soapbox

Placeholder for A post on state constitutions as an alternative to federal litigation, given current incoherence in the supreme court.

Rich Hasen has posted a draft of an article, "No Exit? The Roberts Court and the Future of Election Law" expressing concerns that the Supreme Court's current election jurisprudence is incoherent. I agree. McConnell upset some of what we thought we knew, and revealed a deeply divided court, so that cases like WRtL may turns on nuances of the facts, or on as yet unknown preferences of the newest members of the court. Roberts is the new chief justice; Alito has been nominated but not yet confirmed, and may face a filibuster or attempted Borking.

Judge Posner in Majors v Abell expressed similar concerns that after McConnell, lower courts have no star to steer by and don't know what to do. Posner's Majors decision was erroneous in several respects, and has been severely criticized by another circuit, but his point about indeterminacy following McConnell is apt.

The errors included failing to apply strict scrutiny to a case involving censorship of campaign speech, failing to put the burden of persuasion on the state, and failing to understand the distinction between disclaimers and disclosure. One is a restriction on speech, unconstitutional under Talley and McIntyre, the other is a reporting requirement upheld in Valeo and McConnell. As plaintiff's lawyer, who ended up not getting paid for 6 years of work, my perception may be subjective, if correct.

This is the not the first time the Supreme Court has faced an indeterminacy problem about election law. In 1968, in Williams v Rhodes, the court dealt with onerous ballot access restrictions which were interfering with the third leading candidate, George Wallace. As Richard Winger's article, discussed below, points out, federal courts have been friendly to ballot access concerns of whoever is running third, up until Nader's second run. Yet in Jenness v Fortson, the court upheld similar ballot access hurdles. So the years after Rhodes were years of indeterminacy in election law. A major step forward was Anderson v Celebrezze, which set out a test in which the court must weigh the degree of burden against state interests. [a cite would be helpful here]. Yet lower courts misunderstood the Anderson test as a balancing test (which it is - the issue is where does the fulcrum rest) which allowed them to substitute their personal preferences for meaningful legal review. Libertarian Party v Bond was one of many examples of misapplication of the Anderson test. So we were back to indeterminacy. So another attempt was made to establish, if not bright lines, some coherent rules, in a pair of ballot access cases, Norman v Reed, and Burdick v Takushi. Under the new [paradigm; set of rules; regime] severe burdens would be given strict scrutiny, reasonable regulations would require only "rational basis" review, and those in the middle would get the Anderson balancing test. Irrational basis is a better descriptor of Burdick review. As in Munro v Socialist Workers, the state's actual reasons may be irrational as long as some reasonable legislature could have had a rational basis. Yet this too turned out to be indeterminate, for the court never explained what burdens are severe, so the test became again one of the personal preferences of the judges. This was demonstrated in Twin Cities, where anti-fusion laws were upheld under irrational basis review, although the burden in question was far more severe than that of Norman v Reed. Disclosure: I lost a fusion case in the 7th circuit while Twin Cities was pending, and may lack objectivity; again I'm right and the court is wrong, except under definitions of "right" that equal whatever the court's preferences are. So indeterminacy in election law is not a new challenge; it's what we've been living under. Some aspects of election law are relatively determinate. From Valeo we have a firm rule that bans on campaign spending are unconstitutional, so Neal Randall v Sorrell should be open and shut. Disclosure: Randall is a Libertarian and former member of the Vermont Legislature, and I've been affiliated with the Libertarians all my adult life, less so lately.

So what to do about indeterminacy in federal constitutional law? One approach is legislation: the Voting Rights Act, HAVA, Moter-Voter, and other attempts to move the ball one way or the other via congress. I am no expert on any of these, and leave the field to others.

In my LLM thesis, unpublished, UMKC 1994, I outlined a 2nd approach: We could look to state constitutions as a potential source of determinacy.

State constitutions have several levels of provisions which speak to election law.
There are free speech and equal protection clauses which, like their federal counterparts, can be construed as sources of election law.
Most have a suffrage article, which may be either or both general, "free and equal elections" or "free and open elections", and specific, such as setting out that the counties shall elect sheriffs every four years, that they be of a certain age or reside within the county for a specified period, and so forth. These specific provisions can readily resolve some election controversies. If the state constitution says a registered voter has a right to vote and to have her vote counted, courts are unlikely to hold that a registered voter can be denied the right to vote for failure to produce a voting license.
Sometimes the state constitution is too specific, when by initiatives driven by "reform" organizations, state constitutions get 3000 word amendments no one's read or understood which conflict with other constitutional principles. But I digress.
My main focus is the free and open election clauses.
In a few states, these have a well established line of precedent. In others, they are vestigial, like the appendix, there but never used.
Recently, there have been attempts in places like Alaska, Oklahoma and North Carolina to resuscitate the free and open elections clauses.
What I would like to see happen is some increased degree of coordination between the people working on these projects. Briefs banks, shared research, law review articles, blog posts, can help both litigants and courts avoid having to reinvent the wheel.
Each state is free to put its own interpretation on its clause, but can be guided by persuasive precedents from other jurisdictions.
The revival of state constitutions as a source of voting rights won't suit everyone. Many of the resources in election law in recent years have been on the side of "reform", which favors more infringements by states on election speech and campaigns. For the reformers, free and equal elections clauses are a two edged sword (a double-sided shield.) The clause might be helpful in fighting voter ID or unfairly drawn districts, but be a threat to bans or restrictions on campaigning. So my pitch may have a limited audience - people who are seeking both
fairness and freedom, free and open elections.
After writing my thesis, I opened an election law boutique which had the goal of taking an easy case -unconstitutional disclaimer rules - and using it to establish a series of precedents under the state clauses, which could then be cited in harder cases, such as ballot access.
But I am an inept lawyer and organizer, and I wasn't able to either win cases or assemble the resources to go forward with the project, and have been distracted by issues in my personal life and by bright shiny objects. I continue to have a long term goal of persevering in this work, but in my day to day life it's on the back burner. Meanwhile, I blog a little, to a vanishingly small audience, which helps me keep my longer term goals in mind.

What I'd just written above is the post I've been meaning to write for a week. Yesterday I read Richard Winger's article on federal courts' mistreatment of Nader's ballot access lawsuits. Nader was unsuccessful in obtaining relief in federal court, while winning 2/3 of his cases in state court. The federal court/state court distinction is a slightly different one than my point about state versus federal constitutions, but they are related. Nader's problems in federal court, which broke with precedent, are another example of the problems with indeterminacy in federal election law. I haven't read all the Nader cases, but my guess is he (often) failed to raise claims under state constitutions. Doing so could have preserved his claims where he lost on federal grounds, and given added weight to his requests for injunctive relief. Even in his cases in state court, he relied primarily on federal claims. I contend that plaintiffs need to be prepared to argue strongly under both state and federal constitutions, and not waive claims by either failing to plead them or brief them. It hasn't always worked for me, but it still needs to be tried.
The degree of indeterminacy is even greater under state constitutions than under the federal constitution, but a plaintiff has a greater shot at prevailing if they preserve and argue both sets of claims.

Hasen: For those who look to courts for the promotion of political equality, the signs are not encouraging.

The typical state constitutional elections clause states that elections shall be free and equal. The most common alternate text is free and open. As a libertarian, freedom is the key value, with equality an important secondary value - equality should be promoted to the extent that it doesn't conflict with freedom. For many liberals, equality is the primary value. My libertarian worldview is the product of my experience. At one time, I was a slave, neither free nor equal, so freedom was thing I crave. Other people have had different experiences, such as freedom without security, or freedom without basic needs. Some liberals seek to promote equality at the expense of freedom, Harrison Bergeron-style. Because the rich or the wise may speak more loudly or persuasively than the poor or ignorant, they seek to ban speech, to promote equality. People with this view will find little help in free and equal elections clauses. Others, though, seek equality in ways that don't conflict with freedom, and may be able to use equal elections clauses to win cases on topics where the federal courts are no longer reliable. Redistricting, voter ID, and ballot access are examples of such topics.