The Right to Vote

Recall two levels of scrutiny under the V/XIV A EPC:
    Rational basis.
           o A law that discriminates between classes stands if there is a legitimate
               government interest to which the law is rationally related.
    Strict scrutiny.
           o A law that either violates a fundamental right, or discriminates against a protected
               class, will only stand if there is a compelling state interest which the law is
               narrowly tailored to meet.

If you’re denied the vote, your challenge to that denial is subject to a rational basis test unless
you are:
     Adult
     Citizen
     Resident
     Non-felon.

Alien voting case. Court applies a rational basis test. States may ban aliens from voting as part
of their interest in restricting voting to the “political community,” and rules that aliens are not
part of the political community.

Lassiter v. Northampton County Board of Elections
Literacy test case. Court applies a rational basis test. Says that the ability to read and write are
rationally related to the exercise of the franchise and so may be used as a prerequisite to voting.
Noted, however, that such a test that was used to discriminate against a class might be struck
down, which was done in Louisiana v. United States.
Note that literacy tests were banned by Congress with VRA 1965 in accordance with its
power to enforce the XV A.

Harper v. Virginia State Board of Elections
Poll tax case. Court applies a kind of proto-strict scrutiny. Says that the ability to pay a poll tax
has no relation to the exercise of the franchise, so it “invidiously discriminates” in violation of
the EPC.

Kramer v. Union Free School District No. 15
Guy with no property or kids wanting to vote in school board elections case. Court applies strict
scrutiny. Says denial of the right to vote must be for a compelling gov’t interest and such denial
must be narrowly tailored. Here, people without property can be “seemingly interested and well-
informed” and therefore their exclusion is not narrowly tailored.

Durational residency voting case. Court applies strict scrutiny. Generally can’t deny the vote to
newcomers to the state absent a compelling gov’t interest and a narrowly tailored law.

Richardson v. Ramirez
Felon disenfranchisement case. Court applies rational basis. Says felons are not a suspect class,
and voting is not a fundamental right for people engaged in crime or rebellion due to § 2 of the
XIV A. So, no s/s: only r/b, and states may deny vote to felons for a host of rational reasons
(deterrence, retribution, keeping assholes out of the political process).

Skafte v. Rorex
Alien voting case. Court applies a rational basis test. States may ban aliens from voting as part
of their interest in restricting voting to the “political community,” and rules that aliens are not
part of the political community. Skafte argues he is not a felon or a rebel and so s/s is warranted
under Richardson: court doesn’t buy it.

Holt Civic Club v. City of Tuscaloosa
Non-resident voting case. Court applies a rational basis test. Municipalities (and states?) may
ban non-residents from voting.

Voting and Representation

State legislative districts must have more or less equal populations.
     Small deviations, up to 10%, at the state level need no showing of rational basis.
     Larger deviations, up to about 17%, are allowable with a showing of some rational basis,
        like adhering to municipal boundaries.
     Deviations larger than 18% have been struck down.

Reynolds v. Sims
See above – “one person one vote.”

Major Political Parties

Contribution limits on p. 793 of text.

3-legged stool of a party:
     Party organization
     Elected officials
     Individual voters.

A state actor? Answer differs for distinct functions.
     For purposes of elections, parties are state actors, don’t get constitutional rights, and their
        actions may be challenged by voters.
     For purposes of legislative caucusing, also state actors.
3 major lines of reasoning:
    White primary cases. Parties are state actors and their actions must not discriminate and
       must conform to the V/XIV A EPC.
           o Highly limited by the Jones case, which said that parties have a very strong I A
               right of association.
    Tashjian line of cases. Parties are private organizations with a I A right of association.
           o Modified by Clingman – burden on I A right must be severe to get strict scrutiny.
    Washington State Grange. Judicial deference to legislatures (don’t get involved in
       intraparty squabbles).

Would Congress be allowed to set up a national primary system?
   Would seem to violate Jones’ restriction of the White primary cases and Tashjian’s
      elevation of the right of association by telling the parties how and when to do something.
   Might the Times and Places clause extend to primaries, though?

Ammond v. McGahn
Democratic state senator gets kicked out of her caucus. Sues on EPC: state says that legislative
caucuses are an integral part of the legislative process, and that party (as a state actor) may not
deprive voters of effective representation by keeping her out of the caucus.
    Cooper takes deep issue with this case: thinks that legislative caucuses have no official
       power, and in order to be viable need to be able to include and exclude whom they
       choose. This is a political fight, not a legal one.

White Primary Cases
Texas legislature required that party primaries be whites-only, Court said violated EPC. Texas
passed a law saying that the states decide whether their primaries be whites-only, Court said law
violated EPC. Texas repealed the law, allowing unfettered private action, and parties maintained
whites-only primaries. Court said that’s OK at first but overruled itself in Classic: party
primaries are state action and must conform to the EPC.

Terry v. Adams
Primaries must be integrated under the XIV A, so Jaybird Democratic Association (a whites-only
private group) has a straw poll. Winner of the straw poll runs in the primary, where all the
whites vote for him. Court says that the state has allowed a private party to duplicate its EPC-
governed primaries, and those processes must therefore be EPC governed as well.

Democratic Party of the United States v. La Follette
Dems require that parties choose delegates to the national convention by closed primary. WI
uses an open primary, Dems refuse to seat the delegates. USSC says both sides have an interest
here (Dems in association, WI in choosing its own methods of elections) but they’re not
incompatible. WI can have whatever primary it wants, but it can’t require that the delegates
chosen vote its results if to do so would violate convention rules.
     Cooper says this is another intramural fight that the courts shouldn’t get involved in. No
       adverse state action. States shouldn’t be able to override national interests, and courts
       should restrain themselves in political fights.
Tashjian v. Republican Party of Connecticut
Repubs want an open primary (open to independents), Dem-controlled state legislature mandates
closed primaries. Court applies strict scrutiny to that mandate: says Repubs I A right of
association (a fundamental right) was infringed. No compelling state interest:
     Administrability of the primary process not compelling b/c would have to spend extra for
       a third-party primary too, which would be OK.
     Raiding primaries not compelling b/c independents can’t “raid” and already trivial to
       register as a Repub.
     Avoiding voter confusion not compelling b/c parties may let independents guide their
       primary result.
     Stability of the political process not at issue here b/c this is not breaking the two-party
       system, just interfering with one of them.

Eu v. San Francisco County Democratic Central Committee
Squabble between legislature and local party committees over law mandating certain party
organization and forbidding endorsements. Local committee sues, claiming law is violating I A
ass’n right. Court applies Tashjian and agrees.
     Cooper: the legislatures are just part of the parties! Why are the courts getting involved
        in these intraparty disputes?

California Democratic Party v. Jones
Tashjian used to limit the White primary cases to their facts. CA set up a blanket primary –
Scalia says that violates the parties’ association rights so s/s, no compelling state interest since
there are no disenfranchised voters to enfranchise, and non-narrowly tailored since they could
use a nonpartisan blanket primary.

Washington State Grange
WA does a nonpartisan blanket primary, like Scalia suggested. Candidates may not list a party
association but may list a “party preference.” A blatant circumvention of Jones, but the court let
it stand. Might be trying to butt out some. Court evidences hostility to a facial challenge to state
election law – bring us an unfair situation.

Clingman v. Beaver
OK sets up a “semiclosed primary” – you can vote in any primary you like if you’re either a
party member or an independent. Libertarians sued on I A ass’n right, wanted to allow anyone to
vote in their primary. Court upheld the statute: said that strict scrutiny was only appropriate
where the burden on a right is severe. So in elections cases, you have to have a severe
infringement on a fundamental right to get s/s.

Minor Parties

Reasons we don’t see strong third parties:
    Single-member districts make it hard to pick up representatives with only a plurality.
    Winner-take-all electoral votes
      Even a party with sectional support (Dixiecrats, e.g.) can’t win the Presidency (although
       they can spoil)
      Growth of primary elections pushes candidates to the middle, rather than to the fringe

The butterfly ballot, which likely spoiled the credibility of the 2000 FL election, was invented to
accommodate third parties.

Mostly tend to see litigation here based on public funding and ballot access issues. However, the
Court tends to have a lack of sympathy for poorly funded third parties.

Munro v. Socialist Workers’ Party
P only got .009% of the blanket primary vote in WA and weren’t allowed onto the general
election ballot. Sued on I A ass’n right and right to vote. USSC says those violations = s/s, but
then doesn’t apply s/s. Waves its hands and implies that rights are not absolute and may be
infringed upon to run elections fairly and effectively.

Timmons v. Twin Cities Area New Party
Anti-fusion laws do not place a severe burden on the I A right of association and so do not
warrant s/s.


You can limit false speech against a person but not false speech against a political campaign (like
a ballot initiative). State of Washington v. 119 Vote No! Campaign. However, where the limit is
a state-issued truthfulness opinion but not a fine or injunction, upheld. Pestrak (6th Cir.)

State of Washington v. 119 Vote No! Campaign
WA law prohibited sponsoring false statements of material fact in political advertising. Criminal
penalties, falsehood to be determined by a state administrative agency. USSC said that while
false speech against a person isn’t protected, false speech against a political campaign is
nevertheless protected political speech. S/s warranted, no compelling state interest in restricting
political speech.
     When later restricted to false speech against a person, WA SC still struck it down.
Bribery and Campaign Finance

5 elements of bribery:
     Public official
     Offer of something of value
     With intent to influence
     An official act
     With corrupt intent
           o The $64 question. Without this element, a vast universe of legitimate political
               activity is included: “I’ll vote for your bill if you’ll vote for mine.”
           o Some degree of wrongfulness is implied.

People v. Hochberg
Corrupt intent where D offered someone a state job to convince them to not run for office.

The Federal Election Campaign Act of 1971
    Arose out of Watergate.
    Placed limits on contributions and expenditures.
    Defines a “contribution:” a gift, subscription, loan, advance, deposit of anything of value,
      or promise to give a contribution, made to influence an election.”
          o Bank loans in o/c/b exempted. Market interest rate, appropriately collateralized.
          o Can be a gift, a personal loan, a loan guarantee
          o Free stationery, payment of another’s obligations (in-kind contributions) included.
          o Corporations, foreign nationals, government contractors may not make
    Defines a “candidate:”
          o For ballot purposes, defined by state law;
          o For FEC purposes, happens by 2 forms, triggered by $5000 in contributions:
                   Statement of Candidacy
                          Name office you’re running for
                          Name principal campaign committee
                   Statement of Organization
                          Name, address, etc. of treasurer of principal campaign committee
                          Treasurer is personally liable to FEC! Don’t be him.
          o “Testing the waters” is allowed. $5000 limit doesn’t apply, but if you get in, what
              you raise/spend has to be reported as part of what your PCC has raised/spent.
    Contribution limits:
          o $1000 wrt a “clearly identified candidate” per individual per election.
                   A candidate with extra money may only contribute the $1000 to another
                      candidate; has to be organized as a PAC to get the higher limit.
          o $5000 per PAC per election.
                   Registered for not less than 6 months
                   At least 50 contributors
                   Contributed to at least 5 candidates
                   Limits on how much any individual may contribute to the PAC.
                     Corporations and labor unions may set up separate segregated funds
                      (SSFs): corp/union money may not go to candidates, but may pay
           o Political party committees:
                    Treated as a multicandidate PAC: may spend $5000/candidate/election.
                    May make coordinated party expenditures (only in-kind).
                    May make unlimited independent expenditures.
                    May make exempt party expenditures (yard signs and whatnot).
      “Hard money:” money raised by a campaign that satisfies FECA requirements, and is
       subject to FECA prohibitions, contribution limits, reporting requirements, and
       recordkeeping requirements.
      “Soft money:” everything else. Raised for issue ads, raised by state parties for state
       races, etc.
           o Really took off in the 90s for issue ads. BCRA hammered it.
      “Expenditure:” like a contribution. Anything of value, spent/made/whatever, intended to
       influence an election for political office.

Buckley v. Valeo
    FECA contribution limits upheld. I A challenge, court ostensibly applies s/s.
           o However, only reference “sufficiently important governmental interests” in
               anticorruption (real and apparent after Watergate), leveling the playing field
               among candidates, and braking escalating campaign costs.
                    Anticorruption is the only proper compelling interest, however!
           o Court says that these interests outweigh the light restrictions on speech.
           o Court says contribution limits are narrowly tailored since it has “no scalpel to
               probe” whether $1000 is too low.
    Expenditure limits struck down.
           o Court interprets FECA to mean an expenditure expressly calling for the defeat or
               election of a candidate to avoid vagueness problems.
           o Court again applies s/s, but does it for real this time.
                    Finds no compelling gov’t interest!
                            Maximizing effectiveness of contribution limits? No
                            Anticorruption? No:
                                   o Expenditures coordinated with the campaign are considered
                                        contributions and subject to the contribution limit.
                                   o Expenditures not coordinated with the campaign can’t
                                        possibly bring about a quid pro quo.
                                            In Shrink MO, a broader anticorruption rationale
                                               was upheld: overeagerness to comply with the
                                               wishes of large contributors. Not here, though.
                            Leveling the playing field? No, can’t amplify some voices by
                               restricting others.
           o Restrictions on personal/family expenditures also struck down. S/s applied:
                    No compelling gov’t interest.
                             Can’t be corrupted by your own money.
                             No boostrapping.
                             Here, leveling the playing field is “foreign to the I A.”

Out of Buckley, we have 2 distinctions:
    Issue vs. express advertising
          o Express advertising must be paid for with hard money.
          o Issue advertising may be paid for by anybody. Unlimited amounts.
    Coordinated vs. independent expenditures
          o Expenditures by organizations coordinated with the campaign must be subject to
              the $1000/$5000 limits.
          o Independent expenditures have no limit.

Congress may, however, condition public financing on acceptance of spending limits.

Bipartisan Campaign Reform Act
    National parties may not raise soft money (unlimited contributions from unions, corps,
        etc, used for issue ads and the like).
            o Such activities weren’t eliminated but rather shifted to 527s and the like.
                     IRC § 527 exempts from taxation the influencing of elections.
                        Organizations using this exemption are considered to be engaging in
                        election activities for IRC purposes but not for FECA purposes and so
                        don’t require hard money.
                     BCRA put some disclosure requirements on these guys but not a lot.
                     Probably be seeing a lot more § 501(c) nonprofit organizations doing this
    Expanded definition of “federal campaign activities” requiring hard money.
    Challenged in McConnell v. FEC.
            o Upheld using expanded Shrink MO version of corruption.

Corporate Spending Limits
    A corporation is not a natural human being – can their speech be regulated?
    Two lines of thought:
          o Focus on the speech itself.
                  First Nat’l Bank of Boston v. Bellotti. Speech is valuable, regardless of
                    the identity of the speaker.
                  Political speech lies at the core of I A protection, so strict scrutiny is
                    warranted. Anticorruption is the only compelling interest, but only quid
                    pro quo corruption.
          o Focus on the identity of the speaker.
                  NRWC. Issue-oriented, non-profit corporations that are not supported by
                    for-profit corporations may not have their speech restricted but others
                  Austin v. MI Chamber of Commerce – corporate expenditures distort the
                    marketplace of ideas, which should reflect the support for certain ideas
                    amongst the public.
      Austin and Bellotti may not be reconcilable but Bellotti has not yet been overruled.
          o Cases since Austin, like Wisconsin Right to Life, have seemed to confirm the
              Bellotti approach.
      2 USC § 441b
          o Prohibits contributions and expenditures by corporations and unions.
                   Recall that issue ads aren’t “expenditures.”
          o Creates SSFs.
                   PACs whose overhead is paid out of corporate funds.
                   Only contributors may be shareholders and executives/administrative
          o Can’t be applied to “issue corporations” under FEC v. Mass. Citizens for Life.
              Three-part test for whether a corp is an issue corp:
                   Formed for the express purpose of promoting political ideas, and cannot
                      engage in business activities
                   No shareholders or other persons with a claim on its assets
                   Not established by a corporation or a union
          o Media exception: press may use corporate dollars to directly advocate for the
              election or defeat of a candidate.
                   So Microsoft gets treated differently from GE, which owns media corps?
                   Can’t really tell the New York Times they can’t endorse a candidate,
          o Upheld in NRWC.
                   Corporate-supported anti-union non-profit set up an SSF and solicited
                      funds from people outside the restricted class. Wanted to make federal
                      “contributions” (hard money contributions) from those raised funds.
                   Court said no: contribution case so intermediate scrutiny, gov’t interest in
                      preventing corporate war chests > corp. interest in freedom of speech.
          o Upheld again in Austin v. MI Chamber of Commerce, but differently.
                   Non-profit corp whose members were for-profit corps wanted to use
                      treasury funds in support of a candidate.
                   Court again applied strict scrutiny since an expenditure case, but allowed a
                      compelling government interest in preventing the appearance of
          o Breached somewhat in FEC v. Mass. Citizens for Life.
                   MCFL, an issue corporation, expended money in express advocacy against
                   Court said this is an expenditure case, so strict scrutiny. Anticorruption
                      interest is compelling, but MCFL an issue corp, so § 441b can’t be
                      applied. Three-part test above.

Issue Advertising
     BCRA § 203 meant to shut down issue ads after the 90s.
          o Defined “electioneering communications”
                   Broadcast, cable, or satellite communications
                   Referring to a candidate for federal office
                   Aired within 30 days of a primary election or 60 days of a general election
                   In the jurisdiction where the candidate is running.
          o Can’t make disbursements for such electioneering communications.
          o § 441b was modified so corporations and unions couldn’t either.
      McConnell v. FEC challenged § 203 facially. It was upheld. Court implied that the
       suppression of some speech was OK to meet the government anticorruption interest.
          o Expenditure case, strict scrutiny.
          o Distinguished from Buckley on the grounds that issue ads are “functionally
              equivalent to express advocacy.”
      However, § 203 was gutted with FEC v. Wisconsin Right to Life.
          o Roberts court requires an “as-applied” test – is the ban on electioneering
              communications constitutional as applied to this particular ad?
          o Says an ad is only “functionally equivalent to express advocacy” if it is “not
              susceptible of any other reasonable interpretation.”
          o Roberts also says only corruption rationale is the Bellotti quid pro quo one.

Nixon v. Shrink MO Government PAC
MO statute set low contribution limits: $250-$1075. Upheld:
    Court noted lessened s/s standard for contribution limits
    Said an anticorruption rationale existed, but didn’t require explicit quid pro quo: a
       broader “overeagerness to comply with the wishes of large donors” rationale was OK.
    Some evidentiary standard for the “compelling” state interest was required, but not much.
           o Some BS newspaper article saying “it could happen” is enough.
           o Court even shifted burden to P to disprove corruption.
    Court said lower limit on contribution limits was “where political association was
       rendered ineffective, political candidates can’t be heard, and contributions are

Colorado Republican Party I
CO Republican Party spent more than $5000 in anti-Democratic candidate ads, claiming they
weren’t on behalf of any candidate (and hence weren’t governed by the FECA limitation) since
no Republican candidate had yet emerged. Court held the limitation was an unconstitutional
spending limitation.

Colorado Republican Party II
Court held the $103,000 limitation on § 441a(d) coordinated party expenditures was a
contribution limit and so the lessened s/s standard applied. WTF.

Randall v. Sorrell
Court is retrenching against judicial deference to state-determined contribution limits. VT set
quite low limits. Court ignored Shrink MO “too-small” test, instead citing “danger signs:”
     Comparison to Buckley limits
     Comparison to other states’ limits
     Comparison to limits previously approved by courts

Several ways to attack a districting plan.
    One-person-one-vote. Reynolds v. Sims.
          o Federal legislative districts must have essential numberical equality or they will
              be struck down.
          o State legislative districts may have more populations variance.
                    Up to 10% tolerated without question.
                    Up to ~16% tolerated with a rational basis.
    Fifteenth Amendment vote dilution claim.
          o Difficult ever since City of Mobile v. Bolden said you have to show intent to
    § 2 of the Voting Rights Act, as amended 1982.
          o See below.
    § 5 of the Voting Rights Act.
          o See below.
    Political gerrymander.
          o No one’s ever successfully pulled off a political gerrymander case.
          o Bandemer: have to show
                    Discriminatory intent (easy)
                    Discriminatory effect.
                           Have to show consistent degradation of the political process, not
                               just a lack of proportionality between number of votes and number
                               of representatitives. Basically impossible.
          o Vieth: gerrymander cases aren’t justicable since you can’t come up with judicially
              manageable standards. Kennedy didn’t agree, so no majority.
    State law provisions.
    Racial gerrymander.
          o Court will apply strict scrutiny to a districting plan where race is the predominant
              factor in drawing a district. Seems to rest on a concept of “expressive harm” – the
              government does bad by appearing to overly favor race. Shaw, Miller, Vera.
                    Compelling government interests
                           Compliance with § 2 of the VRA
                           Rectifying past discrimination
                    Narrow tailoring
                           Compliance with § 2 is a compelling government interest only
                               where a majority-minority district is reasonably compact or
                               regular, or respects and maintains communities of interest or
                               traditional boundaries.
          o However, race will not be considered the predominant factor where any other
              consideration, including political ones, played a major role. Easley.

Voting Rights Act of 1965
    Only held constitutional due to detailed findings of fact.
    Highly, highly successful, but people try to circumvent it a lot.
    Elements:
           o § 2 bars states from employing mechanisms to deny minorities the right to vote.
                  Need only show a lack of opportunities for minorities to participate in
                      electing representatives of their choice.
                  Dole Amendment: no right to have minoritity-supported candidates
                      elected in proportion to their numbers.
                  Gingles test for whether a district violates § 2:
                           Minority must be of a size and compactness to constitute a
                              majority in a district.
                                  o A majority, not just an influence district.
                                  o Compactness requirement has kind of fallen out.
                                  o Look at voting age population, not registered or actual
                           Minority is politically cohesive.
                           History of bloc voting by the majority such that the minority
                              candidate is usually defeated.
                                  o Needn’t always be defeated, just usually. Consistent
                                      success defeats this element.
                  Totality of the circumstances can override the three-factor Gingles test,
           o § 5 says “covered jurisdictions” can’t change their election laws (including
             districting) without preclearance from the Justice Department. To apply,
                  Must be a covered jurisdiction
                  Must be some change in the voting laws
                  Must be “retrogression.”
                           Retrogression in the position of racial minorities with respect to the
                              effective exercise of the franchise.
                           Written into the statute in 2006. Basically neuters § 5.
                           Determined by totality of the circumstances. Georgia v. Ashcroft
                                  o Substantive representation (influence districts, safe vs.
                                      marginal districts, etc.)
                                  o Descriptive representation (minority-supported candidates

Appropriate districting considerations?
    Formal
          o Population
          o Contiguity
          o Compactness
          o Political boundaries
          o Geographic boundaries
    Informal
          o Protection of incumbents
          o Defeat of the nondrawing party
          o Minority representation
          o Proportionality of votes for a party to number of representatives for that party
How to fuck over the other guys?
   Packing. Stick them all in one district so they only get one representative. Fairly safe for
      the fuck-ers.
   Dilution. Spread them out among a bunch of districts so they’ll get outvoted everywhere
      and get no representatives. Risky for the fuck-ers.

To top