Electronic Roundtable ’06

Incrementalist Election Law?

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This comment concludes the Electronic Roundtable that we have been hosting in this space over the last two weeks. Election Law @ Moritz is extremely grateful to our guest participants – Rick Hasen, Dan Lowenstein, Rick Pildes, and Brad Smith – for providing such thoughtful contributions to this collaborative venture. If some of the normative views expressed in the Roundtable are unlikely to prevail in the two cases we have been discussing, others will. Likewise, some of the predictive judgments – for example, the significance of the contribution limits part of the campaign finance case – are likely to prove accurate. Moreover, the important debate over the proper role of the federal courts with respect to democratic governance, so ably represented in the diverse perspectives of our participants, is sure to continue long after these cases are decided. As we await the Court’s decisions, we can be assured that the future of this field will remain interesting, in both the near term and longer term, and we will want to continue following the scholarship of these four distinguished contributors as they endeavor to illuminate the legal issues that affect the operation of our democracy.

If last week’s oral arguments are any indication, the Vermont and Texas election cases are unlikely to produce major pronouncements on either campaign finance or redistricting. The most probable outcome of the Vermont case is an invocation of precedent to invalidate the state’s spending and contribution limits. While the result of the Texas case is more uncertain, the best guess is that a majority of Justices will vote to void the removal of approximately 100,000 Latino residents from Rep. Henry Bonilla’s old district (District 23), but that they won’t reject the state’s new districting plan on the ground that it was an impermissible mid-decade partisan gerrymander.

Many may applaud such modest steps as a sign that the Court is moderate and circumspect in its approach to election cases. But would that assessment be accurate? An appearance that the Court is sticking with the status quo may say more about the particular circumstances of these two cases than it does about the Justices’ own views on election issues.

Let’s assume that the Court says that invalidation of Vermont’s contribution limits is consistent with the standard set forth in Nixon v. Shrink Missouri PAC, the case that said that contribution limits must be upheld unless they render campaigning futile. Such a ruling does not necessarily mean that the Court is adhering to the Shrink Missouri precedent. Rather, it means only that the Court need not abandon that precedent in this case in order to reject Vermont’s especially stringent contribution limits. The same Justices might well be prepared to jettison the Shrink Missouri standard if more generous contribution limits were tested in another case.

Let’s assume also that the Court says that mid-decade redistricting plans are subject to the same constitutional analysis as conventional decennial plans and that plaintiffs’ challenge to the 2003 Texas plan must fail because they alleged only that the plan was motivated by partisan purposes without offering any test to measure whether the plan’s effect was to create an excessive partisan gerrymander. This ruling would not necessarily mean that in a future case a majority of Justices, including Justice Kennedy, will embrace a substantive standard that enables plaintiffs to contest excessive partisanship. Nor would it mean the Court, including Kennedy, will necessarily reject all such substantive challenges as “nonjusticiable.” Rather, it means only that if and when the right case comes along, perhaps after the round of redistricting that follows the 2010 census, Justice Kennedy may then choose to join four colleagues in ruling decisively one way or the other on the constitutionality of partisan gerrymanders.

These possibilities suggest that election law is presently unstable and will remain so after the decisions rendered in the Vermont and Texas cases.

The situation could become even more dynamic after the 2008 elections, in light of their potential effect on the future of election law. If Justices Stevens and Ginsburg retire during the term of the new president inaugurated in 2009, and they are replaced by Justices who align themselves with Scalia and Thomas in election cases, as Roberts and Alito apparently will, then Kennedy will no longer operate as a swing vote in these cases. Instead, the possibility arises that there would be a decisive six-member majority prepared to repudiate whatever moderate positions Justice Kennedy might have preferred.

Thus, the true significance of the Vermont and Texas cases will probably unfold only after the 2008 election and the new Supreme Court nominees expected to follow thereafter. “We’ve heard this before,” some might say. The replacement of Rehnquist and O’Connor with Roberts and Alito was predicted to cause a profound shift in election cases, among other areas of constitutional law. “But now you say that these two substitutions, which still leave Kennedy at the center of the Court, merely cause incremental rather than sweeping changes. This is a bit like the boy who cried wolf.”

Whatever the future effect of replacing Stevens and Ginsburg may be, in comparison with the effect of replacing Rehnquist and Alito, one truth remains undeniable: the content of America’s election law depends on the identity of the particular individuals who sit on the Supreme Court. Different Justices view these election cases differently, and thus the outcome depends upon whether we have more Justices of one kind or another.

Thus, if it turns out that this year’s decisions in the Vermont and Texas cases don’t change the law very much, that scenario probably shouldn’t be seen as an impressive victory for the status quo. Instead, they may mean simply that the current Justices are waiting for other cases, with different sets of facts, before striking off in a new direction that they are prepared to take. Or it may mean that the significance of these decisions will be superseded once some more new Justices arrive in the not-too-distant future.

Either way, the deep uncertainty that currently pervades the constitutional law of elections is likely to persist after the Court issues its decisions in these two prominent cases.

A Guide to the District-Specific Claims in the Texas Oral Argument

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As previously noted, a majority of the Supreme Court seems uninterested in the statewide attack on the 2003 plan as an unconstitutional partisan gerrymander, and the focus of the argument turned to district-specific claims under the Voting Rights Act and the Equal Protection Clause, including the Shaw v. Reno line of racial gerrymandering cases. Consequently, it is worth trying to sort through the issues concerning each of these districts and hazard a guess as to where the Court might be with respect to each.

District 23

This is the district represented by Congressman Henry Bonilla, where, to protect his incumbency, the State’s new plan removed approximately 100,000 Latinos from the district, reducing the percentage of voting-age Latino residents from 63% to 51% (and the percentage of voting-age Latino citizens from 57% to 46%).

It is important to distinguish between two different claims raised with respect to this diminishment of Latino strength in District 23. The first is an effects-based vote dilution claim under section 2 of the Voting Rights Act using the traditional Gingles analysis. The second is an intent-based vote dilution claim under either the Equal Protection Clause or the Voting Rights Act (although Texas argues in its brief that, after the 1982 amendments to the VRA, only an effects-based challenge may be brought under the statute, see p. 118 n.118).

This distinction between an effects-based versus an intent-based claim to District 23 is important in part because it is the latter that seemed to interest Justice Kennedy, and it might serve as the basis for his joining four other members of the Court to invalidate this district. He clearly was disturbed by the intentional removal of Latino voters from this district-he called it an “affront”-just as he was disturbed by the intentional inclusion of Latino voters in District 25 (see below).

But he did not appear to analyze this problem in effects-based Gingles terms, and thus it is possible that a majority of Justices might vote to invalidate this district without agreeing upon the rationale for doing so. While five votes may be lacking for an effects-based challenge to District 23 under section 2 of the VRA (as I indicated in my initial post), there may well be five votes for some combination of intent- and effects-based challenges to this district under the Equal Protection Clause and the VRA.

Other Justices seemed interested in the intent versus effect distinction. Early on in Nina Perales’s argument, Justice Stevens asked whether intent was relevant to a section 2 claim under the VRA. Ms. Perales responded by saying that her argument focused primarily on the Equal Protection Clause and was based on intent. While perhaps not the answer Justice Stevens wanted to hear, it might have been a strategically wise move to pick up Justice Kennedy’s crucial vote.

There was much discussion on whether the State’s decision to move the approximately 100,000 Latino residents out of District 23 was based on race or politics. Questioning Ms. Perales, Justice Scalia anticipated the State’s argument that the motive was incumbency protection and an effort to remove Democratic voters from the district who happened to be Latino. Justice Kennedy himself echoed Justice Scalia’s concern that there could not be an Equal Protection violation if, hypothetically, the State was moving these voters based on an assumption that they were Democratic voters (even if that assumption was mistaken). The factual dispute of whether the drawing of District 23 was or was not motivated by race was enough to cause some Justices apparently to prefer the purely effects-based consideration of the Gingles criteria.

Moreover, in an effort to pin down Ms. Perales’s position on this issue of motive, Justice Kennedy asked whether she was challenging as “clearly erroneous” the district court’s finding that the motive was politics, not race. Yes, she answered, adding that this case is the flip of Easley v. Cromartie, where a 5-to-4 majority (not including Kennedy) held that the district court there had been clearly erroneous in finding the districting motive to be race rather than politics. (This point in her oral argument seemed a bit in tension with her position in her reply brief, where she disclaimed reliance on the Shaw v. Reno line of cases, which includes Easley v. Cromartie, as the test for determining whether a dilution of minority voting strength is intentional.)

Justice Kennedy also asked Ms. Perales why, in her view, it was impermissible to engage in race-based districting in order to protect incumbents, but not impermissible-indeed required-to engage in race-based districting in order to create minority-opportunity districts. Her response, which she also repeated at the end of her argument in response to a similar question from Justice Scalia, was that compliance with the remedial goals of the VRA was a compelling interest, whereas protecting incumbents was not.

Pursuing the intent versus effect distinction, Justice Souter also asked whether Ms. Perales was basing her attack on the Equal Protection Clause or section 2 of the VRA. Again, she responded by invoking the Equal Protection Clause, saying that the removal of Latinos from the district was invidious-and hence unconstitutional-discrimination.

Chief Justice Roberts, for one, was evidently unsympathetic with an effects-based challenge to District 23 under section 2. Focusing on the fact that the State reduced the Latino voting-age population from 63% to 51%, he repeatedly asked Ms. Perales where to draw the line between enough and insufficient. She never provided a number, even though the Chief clearly wanted one. She tried to explain why she couldn’t, but he did not appear satisfied.

Nor did the Chief seemed any more inclined to accept Ms. Perales’s separate intent-based Equal Protection challenge to District 23. If Latino voters were sufficiently cohesive to form a voting bloc to support an effects-based Gingles claim, as her brief had asserted, then wouldn’t this political reality undermine her Equal Protection argument that their removal from the district was based on race rather than politics? It was on this point that Chief Justice Roberts twice said that her arguments were at cross-purposes.

But Ms. Perales won’t need the Chief’s vote if she can pull together a five-member coalition that includes Justice Kennedy along with Justices Stevens, Souter, Ginsburg, and Breyer, whether or not they all embrace the same reasoning for invalidating District 23.

District 24

This district was the one in the Dallas / Fort Worth area represented by Congressman Martin Frost, where African-Americans constituted 23% of the population, Latinos 38% and Anglos 35% (the remaining 4% being mostly Asian). This district was fragmented in the 2003 plan, and the plaintiffs-represented at oral argument by Paul Smith on this issue-argued that the fragmentation was an effects-based violation of the Voting Rights Act because it eliminated the controlling influence that the African-Americans had over the choice of the Democratic nominee and thus the eventual winning candidate in the district.

This particular VRA claim seemed to fall on deaf ears at the oral argument.

But a separate basis for challenging District 24 emerged at the oral argument, based on a suggestion from Justice Stevens. Observing that the districts that replaced District 24 were less compact-a point which the Texas Solicitor General appeared to concede-Justice Stevens asked whether this deterioration of compactness undertaken solely for partisan reasons could give rise to a district-specific claim of unconstitutional gerrymandering.

When it looked like Justice Kennedy might jump on this bandwagon, Justice Scalia quickly intervened in an apparent effort to stop this from happening. Justice Kennedy persisted in showing interest in this possibility, but he did not commit himself.

If adopted, it would be a different kind of “non-retrogression” principle than the one existing under section 5 of the Voting Rights Act. Rather than looking to see whether there had been a retrogression in terms of minority voting power, this inquiry would examine whether there had been a retrogression in terms of traditional geography-based districting factors. If so, such slippage would need to be justified by neutral, non-partisan objectives.

It would be intriguing to consider what implications this proposal would have to the eventual redistricting after 2010. Seemingly suggested by Justice Stevens as a modest alternative to the substantive standards for evaluating partisan gerrymandering claims that were considered-and rejected-by Justice Kennedy in Vieth, this new non-retrogression idea if adopted might actually operate in practice to preclude any consideration of partisan motives (unless the new maps were at least as geographically sound as the old ones).

District 25

This new district is the one that extends from the Mexican border up to Austin, connecting two different groups of Latinos at the northern and southern ends of the district. Challenged by Paul Smith’s clients as a race-based gerrymander under the Shaw v. Reno line of cases, this district was of evident concern to Justice Kennedy.

Several Justices, including Chief Justice Roberts and Justice Scalia, probed whether District 25 could be explained as politically rather than racially motivated, as Texas was urging. These Justices also inquired, again anticipating Texas’s position, whether the Shaw-based inquiry into motive was dependent on a district’s having a relatively contorted shape. Mr. Smith seemed to suggest that compactness would protect a district from a Shaw violation (presumably because a compact racially drawn district would conform to the goals, if not the demands, of the VRA’s section 2). But some of the Justices, including the Chief, seemed to resist this suggestion.

In the end, it remains unclear whether any of the Justices other than Kennedy would be inclined to find a Shaw violation in District 25.

There is, however, another theory for potentially invalidating District 25. It is the same geography-based non-retrogression principle that Justice Stevens floated with respect to District 24. Justice Stevens observed that the new District 25 was also less compact than its predecessor, and again a political motivation would not justify this backsliding on traditional geographical criteria.

A District-Based Reversal of the Trial Court’s Judgment?

Thus, it is possible that all three of these specific districts-23, 24, and 25-could be invalidated on Equal Protection grounds, without invalidating the 2003 map as a whole.

Presumably, the Court will take a separate vote on each of these districts and, unless there are five votes to invalidate a particular district, will affirm the trial court’s judgment as to that district. It is perhaps conceivable, however, that the Court will take a single vote whether to affirm or vacate the trial court’s decision as a whole, with some justices voting to vacate because of a perceived defect in one district, while other justices voting to vacate because of perceived defects in another.

Under this latter scenario, although there would be at least five votes to vacate, there wouldn’t necessarily be five votes in disagreement with the trial court as to any particular district. In this situation, it would be difficult for the trial court to know what to do on remand. That problem is reason enough for the Court to avoid this possibility.

But even announcing a judgment, or set of judgments, from the Court in these consolidated cases may prove tricky.

Politics and Race a Messy Mix in Argument on Texas Case

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Here’s a quick effort to summarize the main impressions of this afternoon’s two-hour argument. More details will follow:

  1. There was not much interest on the Court to invalidate mid-decade redistricting categorically, or even create a presumption against it. Justice Kennedy in particular seemed to think that the threat of mid-decade redistricting might be a salutary constraint on the temptations of decennial gerrymandering.
  2. Justice Kennedy, at one point late in the argument when questioning the Texas Solicitor General, seemed to indicate that he still hopes that there will be a substantive standard for invalidating excessive gerrymandering, whether of the decennial or mid-decade variety. But it seems doubtful that there will be a cohesive effort on the part of a majority of the Court to adopt such a general standard, or that the 2003 Texas map would be held to violate it.
  3. Justices Breyer and Stevens asked questions based on their own very different substantive standards articulated in their separate Vieth dissents. At one point, it seemed like they might try to join forces on the notion that a state cannot draw a less compact district than in a previous plan if the only reason to do so was pure partisanship. But it was unclear whether Justice Kennedy would embrace such a standard.
  4. Several Justices, including Chief Justice Roberts, Justice Kennedy, and perhaps even Justice Souter, seemed sympathetic to Texas’s argument that mid-decade redistricting would be permissible in order to remediate an excessive gerrymander in a previous plan. These Justices, as well as others, seemed particularly unsympathetic to the plaintiffs’ contention that Texas Republicans should be required to wait until the next decennial census in order to correct a previously improper gerrymander by the Democrats.
  5. Consequently, it seems as if this case won’t make very much new law on the issue that’s attracted the most attention: partisan gerrymandering under the Equal Protection Clause. We can look for a decision that rejects that particular challenge to this specific mid-decade plan, without a general ruling protecting all mid-decade plans or indeed all decennial plans from constitutional challenges on the grounds of excessive partisanship.
  6. Much of the focus of today’s argument, instead, was on narrower issues that have attracted less public attention: (1) whether a couple of districts in the 2003 plan violate the Voting Rights Act because they dilute minority voting power; and (2) whether one particular district constitutes an improper racial gerrymander under the Shaw v. Reno line of cases.
  7. Justice Kennedy, in particular, focused intensively on the Shaw issue, at several points indicating that he thought District 25 involved an inappropriate use of race. But it was unclear whether he would get support from any other Justice on this issue. The four liberals on the Court don’t favor Shaw claims, and the other four Justices didn’t indicate much interest in this issue. The Texas SG directly responded to Justice Kennedy’s concern by pointing to factual findings in the record that District 25 was drawn for political not racial reasons. He also noted that District 25 was not particularly contorted in shape compared to previous racial gerrymanders invalidated under Shaw. Those points seemed to satisfy Justice Scalia and perhaps other conservatives on the Court. It was unclear whether these points ultimately would satisfy Justice Kennedy on this issue, but he was listening intently to this argument (as he was to all the presentations this afternoon).
  8. The relationship of race and politics as motivations for districting decisions, whether on a regional or district-specific level, dominated much of the Justices’ concerns and led to some confusing exchanges. Chief Justice Roberts suggested to both Paul Smith and Nina Perales, the two lawyers representing different sets of plaintiffs challenging the map in different ways, that their arguments were at “cross purposes” with each other. When Mr. Smith said that pure partisanship was the sole motive of the 2003 map, Chief Justice Roberts asked him how he could make a Shaw claim, which requires that race be a predominant motive in drawing a district lines. And the Chief Justice suggested that Ms. Perales was inconsistently arguing both that race was too much of a factor in one respect and too little of a factor in another.
  9. The Chief Justice was well aware that the relationship between the Voting Rights Act and the Equal Protection Clause created a tension between excessive and insufficient consideration of race, and the opinions in this case may cause the Justice to address that tension, on the eve of congressional consideration of the Act’s renewal. One need not anticipate a broad ruling from the Court on this point, but whatever the Court says – if indeed there will be a majority opinion in this complicated multi-issue case – will be important.
  10. Justice Alito asked only one question. Directed at Ms. Perales, it was whether incumbency was an impermissible consideration under the Equal Protection Clause. She answered, no, but that the real motivation of the particular districting in question was race, not incumbency. Again, as in much of the rest of the argument, the issue was which of the two motives was really controlling the districting decisions.
  11. Although several Justices seemed sympathetic to the plaintiffs’ Voting Rights Act claims in the case-most notably Justice Stevens-it was hard to see five votes to sustain any of these claims.
  12. The most active questioners were Chief Justice Roberts, Justices Stevens, Scalia, Kennedy, Souter, and Breyer (in order of seniority, not number of questions; it seemed fairly evenly balanced among them). Justice Ginsburg was noticeably reticent. Justice Thomas, as usual, did not ask any questions.
  13. One impression, particular after watching both yesterday’s Vermont case and the one today, is that Justice Breyer and Souter are looking for ways to find common ground with their more conservative colleagues. In other words, today like yesterday, there were voicing the possibility that the so-called “liberal” position in the case might lose, but on narrow grounds, leaving open the possibility of a different result in future cases. It seems that strategy might work here, since Justice Kennedy today seemed to be voicing a similar thought.
  14. It would be very interesting to observe the Justices’ own conference on how to decide the case. Will they take up the various issues (and indeed different docketed appeals) separately? Who will control the assignment(s) in the case(s) and how will they be made? Will Chief Justice Roberts find 5 votes to control the assignment-on all issues, or some? Will Justice Stevens? Or will Justice Kennedy, straddling the Court, be able to assign the cases to himself?
  15. The argument may be over, and the Justices worked impressively hard to prepare for it (digging deep into the geography and political culture of Texas), but much more work at the Court remains to be done.

Fooling the Court

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By Bradley A. Smith
Professor of Law
Capital University School of Law

The two cases we’ve been discussing this week share, in my mind, a defining characteristic: each involves attempts to fool the Court about what is going on. I don’t see either succeeding.

Let’s start with the Texas redistricting case. The major claim is one of partisan gerrymandering. For reasons other participants have discussed, I think this claim is unlikely to go anywhere. I still doubt that the Court can create a workable standard for deciding the issue, so I think it unlikely to strike the Texas plan on that ground. Even if Justice Kennedy decides to side with the Court’s liberals and find the issue justiciable, the probable result is a retreat to a Bandemer-like ruling, with a difficult evidentiary standard that is unlikely to be met on the facts – the Texas gerrymander just isn’t that bad. And the claim that it is unconstitutional because it is mid-decade, with three year old census data, has always struck me as a non-starter. There’s just nothing plainly in the Constitution that would suggest a constitutional issue there, so one has to stretch equal protection and the one person/one vote cases to get there. And in the end, I’ve seen no analysis to suggest that population distortions are any different than what one normally gets as a redistricting plan gets older. That is to say, the 2003 Texas plan was no more out of date, population wise, than a 2001 plan would have been. This makes it hard to see the equal protection violation. Maybe I’m spectacularly wrong here. We’ll see.

The other claims are race based – one that the redistricting violates the Voting Rights Act, the other that it is a “racial gerrymander” in violation of equal protection. I don’t think the Court will fall for either argument. In a purely technical reading of the statute and precedent, the Voting Rights claim may have some merit (because no intent is required), but here’s the fact: nobody really thinks race was at issue in this redistricting, no matter what plaintiffs’ attorney Perales said to the Court. I think, therefore, the Court will be reluctant to use this case to make any new law in this area. Again, I may be spectacularly wrong, but I don’t see much new coming out of this case.

Turning to Randall, the Vermont campaign finance case, the problem is a bit different. The State and its allies have made much of the voluminous factual record compiled to “prove” corruption. And that record could be a problem for the plaintiffs, as reviewing courts properly defer to such a record. In this case, however, that record is a fraud.

Virtually all of the evidence of “corruption” consists of opinions from lawmakers who supported the bill that they, and their colleagues, are corrupted by contributions. But none of those lawmakers have resigned their positions; none have pointed to any specific acts of “corruption,” and all those who have continued to hold and campaign for public office, we can be sure, have and will continue to vociferously deny that they are corrupt or failing in their duties to represent their constituents effectively. Chief Justice Roberts bore straight in on this issue, forcing Vermont ‘s Attorney General to admit that he had not prosecuted any politician for corruption. And as Bob Bauer has noted at More Soft Money Hard Law, Vermont seems to be a pretty well governed state. Most of the rest of the state’s “factual” evidence consists of public opinion polls, not actual facts about corruption. (Don’t get me started on the polls themselves).

But if Chief Justice Roberts was onto the state on the corruption issue, the other part of the state’s fraudulent record went unexposed on Tuesday. The State’s second argument, after the corruption issue, is that spending limits are needed because otherwise too much time is spent raising money for campaigns. The record in the case, however, shows that the average cost of running for state legislature or state Senate in Vermont is in the vicinity of $4000. Vermont ‘s representatives are part-time, earning about $8000 for their legislative service in a typical year. Thus, a typical representative, who presumably has other income off which to live, could finance his campaign and never spend a moment fundraising by saving about one-quarter of his gross legislative salary, and not touching his savings or other income. The truth is, most Vermont legislators could readily spend less time fund-raising than they spend brushing their teeth. It’s a question of will and priorities, not time. It is hard to see this claim, on these facts, passing even a rational basis test – if the Court connects the dots.

A final word on Vermont . Both Professors Foley and Hasen have suggested that the Court should respect precedent. And I agree that precedent should be respected. But doing so is not always so easy or obvious. For example, in Nixon v. Shrink Missouri Government PAC and McConnell v. FEC, the Court purported to follow the precedent of Buckley. But in reality it did not. As Prof. Lillian BeVier and dissenting judges on the Court have noted, in Nixon the Court Majority appears to have relaxed the level of scrutiny given to contribution limits, even while expressing feality to Buckley . This is even more obvious in McConnell, which also purports to follow Buckley: but as BeVier puts it, and even most reformers admit, the Buckley described in McConnell is, “not your father’s Buckley.”

What does this mean? It means, I suspect, that whatever the Court decides in Randall, short of finding all contribution limits – not just Vermont’s – unconstitutional, it will justify as adhering to the precedents of Buckley, Nixon, and McConnell.

That will give outraged law professors plenty of fodder for publication.

Brad Smith replies to Rick Pildes

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By Bradley A. Smith
Professor of Law
Capital University School of Law

Rick Pildes directs three worthy questions to me based on Randall v. Sorrell, to wit:

Is it your view . that regulation of contributions necessarily does make incumbents more invulnerable? Regulation of spending? If this is not inherently the case, then how would you have courts judge, case by case, when regulations are anti-competitive and when not?

It is not my view that all systems regulating contributions, spending, or some combination of each work, at all times, in all races, to make incumbents more invulnerable. I do think that more often than not, however, regulatory systems will tend to favor incumbents.

There is a tendency to state the incumbency protection problem too crudely. I think that Justices Scalia and Kennedy do that in McConnell v. FEC, and I’m sure I have done it myself. It is true, as Justice Scalia noted (drawing heavily off the brief of the National Rifle Association), that the legislative record was replete with comments by officeholders that seemed to indicate a strong preference for a law limiting criticism of their performance. Further, Justice Scalia made a strong case for the pro-incumbent effects of BCRA. Nevertheless, I think it a very rare thing that incumbents sit and consciously decide to support campaign finance regulation because it will be favorable to them. Rather, I think the larger problem is that incumbents tend to underestimate the detrimental effect of some provisions on challengers, and overstate the detrimental effects that some proposals have on incumbents. This result comes naturally from their incumbent’s perspective. It is no secret, I think, that John McCain was one of the biggest winners under the campaign finance regime established by McCain-Feingold, and one need not attribute some recognizable, self-serving motivation to him to reach that conclusion.

Furthermore, over time regulatory systems will tend to ossify so long as they benefit incumbents. When the system is seen as less beneficial to incumbents, the legislature will be more likely to act – again, not from conscious motivation so much as an understanding shaped by their personal situations. Thus the long-term ratchet will usually work in favor of incumbents.

For these reasons, I would not have courts judge, case by case, whether or not regulations are anti-competitive. Rather, I believe that the general tendency toward incumbency bias is the type of reason – even if not one specifically identified at the time – that led to the passage of the First Amendment. Thus, it is one reason among many why I believe that the First Amendment, properly understood, prohibits limits on contributions, or at a minimum demands that they be subjected to strict scrutiny. In the strict scrutiny regime, the Court need not attempt to determine the effect of any law on competition – a pro-incumbent law might pass scrutiny if the interest were real enough – but it would more closely examine the stated rationale for the regulation, and whether it can be achieved by a less restrictive means. It seems to me that neither the spending nor the contribution limits enacted by Vermont pass the strict scrutiny test. I need to say a bit more in this dialogue about the Texas redistricting, but I hope to get back to Vermont, and explain why I consider the record in the case to be little short of a fraud on the court, before the week is out.

Political Competition, Redistricting, and the Texas Case

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By Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law

In my first post, I argued that competitive elections are essential to healthy and legitimate democracies. In the second, I discussed the way this issue affects campaign finance laws, both as a matter of policy and in constitutional cases like that before the Supreme Court today. In this post, I discuss how the issue of competitive elections should shape the Supreme Court’s approach to the Texas case on legislative districting. Although Brad Smith and I disagree about many issues, I believe we agree on the centrality of robust political competition – and on the risk that the partisans currently in office will seek to use law to minimize effective challenges to them. But I find it difficult to decipher exactly what Rick Hasen and Dan Lowenstein think about this basic issue. Perhaps it will help if we first sort out issues of democracy from issues of constitutional law.

Let’s start with democracy. Consider this brazen admission by one incumbent regarding the designing of congressional districts today, which illustrates how redistricting today is used to protect incumbents and their allies. This is a statement by Rep. Loretta Sanchez, about the process in California , in which she describes the role of redistricting czar Michael Berman, the leading consultant to the controlling Democratic Party in drawing the new district lines there for the most recent congressional redistricting:

So Rep. Loretta Sanchez of Santa Ana said she and the rest of the Democratic congressional delegation went to Berman and made their own deal. Thirty of the 32 Democratic incumbents have paid Berman $20,000 each, she said, for an “incumbent-protection plan.” “Twenty thousand is nothing to keep your seat,” Sanchez said. “I spend $2 million (campaigning) every election. If my colleagues are smart, they’ll pay their $20,000, and Michael will draw the district they can win in. Those who have refused to pay? God help them. [1]

That this is how the process works is bad enough. That it is considered so “normal” a member of Congress can brag about it in the local newspaper without shame or sanction suggests a truly pathological system. Can Dan and Rick possibly disagree with that? Should we blithely ignore this?

Insider self-dealing like this is part of the reason that i n California, Rep. Sanchez’s state, every incumbent won by a landslide i n the 2002 congressional general election, right after redistricting; no challenger could muster more than 40% of the vote. And at least in this respect, California is not eccentric, but typical of the rest of the country. Here’s one bottom-line fact, since I don’t want to bore readers with too much detail: The post-redistricting elections in 2002 were the least competitive in American history. Challengers defeated only four incumbents. Gary C. Jacobson, Terror, Terrain, and Turnout: Explaining the 2002 Midterm Elections, 118 Pol. Sci. Q. 1, 10-11 (2003). If this situation has resulted to any extent from insiders manipulating the groundrules of democracy to give themselves secure sinecures – whether through the rules on how elections are financed, districts are drawn, or anything else – is that not a serious threat to democracy? I believe that it is, just as I believe economic firms that collude to destroy competition are rightly held to violate the antitrust laws.

I agree with Dan that we should not fetishize competition or any other single means or ends of democracy. Democratic institutions are designed to realize many diverse values: to ensure “fair” representation; to encourage citizen participation; to guard against majoritarian exploitation of minorities; to increase the likelihood of policies responsive to the interests of citizens; to hold officeholders accountable to citizens. Competitive elections are necessary to realize some of these values, but competitive elections are not the only means or end of value in democracy. Democracy involves an ongoing effort to preserve, accommodate, and make the appropriate tradeoffs between values like fair representation, accountability, effective policymaking, and the like.

But the problems we focus on at any particular time – by “we”, I mean citizens, academics, judges, and legal doctrine, including constitutional doctrine – reflect that time. I have never said that competition is the only value that matters to democracy. I have never said that competition should trump all other democratic values. But what I have insisted on is that robust political competition is an important, indeed essential, element in any well-functioning democratic system. And I have also insisted that an acute problem in American democracy today is that competitive elections are rapidly disappearing in districted elections, in part because incumbents are systematically, intentionally, creating self-designed “designer districts” to allow themselves and their political allies to hold power without meaningful electoral checks to keep them accountable. Given that this is a serious problem today – just as gross malapportionment was a problem in the 1960s – it’s a problem that we ought to focus on. Again, I wonder whether others in this discussion would at least agree to that.

So much for democracy. Now a brief word about constitutional law. Does the Constitution impose any barriers to politically self-interested manipulation of American elections? Should the Supreme Court enforce any barriers of this sort? Let me first put to the side some of the exaggerations in the “parade of horribles” Rick Hasen raises about this prospect. First, anytime the Court applies voting rights in the election context, one could raise all the same doomsday scenarios Hasen concocts. “If the Court holds the right to vote to be a fundamental constitutional right, then the Court will have the power in every election in the United States to take over the running of elections.” “If the Court holds that the Constitution protects minorities against vote dilution, then the Court will have the power to decide whether every election district in the country is ‘fair’ to minorities.” Etc. The task of judges, lawyers, and legal scholars is not, however, to be Chicken Littles; it is to determine, with far more precision, how to craft and apply constitutional principles to address serious constitutional harms in an appropriately targeted and limited way. Indeed, every point Hasen makes against the Supreme Court holding Texas’s plan unconstitutional was made in the 1940s against the Supreme Court doing anything about grossly unequal election districts; against the one-vote one-person doctrine, in the 1960s, and against the Court holding unconstitutional minority vote dilution, in the 1980s and 1990s. Hasen’s arguments were made by Justice Frankfurter in the 1940s, Justice Harlan in the 1960s, and Justice Thomas today. The Court rejected these arguments when it held that one-vote, one-person was constitutionally required and when it held that the Constitution is violated when districts are intentionally designed to dilute minority voting power. The Court rejected Hasen’s “parade of horribles” many decades ago; I see nothing in Hasen’s approach that would justify the Court in having endorsed one-vote, one-person or in having protected minorities against vote dilution. I don’t think Hasen actually opposes one-vote, one-person, or fair minority representation, but apart from railing against the Court doing anything about gerrymandering today, he offers no credible account at all of why those earlier Court actions were right – and if they were, why gerrymandering today, in its extreme forms, should not, for the same or similar reasons, be unconstitutional.

I have offered the Court a simple bright-line rule appropriate for the Texas case. In an amici curiae brief in the Texas case, filed on behalf of myself, Sam Issacharoff, and Burt Neuborne, we argue that the Constitution should be understood to impose a per se bar to mid-decade redistricting (which is what is at issue in the Texas case), absent a judicial order requiring a legislature to do so or extraordinary circumstances that create a compelling need, such as the massive population movements associated with events like Hurricane Katrina. That rule raises no parade of horribles of any sort; it is easily administered, it does not require courts to judge every district in every districting plan in the country. And it will forestall a cycle of retaliatory mid-decade redistrictings across the states. Such a rule also does not require the Court to decide whether today’s Republican gerrymander of Texas is worse or better than the Democratic gerrymander of a decade ago. The Constitution contemplates a Census and new allocation of seats to the states once a decade. State legislatures should similarly be limited to redistricting once a decade, when it serves the purpose of complying with new Census information and a new congressional apportionment of seats to the states.

I have always considered it one of the great virtues of law, including constitutional law, that doctrine often turns on nuanced, intermediate positions – unlike ideological debate and much public discourse, which gets organized around caricatured “parade of horribles” arguments and extreme, polar positions. Courts decide cases one by one, in terms of the specific issues in front of them. The Court can hold mid-decade redistricting unconstitutional without implicating any of Rick Hasen’s concerns, which I find largely irrelevant to the Texas case itself. Doing so would only be one small blow against legislative manipulation of democracy for self-interested reasons. But anyone seriously concerned about legislators buying and selling safe seats for themselves and their allies should welcome such a blow.

1. H. Quach & D. Bunis, All Bow to Redistrict Architect, Orange County Register, Aug. 26, 2001 , at A1.

Further Thoughts on the Vermont Oral Argument

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You have to give the Court credit: the Justices were extremely well prepared for today’s argument in the campaign finance case. They clearly had studied the record, which is extensive. They often referred specifically to different aspects of the district court and court of appeals rulings, and they cited amicus briefs as well as those submitted by the parties.

Strict Scrutiny of the State’s Submissions

In fact, the Attorney General of Vermont perhaps wishes Chief Justice Roberts hadn’t read his brief so closely. It was clearly an awkward moment when the Chief called the AG to task for writing, on page 13 of his brief, that campaign contributions often “determine what position candidates and officials take on issues.” Because the use of the verb “determine,” rather than the weaker word “influence,” carries with it an accusation of quid pro quo corruption, the Chief Justice wanted to make sure that the Attorney General intended this serious accusation.

When the Attorney General waffled a bit on this point, the Chief pressed further, leading to yet another awkward moment. How many prosecutions for political corruption have you brought?, the Chief asked the state’s leading law enforcement officer. When the answer was none, the Chief then asked how could the AG think that political corruption was a serious problem, enough to restrictions on speech.

Vermont ‘s AG wasn’t the only lawyer who waffled a bit. James Bopp, representing the opponents of the campaign finance law, gave a couple of different-and inconsistent-answers when asked by Justices Stevens, Souter, and Ginsburg whether he thought any record could ever support a campaign spending limit. At first, he seemed to say that he thought that, in a different case, a stronger record might support a spending limit, but then backed away from that apparent concession, saying that he couldn’t imagine a circumstance in which a spending limit would be justified.

This kind of slipping-and-sliding can frustrate the Justices-they are particularly adept at probing the weak spots of any advocate’s armor-and moot courts are designed to avoid such inconsistencies. But it’s doubtful that Mr. Bopp’s missteps will cause him any damage. It seems as if a majority of Justices are unwilling to leave the door open to spending limits on candidates, even if in an unguarded moment Mr. Bopp might have been.

In fact, at a couple of points during Mr. Bopp’s argument, the questions from Justices Scalia and Kennedy appeared to be designed to help him with his argument. Justice Scalia quipped that trying to defend Vermont’s spending limit based on the rationale of protecting a candidate’s time, when Vermont simultaneously has such stringent contribution limits, is like a murderer complaining that he’s an orphan. Justice Kennedy said he was prepared to accept as a “common sense” proposition that money buys access-even privileged access-but what follows from this premise? After Mr. Bopp missed this softball pitch, Justice Kennedy said something to the effect of, I would have thought your answer would have been it’s up to the voters to throw the bums out of office.

Later, Justice Kennedy came back to this same theme: even if it is proven at criminal trials that several members of the legislature traded votes for campaign cash, do those facts justify strict spending limits? His question seemed to suggest that the correct answer should be no; just because contributions cause problems, it is not enough to infringe upon First Amendment rights. Although the name Jack Abramoff was never mentioned at today’s arguments, one had the impression that Justice Kennedy was searching for a First Amendment basis to invalidate campaign finance rules in a post-Abramoff world.

The Proverbial “Devil in the Details”

If the Court invalidates Vermont ‘s contribution limits, that decision is not likely to be unanimous. Justice Ginsburg at least, as probably Justices Stevens and Souter as well, seemed inclined to support the district court’s factual finding that it is possible to conduct competitive campaigns even under Vermont ‘s strict contribution limits. Justice Ginsburg made reference to the Burlington mayor’s race, which the trial court had relied upon to support its factual finding, and she asked Mr. Bopp on what basis that finding should be overruled. When he said that the trial court was erroneous, and that the Supreme Court must exercise independent judgment of the facts because of the First Amendment rights involved (a requirement known as the Bose doctrine to First Amendment litigators), Justice Ginsburg asked Mr. Bopp to point to a specific place in the record to demonstrate the trial court’s error. At first, Mr. Bopp said he couldn’t point to any specific location in the record, but then he mentioned the testimony of six witnesses he said supported his position. One guesses that this exchange did not help avoid a dissenting opinion on this factual point.

The Vermont Attorney General also struggled with the factual record. Justice Scalia repeatedly pointed out that the district court relied on evidence of average expenditures in all races, not expenditures in competitive races, which is where “the shoe pinches,” as Justice Scalia put it. The AG tried to shake off this fact, but Justice Scalia persisted, with the AG having to admit the point and move on.

There were other details to the Vermont law over which the AG stumbled. One concerned the burden that the law imposes on candidates to overcome a presumption that spending by their supporters was coordinated and therefore countable as contributions. The AG tried to make this burden minimal, saying that it would be enough for a candidate to file an affidavit swearing to the independence of the spending. But on rebuttal Mr. Bopp effectively quoted the Vermont law itself to say the spending was “prima facie” evidence of coordination, which suggested a heavier burden required by candidates to rebut it. Even Justice Souter, the AG’s natural ally, had trouble with the state’s position on this issue.

A majority of Justices were also clearly very troubled by the law’s specific limitation on contributions by parties. Justice Breyer, for one, asked why the Democratic and Republican parties should not be permitted to pool $10 contributions from party loyalists to support whichever candidates the parties thought most likely to be effective to their overall statewide causes. He indicated that he thought the inability of parties to support new challengers in this way was at least one indication that the law was too favorable to the interests of incumbents.

Another aspect of the law that concerned Justice Breyer and others was the fact that Vermont ‘s limits apply per cycle, not per election, meaning that that they apply both to primary races and the general election. This fact cuts the limits effectively in half, and again makes it particularly difficult for challengers to mount effective campaigns against incumbents. When asked by Justice Souter whether the evidence in the record on the ability of candidates to mount effective campaigns included evidence specifically on the ability to be effective in a cycle that involves both a competitive primary and competitive general election, the Attorney General could not point to anything specifically.

Thus, the Vermont law is clearly vulnerable in several specific respects, without regard to the general principles involved.

The public should appreciate that the Justices are attentive to the details of the statutory scheme, even if it makes it difficult for non-specialists to grasp all aspects of the case. This focus on details suggests that the Court is less likely to issue a sweeping ruling, one which would preclude all state and local efforts to tackle the issue of campaign finance. Instead, the Court is more likely to be careful, nuanced, and incremental, reflecting as much sophistication of the political realties involved as is possible from their seats in the Marble Palace.

The Role of Precedent in the Court’s Deliberations

Surprisingly little time was spent in the hour-long argument on Buckley. It will be interesting to review a transcript to see just how few times that case was mentioned. All the attention to the statute’s details seemed to crowd it out.

Maybe it hung in the air, not needing to be mentioned, but when Justice Breyer raised it toward the end of the hour, the impression was, “Oh yeah, we almost forgot about that important case.” Shrink Missouri clearly received more attention at the oral argument, because of the important implications of that specific precedent for the state’s strict contribution limits. The Justices were working out the doctrinal implications of Shrink Missouri, as applied to the facts of this case, but they didn’t seem to spend much time using Buckley as doctrine to help decide this case. Maybe that’s because Buckley has been followed by so many intervening precedents, it does not need to do any analytic work of its own. But it was striking that the Court was working with the evidence, working with the general policies and principles underlying the First Amendment, and working with the doctrine of Shrink, but not doing a lot of work with Buckley itself.

Still, there seems virtually no chance that the Court will cast aside Buckley‘s holding on spending limits. Whether that is because a majority of the Justices feel bound by the force of Buckley as precedent, as Justice Breyer intimated-or because they are philosophically inclined to agree with Buckley on this point, making reliance on the doctrine of stare decisis superfluous, as the questioning of several Justices suggested-the bottom line will be the same. Although some had hoped that this Vermont case would be the downfall of the Buckley view of spending limits, the strong likelihood is just the opposite: this case will reinvigorate this ruling of Buckley, shoring it up for years and perhaps decades to come.

Majority of Court Skeptical of Vermont Campaign Finance Law

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Justice Alito asked only one question late in the argument. Directed at one of the attorneys supporting Vermont’s law, his question was, assuming the state’s spending limits were invalidated, whether under the contribution limits candidates would be able to raise enough money to run effective campaigns. The attorney, Brenda Wright of the National Voting Rights Institute, answered yes, but Justice Alito asked the question again, to make sure she understood that the predicate of the question was that the state’s very strict contribution limits would be operating in a circumstance of unrestricted spending. She repeated her answer, but one suspects it did not convince him.

If this impression of Justice Alito’s position in the case is accurate, it appears that there are at least five votes on the Court to invalidate both the spending and contribution limits. But his vote might not be necessary for that result.

Perhaps the most surprising development of the morning, although not entirely unpredictable based on his past writings, was Justice Breyer’s evident discomfort with the Vermont law. Several times he made clear his concern that the state’s contribution limits were too low. At one point, he indicated that the contribution limits in the Shrink Missouri PAC precedent were about as low as he could tolerate. As for the state’s spending restriction, he asked why he was not bound by Buckley even if he might believe the case wrongly decided.

One possibility to look for when the Court’s decision is announced is whether Justice Breyer writes to justify invalidating the Vermont law on relatively narrow grounds, in the hope of leaving the seed for upholding somewhat different campaign finance regulations in the future. Whether he is given the opportunity to attempt to forge this sort of consensus depends probably on whom Chief Justice Roberts assigns to write the opinion.

For his own part, Chief Justice Roberts was evidently hostile to Vermont’s defense of its law. At one point, he sharply asked why the state’s brief said that the votes of elected representatives were “determined” by the campaign money they received. When the state’s attorney general responded that the record supported the fact that members of the legislature acknowledged being “influenced” by campaign contributions, Chief Justice Roberts responded by saying that the brief then should have used the word “influenced” rather than “determined.”

He also asked why there had been no prosecutions for political corruption in Vermont if this pattern of vote-selling by members of legislature were such a problem. And he also suggested that voters could vote the corrupt, or potentially influenced, politicians out of office if they were concerned about the integrity of the legislature.

Chief Justice Roberts’ first question, directed at James Bopp, the attorney for the parties opposing the Vermont law, did concern the relevance of precedent on the contribution side of the case. He asked how this case differed from the contribution limit in Shrink Missouri PAC. Bopp’s answer was that this limit was lower in dollar terms, as well as there being less evidence of corruption in the record to support it, and more evidence of the harm this limit would cause to effective campaigns. Based on this exchange, we can perhaps anticipate an opinion that invalidates Vermont’s low limit while nonetheless accepting Shrink Missouri as valid precedent.

Justice Kennedy was an active questioner, although he waited a bit before jumping into the conversation. The general thrust of his questions directed at Mr. Bopp was to assume that there was a problem with corruption; did that still justify the kind of limits on First Amendment activity that the Vermont law imposed? In other words, he seemed to suggest that there was no need to resist the factual predicate that motivated this law; but he seemed to differ with the law’s defenders as to the legal conclusion. Like Chief Justice Roberts, he seemed to believe that the solution to the problem was to vote corrupt politicians out of office and prosecute them for their abuse of the public’s trust. Moreover, in questioning the defenders of the law, Justice Kennedy made clear his fear that the campaign spending limits would stifle speech that is entitled to enter the political marketplace under the First Amendment.

One early indication that the Vermont law was in a precarious position was that the Justices most disposed to support the law – Stevens, Souter, and Ginsburg – were clearly looking for a way to send the case back to the lower courts without a major ruling on the spending limit question. And even some of them, Justice Souter in particular, were quizzical about the details of the law’s stringent contribution limits.

More analysis to follow. But this sums up an initial impression of the argument: Vermont is very likely to lose on both the spending and contribution limits, but it is important how broadly or narrowly the Court will write its ruling.

On Election Law Jurisprudence

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By Daniel Lowenstein
Professor of Law
UCLA School of Law

In this essay, I shall discuss some points raised by a couple of my fellow panelists in this Forum. In a thoughtful and provocative piece last week, Ned Foley made these two statements: First, “election law is supposed to serve as an agreed-upon set of ground rules by which citizens with sharply divergent views of social policy can choose the representatives who will write the laws that govern them.” Second, “the Court’s job is to discern the meaning of the ground rules that, for better or worse, we already have adopted.”

In his essay, Foley wove these ideas together to discuss a number of important questions. In contrast, I want to separate them, because I want to agree with the second but question the first. Preliminarily, the waters here are very deep. Neither Foley nor I could possibly do more than offer a few suggestive ideas in essays of this length.

Foley’s second point is essentially a call for the rule of law in electoral jurisprudence. He places very heavy emphasis on the binding nature of precedent. He applies that emphasis with impressive rigor. Thus, he argues that precedent ought to prevent the Supreme Court from overruling the Buckley holding that campaign spending limits are unconstitutional. Foley’s former writings suggest strongly that in this instance he is placing his jurisprudential views over his personal preference. Regrettably, that is anything but a routine event in legal academe.

I would not necessarily place as much emphasis on precedent. Unlike Foley, the lesson I draw from the Alito hearings is that precedent should be given due weight but is not necessarily controlling in Supreme Court constitutional decisions. As I described in an earlier essay, I believe the ban on spending limits is good policy. Still, if the majority on the Court believes that it is questionable jurisprudence or that the thirty years since Buckley have shown it to be ill-advised, I would not assert that it is unreasonable for them to revisit such a precedent at this stage.

Much more importantly, I strongly agree with Foley that the Court’s election law rulings should be law. Many scholars argue for particular results in election law cases based on their theories of politics. Some consider it a problem that the Court does not have a clearly defined political theory to use as a guide to deciding cases. For a skeptical view of that notion, see my “The Supreme Court Has No Theory of Politics-and Be Thankful for Small Favors,” in The U.S. Supreme Court and the Electoral Process (David Ryden, ed., 2d ed., 2002). The best alternative is for the Court to follow the rule of law. Admittedly, that simple statement covers a vast can of very squiggly worms, but for all its difficulties, I deny that it is an illusory goal. I very much appreciated Foley’s articulation of similar views.

The other idea, that election law should be simply “an agreed-upon set of ground rules,” resonates against a background that begins with the famous Footnote 4 of the Carolene Products case, in which Chief Justice Stone wrote that activist judicial review was appropriate in the case of “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.” Whereas policy issues such as taxation, national security, education, and environmental protection are inherently political and must be resolved through representative institutions, the “ground rules” should be neutral and susceptible of agreement by all public-spirited people, whether liberals or conservatives, Democrats or Republicans.

The Carolene Products footnote has been the basis for many scholarly approaches to electoral jurisprudence, perhaps most notably in the work of the late John Hart Ely. Foley is in excellent company. But I believe the view he and they put forth is seriously flawed. The ground rules for electoral politics are essentially contestable. Footnote 4 enthusiasts will readily concede that debate over the ground rules is made murky by the intrusion of political self interest. The fact that the most virulent opposition to districting by legislatures in the 1980s was voiced by Republicans but by Democrats in the present decade is an obvious example. But they believe academics like themselves, and the courts, can get beyond such parochial concerns. The trouble is that even those who are relatively disinterested have profound differences over ground rules-witness the debates within this Forum.

It is also true that there are broad areas of agreement over how elections should be structured and that there is a very large role for reasoned discourse in election law controversies. But the same is true of national security, taxation, education, and environmental protection. No doubt there are distinctive considerations in election law compared with other subjects. But the idea that election law is or could be or should be exempt from politics seems to me to be an illusion.

In the last few years, the most prominent version of the Carolene Products idea in election law scholarship has been the view that the main role for the courts in fashioning constitutional law should be to prevent incumbent officials and the major parties from using their control of the government to stifle competition and advance their political self interest. That viewpoint is ably represented in this Forum by Rick Pildes, one of its most prominent exponents. In his essay posted last week, Pildes identified the problem that should be the subject of judicial policing this way: “we know that those who temporarily hold power will always be tempted to make, change, or bend the rules to keep themselves-or their allies-in power.”

Pildes’ statement of the problem is characteristic of the school of thought he represents in that it is not entirely clear whether he is most concerned that (1) the incumbents are acting unethically by using their public positions for their own benefit or (2) the measures they take toward that end will be in other respects harmful. I do not want to make a thoughtless claim that is sometimes heard in public debate, that those arguing for a particular policy must settle on a single reason for it. Of course, a policy supported by two or more good reasons is none the worse for that fact. But I want to distinguish the two points because, although each may sound plausible or even obvious, I believe each is quite tenuous.

The idea that office-holders should not act out of self interest is directly contrary to the views of those who wrote the Constitution. In his famous Federalist Number 51, James Madison wrote that if a free government was to be preserved, “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” I believe Madison was right. In any event, there is something very naïve about the suggestion that courts should review election laws strictly if they are influenced by politicians’ self interest. What laws that emerge from Congress or state legislatures on any subject are not influenced by politicians’ self interest? Why should election laws be different?

The consequence of self-interested election laws that most bothers not only the scholars but, more importantly, the mainstream press, is that legislative elections are not sufficiently competitive. I cannot address that issue adequately here, but it is worth noting that our electoral politics is more intensely competitive than it has been at any time since the Civil War. True, the number of legislative races in which seriously competitive campaigns are waged in a given year is low. That may be a problem (though there are weighty arguments to the contrary), but it is hard to see why it is an especially serious one, unless it results in incumbents being less accountable to their constituents. By all accounts, members of Congress and state legislators are obsessively accountable. If anything, we could probably use a little extra dose of Burkean representation in our legislative politics.

Admittedly, the foregoing does not do justice to this very complicated issue. Those who would like to learn more should read the superb article by Nathaniel Persily, “In Defense of Foxes Guarding Henhouses,” 116 Harvard Law Review 649 (2002). Some important points are also made in the White Paper prepared by the No on 77 Committee in last year’s California initiative campaign. (I chaired that committee but played only a minor editing role in the White Paper, which was written primarily by my son Nathan Lowenstein and two other staff workers for the campaign.)

Finally, I’d like to join others in thanking the Moritz Election Law Center and its outstanding faculty for sponsoring this Forum.

How to Decide the Texas Redistricting Cases

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By Richard L. Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School

In this post, I consider how the Supreme Court should decide the Texas redistricting cases, focusing on the partisan gerrymandering claim, but noting the one person, one vote, Voting Rights Act, and racial gerrymandering claims. (I assume that readers have background on these issues from earlier posts here and elsewhere.)

For those who have been reading my earlier posts, my position on the partisan gerrymandering claim should be obvious: I think the Court should decline to strike down the Texas districts on these grounds. As I recently wrote in Slate:

Let’s call what happened in Texas a naked power grab by a self-interested Texas legislature based on the determined effort of Tom DeLay. Should that power grab be unconstitutional, or instead merely a reason to vote out those legislators who supported the distasteful plan?

The problem with such reasoning is that it would invalidate most redistricting done by most legislators in the United States, which are almost always the product of self-interest. How do legislators draw districts? They must comply with the one person, one vote, equal population standard and the Voting Rights Act. State law sometimes imposes certain limits on legislative districts. Beyond that, most legislators care about getting themselves re-elected and securing party advantage. Redistricting is an inherently self-interested act, and if bad intent were the test for unconstitutionality, scarcely any districting plan enacted by a state legislature would be upheld. [Note: for more on why “bad legislative intent” should not be dispositive, see here.] Even so-called “sweetheart” or bipartisan gerrymanders would be constitutionally suspect, because they would be the product of legislative self-interest, too.

It is hard to believe that even an activist Supreme Court has the stomach to declare all legislatively enacted redistricting unconstitutional, so we might try coupling a “bad intent” test with a “bad effects” test: For example, if a state contains a majority of Democrats but keeps sending many more Republicans than Democrats to Congress, that might raise a constitutional problem. In those cases, the legislature was not merely acting in its own interest, but had also skewed the results. The trouble with applying this test in the Texas case is that there do appear to be more Republicans than Democrats in the state. The argument applied to Texas would have to be extended to something like a requirement of rough proportionality between a party’s support and the shape of the congressional delegation: Texas deserves a majority Republican delegation, the argument goes, but not this big a majority. …

The alternative to all this election-law activism is a more modest Supreme Court that acts only to preserve core equality rights, like the right to vote without having to pay a tax. When the court acts in a contested area like partisan gerrymandering, it imposes a one-size-fits-all solution on the entire nation that cannot be changed without a constitutional amendment. Rather than intervening, the court should be willing to let the political process work things out. Congress can pass legislation putting the brakes on partisan gerrymandering (at least when it comes to congressional redistricting) and states with the initiative process can enact redistricting reform. The political process is not, in other words, “stuck” in this area, as it was when the Warren Court set out the one person, one vote standard. Then, state legislatures had no incentive to reapportion grossly malapportioned districts that favored farm areas over urban and suburban areas. In contrast, election reform is now a common ballot topic in the 24 states with initiatives; some redistricting-reform initiatives pass and other fail. More states now have redistricting commissions, which generally seems like a good idea. But the commission structure and criteria for redistricting differ from state to state, and appropriately so.

One final point on partisan gerrymandering. Rick Pildes tries to minimize the scope of the argument he makes in his amicus brief filed in the Texas case. He emphasizes what I consider to be the backup argument in his brief: that the Court should craft a rule barring mid-decade redistricting (a point I discuss on its own merits below). But Rick’s major argument in his brief goes much further. He argues: “The question before the Court should not be simply whether, under the Equal Protection Clause, one of the major political parties has been unconstitutionally discriminated against in districting, but whether Texas or any other state has the constitutional power intentionally and systematically to insulate congressional candidates and incumbents from contested elections. The Elections Clause grants no such power.” This is a radical position, reading the Constitution to bar states from drawing congressional districts that are not sufficiently competitive. As I wrote in an earlier post: “[i]f Rick Pildes had his druthers, the courts would have the power to examine every redistricting of congressional districts done in every state every ten years to make sure that the plan is sufficiently ‘competitive.’ It is not clear how competitive districts would have to be-a problem that gives too much power on politically loaded questions to judges.” Nor is it clear how competitiveness is to be balanced against other values. I would like to hear more from Rick or others about the details of such court interventions. Rick’s response to my earlier posts is to call me a “Chicken Little,” and to suggest that there is no basis to distinguish my arguments against court intervention in the partisan gerrymandering context from earlier arguments (from Justices Frankfurter and Harlan, and others) against court interventions for malapportionment or minority vote dilution. In fact, I devoted a whole book to discussing this question, The Supreme Court and Election Law, which tries to lay out the standards for appropriate Court intervention in the political process. I’ll let readers of the book judge whether or not I set out an appropriate standard.

Finally, a few points on the other issues in this case. First, the Court may well be tempted to try to regulate political gerrymandering indirectly through holding that the Texas redistricting, coming mid-decade but using old census numbers, violates the one-person, one vote rule. Pam Karlan and Sam Issacharoff have explained the inadequacies of this approach, whether one wants the Court to police partisan gerrymandering more aggressively or not. Regulating partisan gerrymandering through the one person, one vote doctrine, however, may indeed be the most likely outcome of the case, giving Justice Kennedy a way to limit the Texas redistricting through a bright line rule (no mid-decade redistricting absent exigent circumstances) without opening up the courts to difficult partisan gerrymandering claims. There’s an appeal to this kind of judicial minimalism for me, but it comes at the price of a rudimentary coherence of election law doctrine.

Almost lost in all the hoopla over partisan gerrymandering is a very important voting rights issue. The issue is complex and I won’t go into the details here, but the bottom line is that the Supreme Court could use the Texas case to read section 2 of the Voting Rights Act in an appropriately expansive way to include claims by protected minority groups of a right to force states and local jurisdictions to create districts where they could have some influence (even if they are not large enough to force the creation of a majority-minority district). After the Supreme Court’s recent opinion in Georgia v. Ashcroft recognized that such districts are relevant to assessing total minority voting power under section 5 of the Act, it seems only appropriate for such districts to be considered in section 2 cases as well.

In addition, the Supreme Court could use the Texas case to put an end to the unfortunate “racial gerrymandering” doctrine created by the Court in its 1993 Shaw v. Reno decision, a decision I have criticized in more detail elsewhere.

I don’t expect the more conservative Roberts Court to take either of these steps. I expect the Court to hold that section 2 does not extend to influence districts, and to reaffirm the racial gerrymandering cause of action (though reject its application to the Texas districts in this case). Such a holding would be consistent with a more ideologically conservative Supreme Court, which I believe is on its way in the election law area.

In closing, because this may be my final post in this roundtable, let me thank the folks at the Moritz election law site for their hospitality. I have very much enjoyed participating in this roundtable, especially exchanging ideas with the other participating scholars. Although we may have disagreements, I have tremendous respect for their pathbreaking contributions to the field of election law.

I hope some readers of the Roundtable will visit the Election law blog for more of my commentary in the future.