In my previous comment, I defended Justice Kennedy’s decision in the Texas redistricting case, LULAC v. Perry, to refrain from attempting to identify when (if ever) the effect of a partisan gerrymander might suffice to establish a constitutionally cognizable injury. In light of the Court’s historical difficulties with this especially complicated and politically sensitive question, and because the plaintiffs in LULAC attacked only the mid-decade timing of the Texas redistricting, Justice Kennedy acted responsibly in leaving this larger question unresolved.

Here, as promised, I wish to defend the other major portion of Justice Kennedy’s opinion in LULAC , the part where, writing for a five-member majority of the Court, he invalidated the Texas map’s District 23 as a violation of the Voting Rights Act.

The problem with District 23, as the majority saw it, was that it split in half the Laredo-based Latino community, which had been wholly within the district as drawn in the previous map. In the old District 23, moreover, Latinos had comprised a majority of the citizen voting-age population (57.5%) and had begun to exercise effective political control over that district, whereas in the new District 23 Latinos were reduced to a minority of the citizen voting-age population (46%). The split of Laredo ‘s Latinos, therefore, had the effect of diluting Latino voting power, thereby violating section 2 of the Act.

The state defended against this vote dilution claim by arguing that District 25 of the new map contained a majority of Latino voters and, because both the old map and new map contained six majority-Latino districts, there was no overall dilution of Latino voting power in the new map. Kennedy’s opinion for the Court, however, rejected this argument on the ground that the loss of voting power for the Latino community in Laredo could not be offset by an increase in voting power of Latinos elsewhere in the state. Only if those other Latinos were equally entitled under the Voting Rights Act to a district of their own, and only if it would be impossible for the map to provide each separate Latino community with its own majority-Latino district, would it be permissible for the mapmakers to trade off the loss to the Laredo Latinos with a gain to Latinos elsewhere. That situation, however, was not present in this case because the Latinos in the new District 25 were geographically dispersed and therefore not entitled to their own VRA-mandated district.

Chief Justice Roberts, in an opinion joined by Justice Alito, vigorously dissented from the Court’s reasoning and conclusion on this vote dilution claim. In essence, Chief Justice Roberts believed that the geographic dispersion of the Latino residents in the new District 25 was irrelevant to a proper analysis of the vote dilution claim. As long as the percentage of Latino-controlled districts in a map is roughly proportional to the percentage of Latinos in the overall population, then the Chief Justice would require dismissal of the vote dilution claim. Although he would prefer to conduct this proportionality inquiry on a regional, rather than statewide basis, Chief Justice Roberts argued that either way the inquiry was satisfied on the facts of this case. As he observed, Latinos controlled 19% of the state’s congressional delegation and comprised 22% of the state’s citizen voting-age population, figures which should satisfy any standard of rough proportionality.

The Chief Justice’s dissent is a rhetorical tour de force, as befits a justice who was one of the nation’s leading appellate litigators before becoming a judge. But for all the “style points” his dissent deserves (to use a phrase from the dissent itself), it fails in my judgment to refute the Court’s two main points: first, that the specific harm to the Laredo Latinos establishes the basis for a vote dilution claim, even if the map overall provides proportionality; and second, that the creation of the new District 25, with its Latino majority, cannot offset the distinctive harm to the Latino voters of Laredo.

To understand why the Court, rather than Chief Justice Roberts, is more persuasive on these points it is necessary to recall an Equal Protection claim that the plaintiffs presented as an alternative to their Voting Rights Act claim. Although it became unnecessary for the Court to adjudicate the merits of this alternative Equal Protection claim once the Court accepts the Voting Rights Act claim, as Justice Kennedy’s opinion for the Court explicitly observes, it hovers in the background and undoubtedly influences the reasoning of the Court’s opinion on the Voting Rights Act issues. This influence is hardly inappropriate, as it is standard operating procedure that statutes should be interpreted so as to avoid constitutional questions. Therefore, to the extent that section 2 of the Voting Rights Act is open to alternative interpretations-as it surely is, given its lofty but general, quasi-constitutional language-Justice Kennedy was entirely justified in suffusing the Court’s analysis of the section 2 vote dilution claim with Equal Protection overtones.

One very important virtue of Justice Kennedy’s approach, rather than relying directly on an interpretation of the Equal Protection Clause itself, is that, if Congress does not like the Court’s theory of a successful vote dilution claim as articulated in LULAC, it can always amend the Voting Rights Act to make its position clear. A congressional directive of this kind would give the Court the reason to take “a sober second look” before proceeding directly to interpreting the Constitution to entail a theory of vote dilution liability that Congress considers unwise.

The alternative Equal Protection claim is that Texas legislature engaged in intentional race discrimination when it split apart the Latino community in Laredo , removing almost 100,000 Latinos from the old District 23. Some commentators (myself included on occasion) have loosely described this Equal Protection claim as asserting a race-based gerrymander in violation of the Equal Protection Clause according to the doctrine first articulated in Shaw v. Reno. But, in truth, this intentional vote dilution claim regarding the splitting of District 23 is not a Shaw-derivative racial gerrymandering claim, but rather a different kind of Equal Protection claim, as Justice Scalia’s opinion in LULAC correctly observes. Shaw -based claims require no showing of vote dilution; rather, they originated in response to a kind of “affirmative action” undertaken to increase the voting power of racial minorities. There was, indeed, a separate Shaw-based claim in LULAC, but it involved the addition of Latino voters to District 25, not the subtraction of Latino voters from District 23, as Justice Scalia also correctly recognized. (That separate Shaw-based claim also was unnecessary to address, as Justice Kennedy properly noted for the Court, once District 23 was found invalid under the Voting Rights Act, thereby requiring the case to be remanded to make a new map.)

With respect to thinking about the Equal Protection challenge to the removal of Latino voters from District 23, on the ground that it was intentional vote dilution rather than Shaw -based gerrymandering, it appears that members of the Court may have become confused about the proof of intentional discrimination necessary to show an Equal Protection violation. Acknowledging as was inevitable that the Texas legislature knew full well that it was removing almost 100,000 Latino voters from District 23 and that it was doing so on purpose, the State’s attorney attempted to defend against a finding of intentional vote dilution on the ground that the reason the legislature was consciously treating Latino voters this way was to protect the incumbency of Representative Henry Bonilla-a reason that the state asserted to be a political rather than racial motive. Justice Scalia bought this argument, while other Justices (including Justice Kennedy and his colleagues in the majority) were evidently troubled by it.

But the State’s argument on this point seems to me to confuse the intent to disadvantage a racial minority, which triggers strict scrutiny under conventional Equal Protection analysis, with the reason (or motive) for the government’s intent to discriminate, which is the justification that the government asserts in an attempt to satisfy strict scrutiny. If the harm to Latinos in Laredo did not involve a reduction of their voting power caused by the redrawing of district lines, but instead another form of impediment to their exercise of electoral power, I think it would be easier for the Justices to recognize this distinction. For example, suppose that the Texas legislature required Latinos in Laredo to provide an additional form of voter identification not required of Anglo voters within District 23. That requirement undoubtedly would qualify as intentional race-based discrimination triggering strict scrutiny under the Equal Protection Clause. If the State attempted to defend this additional identification requirement on the ground that it was desiring to protect Representative Bonilla’s incumbency (because diminishing Latino turnout would increase his chances of winning), that justification would be subjected to strict scrutiny-and presumably would fail-but it would never succeed as an argument that the burden on Latino voters was not form of intentional race-based discrimination.

In the context of an intentional vote dilution claim of the kind involving the conscious and purposeful removal of Latino voters from District 23, the argument that this burden on the exercise of Latino voting power was undertaken with an incumbency-protection motive should meet the same fate as it would if the burden on voting rights was the imposition of a discriminatory identification requirement. This situation is different than a Shaw-based claim, where without diluting minority voting power the legislature decides to include a group of minority voters in one district rather than another because drawing the district lines this way is more favorable to an incumbent. In that non-dilution context, it is plausible to say, as the Court has in post-Shaw cases like Easley v. Cromartie, that this incumbency-motivated line drawing is not intentional race discrimination in violation of the Equal Protection Clause even though the mapmakers are obviously aware of racial demographics when they draw the lines.

But the treatment of the issue of intent for Shaw-based claims should have no bearing when the Equal Protection claim is one of intentional vote dilution. Purposefully manipulating district lines to undercut minority voting power is, regrettably (indeed, outrageously) a longstanding practice in U.S. history. The Supreme Court, most famously, confronted an especially egregious example of this intentional vote dilution in the 1960 case Gomillion v. Lightfoot. There, Alabama had manipulated Tuskegee ‘s boundary to prevent blacks from exercising political power in the city, and the Court had no difficulty determining that this mapmaking exercise was intentional race discrimination requiring a compelling justification from the state. (None was forthcoming in the case.) Although perhaps not as egregious as the dilution of black voting power in Gomillion, the dilution of Latino voting power in LULAC by splitting Laredo in half is the exact same kind of consciously imposed harm on a local minority community as occurred in Gomillion and should be subject to the same strict constitutional scrutiny. In other words, when a legislature willfully redraws district lines to undermine a local minority community’s political power, that deliberate burden should count as intentional race discrimination for Equal Protection purposes, whether the legislature’s motive for imposing this burden is a belief in the inferiority of the minority group or a desire to protect an incumbency whose reelection is opposed by most members of the minority group.

In any event, whatever is the appropriate resolution of this Equal Protection issue, an inclination towards this position appropriately informed Justice Kennedy’s consideration, on behalf of the Court, of the vote dilution claim under the Voting Rights Act. In a crucial passage in his opinion, where he explains why the proportionality inquiry ultimately cannot defeat the section 2 claim involving District 23, he observes that the removal of Latinos from the district “bears the mark of intentional discrimination that could give rise to an equal protection violation.” (Slip op. at 34.) This fact distinguishes the section 2 claim here from an ordinary vote dilution claim under VRA’s section 2, which requires no showing that the dilution was intentional. Even if a State’s constitution required a computer to draw district lines based solely on maximizing district compactness, without any consideration of racial demographics whatsoever (the computer selecting randomly among maps with equally compact districts), the resulting map could be challenged under section 2 if it failed to produce minority-controlled districts in circumstances where such districts could have been drawn. Demonstrating that the map has the effect of diluting minority voting power is enough to invalidate the map under section 2.

In an ordinary section 2 case, where only the effect of dilution is shown, the proportionality inquiry makes sense. Don’t invalidate the computer’s compactness-maximizing map just because it failed to produce a minority-controlled district that might have been drawn in one part of the state if it turns out that the percentage of minority-controlled districts in the map overall is roughly proportional to the percentage of minority citizen voting-age population overall. In this situation, the state’s minority voters have not suffered a discriminatory harm.

The circumstances are entirely different, however, where, as in LULAC, minority voters in a specific locality are deliberately targeted by the legislature to undermine their political power. In Justice Kennedy’s own words, the basic fact of the case that “the State divided the cohesive Latino community in Laredo]” because they “threatened Bonilla’s incumbency” meant that “[i]n essence the State took away the Latinos’ [political power] because Latinos were about to exercise it.” (Slip op. at 33. 34.) Where this kind of deliberate undermining of minority political power occurs, the proportionality inquiry of an ordinary section 2 claim is beside the point. Statewide proportionality, as Justice Kennedy explained, could not “overcome” the harm of vote dilution specifically inflicted upon the Latinos of Laredo.

This conclusion is entirely sound. If Latinos in Laredo were targeted with another kind of discriminatory burden-for example, a reduction of their share of scholarships to Texas state universities, so that Anglos in Rep. Bonilla’s district could receive a disproportionately large share of these scholarships-it would not matter that statewide the percentage of scholarships received by Latinos were proportional to the Latino percentage of the statewide population eligible to receive these scholarships. In the special case of a section 2 vote dilution claim predicated on the deliberate targeting of a local minority community, the proportionality inquiry similarly should have no place.

This conclusion also goes a long way toward explaining why the addition of Latino-controlled District 25 does not negate the vote dilution claim regarding District 23. In essence, the State’s reliance on District 25 to offset District 23 is just another version of the proportionality defense, writ small. But giving extra scholarships to Latino students in Austin could not justify depriving Latino students in Laredo of scholarships in order to bestow extra scholarships on Anglo students within Rep. Bonilla’s constituency. Similarly, giving greater voting power to Latinos in District 25 cannot compensate for diminishing the voting power of Latinos in Laredo in order to protect the political interests of Rep. Bonilla and the predominantly Anglo constituents who support him.

Chief Justice Roberts attempted to deflect this basic point by arguing that the Latinos of Laredo were no more entitled in the first place to a majority-Latino district than were the Latinos of District 25. He observed that the old District 23 was no more compact (or otherwise geographically compelling) than the new District 23 and, therefore, the State originally could have chosen equally between the contours of the old District 23 and the new District 25. But, contrary to the Chief Justice’s argument, it does not follow from this observation that, when replacing the predecessor map, the State now is permitted to substitute the new District 25 for the old District 23. Even if Latino students in Laredo were no more entitled to receive scholarships than Latino students in Austin before any of these scholarships were awarded, once they are awarded the Latino students of Laredo cannot be deprived of them on the ground that Rep. Bonilla wants his Anglo constituents to receive more of the scholarships allocated to students in his constituency.

In his opinion for the Court, Justice Kennedy makes much of the fact that the Latino community of Laredo had been exercising its political power within District 23 before that power was taken away to benefit Rep. Bonilla and his Anglo supporters. He was correct to do so. Even if those Laredo Latinos had not been entitled to that political power in the first place, once they have it, the State should not be permitted to take it away from them in order to increase the political power of Anglos whose political interests, as demonstrated by past voting patterns, are opposed to theirs.

To be sure, by deciding that it violates VRA’s section 2 for a state to deprive a local minority community of preexisting political power, the Court in LULAC appears to import the non-retrogression principle of VRA’s section 5 into a vote dilution claim under section 2. But I would suggest that this apparent importation of the non-retrogression principle is limited to the special circumstance in which a vote dilution claim under section 2 is predicated on the deliberate targeting of minority voting power. In other words, it is limited to only claims of intentional vote dilution under section 2 that resemble an Equal Protection claim. It would not apply to purely effects-based vote dilution claims.

Ultimately, then, it is the deliberate nature of the injury to Latino voters of Laredo that justifies the Court’s decision to sustain their Voting Rights Act claim and provides the basis for thinking that Justice Kennedy, rather than Chief Justice Roberts, got the better of the argument. Indeed, the Chief Justice entirely neglects this distinctive feature of the vote dilution claim in LULAC. He treats the removal of Latino voters from District 23 as nothing more than a conventional, purely effects-based claim under section 2. He nowhere considers whether the purposeful targeting of Laredo Latinos for a loss of voting power to protect Rep. Bonilla’s incumbency presents a special case of intentional vote dilution under section 2.

Perhaps even more surprisingly, Chief Justice Roberts never considers the alternative Equal Protection claim that underlies the idea of deliberate vote dilution as a distinctive form of section 2 violation. Having rejected the Voting Rights Act challenge to the new District 23, Chief Justice Roberts should have gone on to consider the Equal Protection claim itself, just as Justice Scalia did. At the very least, Chief Justice Roberts should have explained why he would not address the plaintiffs’ alternative claim of intentional vote dilution under the Equal Protection Clause (or, for that matter, the Shaw -based claim regarding District 25, which the Chief Justice also did not address). But there is only silence from the Chief Justice on this essential feature of the case.

Thus, for all its rhetorical power and flair, Chief Justice Roberts’ opinion fails to grapple with what is most important about the Voting Rights Act claim regarding the removal of Latino voters from District 23. In essence, then, he misses (or ignores) the Court’s main point.

It would be most unfortunate, however, if academic analysis and public commentary on LULAC also misses this main point, as easily could occur if the focus becomes whether in terms of craft Kennedy or Roberts was the more effective advocate of his position. Roberts may well be the better wordsmith, but Kennedy was ultimately stronger on the substance of the law.

Kennedy kept focused on the key fact that Latino voters had been deprived of voting power to increase the voting power of Anglos. In the end, nothing else mattered-nor should matter, as surely it is a proper interpretation of the Voting Rights Act to find this kind of deprivation unlawful.

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.

So many things can-and do-go wrong with the administration of elections that it is important to distinguish the serious problems from the relatively minor inconveniences.

Last week’s primary elections in Ohio illustrate this point. The headline grabber was the week-long delay in announcing results in Cuyahoga County because machines purchased to read absentee ballots were unable to do so. It became necessary to count 15,000 absentee ballots by hand. (Just think if more Cleveland voters had really utilized their new ability to cast “no excuse” absentee ballots. Less than ten percent of the vote in this primary was by absentee ballots, but it might have been much higher.) The consequence was a colossal embarrassment for the county’s Board of Elections and a huge frustration for the campaigns and members of the public waiting eagerly to know the results.

But so far there has been no allegation that this unfortunate and annoying delay has compromised the integrity of any of the Cuyahoga County elections. Accordingly, the problem should be classified as relatively minor.

To be sure, hand counting 15,000 ballots is likely to be significantly less accurate than counting these same ballots by machine-when, that is, the machines work properly. In this respect, the problem could convert from being merely inconvenient to jeopardizing the integrity of the results, a consequence of an entirely different order of magnitude. But right now we can laugh at, rather than weep over, the ineptitude that this malfunction revealed.

More serious of the mishaps in Cuyahoga County was the failure of twenty percent of polling places to open on time, and at least one to miss the entire morning before opening in the afternoon. Delays of this kind disenfranchise voters who, because of work and/or family schedules, are unable to return later in afternoon or evening. If these delays fall disproportionately on voters with particular demographic profiles-urban rather than suburban, lower-income rather than higher-income-as they are likely to do, then this disenfranchisement risks the serious structural defect of causing the less popular candidate to prevail. In other words, this disenfranchisement, in addition to being a violation of the voter’s individual right, results in the undemocratic denial of majority rule.

Worse still was the loss of 70 memory cards that recorded the vote tallies from 200, or 14 percent, of the county’s 1435 precincts. The misplacement of these memory cards, even if temporary, is a break in the “chain of custody,” which would enable tampering with the results of the election. As of this morning, according to the Plain Dealer, as many as a dozen of these memory cards are still missing. What is perhaps even more remarkable, a full week after election day, the Board of Elections does not know how many of these memory cards remain unaccounted for: apparently, it may be as few as seven.

Maybe this time the loss of these vote tallies was only the result of gross negligence, but at some point incompetence slides into nefariousness, as when in 2004 several Cuyahoga County election officials allegedly decided to disregard the requirement that selection of sample precincts for an initial recount be random. This decision may have been motivated by a desire to save money or to avoid the time-consuming burden of a full recount of all the county’s precincts. Even so, taking matters into their own hands in this way reflects an astounding failure of senior election officials to appreciate the reason for the requirement that the sampling be random: to avoid the recount being rigged.

It is understandable-and forgivable-that election officials will make mistakes. They are only human. And not all electoral mistakes threaten the integrity of the election itself.

But malfeasance is a very different problem than mere mistakes, and there arguably has been malfeasance in the administration of elections in Cuyahoga County, including this past week’s lapses in the chain of custody over memory cards and the inability still to find at least seven, and up to twelve, of them. Malfeasance on the part of election officials, by its very nature, undermines confidence in the legitimacy of the elections: the system is inherently untrustworthy.

Primary ’06 revealed, or perhaps confirmed, a “people problem” in the administration of elections in Cuyahoga County. Machines may have failed, but the fundamental structural defect was that election officials could not be trusted to do even the simple things they were supposed to do, like keep track of the ballots to be counted. Unless and until the leadership of the county’s electoral system can instill among its officials a culture of responsibility, doubts will remain about the ability of the county to conduct elections that satisfy the basic standard of democratic legitimacy.

Meanwhile…

The Imperative of Redistricting Reform

Not all structural defects in the operation of democracy in Ohio concern the counting of votes. There is also the travesty that the geographic lines for determining the boundaries of legislative districts are drawn by one political party in order to maximize its ability to secure an unfair advantage over the opposing party. Democrats have done this when they have controlled the decennial redistricting process, as have Republicans most recently.

Now the Republicans have put forward a plan that would take this redistricting process away from the party in power and put it in the hands of an independent nonpartisan commission. Whether motivated by the fear that Democrats will be in control in 2011, or instead by a genuine desire to do what is right on behalf of Ohio’s electorate, it does not matter. The plan is a good one, it deserves to be adopted, and if Democrats block it because they smell Republican blood in this fall’s all-important elections, then these Ohio Democrats deserve every condemnation leveled against them.

The plan calls for the creation of a seven-member board, two members from each major party and the three remaining chosen by the unanimous agreement of these four. This composition ensures that the board will benefit from the “street smarts” of its partisan members, yet at the same time the balance of power will be held by a triumvirate of leading public figures who must be acceptable to both sides. (In casual conversation, I’ve suggested Dean Nancy Rogers of our own Moritz College of Law as an example of this sort of “esteemed neutral” who would win bipartisan support for appointment to this board.)

The plan also requires that this commission follow specified and public-spirited districting criteria, so that boundary lines are not manipulated to secure partisan advantage. News reports of the plan describe these criteria as giving equal weight to “competitiveness” as a factor along with traditional districting criteria like compactness and preservation of existing political boundaries (counties, municipalities, and so forth). But, by my reading of the plan, it permits consideration of competitiveness only after satisfaction of compactness and respect for political boundaries, and this feature is a salutary element.

The main problem with the redistricting proposal on the ballot in Ohio last November, as a result of the petition drive led by the group Reform Ohio Now, was that it elevated competitiveness as a priority above these other traditional districting criteria. The new plan sponsored by Rep. Kevin DeWine and other Republicans in the General Assembly appropriately considers competitiveness as a positive factor but only, in effect, as a tie-breaker among maps that score equally well in terms of compactness and preservation of political boundaries. This appropriate order of priorities will result in maps that make sense in terms of the localities being represented in the legislature. To the extent that the populaces of particular localities are closely divided between the two major political parties, the elections there will become more vigorously contested. Overall, democracy will be healthier, the structure of legislative representation more reflective of the people.

Adoption of this plan should be a no-brainer. It fixes a serious flaw in the current design of Ohio’s democracy. To the extent that this plan meets resistance, it is because of the contemptible willingness of partisan politicians to sacrifice the public good for their short-term selfish advantage.

On this issue, if no other, now is the time for Ohio’s politicians to rise above party interests and to exercise statesmanship and leadership for the benefit of the people as a whole. If they cannot do that here, then democracy in this state is seriously diseased-its maladies extend beyond an inability to count ballots properly to encompass an inability to give voters a meaningful choice of which legislative representatives to elect.