SCOTUS On Elections: A Trilogy Of Stupidity & Partisanship

Election Law at the High Court: Big Cases Leave Little Footprints

According to most SCOTUS watchers there were three important cases regarding election that have left a lasting impact upon our society. Currently the opinions as to whether or not these are positive or negative are split along ideological and partisan lines.

How can a Supreme Court decision be momentous if it is written as narrowly as possible, deferring to the future the really important questions? While that paradox may exist in other areas of the Court's docket, it certainly describes the Court's trilogy on election law this year.

Unfortunately, I do not see these decisions as being narrowly focused. As Alan Dershowitz stated in a New York Times Op/Ed piece, the justices have made a habit of deciding cases--especially cases regarding elections--along the lines of there ideology and political affiliation. Dershowitz pointed to the case that put George W. Bush into office as a prime example of this practice. Dershowitz, however, did not see that this penchant for deciding along partisan and ideological lines as being inherently evil. Myself, I think it demonstrates that we have settled for some of the worst SCOTUS justices in our history, and the practice is inherently evil because it abandons the focus and mission of our Constitution as stated in the Preamble.

It started in January, with Wisconsin Right to Life, Inc. v. Federal Election Commission, 546 U.S. __ (2006), 126 S. Ct. 1016 (2006) [Wikipedia Reference], where the Court unanimously remanded the case to the district court for consideration of an "as applied" challenge to the McCain-Feingold campaign reform law, but conspicuously offered no guidance on what sort of standard should govern such "as applied" challenges.

In a manner that abandons the responsibility of the SCOTUS to actually resolve issues brought before it, the court took a chicken-crap approach, demonstrated a lack of courage, patriotism and adherence to the principles embedded in the Constitution. Remanding the decision back to a lower court has seldom been an effective method of addressing the issues.

Collectively, the triology of cases in this case demonstrates a lack of accountability in our local, state, national and party politics, especially in terms of campaign finance, focusing on access by citizens rather than lobbyists and influence peddlers, and ultimately creating the culture that allows sancadals like those that involved Ken Lay and Enron, Duke Cunningham, Tom DeLay, Abrams, Jenrette, Hart and Monkey Business, Teapot Dome, railroad scandals and others throughout our history.

It continued in the last week of the term, with two deeply fractured decisions: Randall v. Sorrell, 126 S. Ct. 2479 (2006) [opinion not web at this time], in which the Court invalidated Vermont's excessively strict limits on campaign contributions without indicating where it eventually would draw the line;

Once agains the law makers have attempted to correct an asinine approach to campign financing by not keeping in mind the limits provided by the Constitution and the Bill of Rights. What is going to be required to deal with election campaign reform, finance reform for politicians, and efforts to restrict broad-scale influence peddling is a properly crafted Constitutional Amendment. If Bush thought it was difficult to pass amendments on marriages and flags, wait until he tries to cut the umbilical cord that connects our politicians to the unethical campaign and war chest issues. There is no political will for real reform. Proof of that reality is that we have been discussing campaign reform for over 150 years, going back to the Civil War, Reconstruction and the Teapot Dome Scandals. Then we have a litany of improprieties involving congress critters, governors, state legislators, and more.

and League of Latin American Citizens v. Perry, 126 S. Ct. 2594 (2006), in which the Court rejected the claim that the mid-decade redistricting of Texas's congressional delegation was unconstitutional just because it was motivated by a Republican desire to gain seats at the expense of Democrats, while the Court kept open the possibility that the Court will invalidate a redistricting plan when and if plaintiffs can show a measurable injury from such partisan motivations.

Of all of these decisions I find this one the most reprehensible. It basically said that gerrymandering the vote is perfectly legitimate unless the people decide to change the rules themselves. Since in most states the political leadership for both parties is entrenched and inaccessible by the average citizen--and both major parties want to keep it that way--the road to implementing change within the election process is blocked in a wide variety of ways. In fact, because the vast majority of voters do not participate in primary elections, thereby not declaring themselves as either Republican or Democrat, most voters are denied standing in the party decision making processes.

Additionally, since this case involves the disgraced former congress critter, Tom DeLay, it is a shameful reflection upon the way we conduct our political processes in this country, in Texas, and among out political parties. Tom DeLay also tried to manipulate the system in another way by moving to Virginia and attempting to file for a race in that state while he was already on the ballot in Texas. Once again, DeLay has shown the ultimate disregard and disrespect for the integrity of the electoral process.

All three of these cases had been identified by Court-watchers as big items on the docket this year. The oral argument in the Texas redistricting case was a particularly "hot ticket" because of the notoriety associated with Tom DeLay's involvement with this redistricting plan. But blockbuster decisions could have resulted from any of the three. In Wisconsin Right to Life, a key component of the McCain-Feingold law might have been invalidated, notwithstanding having been upheld just three years earlier in McConnell v. Federal Election Commission, 540 U.S. 93 (2003). In Randall, the Court might have announced that the First Amendment precluded limits on campaign contributions altogether, thereby overturning the post-Watergate landmark decision in Buckley v. Valeo, 424 U.S. 1 (1976). And in LULAC, the Court might have ruled off-limits any judicial challenge to a redistricting plan as being tainted by excessive partisanship.

This demonstrates the effect even smaller, less headline grabbing decisions can have upon our society. There is no such thing as a "small case" at the SCOTUS level.

It is hardly surprising that such blockbuster rulings did not, in fact, occur. Justice Samuel Alito hadn't even arrived at the Court in time for the argument in Wisconsin Right to Life. Even the end of this term was too early for Alito and the other newcomer, Chief Justice John Roberts, to make major pronouncements of constitutional law as it concerns the regulation of the electoral process. The topic is simply too complex -- and too important -- to cause any but the most intrepid to want to settle in to their new chambers before staking out categorical positions. With Justice Anthony Kennedy also especially cautious on the issue of partisan redistricting, despite his 18 years on the Court, it was unlikely that we were going to see complete closure on that question.

In a way I am pleased that Justice Kennedy has emerged as the powerful swing vote on the SCOTUS bench, and even more pleased that he has drawn a new sense of independence from the fact that he now sits in the "catbird seat" once occupied by Justice O'Connor. While Kennedy has an established history of being conservative and Republican-minded, he has emerged as more moderate than Alito (a religious fanatic), Scalia (an ideological fanatic), Roberts (a bit of a scholar, but thoroughly ideological in the process), and Thomas (who should have never been appointed based on his scandalous conduct). But we must face it, none of the current SCOTUS justices are a real brain trust... and the propensity each has for voting along ideological and partisan lines is quite obvious and quite damaging to the independence of the Court.

Some might say that this election law trilogy ended up a fizzle, but I would disagree. I think these cases, correctly identified as important from the outset, remain significant precisely because their rulings were so limited. To be sure, they may be superseded in time by much more consequential decisions, but meanwhile they collectively reveal the Court's current indecisiveness concerning the constitutional law of democracy. This indecisiveness is likely to have a significant effect on the conduct of key participants in the political process -- candidates, political parties, other political interest groups and lower courts -- as opposing political forces attempt to exploit the current uncertainties to their advantage.

I cannot fathom how Professor Foley arrives at these conclusions. The narrowness of these decisions only demonstrates an unwillingness to address and resolve the issues before them. It is not judicial activism to resolve a problem created by law, the inappropriate application of law, and the socio-political problems created by efforts to manipulate the electoral process. My only real question is why didn't they demonstrate such judicial restraint when it came to the decision that put George W. in the Oval Office? The answer is that the majority on the bench saw a chance to manipulate the bench for the next three generations by loading the decks with ideologically conservatives. I am told by a few SCOTUS insiders that Scalia, Thomas and other ultra-conservatives on the SCOTUS bench really applied the grease and the pressure on that decision... and it shows.

So now we are stuck with an ideological skewing of the executive, legislative and judicial branches of the federal government that is patently biased, unfair, inequitable and prejudiced.