Chapter 14 Flashcards
Bush v Gore (2000)
Facts:
By late into election night, November 7, 2000, it became clear that neither Bush or Gore were winning the required 270 electoral votes to be president and that the presidential election was all coming down to Florida.
The outcome of the election hinged upon one major issue: Large numbers of undercounted ballots in a select number of traditionally Democratic counties.
Gore supporters demanded a hand recount of the undercounted ballots, since the machines could not count the votes.
Three important deadlines.
It became clear to everyone that the hand recounts were not going to be completed by the November 18th deadline for certification of the state’s election results; and the Secretary of State announced that she would certify the results by November 18th regardless of the unfinished recount.
Gore supporters went to court to stop the Florida Secretary of State from certifying the Florida election results on or by November 18th.
Florida Supreme Court ruled that the recounts should continue and unilaterally extended the certification deadline to November 26th.
Bush appealed and the Supreme Court set aside the Florida Supreme Court’s decision and asked the Florida court to clarify.
Four days later, the Florida Supreme Court ordered a new statewide manual recount off only all under-votes to begin immediately. Recounts were to be conducted by local officials guided only by the Court’s instruction to determine voter intent for each under-vote.
Questions: Did the Florida Supreme Court violate the Equal Protection Clause of the Fourteenth Amendment by ordering a statewide manual recount of under-votes without imposing uniform standards across the state?
Reasoning:
Article II, Section 1: Each State shall appoint, in such manner as the legislature thereof may direct, a number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress…The Congress may determine the time of choosing the Electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.
The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.
The State legislature’s power to select the manner for appointing electors is plenary (unqualified, absolute).
When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental…equal weight accorded to each vote and equal dignity owed to each voter.
Equal protection applies as well to the manner of the exercise of the vote…the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.
In this case, the question of how to interpret the holes, dimples, scratches, and hangs of an inanimate object, a piece of cardboard, in order to divine the intent of the voter makes the fact finder confront a thing and not a person. This requires specific rules to ensure uniform treatment of the things being examined for signs of intent.
The absence of these rules has led to unequal evaluation of ballots in various respects – the standards for accepting or rejecting a vote change from precinct to precinct, person to person, and team to team within a precinct.
Reasoning:
The Florida Supreme Court ratified this uneven treatment of ballots when it mandated the statewide recount of undercounted votes without specific rules and criteria for determining voter intent by looking at the chads.
The Florida recount process is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter to have their votes treated the same as every other vote.
When a court orders a statewide remedy, there must be at least some assurances that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.
The contest provision, as it was mandated by the State Supreme Court, is not well calculated to sustain the confidence that all citizens must have in the outcome of elections.
Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work.
The judgment of the Supreme Court of Florida is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Voting Rights Act of 1965
After the Civil War, the nation become increasingly concerned with the say in which certain southern states were exercising their authority over voting rights – especially the rights of African Americans to vote.
These restrictions took many forms: White Only voting in primary elections, poll taxes, difficult registration requirements, literacy and understanding tests, and outright intimidation.
Beginning in the 1960s, the federal government took measures to reduce racial discrimination in voting. The result was the Voting Rights Act of 1965 – the most comprehensive statute ever enacted by Congress to enforce the guarantees of the Fifteenth Amendment.
Most southern states were covered.
The Act authorized the U.S. Attorney General to appoint federal examiners to supervise registration and voting procedures when the DOJ determined that low African American participation in elections were likely due to racial discrimination.
The Act prohibited literacy test and required approval of any changes to the election laws of the covered states to be approved by the Attorney General or the U.S. District Court for District of Columbia.
S.C. v. Katzenbach (1966)
Relevant Case Facts:
Concerned about persistently low registration rates among black voters in southern states, Congress passed the Voting Rights Act of 1965. The Act targeted certain areas of the country for federal supervision of local elections. Specifically, any state or county that still had (a) a test or device for filtering registrants as of 1964 and (b) a registration rate of under 40 percent was to be federally monitored. Under these guidelines, all or part of 11 states, including South Carolina, were singled out for supervision. These targeted areas now had their voter qualification standards subject to federal review and approval by the attorney general. South Carolina and five other southern states sued Attorney General Katzenbach, seeking an injunction against the enforcement of the Voting Rights Act.
Legal Question:
Is the Voting Rights Act of 1965 a constitutional exercise of Congress’s authority under Section 2 of the Fifteenth Amendment?
Holding:
Yes, in an 8-1 decision.
Reasoning:
1. Section 2 of the Fifteenth Amendment empowers Congress to effectuate appropriate measures to enforce the amendment, which prohibited the use of race or color as a voting qualification. The Voting Rights Act of 1965 is such an appropriate measure, and is not inconsistent with any other part of the Constitution.
2. The language and purpose of the Amendment make clear that Congress can use “any rational means” to achieve its goals in this regard. Following McCulloch, “(l)et the end be legitimate,” let it be consistent with the spirit and letter of the law, and the act is constitutional. Rejects South Carolina’s contention that Congress can do no more than forbid violations of the Fifteenth Amendment in general terms. The Voting Rights Act is “clearly a legitimate response” to the problem of black registration.
3. Moreover, the targeting of particular states and localities is acceptable because these are areas where immediate action was necessary.
Shelby County, Alabama v. Holder (2013)
Relevant Case Facts:
Shelby County, a jurisdiction in Alabama covered by the Voting Rights Act, sued the U.S. attorney general, asking the district court to strike down Sections 4 and 5 of the Act as unconstitutional because the coverage formula was based on a 1965 race relations environment that no longer existed in 2006 when Congress enacted the most recent extension.
Legal Question:
Does the Voting Rights Act’s extraordinary measures, including its disparate treatment of states, continue to satisfy constitutional requirements?
Holding:
No. 5-4 vote.
Reasoning:
1. The federal government does not, however, have a general right to review and veto state enactments before they go into effect. A proposal to grant such authority to “negative” state laws was considered at the Constitutional Convention, but rejected in favor of allowing state laws to take effect, subject to later challenge under the Supremacy Clause. Outside the strictures of the Supremacy Clause, states retain broad autonomy in structuring their governments and pursuing legislative objectives.
2. Not only do states retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the states. The Voting Rights Act sharply departs from these basic principles. It suspends “all changes to state election law—however innocuous—until they have been precleared by federal authorities in Washington, D.C.” States must beseech the federal government for permission to implement laws that they would otherwise have the right to enact and execute on their own, subject of course to any injunction in a §2 action. And despite the tradition of equal sovereignty, the Act applies to only nine states (and several additional counties). While one state waits months or years and expends funds to implement a validly enacted law, its neighbor can typically put the same law into effect immediately, through the normal legislative process.
3. Nearly 50 years later, things have changed dramatically. Shelby County contends that the preclearance requirement, even without regard to its disparate coverage, is now unconstitutional. Congress agreed when it reauthorized the Act in 2006, writing that “[s]ignificant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices.” Yet the Act has not eased the restrictions in §5 or narrowed the scope of the coverage formula in §4(b) along the way. Those extraordinary and unprecedented features were reauthorized—as if nothing had changed. In fact, the Act’s unusual remedies have grown even stronger.
4. The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The Amendment is not designed to punish for the past; its purpose is to ensure a better future.
5. Congress could have updated the coverage formula [when it reauthorized the Act], but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.
Crawford v. Marion County Election Board (2008)
Relevant Case Facts:
In 2005, the Indiana legislature enacted the “Voter ID Law” requiring citizens to present government-issued photo identification at voting polls in order to prevent voter fraud. The law did not apply to registering to vote or absentee votes submitted by mail, and there were exceptions made for residents of state licensed facilities such as nursing homes. Voters who forgot their ID on Election Day, or voters who had religious objections to being photographed could cast a provisional vote that would be counted if the voter brought their ID to the county clerk’s office within 10 days. The state DMV offered free photo identification cards to those who did not already possess proper identification. A group representing the interests of the poor and minorities, as well as the Indiana and Marion County Democratic Party, challenged the law arguing that it violated the Fourteenth Amendment by substantially burdening the right to vote and arbitrarily disenfranchising voters who could not obtain ID cards easily. The district court and courts of appeals ruled for the state, concluding the benefit offset the burden to voters.
Legal Question:
Does a law requiring voters to present a government-issued photo identification in order to vote arbitrarily disenfranchise voters and thus violate the Fourteenth Amendment?
Holding:
No. The Court upheld the Indiana law 6-3.
Reasoning:
1. In Harper v. Virginia Bd. Of Education (1966) the Court set the standard that restrictions on the right to vote are invidious if they are unrelated to voter qualifications. Anderson v. Celebrezze (1983) confirmed that restrictions protecting the integrity and reliability of the voting process satisfy the Harper standard. Thus, the Court must evaluate the stated justifications of the law to assess its validity.
2. The state has an interest in each one of the state goals of this law: taking efforts to modernize the election process, prevent in-person voter fraud (which is a demonstrated problem in Indiana), and safeguarding voter confidence to encourage participation in the democratic process.
3. The law does not substantially or invidiously burden voters because of the extensive measures the State took to ensure that it was easy and free for anyone to obtain photo identification.
Federal Election Campaign Act of 1971
FECA, as amended, restricted how much money individuals and groups could donate to candidates, parties, and PACs.
FECA also imposed record keeping requirements and federal funding of presidential election campaigns.
Buckley v. Valeo (1976)
Relevant case facts:
In the wake of the Watergate affair, Congress attempted to ferret out corruption in political campaigns by restricting financial contributions to candidates. Among other things, the law set limits on the amount of money an individual could contribute to a single campaign and it required reporting of contributions above a certain threshold amount. The FEC was created to enforce the statute.
Legal question:
Did the limits placed on electoral expenditures by the FECA of 1971, and related provisions of the Internal Revenue Code of 1954, violate the First Amendment’s freedom of speech and association clauses?
The Supreme Court upheld the described provisions but struck down others that limited independent campaign expenditures (direct campaign spending by individuals or groups not funneled through or coordinated with a campaign).
The court reasoned that placing a ceiling on campaign expenditures was equivalent to restricting political speech.
The Court reasoned that reducing electoral corruption was a sufficient interest to limit campaign contributions, by individuals and groups, but not to restrict campaign expenditures.
Soft vs. Hard Money Issue
Hard Money: FECA regulated and limited the amount of money that could be given by individuals and groups directly to a campaign organization in support of a candidate.
Soft Money: Money given to political party organizations for party-building, get-out-the-vote drives, and issue promotion – was not clearly regulated by the FECA.
Consequently, the amount of soft money donated went up exponentially.
Groups began to spend money on so called issue campaigns – that did not directly advocate for a specific candidate.
Bipartisan Campaign Reform Act of 2002
Was designed to fix the Soft Money loopholes of the FECA.
Title I: Dealt with Soft Money:
Prohibited the national political parties from raising or spending Soft Money
Barred federal candidates from soliciting or receiving soft money; and,
Prevented state and local party organizations from spending soft money to promote or attack candidates for federal office.
Title II: Dealt with who gave the Money:
Prohibited Labor Unions and corporations, including incorporated interest groups, from using their general funds to engage in advertising that referred to a candidate for federal office that appeared within 60 days of a general election or 30 days of a primary election.
Designed to stop Unions and Corporations from doing advertising that was in favor of candidates but was done as an issue ad.
Hard Money provisions:
Raised the ceiling on hard money contributions and allowed the limits to be adjusted for inflation.
Aggregate Limits: Such contributions could not exceed $95,000 per two-year election cycle ($37,500 to candidates and $57,500 to groups, party organizations).
McConnell v. FEC (2003)
Relevant Case Facts:
The Bipartisan Campaign Reform Act was an attempt to plug loopholes in Federal Election Campaign Act. Title I prohibited the use of soft money by national political parties. Title II prohibited labor unions and corporations from using general funds to engage in electioneering communication within 60 days of a general election or 30 days of a primary. The law also required comprehensive disclosure and record keeping. When a number of groups and individuals challenged the law, all suits were consolidated in district court into the present case.
Legal question:
Does the BCRA violate the First Amendment rights of speech and association?
Holding: No. The Court voted 5-4 in favor of the FEC.
Reasoning:
Title I: The evidence on the record shows that candidates and donors alike have in fact exploited the soft money loophole. In fact, more than half of the top 50 donors in 1996 and 2000 gave substantial money to both parties. This suggest s they were seeking influence.
Title II: We have repeatedly upheld legislation to stop the corrosive and distorting effects of immense aggregations of wealth that are accumulated … and that have little or no correlation to the public’s support for the corporation’s political ideas. Burroughs tells us that Congress has the power to pass laws that protect elections from the improper use of money to influence the result.
Citizens United v. Federal Election Commission (2010)
Relevant Case Facts:
In January 2008, Citizens United, a nonprofit corporation that receives some funding from for-profit organizations, released Hillary: The Movie, a documentary film critical of then-senator Hillary Clinton, a candidate for the Democratic presidential nomination. The film depicted Clinton as unfit for the presidency. Concerned about possible civil and criminal penalties for violating campaign finance laws, Citizens United initiated legal action against the Federal Election Commission (FEC) arguing that section 203 of the Bipartisan Campaign Reform Act (BCRA), which prohibits corporations and labor unions from using general treasury funds to finance independent electioneering communications, is unconstitutional as applied to Hillary.
Legal Question:
May the government regulate corporate political speech through suppression and through disclaimer and disclosure requirements?
Holding:
Yes and no. The Court ruled 5-4 that the government may place disclaimer and disclosure requirements but it may not wholly suppress corporate political speech. Kennedy wrote for the majority.
Reasoning:
1. The law before us is an outright ban, backed by criminal sanctions. It makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering
communications within 30 days of a primary election and 60 days of a general
election.
2. Speech is an essential mechanism of democracy, for it is the means to hold officials
accountable to the people. The right of citizens to inquire, to hear, to speak, and to use
information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. For these reasons, political speech must prevail against
laws that would suppress it, whether by design or inadvertence. Laws that burden
political speech are subject to strict scrutiny, which requires the Government to prove
that the restriction furthers a compelling interest and is narrowly tailored to achieve
that interest.
3. The government may not by these means deprive the public of the right and privilege
to determine for itself what speech and speakers are worthy of consideration. The First
Amendment protects speech and speaker, and the ideas that flow from each.
4. We find no basis for the proposition that, in the context of political speech, the
government may impose restrictions on certain disfavored speakers. Both history and
logic lead us to this conclusion. The Court has recognized that First Amendment
protection extends to corporations. This protection has been extended by explicit
holdings to the context of political speech. Under the rationale of these precedents,
political speech does not lose First Amendment protection “simply because its source
is a corporation” (Bellotti).
6. We return to the principle established in Buckley and Bellotti that the Government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations. Given our conclusion we are further required to overrule the part of McConnell that upheld BCRA §203’s extension of §441b’s restrictions on corporate independent expenditures.
McCutcheon v. FEC (2014)
Relevant Case Facts:
The Federal Election Campaign Act of 1971 (FECA), as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA), limits campaign contributions to candidates for federal office and contributions to noncandidate political organizations in two ways. First, the law’s base limits restrict the amount any individual can give to any particular candidate or organization. Second, the law’s aggregate limits impose a ceiling on the total amount an individual may give to all candidates or organizations in any two-year election cycle. The aggregate contribution limits, therefore, have the effect of restricting the number of candidates or organizations a donor may support.
Legal Question:
Does the First Amendment protect the right to give money to political campaigns?
Holding:
Yes. 5-4 vote.
Reasoning:
1. The right to participate in democracy through political contributions is protected by
the First Amendment, but that right is not absolute. Our cases have held that Congress
may regulate campaign contributions to protect against corruption or the appearance of corruption. Buckley v. Valeo (1976). At the same time, we have made clear that
Congress may not regulate contributions simply to reduce the amount of money in
politics, or to restrict the political participation of some in order to enhance the relative
influence of others.
3. Any regulation must target what we have called “quid pro quo” corruption or its
appearance. That Latin phrase captures the notion of a direct exchange of an official
act for money.
4. We conclude, however, that the aggregate limits do
little, if anything, to address that concern, while seriously restricting participation in
the democratic process. The aggregate limits are therefore invalid under the First
Amendment.
6. An aggregate limit on how many candidates and committees an individual may
support through contributions is not a “modest restraint” at all. To put it in the simplest terms, the aggregate limits prohibit an individual from fully contributing to the primary and
general election campaigns of ten or more candidates.
7. For the reasons set forth, we conclude that the aggregate limits on contributions do not further the only governmental interest this Court accepted as legitimate in Buckley.
They instead intrude without justification on a citizen’s ability to exercise “the most
fundamental First Amendment activities.”
Political Representation
The right to vote and the promise of hones elections does not guarantee that everyone shares equally in the political process.
We are a republican form of democracy which means that we have representatives, elected by the people form defined geographical districts, who carry out the decision making for us.
How equitably and how well this representational process works depends in part on how fairly and equally the boundary lines of political districts are drawn.
Article I and the Law
Article I of the U.S. Constitution clearly establishes that Representatives for the House of Representatives shall be:
Elected by the people every two years;
Each state shall have at least one Representative; and,
The number of Representatives shall be determined by population every ten years after the census is completed.
The Permanent Apportionment Act of 1929: Establishes the number of Representatives in the House at 435.
Every ten years those 435 seats are reallocated between the fifty states – with those states losing population losing seats, and those gaining population gaining seats (Reapportionment) – this requires Redistricting or the redrawing of the existing districts to account for the loss or gain of seat(s).
Redistricting Court Decisions
Issue: After the industrial revolution people left rural areas and moved to the cities and the state representatives did a terrible job of redistricting leaving the rural areas with less population but almost equal political power – thus diluting the power of the voters in cities.
Colegrove v. Green (1946): Refused to rule on a challenge to reapportionment/redistricting saying that it was a political question best left to the voting booth and not the courts.
Baker v. Carri (1962): On the central question whether the federal courts had jurisdiction to hear reapportionment/redistricting cases, the court held that it was a justiciable issue capable of review by the courts – based on an equal protection analysis.
Wesberry v. Sanders (1964): Significant malapportionment/redistricting violated Article I, Section 2 which requires that congressional districts in a state be drawn to be as equal in population as possible.
