Category Archives: Voting and Representation

Rights ch 14, Short Course ch 20

Abigail wants the election to end.

By now, most people have either seen or heard about the young girl who broke down crying because she was so sick of hearing about the presidential election.[1]  Indeed, if we track social media responses we find that many adults agree with the youngster and they are sick of hearing from and about both President Obama and Mitt Romney.  Many of these reactions are due to the negative and false statements that seem inherent in modern political campaigns.

There are organizations, the Center for Responsive Politics to name one, that try to keep politicians honest by fact checking statements and publicizing the results.  It seems that the states have also developed a method—a legal method—to achieve the same end.  The Wall Street Journal Blog today[2] reports that several states have criminal laws that sanction false campaign speech—at least false speech waged at your opponent.  Prosecutions are rare.  Still, it does beg a free speech question.  Last term in US v. Alvarez (No. 11-210) the Supreme Court determined that the Stolen Valor Act was unconstitutional.  Essentially, lying about winning a military award, even if you do so to gain office, is protected speech.

Rick Hasen, the Wall Street Journal Blog reports, makes the argument that Alvarez likely voids state laws regarding false campaign speech.[3]  And I agree that it is likely that Alvarez along with the available more narrow remedies for libel and slander make the laws unconstitutional.  But there is another precedent that also leads to the same result and certainly does so in conjunction with Alvarez.  In Republican Party of Minnesota v. White (563 US 756 (2002)), the Supreme Court held that Minnesota’s “announce clause” was an unconstitutional burden on the speech and prohibited speech based upon its content.  Minnesota tried to level the playing field for incumbent judges and their opposition.  Since the judges were restricted in terms of discussing issues or announcing position due to the canon of judicial conduct, challengers would face the same restrictions.  The state’s interest in impartiality was not sufficient to withstand strict scrutiny.

The false campaign speech laws are similar to the  ‘announce clause’ from White.  They criminalize speech based upon its content.  In White, Scalia agreed with the Court of Appeals that the ban “burdens a category of speech that is “at the core of our First Amendment freedoms”—speech about the qualifications of candidates for public office.”

Combine the Republican Party of Minnesota v. White with US v. Alvarez and there seems to be a constitutional right to lie on the campaign trail about your own qualifications and your opponents.  Perhaps we can blame the Supreme Court[4], at least partially, for Abigail’s tears and total toddler meltdown.


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Bush v. Gore Recounted

When the Supreme Court issued its landmark ruling in Bush v. Gore (531 US 98 [2000]), it generated a flood of controversy.  Perhaps most unusual was the language in the Court’s per curiam opinion that restricted the decision to the case at hand: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”[1]

Perhaps not surprisingly, the Court’s decision has failed to follow the Court’s plan (hope?) that the case would be a one-shot decision that would fade into obscurity.   Although the Supreme Court has not cited it since its publication,[2] that has not prevented lawyers for plaintiffs and lower courts from trying to use the decision as a basis for arguments challenging the process and outcomes of state elections.

The most recent attempt to use the case has been recounted (no pun intended) by Robert Barnes of the Washington Post.[3]  Barnes reports that Tracie Hunter, a Democratic candidate who ran for election to the Hamilton County juvenile court in Ohio in 2010, is challenging the vote count in her election. Hunter, a Democrat, lost by 23 votes to her Republican rival, John Williams, according to the official results.  Hunter and the Democratic Party are challenging the results and are relying in part on Bush v. Gore’s principle: “that ‘having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.’”

The facts are complicated—Ohio law invalidates the ballots of voters who cast their votes in precincts where they are not registered, unless the mismatched vote is a result of an error made by the election worker.  In Hamilton County, these mismatched votes are counted if they are made at election headquarters, since it seems obvious that the election worker must have issued the incorrect ballot.  However, mismatched votes are not counted if they are cast at polling places.  And the problem is that in Hamilton County, there are a lot of polling places that serve multiple precincts.  This practice can generate a fair amount of voter and worker confusion.  Hunter’s challenge to include ballots that had not been counted because of voter/precinct mismatch went through the federal courts to the Supreme Court, where it was sent back to the district court.

The trial in federal district court revealed that there were several issues for poll workers: e.g., confusion over the law, where to send voters to be sure that they cast their ballots in the correct precincts, and uncertainty over which precinct voters belonged to.  District Judge Susan Dlott ordered 300 excluded ballots to be included in the count.  Williams’ margin of victory was 23 votes out of a total vote count of approximately 290,000 votes.

The Hamilton County Board, split evenly between Democrats and Republicans, deadlocked on whether to appeal the decision; the deciding vote to appeal was cast by the Republican Secretary of State, John Husted.  He justified his decision thusly: “I cannot and will not back down when it comes to our state’s right to administer elections….”

And that is the interesting thing about the legacy of Bush v. Gore.   As reflected in Husted’s comments, the application of the principle of Equal Protection to the states’ election processes has the potential to place those state election processes under federal scrutiny to ensure that all ballots are cast and counted equally.  The string of court cases challenging the impact of voting mechanisms that might result in counting errors (the use of punch card ballots, e.g.) or longstanding counting procedures that exclude some ballots from the count, may result in more federal intervention into state election processes. And as the electorate becomes more closely divided along partisan lines and small changes in vote count can make large differences in election outcomes, we might expect that the principle of Bush v. Gore becomes more of an issue in future election challenges.

[1] Quoted from Epstein and Walker, 186

[2]  See Jeffrey Toobin, “Precedent and Prologue,” The New Yorker, Dec. 6 2010,, accessed Feb. 29 2012.

[3] Robert Barnes, “Will Bush v. Gore make an election-year return?” Washington Post, Feb. 26 2012, accessed Feb. 28 2012.

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Congressional Power and Section 5

Congressional Power

On September 21, 2011, District Court Judge John D. Bates issued a long opinion in the case of Shelby County v. Holder.  Shelby County challenged the reauthorization of Section 5 of the Voting Rights Act.  In essence, this case is a modern day South Carolina v. Katzenbach.

The issues remain the same.  Did Congress exceed its power when reauthorizing the Voting Rights Act?  Can Congress interfere with state sovereignty by demanding preclearance of new voting laws in jurisdictions that have a history of discrimination at the polls?  Despite the factual and issue similarities, however, the context surrounding this case and the others coming up through the federal court system challenging Section 5 is very different.  The Warren Court decided South Carolina v. Katzenbach in 1966.  The New Deal expanded congressional power in terms of economic regulation and the Great Society pushed congressional and federal power into larger areas of social regulation.  The Warren Court aided this effort by broadly interpreting the commerce power, the necessary and proper clause, and the amendment enforcing powers of Congress.

The current cases may ‘stand on all fours’ with Katzenbach, but the judicial context has changed dramatically.  In the shadow of Lopez and Morrison, Congress overreach is examined more carefully.  The commerce clause combined with the necessary and proper clause is no a longer blank check.  The current Roberts Court, along with its more recent predecessor, seem to be quite unwilling to use the elastic clause and commerce power to expand the reach of Congress and force the legislature to justify further extensions.  The opinion by Judge Bates suggests that this scrutiny may travel to Congress’ amendment enforcing powers as well.

In his opinion, Judge Bates takes a good deal of time discussing whether Section 5 has worked too well to allow reauthorization.  He concludes that his examination of the lengthy record shows that Congress has justified the continuation of Section 5.  “Based on the evidence contained the 15,000-page legislative record, this Court concludes that Congress did just that.”  In other words, Congress compiled a large enough record of continuing discrimination in voting to allow the broad federal powers exerted under Section 5 to continue.

Several questions come to mind in the wake of this decision.  First, if this reauthorization had occurred before the decisions in Lopez and Morrison, would a District Court judge require the depth and breadth of support from Congress before upholding the reauthorization?  Second, has Congress changed its behavior in the aftermath of Morrison to ensure that the record is sufficient to withstand the scrutiny of the new judicial federalism?  Third, when this issue is presented before to the Supreme Court, how will the justices respond?  Will they defer to the legislative record and congressional power as Judge Bates did?  Or will they ignore that record and use the same scalpel on the scope of amendment enforcing powers as they have done in other cases dealing with the commerce clause power?

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