The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) Professor Rick Hasen Loyola Law School, Los Angeles

Examples of Supreme Court intervention in the political process  One person, one vote rule  Legislatures cannot limit the costs of campaigns in the name of political equality  No term limits for members of Congress, even if passed by initiative  Ending the 2000 election controversy

How has the Supreme Court’s intervention changed over time?

Not only did the average number of election law cases heard by the Court go up from 10 in the earlier period to 60 in the later period, the percentage of such cases heard by the Court went up by more than 7-fold

Objects of the book 1. To chronicle the Supreme Court’s political equality cases 2. To give the Court tools to use to decide such cases carefully 3. To make a substantive argument for when the Court should intervene in political equality cases 4. To argue against structuralist interpretations of election law

1. Chronicling the Supreme Court’s cases: four categories  Formal equality (principally voter qualifications/weighting of votes cases) (e.g., Reynolds)  Wealth (e.g., Harper)  Race(e.g., City of Mobile v. Bolden)  Political parties (e.g., Williams v. Rhodes)

What pattern emerges? Neither liberal nor conservative Justices are bound by constitutional text or history in crafting equal protection rules. Three examples:  Harper (Goldberg proposed dissent)  One person, one vote  Bush v. Gore

2. The Unmanageability tool Manageability is usually praised in Supreme Court decisions But there is an advantage to unmanageability in some circumstances: lower courts can provide valuable information to Supreme Court on contours of equal protection right (e.g., Reynolds)

3. Substantive rules for deciding political equality cases The Court should protect core political equality rights, but should leave contested political equality rights to the political process. The fundamental idea is that the Court is needed as a backstop to protect substance of right to vote, but on contested questions, the matter should be left to the political process.

What is a core political equality right?  A few rights are essential for the functioning of any serious democracy (e.g., no discrimination in voting on the basis of national origin)  Most political equality rights are socially constructed. When there is near social consensus Court should protect right unless government has very strong reason to intervene

Contrast Harper and City of Mobile  Harper: All but four states had eliminated poll tax; near social consensus  City of Mobile: No social consensus on the right to proportional representation for minorities

Three classes of core rights  Essential political rights principle: Right to speak on political issues and organize for political action No discrimination in right to vote based on gender, literacy, national origin, race, religion, sexual orientation Right to roughly equal voting strength

 Anti-plutocracy principle: The government may not condition the ability to participate fundamentally in the electoral process on wealth or the payment of money

 The collective action principle: The government must not impose, and must remove if imposed, unreasonable impediments on individuals who wish to organize into groups to engage in collective action for political purposes.

What to do about contested equality rights? 1.The Supreme Court should not create a new contested equality right Example: felon disenfranchisement

2. The Supreme Court should defer to political branches’ decisions to embrace a contested notion of political equality Example: Section 2 of the Voting Rights Act (contrast City of Mobile) Example: Campaign finance laws to promote political equality

A note on the self-interest problem Legislatures may pass incumbent- protecting election legislation in the name of political equality, violating the collective action principle

Solution: Court deference to value judgments made by legislatures but strict scrutiny of means and ends E.g., do campaign finance laws passed in the name of equality really promote political equality?

The structuralist challenge  My approach is a rights-based approach that calls for a balancing of individual rights against state interests  It differs from the Supreme Court’s approach in a number of ways on when the Court should intervene and when it should defer to the legislature

Structuralist approach is an alternative approach focused not on rights and interests, but “rather to regulate the institutional arrangements within which politics is conducted.” (Karlan)

Court examples of structuralist approach  Shaw v. Reno – no core or contested equality right at stake, only concern about appearances  Bush v. Gore – perceived systemic interest in having recounts done according to uniform standards (is there individual injury?)

Pildes and Issacharoff on political competition  Courts should aggressively promote political competition  Example: Issacharoff in Harvard Law Review: Courts should declare all redistricting done by elected officials as presumptively unconstitutional

My critique of structural approach Danger of belief in unlimited judicial wisdom  Ossifies political process  Prevents state and local experimentation  Can trample core political rights