In McConnell v. Federal Election Commission (2003) the Supreme Court by a narrow majority upheld most of the provisions of the McCain-Feingold law against facial challenges by challengers from across the political spectrum. The law included dozens of controversial provisions regulating the raising and spending of money during federal campaigns, and a number of commentators predicted that when the Court faced "as applied" challenges the results would be quite different. A person or group mounting a "facial" challenge claims that if the law is put into effect it will adversely affect a basic right. Courts are generally loathe to overturn legislation on the primarily theoretical conjecture that a law will violate a right. But once a law is in effect, and a plaintiff can show that the statute "as applied" actually does limit a right, that is a much different story.
At the end of the 2006 Term the Court decided the first "as applied" case under McCain-Feingold. In Federal Election Commission v. Wisconsin Right to Life, Inc. (2007), the Court struck down a provision banning certain types of ads from appearing thirty days before a primary and sixty days before a general election, holding that the law violated petitioner's First Amendment rights.
This Term the Court struck down the so-called "Millionaires Provision" in Davis v. Federal Election Commission. While the law did not prohibit wealthy people from funding their own campaigns, it allowed their opponents to raise far more money than allowable under regular campaign limits. Jack Davis, a wealthy New York industrialist who has already spent millions on two unsuccessful congressional attempts, claimed it violated his First and Fifth Amendment rights, and protects incumbents by discouraging wealthy challengers.
By a 5-4 vote, the Court struck down the millionaires provision, labeling it an "unprecedented penalty" on candidates who sought to underwrite their own campaigns. Justice Alito said that Davis was forced "to choose between the right to engage in unfettered political speech and subjection to discriminatory fundraising limitations," and the "resulting drag on First Amendment rights is not constitutional."
Four justices, all of whom had voted in the majority in McConnell, wrote opinions concurring in part and dissenting in part—Stevens, Souter, Ginsburg and Breyer.
Although the decision dealt with only a minor provision of McCain-Feingold, also known as the Bipartisan Campaign Reform Act (BCRA), the tone taken by Alito, and the tenor of questioning during oral argument, indicated that future "as applied" challenges would receive a sympathetic hearing in the high court. Defenders of the law said that the decision left the central portion of the statute intact—a prohibition on individuals making unlimited contributions to candidates and parties in federal elections.
That may be true, but all indications are that BCRA may already be dead in the water. Its backers worried about the influence of wealthy donors, but in the 2008 campaign the two leading Democratic candidates, Barack Obama and Hillary Clinton, raised record sums of money not through big givers, but through thousands of small donors on the internet. Obama, who won the primary battle, felt so confident of his fund-raising ability that he decided to forego public financing of his presidential campaign, thus allowing him to ignore limits on continued fund-raising as well as expenditures. Commentators were predicting that the 2008 campaign would be the most expensive in history, with the total of all candidates for federal office topping two billion dollars.
In other cases the Court by a 7-2 vote upheld Washington State's open primary election, which allows the top two vote-getters to advance to the general election even if they come from the same party. Both political parties opposed the new law, which has yet to go into effect, because it allows candidates to identify themselves as Republican or Democratic despite the fact that their views may be totally opposed to the party's position. (David Duke called himself a Republican even though the GOP has repudiated him and his racist views.) Justice Thomas, however, said that overturning the Washington plan would have been an "extraordinary and precipitous nullification of the will of the people." (Washington State Grange v. Washington State Republican Party)
The Court also unanimously turned back a challenge to the long-standing practice in New York of electing state trial court judges. A federal appeals court declared the party convention system for choosing nominees unconstitutional, and had ordered the state to institute a direct primary since the convention system deprived candidates who lacked the backing of party leaders a chance to get on the ballot.
In New York State Board of Elections v. López Torres, Justice Scalia dismissed these arguments almost out of hand. "None of our cases," he wrote, "establishes an individual's constitutional right to have a 'fair shot' at winning the party's nomination." The fact that party leadership determined who got on the ballot did not violate any constitutional provision, and party conventions "with their attendant 'smoke-filled rooms' and domination by party leaders have long been an accepted manner of selecting party candidates."
Although the case was a victory for the long-standing party operation, four of the nine justices wrote or joined separate opinions critical of the convention system. In a one-paragraph concurrence, Justice Stevens, joined by Souter, wrote "I think it appropriate to emphasize the distinction between constitutionality and wise policy." Quoting the late Justice Thurgood Marshall, Stevens added "The Constitution does not prohibit legislatures from enacting stupid laws." Justices Kennedy and Breyer noted that if the New York scheme did not produce "both the perception and the reality of a system committed to the highest ideals of the law, they ought to be changed and to be changed now."
Undoubtedly the most watched election law case of the Term involved the challenge to Indiana's voter identification statute. Under the 2005 law, which the legislature claimed was aimed at preventing voter fraud, voters had to show a government-issued photo ID card in order to cast a ballot. Those without the necessary card could cast a provisional ballot, which would then be counted if they went to a county office within ten days and produced the necessary identification. In most instances a valid driver's license would suffice, and Indiana provided non-drivers with an identification card at no cost. They had, however, to produce a birth certificate and apply at the nearest motor vehicle office.
From the start the case quickly broke out in partisan fighting; the legislature passed the law on a party basis, with all Republicans for it and all Democrats opposed. In the appeals courts Judge Richard Posner, a Reagan appointee, supported the law, saying that "it is exceedingly difficult to maneuver in today's American without a photo ID; try flying, or even entering a tall building such as the courthouse in which we sit, without one." His colleague, Clinton appointee Terence Evans, wrote in dissent: "Let's not beat around the bush. The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic." Although all efforts to secure proper identification of would be voters are aimed at preventing fraud, there is a general belief that Republicans hope to use these laws to keep poor and black voters, for whom the effort in getting a proper ID would be difficult, from voting.
During oral argument in Crawford v. Marion County Election Board, the justices showed a great deal of skepticism toward the challengers. The state had a relatively easy burden to carry—it had a legitimate purpose in enacting the law, the prevention of voter fraud; it had made arrangements for those who did not drive to secure a card upon presentation of proper identification; and those without the card could cast a provisional ballot. The challengers could show no instance of people being denied a card, but could only claim that it would be difficult for the poor and minority groups to get cards, allegations they could not prove.
By a 6-3 vote the Court upheld the law, but in a highly fractured opinion. The lead opinion was written by Justice Stevens, and joined in full only by Justice Kennedy and the Chief Justice. Stevens said the record showed no evidence of the type of voter fraud the law was aimed at preventing, but neither was there any evidence of a great burden imposed upon individuals seeking to vote. Justice Scalia, joined by Justices Thomas and Alito, concurred in the result, but Scalia said that the law was so obviously justified as "a generally applicable, nondiscriminatory voting regulation" that there was no basis for scrutinizing the record to assess the impact on individual voters.
Justice Souter, joined by Ginsburg, dissented, as did Justice Breyer, all of them claiming that the law imposed a serious burden on individuals, and the state had failed to justify that burden since it could not show that voter fraud had indeed taken place.
Six states in addition to Indiana now require voters to produce photo identification. Bills are pending in nearly two dozen other states, although few are expected to pass this year due either to already completed legislative sessions or Democratic control of one or both houses.