Law of Democracy
Professor Ira (Chip) Lupu
Fall 2011
Outline
Introduction, the Constitution & the Right to Participate in Elections
INTRODUCTION
1.
2.
Constitutional Provisions Conferring Right to Vote
a. Art. I, § 2, ¶ 1 – “The House of Representatives shall be composed of Members chosen every
second Year by the People of the several States, and the Electors in each State shall have the
Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”
i. “The People”
1. Mentioned in the Preamble. (“We the People of the United States….”)
2. Broader than class of electors. Only some of “the People” were electors.
ii. States may determine voter eligibility for electors of House of Representatives.
1. Premised on existence of state legislatures, which are not guaranteed.
2. House – Originally, only popularly elected congressional body.
3. Contrast with original procedure for electing Senators. “The Senate of the
United States shall be composed of two Senators from each State, chosen by the
Legislature thereof for six Years; and each Senator shall have one Vote.” Art. I,
§ 3, cl. 1–2.
a. Superseded by 17th Amendment.
iii. Only (arguable) guarantee of right to vote in Constitution.
b. Art. II, § 1
i. Electoral College elects president and vice-president.
ii. State legislatures may establish procedures for appointing presidential electors.
1. E.g., FL state legislature contemplated taking designation of presidential electors
away from counties in the aftermath of the 2000 election.
iii. Every state has given “the People” the right to choose presidential electors, but this is not
guaranteed.
c. Art. I, § 4 – “The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may
at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
i. States administer federal elections—establishing procedures therefor.
1. Frequently delegate administration authority to counties, e.g., polling places.
Other matters require state regulation.
ii. Congress may alter these regulations, except the place of choosing senators (which, when
the Constitution was enacted, was where the state legislature convened).
d. Art. IV, § 4 – “The United States shall guarantee to every State in this Union a Republican Form
of Government.”
e. Neither original Constitution, nor 14th Amendment, secured basic right to vote. See United
States v. Cruikshank (1875) (“[T]he Constitution of the United States has not conferred the right
of suffrage upon any one.”).
f. Supreme Court – Gradually recognized right to vote as a central and fundamental right of
citizenship.
g. Amendments Concerning Right to Vote or Elections – 12, 14, 15, 17, 19, 22–27.
Importance of Voting Rights
a. Symbolic Importance – Represents equal citizenship.
b. Instrumental Importance – Protects group interests. Vote is valuable only when aggregated
with votes of others. Individual votes may not be valuable, but voting must be analyzed on group
level. Voting is an expression of common interests.
CONSTITUTIONAL TEXT
1.
2.
Minor v. Happersett (1874)
a. Facts – Plaintiff female brought suit against defendant registrar for refusing to register her as a
lawful voter.
b. Holding (Waite)
i. Question – Whether women can lawfully vote?
ii. Women can be naturally born U.S. citizens. Reasons:
1. Owe allegiance to U.S. and are entitled to its protection.
2. Can bring suit in federal court.
a. Case or Controversy Requirement, Art. III, § 2 – Women are citizens
for purposes of diversity jurisdiction.
iii. Privileges or Immunities Clause, amend. 14, § 1 – “No State shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the United States.”
1. Amendment did not add to privileges or immunities of U.S. citizens.
2. Suffrage was not coextensive with citizenship at adoption of Const.
a. State-constitution restrictions.
b. Framers did not expressly state as much.
c. Women are not mentioned in penalty language of 14th Amendment, §
2.
3. Voting is not a privilege or immunity of U.S. citizenship.
a. Voting is not a right of federal citizenship.
iv. 15th Amendment – No voting restrictions based on race  suffrage is not a basic
privilege or immunity.
1. Expressly acknowledges restrictions on voting.
v. Guaranty Clause, art. IV, § 4 – “The United States shall guarantee to every State in this
Union a Republican Form of Government.”
1. Constitution did not change state governments.
2. States may impose restrictions on right to vote, including on women.
vi. Extrinsic Evidence
1. States readmitted to Union after Civil War were not required to women’s female
suffrage.
2. MO sometimes has allowed non-citizens to vote.
vii. No Right to Women’s Suffrage – Legislatures may change; Court cannot.
viii. Compare Dred Scott v. Sandford (1856).
1. Curtis, Dissenting – Black enfranchisement in Northern states proves black
citizenship.
2. Taney – Black enfranchisement does not prove black citizenship. Many
citizens, e.g., women and children, cannot vote.
ix. Lesson – Voting is not coextensive with citizenship.
c. Effect
i. With The Slaughter-House Cases, read Privileges or Immunities Clause out of 14th
Amendment.
ii. Subsequent 14th Amendment Cases – EPC or DPC.
iii. Minor was overturned by 19th Amendment.
Richardson v. Ramirez (1974)
a. Facts – Concerned CA constitutional provision permanently disenfranchising felons, even those
that had completed their sentences and paroles.
b. Holding (Rehnquist)
i. Upheld CA constitutional provision. State may deny right to vote to those convicted of
felonies, even if they had completed their sentences and paroles.
1. Constitutional text and historical and judicial interpretation distinguish felon
disenfranchisement from invalid restrictions.
ii. 14th Amendment, § 2 – “Representatives shall be apportioned among the several States
according to their respective numbers, counting the whole number of persons in each
State, excluding Indians not taxed. But when the right to vote at any election for the
choice of electors for President and Vice-President of the United States, Representatives
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iii.
iv.
v.
vi.
in Congress, the Executive and Judicial officers of a State, or the members of the
Legislature thereof, is denied to any of the male inhabitants of such State, being
twenty-one years of age, and citizens of the United States, or in any way abridged,
EXCEPT FOR PARTICIPATION IN REBELLION, OR OTHER CRIMES, the
basis of representation therein shall be reduced in the proportion which the number
of such male citizens shall bear to the whole number of male citizens twenty-one
years of age in such State.”
1. No penalty in terms of representation in House if state denied right to vote to
those who participated in rebellion or other crimes.
State Constitutions – 29 contemporaneous (19th-century) provisions permanently
disenfranchising felons.
Enabling Acts for State Readmission After Civil War – Permits states to engage in felon
disenfranchisement.
Precedent – Court had upheld laws stripping right to vote from bigamists and polygamists
in Utah and Idaho.
1. Actually about disenfranchisement based on religious belief, not criminal
conviction.
Deference – Whether felons/ex-felons should vote is a policy matter within state purview.
PRISONERS’ & CONVICTED CRIMINALS’ RIGHT TO VOTE
1.
2.
3.
4.
Pretrial Detainees – States cannot deny right to vote and must provide absentee ballots if there is no other
way of voting. McDonald v. Board of Election Commissioners (1969); O’Brien v. Skinner (1974).
Convicted Criminals – State may permanently disenfranchise. Richardson.
a. Discriminatory Purpose Behind Felon Disenfranchisement – State may not permanently
disenfranchise convicted criminals when disenfranchisement is motivated by discriminatory
purpose. See Hunter v. Underwood (1985) (invalidating as EPC violation AL law that
permanently stripped franchise from persons convicted of crimes of “moral turpitude”).
Arguments in Favor of Felon Disenfranchisement
a. Breaking Social Contract – Felons lose lots of rights, e.g., physical mobility, gun ownership, etc.
Loss of voting rights is no different.
b. Incarceration is a form of punishment, and disenfranchisement is part and parcel of punishment.
i. But disenfranchisement is not a deterrent. Lifelong disenfranchisement is excessively
retributive.
c. If felons could vote, voting districts with large prison populations would swell with felon votes.
d. Character– Only the virtuous are morally competent to participate in society, and felons have
shown their deficiency of character.
Arguments Against Felon Disenfranchisement
a. If prison is supposed to rehabilitate people (as citizens), extending voting rights would draw
prisoners into civic life and contribute to their rehabilitation.
b. Spurious argument that felons will vote en mass to elect, e.g., felon representatives. Felons will
vote like normal people do.
c. If a district is overrepresented because of its prison population but only a minority of non-felons is
permitted to vote, this seems antidemocratic.
d. International Experience
i. Most other countries allow felons to vote.
ii. U.N. and int’l treaties repudiate permanent felon disenfranchisement.
iii. Foreign courts have invalidated felon disenfranchisement.
D.C. RESIDENTS & PUERTO RICANS RIGHT TO VOTE
1.
See pp. 34–37.
MODERN CONSTITUTIONAL FRAMEWORK
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1.
2.
Lassiter v. Northampton County Board of Elections (1959)
a. Facts – Concerned NC statute that conditioned voting eligibility on ability to read and write any
section of Constitution in English.
b. Holding (Douglas)
i. Upheld law from facial challenge.
ii. Rational-Basis Review
1. Legitimate Government Interest – Intelligent exercise of franchise.
2. Rational Relation – Ability to read and write is related to standards designed to
promote intelligent use of the ballot.
a. Newspapers, books, periodicals, etc. communicate important
information relevant to exercise of franchise.
b. But illiterate can be educated about issues by radio, TV, Internet, etc.
iii. Deference to State Power – “States have long been held to have broad powers to
determine the conditions under which the right of suffrage may be exercised, absent of
course the discrimination which the Constitution condemns.”
iv. “Literacy and illiteracy are neutral on race, creed, color, and sex, as reports around the
world show.”
1. Questionable Premise
c. Problems with Literacy Tests (Not in Case)
i. Administrative Discretion – Puts someone in a position of authority to determine whether
individuals read or write well enough to be eligible to vote. Corruption and prejudice are
possible.
ii. Civic Participation – How do you determine whether an individual is sufficiently engaged
in the community and political process?
iii. What are we testing? General literacy? Ability to absorb information about issues and
campaigns and elections?
1. If an individual, e.g., watches the news on TV, he or she may not need to be
literate to be engaged.
iv. Always skew in favor of education and higher socioeconomic class.
d. 1970 Amendments to VRA – Banned literacy tests nationwide. See Oregon v. Mitchell (1970)
(affirming literacy test ban).
i. Court never revisited Lassiter.
e. 1975 Amendments to VRA – 5% or more language minority  state must provide non-English
ballots (including oral voting instructions for oral langs.)
Harper v. Virginia State Board of Elections (1966)
a. Facts – Concerned VA poll tax.
b. Holding (Douglas)
i. Invalidated poll tax.
1. History (Not in Case)
a. By 1904, every ex-Confederate state had a poll tax.
b. Represented significant portion of personal income.
c. No recorded prosecutions of non-payers.
d. Also dissuaded poor whites from voting.
ii. 24th Amendment
1. “The right of citizens of the United States to vote in any primary or other
election for President or Vice President, for electors for President or Vice
President, or for Senator or Representative in Congress, shall not be denied or
abridged by the United States or any State by reason of failure to pay poll tax or
other tax.”
2. Abolishes poll taxes in federal elections.
3. Constitutional condemnation of connecting wealth and voting.
iii. Strict Scrutiny
1. Fundamental Right – Applied because voting is a “fundamental political right,
because preservative of all rights.” Yick Wo v. Hopkins (1886); see also
Reynolds v. Sims (1964) (“Undoubtedly, the right of suffrage is a fundamental
matter in a free and democratic society. Especially since the right to exercise
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3.
4.
the franchise in a free and unimpaired manner is preservative of other basic civil
and political rights, any alleged infringement of the right of citizens to vote must
be carefully and meticulously scrutinized.”).
2. Suspect Classification – “Lines drawn on the basis of wealth or property, like
those of race are traditionally disfavored.”
3. Might have satisfied rational-basis review.
a. Legitimate State Interest – Tax-collection device.
iv. Impermissible Voter Qualifications
1. “Voter qualifications have no relation to wealth nor to paying or not paying this
or any other tax.”
2. “Wealth, like race, creed, or color, is not germane to one's ability to participate
intelligently in the electoral process.”
v. Invidious Discrimination – “As a condition of obtaining a ballot—the requirement of
fee paying causes an ‘invidious’ discrimination that runs afoul of the Equal Protection
Clause.”
vi. Poll taxes are unconstitutional as denial of EPC in all non-federal/state and local
elections.
c. Black, Dissenting
i. Uphold poll tax.
ii. Court uses EPC to endorse a particular political theory, infringing state sovereignty.
iii. No EPC Violation – Rationally related to state policies of (1) collecting taxes and (2)
fostering an interested electorate.
iv. Congress could abolish poll taxes under 14th Amendment, § 5.
d. Harlan, Dissenting
i. Departure from EPC precedent.
ii. Many rationale bases for poll tax, e.g., civic responsibility, stake in community affairs,
educated electorate, etc.
Kramer v. Union Free School District No. 15 (1969)
a. Facts – Concerned NY law restricting voting in school district elections to those (1) owning real
taxable property in the district or (2) having custody of children enrolled in local public schools.
b. Holding (Warren)
i. Invalidated law as EPC violation.
ii. Strict Scrutiny
1. Law denies some citizens right to vote.  Strict Scrutiny
a. Not entitled to presumption of constitutionality.
2. Compelling Government Interest – Limiting participation to those “primarily
interested in school affairs.”
a. Presumably valid.
3. Narrow Tailoring – FAILS HERE.
a. Impermissible to measure interest by property ownership or presence of
children in school system.
b. Under-Inclusive – Permitted voting by many persons having only a
remote and indirect interest in school affairs.
c. Over-Inclusive – Prohibited voting by others having a distinct and
direct interest in school affairs.
d. Differently tailored law may have been upheld.
iii. Stewart, Dissenting
1. Rational-Basis Review – Law satisfies.
a. Voting is not a constitutionally protected right. Minor.  No strict
scrutiny.
2. States have broad powers to regulate exercise of franchise.
Challenges to Voting Restrictions
a. Facially Discriminatory
i. Proof
ii. Geographical Limitations
iii. Remedy
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b.
5.
Discriminatory as Applied
i. Proof
ii. Geographical Limitations
iii. Remedy – Likely that, e.g., poll tax should be administered in a nondiscriminatory
fashion. Poll tax still is in place.
c. Illicit Motivation/Discriminatory Purpose
i. Proof
1. Look to context. Sometimes, there is smoking gun proof, e.g., “This poll tax
will disenfranchise blacks.”
2. If there is no smoking gun, one will have to prove that poll tax is being
maintained for racially invidious purposes. Difficult.
ii. Geographical Limitations
iii. Remedy – Enjoin existing poll tax. A nondiscriminatory poll tax, i.e., one passed without
reference to a discriminatory purpose, may be valid.
1. What AL did with felon disenfranchisement. See Hunter.
Permissible Voting Restrictions
a. Voting is a fundamental right. Yick Wo; Reynolds; Harper; Kramer.
i. Restrictions  Strict Scrutiny.
b. Age
i. 26th Amendment – “The right of citizens of the United States, who are eighteen years of
age or older, to vote shall not be denied or abridged by the United States or by any State
on account of age.”
1. Guaranteeing franchise to 18-year-olds.
2. Overruled Oregon v. Mitchell (1970) (invalidating 1970 VRA extension of
franchise to 18-year-olds as beyond Congress’ power).
ii. Bright Line Rule
1. Arbitrary age of majority eliminates unfavorable aspects of discretion. A bright
line is likely to be politically neutral.
2. Problems of literacy tests [above] apply if adolescents were subject to
competency tests.
iii. Free & Reasonable Exercise of Franchise at 18
1. People (on average) are thought to be mature enough to vote.
2. Parents could exercise undue influence or duress on younger children, who (1)
may not be able to stand up for their preferences or (2) most likely are
dependent for support on their parents.
c. Citizenship
i. Based on the notion of a political community. See Bluman.
ii. Citizenship ≠ Franchise.
1. Minor.
2. Resident aliens may vote in some local elections.
iii. Conflict of Interest – Noncitizens might not vote in best interests of U.S.
iv. History – Other nations have enacted similar voting restrictions; every community
necessarily includes some people and excludes others.
v. Constitution
d. Bona Fide Residence
i. Primary Issue – Fluidity of residence in modern, mobile society.
ii. Based on the notion of a political community. See Bluman.
iii. Appropriately defined and uniformly applied requirement may satisfy strict scrutiny.
Dunn v. Blumstein (1972).
e. All other restrictions  Strict Scrutiny.
i. Mental Competence
1. Most states impose voting restrictions.
2. Doe v. Roe (D. Me. 2001) – Invalidated under EPC and ADA ME law
prohibiting persons “under guardianship for reasons of mental illness” from
registering and voting.
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Pyre v. Carnahan (W.D. Mo. 2006) – Upheld similar MO practice because it
MO adequately distinguished between those capable and those incapable of
voting.
ii. Durational Residency
1. Arguments for Durational Residency Requirement
a. Preventing voter fraud that might occur through voter “colonization.”
b. Ensuring existence of a knowledgeable community of interest.
2. Arguments Against Durational Residency Requirement
a. May disincentive travel or infringe an individual’s right to travel (if
such a right exists).
b. If state’s purported interest is in a community of interest, then this
seems to suggest a competency requirement, which is impermissible.
c. State cannot infringe right to vote because new voters may have
different priorities than longstanding voters. Newcomers are entitled to
have a say in local affairs.
d. 14th Amendment gives citizens right to become citizens of states by
moving there.
3. Dunn v. Blumstein (1972)
a. Facts –Professor moved to TN but was not permitted to vote because he
had not been in state for one year.
b. Invalidated one-year durational residency requirement for voting
eligibility as EPC violation.
c. Strict Scrutiny – Because case involved (1) right to vote and (2) right
to travel.
i. Compelling Government Interests
1. Preventing Fraud – Valid
2. Community of Interest – Rejected
ii. Narrow Tailoring
1. Fraud rationale failed because durational residency
requirement was not needed.
d. Lesson – States cannot deny equal protection of law—here, with regard
to voting—based on duration of residency.
4. Permissible Durational Residency Requirements – E.g., requiring that voters
register by a certain date before an election. 30- or 60-day registration cutoffs
are permissible, but must be reasonable.
5. Carrington v. Rash (1965)
a. Facts – Concerned TX law denying voting rights to military personnel
that moved to TX in connection with service, regardless of duration of
residency.
b. Invalidated law.
c. Heightened Standard of Review
i. Voting is a fundamental right.
ii. TX singled out military personnel on basis of occupation.
d. Distinguishing Holt – Holt limited voting to city residents; Carrington
concerned denial of vote based on how residents came to be in city.
iii. Homeless
1. Many states allow homeless to vote.
2. 2/3 of states require a mailing address.
3. General Rule – Fixed address is unnecessary if individual provides sufficient
information about her usual location to allow assignment to a precinct.
iv. Nonresidents
1. Brown v. Chattanooga Board of Commissioners (E.D. Tenn. 1989)
a. Facts – Concerned charter that allowed nonresidents to vote if they
owned enough property in the city.
b. Provision expanded franchise.  Rational-Basis Review
3.
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c.
Invalidated provision because it did not limit how many people could
vote w/r/t a single piece of property.
2. Upholding Nonresident Franchise Under Rational-Basis
a. Glisson v. Mayor & Councilmen of Savannah Beach (5th Cir. 1965);
Hogencamp v. Lee County Board of Education (11th Cir. 1984).
3. Hole Civic Club v. City of Tuscaloosa (1978)
a. Facts – Concerned denial of right to vote to persons living outside city
limits but within police jurisdiction.
b. Upheld voting practice/no EPC violation.
c. Affirmed bona fide residency requirement, which extraterritorial
residents did not satisfy.
d. Not about voting in strong sense.  Rational-Basis Review
e. Broad state discretion when “experimenting with appropriate allocation
of state legislative power.”
f. Deference to Legislature
g. If city authority depended on extending right to vote, there would be
many political battles about whether extending city authority would be
worth it.
i. Court does not want to disincentivize city from extending,
e.g., its police or emergency medical services to people just
outside the city limits.
4. [See Carrington above.]
v. Employment
1. Problems – Consider someone living in NJ and working in NY.
a. 1-person, 2-votes.
b. Employment is very changeable.
c. Gaming the system by deciding whether it would be better to vote in
work or residence jurisdiction.
2. [See Carrington above.]
3. Solution – Universal voter database could prevent double voting.
vi. Taxable Real Property Ownership
1. Skews heavily toward wealth. One who owns ten parcels of taxable real
property will have ten votes.
vii. Students
1. Discouraging Transitory Students – Require indicia of residency that they are
unlikely to possess, e.g., state driver’s licenses.
2. Encouraging Transitory Students – Require proof of residency and allow dorm
room residency.
3. Civil Procedure/where-do-you-intend-to-stay approach does not seem to work
because discerning subjective intent is difficult.
4. Solution – Require students to vote where they will spend the greatest number of
days within the next twelve months.
BLACK DISENFRANCHISEMENT
1.
History
a. During Reconstruction and Redemption, black male voter turnout was high.
b. Following the election of Hayes and the removal of the Union army from the South, Jim Crow era
began to take hold.
c. Around 1900, many southern states began rewriting their constitutions with racially
discriminatory voting restrictions, and massive numbers of black voters were disenfranchised.
Violence also was used.
d. Disenfranchising those disenfranchised by Jim Crow was a principle means of maintaining Jim
Crow. Blacks would not have access to the political process as a means of changing it.
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e.
2.
3.
Supreme Court struck down federal protection of black voting rights, United States v. Cruikshank
(1875); United States v. Reese (1875), and upheld state efforts to deny blacks rights of
citizenship, Williams v. Mississippi (1898).
f. Primary Means of Black Disenfranchisement – Force; restrictive and arbitrary registration
practices; poll taxes; and literacy tests.
g. Earliest Civil Rights Victories
i. Truman – Desegregating armed forces.
ii. Jackie Robinson integrates baseball.
iii. Brown v. Board of Education (1954).
iv. Civil Rights Act of 1957
h. VRA of 1965 – All literacy, understanding, and good character tests abolished in Deep South.
i. 1970 – Ban extended nationwide.
Giles v. Harris (1903)
a. Facts – AL constitution expressly and purposefully disenfranchised black males. Most white
males were allowed to vote. Alleged 15th Amendment violation.
b. Holding (Holmes)
i. Proper Defendant  Harris
1. Not AL because of sovereign immunity.
2. State official responsible for the enforcement of the law in his official capacity.
If a new state official comes in, remedy can be applied against her as a
substitute defendant.
ii. Suit in Equity  Equity cannot enforce political rights.
1. No possible judicial remedy  non-justiciable.
2. Affirmed by Giles v. Teasley (1904).
3. Reflects concerns about power of Court to enforce remedy and Holmes’
judicial “realism.”
iii. Court will not grant relief by forcing AL to register plaintiff; will not grant relief under
a potentially void instrument.
1. Would not correct underlying constitutional deficiency.
2. Court will not allow remedies under illegal instruments. If instrument is
unconstitutional, there would be no valid system under which to register voters.
3. Signaled that Court would not intervene in 15th Am. violations.
iv. Cannot expect AL to deliver on any remedy.
1. Politicians enacted the discriminatory provision.
2. AL judges are elected and drawn from same pool as AL politicians.
v. Congress or President must provide relief; Court cannot.
vi. Damages may be available for suits at law.
1. Dangers
a. Biased jury—probably composed of AL citizens.
b. Difficulty of proof of value of one’s vote.
c. Damages may not be an adequate remedy anyway.
vii. Best Relief – As-applied challenge  nondiscriminatory implementation.
viii. Lesson – Enforcement of voting rights is a political matter for Congress.
c. Brewer, Dissenting
i. Case is justiciable.
ii. Court has granted relief in two similar wrongful-refusal-of-vote cases.
iii. Interpretation – Early articulation that voting rights are fundamental and warrant strict
scrutiny.
d. Harlan, Dissenting
i. Amount in controversy is not satisfied.  Non-justiciable.
ii. Interpretation – Early articulation that voting rights are fundamental and warrant strict
scrutiny.
Preventive Measures for Foreseeable Voting Obstacles
a. Publicize the obstacles. Sunlight as a disinfectant.
b. Get poll watchers—not only press, but volunteers like students. Very resource-heavy. Need
people with time to act as poll watchers—and people with courage.
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4.
5.
6.
7.
Guinn v. United States (1915)
a. Facts – Concerned grandfather clause that exempted from literacy tests anyone—or lineal
descendants of anyone—that could vote on January 1, 1866.
b. Holding (White)
i. Invalidated grandfather clause.
1. Obvious purpose was to disenfranchise blacks.
2. Discriminatory purpose and discriminatory impact.
ii. Affirmed validity of literacy tests as an exercise of state power.
Lane v. Wilson (1939)
a. Facts – Concerned OK law (adopted in response to Guinn) specifying that anyone that voted in
general election of 1914 was eligible to vote, but that those that were potentially eligible but not
registered could register only in a 12-day period from 4/30/16 to 5/11/16.
b. Invalidated law as 15th Amendment violation.
c. Although facially neutral, discriminatory purpose (disenfranchising blacks) was obvious, as was
discriminatory impact.
d. Appropriate Remedy – Required sensitivity to facts of historical black disenfranchisement and
lack of knowledge regarding exercising franchise—i.e., a 12-day registration window was
inadequate in this context.
Davis v. Schnell (1965)
a. Invalidated AL’s Boswell Amendment, which limited voter registration to those that could
understand and explain any article of the federal Constitution.
b. Facially neutral, but violates 15th Amendment in purpose and administration.
c. Framers disagreed and Court often disagrees as to constitutional meaning.
Gomillion v. Lightfoot (1960)
a. Facts – Concerned redistricting of Tuskegee, AL, from square into 28-sided figure, which
excluded all but four or five black voters while not removing a single white voter.
b. Holding (Frankfurter)
i. 15th Amendment
1. Prohibits discrimination/race-based voting exclusions.
2. Basis of violated constitutional right.
3. Limit on state power to redistrict.
ii. Evidence of Invidious Discrimination
1. Near total exclusion of blacks/near total inclusion of whites  mathematical
demonstration of invidious discrimination.
2. 28-sided figure.
iii. Justiciable
1. Invidious discrimination in withdrawing right to vote from minority lifts case
out of political arena/makes case justiciable.
2. State may not use lawful power to achieve unconstitutional end.
iv. Distinguishing Colegrove
1. Colegrove – Dilution of voting strength resulting from years of legislative
inaction.
2. Present Case – Deprivation of vote and its attendant advantages resulting from
affirmative legislative action.
v. Remedy – Invalidate current scheme and return to previous districting.
1. Typical Relief – Reject the whole map. You cannot change one district
without affecting all (or nearly all) others. Judges are not supposed to conduct
redistricting themselves.
vi. Import – (1) Redistricting and (2) covert, invidious racial discrimination.
c. Whitaker, Concurring
i. Decision should rest on EPC, not 15th Amendment.
VOTER REGISTRATION & PARTICIPATION
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1.
2.
3.
Griffin v. Roupas (7th Cir. 2004)
a. Facts – Mothers contended that, because it was a hardship for them to vote in person on Election
Day, the Constitution required IL to allow them to vote by absentee ballot.
b. Holding (Posner)
i. Case concerns administration of elections.
1. Broad state authority to administer elections. Art. I, § 4, cl. 1.
a. E.g., OR conducts all voting by absentee ballot.
2. Permissible restrictions inevitably will exclude some people.
ii. No express constitutional right to vote—only an implicit one.
iii. Rational-Basis Review
1. “The constitutional question is whether the restriction and resulting exclusion
are reasonable given the interest the restriction serves.”
iv. Deference to Legislature
1. Legislator may balance harms of absentee ballots (e.g., fraud) and harm to
voters in losing their votes.  Court will not review, except in extreme cases.
2. Individual hardship inquires  unmanageable.
v. Rejected Arguments
1. Law does not single out class of “working mothers.” Many groups of people
face difficulty voting on Election Day.
a. But may reflect a general hardship problem, affecting people with
lower incomes more so and whose negative consequences will skew
toward Democrats.
2. “Unavoidable inequalities in treatment, even if intended in the sense of being
known to follow ineluctably from a deliberate policy, do not violate equal
protection.”
3. Although obtaining an absentee ballot is easy, this does not mean that one may
be required.
4. Court rejects argument that IL ballot is too long and complicated because it will
not police ballot details.
vi. Potential Free Speech Analogy (Not in Case)
1. There is a constitutional right to free speech, but there are substantive rules
about inciting violence, yelling “fire” in a theater, etc. These rules regulate
when and where and how of free speech, but not necessarily its content.
2. TPM regulations tend to be more relaxed than standards for censorship, which
goes to content. This is the distinction at issue here. Strict reasonableness
applies to TPM restrictions.
3. Elections may be conceived in the same way—with more weight on the state
side of the equation. State controls the machinery of elections, e.g., ballot form,
fees, polling places, etc. Thus, elections are a highly regulated enterprise.
Question: how much room should we afford the states in these regulatory
relationships?
4. Absentee ballots are about the machinery of elections. Question of voting in
person, as opposed to voting absentee, is an election machinery question—not a
constitutional question. Court will not review it without a showing of invidious
discrimination.
vii. Lesson – No right to cast an absentee ballot.
Marston v. Lewis (1973)
a. Upheld closing of AZ voter registration nearly two months before election given administrative
necessities.
Early Voting
a. Oregon – Only state with entirely mail-in voting scheme.
i. Pros – Increased turnout; saved costs.
ii. Cons – Fraud; manipulation.
iii. Constitutional
11
b.
4.
5.
6.
Foster v. Love (1997)
i. Invalidated LA law because it allowed “final selection” of candidate to conclude before
Election Day in violation of federal election law.
c. Voting Integrity Project v. Bomer (5th Cir. 2000)
i. Concerned TX’s early voting system allowing voting 17 days before federal election.
ii. Absentee voting does not violate federal election law although it is early voting.
Internet Voting
a. Traditionally disadvantaged groups have less access to technology.
i. Would state be required to provide computers to every registered voter?
b. Implicates broader questions about inequitable distributions of “politically salient resources”—
especially Vehicle Divide.
c. Voting at polling places may promote civic virtue/solidarity.
i. Online voting would undermine this.
Help America Vote Act
a. Requires states to upgrade and maintain statewide registration databases.
b. Requires voters that registered by mail and that have not voted previously in the jurisdiction to
provide a specified form of ID.
National Voter Registration Act of 1993
a. Affirmative government duty to register voters.
b. Applies only in federal elections.
c. States must establish three sorts of registration procedures. Courts may find failure to comply to
be discriminatory and in violation of the VRA.
i. Simultaneously with driver’s license application.
ii. Readily available mail-in voter registration forms.
iii. In-person registration at various public agencies.
d. Printz v. United States (1997) – Invalidated provisions of Brady Handgun Violence Act because
federal government cannot force states “to administer or enforce a federal regulatory program.”
e. Reno v. Condon (2000) – Upheld Drivers Privacy Protection Act because Congress regulated state
official directly, not the manner in which states regulated private parties.
Voter ID
1.
2.
3.
4.
Voter ID Cases – Reflect concerns about integrity of elections and participation on the ground.
a. Must determine how much we are willing to spend to ensure integrity of elections.
b. Confidence – Elections instill in people that they should obey government. If people perceive
elections to be legitimate, they will cooperative with government and voluntarily comply with its
mandates.
c. Voter Turnout – High turnout connotes legitimacy.
i. But there are many ways to participate in elections: voting, acting as poll watchers,
contributing to campaigns, etc.
Threats to Integrity of Elections – Ongoing: candidates are assassinated; ballots are stuffed; there are
concerns about the accuracy of electronic voting.
a. At bottom, these are trust problems.
b. All of these problems were severely aggravated by Bush v. Gore (2000).
Bush v. Gore (2000)
a. No statistical way of determining precise number of voters for Bush or Gore.
i. Widespread allegations of voter fraud, noncitizens voting, voter intimidation, etc.
b. Proper Constitutional Resolution – Allow House to elect President. Art. II, § 1.
c. Best Argument for Judicial Resolution – Confusion regarding recount and country was
experiencing a constitutional crisis requiring immediate resolution.
d. Carter-Baker Commission came out of Bush v. Gore.
i. Recommendations – Statewide voter databases, voting machines, felon reenfranchisement, photo ID for voting.
GA and IN – First two states to enact voter ID laws.
a. GA Law
i. At first, photo IDs cost money, but amended statute made them free.
12
5.
6.
ii. Unlike IN, GA is covered by Preclearance under VRA § 5. Therefore, it must submit any
changes affecting elections to DOJ (or D.D.C.). Burden of persuasion is on state seeking
Preclearance, and state must show that the change was not done for purpose of or will not
have the effect of diluting the vote based on race or color or language spoken.
iii. DOJ refused to pre-clear the GA Voter ID Act, but their refusal to pre-clear was
overturned by political appointees.
b. TX and SC currently are in process of seeking Preclearance of own voter ID laws.
Common Cause/Georgia v. Billups (N.D. Ga. 2006)
a. Facts – GA 2005 Photo ID Act required GA citizens to have photo ID to vote in any election.
Amended Act provided for issuance of free voter IDs upon showing of identifying documents.
b. No evidence of in-person fraud. Absentee voting fraud is more important.
c. Approximately 300,000 GA citizens do not have appropriate ID as required by Act.
d. Standard of Review – Burdick Balancing Test: Under the Burdick sliding scale standard, a
court must weigh the character and magnitude of the asserted injury to the rights protected by the
First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests
put forward by the State as justifications for the burden imposed by its rule, taking into
consideration the extent to which those interests make it necessary to burden the plaintiff's rights.
e. Undue Burden
i. Elderly, infirm, and poor.
ii. No reliable transportation.
iii. Disabilities mean that they cannot wait in line.
iv.  Cannot obtain photo ID.
f. Absentee Ballot
i. 2005 Photo ID Act eased some restrictions to obtaining an absentee ballot, but GA voters
do not know about the change in the law.
ii. Takes time and planning to vote via absentee ballot.
iii. Many votes would not act soon enough to vote via absentee ballot.
iv. Many GA voters have poor literacy skills.  absentee voting is not a reasonable
alternative.
g. Provisional Ballots
i. Not a reasonable alternative.
ii. Voters won’t obtain IDs within 48 hours.
iii. Won’t return to polling places or registrars’ offices  transportation problems
iv.  Means that voters will not use provisional ballots.
h. “Given the fragile nature of the right to vote, and the restrictions discussed above, the Court finds
that the 2006 Photo ID Act imposes "severe" restrictions on the right to vote with respect to the
July 18, 2006, primary elections and the corresponding primary run-off elections.”
i. State Interest
i. Curbing voter fraud  legitimate state interest
j. 2006 Photo ID Act is not narrowly tailored to achieving that interest.
i. Does not address GA voter fraud.
ii. No evidence of in-person fraud.
iii. Absentee voter fraud is more prevalent and the law does not address it.
k. Preliminary injunction granted for claim under EPC.
l. Later undone by subsequent court action and legislation.
Crawford v. Marion County Election Bd. (2008)
a. Facts – Concerned IN law requiring photo ID for in-person voting at both primary and general
elections.
b. Holding (Stevens) – Plurality with Roberts and Kennedy.
i. Upheld law from facial (not as-applied) EPC challenge.
1. Voter ID laws are not facially unconstitutional.
ii. “Evenhanded restrictions that protect the integrity and reliability of the electoral process
itself are not invidious.” Anderson v. Celebrezze (1983).
iii. Burdick Balancing Test – “A court must identify and evaluate the interests put forward
by a state as justifications for the burden imposed by its rule, and then make the hard
judgment that is demanded.”
13
Burdick v. Takushi (1992) – Applied balancing test to “reasonable,
nondiscriminatory restrictions” on election administration.
2. No expressly articulated calculus for applying balancing test.
3. NOT Strict Scrutiny
a. Concerns regulation of elections—not fundamental right to vote.
b. States administer elections.  Court cannot review all regulations.
iv. State Interests in Voter ID Law
1. Deterring and detecting voter fraud.
2. Modernizing election procedures.
3. Preventing voter fraud in light of identified fraud in IN.
4. Safeguarding voter confidence.
a. Purcell v. Gonzales (2006) – State has a legitimate interest in
preventing perception of voter fraud.
b. Note parallel to campaign-finance law where this rationale justifies
contribution limits even with no hard evidence.
c. Conservative Justices – Motivated by such arguments w/r/t voter ID
laws, but not w/r/t campaign-finance laws.
5. NOTE – That law may have been motivated in part by partisan considerations
does not vitiate these valid, neutral interests.
v. Burdens of Obtaining Photo ID
1. For some people, e.g., moderately well off people with driver’s licenses and
passports, obtaining photo ID is not an issue.
2. May lose photo ID, or appearance may change.
3. People with no need to driver cars, buy alcohol, cash checks, etc. may not have
much need for photo IDs. They may face burdens.
4. The poor, elderly, indigent, etc. may face unique obstacles in obtaining photo
IDs.
5. People living in rural areas may not have birth certificates (having been born in
their homes) and may not have driver’s licenses (having never left their
communities). It would be difficult for them to obtain photo IDs because they
would have to go through the legal processes to obtain birth certificates and then
photo IDs.
6. People with driver’s licenses but owing fees to DMV – When their licenses
expire, they cannot obtain new ones (and so cannot vote) until they pay their
fees.
vi. Provisional Ballot – Adequate remedy to many of above burdens.
1. Dissent disagrees.
vii. Lack of Evidence/Balancing
1. No evidence of number of registered voters without photo ID.
2. No evidence of burdens imposed on those lacking photo ID.
3. Result – Burdens cannot overcome valid, neutral state interests. Law imposes
only a limited burden.
a. Dissent disagrees.
viii. Burden of Persuasion – On challengers since there is not clear evidence that IN voter ID
law has effect of suppressing minority turnout.
ix. Possible As-Applied Challenge – Rejected facial challenge to IN voter ID law, BUT
there remains possibility of as-applied challenge if it can be shown that operation of law
unduly burdens right to vote.
1. Hostility to facial, as opposed to as-applied, challenges.  Theme of Roberts
Court.
2. Six justices (not concurrence) leave open possibility.
Scalia, Concurring with Thomas and Alito
i. Only severe burdens on right to vote trigger strict scrutiny.
1. Six justices rejected.
ii. Rational-Basis Review
1. Law is rational.
1.
c.
14
2. State interests are sufficient to meet minimal burden.
Souter, Dissenting with Ginsburg
i. Accepts Burdick Balancing Test – But there is sufficient evidence to show that burdens
outweigh state interests.
ii. Burden of Proof – When right to vote is restricted, government must provide evidence
justifying restrictions, e.g., evidence of in-person voter fraud.
1. No evidence of in-person voter fraud.
2. No evidence that voter ID law would cure fraud problems.
3. But voter fraud is a secret activity and hard to detect and in reality does not
occur very often.
4. But laws are valid on their face unless they lack any constitutional application.
(Response to burden of proof argument.)
iii. Provisional Ballots – Not adequate protection from burdens. Only imposes additional
costs; disincentivizes people from voting on Election Day (wait and see who won);
“reasonable impediment” requirement allows too much discretion to voting officials.
e. Breyer, Dissenting
i. Would apply Nixon v. Shrink Missouri Government PAC (2000) Balancing Test.
ii. Disproportionate burden on some voters  unconstitutional.
iii. Agrees with Souter on provisional ballots.
iv. IN voter ID law does not follow Carter-Baker Report.
f. Additional Counterargument – IN voter ID law is unconstitutionally overbroad. “Substantially”
overbroad  should be facially invalidated.
7. No Precise Ideal Candidate for Challenging Voter ID Law – Would be class of plaintiffs comprised of
African Americans, Latinos, elderly, poor, people of limited means and mobility, etc.
8. State Courts Reviewing Voter ID Laws – Different Results
a. League of Women Voters of Indiana v. Rokita (Ind. 2010) – Rejecting argument that IN voter ID
law violated IN constitution.
b. Weinschenk v. State (Mo. 2006)
i. Invalidated MO voter ID law.
ii. Concerned right to vote.  Strict Scrutiny
iii. Underlying documents to obtain photo ID cost money.
iv. Burdens in traveling to agencies and navigating bureaucracies.
v. Rejects public confidence argument.
1. Perceptions of voter fraud are malleable.
2. Mechanism for further abridgements on right to vote.
3. Not all voter fraud is addressed. Only in-person fraud is.
9. What remedies are available for correcting the results of a tainted election?
a. Judicial Resolution – Bush v. Gore.
b. Recount without fraudulent votes.
i. But how do we ensure that we have filtered out all of the fraudulent votes?
c. Do-Over Election – Many problems. Extremely difficult. Very rare.
d. Note – Correcting fraudulent elections is much more undesirable than preventing fraud in the first
place. This fact and the undesirability of the available remedies suggest that deterring fraud in
elections is a very important goal.
10. Texas Voter ID Law
a. Texas Support Letter
i. GA was pre-cleared, so TX should be too.
ii. Court upheld the IN voter ID law in Crawford.
1. But IN is not a state subject to preclearance, as TX is.
iii. Turnout rates have increased in states with voter ID laws.
1. Criticisms – Statistics are somewhat deceptive. The Obama effect increased
minority turnout from 2004 to 2008. (Imagine how many minority voters would
have registered if it were not for voter ID laws. Answer: a lot more.)
iv. Texas’ Ideas for Militating Burden
1. Voter education programs.
2. Training programs for poll workers.
d.
15
3.
4.
b.
Revising election forms.
Exceptions for disabled voters and religious observers whose religions do not
allow photographs.
5. New free election certificate.
6. Increased criminal penalties.
7. If your name is substantially similar to one on a list, then you can swear an
affidavit that you are that person.
8. Provisional ballot.
Opposition letter is very well lawyered.
i. Numbers of TX voters without photo IDs are not broken down by race. Opposition
admits that it does not have this information. Therefore, how does it make its case
against Preclearance approval?
1. Cites numerous statistics about retrogressive effect of voter ID laws, minorities
without photo IDs, barriers to minorities obtaining photo IDs, etc.
2. Student IDs from state universities are not considered to be valid forms of ID
although handgun licenses are.
3. Birth certificates cost money, as does travel.
4. Poverty is higher among minorities than among whites.  Fewer resources to
obtain photo IDs.
5. “Substantially Similar” and “Reasonable Discretion” – These standards for
names that do not “match exactly” could be exercised by polling place officials
in ways that are not race-blind.
a. Latino and Asian-Americans names often are translated improperly.
6. Education and outreach program is less likely to reach blacks and Latinos
because of education and technology barriers.
Legislative Apportionment
1.
2.
3.
4.
Constitution does not require congressional districts; says very little about apportionment.
Principle Restraints on Apportionment
a. One-Person, One-Vote
b. Anti-retrogression principle under Preclearance of § 5 of VRA.
Inequities of Malapportionment
a. Politicians must convince more people to vote for him or her in larger districts.
b. If resources are distributed on a district-by-district basis, members of smaller districts will receive
more resources per capita.
c. Members of smaller districts have greater access to representatives and receive better constituent
services.
Colegrove v. Green (1946)
a. Facts – Concerned challenge to IL congressional districting to prevent 1946 election from taking
place under existing apportionment scheme. IL last reapportioned in 1900, and population since
had shifted greatly.
b. Holding (Frankfurter)
i. Nonjusticiable Political Question – “Political Thicket”
1. Apportionment involves courts in party politics.
2. Power to secure fair representation committed to Congress, art. I, § 4.
a. Constitution confers exclusive duty on Congress.
b. Solution resides in democratic process.
c. Court cannot act because Congress abdicates duty.
3. Constitution confers on Congress duty of apportioning Representatives “among
the several States . . . according to their respective Numbers.” Art. I, § 2.
a. Court cannot compel Congress to perform its duties.
ii. Scope of Relief – No Adequate Remedy
1. Cannot redistrict IL more equitably.
a. Court lacks expertise to redistrict.
b. Redistricting involves distribution of political power.
16
Only can declare existing apportionment invalid.  Result: statewide
congressional elections.
a. Worse than existing apportionment  underrepresentation of
geographical/political minorities.
iii. Proper Remedy – “Secure State legislatures that will apportion properly or invoke the
ample powers of Congress.”
iv. Frankfurter – Unconvinced that a population-driven standard was the principal
constitutional standard.
1. Even by the time of Baker, mathematical equality was not the central concern.
Other considerations: districts should be compact and contiguous; communities
of interests; economic interests; protecting incumbents; etc. There are numerous
considerations, and mathematical equality, at least at the time of Colegrove, was
not the trump card.
c. Black, Dissenting
i. 1901 State Apportionment Act  EPC violation.
ii. Congressional apportionment is conducted by state legislatures, which in turn are
malapportioned along the same lines.
iii. Constitution impliedly requires equal weight for each vote.
iv. Gross malapportionment in IL violates equal weight policy.
d. Reasons for Districting Freeze in 1900
i. Urban areas grew increasingly underrepresented in early 20th century because of
increasing urbanization, increasing manufacturing, and return of soldiers after WWI and
WWII.
ii. Many African Americans and immigrants were moving to urban areas in America.
Legislators wanted to disenfranchise them.
e. Frankfurter thought that enraged citizens would demand that their legislators correct gross
malapportionment. However, more and more apportionment cases came before Court, and it
became clear that his prediction did not bear out.
i. Baker later recognized that legislators have entrenched interests that dissuade them from
redrawing districts.
Three Bases for Political Question Doctrine
a. Committed to Other Branches of Government
i. Look at constitutional text.
b. Need for Certainty or Finality
i. Once a map is drawn, it is important to know whether the map is valid. Elections must be
planned; candidates must be selected.
ii. Need for finality increases as Election Day approaches.
c. Lack of Judicially Manageable Standards
i. Before Reynolds, most judges saw districting as involving diverse and competing
principles, e.g., geography, economic interests, population equality, etc.
1. Population equality usually was taken into account more so w/r/t the lower
house of the legislature.
ii. One-Person, One-Vote is the solution.
Inaction in Correcting Malapportionment
a. Governor – Redistricting probably is not high on governor’s list of objectives.
b. State Courts – Traditionally have not intervened.
i. May be elected district-by-district like legislators.
ii. May be elected statewide, and here, cronyism becomes an issue. State judges do not
want to upset their friendly relations with state legislators.
c. Warren Court – Pursued the CAROLENE PRODUCTS agenda.  It could trust the output of
politics as long as it could trust the input of politics. Therefore, it worked to ensure that the input
of politics was trustworthy.
i. Reflects “process-failure” arguments for judicial intervention. (p. 133)
Baker v. Carr (1962)
a. Facts – Concerned challenge to TN apportionment scheme for state legislature under its
Apportionment Act. TN districts had not been reapportioned since 1901.
2.
5.
6.
7.
17
b.
8.
Holding (Brennan)
i. EPC challenges to malapportionment are justiciable.
ii. Distinguished Guaranty Clause cases.
1. Stare Decisis – Guaranty Clause cases are non-justiciable. Long line of
Supreme Court precedent holds this. Court will not tell states how to structure
their own republican governments.
a. Luther v. Borden (1849)
i. Facts – Concerned Dorr Rebellion in RI.
ii. Holding – Whether a state government is a legitimate
republican form as guaranteed by the Constitution is a political
question to be resolved by the President and Congress.
iii. Guaranty Clause cases are non-justiciable.
b. Pacific States Telephone & Telegraph Co. v. Oregon (1912)
i. Facts – Concerned challenge to OR referendum as direct
democracy inconsistent with representative democracy
specified by Guaranty Clause.
ii. Holding – Issue is political/governmental and within
Congress’ powers.
iii. Guaranty Clause cases are non-justiciable.
2. If Guaranty Clause were justiciable, there would be much more litigation over,
e.g., appointed judges, administrative action, etc.
3. Guaranty Clause provides no judicially manageable standards.
4. Distinction is somewhat disingenuous.
a. Both clauses are equally vague.
b. One-Person, One-Vote could have been articulated/enforced under
either.
c. Court simply did not want to appear to be breaking from precedent.
iii. EPC provides judicially manageable standards.
1. Standards for determining whether classification reflects no policy but arbitrary
and capricious discrimination.
2. 14th Amendment is not so enmeshed with political questions as Guaranty
Clause.
c. Clark, Concurring
i. Patent violation of EPC.
ii. Federal courts/judicial intervention is only avenue of redress.
1. TN political process will not correct problem.
iii. Would have offered sample reapportionment.
d. Stewart, Concurring
i. Court decided three issues:
1. Federal courts possessed jurisdiction of the subject matter.
2. Voters had standing to challenge TN apportionment statutes.
3. Reapportionment was a justiciable issue.
e. Frankfurter, Dissenting
i. Apportionment – Political question best left to legislative/executive branches.
1. To retain authority, Court must detach from political questions.
ii. Really a Guaranty Clause case.
iii. Nothing in Constitution to prevent a state, not acting irrationally, from having any
electoral legislative structure best suited to its people.
1. Equal voting power among geographic populations is not the only acceptable
apportionment standard.
iv. EPC provides no judicially manageable standards.
f. Harlan, Dissenting
i. Nothing in Constitution requiring state legislatures to be apportioned so as to equally
represent each voter.
Reynolds v. Sims (1964)
18
Facts – Concerned malapportionment in AL legislature and fact that AL had not reapportioned
since 1911 although decennial action was constitutionally required.
b. Holding (Warren)
i. Equipopulation Principle – Population is only permissible basis for legislative
apportionment. Required by EPC.
1. “Legislators represent people, not trees or acres.”
2. Schemes over- or under-valuing certain numbers of voters are unconstitutional.
a. Dilution of vote.
b. Mathematically demonstrable discrimination.
3. Population is proper starting point for achieving EPC goal of uniform treatment
of people in same situation.
ii. Right to participate fully in political process requires equal voting power.
iii. Geographic area is not a permissible basis for legislative apportionment.
1. Not a permissible classification w/r/t EPC.
iv. Equal District Size
1. Required by EPC.
2. Need not be exact.  Deviations are permissible if based on legitimate
considerations incidental to effectuation rational state policy.
3. Impermissible Considerations
a. History
b. Economic Interests
c. Geographic Area
4. (More) Permissible Consideration – Giving voice to distinct political
subdivisions, e.g., counties.
c. Harlan, Dissenting
i. EPC does not require population-based apportionment.
ii. State legislative apportionments are wholly free of constitutional limitations except the
guaranty to each state of a republican form of government, which cannot be the
foundation for judicial relief.
Why does population-based representation apply to both houses of state legislatures, and why have states
not succeed in arguing for a model like the federal government?
a. Reynolds – Accident of history. U.S. would not have come into existence were it not for the
creation of Senate. Compromise to induce smaller states to join union.
i. Art. V - State cannot be deprived of its equal suffrage in Senate without its consent.
ii. Art. IV, § 3 – State lines are inviolable unless a state consents to a change.
iii. Additional Argument – States had some measure of sovereignty before joining union.
b. Reynolds – States are different than U.S. Counties do not stand in same relation to states that
states do to union. Counties are formed top-down, not bottom-up like states; were never
sovereign; can be merged, split, abolished, etc. without all of the formalities of state territorial
changes.
i. Conclusion – Historical argument does not work with regard to houses of state
legislatures.
c. Note – Reynolds seemingly is hostile to overrepresentation of smaller states in Senate. Would not
support but for U.S.’s unique history.
Wesberry v. Sanders (1964)
a. Congressional representation must be based on pop. as nearly as practicable.
b. Announced One Person, One Vote.
c. Found Equipopulation Principle in art. I, § 2.
Mahan v. Howell (1973)
a. Seemingly retreated from Reynolds to find that state interest in regional representation justified
broader deviation from congressional standard.
Burns v. Richardson (1966)
a. Apportionment need not be based on federal census.
b. Not required to count aliens, transients, military, convicts, etc.
c. May count only permanent residents.
Garza v. County of Los Angeles (9th Cir. 1990)
a.
9.
10.
11.
12.
13.
19
a.
14.
15.
16.
17.
18.
19.
Raw population is basis for apportionment—even though it includes non-voters, e.g., children,
aliens, convicts, etc.
Lucas v. The Forty-Fourth General Assembly of the State of Colorado (1964)
a. Facts – CO electorate approved a ballot initiative adopting CO Const. amend. 7 that provided for
apportionment of state house districts based on population and for apportionment of state senate
districts based on population and other factors. Certain voters sued state legislature and state
officials alleging that amend. 7 violated their right of equal representation.
b. Holding (Warren)
i. Reversed upholding of amend. 7 because it did not comport with EPC.
1. One-person, one-vote had been internalized in EPC.
2. Court did not want to retreat from this position/progress.
ii. One-person, one-vote cannot be violated—even by referendum.
1. Constitutional mandate.
2. That amend. 7 had been approved by referendum is constitutionally irrelevant.
Voter approval does not justify violation any more than voter approval would
justify violation of any other constitutional right.
3. “An individual's constitutionally protected right to cast an equally weighted vote
cannot be denied even by a vote of a majority of a state's electorate.”
4. West Virginia State Bd. of Educ. v. Barnette (1943) – Constitutionally protected
rights may not be submitted to vote.
iii. Court acted to secure an individually guaranteed constitutional right despite existence of
a political remedy.
c. Clark, Dissenting
i. CO apportionment should not be held invalid, particularly because of:
1. Frequency of reapportionment in CO;
2. Special geographic and economic considerations justifying the present
apportionment; and
3. Necessity for granting some latitude within limits of rationality for the
apportionment of seats in the state senate, since the state house of
representatives was apportioned on a population basis.
d. Stewart, Dissenting
i. State legislative apportionment scheme is constitutional if it is:
1. Rational in light of the state's own characteristics and needs; and
2. Not such as to permit systematic frustration of the majority's will.
ii. CO apportionment provisions were valid under this test.
Special Exceptions to One-Person, One-Vote
a. Apply to special-purpose districts. All have to do with land ownership or water usage in western
states. Proportional interests are reflected.
VRA § 2 – Possibilities for challenges to districting. Burden is on the challengers to show that the
districting will have a retrogressive effect on minority voting.
Factors in Reapportionment
a. Mathematical Equality – Primary
b. Respect for Incumbents
c. Contiguity of Districts
d. Community of Interest
e. Minority Representation
How to Calculate Deviation
a. Formula: (Population of Largest District – Population of Smallest District) / Mean, i.e., Population
in Ideal District
i. E.g., (103 – 96) / 100 = 0.07 or 7% deviation
ii. Congressional Districts – Deviation must be smaller. Karcher (deviation of less than
1% is unacceptable/incompatible with population equality)
iii. State Legislative Districts – Deviation may be a little larger for good reasons.
1. NO MORE than 10% deviation.  Usually justified by geographic area.
Karcher v. Daggett (1983)
20
Facts – After 1980 census, NJ was entitled to 14 rather than 15 representatives, causing it to
reapportion its congressional districts. Resultant plan had small deviations (less than 0.7%)
among the populations of the districts.
b. Holding (Brennan)
i. Invalidated apportionment scheme as not comporting with art. I, § 2.
ii. Equipopulation Principle/Census Data – “Adopting any standard other than population
equality, using the best census data available, would subtly erode the Constitution's ideal
of equal representation.”
iii. “There are no de minimis population variations, which could practicably be avoided, but
which nonetheless meet the standard of Art. I, § 2, without justification.”
1. No avoidable de minimis population variations will be tolerated without
justification.
2. NJ offered no justification as to why its avoidable de minimis population
variations were needed.
iv. Population deviations must be necessary to achieve a legit state policy.
1. E.g., “making districts compact, respecting municipal boundaries, preserving the
cores of prior districts, and avoiding contests between incumbent
Representatives.”
2. Avoiding diluting vote of racial minorities has been a particularly important
objective recently.
a. Two Situations
i. Splitting a minority area into multiple districts when in a prior
apportionment it had been one district. To prove a 14th
Amendment violation, one must show that a minority district
was split with the intention of harming minority
representation.
ii. Switching to at-large elections. This occasionally is done to
frustrate minority success.
v. Lesson – States must provide justifications for any avoidable de minimis population
variations, which must be necessary to achieve a legitimate state objective. Generalized
assertions are insufficient.
c. White, Dissenting
i. Population deviations in the plan were statistically insignificant and had no relevant
effect on relative representation.
Gordon v. Lance (1971)
a. Consistent with Constitution, states may determine on which issues a supermajority is required as
long as it does not discriminate against any identifiable class in violation of EPC.
Davis v. Bandemer (1986)
a. “Political gerrymandering” is justiciable. Claim that one party’s interests are being systematically
diluted as a result of gerrymandering is justiciable.
b. No agreed-upon guidelines for reviewing such cases.
Vieth v. Jubelirer (2004)
a. Facts – Concerned Republican-controlled PA legislature drawing districts to maximize Republican
seats.
b. Dissent plus Kennedy held that partisan gerrymandering claims are justiciable.
i. Plurality held that they are not because there are no judicially manageable standards.
c. No Judicially Manageable Standards
i. Articulated by plurality.
ii. Kennedy agreed that there were no judicially manageable standards and so agreed to
dismiss case, but he held that such standards could be developed in the future.
d. Conclusion – 5 votes to dismiss as non-justiciable political question; 5 votes rejecting proposition
that partisan gerrymandering always is non-justiciable.
i. Still no partisan gerrymandering guidelines.
ii. Much uncertainty as to when a constitutional violation occurs.
iii. Suggests a possible political question.
Shaw v. Reno (1994)
a.
20.
21.
22.
23.
21
Facts – NC was 20% minority populated, and 1990 apportionment had only one majority minority
district. As a result of 1990 census, NC gained an additional congressional seat and a new district
was created. State legislature reapportioned state, and new district was irregularly shaped.
b. Use of race in drawing election districts is permissible only if government can show that it is
necessary to achieve a compelling purpose.
24. Easley v. Cromartie (2001)
a. Government may use race as a factor in districting if goal is political, e.g., protecting a safe seat
for an incumbent or creating a district that has a majority of one political party.
b. Guidance to Lower Courts
i. Strong presumption that districting is permissible, even if it is clear that race was a major
factor.
ii. Challenger must demonstrate that race—not politics—was predominant consideration. 
Requires showing that legislature’s goals could have been achieved without consideration
of race.
1. Difficult burden.
2. Allows much greater use of race in districting.
a.
Money & Politics
“Politics is always looking for money, and money is always looking for politics.”
1.
2.
3.
Generally
a. Right to vote and campaign finance are two kinds of inputs in political process.
b. Central Tension
i. Government’s right to regulate functions of political marketplace; and
ii. Right to contribute and First Amendment rights of association and participation in
politics.
c. Constitutional Question – To what extent should we view campaign contributions as political
speech?
i. Debate – To what extent should we regulate political speech?
Structural Issues
a. Politicians are ones affected by campaign contribution limitations, and they also are ones drafting
relevant regulations. A bit like the fox guarding the henhouse.
b. Money is slippery. If Court restricts money in one area, it will migrate elsewhere.
c. Candidates and parties are mediating influences on money in politics.
i. Must appeal broadly and adopt a middle course.
ii. Must not become bogged down in any single issue.
First Amendment Background
a. See pp. 327–33.
b. Restrictions on political speech are subject to strict scrutiny.
c. Viewpoint Regulation
i. E.g., government outlaws advocating communism or white supremacy.
ii. Government cannot silence people on issues, no matter how wrongheaded it thinks those
viewpoints are.
iii. Strict Scrutiny
iv. Most contentious area of First Amendment regulation.
v. Campaign finance limitations do not reside here.
d. Content-Based Restrictions
i. E.g., defamation, incitement, threats, obscenity, perjury, intentional infliction of
emotional distress, etc.
ii. Government identifies harm independent of a person believing something in particular,
i.e., no viewpoint discrimination.
iii. Strict Scrutiny
iv. Political speech is especially important to freedoms of speech and press.
1. See Snyder v. Phelps.
22
2.
4.
5.
1.
Campaign-finance law is analogous to content-based restrictions. Content at
issue is political speech.
e. Time, Place, and Manner Restrictions
i. Regulating when, where, and how of protected speech.
ii. Regulations must be reasonable.
iii. Not about content. E.g., government cannot say, “No blocking the Brooklyn Bridge at
rush hour if you’re opposed to Wall Street.”
iv. Less Searching Scrutiny – Permitted if (1) content-neutral; (2) narrowly tailored to serve
(3) a significant governmental interest; and (4) leaving open ample alternative channels
for communication of information.
v. Campaign-finance law is analogous to TPM restrictions.
Policy Considerations – Three Central Arguments
a. Regulation of Political Markets
i. Less Regulation
1. First Amendment guarantees wide-open debate on public issues.
ii. Regulation
1. Antitrust Analogy – Need campaign-finance regulation to prevent monopoly
concentration of power. If competitors cannot reach consuming public, political
market will collapse.
2. Coercion – Campaign-finance regulation preserves an open political market by
limiting concentration of economic power in political arena and limiting
governmental decisions flowing from concentrated economic power (e.g., quid
pro quo).
b. Equality
i. Follows from Reynolds v. Sims (guaranteeing each citizen an equally effective voice in
election of legislators).
ii. Pro-Regulation – Need regulation to provide meaningful equality in political arena, lest
concentration of economic power drown out alternative voices.
c. Liberty
i. Less Regulation
1. First Amendment skepticism toward governmental restraints.
2. Contributions and expenditures are like other forms of protected political
speech.
3. Everyone should be able to exercise protected speech.
Supreme Court Roster
a. 1993–2005: no changes on Court. Court has had four turnovers since then.
i. Kennedy, Scalia, Thomas – Buckley was wrong. No limits on contributions.
ii. Ginsburg, Stevens – Buckley was wrong. Expenditures should be limited.
1. Kagan (for Stevens) – Probably uphold contribution limits.
iii. Breyer, Souter, O’Connor – We can live with Buckley.
1. Alito (for O’Connor) – Might invalidate contribution limits.
2. Sotomayor (for Souter) – Probably uphold contribution limits.
iv. Rehnquist – Supported unlimited campaign finance contributions, but at state level, not
federal level.
1. Roberts (for Rehnquist) – Might invalidate contribution limits.
b. Present – May be five votes for invalidating contribution limits.
Campaigns as Concerning the Flow of Information
a. Information-Flow Concerns
i. Quantity
1. Regulating radio, TV, or Internet advertising.
a. Do we want to regulate the supply (providers) or demand (candidates)?
b. Do we want to regulate the rates that providers may charge?
c. Do we want to regulate the amount of airtime that candidates may
purchase?
23
d.
ii. Quality
1. True
a.
b.
2.
Do we want to regulate the maximum number of minutes that providers
may allot for political advertisements in a given period of time?
Candidates can seek recourse in defamation and libel suits, or they can
file complaints with state election commissions when presented with
false claims.
Would be very difficult to set up, e.g., a politically neutral truth
commission to determine veracity of various claims. Civil juries (in
defamation and libel cases) are a better instrument, but such cases
usually do not have publicity or timeliness to affect elections.
2. Useful
iii. Timing
1. Sometimes, candidates drop bombshells the night before an election. Should we
restrict this?
2. Are we satisfied with the fact that campaign last years nowadays?
iv. Integrity
1. Concerned about money corrupting politics and integrity of public officers.
E.g., in many countries, bribes are commonplace, and people have to pay bribes
for government officials to act in even the most basic capacities.
2. Statutes/Regulations
a. Anti-Bribery – Politician gets paid before he or she acts.
b. Anti-Kickback – Politician acts and then gets paid.
v. Source
1. Disclosure
2. Prohibitions
Central Divide – Contributions & Expenditures (by Candidates or Individuals/ Associations)
a. History
i. Corporate campaign contributions from general treasury funds were outlawed in early
twentieth century.
ii. In 1940s, unions were prohibited from contributing from general treasury funds.
1. Unions have PACs. When they collect union dues, members must specify how
much of their dues may be allocated to the PACs.
a. E.g., union PAC may spend $20 of my $100 membership dues. Money
in PAC is separate and segregated. Members may not be forced to
contribute.
2. Corporations also may have PACs.
3. Prohibition on general treasury fund contributions lasted until last quarter of
twentieth century.
iii. In late 1960s–70s, mass media became much more important in campaigns. Costs rose
dramatically.
iv. First national money scandal involved Nixon. Some very wealthy people donated a lot of
money to Nixon’s campaign.
b. Legislation
i. 1974 Amendments to Federal Election Campaign Act (FECA).
1. Origin of FECA of 1971
a. Spurred by increasingly prominent role of mass media in politics in
1960s–70s and increasing costs of campaigning.
b. Watergate Scandal.
2. 1974 Amendments
a. Contribution Limits
i. Individual/Group - $1000
ii. Political Committee - $5000
iii. Annual Cap - $25,000
b. Expenditure Limits
i. Individual/Group - $1000 “relative to a candidate”
24
ii. Limits on use of personal funds by candidates.
Disclosure Requirements
Public funding for presidential elections.
i. Candidate must forego private financing and accept
expenditure limits.
ii. Caters to two-party system.
iii. No public financing of House or Senate elections.
Federal Election Commission
a. Established by 1975 Amendments to FECA.
b. Regulatory Body
i. Authority over election issues.
ii. Some authority to punish offenders by issuing fines.
c. Only federal agency with an even number of commissioners: six.
i. No more than three commissioners from any one political
party, i.e., three Democrats and three Republicans.
1. Stalemate; inefficacy.
ii. President appoints two; Speaker of House appoints two; and
President Pro Tempore of Senate appoints two.
1. Appointment Power of President – Art. II, § 2.
Congress cannot give itself appointment power.
Original FEC violated this, and Buckley corrected it.
Limits on Contributions & Expenditures
a. Expenditures limits depended on office, a quantitative limit.
i. E.g., President could spend more than senators, who could
spend more than House members.
ii. System favored incumbents, who already had name
recognition. Despite current sentiments, most incumbents do
not lose.
iii. If a candidate can spend only $70,000, he or she cannot be
bought for $100,000.
b. Contributions
i. No limits on corporate or union contributions relative to
candidates from their general treasury funds. Can spend
money supporting candidate policies, but not candidates
themselves.
c.
d.
3.
4.
3.
Buckley v. Valeo (1976)
a. Facts – Concerned challenge to 1974 Amendments to FECA.
b. Established contribution/expenditure divide.
c. Spending money in a political campaign is protected speech.
i. Fundamental First Amendment activities, e.g., debating issues and candidates’
qualifications.
ii. Strict Scrutiny.
d. Limitations on campaign spending restrict protected speech.
i. “A restriction on the amount of money a person or group can spend on political
communication during a campaign necessarily reduces the quantity of expression by
restricting the number of issues discussed, the depth of their exploration, and the size of
the audience reached. This is because virtually every means of communicating ideas in
today's mass society requires the expenditure of money.”
e. Challenged FECA Provisions
i. Contribution Limits
1. Upheld.
2. Justifications
a. Removed from speech/little direct effect on protected speech  (1)
permits symbolic expression of support evidenced by a contribution;
(2) does not infringe contributor's freedom to discuss candidates and
issues.
25
ii.
iii.
iv.
v.
i. Contributors feel like they are part of campaign.
b. Preventing corruption or appearance thereof (viz. quid pro quo).
c. Work in tandem with disclosure requirements.
3. Narrowed scope of valid contribution limitations, which now include materials
specifically advocating election or defeat of a candidate.
Expenditure Limits
1. Invalidated.  Expenditures now are unlimited.
2. Justifications
a. Close to speech/direct effect on protected speech  Restrict nature and
quantity of speech.
i. Contra Stevens – Money is not speech; money comes prior to
speech.
b. Little danger of corruption or appearance thereof.
3. Cannot restrict to equalize political influence.
a. Failed Argument – If we level the playing field, elections will be
decided on the merits and not on the basis of other factors.
b. Elections exist as a market, and government is not going to get into
business of regulating that market.
4.  Invalidated limits on use of personal funds.
a. Cannot seek to equalize spending in election campaigns.
Disclosure Requirements
1. Upheld.
2. Justifications
a. Provide important information to electorate.
b. Deter corruption; avoid appearance thereof.
c. Provide important information for enforcing contribution limits.
d. Work in tandem with contribution limits.
Public Funding of Presidential Elections
1. Upheld.
2. Justifications
a. Increases, rather than restricts, expression w/r/t election campaign.
b. Facilitates and enlarges public discussion and participation.
3. Expenditure limits are permissible condition because acceptance of public funds
entails acceptance of expenditure ceiling.
a. Trading of constitutional rights.
Implications
1. Buckley represents a compromise.  Candidates may spend what they can
raise, but there are limits on how much money they may raise from any
individual or group. To amass a war chest, they must obtain many relatively
small contributions.
2. Value of Bundlers
a. Bundlers are volunteers that obtain individual campaign contributions
for candidates.
b. Because of contribution limits, individuals can contribute only
relatively small amounts of money. A bundler is able to get many
people to donate and then transfer those contributions to the candidate.
POLITICAL PARTIES
1.
Involves distinction between hard money and soft money.
a. Hard Money
i. To be used for federal election activities; contributed directly to a candidate of a political
party
ii. Subject to contribution limits and disclosure requirements; monitored by FEC.
b. Soft Money
i. All of the other money; contributed to political party as a whole.
26
2.
3.
ii. To be used for everything else in political life, except for “federal election activities.”
iii. Not subject to contribution limitations or disclosure requirements.
iv. E.g., “get out the vote” drives, volunteer travel expenses, consulting, polls, issue
advocacy, etc.
v. BCRA (McCain-Feingold Act) eliminated soft-money contributions to political parties.
Nixon v. Shrink Missouri Government PAC (2000)
a. Facts – Concerned MO law setting contribution limits for candidates to state government office:
$1075 for governor or AG; $275 for any office representing fewer than 100,000 people.
b. Holding (Souter)
i. Upheld law.
ii. Reaffirmed and applied Buckley distinction between contributions and expenditures.
1. Spending money for a campaign is speech.  Strict Scrutiny
2. Contribution Limits – Constitutional
3. Expenditure Limits – Unconstitutional
iii. Strict Scrutiny (same application as Buckley)
1. Compelling Government Interest
a. Preventing corruption or appearance thereof.
2. Narrow Tailoring
a. Evidentiary Burden
i. Quantum of empirical evidence varies up or down with
novelty and plausibility of the justification raised.
ii. Buckley demonstrates that dangers of large, corrupt
contributions and suspicion that large contributions are corrupt
are neither novel nor implausible.
iii.  Minimal evidentiary burden. (And MO made no strong
showing.)
b. That MO law was voter-initiated itself seemed to provide, in part,
empirical evidence that First Amendment requires.
c. Stevens, Concurring
i. Money is property, not speech.
ii. Would overrule unlimited expenditures in Buckley.
d. Breyer, Concurring, with Ginsburg
i. Hand-wringing pragmatism.
ii. Competing Constitutional Interests – Political speech and integrity of elections.
1. Presumption against constitutionality is improper.
2. Strict scrutiny cannot resolve.
iii. Test – Balancing of Interests
1. “Whether the statute burdens any one such interest in a manner out of
proportion to the statute's salutary effects upon the others (perhaps, but not
necessarily, because of the existence of a clearly superior, less restrictive
alternative).”
e. Kennedy, Dissenting
i. Court is “almost indifferent” to freedom of speech.
ii. Would overrule contribution limits in Buckley.
f. Thomas, Dissenting, with Scalia
i. Repression of political speech.
ii. Would overrule contribution limits in Buckley.
Citizens Against Rent Control v. City of Berkeley (1981)
a. Facts – Concerned ordinance limiting to $250 individual contributions to a committee supporting
or opposing a ballot referendum.
b. Invalidated ordinance because contributions in connection with a ballot initiative do not have
same danger of buying influence with candidate or creating perception of undue influence.
i. “Preventing corruption or appearance thereof” rationale does not apply.
ii. Ballots concern issues, not candidates.
iii. See also Belloti.
27
EXPENDITURE LIMITS
1.
2.
Colorado Republican Federal Campaign Committee v. Federal Election Commission (Colorado Republican
I) (1996)
a. Facts – Concerned federal law limiting expenditures by political party on behalf of a candidate.
FEC found that expenditures by CO Republican Party attacking prospective Democratic senatorial
candidate exceeded dollar limits imposed upon political party’s expenditures w/r/t general
congressional campaign.
b. Holding (Breyer)
i. Invalidated law.
ii. Reaffirmed and applied Buckley distinction between contributions and expenditures.
iii. First Amendment protects right of political parties to make unlimited independent
expenditures. Congress may not regulate independent expenditures by political parties.
1. Matter of political speech/expression.
2. No special dangers of corruption associated with political parties.
a. Independent Expenditures – No prearrangement.
3. Did not rule on coordinated expenditures by political parties.
iv. Implications
1. Shifting increased levels of fundraising and campaign donations to nominally
independent political parties.
2. Helps candidates circumvent contribution limits and conditions for receipt of
public funding.
c. Kennedy, Concurring, with Rehnquist and Scalia
i. First Amendment protects right of political parties to make unlimited independent and
coordinated expenditures.
d. Thomas, Concurring, with Rehnquist and Scalia
i. [Same.]
ii. Would have overruled Buckley and invalidated restrictions on contributions.
e. Stevens, Dissenting, with Ginsburg
i. All political party spending should be treated as contributions.
ii. Limitations avoid corruption or appearance thereof.
iii. Justification – Leveling electoral playing field.
FEC v. Colorado Republican Federal Campaign Committee (Colorado Republican II) (2001)
a. Facts – Concerned facial challenge to ban on coordinated expenditures by political parties on
behalf of specific candidates.
b. Holding (Souter)
i. Coordinated Expenditures = Contributions
1. Key: same risks of corruption or appearance thereof.
a. Majority – Evidence reveals threat of corruption because coordinated
expenditures may be used to circumvent contribution limits.
b. Dissent – No actual evidence of corruption.
2. Difficult to believe that coordination has not occurred.
ii. Two Issues
1. Does limiting coordinated spending impose a unique burden on parties?
a. No, it disadvantages political parties no more than other groups wishing
to make coordinated expenditures.
2. Is there reason to think that coordinated spending by a party would raise the risk
of corruption posed when others spend in coordination with a candidate?
a. Yes. May be used to circumvent expenditure limits.
i. Coordinated expenditures are as useful as cash.
ii. Disguised contributions.
iii. May be given for quid pro quo.
iii. Coordinated Expenditures
1. E.g., Swift Boat Veterans for Truth.
2. Can candidate reelection committees and political parties share donor lists?
a. Yes, if they are paid for.
28
3.
c.
Can candidate reelection committees and political parties discuss the markets in
which they are focusing their efforts?
a. No. That would be coordination.
4. Mimicry ≠ coordination. If political party employs same tactics as a candidate
reelection committee, this does not necessarily evince coordination.
Thomas, Dissenting, with Scalia, Kennedy, and Rehnquist
i. Provision sweeps too broadly, interferes with party-candidate relationship, and has not
been proved necessary to combat corruption.
ii. Buckley and restrictions on contributions should be overruled.
ANTI-CORRUPTION & STATE INTEREST
CORRUPTION JUSTIFICATION FOR CAMPAIGN-FINANCE REGULATION
1.
First National Bank of Boston v. Bellotti (1978)
a. Facts – Concerned MA law that prohibited banks or businesses from making contributions or
expenditures w/r/t ballot initiatives or referenda—unless initiative materially affected property,
business, or assets of corporation.
b. Holding (Powell)
i. Invalidated law.
1. Note – Did not involve any challenge to constitutionality of laws prohibiting or
limiting corporate contributions to political candidates or committees.
ii. Strict Scrutiny
1. Compelling Government Interests – (1) Sustaining active role of individual
citizen in politics and (2) protecting rights of shareholders whose views differ
from management.
a. No evidence of threat to democratic process.
2. Narrow Tailoring
a. Under-Inclusive – Does not restrict corporate activity. Corporations
may expend funds until issue is placed on ballot.
b. Over-Inclusive - § 8 would prohibit corporation from supporting or
opposing an issue even if all shareholders consented.
iii. Value of speech resides in informing the audience.
1. Political speech is protected/integral to democracy.
2. Any restriction, regardless of source, undermines First Amendment.
3. “The inherent worth of the speech in terms of its capacity for informing the
public does not depend upon the identity of its source, whether corporation,
association, union, or individual.”
a. Disconnecting speech from speaker.
b. Focus is on flow of ideas.
c.  Does not assign First Amendment rights to corps. Shows that
“significant societal interests” will be served by protecting corporate
spending on ballot initiatives.
4. Lesson – There is a First Amendment interest in allowing corporations to speak.
a. Foundation of Citizens United.
iv. Restricting corporate speech to related topics  impermissible content-based restriction.
v. Corporate spending w/r/t initiatives poses no danger of corruption or appearance
thereof, unlike corporate spending w/r/t candidates.
vi. Rejected argument that restrictions on corporate spending would prevent corporations
from drowning out other voices in election campaigns.
vii. Criticism – Inadequate weight to value of equality and how corporate wealth may distort
marketplace of ideas.
c. White, Dissenting
i. Uphold statute.
ii. Deference to legislature.
29
d.
e.
f.
g.
h.
i.
iii. First Amendment does not forbid state interference with managerial decisions to use
corporate funds to circulate fact and opinion irrelevant to corporation's business and
necessarily representing the managers' own personal or collective views about political
and social questions.
Rehnquist, Dissenting
i. Uphold statute.
ii. Corporations do not have constitutionally protected liberty to engage in political activity
w/r/t matters having no material effect on their business.
iii. States create corporations, and when states afford benefits, they may take them away.
1. What is different about corporations?
a. Limited Liability – Limited liability because investors’ liability is
limited to their investment.
b. Perpetual Life – Theoretically may exist indefinitely, even if
shareholders pass away and shares change hands.
c. Special rules about taxation, business forms, etc.
d.  All of these difference help corporations to amass large amounts of
wealth over time.
e.  Nonprofit corporations share some advantages without focusing on
amassing wealth.
2. To extent that there are concerns about the corporate form, solution is a
narrower law. Should be handled by corporate law, not suppression of corporate
speech. [Not Rehnquist.]
Bank managers had three choices for addressing referendum:
i. Spend general treasury bank money.
ii. Spend segregated fund bank money.
iii. Spend personal money.
“Who” Question – Should identity of speaker determine whether funds are available for political
expression.
i. Residual Vagueness at Margin
1. Might cause self-censorship.
2. Corporations might not engage in protected speech for fear of violating the law.
3. Vagueness in laws proscribing certain harmful conduct usually is not an issue.
ii. Worst aspect of self-censorship in First Amendment law is chilling effect on protected
speech.
Issues in Corporate Spending
i. There are both business and personal reasons why one might be concerned about
corporate income tax.
ii. In any complicated referendum issue, there could be a diversity of views among bank
managers, tellers, depositors, etc.
Agency Problems – Arguments Concerning Others’ Money
i. If managers spend corporate money in politics, they may be spending others’ money on
politics without their consent.
1. Goes to separation of ownership and control.
a. Shareholders – Own the corporation.
b. Managers – Control day-to-day dealings of a corporation.
c. Distance between these two groups. Shareholders cannot necessarily
control what managers do, including which issues or candidates
managers endorse on behalf of corp.
ii. Entrenchment Problem – Corporations are state-created entities and are afforded certain
benefits by states. If corporations can lobby w/r/t matters affecting the state, they enter
feedback loops wherein they can push for more and more state-created benefits.
Powell Memorandum
i. Written shortly before Powell ascended to Court. Said that business is being kicked
around by hippies, etc. and that business needs to strike back.
ii. Section 8 is limited to banks and businesses, and other associations, including unions, are
not regulated.
30
1.
j.
Indicates that Powell perceived a political tilt in MA regulation. Unions were
much stronger at time of decision.
2. However, unions are different than corporations in important ways.
a. Unions generally can use their general funds for political purposes.
b. Members are able to opt out of use of general funds for political
purposes (as opposed to corporations, where people must opt in and
donate to segregated funds).
Methods of Protecting Shareholders from Unscrupulous Managers
i. Intra-Corporate Remedies – Minority shareholders can elect board members to
represent their minority interests.
1. However, corporate democracy is not very robust. Board elections are rubber
stamps for will of existing power structure. Also, if there is not unanimity, there
will then be a new minority.
ii. Charter Provisions – Shareholders could move to amend corporate charters to prevent
corporate political expression on certain topics.
iii. Shareholder Derivative Suits – Suit by shareholders on behalf of company. Available
because corporations will not sue themselves. Minority shareholders can bring them to
attempt to hold management accountable.
1. Breaching fiduciary duty or misappropriating corporate funds are reasons for
bringing shareholder derivative suits.
2. Questionable whether speaking out for a candidate or cause—when it is believed
that doing so is in business’ best interest—constitutes sufficient cause for
bringing a shareholder derivative suit.
EQUALITY & LIBERTY IN POLITICAL CAMPAIGNS
1.
2.
3.
Citizens Against Rent Control v. City of Berkeley (1981)
a. Facts – Concerned ordinance limiting to $250 individual contributions to a committee supporting
or opposing a ballot referendum.
b. Reflected First Amendment freedom of association argument.
i. No limitations on contributions to volunteer committees.
ii. Collective action helps citizens to express themselves.
Federal Election Commission v. Massachusetts Citizens for Life (1986)
a. Allowed expenditure limitations on funds generated as byproduct of unrelated commercial
activity, but not on funds amassed directly for political expression.
Austin v. Michigan Chamber of Commerce (1990)
a. Facts – Concerned MI law prohibiting corporations from using revenues to contribute to
candidates or make expenditures for or against candidates, but allowing corporations to create
separate funds to solicit contributions and spend money from this segregated fund.
b. Holding (Marshall)
i. OVERRULED BY CITIZENS UNITED.
ii. Upheld law.
iii. Strict Scrutiny
iv. Justification – State may limit corporate speech so as to limit distortions caused by
corporate wealth.
1. Target of Law – “Corrosive and distorting effects of immense aggregations of
wealth that are accumulated with the help of the corporate form and that have
little or no correlation to the public's support for the corporation's political
ideas.”
2. Accepted premise that “corporate wealth can unfairly influence elections.”
3. Does not attempt to equalize speakers’ influence on elections. Rather, statute
“ensures that expenditures reflect actual public support for the political ideas
espoused by corporations.”
v. Segregated Funds
1. Problems Addressed
a. Agency problem of spending other people’s money.
31
Problem of other people’s money being diverted for political purposes,
i.e., that money was given for non-political purposes and now is being
used for political purposes.
2. Distortion by Misdirection – Solves problem of distortion by misdirection. No
one will complain that her money was used for a political purpose to which she
did not intend to direct it.
3. Distortion of Magnitude – Remains.
vi. Distinction Between Issue Referenda and Candidate Elections
1. Only expenditures in candidate elections are limited. Why?
a. Focus – Integrity of political process.
b. Money for candidate elections should reflect true support of people
providing it.
c. Really, Austin is about tempering effects of wealth when that wealth
does not accurately reflect political support for candidates being
funded.
d.  Bellotti and Austin provide different answers, which are reconciled
in Citizens United.
vii. Distinguishing Bellotti
1. Austin says almost nothing about Bellotti.
viii. Lesson – Corporations may make political expenditures from segregated funds, but not
from general treasury corporate funds.
ix. Overruled by Citizens United.
c. Scalia, Dissenting
i. Calibrating political speech to degree of public opinion that supports it is not a
compelling state interest.
ii. Government cannot bring “fairness” to politics.
d. Kennedy, Dissenting, with O’Connor and Scalia
i. Statute was over-inclusive because it covered all groups using the corporate form,
including all nonprofit corporations.
Federal Election Commission v. Massachusetts Citizens For Life, Inc. (1986)
a. Facts – Whether MCFL, a nonprofit, non-stock corporation, violated FECA § 441b by making
independent expenditures from its general treasury fund, rather than from a segregated fund, in
connection with a federal election.
b. Holding (Brennan)
i. Invalidated ban on independent expenditures from general treasury fund as applied to
MCFL.
ii. MCFL
1. Antiabortion group; voluntary political association.
2. Nonprofit, non-stock, non-“business” corporation.
a. Still employed corporate form, however.
3. Created to advance political ideas, not amass wealth for its shareholders.
iii. Requirements for MCFL organization:
1. Political and ideological organization.
2. No corporate/business interest; cannot engage in business activities.
3. No reasons to continue contributing to organization other than to express
support for its ideological agenda.
iv. Three Essential Features for MCFL Organization (Court):
1. Formed for express purpose of promoting political ideas and cannot engage in
business activities.
2. No shareholders that have any claim to its assets.
3. Not established by business corporation or labor union and accepted no
contributions from such entities, so it will not be their conduit.
v. Narrow exception to Austin  MCFL organizations may make independent expenditures
from their general treasury funds, rather than from segregated funds, in connection with a
federal election.
b.
4.
32
SOFT MONEY & THE REGULATORY GAP
1.
2.
3.
4.
5.
Electoral Domain v. Domain of Public Discourse
a. Electoral Domain – Campaigns
b. Domain of Public Discourse – General public debate over issues, ideas, and policies.
i. State cannot regulate to create equality of voice or influence.
The harder you push, the harder it is to distinguish between corporate political speech on issues and
corporate political speech on candidates.
a. When corporations talk about issues, they are not affecting integrity of democratic processes.
b. When they talk about candidates, they are affecting what voters will do.
First Amendment is concerned with keeping debate in both categories uninhibited, robust, and wide-open.
Two Requirements of Campaign-Finance Law Affecting Speech
a. Theoretical distinction between electoral domain and domain of public discourse.
b. Boundary must have operational content through administrative, regulatory, and constitutional
doctrine.
Buckley – Did not resolve tension between (1) equality and liberty and (2) electoral domain and domain of
public discourse.
ISSUE ADVOCACY
1.
2.
3.
4.
5.
6.
Issue Advocacy
a. Domain of public discourse.
b. Protected by First Amendment.
c. Not geared toward candidate elections.
1974 Amendments to FECA regulated issue and election advocacy.
Buckley
a. Only express candidate advocacy can be regulated.
b. Magic Words/“Express Words of Advocacy” – "vote for," "elect," "support," "cast your ballot
for," "Smith for Congress," "vote against," "defeat," "reject."
MCFL
a. Provided newsletter listing candidates in upcoming primary; identified their positions on three key
issues; included photos of candidates with 100% antiabortion platforms.
b. Contextual Analysis – Newsletter constituted express advocacy for candidates even though it did
not explicitly call for election.
c. Broader definition than Buckley.
Pre-BCRA
a. Issue Advocacy
i. Had to be sufficiently disconnected from any federal election campaign.
ii. Entities in corporate form could not be limited from spending on issue advocacy.
b. Flood of sham issue ads actually directed at electing or defeating candidates.
i. Exploited heavily by 1996 elections.
ii. Ads avoided Buckley magic words.
iii. Asked audience to do something other than vote for or defeat a candidate. E.g., “Call
your senator.”
Bipartisan Campaign Reform Act of 2002 (McCain-Feingold Act)
a. Broadest regulatory regime over flow of money into politics ever.
i. Significantly cut back by Citizens United.
b. Two Loopholes Addressed
i. Use of issue advertising.
1. Political ads specifically intended to affect election results, but which did not
contain certain "magic words," such as "Elect John Smith" or "Vote Against
Jane Doe," which would have subjected the ads to FECA's existing restrictions.
ii. Rise of soft money activity by political parties.
1. Activities intended to influence state or local elections.
2. Mixed-purpose activities, e.g., get-out-the-vote drives and generic party
advertising.
33
3. Issue advocacy ads not expressly advocating a candidate's election or defeat.
Allowed parties and candidates to raise more hard money (subject to contribution limits and
disclosure requirements).
d. Title I: Restrictions on Political Party Soft Money
i. Reduce ability of political parties to raise soft money and use it in ways that suggested
coordination with federal campaigns.
ii. Core was new FECA § 323(a), which made it illegal for a political party's national
committee to solicit, receive, direct, or spend any funds that were not subject to FECA's
limitations, prohibitions, and reporting requirements.
e. Title II: Regulating Electioneering Communication
i. Prohibited use of corporate or union funds for “electioneering communication” and
required disclosure of sponsors of any electioneering communication.
ii. Prohibited corporations and unions from using general treasury funds for
communications that were intended to, or had the effect of, influencing federal election
outcomes.
iii. Amendment to FECA § 304 (BCRA § 201) – Specified significant disclosure and
expenditure requirements for persons who funded "electioneering communications,"
that is, any broadcast, cable, or satellite communications (1) referring to a clearly
identified candidate for federal office, (2) made within a specified time before an
election, and (3) targeted to the relevant electorate.
McConnell et al. v. Federal Election Commission et al. (2003)
a. Facts – Facial challenge to BCRA on grounds that it outlawed too much speech—speech beyond
what the First Amendment permits to be restricted.
b. Holding (Stevens, O’Connor) – Most important of several majority opinions.
i. Upheld most key provisions of BCRA.
1. Deference to Congress on potentially corrosive effects of money in politics.
Federal Election Commission v. Beaumont (2003).
2. Overruled partly by Citizens United, which held that limits on independent
expenditures violate First Amendment.
3. Continuing Importance – Restrictions on soft money.
ii. Facial Challenge to BCRA
1. Types of Facial Challenge
a. Not capable of compatibility with any provision of Constitution.
b. Over-Breadth – Statute may have some legitimate, constitutional
applications, but it limits more than Constitution permits.
2. If law is invalidated, all/most of it falls.
3. Two Theories for Facial Challenge to BCRA
a. Always unconstitutional to bar one from engaging in electioneering
communication.
b. Substantially Overbroad – Some possible constitutional application,
but Court should invalidate BCRA on its face because of its chilling
effect on protected speech.
i. Challengers argued this.
ii. Court’s Response
1. Congress had evidence that many electioneering
communications were sham issue ads, which have
little informational content and present evils to which
Congress may respond.
2. Alternative means of communication. E.g., use
segregated funds; run ads without mentioning
candidates by name; use other media not covered by
BCRA; run ads earlier; target a different electorate;
etc.
3.  Responses show that BCRA is not overly broad.
iii. Justifications for BCRA
c.
7.
34
Problem – Money directed to a candidate—whether hard or soft money—is
likely to influence. Will be some feeling of being beholden. At least, there is
appearance of corruption, if not actual corruption.
a. Evidence of undue influence of soft money – Legislative calendar in
Congress. E.g., tort reform. Many trial lawyers have given money to
Members of Congress to delay action on tort reform.
2. Solution – National party committees may spend only hard money, which Court
justifies with regard to the sources of the money.  Committees are limited in
their sources, which are subject to contribution limitations and disclosure
requirements.
a. Regulation of expenditures depends on source of funds, rather than
form of regulation.
b. Big reform of BCRA.
Level of Scrutiny
1. Contribution Limitations – Less searching (rational-basis)
2. Expenditure Limitations – Strict Scrutiny
Soft Money Issue
1. Hard Money
a. Money spent for express candidate advocacy.
b. Regulated; must be disclosed.
2. Soft Money
a. Characteristics
i. Money spent by state political parties.
ii. Not regulated or disclosed.
b. National or state party could spend money on issue ads—without
specifically calling for election of a particular candidate—and this
money was not subject to limitation or disclosure.
c. Because there were no disclosure requirements, candidates sought soft
money from corporations, unions, etc.
d. Flow of money to entities outside the system.  Pre-BCRA system
created this flow, and BCRA addressed it.
3. Provisions Upheld – FECA § 323
a. Prohibition on national political parties raising or spending soft money.
b. Regulation of state political parties from spending soft money on
federal election activity.
c. Ban on federal officeholders or candidates raising or spending soft
money.
d. Ban on state candidates spending soft money on public
communications promoting or attacking federal candidates.
Charities (§ 501(c) organizations)
1. Exception in BCRA.
Donations by Minors – BCRA § 318 (Rehnquist)
1. BCRA § 318 prohibited individuals 17 years old or younger from making
contributions to candidates or political parties.
2. Problem – Evasion: people that hit their contribution limits would attempt to
donate more in names of their children. There was no great record of evidence
of this sort of evasion, and it existed only as a theoretical possibility.
3. Court struck down prohibition on minor contributions. Minors have rights under
First Amendment to support candidates.
Inflation-Indexed Contribution Limits (Rehnquist)
1. BCRA § 307 increased and indexed for inflation certain contribution limits.
2. Plaintiffs lacked standing.
Electioneering Communication
1. Requirements – BCRA § 201.
a. Refers to candidate.
b. Time
1.
iv.
v.
vi.
vii.
viii.
ix.
35
i. 60 Days – General Election
ii. 30 Days – Primary
c. Except for president or vice-president, must be targeted to the
relevant electorate.
i. Targeted to Relevant Electorate – 50,000 persons in the
relevant state or district. FECA § 304(f)(3)(C).
d. Broadcast, Cable, or Satellite Means
i. Passivity of experiencing these communications.
ii. Most expensive forms of communication.
iii. Manipulation – These ads tend to have images and pictures
and misleading information.
2. No corporate or union electioneering communications (with the MCFL
exception) using general treasury funds. May use segregated funds or PACs
for electioneering communications.
a. Upheld BCRA § 203.
b. Pre-Citizens United.
c. Citizens United is about this prohibition.
3. Political parties, PACs, and candidates could engage in electioneering
communication with hard money only, subject to FEC contribution limitations
and disclosure requirements.
4. Expenditure PACs – Groups that raise money only to spend it in elections.
a. Subject to disclosure requirements, but not contribution limitations.
5. Coordinated Electioneering Communication
a. FECA § 315(a)(7)(B)(ii) – Expenditures coordinated with political
parties treated as contributions to such parties.
b. Upheld.
x. MCFL Organizations
1. FECA § 316(c)(6) – Extending to nonprofit corporations the prohibition on use
of general treasury funds to pay for electioneering communications is limited to
nonprofit entities that are not "MCFL organizations," i.e., organizations formed
for express purpose of promoting political ideas.
2. Upheld.
xi. Interest – Preventing corruption or appearance thereof. BCRA sought to drive money
out of party fundraising for this reason.
1. Anti-bribery laws alone are insufficient. Do not address problem of undue
influence.
2. Evidence of Corruption/Undue Influence
a.  Variable Quantum of Evidence – Shrink Missouri.
i. Corruption is neither novel nor implausible.  Not much
evidence required.
ii. Lowered level of scrutiny w/r/t campaign-finance laws
motivated by anti-corruption rationale.
b. Soft money used to circumvent contribution limits.
c. Politicians’ feelings of being beholden to donors.
d. Influence-seeking confessions of lobbyists, CEOS, etc.
e. Donors giving to both parties.
f. Express quid pro quo statements from officials.
3. Anticipated Effects
a. Soft money would dry up (i.e., disappear from politics). Premised on
idea that corporations donated to both parties only in order to keep up
with each other and not prejudice anyone. There would no longer be
any incentive to make soft money contributions.
b. Soft money would be channeled to organizations other than political
parties, e.g., MoveOn.org, Swift Boat Veterans for Truth, etc.
xii. Government argued that BCRA constituted a TPM restriction.
1. Time – 60 days; 30 days.
36
8.
2. Place – Relevant electorate; 50,000 persons in state or district.
3. Manner – Broadcast, cable, or satellite; anything referring to a candidate.
xiii. Scope of Regulated Communications
1. 1974 Amendments to FECA – Narrowed in Buckley.
a. Express advocacy was limited. Signified by “vote for” or “vote
against” language.
b. Prohibited Sources of Money
i. Political Parties – Hard money.
ii. Corporations, Unions – General treasury funds. Must use
segregated funds.
1. MCFL Groups – Disclosure requirements; no
contribution limitations.
2. BCRA – Concerned with sham issue ads.
a. BCRA adds rules about electioneering communications to existing
framework: TPM, reference to a candidate, etc.
xiv. Corporations supported BCRA because they were tired of extortion.
1. E.g., political party calls a corporation and says, “You donated to other party,
and your peers gave to us. You better give to us too.”
c. Scalia, Concurring in Part, Dissenting in Part
i. Incumbent-Protection Scheme – Congress supported BCRA because they are
incumbents, and its campaign-finance regulations protect them.
1. Entrenchment Theme
a. Pool taxes were challenged on entrenchment themes, i.e., that they keep
the powerful in power. Baker v. Carr.
2. Justification
a. Incumbents begin with advantages: base of support, base of donors, etc.
b. Incumbents also generally have a much easier time raising money than
challengers.
Randall v. Sorrell (2006)
a. Facts – Concerned VT contribution and expenditure limitations with regard to state elections.
b. Holding (Breyer) – Plurality opinion; 6-3 decision
i. Invalidated limitations as so low as to violate First Amendment.
1. Rejected similar challenge to contribution limits in Missouri Shrink, where
Court expressed need for deference to legislature.
2. Court showed little deference in Randall.
ii. Incumbents & Challengers – Limits for incumbents were somewhat less than those for
challengers.
1. Attempt to level the playing field.
2. Government cannot create different contribution limits simply because one
candidate is richer than another or one candidate could speak more loudly than
another.
iii. Expenditure Limitations – Inconsistent with Buckley.
iv. Contribution Limitations
1. E.g., during two-year election cycle: $400 for governor, lieutenant governor, and
other statewide offices; $300 for state senator; $200 for state representative.
2. “As Buckley acknowledged, we must recognize the existence of some lower
bound. At some point the constitutional risks to the democratic electoral process
become too great.”
3. Limits are lower than those upheld in Buckley or any other case.
4. Not indexed to inflation.
5. Burdens on First Amendment Interests
a. Inhibit effective advocacy by those who seek election, particularly
challengers.
i. Excessively low contribution limits prevent challengers from
mounting effective campaigns against incumbent
officeholders, thereby reducing democratic accountability.
37
b.
9.
Mute voice of political parties.
i. Limits made local, state, and national party committees
effectively a single entity for contribution limitation purposes.
c. Hamper participation in campaigns through volunteer activities.
i. Incidental expenses of volunteers counted as contributions.
E.g., gasoline that volunteers put in their cars; meals they ate
on the road; their hotel expenses; etc. These add up quickly.
d. Not indexed for inflation.
i. Limit will become too low over time.
v. No bright-line test for determining when contribution limits are unconstitutionally low.
vi. No special evidence of corruption or the appearance thereof in VT.
vii. VT law presumed that independent party expenditures were coordinated.
1. Rebuttable
a. Shows that VT shifted burden of persuasion onto candidate and party.
More details about their communications and spending will be
required. Has effect of discouraging spending.
b. Implicates Colorado Republican II and party’s First Amendment right
to spend what it raises.
c. Difficult to muster evidence to rebut this presumption.
2. Court does not address.
c. Alito, Concurring
i. Does not sign onto Buckley framework. Seems to be signaling that given the chance to
reexamine Buckley, he would overrule it.
1. However, such an opportunity did not present itself here.
d. Kennedy, Concurring
i. Skeptical of Buckley framework, but it compels the present result.
e. Thomas, Concurring, with Scalia
i. Would overrule contribution limits in Buckley.
f. Stevens, Dissenting
i. Although Buckley had not explicitly addressed whether pernicious effects of endless
fundraising could serve as a compelling state interest that justified expenditure limits, its
silence, in light of record before Court, suggested that Court implicitly had treated this
proposed interest as insufficient.
ii. If this were assumed to be true, then Buckley's holding on expenditure limits was wrong
and ought to be overruled.
g. Souter, Dissenting, with Ginsburg and Stevens
i. Wrote opinion in Missouri Shrink, rejecting similar challenge to contribution limits and
expressing need for deference to legislature.
ii. Colorado Republican II applies here. Parties still may make unlimited uncoordinated
expenditures.
iii. Presumption that independent party expenditures were coordinated is constitutional and
easily rebuttable.
Federal Election Commission v. Wisconsin Right to Life (WRTL II) (2007)
a. Facts – Concerned ads urging citizens to contact WI senators and ask them to oppose the filibuster
of Bush nominees.
b. Holding (Roberts)
i. Hostile to anti-corruption (and appearance thereof) rationale for campaign-finance
regulation.
ii. As-Applied Challenge to BCRA § 203
1. WRTL did not argue that it was an MCFL organization. It either had corporate
contributions or made no claim that it did not have corporate contributions.
2. WRTL did not argue that it spent only a very small amount of corporate money
on its ads and, therefore, that it should not be subject to BCRA § 203.
3. WRTL did not argue in terms of its identity, but it argued in terms of the scope
of BCRA § 203.
38
 “The proper standard for an as-applied challenge to BCRA § 203 must be
objective, focusing on the communication’s substance rather than on amorphous
considerations of intent and effect.”
a. Rejecting Relevancy of Speaker’s Intent
i. Two identical ads  one is valid because its sponsor has a
permissible intent; other is invalid because its sponsor has an
impermissible intent.
iii. Functional Equivalent of Express Advocacy
1. Test – “A court should find that an ad is the functional equivalent of express
advocacy only if the ad is susceptible of no reasonable interpretation other than
as an appeal to vote for or against a specific candidate.”
2. Questionable whether ad is candidate or issue ad  Court will give benefit of
doubt to protected speech and find it as issue ad.
iv. BCRA § 203 is unconstitutional as applied to WRTL.
1. Correct Application – WRTL’s ads (p. 1297) are susceptible of some
reasonable interpretation other than as an appeal to vote for or against a specific
candidate.
a. See also Yellowtail ad on p. 401.
2. Under McConnell standard, WRTL’s ads were electioneering communications,
but under WRTL test, they are not.
a. Illustrates narrowing effect.
v. Lesson – Restrictions on independent expenditures by corporations and unions are
limited to (1) functional equivalent of express advocacy and (2) speech understood by
reasonable person to be an appeal to vote for or against a specific candidate.
1. Narrows electioneering communication restrictions, BCRA § 203.
c. Alito, Concurring
i. No need to consider whether BCRA § 203 is facially unconstitutional.
ii. “If it turns out that the implementation of the as-applied standard set out in the principal
opinion impermissibly chills political speech, we will presumably be asked in a future
case to reconsider the holding in McConnell that § 203 is facially constitutional.”
d. Scalia, Concurring, with Kennedy and Thomas
i. Would invalidate BCRA § 203 on its face.
ii. Majority’s test protects paradigmatic sham issue ad, including notorious “Yellowtail ad,”
which accused Yellowtail of striking his wife and then urged listeners to call him and
“tell him to support family values.”
e. Souter, Dissenting, with Stevens, Ginsburg, and Breyer
i. Majority’s test will exempt almost all (sham) issue ads from BCRA § 203.
1. No coverage unless ad contains Buckley “magic words.”
2. Line between issue ads and outright electioneering is patent fiction.
ii. Reaffirms compelling government interest of curbing corrosive effects of massive
aggregation of corporate wealth.
iii. Anti-corruption rationale extends beyond quid pro quo to distortions in electoral system
created by concentrated wealth.
10. Davis v. Federal Election Commission (2008)
a. Government cannot limit a candidate from using his own money to promulgate his message
because a candidate's own expenditures cannot corrupt him.
11. Citizens United v. Federal Election Commission (2010)
a. Facts – Whether U.S. government ban a corporation, Citizens United, from distributing its 90minute documentary—called Hillary: the Movie—on a video-on-demand basis.
b. Holding (Kennedy)
i. Interests – Analysis is centerpiece of case.
1. Anti-Distortion Rationale (Insufficient)
a. Austin – State law grants special privileges to corporations, and thus,
government may impose restrictions on corporate political speech so as
not to distort field of political speech.
4.
39
i. Court’s characterization of Austin as leveling the playing
field is not accurate.
1. Focus on distortion is much narrower.
2. Focused on money from other places being funneled
to support candidates and danger that money does not
accurately reflect support of those candidates.
ii. Court says that all money comes from somewhere, and thus,
all money used to support political causes necessarily came
from someone that might not support the political causes to
which it is dedicated.
b. Does not justify restrictions on protected corporate speech.
i. “The rule that political speech cannot be limited based on a
speaker's wealth is a necessary consequence of the premise
that the First Amendment generally prohibits the
suppression of political speech based on the speaker's
identity.”
c. Equalizing Voices/Leveling the Playing Field – “Buckley rejected the
premise that the Government has an interest ‘in equalizing the relative
ability of individuals and groups to influence the outcome of
elections.’”
d. Anti-distortion rationale is not where government rested much of its
argument. It fits uneasily many of the political advocacy groups that
want to take on the corporate form.
2. Corruption (or Appearance Thereof) Rationale
a. Government’s primary argument.
b. Only interest to receive consistent majority support since Buckley.
i. Centerpiece of Rationale – If someone spends large amounts
of money on your behalf—whether it was coordinated or
not—you will be beholden to them.
ii. Court – No way to show that candidates will be beholden to
all persons that spend money on their behalf.
iii.  Chilling effect goes much too far.
ii. Overruled Austin.
1. Bellotti – Corporations possess free speech rights.
2. Buckley – Campaign expenditures are protected speech.
3. Austin
a. Anomalous because it was first time Court allowed restrictions based
on identity of speaker.
b. “Political speech is indispensable to decisionmaking in a democracy,
and this is no less true because the speech comes from a corporation
rather than an individual.”
c. Rejected interest in preventing corporate wealth from distorting
elections.
4. Corporations and unions may make independent political expenditures
from general treasury funds.
a. Invalidated BCRA § 203, which banned corporations and unions from
using general treasury funds for campaign expenditures and required
use of segregated funds.
iii. Overruled conflicting parts of McConnell.
1. Rejected anti-distortion rationale as unconvincing and insufficient.
2. Invalidated BCRA § 203, which banned corporations and unions from using
general treasury funds for campaign expenditures and required use of segregated
funds.
iv. First Amendment
1. Corporate political expenditures are expressions of a political preference by a
group of individuals that took the corporate form.
40
c.
2. Corporations speak for most significant segments of economy.
3. Restricting corporate speech deprives public of information.
4. Robust Marketplace of Ideas  To promote, no limitations.
v. BCRA Disclosure Requirements
1. Upheld 8-1.
2. Way of preventing corruption or appearance thereof from large expenditures.
3. “Disclosure is a less restrictive alternative to more comprehensive regulations of
speech.”
vi. Books – Could Congress ban publication of a book expressly advocating election of
candidate if corporation published it shortly before an election?
1. Kagan, arguing as Solicitor General: BCRA § 201 covers books, but publisher
would have a good argument that the statute, “as applied” to books, would be
unconstitutional.
a. No administrative practice of applying statute to books.
2. Conceded that FEC cannot constitutionally regulate books but argued that FEC
could constitutionally regulate pamphlets because of their political content.
3. Question may have been tapping into history, i.e., Nazi book burning.
4. Illustrates threat to free speech.
a. ACLU filed an amicus brief in support of Citizens United.
vii. Foreign Corporations – Did not reach question of whether government could restrict
foreign individuals or foreign corporations from making independent political
expenditures (e.g., advertising for or against a candidate) in U.S. elections.
viii. Corporate Law – Did not take a position on whether Congress or states could amend
laws governing corporations and unions to require shareholder approval or union
membership approval before corporation or union spent its funds on independent political
expenditures.
ix. Lesson – Restrictions on independent expenditures from corporate or union treasuries
violate First Amendment.
x. Results
1. Corporations, PACs, political parties, and unincorporated associations (e.g.,
candidate herself) may make unlimited independent political expenditures to
further or oppose any candidate running for local, state, or federal office.
a. Those groups may not disregard statutory limits on contributions to
candidates.
2. Expenditures by corporations, or other persons, must be truly independent to
receive First Amendment protection. Neither Citizens United nor any earlier
ruling of Court has freed anyone—not a person, a corporation, a political action
committee, a political party, an unincorporated association, or a union—from
government imposed limits on contributions to candidates for elective office.
3. Much criticism flows from perception that greater corporate spending from
general treasury funds will benefit Republicans much more extensively than it
benefits Democrats.
a. Law recognizes a false symmetry between corporations and unions.
4. Unsettling Established Law
a. Upsetting 20 years of precedent is an overstatement.
b. BCRA and its definition of “electioneering communication” responded
to sham issue ads and expanded limits on corporate speech further than
they had been expanded before.
i. Citizens United cut back here.
Stevens, Dissenting, with Ginsburg, Breyer, and Sotomayor
i. Corporations are not entitled to same First Amendment rights as humans. First
Amendment is not intended to protect corporate speech.
1. Not members of society.
2. Corporate interests conflict with interests of eligible voters.
3. “Financial resources, legal structure, and instrumental orientation of
corporations” raise questions about role in elections.
41
ii. Corporations and unions may engage in independent political expenditures using
PACs/segregated funds.
iii. Interests
1. Anti-corruption or appearance thereof.
2. Distorting effects of corporate wealth in elections.
3. Protecting shareholders from having their funds spent against their beliefs.
12. Nonprofit Corporations
a. Three Categories
i. § 501(c)(3) – Charities.
1. May not endorse or support (or officially criticize) any candidate for public
office.
2. Contributions are tax-deductible to donor.
a. This provision receives a lot of criticism.
b. Neither § 501(c)(4) nor § 527 nonprofits allow tax-deductible
donations. Any donations to these organizations must come from aftertax dollars.
3. Allowing charities to participate in elections with tax-deductible dollars would
give them an unfair advantage.
ii. § 501(c)(4)
1. Does not qualify if more than 50% of organization’s activities are political, but
may spend 50% of its money on political activity.
2. There are rules about disclosure of donors if an organization engages in
electioneering communication.
3. This is the arm that sponsored Hilary. It had received some corporate
contributions, so CU did not qualify as an MCFL organization.
iii. § 527
1. May be devoted entirely to political activities.
2. Must disclose contributions above a specified amount ($250) to IRS, not FEC.
Not determined by any particular ad, but by § 527 status.
3. Must disclose information to FEC if engaging in electioneering communication.
4. E.g., Swift Boat Veterans for Truth.
b. No coordination of disclosed information between IRS and FEC.
13. PACs
a. PACs, especially nonprofit advocacy groups, have two components. Each has a segregated
fund.
i. Contribution PACs
ii. Expenditure PACs
1. Can we limit contributions to expenditure PACs?
2. Can we limit individual contributions?
a. SpeechNow.org v. FEC (D.C. Cir. 2010) – Individuals may spend
unlimited amounts of uncoordinated money.
i. Anti-distortion rationale does not apply to individuals.
ii. Anti-corruption rationale does not apply to these facts.
iii.  Limit on individual expenditures therefore would be
unconstitutional.
b. After Citizens United, corporate expenditures to expenditure PACs
likely could not be limited.
iii. May these two groups coordinate?
14. United States v. Danielczyk (E.D. Va. 2011)
a. Because individuals could directly contribute to federal election campaigns within statutory limits,
and because 2 U.S.C.S. § 441b(a) did not allow corporations to do the same, § 441b(a) was
unconstitutional and corporate contribution charges were dismissed.
i. “Because independent contributions by human beings do not corrupt, and because the
First Amendment does not allow political speech restrictions based on a speaker's
corporate identity, corporations cannot be banned from making the same independent
expenditures as individuals.”
42
15.
16.
17.
18.
ii. “If human beings can make direct campaign contributions within the limits of FECA
without risking quid pro quo corruption or its appearance, and if corporations and human
beings are entitled to equal political speech rights, then corporations must also be able to
contribute within the FECA limits.”
iii. “There is no distinction between an individual and a corporation with respect to political
speech. Thus, if an individual can make direct contributions within the limits of FECA, a
corporation cannot be banned from doing the same thing. So because individuals can
directly contribute to federal election campaigns within FECA's limits, and because 2
U.S.C.S. § 441b(a) does not allow corporations to do the same, § 441b(a) is
unconstitutional.”
b. Ninth Circuit – Corporate contributions are distinguishable from independent corporate
expenditures.
c. Limiting Corporate Contributions
i. Buckley – Contributions have less effect on protected speech; weaker First Amendment
interest.
ii. Corporate Argument – If corporation is creating subsidiaries only for purpose of
creating conduits for donations, Congress could enact evasion rules. There is no need to
limit corporate contributions.
1. CORPORATION COULD CREATE MILLIONS OF SUBSIDIARY
CORPORATIONS.
Wagner v. FEC
a. Limit on government contractor contributions extends to any person or company with a contract
with the United States. They may make no contributions.
i. Concerns individual government contractors, not corporate government contractors.
ii. DISCLOSE Act would have extended ban on contributions to independent expenditures.
b. To the extent that we are worried about government trading contracts with, e.g., Lockheed Martin
for campaign contributions, there is overlap with justifications for limiting corporate contributions.
c. Hatch Act – Prohibits federal employees from making contributions to federal elections.
i. Not implicated in Wagner.
Corporate Beneficiaries of TARP
a. May not spend any money on federal elections until they have repaid federal government.
Foreign Nationals & Foreign Influence
a. Case Law
i. See Bluman v. Federal Election Commission.
ii. Citizens United did not reach questions concerning foreign corporations.
iii. See also Section 102 of the proposed DISCLOSE Act.
b. Legitimate Interest – Foreign corporations, whether operating in United States or not, have a
substantial interest in internal affairs of United States.
c. Why do we not allow foreign corporations to spend money in domestic elections?
i. Questions about loyalty and transparency.
ii. Concerned about foreign state-owned corporations buying influence in federal elections.
iii. But U.S. often spends money in foreign countries to influence their elections. We funnel
money to the parties sympathetic to our interests.
d. Need for Conduits – Fortune 500 companies do not overtly endorse candidates in order not to
alienate half of their consumers (or shareholders).  Need conduits, where there will be minimal
traces of the corporations themselves.
Bluman v. Federal Election Commission (D.D.C. 2011)
a. Facts – Concerns foreign citizens living in U.S. on temporary work visas that seek to donate
money to candidates in U.S. federal and state elections, to contribute to national political parties
and outside political groups, and to make expenditures expressly advocating for and against the
election of candidates in U.S. elections.
b. Holding
i. Foreign National – All foreign citizens except those who have been admitted as lawful
permanent residents.
ii. Aliens Lawfully Admitted
1. Bill of Rights applies.
43
2.
iii.
iv.
v.
vi.
vii.
viii.
States may not discriminate w/r/t constitutionally gratuitous interests, e.g.,
welfare benefits, license to practice law, civil service employment, etc.
a. Based on a line of EPC cases.
3. Congress may discriminate w/r/t constitutionally gratuitous interests.
a. Tension between Bill of Rights and Congress’ plenary power over
aliens lawfully admitted.
4. Aliens may be excluded from participation in democratic governance.
a. Federal or state government may impose these limitations.
i. E.g., Art. I–II of Constitution indicate that only U.S. citizens
may be members of Congress or President.
b. Some cases indicate that aliens may not vote or hold high office. Later
cases exclude aliens from working as police officers, teachers, school
board commissioners, etc.
c. Primary basis of Bluman opinion.
Strict Scrutiny
1. Compelling Government Interest – Limiting participation of foreign citizens
in activities of American democratic self-government, and in thereby preventing
foreign influence over the U.S. political process.
2. Narrow Tailoring – Excluding foreign nationals from participation in activities
of democratic self-governance is necessary to preserving political community.
Foreign nationals may not, 2 U.S.C. § 441e:
1. Contribute to candidates or political parties.
2. Make expenditures to expressly advocate election or defeat of a political
candidate.
3. Make donations to outside groups when those donations in turn would be used
to make contributions to candidates or parties or to finance express-advocacy
expenditures.
4.  But with contribution limitations and disclosure requirements, it seems
difficult to justify bans on foreign-national spending.
Foreign nationals may speak out about issues or spend money to advocate their views
about issues.
1. Speaking on issues of general public interest is a quite different context from
participation in a political campaign for election to public office.
Democratic Self-Governance/Political Community
1. Government may exclude foreign citizens from activities intimately related to
democratic self-government.
2. Part of preserving basic conception of a political community.
3. Government may reserve participation in its democratic political institutions for
U.S. citizens.
4. Foreign citizens do not have constitutional right to participate in, and thus may
be excluded from, activities of democratic self-governance.
Foreign Corporations – “Foreign corporations are likewise barred from making
contributions and expenditures prohibited by 2 U.S.C. § 441e(a).”
1. Concerns about loyalties of foreign corporations.
a. However, corporations everywhere are concerned about their bottom
lines, not necessarily American (or foreign) interests.
Three Limits to Holding
1. “We do not here decide whether Congress could constitutionally extend the
current statutory ban to lawful permanent residents who have a more significant
attachment to the United States than the temporary resident plaintiffs in this
case.”
2. “We do not decide whether Congress could prohibit foreign nationals from
engaging in speech other than contributions to candidates and parties, expressadvocacy expenditures, and donations to outside groups to be used for
contributions to candidates and parties and express-advocacy expenditures.”
44
3.
“We caution the government that seeking criminal penalties for violations of this
provision—which requires that the defendant act ‘willfully,’—will require proof
of the defendant's knowledge of the law.”
PUBLIC FUNDING OF POLITICAL CAMPAIGNS
1.
2.
Generally
a. Publicly funded presidential campaign system.
i. Matching System
1. Primaries
a. Must raise $5000 in 20 states, and at least 20 people must donate $250
in each state. Then, you qualify for matching funds of up to $250 for
each contribution in the primary.
b. Spending limits for each state.
c. Every presidential candidate has participated.
2. General Election
a. $80,000,000 limit for spending if candidate takes public funding.
i. Originally was $20,000,000 in the 1970s but has been adjusted
for inflation.
b. Obama was first presidential candidate not to participate.
ii. In existence for decades.
b. Candidates have a First Amendment right to spend what they raise. Buckley.
c. Many states have matching-funding programs for federal election campaigns.
i. Always optional because of Buckley. Again, candidates have a First Amendment right to
spend what they raise.
Davis v. FEC (2008)
a. Facts – Concerned challenge to Millionaire’s Amendment of BCRA § 319(a).
b. Holding (Alito)
i. Invalidated Millionaire’s Amendment.
ii. Millionaire’s Amendment, BCRA § 319(a)
1. If a candidate is running against a self-financed candidate (an opponent who is
spending in excess of $350,000 of her own money), then § 319(a) of BCRA
eased the restrictions, but only for the non-self-financing candidate by trebling
his individual contribution limit and allowing unlimited coordinated party
expenditures.
2. Justification – Attempt to level the playing field for less-wealthy candidates
who compete against self-financed candidates.
iii. Buckley – Rejected cap on candidate's expenditure of personal funds to finance his own
campaign speech.
1. Anti-corruption rationale does not apply. Self-financed candidate cannot, of
course, corrupt himself.
iv. Problem with § 319(a) – While it does not impose a cap on candidate's expenditure of
personal funds, “it imposes an unprecedented penalty [discriminatory fundraising
limitations] on any candidate who robustly exercises that First Amendment right.”
v. Reasons for Invalidation
1. Rejected Leveling Playing Field – No legitimate an interest in leveling
electoral opportunities for candidates of different personal wealth.
2. Never upheld constitutionality of a law that imposes different contribution limits
for competing candidates.
3. Impermissibly burdens candidate's First Amendment right to spend his own
money for campaign speech.
a. Amounted to a stick, silencing self-funded candidates.
vi. § 319(a) as Incumbent Insurance – People outside Court saw provision as incumbent
insurance. If an incumbent saw a rich, self-financed candidate coming, she could give
herself a way to raise money more quickly with a state matching-funding provision.
Other side raises more money, and suddenly, you get a pass.
45
c.
3.
Stevens, Dissenting
i. “The Millionaire's Amendment quiets no speech at all. On the contrary, it does no more
than assist the opponent of a self-funding candidate in his attempts to make his voice
heard; this amplification in no way mutes the voice of the millionaire, who remains able
to speak as loud and as long as he likes in support of his campaign.”
d. Lupu thinks that Kagan analyzes the problem exactly right.
i. Cannot mandate that candidates participate in public financing and forgo all of the money
that they have raised privately.
1. First Amendment right. Buckley.
ii. Getting people to give up that private funding requires adequate incentive.
iii. States set the limit high enough to incentivize the first move of participation. When it
becomes apparent that the race is competitive, the candidates may come back for
subsequent tranches of money.
Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011)
a. Facts – Concerned voter-approved AZ matching-funding scheme wherein if a subsidized
candidate started to be out-spent by a candidate relying on her own money, that triggered some
added subsidy money for subsidized politician. The more the self-financed candidate spent, the
more subsidy would be provided to the candidate relying solely on those funds. The “matching”
would stop when the subsidized candidate had received two infusions of public funds — an initial
payment, plus two triggered payments. Any unspent subsidy funds had to be handed in to the state
treasury.
b. Holding (Roberts)
i. Invalidated matching-funding scheme.
ii. Substantial burden on protected speech of privately financed candidates (and independent
groups)  Strict Scrutiny
1. Compelling Government Interest
a. Leveling Playing Field – Illegitimate.
b. Anti-Corruption
i. Matching funds provision does little to address corruption.
ii. Independent expenditures cannot corrupt. Citizens United.
Therefore, there is no need to limit them.
2. Narrow Tailoring
iii. Effect of AZ “matching” approach would be to cause self-financed candidates to curb
their own campaigning.
1. Every dollar spent would be matched by a subsidy dollar dropped into
opponents’ coffers.
2. If outside group, operating independently of privately financed candidate but
still supporting her, had contributed to out-spending of subsidized candidate,
that too would add to the subsidy flow.
3. Result – Less campaign speech; fewer issues discussed.
c. Kagan, Dissenting, with Ginsburg, Breyer, and Sotomayor
i. Must find “Goldilocks solution”—not too much public financing (“lump sum” model has
not worked) and not too little.
1. Too Large – Too expensive for state to pay for, given the many demands on
state treasuries.
2. Too Small – Candidates will not be able to wage competitive campaigns, will
not participate, and will turn, instead, to private donors.
3. Just Right – More candidates will participate; flow of large private donations
into campaigns will have fewer places to go; and threat of corrupting influence
will at least be diminished.
a. Trigger-and-match mechanism: simply lump sum subsidies divided
into thirds.
b. Simply fine-tuning the “lump sum” approach.
4.  Note that “Goldilocks solution” does not resolve First Amendment issue.
ii. Determining adequate size of lump sum at outset is difficult.
1. Expensive media (especially TV) advertising.
46
2. Unknown resources of self-financed candidate.
iii. Deference to legislature.
iv. Second Part of Dissent – Novel argument in Lupu’s opinion.
1. Matching funds provision is a subsidy. Government is buying more speech,
adding to public discussion.
2. Two Kinds of Subsidy Cases
a. Government must be neutral.
i. This case concerns government subsidies in which
government is required to be neutral.
b. Government need not be neutral.
i. Government can express its own views.
ii. E.g., smoking is bad; MLK is good. Government need not
give money to pro-smoking lobby too.
3. Was government subsidy attempting to be neutral in this case? (Lupu feels
that this question was not adequately addressed.)
a. Ex ante (i.e., based on forecasts, not actual results) is the right
perspective from which to determine whether the subsidy is neutral. Ex
post is not.
b. Ex ante: equal risk of competitive harm. No one knows which party
would benefit from matching funds provision before the game begins.
It is ex ante SYMMETRICAL.
4. Was the matching funds provision a prohibition or inhibition on public
speech?
a. Inhibition, not a prohibition.
i. It adds a cost to speaking. In this way, it is like Doe v. Reed.
ii. Roberts cites “exacting scrutiny” in Doe v. Reed. Not as
rigorous as strict scrutiny.
5. Kagan should have argued that purpose of matching funds scheme was not to
level the playing field.
a. Provisions were not equalizing because independent expenditure
groups could spend beyond ceiling for public funding.
b. Motivating desire actually is state’s interest in competitive elections.
i. Same interest at play in districting.
ii. States rarely elevate interest in competitive elections.
c. Could have proposed a revision to scheme. Independent expenditure
groups on subsidized side could reduce amount of matching public
funds allocated to publicly funded candidates. E.g., publicly funded
candidate was entitled to $50,000 in matching funds; independent
group spends $20,000, so candidate gets only $30,000.
DISCLOSURE
1.
2.
3.
4.
5.
Justifications for Disclosure
a. Helps to ensure authenticity of candidates.  Want to know from whom candidates have accepted
money.
Relevant Interests
a. Privacy of Donors (Belief/Association)
b. Integrity of Political Process – Transparency; anticorruption; efficiency concerns.
c. Voter Information – Voters want to know which interests are behind causes and candidates; must
have sufficient information to exercise franchise.
d. Associational Rights – May relate to interest in maintaining privacy of such associations.
Transparency & Secrecy – Scalia in Doe is very unsympathetic to the argument that political participants
require anonymity.
Any contribution of $250 and more has to be disclosed.
General Rule
47
a.
6.
7.
8.
9.
In cases regarding required disclosure of campaign contributions, there is a compelling state
interest in providing information to the public regarding campaign contributions.
b. However, interest is not sufficiently compelling to justify requiring contribution disclosures from
small political parties when factual record shows that those contributors would suffer serious harm
if their contributions were disclosed. If political party or association can demonstrate that
disclosure of contributions will result in significant harm to party or its members, government will
need to demonstrate that requiring disclosure is necessary to promote compelling interest.
Disclosure Gaps in Campaign-Finance Law
a. DISCLOSE Act §§ 211-14 would have filled in some of these gaps.
Buckley v. Valeo (1976)
a. Upheld FECA disclosure requirements requiring (1) campaign committees to disclose a list of
their contributors and (2) individual contributors to report contributions to a candidate or
expenditures in support of a candidate.
Citizens United (2010)
a. Upheld BCRA disclosure requirements for independent political expenditures by corporations and
unions.
Doe v. Reed (2010)
a. Facts – WA enacted law extending benefits to same-sex partners. Group gathered signatures for
ballot referendum to overturn law. Another group filed a request under WA Public Records Act
for copies of petitions, which contained names and addresses of signatories, with intent to post
information on a searchable website.
b. Holding (Roberts) – 8-1 decision
i. Affirmed constitutionality of disclosure.
1. Petitioners sought facial invalidation of WA law.
ii. Disclosure raises First Amendment issue.
iii. Standard of Review – “Requires a substantial relation between the disclosure
requirement and a sufficiently important governmental interest. To withstand this
scrutiny, the strength of the governmental interest must reflect the seriousness of the
actual burden on First Amendment rights.”
1. Important Governmental Interest – “Preserving the integrity of the electoral
process by combating fraud, detecting invalid signatures, and fostering
government transparency and accountability.”
a. Sufficiently compelling (except for Thomas, dissenting).
b. Informational Interest – Usually coupled with integrity interest, but
Court does not address.
iv. Lesson – Disclosure, under state statute, of referendum petitions containing petition
submitters' signatures, addresses, and counties where registered to vote does not
inherently violate First Amendment—but there would be a constitutional claim if it could
be shown in a particular instance that disclosure would lead to threats, intimidation, and
reprisals.
1. Caveat – Plaintiffs could get judicial order blocking disclosure of information
regarding referendum petition if, on remand, they could demonstrate that
disclosure would cause real harm to them.
a.  If government can respond to threats through ordinary means, e.g.,
police, this counsels against finding exception.
b. Alito – Broad Exception
c. Sotomayor, Stevens – Narrow Exception
d. As-applied exemption is critical to safeguarding First Amendment
rights because mandatory disclosure requirements may burden ability
to speak or infringe privacy of association.
e. Brown v. Socialist Workers '74 Campaign Committee (1982)
i. Basis for exception.
ii. OH statute required every candidate for political office to
disclose each contributor and recipient of campaign funds.
48
iii. Holding that OH statute was unconstitutional as applied to
Socialist Workers Party, given evidence of threats,
harassment, and reprisals.
iv. Integrity concerns were weak; reprisal concerns were strong.
v. Referendum as Political or Legislative Act
1. Political – Strict scrutiny; anonymity resides at core. Relies on McIntyre.
2. Legislative – One step in placing issue before legislature. Doe reflects this view
substantially. No right to anonymity. Relies on Burdick v. Takushi.
c. Breyer, Concurring
i. Competing constitutional interests  Balancing of interests.
ii. Weighs in favor of disclosure.
d. Alito, Concurring
i. “Many referendum petitions concern relatively uncontroversial matters, and
plaintiffs have provided no reason to think that disclosure of signatory information in
those contexts would significantly chill the willingness of voters to sign.”
ii. Strong support for as-applied exemption based on harassment and intimidation of
Proposition 8 supporters in CA.
e. Sotomayor, Concurring, with Stevens and Ginsburg
i. Deference – Referenda are state instruments, subject to state control.
ii. Signing referenda is an inherently public activity.
iii. As-applied exemptions will be rare; should be viewed with skepticism.
f. Stevens, Concurring, with Breyer
i. Deference to states.
ii. Preserving integrity of political process is a sufficient interest.
iii. Referenda about taxes can become as heated as referenda about domestic partnerships.
g. Scalia, Concurring
i. NO CONSTITUTIONAL RIGHT TO A SECRET BALLOT.  Disclosure of ballot
petitions raises no First Amendment issues.
1. Viva Voce Voting – Practiced in early American history.
a. Shows that Founders found viva voce voting compatible with freedom
of speech.
2. Court has interpreted scope of franchise liberally. Right to vote is fundamental.
Restrictions are strictly scrutinized.
3. Does right to vote encompass not only the “who,” but the “how”?
4. Once voting by secret ballot becomes entrenched, it becomes very difficult for a
state to roll back that guarantee.
a. Vesting of expectation of secrecy or anonymity.
5. Perhaps the smaller the voting pool, the greater the validity of the argument for
non-anonymous voting.
ii. Emphasizes civic virtue of standing behind one’s convictions.
h. Thomas, Dissenting
i. First Amendment violation from disclosure of ballot petitions.
10. Pamphleteering
a. Talley v. California (1960) – Court held that a state cannot require author of a handbill to place her
name and address on it as a requirement for distribution.
i. Concerned about reprisal.
1. Throughout history some persecuted groups have been able to criticize
oppressive practices either anonymously or not at all.
2. Right to anonymity is a function of freedom of association, for identification and
subsequent fear of reprisal could well effectively chill legitimate discussions of
public interest.
ii. Protecting the right of anonymity for unpopular political speech.
b. McIntyre v. Ohio Election Commission (1995)
i. Pamphleteer challenged fine imposed by Ohio Elections Commission for distributing
anonymous leaflets opposing proposed school tax levy.
49
ii. Court held that state could not fine author for distributing a handbill without her name on
it.
1. Requiring otherwise violated the First Amendment.
iii. Scalia, J., joined by Rehnquist, Ch. J., dissenting, expressed the view that (1) prohibition
of anonymous electioneering was a universal and long-established legislative practice
that ought to have been given precedence over historic and academic speculation
regarding such a restriction; and (2) the usefulness of a signing requirement lay not only
in promoting observance of the law against campaign falsehoods, but also in promoting a
civil and dignified level of campaign debate.
c. Distinguishing between these cases and those requiring disclosure in campaign-finance?
i. Right to Anonymity
1. E.g., pamphlets, handbills, etc.
2. Protects dissenter from tyranny of majority.
ii. Pamphlets, handbills, and donations all concern core political speech.
iii. Buckley
1. Disclosure of candidate’s funding sources alerts voters to areas in which
candidate will be responsive.
2. Required identification to FEC of amount and use of money (above a threshold)
expended in support of a candidate.
3. No requirement to disclose related writings.
11. Disclosure Requirements
a. Candidates, Contribution PACs, Political Parties
i. Hard money
ii. Limits
iii. Disclosure to FEC
iv. Claimers and disclaimers attached to all ads.
b. Private Individuals
i. Not required to report personal wealth.
ii. May take money from corporations, expenditure PACs, etc.
c. Corporations (especially nonprofit), Expenditure PACs
i. Soft money
ii. Organizational expenditures
d. Section 501(c)(4) Organizations – Allowed to make electioneering communications now, but there
may be tax consequences from doing so.
i. Political activity may not be primary activity, i.e., more than 50%.
ii. Tax disincentive to make electioneering communications.
iii. No tax disincentive to transfer money to organizations that may make electioneering
communications.
e. DISCLOSE Act
i. Now dead, defeated.
ii. § 211
1. “The legislation would require corporations, labor unions, and section 501(c)(4),
(5), or (6) organizations—as well as section 527 organizations—to report all
donors who have given $1,000 or more to the organization during a 12-month
period if the organization makes independent expenditures or electioneering
communications in excess of $10,000.”
2. Subsection (b) was concerned with conduits, like Warren Buffet.
iii. § 213
1. “An organization can establish a separate “Campaign-Related Activity” account
to receive and disburse political expenditures. If an organization makes
campaign-related expenditures exclusively from its separate account, then it is
only required to disclose only donors who have contributed $10,000 or more for
unrestricted use or donors who have contributed $1,000 or more specifically for
campaign-related activity.”
2. Three possibilities for donors:
a. Opt Out
50
b.
c.
iv. § 214
1.
Opt In
Possible disclosure to other organizations
Disclaimers – Would have required the heads of the biggest donors buying ads
to appear in the ads and endorse them.
Preclearance & the Voting Rights Act
1.
Voting Rights Act of 1965
a. Constitutional Basis – § 2 of the 15th Amendment, which authorizes Congress to effectuate by
“appropriate” measures the constitutional prohibition against racial discrimination in voting.
i. Also § 5 of 14th Amendment.
ii. VRA usually does not protect rights. If whites were a statewide minority whose political
interests were undermined on basis of race or color, then VRA would protect whites.
iii. PURPOSE – To enforce 14th and 15th Amendments.
b. Three Main Components
i. Coverage Formula
1. Two Requirements – Provides coverage as to any state, county, parish, or
similar political subdivision (1) that A.G. has determined that on November 1,
1964, maintained a “test or device” to qualify voting rights and (2) that Director
of the Census has determined that less than 50% of its voting age residents were
registered on November 1, 1964, or voted in that year's presidential election.
2. Scope – Six states and some counties originally covered. Others added in 1972
because of English-language requirements.
a. Political Subdivision – “Any county or parish, except that where
registration for voting is not conducted under the supervision of a
county or parish, the term shall include any other subdivision of a State
which conducts registration for voting.” 42 U.S.C. § 1973l(c)(2).
i. Remedial Legislation  Interpreted broadly.
b. Covered
i. Applies to “all entities having power over any aspects of the
electoral process within designated jurisdictions, not only
to counties or other units of state government that performed
the function of registering voters.” United States v. Sheffield
Board of Commissioners (1978).
ii. Boards of education. Dougherty County Board of Education
v. White (1978).
c. Not Covered
i. Political Parties. LaRouche v. Fowler (D.D.C. 1999)
(requiring preclearance would infringe parties’ First
Amendment associational rights).
3. Findings of A.G. or Director are not reviewable.
4. Reverse-engineered to cover some states and not others—never was intended to
be neutral.
ii. Suspension of Tests and Devices
1. Literacy tests, understanding tests, good character tests, etc.
a. Includes English-only election materials, including ballots, in areas
with substantial numbers of non-English speakers. 42 U.S.C.
§ 1973b(f)(3).
b. 1970 Amendments to VRA – Banned literacy tests nationwide. Oregon
v. Mitchell (1970) (upholding).
2. Findings of A.G. or Director are not reviewable.
iii. Preclearance Process
1. Before state or political subdivision (local) may change its election
qualifications or procedures, it must submit its changes to A.G. for approval or
51
c.
d.
e.
obtain a declaratory judgment from a three-judge court of D.D.C., with direct
appeal to Supreme Court. 42 U.S.C. § 1973c.
2. Election Law Change in Covered Areas – Neither have the purpose nor will
have the effect of denying or abridging the right to vote based on color, i.e.,
cannot harm the minority right to vote.
a. Do changes make it more difficult for minority voters to elect minority
candidates?
Puerto Ricans & English Literacy
i. “No person who demonstrates that he has successfully completed the sixth primary grade
in a public school in, or a private school accredited by . . . the Commonwealth of Puerto
Rico in which the predominant classroom language was other than English, shall be
denied the right to vote . . . because of his inability to read, write, understand, or interpret
any matter in the English language.” 42 U.S.C. § 1973b(e)(2).
ii. Katzenbach v. Morgan (1966)
1. Concerned NY’s use of English registration form and Spanish-speaking Puerto
Rican minority in NY.
2. Issue – Whether Congress could prohibit enforcement of NY law by legislating
under § 5 of 14th Amendment?
3. Upheld § 1973b(e)(2).
4. Two-Part Analysis
a. § 5 grants Congress same broad powers expressed in Necessary and
Proper Clause.
i. McCulloch v. Maryland standard.
b. Must be reasonable basis underlying Congress’ action.
5. Brennan’s “Ratchet Theory” – Congress may expand, but not contract,
protections offered by a constitutional amendment.
a. Rejected in City of Boerne v. Flores (1997).
6. Lesson – Gave Congress broad power to define equal protection.
Bail Out Provisions
i. Allow states to escape suspension of tests or devices under § 4 and preclearance regime
of § 5.
1. Originally, bailing out was very difficult.
2. No covered state ever has successfully bailed out.
ii. Any covered jurisdiction may “bail out.”
1. City of Rome – No piecemeal bailout for cities or counties.
a. Overruled by 1982 Amendments to VRA, allowing counties, parishes,
or other political subdivisions registering voters to bail out if they meet
requirements—even if state is still covered.
iii. Must bring declaratory judgment action in D.D.C.
iv. Requirements
1. Jurisdiction must show that no test or device had been used “during the ten years
preceding the filing of the action . . . for the purpose of with the effect of
denying or abridging the right to vote on account of race or color.” 42 U.S.C. §
1973b(a)(1).
2. Jurisdictions must show compliance with VRA, elimination of procedures that
inhibited or diluted equal access, and “constructive efforts” to expand
opportunities for political participation. 42 U.S.C. § 1973b(a)(1)(F).
Justification for nationwide literacy test ban under 1970 Amendments to VRA
i. Rational Basis
1. Oregon v. Mitchell (1970) – Upheld nationwide literacy test ban under § 2 of
15th Amendment.
a. Congress could rationally conclude that continued use of literacy tests
would lead to voting discrimination.
i. Reasons
1. Unfairly administered in some places.
52
2.
f.
g.
VRA and suspension of tests had greatly increased
minority voter registration.
3. Perpetuate past discrimination even if literacy tests
are fairly administered in the future (because of past
unequal educational opportunities).
a. “It is a denial of equal protection to
condition the political participation of
children educated in a dual school system
upon their educational achievement.”
b. Reasons also may apply to voter ID laws.
i. But Crawford held voter IDs laws are constitutional.
ii. What would Congress need to show to be able to ban voter
IDs nationwide in order to enforce 14th and 15th
Amendments?
1. Legislative record showing minimal fraud concerns
and considerable adverse effects on minorities. 
Would establish rational basis banning voter ID laws
nationwide.
2. Voting rights are unique because they are the
preservative of other rights.
3. But see City of Boerne v. Flores.
c. Invalidated 1970 Amendments to VRA extension of franchise to 18
year-olds in state and local elections.
i.  Overruled by 26th Amendment.
ii. Reasons
1. Age is not a suspect class.
2. “Voting rights as preservative of other rights”
argument was not as powerful.
iii. § 5 of 14th Amendment does not confer unlimited power on
Congress to determine meaning of equal protection.
iv. § 5 does not authorize Congress to define substantive
boundaries of Equal Protection Clause by invalidating state
legislation.
Recent Challenges – Coverage formula and preclearance process.
i. In 1960s, focuses of challenges were coverage formula and suspension of tests and
devices.
1. Many states still used literacy tests. Non-covered states still could use tests or
devices.
2. 1970 – Suspension of tests and devices becomes permanent. Oregon v. Mitchell
(1970) (upholding nationwide ban).
Constitutional Questions
i. Federalism – Federal government controlling state voting regimes.
1. Federal Power – Congress has general preemptive power/TPM control over
election of congressional representatives and senators.
2. Coverage Formula
a. 1970 – Literacy tests were banned nationwide.
b. Preclearance– Under what authority may Congress require certain
states to satisfy certain requirements before they may change their
voting laws?
i. Which states? Who is covered?
ii. Not only which states are covered by preclearance, but which
states and subdivisions may escape preclearance.
NAMUDNO.
iii. What must be pre-cleared? What is included in § 5 as
construed in Allen?
iv. Under what standard?
53
1.
3.
Anti-retrogression standard: changes cannot make
racial minorities worse off.
Federalism Revolution
a. Begins with National League of Cities v. Usery (1976).
b. 10th Amendment becomes a serious force in the 1990s. New York v.
United States; United States v. Printz.
c. Court invalidates legislation as exceeding Congress’ power under
Commerce Clause. Lopez; Morrison.
d. City of Boerne v. Flores (1997)
i. Invalidated RFRA as exceeding Congress’ power under § 5 of
14th Amendment.
ii. Congress’ § 5 Power
1. Only to “enforce.”
2. Preventive; remedial.
3. May not decree substance of constitutional rights.
iii. Court grants Congress wide latitude to differentiate between
remedial and substantive legislation, but there “must be a
congruence and proportionality between the injury to be
prevented or remedied and the means adopted to that
end.”
1. VRA of 1965 – Long and widespread record before
Congress and in case law documenting racial
discrimination in voting.
2. RFRA – No evidence of any generally applicable law
enacted because of religious bigotry in last 40 years.
There was only evidence of laws that placed
incidental burdens on religion, and these laws were
not enacted or enforced because of animus or
hostility to religion nor did they indicate that there
was any widespread pattern of religious
discrimination in this country.
3.  Congress’ power is limited to specifying remedies
for violations of rights—rights that are congruent and
proportional to those identified by the courts.
e. Lopez v. Monterey County (1999)
i. “Section 5, as we interpret it today, burdens state law only to
the extent that that law affects voting in jurisdictions properly
designated for coverage.”
ii. “The Voting Rights Act, as amended, by its nature, intrudes on
state sovereignty. The 15th Amendment permits this
intrusion, however.”
ii. Separation of Powers – Katzenbach: May Congress enforce 15th Amendment, or are
courts the proper venue in which to enforce it?
1. How much authority does Congress have to (1) identify and (2) remedy
violations of the 15th Amendment?
2. Marbury v. Madison – Supreme Court decides laws.
a. Congress has special competencies for:
i. Fact finding;
ii. Remedy creation; and
iii. Reasonable preventative/prophylactic legislation.
3. Precedent
a. Katzenbach v. Morgan – Broad power to define equal protection.
b. Oregon v. Mitchell – § 5 of 14th Amendment does not authorize
Congress to define substantive boundaries of Equal Protection Clause
by invalidating state legislation.
54
City of Boerne v. Flores – Congress’ power under § 5 of 14th
Amendment is limited to specifying remedies for violations of rights—
rights that are congruent and proportional to those identified by the
courts.
South Carolina v. Katzenbach (1966)
a. Facts – Concerned challenges to the Voting Rights Act of 1965.
b. Holding (Warren)
i. Significance – Leading modern case interpreting Congress’ power under § 2 of Fifteenth
Amendment to enforce its guarantees to U.S. citizens that the right to vote may not be
denied on account of race, color, or previous condition of servitude.
ii. Separation of Powers Question – How much authority does Congress have to (1)
identify and (2) remedy violations of the 15th Amendment?
iii. Role of Congress – “As against the reserved powers of the States, Congress may use any
rational means to effectuate the constitutional prohibitions of racial discrimination in
voting.”
iv. Standard of Review – To determine if congressional legislation is valid, basic test to
apply is Marshall's test for validity of legislation under the Necessary and Proper Clause.
1. “Let the end be legitimate, let it be within the scope of the Constitution, and all
means which are appropriate, which are plainly adapted to that end, which are
not prohibited, but consist with the letter and spirit of the Constitution, are
constitutional.” McCulloch v. Maryland.
2. Congress under § 2 may do more than forbid violations of Fifteenth Amendment
in general terms.
v. Valid Exercise of Congress’ Authority
1. Inadequacy of case-by-case litigation to combat persistent voting discrimination
 legitimate response for Congress to prescribe remedies without going into
prior adjudication.
2. Congress learned that voting discrimination was localized, and immediate action
seemed necessary.  Justified remedies in certain locations only.
3. Coverage Formula – “Tests and devices are relevant to voting discrimination
because of their long history as a tool for perpetrating the evil; a low voting rate
is pertinent for the obvious reason that widespread disenfranchisement must
inevitably affect the number of actual voters. Accordingly, the coverage
formula is rational in both practice and theory.”
4. Suspension of Tests and Devices – “Various tests and devices have been
instituted with the purpose of disenfranchising Negroes, have been framed in
such a way as to facilitate this aim, and have been administered in a
discriminatory fashion for many years.” Suspension is a legitimate response
under § 2.
a. Justifications
i. Court does not want to allow states to rescind franchise from
unqualified whites that have been enjoying the right to vote.
ii. Court is deeply distrustful of states applying any test in a
nondiscriminatory manner.
iii. Inevitably, 15th Amendment will be under-enforced. Thus,
there is a choice between under-enforcement and overenforcement. And Court errs on side of over-enforcement. In
light of history in the South, this is a reasonable means of
achieving the objective of the 15th Amendment.
b. 14th Amendment Violation in Brown
i. Input – De facto segregation in public schools/unequal
education (“Fruit of the Poisonous Tree”)
ii.  Voting Practices: Tests are unconstitutional because there
is a substantial likelihood that they are being administered in
an unconstitutional way.
c.
2.
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3.
4.
iii.  Output is such that any government elected under these
circumstances will enact policies that perpetuate the
discriminatory practices.
1. (Government picks up the “fruit of the poisonous
tree.”)
5. Preclearance Process – May be “an uncommon exercise of congressional power”
but the exceptional circumstances justify it.
Northwest Austin Municipal Utility District Number One v. Holder (2009)
a. Facts – Plaintiff was a small utility district with an elected board. Because it was located in TX, §
5 required it to seek federal preclearance before it could change anything about its elections, even
though there was no evidence that it had ever discriminated on the basis of race in its elections.
b. Holding (Roberts) – 8-1
i. Utility was eligible under VRA to seek a bailout.
1. Interpreted § 5 narrowly to avoid constitutional problem.
2. Contrast Citizens United, where Court could have decided case narrowly but
asked for argument on broader constitutional issues.
ii. Serious constitutional doubts about constitutionality of § 5—even under rational-basis
review.
1. Possible Outcomes
a. Invalidated.
b. Upheld.
c. Intervening amendment by Congress.
2. Coverage Formula – Most vulnerable provision, but it also is the hardest to
change, which explains why it is so vulnerable.
iii. Best Argument for Bailing Out District – Symmetry Argument
1. Sheffield and Dougherty County had extended § 5 coverage.
2. Extensions, including non-registering units, were codified by 1982 Amendments
to VRA.
3. If coverage formula has been extended, then bail out provisions should be
extended similarly.
iv. Counterarguments
1. Remedial nature of VRA mandates that inclusion in preclearance regime be
expanded but not necessarily that bailout provisions be extended.
2. Rejected Legislation – Mandated exactly what district was asking, but proposals
were rejected in Congress. DOJ was worried that § 5 slowly would be whittled
away.
a. Administrative Argument – Thousands of political subdivisions: DOJ
would have to decide whether to defend in each suit. Therefore, it
argued against such provisions.
c. Thomas, Concurring in Part, Dissenting in Part
i. Section 5 of VRA is unconstitutional.
ii. Changed Circumstances – “Lack of current evidence of intentional discrimination with
respect to voting renders § 5 unconstitutional. The provision can no longer be justified as
an appropriate mechanism for enforcement of the Fifteenth Amendment.”
iii. “Existence of discrete and isolated incidents of interference with the right to vote has
never been sufficient justification for the imposition of § 5’s extraordinary requirements.”
iv. Congress must show systematic discrimination to justify § 5 today.
d. Why did the liberal justices not dissent?
i. Conservatives wanted to overrule § 5 and knew that they would have five votes to do so
if Congress refused to act.
ii. Four conservatives, except Thomas, are more pragmatic. If they overruled § 5, this
would look bad on national stage. “Conservatives are rolling back voting protections!”
iii. Liberals signaled to Congress that they should do something and by doing so avoided an
outright overruling of § 5.
Constitutional Challenges to Coverage Formula – How do we correct it?
a. Focus of NAMUDNO.
56
b.
c.
d.
e.
Three Options
i. Cover Every State
1. Huge political opposition and administrative costs. Every change affecting
voting would have to be cleared by DOJ.
2. Would not address problem of catching violations because it would impose
preclearance requirements on areas with no history of voting discrimination.
ii. Create a New Standard
1. Congress would look at areas with histories of minority voter intimidation,
aggressive felon disenfranchisement, etc.
2. Two Points
a. How could you not include FL and OH in any new preclearance
regime?
b. Burdens will fall most frequently on Republican states. Thus, is any
meaningful amendment politically feasible?
iii. Easier Bailout Provision
1. E.g., two or three years of no restrictions; no successful lawsuits against
jurisdiction for three years; no preclearance disputes for three years.
2. No reason to think that these states would resort to their wicked ways. Other
statutory and constitutional provisions would prevent voting discrimination.
3. Would bolster case for constitutionality but would not assuredly save it.
4. New “probation” provision? Would require a new standard.
Three Components to Consider – May not be related to constitutional question.
i. Process
1. Current – Election law change  File change with DOJ or go to D.D.C.
a. No one goes to D.D.C. for trivial changes.
b. DOJ may interpose an objection, and then change cannot be
implemented. Most states then drop changes, rather than challenging
DOJ.
2. Possible Change – Shift the burden: DOJ must say that a change will have a
retrogressive effect and must prove it in court.
a. DOJ would have to exercise prosecutorial discretion and ration its
resources.
b. May make DOJ Voting Rights Section leaner and meaner and may
mean that preclearance is more closely tailored to actual violations.
c. If DOJ wanted to maintain an equally robust regime to current scheme,
it would have to increase staff greatly and obtain much increased
funding from Congress.
i. Not certain that these things are possible (especially
depending on makeup of Congress).
ii. Substantive Scope
1. Allen v. State Board of Elections (1969)
2. Presley v. Etowah County Commission (1992)
a. May be fewer problems with substantive scope of § 5 if we cut back
changes subject to preclearance to only those relating to voting.
iii. Standard
2006 Amendments to the VRA
i. Extended preclearance for 25 years.
ii. Congressional Findings – Racial and language minorities remain vulnerable.
Channing Coverage Formula
i. Very low feasibility.
ii. Political resistance is high because (1) no state wants to be newly covered and (2) no one
wants to let covered states out of preclearance regime and (3) there is no clear partisan
distinction among the covered states, unlike when Preclearance was enacted and the
South was solidly Democratic.
COVERED CHANGES
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1.
2.
3.
4.
5.
Jurisdiction must seek preclearance whenever it “shall enact or seek to administer any voting qualification
or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in
force or effect on [the date when the jurisdiction became covered].” 42 U.S.C. § 1973c(a).
Allen, Dougherty County, and Presley reflect deep suspicion of covered states.
DOJ’s Interpretation of Changes Affecting Voting – Changes affecting voting include, but are not
limited to, the following examples:
a. (a) Any change in qualifications or eligibility for voting.
b. (b) Any change concerning registration, balloting, and the counting of votes and any change
concerning publicity for or assistance in registration or voting.
c. (c) Any change with respect to the use of a language other than English in any aspect of the
electoral process.
d. (d) Any change in the boundaries of voting precincts or in the location of polling places.
e. (e) Any change in the constituency of an official or the boundaries of a voting unit (e.g.,
through redistricting, annexation, deannexation, incorporation, dissolution, merger,
reapportionment, changing to at-large elections from district elections, or changing to district
elections from at-large elections).
f. (f) Any change in the method of determining the outcome of an election (e.g., by requiring a
majority vote for election or the use of a designated post or place system).
g. (g) Any change affecting the eligibility of persons to become or remain candidates, to obtain a
position on the ballot in primary or general elections, or to become or remain holders of
elective offices.
h. (h) Any change in the eligibility and qualification procedures for independent candidates.
i. (i) Any change in the term of an elective office or an elected official, or any change in the
offices that are elective (e.g., by shortening or extending the term of an office; changing from
election to appointment; transferring authority from an elected to an appointed official that, in law
or in fact, eliminates the elected official's office; or staggering the terms of offices).
j. (j) Any change affecting the necessity of or methods for offering issues and propositions for
approval by referendum.
k. (k) Any change affecting the right or ability of persons to participate in pre-election activities,
such as political campaigns.
l. (l) Any change that transfers or alters the authority of any official or governmental entity
regarding who may enact or seek to implement a voting qualification, prerequisite to voting,
or standard, practice, or procedure with respect to voting. 28 C.F.R. § 51.13
Reducing Preclearance Friction
a. Exempting districting plans—take them off list of preclearance concerns.
i. Would not immunize districting from constitutional attack.
ii. Would relocate the burden of persuasion to the challengers, rather than placing it on the
states.
Allen v. State Board of Elections (1969)
a. Four Cases
i. Fairley v. Patterson
1. Pre 1966 – District – County Boards
2. Change – Option – District/At-Large
3. Most important case. Harlan dissents from the Court’s disposition in this case.
4. Move from district to at-large elections always runs risk of diluting minority
vote.
5. Deals with the structure of representation. This move is what gets redistricting
plans in under § 5.
ii. Bunton v. Patterson
1. Pre 1966 – Option to appoint/elect school superintendent.
2. Change – Board of education appoints.
3. Argument for No Discriminatory Effect – Vote has been taken away from blacks
and whites.
4. Argument for Discriminatory Effect – Board of education may appoint
superintendent, and Board may be predominately white.
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6.
7.
iii. Whittley v. Williams
1. Change – Independent Candidates – Time/Primary/Signature
a. All changes made it more difficult to run as independent.
2. Generally, there is reason to be very suspicious of MS. Surely, it enacted these
changes because its power had been threatened by the VRA. It wanted to limit
exercise of vote by blacks.
a. Only way to achieve goals and objectives of VRA is to place
sympathetic candidates in office.
3. Compromises your right to vote in a primary—if you want to run as an
independent.  Seems to fall within § 5.
4. These changes are who is on ballot—for whom electorate may vote.
iv. Allen v. State Board of Elections
1. Election of Judges – Labels
2. Yes, relates to voting and should be submitted for preclearance.
b. All changes must be submitted for preclearance. DOJ must decide whether they should be precleared.
c. Harlan, Concurring in Part, Dissenting in Part
i. Concurred in disposition of the jurisdictional issues.
ii. Dissented in part as to the merits, stating that the court had construed 5 too broadly, that 5
should be read to require federal approval only of those state laws which change either
voter qualifications or the manner in which elections are conducted, that the judgment in
the case involving the Mississippi statute creating at-large elections for county
supervisors should be affirmed, and that the other judgments should be reversed and
conditional injunctions should issue, to be followed, if necessary, by the ordering of new
elections.
Dougherty County Board of Education v. White (1978)
a. Rule 58, which required any school board employee to take an unpaid leave of absence from his
job in order to run for office, must be pre-cleared under § 5.
b. Qualifies as a “standard, practice, or procedure with respect to voting.” 42 U.S.C. § 1973c(a).
c. Particular deference to A.G.’s regulation requiring preclearance of any “alteration affecting the
eligibility of persons to become or remain candidates or obtain a position on the ballot in primary
or general elections or to become or remain office-holders.”
d. “Circumstances surrounding [Rule 58’s] adoption and its effect on the political process [were]
sufficiently suggestive of the potential for discrimination to demonstrate the need for federal
preclearance.”
Presley v. Etowah County Commission (1992)
a. § 5 of VRA does not cover changes other than changes in voting.
b. Transfers in power among county officials DO NOT CONSTITUTE A CHANGE in the rules
governing voting.
i. Common Fund Resolution is not subject to preclearance because it “concerns the internal
operations of an elected body.”
ii. Only political “input” rules must be pre-cleared. Elected officials are able to create
political outputs, but these are not subject to preclearance.
c. Supports proposition that preclearance regime must be very clear in its guidance and that
employing a “suspicion” analysis/element is not clear at all.
DISCRIMINATORY PURPOSE OR EFFECT
1.
Substantive Standard That Changes Must Meet Under § 5
a. Contrast 15th Amendment with § 5 of the VRA.
i. Gap between the two texts.
ii. EPC violations require discriminatory purpose and effect.
iii. Under VRA, focus is on effects as well as purposes in ways that the relevant
constitutional provisions do not contemplate.
b. City of Boerne v. Flores
i. Congress cannot define content of constitutional rights; can only define remedies, etc.
59
2.
ii. Distinguished voting rights cases.
1. In covered states in 1960s, given their particular histories, there was a high
likelihood that laws with discriminatory effects on racial minorities were
changed for that reason. When laws were changed that made things worse for
minorities, there was good reason to suspect that an impermissible motivation
was working behind the scenes. So, combine the apparent discriminatory effects
with the likely discriminatory purpose (discerned from these states’ voting rights
histories), and this provides a reason for supporting the provisions of the
VRA/Preclearance. Justifies review by DOJ of any changes to state election
law.
c. Hypothetical – County (not-covered) shifts from district to at-large elections. May be being
done for unconstitutional reasons. However, because it is not covered, no preclearance is required,
and the burden of proof would be on the challenger.
i. Covered County – Change would need to be pre-cleared. DOJ would ask questions to
determine whether changes were motivated by a discriminatory purpose; and county
would have to show that its changes would not have the effect of weakening minority
voting power (“denying or abridging right to vote based on race or color”).
d. Two Possibilities Before Beer v. United States
i. Anti-Retrogression Principle – Is the minority group worse off after the change? If so,
this effect is forbidden under § 5.
1. Uses status quo as baseline.
2. This is the PREVAILING PRINCIPLE today.
ii. Using some constitutional requirement as a baseline. Requires have an idea of what
the Constitution requires.
Beer v. United States (1976)
a. VRA does not permit implementation of a reapportionment plan which “would lead to a
retrogression in the position of racial minorities with respect to their effective exercise of the
electoral franchise.”
b. Proper Standard – Non-Retrogression
i. Not proportional representation, which Constitution does not guarantee for minority
communities and which courts will not require.
ii. Not most a city can do to remedy past discrimination/maximize potential impact of black
vote.
iii. Section 5 only protects against backsliding/subterfuge.
iv. “Such an ameliorative new legislative apportionment cannot violate § 5 unless the new
apportionment itself so discriminates on the basis of race or color as to violate the
Constitution.”
1. If legislators’ state of mind contemplated doing just as much as necessary to
satisfy § 5 but also wanting to submerge minority voting as much as possible,
this would violate Constitution.
v. Non-retrogression is highly administrable, unlike PR. Provides a measureable
baseline, i.e., the pre-change status quo.
vi. Does not align perfectly with 15th Amendment.
c. White, Dissenting
i. § 5 was not satisfied since reapportionment plan would not provide black minority with
opportunity of achieving legislative representation roughly proportional to the black
population in the community.
d. Marshall, Dissenting
i. Under § 5, it was not required that it first be found that a proposed redistricting plan
would lead to a retrogression in the position of racial minorities before determining
whether the new apportionment itself so discriminated on the basis of race or color as to
violate the United States Constitution, and that New Orleans had not shown an acceptable
justification for the racially dilutive effect of the apportionment plan which denied
Negroes equal access to political processes and infringed constitutionally protected
rights.
e. Proportional Representation
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3.
4.
i. One Possible Argument – Although it is not constitutionally required, requiring PR
could have been a plausible remedial move in covered states at the time of Beers.
ii. But Beers rejects PR.
iii. Requirements of PR
1. Minorities must be large enough to warrant own representation. Threshold
level.
2. Usually, districts must be continuous.
Intervening Changes
a. In early 1980s, VRA was reenacted. § 2 of the VRA operates in all 50 states and protects
minorities from many of same evils that preclearance seeks to prevent.
b. Section 2
i. Section 2 contains a general prohibition on voting discrimination, enforced through
federal district court litigation. Congress amended this section in 1982, prohibiting any
voting practice or procedure that has a discriminatory result. The 1982 amendment
provided that proof of intentional discrimination is not required. The provision
focused instead on whether the electoral processes are equally accessible to minority
voters. This section is permanent and does not require renewal.
ii. Totality of Circumstances – Must look at all factors across entire district.
iii. Two Criteria
1. Participation in Political Process
2. Equal opportunity to elect members of minority’s choice.
iv. Proviso: § 2 expressly disclaims that the right protected is the right to PR.
1. “Nothing in this section establishes a right to have members of a protected class
elected in numbers equal to their proportion in the population.” 42 U.S.C. §
1973(b).
c. Shaw v. Reno
i. According to EPC, state may not make race predominate factor in districting. Facial use
of race is subject to strict scrutiny.
ii. Best indicator is shape of the district.  Bizarre shape is a strong indication that race
played a strong part in shaping the district.
1. Not dispositive evidence—just very persuasive.
iii. However, race must be a factor in districting. This is the only way to know that you are
not violating the non-retrogression standard.
d. Mandatory Districting Considerations
i. Equal Population/One-Person, One-Vote
ii. Contiguous
iii. Compact
1. Not mandatory, but Shaw says that non-compactness may suggest that race has
been over-weighted.
iv. Protection of Incumbents
v. Non-Retrogression
Georgia v. Ashcroft (2003)
a. Facts - GA 2000 redistricting. GA Democratic Party gerrymanders in order to maintain political
majority in the State House. The redistricting plan reduces by 5 the number of districts with a
black voting age population in excess of 60%, but increases the number of majority-black voting
age population districts by one, and increases the number of districts with a black voting age
population of between 25% and 50% by four, thus effectively spreading the influence of black
voters by diluting their concentration. The plan, if successful, would allow Democratic Party to
stay in power, giving 7 out of 11 black State Senators committee chairmanship positions. The
plan itself was brokered by John Lewis, civil rights activist and black congressman. DOJ
challenges plan as violating VRA § 5 as retrogressive (dilutes voting power of blacks in some
districts) under Beers.
b. Vacated and remanded because the District Court had failed to consider properly all the
relevant factors when the District Court had examined, for purposes of § 5 preclearance, whether
Georgia's 2001 state-senate redistricting plan would result in a retrogression of black voters'
effective exercise of the electoral franchise, as compared with the benchmark 1997 plan.
61
c.
d.
e.
f.
g.
Overruled statutorily by 2006 Amendments to VRA.
i. “Any voting qualification or prerequisite to voting, or standard, practice, or procedure
with respect to voting that has the purpose of or will have the effect of diminishing the
ability of any citizens of the United States on account of race or color, or in contravention
of the guarantees set forth in section 1973b(f)(2) of this title, to elect their preferred
candidates of choice denies or abridges the right to vote within the meaning of subsection
(a) of this section.” 42 U.S.C. 1973c(b).
ii. “The purpose of subsection (b) of this section is to protect the ability of such citizens to
elect their preferred candidates of choice.” 42 U.S.C. 1973c(d).
Use of Race – If the government intentionally creates legislative districts with a majority of voters
who are minority race persons for the purpose of guaranteeing the minority race persons a certain
number of seats in the legislature, the districting map will be viewed as a law that involves a racial
classification “on its face.” Such a legislative districting map will need to be justified by a
compelling state interest, such as the remedying of past intentional racial discrimination against
minority race voters in the state.
Why did Ashcroft not pre-clear?
i. The new districting probably would have helped Democrats and hurt Republicans.
Ashcroft would have preferred to pool minorities in a few districts and keep them out of
districts that Republicans had a chance of winning.
State has burden of proof to show no retrogression.
i. Dissent thinks that it has not done this.
ii. Two Things We Must Pay Attention To:
1. White Crossover – How many whites in GA will actually vote for black
Democrats? Because of entrenched racism, white Democrats may vote for a
white Republican over a black Democrat. State must show that this will not
happen.
2. Electing a Candidate of Choice – A white Democrat has a better chance of
winning than a black Democrat in an area with racially polarized voting.
Therefore, there is some risk that other things being equal, a white Democrat
will be preferred over a black one.
iii. Must look at the totality of the plan and assess whether the gains outweigh the losses.
1. O’Connor says that state may trade off ability to elect for ability to influence.
Electing candidate of choice is not the only factor considered.
a. Souter disagrees, but he does think there is a problem with proving it.
2. City of Boerne v. Flores and Federalism Concerns – People that are concerned
about the constitutionality of § 5 for federalism reasons would see giving
more authority to the states as a positive change—one that might make it
more likely that § 5 would be found constitutional.
3. CONGRESS OVERTURNED THIS WITH THE 2006 AMENDMENTS TO
THE VRA. ALL THAT MATTERS IS ABILITY OF MINORITIES TO
ELECT CANDIDATE OF CHOICE.
Categories of Districts
i. Safe – Highly likely that minority voters will be able to elect the candidate of their
choice.
ii. Coalition – Better to risk having fewer minority representatives in order to achieve
greater overall representation of a minority group by increasing the number of
representatives sympathetic to the interests of minority voters.
iii. Influence – Maintaining or increasing legislative positions of power for minority voters'
representatives of choice.
DISCRIMINATORY PURPOSE
1.
2.
Section 5 forbids voting changes unless jurisdiction can show that change has neither discriminatory
purpose nor discriminatory effect.
Annexation
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a.
3.
4.
5.
Unless annexed territory has same racial composition as pre-annexation community, annexation
almost always will dilute minority voting power.
i. If annexed territory is predominately white, this will dilute minority voting strength.
b. TEST
i. There must be some evidence of a non-discriminatory purpose; and
ii. Black voters must be able to have representation in the new and larger community that is
reasonably equivalent to their political strength.
iii.  If the test were anti-retrogression, no city ever would be able to annex any land.
City of Richmond v. United States (1975)
a. Facts – Concerned annexation of land to city of Richmond altering voting strength of black
population of the city. City desired to annex outlying land in order to dilute black voting strength.
b. Reversed rejection of districting plan.
c. As long as districting plan affords to black voters “representation reasonably equivalent to their
political strength in the enlarged community,” it will satisfy § 5.
d. “If verifiable reasons are now demonstrable in support of the annexation, and the ward plan
proposed is fairly designed, the city need do no more to satisfy the requirements of § 5.”
City of Pleasant Grove v. United States (1987)
a. Holding – District court's findings that city did not carry its burden of proof was not clearly
erroneous. Denial of preclearance affirmed.
b. City’s annexation of vacant land on which residential development is expected is a “change in
voting practice or procedure” which is subject to preclearance for a city covered by § 5.
c. Voting practice may not be pre-cleared unless city meets burden of proving that both a
discriminatory purpose and a discriminatory effect are absent.
Reno v. Bossier Parish School Board (Bossier Parish II) (2000)
a. Facts – Police Jury set out to redistrict the parish. A.G. denied preclearance because while the
redistricting did not have a discriminatory effect, it had a discriminatory purpose.
b. Holding (Scalia)
i. Burden of persuasion w/r/t purpose has only to do with whether the purpose is
retrogressive.
1. State may maintain the status quo—however discriminatory—because this
cannot evince a retrogressive purpose.
2. “Purpose” covers only retrogressive dilution.
ii. Overturned by 2006 Amendments to VRA. – “The term ‘purpose’ in subsections (a)
and (b) of this section shall include any discriminatory purpose.” 42 U.S.C. § 1973c(c).
1. Wrong construction of VRA with regard to tenses. Retrogression may make
sense with respect to measuring effects of change, but if purpose is to effect
conformity with 15th Amendment, it does not make sense to maintain a status
quo that already violates the 15th Amendment.
iii. Another instance where Court is trying alleviate federalism costs and make things easier
for states. Congress pushes back with 2006 Amendments.
c. Stevens, Dissenting
i. Adopted a present-tense interpretation of “purpose.”
ii. “If a municipality intends to deny or abridge voting rights because of race, it may not
obtain preclearance.”
d. Breyer, Dissenting
i. Majority would render “purpose” largely irrelevant in 1965.
ii. Only imaginable discriminatory purpose would have been one to perpetuate existing
levels of discrimination as changes were being made.
e. Souter, Dissenting
i. Point of § 5 was to thwart ingenuity of school board’s efforts to stay ahead of challenges
under § 2.
ii. Under Court’s decision, executive and judicial officers of United States would be forced
to pre-clear illegal and unconstitutional voting schemes patently intended to perpetuate
discrimination.
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