After Scalia: The Future of United States Election Law
Richard L. Hasen, After Scalia: The Future of United States Election Law Amerika Ho (2016).
This Essay, based on a keynote address prepared for delivery at the 2016 annual symposium of the Japanese American Society for Legal Studies, explores the future of the election law jurisprudence in the United States. The February 2016 death of United States Supreme Court Justice Antonin Scalia — a brilliant, bombastic, conservative jurist — provides an opportunity to reflect on how the ideological views of members of the Supreme Court have shaped elections and campaign rules in the United States for many decades. His death reveals that the replacement of even one Justice on a closely divided Court can flip national rules for American elections by 180 degrees. The Court’s election decisions have affected everything from role of money in elections, to the rules for drawing legislative districts, to the proper judicial response to partisan manipulation of voting rules. One case in which Justice Scalia was in the majority even decided a disputed presidential election, the 2000 contest between Republican George W. Bush and Democrat Al Gore. Justice Scalia wrote strong opinions in divided election law cases, stating that limits on corporate spending in elections worked are unconstitutional censorship; that courts do not have judicially manageable tools to decide when partisan legislators take self-interest too much into account in drawing legislative districts; and that state governments should have a mostly free hand in crafting election rules, even when the rules may be chosen for partisan reasons and when they may severely burden a small number of voters. He also controversially defended the end of vote counting in the 2000 Florida election. His conservative positions stand in stark contrast with the more liberal positions that have emerged in election law cases: that courts should defer to legislatures on the need to limit money in politics; that courts have the power and tools to limit partisan excesses in redistricting; and that courts should police cutbacks in voting rights which may burden voters and be unjustified by any important state interests. Justice Scalia expressed his views with wit, intellect, sarcasm, and force, crafting rhetorically effective opinions which nonetheless usually failed to capture the votes of even one of his liberal colleagues. With his death and his potential replacement by a more liberal Justice, many of the positions he espoused could soon be repudiated, and the rules for regulating politics in the United States may change dramatically. Whether or not Justice Scalia’s positions endure on the Supreme Court, his views provide a benchmark against which to judge liberal and conservative approaches to law and politics and to understand the intersection of constitutional election law jurisprudence and real political power in the coming decades. I consider the state of American election law on money in politics, partisan gerrymandering, and election administration through Justice Scalia’s opinions in three major cases: Austin v. Michigan Chamber of Commerce, Vieth v. Jubelirer, and Crawford v. Marion County Election Board. I conclude with some brief thoughts on the Bush v. Gore decision ending the 2000 election and the future of American election law at the Supreme Court after Justice Scalia. I suggest that there are dangers ahead for both American democracy and the Supreme Court’s legitimacy given the current combination of a Supreme Court with great power over election rules and the Court’s new division not just along ideological lines but also along partisan lines. We should expect to see election rules shift along with partisan Supreme Court majorities, raising concerns about American democracy.