Monday, February 9, 2009
Professor Ellen Katz (Michigan) recently posted her excellent article Withdrawal: The Roberts Court and the Retreat from Election Law on ssrn. The piece is also forthcoming in the Minnesota Law Review. This symposium article--part of the Minn. L. Rev. symposium Law & Politics in the 21st Century--is a thoughtful examination of the most recent election law cases at the Court and an argument that the Roberts Court "avoid[s] active federal engagement with the state-created rules regulating democratic participation; and . . . assumes and demands an electorate that is both legally literate and diligent." The piece is also a wonderful addition to Katz's significant body of scholarship on voting rights and election law. I highly recommend it.
Katz uses four cases from the Court's October 07 Term to illustrate her points: New York State Board of Elections v. Lopez Torres (upholding New York's party convention system of selecting candidates); Washington State Grange v. Washington State Republican Party (upholding Washington's primary law allowing candidates to self-designate party affiliation); Crawford v. Marion County Election Board (upholding Indiana's voter-ID law); and Riley v. Kennedy (holding that Alabama's 1985 law mandating elections to fill vacancies in Mobile never gained "force or effect" for purposes of Section 5 of the VRA, and therefore Alabama's reinstatement of its prior practice of gubernatorial appointment did not require VRA preclearance).
As to Lopez Torres and Crawford Katz argues that the Roberts Court stepped back from considering the broader political context and on-the-street reality in these cases and instead "came close to embracing empty formalism." Katz contrasts Lopez Torres with a former era's Bullock v. Carter, in which Chief Justice Burger examined filing fee requirements "in a realistic light" and based upon their "real and appreciable impact." She argues that "Bullock was not an outlier on this point." As to Crawford, Katz argues "[t]he approach gives States license to structure electoral processes to impose barriers to participation, subject only to the most limited constraint that they not be legally impossible to traverse. Reality no longer has anything to do with it."
Next Katz aligns Washington State Grange with the 2001 Easley v. Cromartie. The Court in that case declined to apply strict scrutiny to an oddly shaped district and a claim of racial gerrymandering. But the Court also set out a roadmap for states to avoid racial gerrymandering claims. In contrast to some predictions, this "effectively brought to a close the racial redistricting disputes about which the Justices obsessed in the 1990s." Like Cromartie, Katz argues, Washington State Grange provided advice to states that will, like the detailed advice in Cromartie, end these claims in federal court.
Finally, Katz compares Riley with the 1999 Lopez v. Monterey County to show how the Roberts Court has backed away from intrusion into state law and policymaking under the VRA. Katz:
Absent from Justice Ginsburg's majority opinion [in Riley] is Lopez's reflexive acceptance of Section 5's "federal intrusion" into state sovereignty. In its place is remarkable concern about the very federalism costs the Court in Lopez so willingly tolerated. In particular, Justice Ginsburg worried that mandating preclearance in Riley would interfere too greatly with the power of the Alabama Supreme Court, and, by extension, with state supreme courts more generally.
Katz shows how these cases represent the Roberts Court's reluctance to interfere with state election policies and, in this reluctance, new demands for voter literacy and voter diligence. She concludes:
The election decisions from the 2007 Term anticipate that private individuals will play an increasingly crucial role within election law. While such assistance [for voters] hardly signals the wholesale privatization of election administration, it reveals an implicit delegation of power. As the Court retreats from its longstanding role as the primary guardian of voting rights, private individuals and organizations are emerging as the most likely replacement.
I highly recommend this.