’s opinion without submitting a separate statement of his own.

Contrast, moreover, Justice Breyer’s actual opinion in Randall with a very different one he might have written. Suppose Justice Breyer had written: “Six years ago, in Shrink Missouri this Court expressly reaffirmed that Buckley was correct to uphold contribution limits unless they are excessively low, and today we once again confirm the correctness of what we said in both Buckley and Shrink.” That hypothetical opinion would have heralded an intent to commit the Court in the future to continuing its past practice of upholding contribution limits in all but the rarest of cases. “No change of doctrine, just its ongoing application” would have been an appropriate headline for this hypothetical opinion. Had Roberts and Alito joined an opinion of that nature, they would have put themselves on record as rejecting the Thomas/Scalia view that Buckley should be overturned in this respect. Indeed, if Roberts and Alito had joined that kind of opinion, we can well imagine that the three dissenters-Stevens, Souter, and Ginsburg-would have figured out a way to join it also, although obviously only in part, so that they could say that a majority of the Court authoritatively embraced the continuing validity of Buckley and Shrink as setting forth the correct rule regarding contribution limits.

But that did not happen, presumably because both Roberts and Alito wanted to keep all their options open. They weren’t going to sign on, with Thomas and Scalia, to a repudiation of Buckley on the issue of contribution limits. But they also weren’t going on to sign on to an acceptance of Buckley as correctly decided on this issue. Instead, they were willing to accept Buckley temporarily as longstanding precedent on this issue, but precedent that is subject to reconsideration in a properly presented case.

Thus, the significance of Randall is that it leaves the Court in limbo on the issue of contribution limits. When faced directly with the question whether Buckley should remain good law on this point, either Roberts or Alito (or both) may decide to adhere to that precedent-and join with Breyer and the three Randall dissenters to form a Court for that position. That day, should it come to pass, would indeed be a great victory for proponents of campaign finance regulation.

But it is at least as plausible that, when confronted squarely with the continuing validity of Buckley on the issue of contribution limits, Roberts and Alito join with Thomas and Scalia to replace Buckley‘s leniency on contribution limits with a much more stringent test. Justice Kennedy, who in his own separate opinion in Randall reiterated his significant doubts about the contribution side of Buckley , might sign on to this position as well. Roberts and Alito, and Kennedy, need not go all the way to the Thomas/Scalia position of believing all contribution limits to be invalid. Rather, it would be a repudiation of Buckley if a future case says that contribution limits are subject to strict scrutiny and are invalid as the norm, with the exceptional case being one in which they are upheld (the inverse, in essence, of the Shrink Missouri position). An opinion repudiating Buckley in this way might get five votes, to make it the authoritative position of the Court, with Thomas and Scalia adding a concurrence to say only that they would go even further.

At this point, given the indeterminacy of Randall, we can only guess which way the Court will move in its next contribution limits case. If the Court next faced, let’s say, a law that limited contributions from individuals to candidates to $500 and from parties to candidates to $2500-each limit per election (not per cycle) and adjusted for inflation, and each explicitly exempting the incidental expenditures of campaign volunteers, thereby avoiding the particular problems of Vermont’s law-would there be five votes on the Court to uphold this law? Who knows? Indeed, who knows whether there would be five votes to uphold the same $1000 limit that the Court upheld in Shrink Missouri? The pointed unwillingness of Roberts and Alito to sign onto an opinion that relied on Shrink necessarily casts that precedent in doubt.

Perhaps it is somewhat paradoxical, but Randall is hugely important precisely because it resolves so little. Its indecisiveness indicates that the Court is in a transitional period between the settled understanding of the Shrink Missouri era (which, despite its brevity, yielded the important McConnell v. FEC decision upholding the constitutionality of the McCain-Feingold law) and whatever new settled understanding comes next. Randall reveals that we can no longer take as a given the Court’s precedents on contribution limits. Instead, they are open to reexamination, and that in itself is a major development in the field of campaign finance regulation.

These precedents may yet be reaffirmed. But that is a victory that their fans will need to win in the future. As things stand today, one day after Randall was released, that victory is far from secure. The situation now is very different than if Randall itself had reaffirmed the validity of these precedents and all that remained would be applying them to future facts. Instead, the precedents themselves are contestable, and a valiant effort at spin control cannot negate this truth.

Controversy currently rages in both Florida and Ohio over their new laws regulating voter registration efforts by third-party groups. Civil rights organizations and other non-partisan entities, like the League of Women Voters, have long engaged in voter registration drives in order to increase participation in the franchise by eligible citizens. The practice of recruiting new registrants, however, has intensified recently, especially during presidential elections in battleground states, and some of the newer groups involved in the process, like Moveon.org, clearly favor one political party and its candidates.

Reports of irresponsible and even mendacious practices in 2004 by some third-party groups led legislatures in Florida, Ohio, and elsewhere to believe that new regulations were necessary. There were stories, for example, of groups losing registration forms or submitting them late, thereby disenfranchising the voters they were purporting to empower. There were other allegations of incomplete or improperly completed forms submitted by third-party groups, raising the question whether a state would be required to count provisional ballots cast by voters whose registration forms had been rejected because of these errors. Worst of all, there were even accounts of third-party groups selectively destroying registration forms filled out by would-be voters who identified themselves as affiliated with the “wrong” political party. (In Nevada, it was alleged that a Republican-allied organization intentionally discarded forms listing a Democratic affiliation before submitting the forms of those who registered as Republicans.)

Now we hear cries that the new regulations designed to stop these abuses are too draconian. In Florida, the League of Women Voters itself has filed a lawsuit claiming that the penalties imposed for losing forms ($5000) and missing deadlines ($500) are excessive. In Ohio, the dispute targets a rule requiring any individual who participates in a voter registration drive and collects completed forms to personally deliver those forms to the state’s election officials.

These new rules may indeed be overkill. But, for all the fuss they have generated recently, it is important not to lose sight of the fact that they were responses to real and significant concerns. After all, we are talking about protecting a citizen’s right to vote.

When a third-party group loses a registration form or misses a deadline, that group should be held accountable. Ironically, those now criticizing the new regulations are often the loudest to attack local elections officials when they mistakenly misplace registration forms or otherwise inadvertently omit new registrants from their voter lists. If a third-party group is going to undertake the responsibility of participating in the registration process, its needs to accept the consequences of disenfranchising citizens because of its own mistakes.

Fortunately, by using internet technology, there is a way to enable third-party groups to conduct voter registration drives without requiring them to accept the risk of heavy penalties due to misplaced forms. The major problems reported in 2004 were caused by the gap between completing a form and delivering it, a gap created when the forms exist on old-fashioned paper and must be either mailed or hand-delivered to the government. Likewise, the criticisms of the new rules in Florida and Ohio result from the need to mail or hand-deliver printed registration forms.

These problems-and these criticisms-disappear if these (and other) states would implement online voter registration as an option. Electronic submission of registration forms over the internet need not entirely replace the submission of printed forms in person or by conventional mail, at least not for the foreseeable future. But online registration ought to be available now, or at least in time for 2008, to supplement traditional methods.

Online voter registration would make completion of the form and its delivery a single step: a click of the mouse on a “SUBMIT FORM” button that appears on the computer screen. A third-party group could give its workers laptops that access the internet using a cell-phone connection, thereby permitting these workers to register new voters door-to-door, in shopping malls, or anywhere else cell-phone connections are available. Receipt of these registration forms by the government would be instantaneous. Indeed, the new registrant could receive an immediate email reply confirming that the government received the registration form. The process would be much like ordering concert tickets online.

There would be no danger of the third-party groups losing registration forms or missing registration deadlines. Indeed, the third-party groups would not really be handling these registration forms at all. Instead, they would simply be facilitating their completion and submission by the new registrants themselves.

Although many states now enable their citizens to download registration forms off the internet, they still require new registrants to mail in or hand-deliver the printed form after signing it. But if it is a signature that these states want, it is possible to have the new registrants sign their names electronically, as shoppers now do in most grocery stores. In addition to giving their workers internet-accessible laptops, third-party groups could equip them with portable versions of these electronic signature readers. In fact, some current laptop models (often called “tablet PCs”) have the built-in capacity to digitize a signature written on its screen with an electronic pen.

Alternatively, if a citizen already has a signature on file with the government-for example, as part of obtaining a driver’s license-then the citizen can incorporate by reference this existing record. Arizona, which is one state that enables voters to register online, permits this cross-referencing of signatures on file. Sam Reed, Washington Secretary of State, has proposed that his state follow Arizona’s lead in this respect.

Online registration, moreover, could facilitate breaking the logjam in the incessantly contentious debate over voter identification. As I have suggested previously, digital photos taken at the time of online registration could be stored in electronic poll books, so that voters would not need to bring an ID when they go to cast their ballot at their polling place. (Spencer Overton, in his new book Stealing Democracy, echoes this observation.) Third-party groups armed with digital cameras in addition to their laptops could take these photos at no charge to the new registrant and, if necessary, show the registrant how to include the photo as part completing the online form.

Any concern about the ability of third-party groups to handle the task of facilitating online registration could be alleviated through a training process that would allow these groups’ workers to become “deputized” in much the same way that notaries public have been for years.

To be sure, not all third-party groups would want to avail themselves of the opportunity to facilitate online registration. The cost of internet-accessible laptops (and, if required, additional technology like electronic signature readers or digital cameras) might deter groups operating on a shoestring budget. But 2004 demonstrated that at least some groups are able and willing to devote these kinds of resources to voter registration drives. Deploying Blackberries, PDAs, and other high-tech gadgets, third-party groups in Ohio and elsewhere conducted sophisticated get-out-the-vote efforts, hoping to maximize turnout for their preferred candidate. If online registration were an option, there is no doubt that some groups would begin to supply their workers with the tools needed to take advantage of this possibility.

The ease of online registration would be enough to cause some groups to prefer it to the old-fashioned methods of submitting forms by mail or hand-delivery. Even so, the chance of being fined for failing to submit paper registration forms entrusted to their care would be an appropriate additional incentive for groups to choose the failsafe method of online registration. Especially because it is impossible for a third-party group to misplace a completed online form, these groups should be penalized if they disenfranchise a citizen by losing a paper registration form when they could have opted for the online alternative.

To serve as an adequate incentive, a fine would not need to be as large as those in Florida’s new law. Nor would it be necessary to require, as Ohio’s new rule does, that the same individual who collects a completed paper registration form to be the one who submits the form to the government. But the current debate risks spending too much time and energy over whether these new regulations for handling old-fashioned paper forms are unduly onerous.

Instead, advocates for making voter registration more accessible should be clamoring for the availability of online registration.

Redistricting reform in Ohio is not dead, but it is in intensive care.

As many readers of this column already know, on May 25 Democrats in the Ohio House of Representatives defeated not only a reform proposal put forth by Republicans but also one that they, the Democrats, had developed in 2005. In the wake of this obstructionism, these House Democrats have been widely and strongly condemned by editorials in the state’s major newspapers.

“Blame the Democrats,” blasted the Akron Beacon Journal. “Shameful,” said the Dayton Daily News. “Hypocrites,” cried the Cleveland Plain Dealer.

While it is tempting to pile on this criticism, it would be more constructive to explore whether there might be a way to save the dying patient.

Fortunately, there is still time. Democrats and Republicans, in both the House and the Senate, would need to agree on a proposal by August 9 in order to put it plan before the voters in November. Summer legislative sessions have been calendared in case they are needed. So, in this instance, the old cliché is true: where there’s a will, there’s a way.

But is there the will?

The Democrats say they favor redistricting reform, just not the particular version put forth by the Republicans. The reason they rejected their own proposal from May 2005? They’ve learned a lot, they say, as a result of the Reform Ohio Now campaign in November 2005, particularly about the importance of increasing the competitiveness of legislative races (more on this in a moment).

While many are skeptical of the Democrats’ sincerity-they just want their chance to gerrymander again (now that they foresee victory this fall), these skeptics say-I would prefer to take them at their word. If they are indeed willing to negotiate in good faith with Republicans in an effort to achieve genuinely bipartisan redistricting reform, this willingness should be pursued, because if both sides come to the table in search of a plan that is fair to the legitimate positions of both sides, then an agreement should be achievable by the August 9 deadline.

The key sticking point is how to prioritize between two redistricting criteria: (1) preservation of community boundaries (counties, cities, and townships); and (2) competitiveness of legislative elections. Republicans value the first over the second, whereas the Democrats prefer the second to the first.

The Democrats defeated the Republican plan crafted by Rep. Kevin DeWine because it explicitly subordinated competitiveness as a redistricting factor to the goal of keeping community boundaries intact-just as Rep. DeWine led the successful Republican campaign last fall to defeat the Reform Ohio Now proposal because it elevated competitiveness over the integrity of community boundaries.

It is evident, then, that in order for redistricting reform in Ohio to be genuinely bipartisan-and in order for redistricting reform to succeed, since neither side has the political power to unilaterally impose its own preferred version of reform-it is necessary that the reform proposal give equal weight to both competitiveness and preservation of community boundaries.

There are two different ways to give these two redistricting factors equal weight, one we can call procedural, the other substantive. The procedural way would be to leave it to the bipartisan redistricting commission to balance these two factors as the commission thinks best. Because the proposed commission has an equal number of Democrats and Republicans, with the remaining members chosen with the equal input of both parties, the commission should be trusted to balance these two factors in a way that would be fair to both parties. (Because the Democrats have not voiced any significant objection to the structure of the proposed commission, as detailed in the amended version of Rep. DeWine’s plan, this procedural approach to a bipartisan compromise might be the easier version to achieve.)

The substantive way would be write a rule into the redistricting plan that would require the commission to give equal weight to competitiveness and community integrity. This rule could be specified mathematically in the following way. First, all new districting maps under consideration by the commission would be scored according to the number of noncompetitive districts they contain. Although there are different ways to measure whether a district is competitive or not, one possible measure of noncompetitiveness is a district where the average gap between the votes received by the two major-party candidates is more than five percent. (This measure is the mirror image of the measure of “competitiveness” contained in the DeWine proposal, which defined a “competitive” district as one where the average gap between candidates was not more than five percent.) Second, all these plans would also be scored according to the number of fragmented political communities they contain. In other words, each segment of a county, city, or township contained within a legislative district that was not the entire county, city, or township would count as one fragment for the purpose of this second number.

These two numbers, then, would both be converted into percentages, so that they were comparable in scale. The number of noncompetitive districts would be divided by the total number of districts, with this ratio expressed as a percentage. Likewise, the number of community fragments would be divided by the total number of communities, with this ratio also expressed as a percentage. These two percentages would be added together to produce a combined “competitiveness/community-integrity” index. The plans with the lowest score according to this index would be the ones that did the best in terms of giving equal weight to the values of competitiveness and keeping communities intact.

An alternative method of putting the two factors on the same scale might be to measure the number of Ohio citizens affected by noncompetitive districts or fragmented communities. In other words, with respect to each map, one could total the number of citizens living in noncompetitive districts and then add up the number of citizens living in communities that are fragmented under the map in question. These two sums could be combined, and the maps with the lowest combined sums would be considered best. (Using this alternative method, it would be necessary to decide whether citizens should be considered twice if they are residents of two different communities fragmented by a map: for example, if both the city and county in which they reside are fragmented. Presumably not, since the point of a citizen-based formula for giving equal weight to competitiveness and community integrity is that each individual harmed by either kind of districting “flaw” should count the same in evaluating the relative merits of different maps.)

Perhaps using statistics there are even more sophisticated ways to express mathematically the equal consideration of these two redistricting factors. But the crucial point here is that it is possible to develop at least one way to do so. Therefore, it is possible to write a rule that embodies a genuinely bipartisan compromise between the Democratic and Republican positions on redistricting priorities.

My own preference would be to leave any specific rule of this kind out of the Constitution and let the bipartisan commission develop a rule of its own, according to the procedural solution described above. But if either side is distrustful of what the commission might do in the future, then it is possible to confine the commission to a substantive rule that is genuinely bipartisan in giving equal consideration mathematically to the two values that each party ranks in the opposite order of priority.

Either version of a bipartisan compromise-procedural or substantive-would be worthy of adoption in comparison with the current situation, which permits the party in power at the time of redistricting to subordinate both community integrity and competitiveness to the illegitimate manipulation of district lines in order to secure an unfair cushion of extra seats in the legislature. Because at least one of these two versions of bipartisan compromise ought to be achievable if both parties negotiate in good faith between now and August, if it turns out that one side nixes the deal because it would prefer a chance to manipulate the map, then that party truly would deserve to be condemned by all the newspapers of the state (as well as by all other institutions that speak out on behalf of the public interest).

What is more, that party’s candidates-including its candidate for Governor-would deserve the electorate’s retribution at the polls for blocking genuine bipartisan reform. Between now and August, both parties’ gubernatorial candidates should be forced to take a stand on a genuine bipartisan reform proposal, either procedural or substantive, that gives equal consideration to the values of community integrity and competitiveness. And because neither candidate for Governor should wish to appear on the wrong side of this reform issue, both of these candidates should lean hard on the members of their party in the House and Senate, insisting that the General Assembly reach a bipartisan compromise to benefit the people of Ohio as a whole.

If the two gubernatorial candidates can agree on the details of a redistricting reform plan, and if they both announce that adoption of this compromise plan is essential medicine for curing the state’s political system of the corruption that currently plagues it-and that therefore any candidate for a seat in the General Assembly who is against this compromise plan is an enemy of true reform-it would seem hard for members of the General Assembly seeking reelection to vote against this compromise in August.

It may be a long shot. But it is worth pursuing. Otherwise, redistricting reform in Ohio is dead.