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Election Law

I. Introduction
a. Voting: central, fundamental right of citizenship
b. Constitutional text: no affirmative voting language, only restrictions (“No state”
language re: sex, race, etc.)
i. 14th & 15th A invoked in right to vote cases (Sec 1 of 14th: P&I, DP, EP)
ii. Dred Scott: although dissent argued that since blacks could vote at
inception of Constitution, they must be citizens, majority rejected this: not
all citizens can vote; some non-citizens can vote (resident aliens in some
local elections); citizenship not tied to voting
c. Minor v. Happersett (1874): although women are citizens, P&I clause does not
affirmatively grant all citizens the right to vote; if P&I secured the right to vote,
no need for 15th A (holding overruled by 19th A – giving women right to vote)
d. Richardson v. Ramirez (1974): EP does not affirmatively grant felons the right to
vote; Sec 2 of 14th A contemplates felon disenfranchisement (sanctions for
denying right to vote exclude these laws); if Sec 1 required right to vote, this
clause would not make sense
i. Sec 2 effectively repealed by 15th A (felon disenfranchisement statutes
must be challenged under DP/EP)
ii. Hunter v. Underwood (1985): “moral turpitude” disenfranchisement struck
down (motivation of law to disenfranchise blacks – discriminatory
e. DC – no congressional representation (upheld in court – distinction btw seat of
gov’t and statehood); structural provisions of Constitution govern this (despite
one person, one vote mandate)
II. The Right to Participate
a. Lassiter v. Northampton County Bd of Elections (1959): literacy tests are
unconstitutional if used to perpetuate discrimination, but no evidence in this case
of discrimination (rational basis-like test)
b. Harper v. VA State Bd of Elections (1966): poll tax violates EP in state elections
(struck down as to fed elections in 1964 through 24th A); unlike literacy test, poll
tax bears no rational relationship to voting
i. Dissent finds rational relationship – investment in voting; revenue
c. Kramer v. UFSD No. 15 (1969): even assuming compelling interest in restricting
school bd voting to owners/lessors or parents, law not narrowly tailored (those
that are interested and affected by school bd cannot vote, but others that are
uninterested and unaffected can); fundamental right strict scrutiny
i. Dissent sees no reason for heightened scrutiny
ii. Although school bd does not have to be elected, once franchise is
extended, must abide by Reynolds requirements
d. VRA: initial temporary ban on literacy tests, expanded in 1970, outlawed in 2000
i. Definition of “test” expanded to basically anything used to exclude voters
based upon a form, instruction, etc.
ii. Minority languages must be considered
e. May restrict right to vote due to mental incapacity/insanity
i. But Doe v. Rowe (D. Me. 2001) struck down law that restricted based
upon guardianship for mental illness
1. Similar law upheld in MO (although recognizing ADA applied,
believed law restricted only those w/o mental capacity to vote)
f. Although VRA amendment extending right to vote to anyone 18 & older in state
& local elections exceeded Congress’ authority, 26th A achieved same end
g. Dunn v. Blumstein (1972): residency requirements OK if appropriately defined
and uniformly applicable (cannot impose “substantial period” requirement)
i. “bona fide” resident
h. Carrington v. Rash (1955): struck down restriction on military members’ right to
vote during duty (does not meet strict scrutiny; cannot restrict based upon way
they may vote)
i. Brown v. Chattanooga Bd of Comm’rs (ED TN 1989): although franchise
expanded (rational basis review) to nonresidents that own property, struck down
b/c no limit on number of owners of single property
i. Although expanding the franchise only subjects the law to rational basis
review, law still must not dilute others’ votes

1. Either to violate one person one vote (Reynolds) or VRA

j. Holt Civic Club v. City of Tuscaloosa (1978): denied right to vote b/c although
w/in police jurisdiction, outside municipal boundaries (upheld: residency is a
bright line rule; can vote in their municipality)
i. Dissent: disconnect btw governing & governed (no power to change laws
they’re subject to: DP violation)
III. The Struggle for Black Enfranchisement
a. Although Reconstruction amendments sough to guarantee rights to blacks, 15th A
necessary b/c many states refused to enforce original amendments
b. Giles v. Harris (1903): ct refused to require registration of black voter
(perpetuating unconstitutional scheme); leave addressing of wrongs to political
process (other branches); NOTE: this decision is very poorly reasoned (if deny
remedy here, can never challenge unconstitutional law)
c. Giles v. Teasley (1904): if AL constitution violates fed constitution, no authority
to register voters (SCOTUS affirms on this issue); if authority, decisions of
registrars legally immune (another poorly reasoned decision)
d. Guinn v. US (1915): grandfather clause (exempting voters from literacy test if
registered before 1966) violates 15th A (discriminatory)
i. Post-Guinn scheme banned voters unless registering w/in 12-day period -
struck down in Lane v. Wilson (1939)
1. Distinguished - Giles in equity; Lane under law (1983)
2. On the merits, violated 15th A
e. Gomillion v. Lightfoot (1960): gerrymandering to exclude almost all black voters
violates 15th A (clear discriminatory purpose)
i. Cannot invoke absolute power of municipalities; not a dilution case, but
simple denial of vote (despite that blacks could vote elsewhere now –
which concurrence uses to argue EP more appropriate provision)
ii. Baseline established (status quo): thus, anything changing based upon
discriminatory purpose struck down (later, VRA Sec 5, but intent not
required – just effect)
IV. Reapportionment
a. Right to vote meaningless unless it may be aggregated with like-mind voters to
achieve electoral objectives
b. Colegrove v. Green (1946): only Congress can remedy improper districting
(political question – “political thicket”); Ct could issue mandamus to require
redistricting according to Census
i. Dissent: easy EP issue; those in power are going to redistrict (and won’t
do so because those districts put them in power)
c. Baker v. Carr (1962): held EP attacks on legislative apportionment justiciable
i. 6 part test for justiciability: (1) constitutional commitment to political
dept; (2) lack of standards; (3) policy determination of nonjudicial
decision; (4) impossibility of independent decision w/o expressing lack of
respect for other branches; (5) need to adhere to political decision; (6)
possibility of embarrassment from different announcements from different
branches (can avoid all of these in this case – constitutional violation,
which may be properly remedied by courts)
1. Another factor: lack of satisfactory criteria for judicial
d. Cannot rely upon Guaranty Clause (guaranteeing republican form of gov’t);
always nonjusticiable political question
i. Problem in Baker: political process deadlocked, need remedy (see Clark’s
concurrence: similar to Carolene Products: discrete & insular minority; if
other avenue for relief, judicial intervention not necessary)
ii. Dissents: really a Guaranty Clause issue; deciding these cases involves
deciding what republican form of gov’t is (non-justiciable)
1. In reality, Guaranty Clause better fit (but long-standing case law
prevents it from being invoked); EP is better for racial
gerrymandering (individual rights)
V. One Person, One Vote
a. Reynolds v. Sims (1964): EP requires equal representation; all votes must be
weighted equally (majority must be able to effectuate its will)
i. Fundamental, personal right (strict scrutiny); both houses of state
legislature must be apportioned based on population (Senate analogy does
not apply in state elections)
ii. States: more flexible, may rely on political boundaries (deviation may
suggest gerrymandering); deviation requires legitimate state concerns to
effectuate rational state policy (similar to strict scrutiny?)
iii. Dissent: political question (deciding that majority rule is required
necessarily involves defining republican form of gov’t)
b. Standard for equipopulation: good faith effort to achieve precise mathematical
equality (one person, one vote: establishes baseline standard)
i. Mahan v. Howell (1973): 16.5% deviation justified by regional
representation (also difference btw number of state legislative seats and
congressional seats)
1. 10% rule of thumb (though factors that point to gerrymandering
may be used to strike down lower deviations)
2. Outlier: 89% deviation upheld because challenge to single district,
not statewide redistricting (Brown v. Thomson, 1983)
3. Less than 10% may be struck down if no legitimate state interest
ii. Plans may be based on number of registered voters (Burns v. Richardson,
1966); but Garza v. County of LA (9th Cir 1990) requires entire population
to be counted (all people are governed, even if they do not vote)
1. Equal representation v. electoral equality (Note: Reynolds one
person, one vote std based on population)
c. Lucas v. 44th Gen Assembly of the State of CO (1964): although voters approved
apportionment scheme by referendum & deviation in House OK (1.7 to 1),
scheme perpetuates existing Senate scheme (3.6 to 1), which is not justified by
any legitimate state interest and does not comply w/ EP
i. Rights cannot be infringed just b/c majority of voters approves plan
ii. Dissents: deviations justified; each state different; the problem here is not
legislative inaction; nonjudicial remedy preferred; still buys majority rule
d. Karcher v. Daggett (1983): struck down NJ redistricting plan despite very small
variation (0.1384%); congressional districts require exact equality given available
i. plan not per se violation: burden simply shifts to state to prove deviations
were necessary to further legitimate state interest (state did not set forth
specific interests here)
1. Permissible state interests: compact districts, political boundaries,
preserving cores of prior districts (same representation); avoiding
incumbent battles
ii. Dissent: absolute equality encourages gerrymandering; political
boundaries may (should) be considered
1. Note: political boundaries protect against gerrymandering
e. Vieth v. PA: same court dismissed political gerrymandering claims, but then
struck down scheme minute differences under one person, one vote grounds (new
plan achieved same gerrymandering, but ct had no option but to uphold b/c no
deviation btw districts)
i. Later, SCOTUS held political gerrymandering unjusticiable
1. Even after this, can strike down deviations from one person, one
vote due to partisan districting (not a direct political
gerrymandering claim; just means deviating from one person, one
vote cannot be justified by partisan concerns)
f. Dept of Commerce v. US House of Reps (1999): cannot use sampling for
apportionment (statutory interpretation issue: avoided constitutional question of
whether sampling violated Census Clause)
g. Gordon v. Lance (1971): upheld supermajority (60%) requirements for bond
indebtedness/tax rates in referendum election
i. Unlike representation, other issues do not require majority rule (similar to
impeachment, ratification of treaties in Senate); no violation of EP as long
as no identifiable discrimination (states decide what is important)
VI. Local Governance
a. Even without constitutional requirement that local officials be elected, if they are,
they must satisfy Reynolds (one person, one vote)
i. Avery v. Midland County (1968): TX county Commissioners Court must
abide by Reynolds (exercised admin/exec & legislative powers)
1. "unit of local gov't w/ general responsibility & power over local
affairs" -SCOTUS overruling TX SC (that said legislative powers
were negligible)
ii. Appointed school boards do not need to abide by one person, one vote
(don’t have to “represent” districts w/ same amt of people)
1. But Hadley v. Junior College District (1970) upheld requirement
due to general gov’t powers (i.e. bond issuance, levying &
collecting taxes)
b. Board of Estimate v. Morris (1989): NYC board of estimate struck down under
one person, one vote (EP violated – despite disparate population, boroughs have
same ability to affect vote)
i. Powers general enough to apply principles: budget, land use, franchise, Ks
ii. Citywide electeds (who each got 2 votes) could outvote individual
boroughs (6 to 5); 78% deviation not justified by gov’t interest
1. Even if legitimate state interest, very difficult to justify 78%
c. Wells v. Edwards (MD LA 1972): one person, one vote does not apply to state
court judges (but VRA covers judicial elections)
d. Ball v. James (1981): when powers of gov’t entity are (1) so far removed from
general gov’t powers and (2) disproportionately affect a certain group of citizens,
one person, one vote does not apply (here: water reclamation district board voted
on according to land owned)
i. Although this case differs from Salyer (also involving voting for water
district bd, but based upon valuation of property) because this bd has
much more powers and covers half of AZ, no constitutional difference
(cannot levy taxes, enact laws); really just a business purpose (which does
not change because they sell electricity to fund activities)
ii. Disproportionate effect justifies voting power (reasonable relationship to
statutory objectives)
iii. Concurrence: defer to legislature (political processes are the proper place
to voice grievances – legislature can change statute)
iv. Rule: single purpose districts do not need to apply one person, one vote
e. Even a petition to create an SPD may be limited (unless result of successful
petition is to put SPD up for a vote of entire electorate: cannot allow small group
to control electorate’s ability to vote)
f. BIDS not subject to one person, one vote principles despite broad powers (collect
assessments, make capital improvements, provide services, etc)
i. Property owners who vote are disproportionately affected; powers do not
rise to general gov’t powers; reasonable relationship btw voting power and
statutory objectives (purpose of BID)
g. Rice v. Cayetano (2000): HI cannot limit elections for Office of Hawaiian Affairs
to Hawaiian descendants; decided not under 14th A, but race neutrality
requirements of 15th A (cannot abridge right to vote based on race)
h. Fumalaro v. Chicago Board of Ed (1990): because no showing that school boards
have special limited purpose, strict scrutiny applies; powers of school boards
different from water districts (cornerstone of educational policy, financed by all
residents through property tax, school decisions affect entire electorate)
i. Limited purpose, disproportionate effect, gov’t powers tests all failed
ii. Education affects crime, economy, etc.
iii. Just because someone doesn’t have a child in the schools now doesn’t
mean they may in the future
iv. Even though strict scrutiny applies, even a rational basis does not justify
the classification of voters
i. Gray v. Sanders (1963): despite similarity to electoral college, county system
(aggregating county votes for statewide offices) struck down under one person,
one vote (debasement of voting power – rural counties have more power)
VII. Political Parties
a. Although constitution sought to preclude rise of political parties (“factions”), they
have risen in importance to the point that courts have to protect the equality of
parties and meaningful party competition)
b. White Primary cases: state action doctrine – to what extent were parties
appendages of state (subject to constitutional limits) or private organizations
i. Nixon v. Herndon (1927): statute restricting primary voting to whites clear
14th A (EP) violation; don’t need 15th; decision clearly based on race
ii. Nixon v. Condon (1932): after TX passed law to allow parties to set
qualifications, “white Democrat” primary requirement struck down
1. Parties given power to discriminate by State (so state actors)
iii. Grovey v. Townsend (1935): upheld exclusion of black voter b/c resolution
required Democrats to be white (no state action; party’s 1st A associational
interests involved; state does not pay for primary)
c. US v. Classic (1941): extended “right to vote” to primaries (“the primary…is an
integral part of the procedure for the popular choice of Congressman”)
d. Smith v. Allwright (1944): Art 1, Sec 4 authorizes Congress to regulate primaries;
delegation of State to parties to fix primary qualifications is state action; when
primaries become part of political machinery, same tests apply as general
elections (state is enforcing discrimination by placing discriminatorily elected
candidates on the ballot)
e. Terry v. Adams (1953): state action found when state allowed Jaybird Party (all-
white) to run its own elections, whose winners almost always go on to win
primary & general election (permitting prohibited election to influence primary
and general elections is unconstitutional state action – 15th A)
i. Concurrence (Frankfurter): county election officials participate & condone
1. Note: too formalist; bad reasoning to reach right result
ii. Concurrence (Clark): functionalist – Jaybird primaries prevent meaningful
primary & general election (state selects discriminatorily elected candidate
to place in primary election – violates 15th A)
f. Morse v. Republican Party of VA (1996): rules governing who could participate in
nominating convention governed by VRA (requires state action)
i. “Voting” includes “all action necessary to make a vote effective in any
primary, special, or general election, including, but not limited to,…
casting a ballot and having such ballot counted properly with respect to
candidates for public party office”
g. Romer v. Evans (1996): overruled Davis v. Beason (1890) which upheld denial of
right to vote if encourages bigamy; resulting rule: cannot deny the right to vote to
persons advocating a certain practice
h. Burdick v. Takushi (1992): applying “rational basis” scrutiny to prohibition on
write-in voting (states given power to regulate elections)
i. Substantial regulation is necessary in election context (to be fair, honest &
preserve order, rather than chaos)
ii. Strict scrutiny applies if severe restriction on right to vote (narrowly
drawn to advance compelling state interest)
iii. Flexible std: weigh character and magnitude of asserted injury against
state interests justifying burden, taking into account the text to which those
rights make it necessary to burden the plaintiff’s rights
1. When election law imposes reasonable, nondiscriminatory
restrictions, state’s important regulatory interests generally
sufficient to justify burden
2. HI makes ample provisions to get onto the ballot (by petition,
through party, nonpartisan ballot), so only slight injury
(outweighed by interest in protecting against factionalism or sore
loser divisiveness)
iv. Dissent (Kennedy): elimination of meaningful choice is significant burden
(very difficult to justify significant infringement)
1. One-party state (primaries decide elections); HI requires single
ballot in primary (if vote for independent in primary, lose right to
vote in other races)
v. Note: most state courts include write-in under “right to vote”
i. McIntyre v. OH Elections Commission (1995): struck down prohibition of
anonymous campaign literature on 1st A grounds
VIII. Political Parties’ Associational Rights
a. California Democratic Party v. Jones (2000): blanket primary unconstitutional
(forces party to associate with those who refused to affiliate and those who
expressly chose party’s rival)
i. Prevents party from selecting candidate of its choice or may require
candidate to moderate his views to be nominated
ii. No compelling state interests (fairness, greater voter choice, increasing
voter participation, protecting privacy not compelling), not narrowly
tailored (nonpartisan primary is OK – state is not selecting candidate for
party, but serves same interests above)
iii. Dissent (Stevens): distinguishes btw state actions that restrict participation
and broaden it; states regulate elections; voters chose to adopt this
b. When state law conflicts w/ party rules, state must allow party rule to supplement
law (“party autonomy”)
i. Nat’l party rule trumps state law (Dem Party v. LaFollette, 1981: nat’l
party did not have to accept WI open primary candidate)
1. Dissent: this is just a dispute btw the national and state (party-in-
gov’t) arms of the party
c. Tashjian v. Republican Party of CT (1986): state cannot prevent party from
instituting open primaries (allowing party members and independents to vote),
restricting associational opportunities at the crucial point of selecting a candidate
i. “crucial juncture at which the appeal to common principles may be
translated into concerted action, and hence to political power in the
ii. Once state allows primary, cannot invoke cost/admin concerns to justify
abridging associational rights
iii. The rule only prevents independents from voting in a primary, which is
allowed by party; although state contends this would confuse voters “cases
reflect a greater faith in the ability of individual voters to inform
themselves about campaign issues”
iv. Cannot substitute public will for that of the party
v. Dissent (Scalia): not an associational right; voting in primary is a casual
contact; states have no duty to fund party processes
1. State funds primaries, does not have to allow parties to open them
up if they can achieve the same end by opinion poll
d. Rosario v. Rockefeller (1973): upheld requirement to affiliate w/ party before Nov
election to participate in following year’s closed primaries (state interest of
preventing interparty “raiding”)
e. Clingman v. Beaver (2005): State semi-closed primaries (similar to Tashjian: only
open to party members and independents) upheld; no associational rights
implicated b/c only restriction is against party members participating in other
parties’ primaries (so rational basis) – rational way to promote role of parties
i. Challenge by Libertarian party – want other parties’ members to be able to
vote in their primary (modest burden on associational rights – especially
as compared to prohibition against fusion candidacies upheld)
ii. Concurrence: once burdens become more severe, closer scrutiny required
b/c laws created by “party-in-government” (take into account entire voting
scheme, not just law at issue)
iii. Dissent: “naked interest in protecting the two major parties”
f. 9th Cir struck down semi-closed primaries that not only allowed non-party
members to chose candidate, but also party officials
g. Lower courts have protected rights of third parties (upholding rules of party that
allow non-party members to vote in their primaries – directly opposite to decision
in Clingman – whether members of other parties or unaffiliated)
i. Challenges by member of major parties receive less concern (i.e.
protecting state system preventing Republican from voting in Democratic
primary where Democrat was the only party fielding a candidate)
h. WA State Grange v. WA State Republican Party (2008): upheld blanket primary
that included indications of “party preference” and sent top two candidates,
regardless of party, to general election
i. No reason to strike down law based on speculation; contrary to judicial
restraint; short-circuits democratic process
ii. Dissent (Scalia): “wait and see” approach will not prevent constitutional
violations (no way to administer primary w/o infringing 1st A rights)
1. Applies strict scrutiny – severe burden on associational rights
iii. Note: facial challenge; may have been better to bring as-applied challenge
after election (but still hard to prove)
1. With regard to evidence (especially in facial challenges), court
does not require much to uphold law (deferring to legislature &
political processes), but will require some to invalidate law
a. Deference to state in election context?
i. Only parties whose associational rights have been allegedly violated have
standing, not individual voters (but fed case in NY allowed non-party member to
challenge candidate’s violation of signature-gathering requirements)
j. NY State Bd of Elections v. Lopez Torres (2008): challenge of judicial election
scheme (party members elect delegates, who vote for judicial candidates
nominated at party conventions) rejected; no right to have a “fair shot” in the
candidate selection process
i. Challenge pits voters against its own party; no associational rights in this
ii. Concurrence (Kennedy): although state prohibited from placing too great a
hurdle on reasonably diligent independent candidate, cited signature
gathering petition process as alternative to get on general election ballot
IX. White primary cases v. associational rights cases
a. Party can’t discriminate (racial basis) v. state can’t tell party who can vote in its
primary (party can close primary to non-party members)
i. “White primaries” basically dispositive of general election; discrimination
against people who don’t want to affiliate much different than against
people based on race
X. The Two-Party System
a. Ballot Access
i. Williams v. Rhodes (1968): law requiring 15% of ballots cast in last
election by Feb before election unconstitutional under EP (favored
established parties); preventing against stifling growth of parties
outweighs state interest in ensuring candidate wins majority of electorate
1. Parties receiving at least 10% in last presidential election
automatically on the ballot
ii. Jenness v. Fortson (1971): 5% petition of total registered voters in last
election for office sought by independent candidates upheld
iii. Storer v. Brown (1974): substantial regulation necessary in election
context; each restriction must weigh state interest against those burdened
by restriction considering facts and circumstances behind the law
1. No litmus test (similar to Crawford – applying Anderson/Burdick)
2. Sore loser statute (prohibiting primary losers from running as
independents in general election) upheld
a. Ensuring candidate receives sufficient support to govern
effectively (majority representation)
3. Signature requirement (24-day period for independent candidates
to gather 5-6% of votes in previous general election, but not
primary voters) remanded for fact-finding
a. Disqualification of voters in primary unproblematic but
coupled with % requirement, may pose problems
iv. Anderson v. Celebrezze (1983): stringent and searching scrutiny (not
followed in later cases) used to strike down early filing deadline for
independent candidates
1. Test: character & magnitude of assert injury, identify & evaluate
precise state interests as justifications for burden, determine
strength and legitimacy of each interest and the text to which those
interests make it necessary to burden right
v. Munro v. Socialist Workers Party (1986): upheld law limiting ballot
access based upon 1% support in blanket primary
1. No need for state to put forth evidence of voter confusion
(legislature must be able to act prospectively as long as action does
not significantly impinge upon rights)
2. Std: rational relationship btw classification and gov’t interest (does
not have to be most reasonable solution)
3. State interest: ensuring majority, protect integrity of system (law
enacted in response to joke candidate)
4. Dissent: party-in-gov’t problem (law supported by established
b. Interaction of Ballot Access and Other Electoral Regulations
i. Timmons v. Twin Cities Area New Party (1997): upholding prohibition of
candidate running under more than one party (1st & 14th)
1. Although party has a right to choose its candidate, this right may
be limited by not allowing party to choose someone ineligible for
office, unwilling to serve, or another party’s candidate
2. Slight burden to associational rights justified by legitimate state
interests: preventing voter confusion, protecting integrity of two-
party system
3. Dissents: disadvantaging minor parties should weigh against
constitutionality, protecting two-party system should only be
legitimate if state can prove it is in jeopardy
ii. Fusion candidacy: emerged in late 19th century, but banned more and more
because parties want to prevent 3d parties from getting into legislature
c. Interaction of Access & Perpetuation of Two-Party System
i. AR Educational TV Comm’n v. Forbes (1998): upholding decision by
public TV agency to restrict access to 3d party candidate to televised
1. Nonpublic forum (lesser scrutiny) – journalists must be allowed to
have discretion; cannot engage in viewpoint regulation; must be
a. Not a designated public forum “generally available” to a
class of speakers, but selective access for indiv speakers
2. Dissent: state action of prior restraint without narrow, objective &
definite stds (ad hoc & subjective) unconstitutional; decision to
exclude from debates (centrally important to electoral process)
may have decided election
XI. Voting Rights Act of 1965
a. Watered-down Civil Rights Act of 1960 allowed DOJ to bring suit, but victories
often pyrrhic (many places continued to use literacy/understanding requirements
to bar blacks from voting); lock-ups in South prevented meaningful legislation
b. South Carolina v. Katzenbach (1966): upholding VRA under enforcement power
(Sec 2) of 15th A
i. Test: legislation appropriate to carry out objectives of amendments,
enforce submission to prohibitions, secure equality of civil rights and EP
1. Solved problem of litigation remedies; remedies limited to states
w/ violations; suspension better than requiring registration
(participating in unconstitutional scheme); review of new tests
appropriate given past action following court intervention
ii. Sec 4(a) suspends literacy tests & similar qualifications for 5 yrs; Sec 5
suspends new voting regulations pending review
iii. Coverage formula: (1) test or device employed; (2) less than 50% of
voting-age registered
1. Suspension of test terminated if OK’d by AG or declaratory
judgment in DC District Court
iv. Not technically overruling Lassiter (ltd to covered jurisdictions)
c. VRA extended in 1970, 1975, 1982, 2006
i. Current section 4: uses triggering dates in 1964, 1968, 1972
ii. Poll tax avoided: (1) banned by constitutional amendment; (2) struck
down on EP grounds; (3) powerful Southern legislators (AR, TX)
supported poll tax
iii. Test/device extended to incl. not distributing other language ballots in
areas with large non-English speaking population
iv. Sec 4 applies to places that administer registration, Sec 5 applies to all
v. Even if only portion of state covered, if state law makes changes in
covered jurisdictions, VRA applies
d. State action extends to political parties (Morse v. Republican Party of VA, 1996 –
issue: who could participate in nominating conventions)
i. But Sec 5 does not extend to parties , according to DC Dist Ct (enforcing
Sec 5, requiring preclearance, would infringe upon 1st A rights of parties)
e. Allows covered jurisdictions to “bail out” (declaratory judgment)
i. Gaston County v. US (1969): despite impartial application of literacy test,
ct held past school segregation denied equal educational opportunities (no
bail out)
ii. Bail out provisions amended in 1982 (new test: (1) compliance w/ VRA;
(2) elimination of discriminatory procedures; (3) constructive efforts to
expand opportunities in political participation)
f. Katzenbach v. Morgan (1966): Section 4(e) prohibiting restriction on registration
to PR voters based on literacy requirement upheld
i. PR citizens denied EP; without right to vote, jeopardizes ability to access
gov’t services
ii. FN 10 (“ratchet theory”): Congress may expand constitutional protections
but not restrict them (rejected in City of Bourne v. Flores, 1997)
1. Nonetheless, Sec 4(e) still upheld
g. 1970: VRA banned literacy tests nationwide (originally just covered jurisdictions)
i. Upheld in Oregon v. Mitchell (1970): enough evidence to ban nationwide
originally, but immediate action was required in covered jurisdictions (and
history of rise in registered voters under VRA supports extending ban)
1. History of educational inequality (Gaston County)
2. Extension prevents citizens from losing rights when leaving
covered jurisdiction
h. Congress cannot expand constitutional protections (rejecting “ratchet theory”)
i. Can prescribe remedies for actions that violate 14th A but cannot redefine
meaning of 14th A; but Sec 5 powers stronger when dealing with suspect
class or fundamental right
ii. Lopez v. Monterey County (1999): upheld preclearance of county adopting
neutral state law re: judicial elections (may be discriminatorily applied in
covered jurisdictions)
1. recognized “federalism costs” of VRA, but believes they are
outweighed by gov’t interest to prevent discriminatory voting
2. Dissent: no evidence of statewide discrimination; invasion of state
sovereignty; difference btw preclearance & literacy tests
i. NAMUDNO v. Holder (2009): special purpose district eligible for bailout;
although lower ct interpreted law to not allow bailout if place does not register
voters, ct says if this is the case, applying preclearance is unconstitutional
i. Holding: all political subdivisions eligible for bailout
ii. Decision begins to question constitutionality of VRA (past success not
enough, but coverage formula is the best among alternatives and changing
it would disrupt settled expectations)
iii. Dissent (Thomas): Sec 5 unconstitutional; isolated incidents not enough to
justify intrusion into states’ rights
j. Query: if GA argues Sec 5 does not meet Bourne’s “congruence and
proportionality” std for enforcing Sec 5 of 14th A, can gov’t defend that as applied
to GA, Sec 5 does meet this standard?
i. To uphold coverage formula, would have to prove not only that
discriminatory voting practices still exist, but also that they are worse in
the covered jurisdictions
k. Sec 5 “covered change”: applies to voting qualification, prereq to voting; std,
practice or procedure
i. Not ltd to voter registration issues, but entire voting scheme (i.e. district-
based v. at-large elections; appointive v. elective)
ii. Changes in decisionmaking authority not covered change
l. Section 5 std: whether rule has the purpose or effect of denying or abridging the
right to vote based on color
m. Beer v. US (1976): after AG refused to preclear Plan I (1 majority black district
but not in voting-age population) and Plan II (2 majority black districts and 1 in
voting-age population), ct reversed Dist Ct holding that Plan II violated VRA
i. VRA only prevents retrogression; does not prevent any changes that make
blacks better off (“ameliorative”)
ii. Ct interprets Sec 5 to apply to “change” not practice, procedure, etc itself
iii. Note: retrogression may be hard to establish (some cts allow legislatures
to create influence and coalitional districts and do not require majority-
minority districts b/c cts tend to stray from requirement of PR)
n. Although Bossier Parish II held that even if discriminatory purpose shown, but no
retrogression, does not violate VRA, 2006 amendments to VRA apply Sec 5 to all
showings of discriminatory purpose (even if no retrogression)
XII. Vote Dilution & the Constitution
a. Reynolds stripped rural black counties of influence
i. Vote dilution reflects a second generation voting rights claim (1st gen:
right to vote); involves aggregation & “proper distribution” of voting
power (balancing majority rule against minority interests)
b. Whitcomb v. Davis (1971): refusing to hold that at-large (multi-member) voting
schemes per se unconstitutional, upholding Marion County, IN use of scheme
i. But the validity of multi-member schemes are justiciable and may be
struck down under EP where they “operate to minimize or cancel out the
voting strength of racial or political elements of the voting population”
1. Challenger bears the burden of proof: not met here; losing
elections does not translate into discrimination
2. Harlan (separate opinion): this opinion rejects majority rule
(cornerstone to federal republic); no std proposed by ct
3. Dissent: gerrymander diluted black voting power; don’t need
evidence of discrimination (race different than other interests)
c. White v. Regester (1973): recognized vote dilution claim where use of at-large
districts invidiously discriminated against blacks (violation of EP)
i. Ps bear burden of proof to show processes of nomination and election not
equally open to the group in question
ii. Although striking down districts, used different factors in each county and
set forth no std for deciding vote dilution cases
1. i.e. Bexar County (which contained large Mexican population)
used a poll tax, restrictive registration requirements, etc to
invidiously discriminate against Mexicans (language barrier);
Dallas County – white-dominated org in effective control of
Democratic Party, majority-vote rules, place rules, etc
d. Fortson v. Dorsey (1965): EP not violated by hybrid senate election (small
counties banding together, some large counties had at-large elections)
i. Complied w/ one person, one vote (court’s main focus)
ii. Set the std for vote dilution used in Whitcomb (“operate to minimize or
cancel out voting strength”), but left question open to further litigation
e. Davis v. Bandemer (1986): partisan gerrymandering claims justiciable
f. Totality of the Circumstances (Zimmer factors)
i. Zimmer (5th Cir 1973): applied Whitcomb/White std by providing factors
relevant in determining whether vote dilution had occurred:
1. Lack of access to slating candidates
2. Unresponsiveness of legislators to particularized interests
3. Policy underlying multi-member/at-large districting
4. Existence of past discrimination in access to political process
ii. Zimmer factors enhanced by:
1. Existence of large districts
2. Majority vote requirements
3. Anti-single shot voting provisions
4. Lack of provision for at-large candidates running from particular
geographical subdistricts
g. City of Mobile v. Bolden (1980): requiring discriminatory intent for vote dilution
i. No evidence of discrimination: blacks were able to register and vote
without hindrance; court applies Zimmer factors but not enough to
constitute vote dilution (past discrimination & at-large districts not
enough); refuses to require proportional representation
1. Sec 2 provides no greater protection than 15th A
ii. Dissent: discriminatory impact/effect enough; also apply Zimmer factors
but find enough evidence to constitute vote dilution
iii. Stevens std: vote dilution applies to all groups (not just racial groups);
adverse impact alone not enough, but must look to whether political
decision (redistricting) is consistent with past practices, supported by a
neutral justification and has an adverse impact
iv. On remand, at-large elections struck down: discriminatory intent
1. Originally adopted for discriminatory purpose
2. Another application of Bolden std: Rogers v. Lodge (1982):
although at-large districts were not originally adopted for
discriminatory purpose, they were maintained for such purposes
v. Note: between White & Bolden, cases decided in other contexts that
required showing of state action w/ discriminatory purpose, not intent (i.e.
Washington v. Davis)
XIII. Vote Dilution & the VRA (1982 Amendments)
a. Section 2: (a) cannot take actions that result in denial or abridgement of the right
to vote (protecting racial and language minorities); (b) totality of circumstances
(political processes not equally open to minorities, less opportunity to elect
representatives of their choice)
i. “vote dilution” not in the statute; legislators focused on no PR requirement
ii. Courts used “Senate factors” in interpreting Sec 2 change (essentially
Zimmer factors): (1) history of official discrimination that touched right of
minority group to register, vote, etc.; (2) racially polarized voting (bloc
voting); (3) large districts, majority vote requirements, anti-single shot
voting, and other provisions that allow for discrimination; (4) if candidate
slating process, whether members of minority group denied access; (5)
effects of discrimination in education, employment, healthcare, etc.; (6)
racial appeals (campaigning); (7) extent to which minority members have
been elected
1. Additional factors: lack of responsiveness of elected officials;
tenuous policy for voting qualification, prereq, std, procedure
b. Thornburg v. Gingles (1986): applying Senate factors, hold that vote dilution can
be show in multimember districts:
i. Minority group must be significantly large & geographically compact to
constitute majority in single-member district (“harm” requirement – if
couldn’t elect representative in single-member district, no harm);
1. Lower courts require majority of voting age population
ii. Politically cohesive (related to harm – if minority group does not all vote
the same way, cannot elect representative); and
iii. Prove white majority votes as a bloc, usually to defeat minority’s preferred
candidate (if whites vote for minority preferred candidate, and he still
loses, no harm)
1. This test was created by the court (somewhat based on law review
article by Bolden lawyers); doesn’t include “totality of
circumstances” but applies workable std
a. No need to prove causation, just correlation (results test)
b. Race of the candidate does not matter, just that he is
c. Racial bloc voting: hard to determine; cannot determine distribution of votes
i. Only evidence: correlation (bivariate regression)
d. Following Gingles, vote dilution claims became routine
i. After 1990 redistricting, began to focus on single-member districts,
Hispanic minorities, statewide redistricting schemes
e. Johnson v. DeGrandy (1994): although finding that Gingles factors were met, no
violation of Sec 2; Gingles provided structure to “totality of circumstances” test,
did not replace it (no PR requirement – essentially what lower ct required,
drawing the maximum amount of majority-minority districts)
i. Under the totality of the circumstances, minority groups were able to elect
their chosen representatives in substantial proportion to their percentage of
the population
ii. “minority voters are not immune from the obligation to pull, haul, and
trade to find common political ground”
1. Std: equal political opportunity
iii. Also rejects safe harbor rule of proportionality: would allow for blatant
racial gerrymandering if offset by political gerrymandering in other parts
of the state
f. US v. Charleston County (4th Cir 2004): although Gingles factors met again, no
violation under “totality of circumstances”
i. 3rd Gingles factor: causation irrelevant, doesn’t matter if racial bloc voting
can be explained by partisanship; causation is relevant to “totality of
ii. Deferential std of review required affirming decision for Ps (finding racial
& partisan bloc voting in referendum for at-large elections)
g. Vainovich: rejected P’s claim that partisan reapportionment unlawfully packed
blacks into few districts
i. States allowed to choose how they want to comply with Sec 2; must prove
effect of denying equal opportunity to elect candidate of their choice
h. DeGrandy reframed right: power to influence elections not limited to winning
i. “Influence districts”: If minority voters can play a substantial role in
elections, they can influence politicians (effective opportunity to
participate in policymaking is at the heart of the VRA)
ii. “Coalitional districts”: Must also take into account ability of minorities to
form winning coalitions (even w/o numbers to sustain majority)
i. Holder v. Hall (1994): holding that single-member comm’n in 10 GA counties
does not constitute vote dilution
i. Unlike in other vote dilution claims, where benchmark is ability to elect
representatives of your choice, no benchmark (no “ideal” structure of
county gov’t that ensures equal participation)
1. Sec 5 (not Sec 2) imposes a non-retrogression std
ii. Thomas (concurrence): court should get out of this area; power of
Congress ends with ensuring equal access to ballot box; districting based
on race may enforce “political apartheid”
iii. Dissent: 5 member benchmark (up to 5-member authorized by state,
commonly used throughout GA); if effect of single member commission
results in lack of equal participation, vote dilution found
iv. Note: Sec 2 arguably may not extend to structure of gov’t (only covers
“voting qualification or prerequisite to voting or standard, practice or
j. Butts v. City of NY (2d Cir 1985): NY statute requiring primary runoff for
citywide office if no candidate receives 40% upheld under VRA
i. Although challengers argued this prevented blacks/Hispanics from having
effective vote, ct disagreed: legitimate (not racial) purpose; ensures
majority support for candidates
1. Effects of run-off in single member elections are unlike those in
multi-member (which may exacerbate effects of vote dilution)
2. Law enacted to promote better candidates (two mainstream Dem
candidates split primary, defeated by “safe streets” Dem who lost
in general election)
ii. But see Arkansas v. Jeffers (ED AR 1990): runoff primary laws had
discriminatory purpose (enacted after black candidates won by plurality)
k. Although felon disenfranchisement statutes have been upheld under Sec 2,
dissents have argued the VRA was enacted to enforce the 15th A (which sweeps
more broadly than the 14th & EP), and the increase in incarceration (and related
racial disparity) may be enough under results test
i. Majorities have distinguished felon disenfranchisement statutes: explicitly
mentioned in 14th A, long history of validity
XIV. Race & Representation
a. After 1990 reapportionment, DOJ insisted majority-black or Hispanic districts as
a condition for preclearance
i. Sometimes a problem for Democrats: creating majority black districts
increased racial representation, but decreased Democrats
ii. Similar problem: bring “filler” white people into majority-minority
districts who have no power to influence elections
b. UJO of Williamsburg v. Carey (1977): redistribution of minority residents in
Brooklyn to respond to AG objections (more evenly distributed blacks), but
splitting Hasidic population not violative of 14th or 15th A
i. No dilution of “white” voting strength (countywide whites still fared better
than blacks)
ii. Concurrence: may be problematic when discrete and insular groups
disproportionately affected (even if “white”)
iii. Dissent: racial gerrymandering unconstitutional; assumes interests based
on race
c. Shaw v. Reno (1993): when districting is based upon race alone, too close to
“political apartheid” and may be struck down under EP (recognized claim)
i. Race-consciousness alone not a violation of EP (only when it goes too far)
1. Cites Gomillion: district lines obviously drawn for purpose of
segregating voters by race requires careful scrutiny
ii. Dissent: sending 1st black representative from NC since Reconstruction
does not violate EP; whites have not shown lack of political power or
denial of fair representation
1. Stevens: gerrymandering unconstitutional only when entrenches
majority power (not protecting minority w/o power)
iii. Shaw factors: compactness, contiguousness, respect for political
boundaries (although not constitutionally required, may be used to rebut
claim of racial gerrymandering)
iv. Shaw II: 1st district ameliorative (so 2nd not required under Sec 5 of VRA);
1st prong of Gingles not met (compactness), so no violation of Sec 2
d. Bush v. Vera (1996): because districting technology available to all interested
parties was calibrated more precisely based on race (and not party affiliation or
past voting returns), violated Shaw
i. O’Connor opinion for the court: Compliance w/ Sec 2 results test may be
compelling interest, but state must show w/o redrawing those districts,
would be subjected to Sec 2 liability
1. In a separate concurrence: compliance w/ Sec 2 is compelling
ii. Incumbent protection: evidence that supported striking down districting
(representatives selecting voters)
e. Standing: must be citizen of district to challenge district (despite that harm isn’t
really a direct harm, but an “expressive” harm)
f. Miller v. Johnson (1995): “bizarreness” evidence of racial gerrymandering (not
per se unconstitutional), but may use other evidence
i. Strict scrutiny applied when race is “predominant” factor
ii. Although compactness not required per se, still relevant in compelling
interest and narrow tailoring analyses
XV. Denouement
a. After Shaw districts redrawn, lowering black percentages to just below majority
(and splitting fewer counties, smaller district, but retained basic shape),
challenged again in Hunt v. Cromartie (1999)
i. After SJ for challengers, Thomas for majority said state set forth non-
discriminatory reasons (protect incumbents, adhere to traditional
districting criteria, preserve existing partisan balance), so SJ inappropriate
1. After full trial, struck down – SCOTUS reversed
b. Easley v. Cromartie (2001): holding that race was not a predominant factor in
redistricting (despite high clearly erroneous std)
i. Legislators acted for political reasons (reliable Democratic districts)
1. Challenger’s expert’s district pitted two incumbents against each
other (so districting to avoid this is legitimate goal)
2. “direct” evidence (email, speech mentioning race) not indicative of
race-based objectives
a. Challenger must show alternative solution w/o sacrificing
other objectives; better racial balance
c. Easley: “exit strategy”? (only overwhelming evidence violates Shaw)
i. Maybe redistricting “internalized” Shaw
ii. Most districts upheld under Shaw drawn by non-political actors (i.e.
federal courts, special masters, appointed commissions)
d. Georgia v. Ashcroft (2003): despite reducing ability of blacks to directly elect
representatives of their choice, creating influence and coalition districts survives
preclearance under Sec 5
i. Not a required to comply w/ Sec 2 (only non-retrogression under Sec 5)
ii. Totality of the circumstances: greater participation in political process
1. Almost all black legislatures voted for plan
2. Defer to state to determine whether descriptive or substantive
representation achieves state interests
iii. Possibly another attempt to recede from previous tests/opinions setting the
baseline as proportional representation
iv. Kennedy concurrence: race is a predominant factor here (Sec 5); under
Sec 2, would trigger strict scrutiny (not here – fundamental flaw)
v. Dissent: although coalitional districts may allow blacks to elect reps of
their choice, influence districts will not (and even if Dem rep is elected,
may not respond to black concerns in influence districts)
1. If influence districts permissible, not much left of Sec 5
vi. Does this case just boil down to partisan concerns?
1. Dems: increase influence/coalitional districts for more Dems
2. Reps: retain packed districts to increase Rep representatives
vii. After Georgia, Congress amended Sec 5 to require blacks must be able to
elect reps of their choice
e. Bartlett v. Strickland (2009): states are permitted to substitute coalitional districts
(but does not require) under Sec 2
i. So NC cannot violate its constitution by splitting counties it redistricting
through coalitional districts (Supremacy Clause)
ii. Requiring specific type of district would lead to extreme reliance on race;
under Sec 2, need to satisfy Gingles compactness requirement (under
coalitional districts, this isn’t met, so cannot require them)
iii. Dissent: Sec 2 requires coalitional districts if it allows blacks to more
effectively elect representatives of their choice
XVI. Partisan Gerrymandering
a. Districting always involves substantive, outcome-oriented judgments
i. Not only based on race, but also partisan preferences
ii. Court has been careful not to treat all outcome-oriented districts as
constitutionally-infirm gerrymandering
b. Gaffney v. Cummings (1973): redistricting to achieve political equality between
parties not unconstitutional
i. Very purpose is to reach fair results; if redistricting does not take partisan
preferences into account, results in grossly unfair gerrymandering
ii. Judicial interference at its lowest when state trying to ensure fairness
iii. Note: shape of districts not relevant unless independently constitutionally
c. Davis v. Bandemer (1986): partisan gerrymandering justiciable under EP
i. Must show (1) intentional discrimination against an identifiable group;
and (2) actual discriminatory effect on that group
ii. Std: consistently degrading voter’s or group of voters’ influence on
political process; continued frustration of will of majority or denial of
majority to influence political process
1. Intentional deviation from PR not discriminatory (political
influence not limited to winning elections)
iii. Note: circular reasoning? If majority wins elections, how can elections
frustrate will of majority?
d. Badham v. Eu (ND CA 1989): although seen as worst partisan gerrymandering in
history, only 1st Bandemer prong satisfied (intent), not effectively “shut out” of
the political process (not limited to elections)
i. Did not show “strong indicia of lack of political power and denial of fair
ii. Also pointed to fact that governor & senator was Republican
iii. Similar example in MI: pitting 6 incumbent Dems against each other –
despite intent found, 2nd prong (effect) not met
iv. Even harder to prove partisan gerrymandering b/c it is a defense to racial
gerrymandering (Easley)
e. Vieth v. Jubelirer (2004): partisan gerrymandering not justiciable
i. “political question”: lack of discernable or judicially manageable std
1. Any std moves toward requiring PR
a. Majority of voters does not mean majority of seats (races
are not for majority of seats, but for each indiv district)
2. “Fairness” std: political, not discernable; no concrete criteria
ii. Challengers test: (1) predominant intent – impossible to determine, esp at
statewide level; (2) denial of chance to participate in political process –
but party preference is not the same as race (not readably discernable)
1. Difference btw racial (cannot use race) & partisan (cannot use too
much) gerrymandering
iii. Dissents: Stevens – consider gerrymandering claims at district (not state)
level; if only reason for districting is partisan, no rational basis; Souter – 5
part test (but no std); Breyer – unjustified entrenchment (depends on
definition of “effective gov’t”); Kennedy – not sure, but doesn’t want to
preclude future claims (maybe 1st A better std)
1. Stevens – follow Shaw reasoning; Souter – vote dilution std (w/
extra factors): (1) cohesive political group; (2) traditional
districting principles; (3) correlations btw deviations from
principles and distribution of population of group; (4) P must show
better hypothetical district; (5) intent to discriminate
XVII. Campaign Finance – Contributions & Expenditures
a. Governed by 1st A law (expressive conduct)
i. Protection of speech: (1) necessary for autonomy/self-expression; not
instrumental, but principle objectives; (2) marketplace of ideas; (3)
necessary for liberal democracy
ii. Doctrinal framework:
1. Time, place and manner restrictions: content neutral, need to serve
substantial gov’t interest & do not unreasonably limit avenues of
communication (rational basis);
2. Content regulation: compelling state interest, narrow tailoring, w/o
unnecessarily infringing upon other protected speech (strict
3. Viewpoint regulation: (very) strict scrutiny; very unlikely that any
regulation under this test will be upheld
b. Federal Election Campaign Act (FECA): limits on contributions by indiv/corps,
parties & PACs; limiting spending; public funding for presidential campaigns;
reporting & disclosure requirements
i. 1974 amendments closed loophole that allowed unlimited number of
political committees
ii. Buckley v. Valeo (1976): allows some regulation of contributions (not
direct speech), but not for expenditures (direct regulation of speech)
1. Independent expenditures also may not be regulated
a. Campaign & independent expenditures – strict scrutiny
2. “Corruption” rationale for contributions
a. Content-neutral test applies; only “marginal restriction
upon the contributor’s ability to engage in free
3. Effect: unlimited demand, limited supply
a. b/c no restriction on spending, politicians spend 80% of
their time fundraising (should protecting confidence in
gov’t be legitimate state interest to protect w/ spending
c. Nixon v. Shrink Missouri Gov’t PAC (2000): contribution limits upheld (concerns
of actuality & appearance of corruption)
i. State interest: protecting democratic legitimacy; large contributions may
corrupt (defining corruption as quid pro quo)
ii. Stevens (concurrence): money is not speech
iii. Thomas/Scalia: overrule Buckley (no restriction on political speech)
iv. Kennedy: Buckley creates distortions; encourages issue advocacy
d. Other avenues of contribution: individuals/corps to parties & PACs (regulated);
parties to influence voters (not regulated); PACs to candidates (regulated)
i. CA Medical Assoc v. FEC (1981): upheld contribution limit of individuals
and groups to PACs
1. But unconstitutional to limit aggregation of contributions to
support or oppose ballot measure (Citizens Against Rent Control v.
City of Berkeley, 1981)
ii. CO Republican Fed Campaign Cmte v. FEC (Colorado Republican I)
(1996): cannot limit independent expenditures without coordination with
candidate (protected by 1st A)
1. Kennedy concurrence: party spending is always coordinated,
which supports its 1st A protection (should be no distinction btw
candidate & party spending)
2. Thomas dissent: no difference btw contributions/expenditures
3. Stevens dissent: all money spend by political party to secure
election of its candidate should be considered “contribution”
iii. Colorado Republican II (2001): coordinated expenditures may be treated
like contributions; thus, are subject to regulation
e. “Hard money” (candidate-controlled & more tightly-regulated contributions and
expenditures) v. “soft money” (funds raised by parties for “party building”)
i. Unlimited soft money from indiv to parties allowed (which could then be
used to influence state & local elections)
XVIII. Campaign Finance – Corporations & Corruption
a. First National Bank of Boston v. Bellotti (1978): law cannot restrict corp
expenditures on referenda that materially affect their property, business, assets but
never concerning indiv taxation (impermissible content & viewpoint regulation)
i. No risk of corruption or destroying confidence in gov’t
b. Note: if consider effect of regulation on speakers, problematic; but if consider
effect on listeners (“megaphone” problem), may be justified by legitimate state
interests of legitimacy of gov’t, preventing “corruption”, equal participation in the
political process (embodied in White dissent in Bellotti)
c. Austin v. MI Chamber of Commerce (1990): law can prohibit contributions &
independent expenditures in candidate elections by corps
i. Allows for contribution/expenditure through separate segregated funds
ii. But see FEC v. MA Citizens for Life (1986): restrictions on corp election
spending do not apply to non-profit corp run like a political assoc, rather
than a business corp; three essential characteristics:
1. Formed for promoting political ideas, not engaging in business
a. Chamber’s activities not limited to political ideas
2. Absence of S/Hs or others that have claims on its assets/earnings
a. No S/Hs in Chamber, but members may disagree w/
political ideas, but still pay dues for educational and
outreach programs
3. Independence from influence of business corps
a. More than ¾ of Chamber’s members are business corps
iii. Although law does not apply to labor unions (federal law does), unions do
not enjoy corp structure that allows great accumulation of wealth
iv. Scalia dissent: cannot restrict speech; Kennedy dissent: ruling eliminates
distinction btw contributions (regulated) & expenditures (protected)
v. Case invokes new state interest: protecting against potential distorting
effect of corp money on elections
1. Eule: repackaging of equalization goal (subsumed by “corruption”)
d. Meyer v. Grant (1998): struck down CO law that prohibited using paid petition
gatherers in conjunction with trying to get initiative on ballot
i. Core political speech restricted in limiting voices/hours & reduces
likelihood that enough signatures will be garnered
e. Campaign finance regulation illustrates uneasy mix of democracy/capitalism
i. Maybe solution is greater distribution of wealth
ii. Has the effect of making it harder to challenge incumbents
f. Soft money and the regulatory gap: distinction btw “campaigns” and “issues”
i. Boundary difficult to draw, but any regulation must seek to draw a tenable
one: campaign speech implicates state interests (preventing corruption,
equal participation), issue advocacy – greater 1st A protection
ii. Buckley held spending restrictions unconstitutional
1. But “express advocacy” (similar to contributions) could be
regulated: defined as “expenditures for communications that in
express terms advocate the election or defeat of a clearly identified
a. FEC v. MA Citizens for Life: involved express advocacy
(only listed certain candidates & voting records)
b. Narrow view of express advocacy led to the “soft money”
problem (avoiding bright line test – i.e. vote for, vote
against, etc – to spend unlimited sums)
iii. Congressional response – Bipartisan Campaign Reform Act of 2002
1. AKA McCain-Feingold; in exchange for closing loopholes in
“issue advocacy” and soft money, raised contribution limits
a. Soft money: preventing parties from raising/using soft
money; ban on parties using nonfederal funds for issue
advertisement connect to federal elections/candidates
b. Electioneering communication: preventing corp/union
funding of communication directly referring to candidate
w/in specified period before elections (in addition to
“express advocacy” – regulation upheld in Buckley)
g. McConnell v. FEC (2003): in response to corps & unions contributing “soft
money” to parties (which were then used to influence elections – either through
mixed-purpose activities, “issue advocacy”, or transfer to state parties)
i. Soft money used to gain access; candidates even solicited soft money
ii. Title I of BCRA: parties cannot solicit, receive, direct or spend soft money
1. Does not restrict the amt parties can spend, just the source
2. Lower level of scrutiny (not clear); preventing corruption & the
appearance of corruption (could jeopardize willingness of voters to
take part) are sufficiently important interest to justify contribution
iii. Title II: electioneering communication (broadcast, candidate for fed office,
60 days before general/30 days before primary, targeted to electorate,
received by 50K people)
1. Corps & unions still free to contribute with segregated funds
iv. Increased hard money limits upheld (no standing to voters), but
prohibition on contributions of minors struck down
v. Dissent (Scalia): campaign finance regulation protects incumbents
h. WI Right to Life v. FEC (2006): rejected rule that there can be no as-applied
challenge to FEC rule prohibiting communications that claimed to be “grassroots
lobbying advertisements”
i. Randall v. Sorrell (2006): VT contribution/expenditure limits struck down
i. Expenditure limits illegal under Buckley; contribution limits (very low)
not narrowly tailored, disproportionate burdens on 1st A interests
1. Weighing of interests approach (no bright line rule)
2. Core concerns: structural integrity of political process
(accountability, entrenchment of incumbents, competitiveness of
ii. Only Breyer, Roberts, Alito still support Buckley (but other judges
opposed on campaign finance regulation)
j. Public campaign funding: upheld, but doesn’t work in Presidential context
(candidate will always refuse); if revised, may run into unconstitutional
conditions doctrine
k. Davis v. FEC (2008): struck down “Millionaire’s Amendment” (allowing add’l
fundraising if running against self-funded candidate)
i. Rejected equalization rationale
l. Citizens United v. FEC (2010): struck down Sec 203 of BCRA (“electioneering
communication”); expressly overruled Austin (Congress cannot regulate
independent expenditures, even if “express advocacy”); upheld disclosure
i. Thus, the part of McConnell that dealt with regulation of independent
expenditures also overruled
ii. Prohibition on electioneering communication is a ban on speech (highly
protected: core political speech); subject to strict scrutiny
1. Austin rests on rationale rejected by Buckley & Bellotti (distorting
effects of corp money on elections or equalization)
2. Although anticorruption rationale, independent expenditures do not
pose the same type of corruption risk as direct contributions
3. Protecting S/Hs not compelling: if law was trying to achieve this
end, it is both over- and under-inclusive
a. Other avenues to protect S/Hs: corp democracy
iii. Although disclosure requirements OK, leaves open the possibility of as-
applied challenges if reasonable probability that disclosure would have
negative effects (threats, harassment, reprisal)
iv. Dissent: CU was still able to fund its movie through separately segregated
PAC funds; could have spend unlimited sums outside of statutory period
1. Difference btw corps & people; money is not speech
2. Broader view of corruption: access & ingratiation are only the first
steps; threats to not fund (flip side) still corruption
a. Antidistortion rationale is anticorruption
m. Levels of Scrutiny
i. Dissents in McConnell – apply strict scrutiny; no real scrutiny cited in
majority (regulation is reasonable in this area)
ii. Nixon – upholds low contribution limits (not heightened scrutiny); but
Randall strikes down very low contribution limits
iii. Citizens United: strong gov’t interests limited to quid pro quo corruption
(or the appearance thereof)
1. Dissent (Stevens): integrity of democracy
iv. Scrutiny shaped by infringement burden & strength of state interest
1. Kennedy & Citizens United majority – state interests (not rising to
the level of quid pro quo) not sufficient to restrict core political
a. Stevens: corps/unions can still use PAC funds (slight
burden on 1st A rights); strong interest in protecting
integrity of political system (equalization rationale is
n. Bellotti is still good law
i. Corps are not “people”; court flips default (question: if restriction on
speech that would otherwise be protected if said by person, does corp
structure change this?)
ii. Citizens United: although it does not say corp & indiv speech is the same
(corps are not people, but they are assoc of people), protects speech in
similar manner as it would be protected if person was speaker
o. Munro/Crawford – accepting state’s interests in preventing voter confusion/voter
fraud (without any concrete evidence); in campaign finance context, court
demands evidence (or in Citizens United, saying there’s no evidence of
i. Rights at issue are of different kinds: 1st A right to speech – typical
fundamental right (exists outside of election context); right to vote –
assumes substantial regulation, so gov’t given greater leeway in regulating
the vote (embodied in Burdick std)
ii. It is assumed that when the speech that provides information for people to
exercise their right to vote (which is more important), right to vote would
be better protected (but the nature of the rights goes against this)
XIX. Judicial Elections
a. Wells v. Edwards: One person, one vote may be rejected in judicial context due to
caseload demands
b. Chisom v. Roemer (1991): vote dilution claim under Sec 2 of VRA permitted in
judicial elections
i. Relying on legislative history to interpret “representatives” to incl. judges
(broadly interpreting right to vote to incl. Sec 2 & Sec 5 – not two rights)
c. Republican Party of MN v. White (2002): ethical canon (“announce clause”)
restricting judges from announcing views on political/legal issues struck down

i. Content-based regulation (rejecting state interest of judicial impartiality)

d. In re Raab (NY 2003): upheld restriction on judicial candidates raising money for
other political candidates; interest: maintaining integrity of judicial office
i. Similar interest as in US Civ Serv v. NA of Letter Carriers (1973),
upholding restrictions on fed branch employees from engaging in various
political activities
e. In re Watson (NY 2003): conduct rule prohibiting “making pledges or promises of
conduct in office other than the faithful and impartial performance of the duties of
the office” upheld
i. Distinguished from White: this rule does not prohibit political speech or a
blanket ban on promises – just those that don’t conform to judicial duty
f. Caperton v. Massey (2009): DP requires recusal when judge casting deciding vote
on appeal was given huge contributions by pres/CEO of defendant corp
i. Std: probability of actual bias too high (using objective and reasonable
criteria) to be constitutionally tolerable
1. Factors: high amt of contributions; total amt spent; effect on
election; timing of contributions (btw verdict & appeal)
2. Test is not whether money was but for cause
ii. Dissent: no discernable rule or standard (questions: how much is too
much? Are expenditures & contributions treated the same in this context?
What if orgs are contributing and not individuals?)
1. When no std & novel constitutional right, no claim (Vieth)
XX. Election Administration
a. Electoral Count Act: if state law procedures in place prior to election that produce
definitive result at least six days prior to meeting of electors (electoral college),
decision is binding on Congress (Sec 5 – safe harbor provision)
i. If dispute over electors, and only one set of electors sent, both Houses
must reject it; otherwise binding (Sec 15); if more than one, Congress
accepts state’s determination & Houses must agree; otherwise, state
executive provides final decision
b. Bush v. Palm Beach County Canvassing Bd (Bush I) (2000): although SCOTUS
generally defers to state court decisions interpreting state law, in presidential
election context, Constitution (Art II, Sec 1) provides add’l grant of power to state
legislature to determine electors
i. Thus, although FL Supreme Ct relied on state constitution to
“circumscribe legislative power” when it burdened suffrage, add’l grant to
state legislature allows it to act outside its constitution (because it wished
to take advantage of “safe harbor” provision)
ii. Because FL S Ct decision unclear as to how it applied state constitution
and its consideration of safe harbor provision, vacated, remanded
c. Bush v. Gore (2000): issues surrounding Art II, Sec 1 (“independent legislature
doctrine”) and Sec 5 (“safe harbor” provision) not reached; holding manual
recounts without precise std violated EP
i. “intent of voter” std cannot be applied equally in all counties or even as
applied to each individual ballot
1. Needs to meet at least min requirement of non-arbitrary std
ii. Each county employed different stds: in some, both overvotes and
undervotes are counted (in counties w/o recount, machines did not count
either of these); Miami-Dade allowed to submit partial returns
iii. b/c state wants to take advantage of Sec 5, and cannot do so if any further
remedy is provided (incl. providing std for recount – which would violated
FL election code), reversed to end recount
iv. Rehnquist concurrence: federal question – appointing electors (state ct
deviated from prescribed scheme); state ct decision cannot frustrate
legislature’s desire to take advantage of safe harbor; no “error in vote
tabulation” occurred
v. Stevens dissent: state legislature is borne out of state constitution, cannot
act outside its limits; Sec 5 is merely a safe harbor – not a duty; if counting
votes differently violates EP, counties across the country have been and
continue to violate EP when employing different technology/procedures
1. Decision disenfranchises voters; allowing state courts to resolve
disputes as to electors contemplated by Constitution & Electoral
Count Act – let them do it
vi. Souter dissent: allow political processes; ct should not have intervened,
but there are EP problems, so remand for more precise std
vii. Ginsburg dissent: let FL ct interpret its constitution; this threatens
federalism; no EP violation and even if there was one, concern of safe
harbor deadline misplaced
viii. Breyer dissent: SCOTUS has no place in this dispute; federal law requires
Congress & state processes to resolve; finds EP issue – uniform std
d. Caltech/MIT Voting Tech Project: btw 4 & 6 million votes lost nationwide in
2000 election (1/3 due to technology, others due to registration issues, long lines,
untrained poll workers, etc)
i. Most glaring problem in election technology: punch card systems
e. Stewart v. Blackwell (6th Cir 2006): although vacated as moot, held that voting
equipment that technology that dilutes vote (punch cards) violates EP
i. Only if infringing on tangential aspect of voting, rational basis applies
ii. Cost & required training not sufficient interests to justify denial of right to
vote due to election technology; would also fail under rational basis
iii. Dissent: lack of precedential value of Bush v. Gore (specifically limited its
decision to those circumstances); no bright line rule – if EP is violated w/
50% difference in residual votes, how far does this rationale go?; cites
Burdick (must be severe restriction on right to vote for strict scrutiny)
1. Properly marked ballots are all counted the same
f. Although SCOTUS has never cited Bush v. Gore, lawsuits brought under Bush
have generally also incl. VRA Sec 2 claims (voting practices & procedures that
have disparate impact on minority voters)
i. None decided to judgment, but two courts have refused to dismiss claims:
(1) Black v. McGuffage (ND IL 2002): use of punch cards in heavy
minority districts increased likelihood that their votes were not counted;
also found potential DP violations; (2) Common Cause v. Jones (CD CA
2001): rendered moot b/c Sec'y of State later decertified punch cards, but
found potential EP & VRA violations
g. FL in the wake of Bush v. Gore: allowed for touch-screen or optical scan
i. Recount procedures: (1) 0.5% margin of victory – machine recount for
both technologies; if results in 0.25% or less, manual recount of over- and
under-votes (“residual votes”) to determine intent of voter
1. But no indiv ballots to count in touch-screen counties, so suit
ensued: 11th Cir rejected EP claims (Wexler v. Anderson, 2006):
only burden – residual votes in touch screen counties not recounted
the same as optical burden counties (does not rise to the level of
severe burden, justified under Burdick approach)
h. Problem w/ EP suits re: election administration: post-election litigation cannot
provide proper remedy (harm has occurred, very rare to require re-election); pre-
election litigation cannot predict the gravity of the harm (if any), so may have
standing problems
i. Help America Vote Act of 2002 (HAVA): requires minimum stds for voting
procedures (registration databases, voter ID requirements); incl. federal funding to
replace punch card systems; created Electoral Assistance Commission; allows for
provisional voting; mandates verification of ballots & systems that notify of
overvotes (may be satisfied by voter education)
j. US unique: no affirmative responsibility to register voters
k. Griffin v. Roupas (7th Cir 2004): no constitutional right to absentee voting based
on “general hardship” (suit by working mothers)
i. Std: whether restriction & exclusion from absentee voting are reasonable
given state interest in orderly elections
ii. State can decide who may vote by absentee (state interest: protecting
against voter fraud; justified against burden of showing up on election day
– employers required by fed law to allow employees to vote)
1. State strikes balance btw preventing fraud & encouraging turnout
iii. Hardship is a subjective std: if states want to allow this, put it in the statute
1. Also: “working mothers” not protectable class
l. OR all mail voting: to increase turnout by 10% & save state $3M
i. System upheld under law that requires elections to occur on same day
(although early elections & non-partisan primaries that elect candidate w/o
general election struck down, in this case, candidate technically elected on
the required day)
m. Internet voting: 2 problems – (1) fraud; (2) digital divide
i. But still have to consider “vehicle divide” preventing some from getting to
polls now (esp. in rural/suburban areas)
n. Election admin left to state, exceptions:
i. VRA provides for fed registrars/examiners in jurisdictions that excluded
minority voters
ii. National Voter Registration Act of 1993 (NVRA) – first attempt at
affirmative gov’t duty to register voters (enable registration when getting
DLs, provide for mail-in voter registration w/ readily available forms,
require in-person registration at certain agencies, encouraged to have
registration in schools, libraries, etc)
1. Although only applies to fed elections, IL state court required IL
abandoned dual registration system
o. Crawford v. Marion County Election Bd (2008): requiring gov’t issued ID to vote
does not violate EP
i. Under Burdick sliding scale approach, legitimate gov’t interests of election
modernization, preventing voter fraud and safeguarding voter confidence
outweigh slight burden of requiring voter to obtain gov’t issued ID
ii. Although no evidence on either side (no in-person voter fraud in IN or GA
history, which is only fraud law protects against, but also no concrete
evidence of disenfranchisement)
iii. Concurrence: need rules in this area; defer to important regulatory
interests for non-severe, neutral restrictions (no disparate impact claim)
iv. Facial challenge (Ct has similarly been adverse to them – WA State
Grange, McConnell)
1. But if bring as-applied, court may dismiss claim saying if you have
an atty to bring this claim, have him help you get ID
2. Although 6 justices are OK w/ facial challenge, similar opposition
to majority of judges that oppose Buckley
v. Compelling interest in voter ID context: preserving integrity of electoral
process (if voters think voting w/o ID leads to rampant fraud, doesn’t
matter whether fraud actually exists)
1. Similar to voter confusion in ballot access cases – don’t need
actual evidence supporting state interest
p. Stewart v. Blackwell (although moot) – shows disagreement in the context
(majority: differences due to punch card ballots rise to EP violations; dissent: rely
on Burdick – must rise to severe restriction on the right to vote, and different
election technology does not rise to this level)
q. Burdick test taken from Anderson
i. Used in Crawford – but justices disagree on how it applies
1. Severe restriction triggers strict scrutiny (concurrence)
2. Plurality/dissent – sliding scale test
r. Fitting Burdick w/ Crawford
i. Both involved facial challenge: different burden (although right probably
infringed more in Crawford, majority considers it a negligible burden)
1. Even in Burdick, slight burden (can still vote for candidates on the
2. State interests in both pretty strong, even if no evidence
a. Voter confusion/voter fraud