The voting problems of the 2000 and 2004 presidential elections have led many to question the validity of elections in the world’s leading democracy, and reform efforts are underway across the country. But one court case in Ohio raises the specter of federal court oversight of the election process, an undemocratic and inappropriate means of fixing the problems with the nation’s election system.

Ohio, the scene of so much controversy during the election last November, is now host to what may become the biggest election case since Bush v. Gore . Brought by the League of Women Voters against Secretary of State Kenneth Blackwell, this lawsuit would put Chief Judge James Carr of the federal court in Toledo in charge of election administration in Ohio.

Claiming Ohio’s election machinery to be dysfunctional, the League asks Judge Carr to order Blackwell to adopt rules concerning all aspects of running an election: the handling of voter registration forms and absentee ballot requests, the purchasing and deployment of voting machines, the hiring and training of poll workers, the development of voter education materials and polling place information, and much more.

The League also wants Judge Carr to require Blackwell to adopt two procedural systems designed to monitor this new electoral machinery: first, an auditing process whereby counties report their compliance with these rules; and second, a remedial process whereby voters can seek redress if wronged by the system. Moreover, leaving no doubt that the League seeks comprehensive court supervision of the state’s electoral apparatus, the lawsuit includes the catch-all request that Judge Carr order Blackwell to do whatever else necessary to “ensure that each county within Ohio conducts efficient, just and fair conduct of elections.”

The League’s claims are based on the U.S. Constitution. Essentially, the League argues that the Constitution’s “equal protection” and “due process” clauses guarantee all American citizens the right that their states operate properly functioning election systems. If successful, the case could be replicated in any other state where election administration is allegedly as deficient as Ohio’s.

Although the spotlight shone on Ohio last fall because of its importance to the presidential race, Ohio’s ability to handle a close election is generally thought by election experts to be about average among the states. Wisconsin , for example, easily could have caught all the attention: Kerry beat Bush there by under 12,000, and thus if Kerry had beaten Bush in Ohio , the nation’s eyes would have turned to the alleged double voting and other irregularities that federal and local prosecutors in Milwaukee are currently investigating.

And witness Washington’s problems during that state’s gubernatorial election last fall. Those defects, which included mishandled provisional ballots, received less national attention than they deserved: had they affected the presidential election, they could not have been resolved in time. Governor Christine Gregoire’s victory was not certified until Dec. 30 – 17 days after the Electoral College was required by Congress to meet to decide the presidency.

Therefore, League of Women Voters v. Blackwell could set the precedent that all matters of election administration in every state are subject to ongoing federal court supervision.

The lawyers for the League clearly understand the national implications of this case. They’ve brought in some of the nation’s leading civil rights organizations and leading law firms – from San Francisco to New York – to present their claims.

Blackwell is asking Judge Carr to dismiss the case as legally unsound, even if all its factual allegations of Ohio’s electoral incompetence are true. Judge Carr is expected to rule soon on this request. Whichever way he rules, this case eventually will go to the federal appeals court in Cincinnati, with intervention by the U.S. Supreme Court ultimately necessary should the League prevail.

Although no one could oppose a well-run election system for Ohio, or any other state, it is quite another matter for the federal courts to invoke “equal protection” and “due process” as sufficient authority for assuming responsibility for making sure a state’s electoral machinery works properly. These majestic generalities give federal judges no guidance on what specific measures are needed to make an election system work properly.

Even election experts disagree on these details. Take the issue of voter ID, for example. Lately, we have seen sharp public debate among experts on what kind of voter ID regime is necessary to protect the integrity of the electoral process against potential fraud. The League itself opposes the kind of photo ID system proposed recently by the Carter-Baker commission on election reform. But if a federal judge has the authority to order state officials to do whatever is necessary to guarantee the “efficient, just and fair conduct of elections” in the state, as the League’s lawsuit asserts, then the federal court can order these officials to adopt the Carter-Baker Commission’s photo ID recommendation.

Furthermore, well-run elections cost money. The League’s suit would require Ohio to spend substantially more money for poll workers. While the state should invest more in its own democracy, that fiscal decision should come from the state’s own elected representatives, not from the unelected federal judiciary. We can remember previous efforts from civil rights lawyers to get the federal courts to order increased state spending on schools, hospitals, prisons, and other public programs. The legacy of that litigation is that the hard choices of taxing and spending must be made by Congress or the states themselves. The federal courts properly lack the power of the purse.

Thus, the federal courts are not the place to fix the problem of poorly run elections. Instead, the solution must come from Congress or state legislatures or, if these representative bodies won’t act, the right of citizens to put initiatives directly on the ballot. The initiative process already has been invoked in Ohio , where the voters this November will pass judgment on four different proposals designed to improve the state’s electoral process.

Self-correcting democracy instead of court-ordered democracy: the choice is obvious.

Let the League loses its lawsuit in the wake of election reforms demanded by the voters themselves. The citizens of each state can address the problems facing their own election systems without the tutelage of federal courts.

Last week, Election Law @ Moritz was fortunate to host a conference on “Independent Election Administration: Who Draws the Lines, and Who Counts the Votes?” Organized by my colleagues, Dan Tokaji and Steve Huefner, this two-day event assembled from around the country a distinguished group of scholars in our field. (For a complete list of participants, see here.) While the conference, not surprisingly, did not yield any definitive conclusions on how best to achieve impartiality in the drawing of district lines or the administration of voting procedures, it did crystallize – at least for me – some key points concerning the quest for increased fairness in our nation’s electoral systems.

Although the conference was initially structured to address both redistricting and vote tabulation, the proceedings developed a sharp impression that the two topics need to be addressed separately. To be sure, partisan bias may inappropriately infect both kinds of decisions, but the disease does not manifest itself in exactly the same way in both contexts, and the different conditions call for different cures.

Redistricting is the more complicated situation: ideally, a fair redistricting process would protect against undue incumbency entrenchment, as well as preventing one political party from capturing an excessive advantage against another. Nor is there any clear consensus on how a perfectly impartial “redistricting czar” should go about drawing the lines in any given case, in light of all the legitimate competing values at stake whenever lines are drawn (balancing, for example, both geographic and demographic considerations in an effort to make the legislature representative of the citizenry). Consequently, there was a sense at the conference that redistricting should be done by some kind of multi-member body that itself is representative of the citizenry, yet in a way that is not beholden to the self-interests of current legislators or political parties.

Heather Gerken offered the intriguing suggestion that randomly selected “citizens assemblies” develop redistricting plans to be submitted to voters for approval in a referendum. There were the inevitable questions about how such “citizens assemblies” would operate: who would lead their deliberations? who would provide information to them concerning redistricting options? for how long would they meet and how would they be paid? would service on them be voluntary or mandatory (as is the case with juries)? how large would they be and would pure randomness be preserved as the sole selection criterion, even if the result was a body that seemed distinctly unrepresentative of the citizenry on some important dimension (race, sex, age, occupation, level of educational attainment, level of personal income, and so forth)? Despite these important questions, the idea of redistricting by “citizen assemblies” remains worthy of pursuit.

The difficulty of structuring such “citizens assemblies” so that they represent the citizenry fairly reminds one of the difficulty of structuring a fair constitutional convention. The similarity is not surprising: the task of drawing district lines is part of setting up the basic framework for the operation of the legislature, which is the primary function of a constitution. Redistricting must occur more frequently that rewriting the state’s constitution, but there is a strong consensus that it should not occur too frequently: no more often than once every ten years. One can think of redistricting as a process of episodically updating the basic constitutional architecture based on population shifts, and therefore the body that engages in redistricting can be conceived as a “limited-purpose constitutional convention” that confines itself to the fundamental assignment of drawing legislative lines without revisiting the rest of the constitutional design. In this light, it is appropriate to select members of the redistricting body in the same way as one would select members of a constitutional convention, and although random selection has not often been used as a method of appointing delegates to a constitutional convention, perhaps it should be – especially since any process by which delegates to the convention are elected from districts simply replicates the redistricting problem in the structure of the constitutional convention itself. In any event, the need for better structured redistricting bodies continues, and the idea of randomly selected “citizens assemblies” to conduct this task, subject to the approval of the citizenry as a whole, is a promising one.

By contrast, minimizing partisanship in the vote tabulation process, or what is often called “election administration” (addressing the range of voting procedures from registration through recounts), requires an institutional structure very different from a citizens assembly. Most states currently repose the ultimate administrative authority over these matters in a single chief elections officer, usually the Secretary of State. The problem with the current arrangement is that the Secretary of State is a partisan official, not that these administrative responsibilities are given to a single government official. Many of the administrative decisions that a state’s chief elections authority must make are interpretations of existing statutes and regulations in the midst of fast-moving developments immediately before or after the election occurs. Given the need for speed, it is preferable that these decisions be made by a single individual rather than a multi-member body.

Moreover, because it is generally recognized that it is far preferable to have as much of the law of election administration codified in advance of the election (either by statute or by administration regulations promulgated through a notice-and-comment rulemaking proceeding), a well-designed system would minimize the degree of discretion available to the state’s chief elections officer when making interpretative decisions in the midst of a fiercely contested election. Such discretion could never be eliminated entirely, to be sure – which is why this office must be insulated from partisanship insofar as is feasible. But the narrowly circumscribed discretion of this office, limited to the enforcement of specific statutory and regulatory directives, indicates that there is no need for a state’s elections authority to be structured as a multi-member body representative of the citizenry in all its demographic and geographic diversity. This office truly functions as an elections umpire, and thus it should be structured in such a way to best achieve this umpire role.

The single most critical attribute of an umpire is that this individual not be a member of either team that is participating in the contest. Therefore, in our elections system, the umpire must be neither Democrat nor Republican – or at least equally acceptable to both sides. One potential way to achieve this neutrality is to adopt Rick Hasen’s suggestion that a state’s chief elections officer, before appointment by a governor, receive approval from three-fourths of the state’s legislature. This suggestion assumes that state legislatures are not so dominated by one party that it controls three-fourths of the seats. Reasonable as that assumption may be, a more direct way to assure the equal assent of both Democrats and Republicans to the identity of this umpire would be to explicitly require the consent of the two parties’ leaders. For example, the chief elections officer could be appointed upon submission to the governor of a name jointly approved by the leaders of both the majority and minority parties in the state legislature.

In any event, it seems particularly important that this office itself not be an elected position. Even if the election were nominally nonpartisan, candidates for this statewide position would seek and receive support from one or the other of the two major political parties during the campaign, and thus their ability to be an impartial umpire would be compromised. Being unelected does not mean this umpire would be unaccountable: for example, its term of office could be structured so that, after each two-year election cycle, the umpire would need reapproval from the leadership of the majority and minority parties in the legislature in order to be appointed to another term.

As an alternative to moving the functions of a state’s chief elections officer from an elected Secretary of State to an appointed position of the kind just described, it has been suggested that certain limits be imposed on the partisan activities of elected Secretaries of States. While some reduction of partisanship is certainly better than none, the idea of impartial umpire remains compromised if the state’s chief elections officer retains any partisan affiliation. In baseball would it suffice if the umpire could be on the payroll of one of the two competing teams as long as the umpire did not serve on the team’s coaching staff? The only reason to promote such modest reform measures is that they are the only ones feasible in the short run.

But another significant lesson learned at the conference is the importance of achieving what’s feasible. Perfection is often the enemy of the good, it was said several times. Or “politics is the art of the possible,” to quote the old cliché. As scholars continue to explore ways to reduce inappropriate partisanship in either redistricting or election administration, increased attention needs to be given to the feasibility of scholarly proposals.

With this installment, Election Law @ Moritz resumes its regularly scheduled series of Weekly Comments. As a new feature this academic year, from time to time we will post contributions from Guest Commentators. If you would like to submit a Guest Comment for our consideration, please email Laura Williams at electionlaw.osu.edu.

The left and the right are increasingly trading accusations in the debate over new voter ID laws, and the rhetoric is heating up. Georgia’s new law has been called the new “Jim Crow,” although similar measures have recently been enacted in non-Southern states like Arizona and Indiana. (Wisconsin’s legislature, too, has passed this kind of law, although it has been vetoed by Governor Doyle). Defenders of such measures say opponents are willfully blind to the possibility of fraud unless a photo ID requirement is imposed.

Given that heels are digging in, it might seem naïve to search for a compromise. Yet it is imperative to do so. Election laws cannot serve their intended function unless they are accepted by both the left and the right as fair means for conducting the competition between these two political camps to win approval from the citizenry. If the right insists that a voter ID law is necessary to make the electoral process legitimate, while the left simultaneously says that the same ID law makes the electoral process illegitimate, then it becomes impossible for our society to settle upon rules of procedure for a fair contest between opposing political forces.

With that observation in mind, it is worth searching for a middle position on the voter ID issue, even if at the outset a successful conclusion to this endeavor is far from assured.

In principle, some form of identification requirement should not be objectionable to liberals. Voting is an activity that only the eligible are entitled to engage in, and so it is not unreasonable to ask citizens for some information to demonstrate their eligibility. For example, liberals do not generally object to the traditional requirements that voters provide their names, addresses, and signatures before casting their ballots.

Conservatives, however, say that these traditional requirements no longer suffice because an imposter easily could forge a signature and, in contemporary society, poll workers are unlikely to distinguish eligible from ineligible voters simply by looking at their visages. Therefore, according to these conservatives, a photo ID is necessary to show the voter’s eligibility. The picture will show that the person standing before the poll worker is the same one who, according to the poll book, is registered to vote under that particular name and address.

Liberals object, however, to a photo ID requirement on the ground that it is burdensome to citizens who do not have a driver’s license, passport, or comparable document. Part of the burden is cost, which can be addressed by making a valid photo ID free of charge. Another part of the burden is the difficulty of accessing locations where no-charge IDs may be obtained. That problem could be remedied by making them available at any post office, public library, or public school, as well as other social service agencies (hospitals, police stations, and so forth).

But a remaining concern of liberals is that, even if photo IDs are easily obtained, many voters will fail to bring them to the polls on Election Day. Public reminders may be issued, including public service announcements on TV. Still, some voters are forgetful, perhaps senior citizens more so than younger adults, and thus the obligation to carry an ID to the polls might serve as a barrier for these eligible citizens.

A potential solution to this problem is to break the connection with the photo requirement and the obligation to produce identification at the polls. Eligible citizens could be required to provide a photograph at the time they register to vote, and poll workers would match this photograph with the image of the person standing in front of them. Given the availability of digital photography, the photos of registered voters could be stored in electronic poll books and easily “pulled up” with a click of a computer mouse when voters sign in to vote.

These electronic photos should satisfy the anti-fraud concerns of conservatives as much as printed photos that citizens would be required to bring to the polls. After all, the purpose of a photo ID requirement – beyond the traditional requirement of providing one’s name, address, and signature – is to compare the likeness of the person seeking to vote with the photograph that is linked to the name and address of the registered voter (whom the flesh-and-blood person purports to be). This function can just as easily occur by comparing the likeness of the person with the computerized photo in the electronic poll book, which was linked to the name and address of the registered voter at time of registration.

Of course, to satisfy the concerns of liberals, a requirement to provide a digital photograph at time of registration would have to address the cost and accessibility issues identified earlier. But, again, a system in which citizens could go to a wide variety of public offices (including post offices, libraries, and schools), where clerical officials would be authorized to take a digital photo of the citizen and then email it to the applicable board of election, without any cost to the citizen, would satisfactorily address these concerns. In addition, for those citizens seeking to register by mail, they could be permitted to email their own digital photos of themselves, if they conform to “passport style” specifications. In this way, nursing homes and other senior citizens centers could take “at home” digital photos of their elderly residents and email them to the board of election, without requiring these elderly citizens to travel to a post office, library, or other public building. (Another comparable approach would be to permit individuals to become a kind of “deputized notary public,” trained to take the right sort of digital photo, so that other citizens could meet with any of these designated individuals whenever and wherever it would be convenient.) Moreover, as an alternative, those citizens who do not submit a digital photo at time of registration could provide the more conventional form of photo ID (like a driver’s license) at time of voting, making either approach an equally available option, depending solely on which the particular citizen prefers.

Liberals might still complain that any form of photo ID requirement is unnecessary to reduce the risk of fraud and, in any event, will be ineffective if inapplicable to absentee voting. The point about absentee voting is surely a valid one. (For this reason, one wonders whether it is wise to expand the availability of at-home voting, as many states are doing.) If individuals sitting at home can vote without providing any form of photo ID, the opportunity for fraud exists even if voters who go to the polls are subject to a photograph requirement. One way around this discrepancy would be to require absentee voters to submit a photocopy of their photo ID when they mail in their absentee ballot. Or, if the digital photo proposal is adopted, absentee voters could mail with their ballot a printed copy of the digital photo they submitted as part of their registration. In the future, absentee voters might simply email a second copy of their digital photo when emailing their absentee ballots.

A liberal objection to any form of photo ID requirement is more difficult to sustain, particularly if the goal is a compromise acceptable to both sides. To be sure, the frequency of fraud at polling places that would be preventable by a photo ID requirement may be fairly low – there is a clearly a debate between conservatives and liberals on this factual point – but it is not non-existent. Liberals acknowledge the possibility of fraudulent absentee voting, saying that its risk is greater than polling place voting. But if an imposter can obtain and submit an absentee ballot, he or she can show up at a polling place purporting to be someone else. Even if the latter is more difficult, the lack of a photo ID requirement makes this deceit easier than it otherwise would be.

Thus, an acceptable compromise must take the form of a photo ID requirement that is not unduly onerous. The proposal here, to permit voters to submit an easily obtainable and no-charge digital photo at the time they register, as an alternative to having to produce a driver’s license or comparable photo ID when they go to the polls on Election Day, satisfies this objective. Pursuing this proposal would enable both sides to move beyond the vituperative rhetoric that increasingly, and unfortunately, is clouding the policy debate on this topic.

In few areas of law will Justice O’Connor’s replacement have a greater impact than in campaign finance. To be sure, abortion and affirmative action are more prominent topics on which Justice O’Connor represented the swing vote. And in the adjacent election-law field of racial gerrymandering, Justice O’Connor proved to be the decisive fifth vote for upholding a districting plan that considered race as a contributing, but not overriding, factor. But the potential change in campaign finance law after Justice O’Connor is replaced is as sweeping and significant as in these other areas – and more imminent if the Court agrees to consider two cases currently on its docket.

Justice O’Connor was the surprising fifth vote to uphold the constitutionality of a key provision in the recent McCain-Feingold campaign reform law: a prohibition on the use of corporate funds for candidate-specific messages broadcast within 30 days of an election. Justice O’Connor evidently based her decision on the doctrine of stare decisis (that the Court’s prior decisions should not be overruled absent an especially strong justification for doing so), since she had voted to invalidate a similar prohibition on corporate spending a decade earlier. The Court now has before it a follow-up case involving the same McCain-Feingold prohibition on corporate spending. Although the plaintiffs in the new case are asking only that the Court invalidate this prohibition as applied to a specific subset of candidate-specific messages – those broadcast by issue-oriented not-profits urging an incumbent member of Congress to take legislation action – Justice O’Connor’s replacement could use the new case as a vehicle for invalidating the corporate prohibition entirely, thereby overturning Justice O’Connor’s earlier decision. While such a move would surely show less respect for the doctrine of stare decisis than Justice O’Connor had, some justices exhibit a eagerness to revisit the Court’s earlier decisions even in their first few years on the job.

Even more significantly, a case from Vermont offers the Court an opportunity to revise, or repudiate, the basic framework for campaign finance cases that it adopted thirty years ago in Buckley v. Valeo. The Buckley compromise, as it has come to be known, is that limits on campaign contributions are generally permissible while limits on campaign spending are generally not. (The Court’s decision to uphold limits on corporate campaign spending is an exception to the general rule, justified by the Court on the ground that individual citizens associated with the corporation remain free to spend unlimited personal funds on candidate-specific messages as long as they do not use the corporation’s money for this purpose.) The State of Vermont has sought to challenge this Buckley compromise by enacting new limits on the amount candidates can spend. The State of Vermont attempts to justify these new limits on the ground that the Buckley compromise has proved untenable: by permitting caps on the size of contributions while rejecting caps on the amount of money candidates spend, Buckley has forced candidates to devote ever-increasing amounts of time to obtaining low-dollar contributions from a widening circle of contributors. The time devoted to fundraising takes away time available for legislating, or otherwise doing the public’s business, and therefore – according to Vermont – protecting a politician’s time is a reason to limit campaign spending that was never considered in Buckley.

It is conceivable that Justice O’Connor’s replacement could provide the fifth vote necessary to accept Vermont ‘s argument. The four so-called “liberal” Justices on the Court – Stevens, Souter, Ginsburg, and Breyer – are generally sympathetic to campaign finance reform measures, and some of them (Stevens especially) have voiced a willingness to revisit Buckley with the view of upholding campaign spending measures of the kind that Vermont has adopted.

It is more likely, however, that the new justice will join the four existing “conservatives” on the Court to revisit Buckley from the opposite direction: to maintain the Buckley hostility to spending limits, but overturn the Buckley acceptance of contribution limits. These justices would agree that Buckley has proved untenable. But their solution to the problem would be to remove caps on large-dollar contributions. As long as contributions are disclosed, these justices would argue, the risk of corruption does not justify restricting the freedom to contribute as much money as one would like.

Only Justice O’Connor seemed devoted to maintaining the Buckley compromise. Again, her respect for stare decisis seems to explain her adherence to the Buckley framework even as it was coming under intense assault from both the left and the right. Even if the compromise was flawed, and its fissures were growing wider as the pressures of fundraising increased, it seems that? Justice O’Connor apparently wanted to keep the compromise intact just because it was settled law. Will the new justice display an equal willingness to keep a flawed precedent in place?

Although it is likely that the new justice will arrive at the Court with already well-developed views on the subject of campaign finance, in the few days remaining before the identity of the new nominee is known, it is worth speculating on what ideally the new Justice should do on the question of whether to retain or jettison Buckley. Because we are ignorant about the identity of the new justice, we can ask what the right decision is without preconceptions of what the justice will do based on the justice’s past track record.

Asking this question is the easy part. Answering it is very difficult, in large part because the doctrine of stare decisis is itself so unsettled right now. In the last twenty years, the Court as an institution and each justice individually has displayed erratic adherence to the self-professed obligation to uphold erroneous precedent. The Court famously upheld Roe v. Wade, the abortion precedent, in its 1992 Casey decision – even as some justices in the five-member majority suggested that they might have rejected the Court’s position in Roe had they been on the Court back in 1973. But in the second sodomy case, Lawrence v. Texas, the Court (including several of the same individual justices as in Casey ) announced that they must overrule the initial sodomy decision, Bowers v. Hardwick from 1986, just because it was so egregiously erroneous.

It’s hard to know whether the Court should adhere to Buckley if a majority of the justices view the precedent as severely mistaken. On the one hand, the doctrine of stare decisis does not mean much if the justices are willing to abandon a precedent just because they think it is incorrect. Rather, the whole point of stare decisis is that the mere fact that the question was decided previously means that the same question will not be revisited even if there is reason to believe that the previous decision was wrong. The consequences of the doctrine might be described pejoratively as being “stuck with a mistake no matter how bad,” but being stuck with mistakes actually has its advantages. Stability in the law is an important value, especially so for election law (for the reasons discussed in a previous Weekly Comment). If the Court were less willing to overrule its precedents, there would be less intensity to the looming confirmation battle over Justice O’Connor’s replacement. Simply put, the stakes would be less high if the new justice were obligated to work within the parameters of existing decisions rather than being free to undo whatever parts of the Court’s past efforts that the new justice considers objectionable.

On the other hand, even the doctrine of stare decisis itself recognizes that it sometimes is necessary to revisit past precedents in light of changed circumstances. If a prior decision rested on factual premises that are no longer true, then the underpinnings of the decision may have collapsed, leaving the Court with a rule that no longer makes any sense. Likewise, developments in technology or other cultural transformations may render an old decision inappropriate in a way that would not have been true when originally decided. The doctrine of stare decisis always has had enough flexibility to accommodate such situations, and arguably Buckley falls into this category. Political campaigns look a lot different today than they did thirty years ago, in part because of the development of the 24-hour continuous news cycle (as a result, first, of cable television and fax machines and, later, the Internet and e-mail). Because information technology has altered the dynamics of political campaigns, perhaps the law of campaign finance should change to reflect this new reality.

Moreover, if a Supreme Court decision causes a particularly pernicious consequence that was unanticipated at the time the decision was made, the doctrine of stare decisis permits the Court to revisit its ruling in light of its unanticipated real-world implications. Perhaps the best example of this situation is the famous Flag Salute cases from the 1940s. After the Court in the first case rejected the claim that the Constitution protects Jehovah’s Witness schoolchildren from compulsory flag salutes, outbreaks of violence against Jehovah’s Witnesses occurred when they continued to follow their consciences in refusing to salute the flag. In the wake of this persecution, the severity of which was beyond anything the Court imagined when it rejected their original constitutional claim, the Court three years later overruled the first decision.

Although Buckley has not resulted in political violence, it has had the unanticipated effect of the kind that led to the enactment of the new Vermont spending limit. It is now widely recognized that, by restricting the supply of campaign cash while leaving the demand for campaign cash unrestricted, Buckley had the destabilizing effect of requiring candidates to increase rather than decrease their fundraising efforts. While economists might have predicted this result, the Court in Buckley did not undertake an economic analysis of its “contribution limits yes, spending limits no” approach. Thus, a strong argument can be made that the doctrine of stare decisis permits the Court to revisit Buckley in light of its unanticipated consequences.

Even so, the question of revisiting Buckley remains complicated. Let’s suppose the new justice feels free to entertain constitutional questions involving campaign spending (and contribution) limits as an original matter, without the constraint of precedent. It is highly debatable what views a new justice should adopt on this subject as an original matter.

The most salient feature of campaign finance law is that there are, as there have always been, two strongly held and philosophically inspired views concerning the legitimacy of campaign finance regulation. One view, the libertarian position, sees both contribution and spending limits as unjustified infringements on political freedom. The other view, the egalitarian position, sees both contribution and spending limits as necessary to achieve a fair political process open equally to all citizens. Both philosophical views resonate in constitutional law, as the Constitution protects both political liberty and political equality.

Neither philosophical view can claim to be mandated by the intentions of those who authored the relevant clauses of the Constitution. Those who added the “freedom of speech, and of the press” provisions to the Constitution were not thinking about campaign finance regulations. Nor were the authors of the “equal protection” clause.

Without guidance from the authors of the Constitution, a justice must decide for herself (or himself) if one or the other of the philosophical visions better accords with the democratic values of the Constitution overall. Considering this question, would a new justice without any preconceptions on the topic of campaign finance, approaching it with an entirely open mind, adopt the libertarian or egalitarian position? So far, however, no one has discovered objective philosophical truth on the subject.

Thus, perhaps the most important thing for a new justice to recognize about campaign finance is the existence of this irreconcilable philosophical divide as a matter of first principles. And this recognition affects the question whether the Buckley compromise should be overruled under the doctrine of stare decisis. It is harder to justify overruling a precedent when there is an irreconcilable philosophical divide about what position should replace it.

Philosophical uncertainty on the topic of campaign finance should lead the new justice – and the Court as a whole – to embrace a kind of institutional modesty in this area of law. The Court should impose neither the libertarian nor the egalitarian vision, but instead let the political process itself experiment with different versions of both approaches. To be sure, the Court has an important role in protecting the democratic process from self-serving legislation adopted by legislators desiring to protect themselves as incumbents. Likewise, the Court must carefully and clearly demarcate the boundary between campaign and non-campaign activities, so that whatever rules it permits regarding the distinctive domain of campaign finance do not spill over into the realm of politics generally.

These two caveats suggest the outline of a doctrine the new justice could adopt regarding campaign finance cases: the Court will uphold new experimental legislation in the area of campaign finance unless (a) it is apparent that the legislation, by protecting incumbents from challengers, thwarts the robust competition required in democratic elections or (b) the legislation intrudes beyond campaign finance and begins to regulate non-campaign political discourse.

This doctrinal formulation is not entirely consistent with the Buckley compromise as it would be more open to experimental spending limits than Buckley would allow. A new justice could justify this deviation from Buckley on the ground that the unanticipated consequences generated by the Buckley compromise demonstrate the need for more institutional modesty on the part of the Court in this area of law. Modifying Buckley to decrease the Court’s oversight of experimental campaign finance legislation – as long as the Court does not abandon oversight entirely – is institutionally more consonant with democracy than modifying Buckley to increase judicial supervision of campaign finance laws.

In other words, let the legislature adopt the disclosure-only libertarian vision of campaign finance if the legislature, reflecting the will of the citizenry, thinks that approach is preferred. But the Court should not impose that vision on the citizenry – not when the Constitution’s text and original intent do not clearly mandate it, not when the philosophical debate over that vision remains so irreconcilable, and not when it cannot be shown that the legislature’s experimentation with an alternative approach prevents robust electoral competition (so that citizens can elect libertarian legislators if that becomes their preference).

Once the nation knows the name of the new Supreme Court nominee, lifting this veil of ignorance, we will be in a much better position to assess the chances that the Court might adopt this recommendation of greater institutional modesty in the area of campaign finance. Right now, if one were betting, one would have to bet against this possibility. Instead, in the absence of a nominee, the most likely guess must be that the new justice will provide the crucial fifth vote for adopting the libertarian position. Should that scenario come to pass, then this speculation about “what’s the right thing for the new justice to do” will have to stand as an exercise in what might have been.

The history of the Supreme Court, however, has been a history of surprises. Thus, even if it becomes widely anticipated that the Court will overrule Buckley to fully embrace the libertarian vision of campaign finance, it is possible that the Court will defy expectations in this respect. After all, Justice O’Connor herself was not expected to uphold the corporate spending provision of the McCain-Feingold law. If her successor is someone who has served in Congress, as many have urged, then the new justice upon arriving at the Court may embrace the idea of institutional modesty. If so, then the Court may continue to surprise the nation in its treatment of campaign finance.

As has been widely noted over the last few days, Justice O’Connor’s approach to deciding cases has been characterized by razor-thin rulings that turned on the specific facts at hand. While this pragmatic, incremental approach may serve the nation well in other areas of law (notably abortion and affirmative action), it is quite problematic in the area of election law. In this field particularly, it is important that the outcome of a case be perceived as unaffected by which political party benefits from the outcome, and that appearance of impartiality is difficult to achieve when the outcome is so heavily fact-dependent.

Justice O’Connor’s fact-intensive methodology proved critical in at least three specific sub-domains within election law. First, after initially invalidating the use of race as a criterion for drawing legislative districts, indeed characterizing the practice as akin to “political apartheid,” she ultimately approved of race as a districting factor so long as it does not predominate over traditional districting criteria. Second, with respect to campaign finance, after condemning restrictions on the use of corporate money to fund election-specific advocacy as “the rawest form of censorship,” she ultimately upheld just such restrictions – at least in the circumstance where the government presents credible evidence that corporate campaign spending has caused legislative corruption (as when, for example, the legislature derails measures adverse to corporate interests for fear of losing access to corporate support). Finally, and most prominently, she was one of the Court’s five-member majority that voted in Bush v. Gore to halt the Florida recount while warning that this decision, being limited solely to its specific facts, might lack value as precedent in any future case.

The first two of these three fact-intensive decisions did not provoke the kind of widespread criticism that followed Bush v. Gore. A significant reason for this difference may be that, in the districting and campaign finance decisions, Justice O’Connor’s ultimate vote appeared to favor Democratic Party interests at least as much as Republican ones. Approving the limited, non-predominating use of race in districting decisions was a “liberal” rather than “conservative” decision, consistent with the Democratic Party’s general desire to increase African-American voting power. Likewise, restricting the use of corporate funds for election-specific advocacy is a position thought to favor Democratic more than Republican candidates.

Not so, of course, with Bush v. Gore. There, the partisan advantage of the Court’s decision was plain for all to see. The problem with Republican-appointed Justices using a fact-intensive methodology to achieve this transparently Republican-advantageous result was the inability to show either that the result was compelled by prior precedent or that this new decision itself would prove binding in a circumstance equally disadvantageous to Republicans.

One of the most serious potential issues that loomed large over the 2004 presidential election, and which thankfully was avoided when the Ohio vote fell outside the proverbial “margin of litigation,” was whether the same five-member majority that decided Bush v. Gore would again invoke the Equal Protection Clause to strike down a state’s vote-counting procedure if doing so would benefit the Democratic candidate this time around. Incubating in the offices of pro-Kerry attorneys, ready to be hatched if the number of provisional ballots in Ohio significantly exceeded Bush’s election-night margin of victory among regular ballots, was the argument that the state’s procedures for determining the eligibility of these provisional ballots suffered from the same county-by-county, and even precinct-by-precinct, variations as the Florida recount process in 2000. The widespread belief among election law experts is that the primary lesson from the “near miss of 2004” is the overwhelming importance of precise and unambiguous rules in advance of Election Day concerning the evaluation of provisional ballots, so as to minimize the possibility of post-election litigation concerning their eligibility. The kind of fact-intensive jurisprudence favored by Justice O’Connor is contrary to this lesson of ’04, thereby suggesting that the nation would benefit from a new Justice who adopts a much more rule-oriented jurisprudence at least in the field of election law.

One of the biggest challenges to the development of a rule-based jurisprudence is the precedent that has developed under Justice O’Connor’s fact-based approach. As we have just noted in considering the potential applicability of Bush v. Gore to the 2004 election, fidelity to precedent is crucial if the Court is to appear rule-bound regardless of partisan consequences, rather than appearing unconstrained by rules in a way that enables it to achieve partisan ends on the facts of particular cases. But what if the Court’s effort to formulate a rigid rule in the future, which would be binding down the road, conflicts with a particular decision reached in the O’Connor era? Should the Court overrule the O’Connor-era decision as inconsistent with its new rule-oriented approach, or instead should the Court endeavor to craft a narrower, more fact-dependent rule in an effort to accommodate the O’Connor-decisive precedent?

Although this dilemma has no easy solution, it would not be unreasonable for a new majority on the Court to jettison fact-intensive O’Connor era decisions, as long as in doing so the Court clearly explained its new rule-oriented approach in such a way that observers could judge whether over time the Court remains consistent in following the new approach. Consequently, it is incumbent on the Court early in its new post-O’Connor composition to articulate an overarching vision of its approach to election law cases. The Court should announce whether it will follow the “representation-reinforcing” philosophy that uses the Equal Protection Clause to protect majority rule and equal voting rights from entrenched usurpations of the legislative process by powerful “special interests” – a philosophy that animates many of the Warren Court precedents that form the substructure of contemporary election law, including Bush v. Gore. Alternatively, the Court should announce that it will revert to the pre-Warren Court philosophy of judicial “hands off” with respect to electoral disputes. Perhaps the Court can develop some new philosophical approach to election law cases. In any event, the Court should tell the nation what principles will guide its resolution of election disputes, so that the nation can judge whether the Court is following its own principles regardless of partisan consequences.

At the very least, the Court should impose on itself a requirement that in all election law cases it be able formulate a rule that governs not only the case before it but a definable category of cases that have arisen or are likely to arise. Justice Kennedy’s demand for such a rule with respect to the problem of political gerrymanders was the right sort of judicial instinct. Although the problem is a pressing one and cries out for a judicial solution, and although Justice Breyer’s articulation of a no-systematic-frustration-of-majority-rule standard would seem sufficiently precise to be enforced in a strictly nonpartisan fashion (and would have the added benefit of following in the Warren Court’s “representation-reinforcing” tradition), it was appropriate for Justice Kennedy to hesitate until the Court coalesces around a single discernible standard of this kind. For the Court to invalidate a partisan gerrymander without such a standard, just because the gerrymander looks bad and is intuitively wrong, would be to perpetuate the kind of “ad hoc” decision making that characterizes the O’Connor-era Court and disserves the field of election law.

Thus, going forward, it will be better if the Court adopts clear and precise rules for the resolution of its election law cases, even if one might disagree with the substance of the rule the Court adopts, rather than deciding these cases on such fact-specific grounds that no binding rule emerges for application in future cases.