Election law

In the area of election law, in addition to its controversial handling of the 2000 presidential election, the Court handed down two decisions that may have a long-term impact.  

The case of Hunt v. Cromartie (2001) finally completed a long-running litigation that began after the 1990 census, when the North Carolina state legislature reapportioned the state's congressional districts. The plan included a majority-black district which was highly irregular in shape, and white voters sued on the basis that their rights had been diminished. Because the state was acting under limitations imposed by the Justice Department under the 1965 Voting Rights Act, the lower courts dismissed their suit. In Shaw v. Reno (1993), however, the Supreme Court held that these white voters had in fact stated a valid claim, and sent the case back to the lower courts for a rehearing .

The case came back to the Court in Shaw v. Hunt (1996), when a 6-3 majority held that the plan violated the Equal Protection Clause, because (1) race was the legislature's predominant consideration in determining the district's shape and placement; and (2) the plan was not narrowly tailored to serve a compelling state interest. After the state redrew the district's boundaries in 1997, a three-judge district court panel granted summary judgment to white challengers to the new plan, finding that the 1997 boundaries had likewise been created with racial considerations dominating all others. The Supreme Court reversed in Hunt v. Cromartie (1999), noting that it was not clear from the record whether race had been the primary factor in drawing the district line or whether it had been the intent of the legislature to protect a Democratic seat. If the latter, then that fell within the political latitude afforded legislatures in drawing district lines. The case went back to the district court, which again found that the legislature had used race-driven criteria, in violation of the Equal Protection Clause.

Once again, the Supreme Court reversed in Hunt v. Cromartie (2001). In a 5-4 opinion, Justice Breyer, joined by Stevens, O'Connor, Souter, and Ginsburg, found the district court's conclusion clearly erroneous. The facts as to the district's unusual shape, splitting of towns and counties, and high African-American voting population did not, in and of themselves, prove that race was the primary motive, The lower court had looked only at voting registration rather than voting behavior, and thus did not accurately take into account the political realities of the district. This and other evidence indicated that the legislature had drawn boundaries that, in general, placed more reliably Democratic voters inside the district while placing less reliably Democratic voters outside the district.

Justice Thomas, joined by Rehnquist, Scalia and Kennedy, dissented, on the grounds that in their view the evidence used by the lower court clearly proved that race and not party affiliation had determined the district boundaries.

Despite the closeness of the vote, the case finally put an end to a decade of litigation, just prior to the legislature having to redraw district lines following the 2000 census. What the majority seemed to be saying was that if a legislature drew lines solely on the basis of race in order to achieve a minority-majority district, it would fall afoul of the Equal Protection Clause. But if the legislature overtly and with documentation could show that it was trying to create a district in which one party would clearly have the upper hand-and if at the same time it coincidentally created a minority-majority district-then that map would survive judicial scrutiny.

The second case took a look at campaign finance law, the first such case to do so since Buckley v. Valeo (1976). One provision of the Federal Election Campaign Act of 1971 established limits on the amounts that individuals, political committees, and political parties were permitted to contribute to candidates for federal office. Another provision set limits on the amounts that national or state party committees were permitted to spend on congressional elections. In 1986, before the Colorado Republican Party had selected a United States Senate candidate for the fall's election, that party's federal campaign committee bought radio advertisements attacking the likely Democratic candidate. The advertising campaign was developed by the state Republican Party independently and not pursuant to any understanding or coordination with a candidate. The Federal Election Commission (FEC) filed suit charging that these expenditures were in fact directly related to the fall campaign, and therefore exceeded the dollar limits imposed by federal law. After a tortuous series of cases and appeals, the Court of Appeals for the Tenth Circuit held the federal provision unconstitutional as an abridgement of the First Amendment protection of free speech, in that the provision was not closely drawn to the recognized governmental interest in preventing corruption.

The Supreme Court reversed by a 5-4 vote in Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001). Justice Souter, joined by Stevens, O'Connor, Ginsburg, and Breyer, held that a political party's coordinated expenditures-unlike truly independent expenditures-could, consistent with the First Amendment, be restricted in order to minimize circumvention of political contribution limits, and these limits did not violate the First Amendment.

The real question is whether this same majority will hold when the recently enacted McCain-Feingold Act comes up before the Court for review, possibly in the October 2002 Term, since the law includes a "fast track" provision for judicial review. If it does, and some members of the Court have given hints that it is time to revisit the Buckley case, then it is possible that campaign finance reform will not run aground on the notion that "money is speech." If, however, a majority of the Court still adheres to that view, then that would probably doom any campaign finance reform for years to come.

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