VOTING RIGHTS AND
ELECTION LAW
2015 Supplement
Michael Dimino
Professor of Law
Widener University School of Law
Bradley Smith
Josiah H. Blackmore II/Shirley M. Nault
Designated Professor of Law
Capital University Law School
Michael Solimine
Donald P. Klekamp Professor of Law
University of Cincinnati College of Law
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(2011–Pub.3285)
TABLE OF CONTENTS
Chapter 1 VOTING QUALIFICATIONS
B. Defining the Community and Excluding Outsiders
3. The Law-Breaking ................................................................................................1
4. The Disinterested ..................................................................................................3
Chapter 2 POLITICAL QUESTIONS
B. The Non-Justiciabilty of the Guarantee Clause ................................................................6
C. “Well Developed and Familiar” Standards of Equal Protection ......................................6
Chapter 3 ONE PERSON, ONE VOTE
B. The Constitutional Basis for One Person, One Vote ........................................................9
C. Applying the Constitutional Standards: How Equal Is Equal Enough? ...........................9
Chapter 4 PRECLEARANCE UNDER SECTION 5 OF THE VOTING RIGHTS ACT
B. Voting Standards, Practices, and Procedures ...................................................................11
C. Retrogression ....................................................................................................................12
D. The Constitutionality of Section 5 Revisited ...................................................................13
SHELBY COUNTY, ALABAMA v. HOLDER ...................................................14
Notes and Questions.................................................................................................18
Chapter 5 DISTRICTING BY RACE
E. Constitutional Constraints on Majority-Minority Districting ...........................................22
Chapter 6 THE ROLES AND RIGHTS OF POLITICAL PARTIES
C. Associational Rights of Parties ........................................................................................23
D. Third Parties, Independent Candidates, and Ballot Access .............................................24
Chapter 7 TERM LIMITS
A.
Introduction ...............................................................................................................26
B.
The Constitutionality of Term-Limiting Members of Congress ...............................26
Chapter 8 POLITICAL SPEECH
B. Defamation and the Problem of False Statements ...........................................................27
UNITED STATES v. ALVAREZ ..........................................................................27
Notes and Questions ................................................................................................34
D. Anonymous Speech
DOE v. REED ...........................................................................................................36
Notes and Questions ................................................................................................46
E. Circulation of Petitions .....................................................................................................48
G. Public Employees .............................................................................................................49
I. Judicial Candidates’ Speech .............................................................................................49
WILLIAMS-YULEE v. FLORIDA BAR .............................................................50
Notes and Questions ................................................................................................60
Chapter 9 CAMPAIGN FINANCE
C. LIMITS ON CONTRIBUTIONS .....................................................................................62
F. THE BIPARTISAN CAMPAIGN REFORM ACT AND ITS AFTERMATH ...............65
G. PUBLIC FINANCING OF CAMPAIGNS
ARIZONA FREE ENTERPRISE CLUB’S FREEDOM CLUB PAC
v. BENNETT ................................................................................................71
Notes and Questions.................................................................................................82
H. MANDATORY DISCLOSURE OF CONTRIBUTIONS AND EXPENDITURES
Note on Disclosure of Political Spending ..............................................................83
Chapter 10 AT THE POLLS
B. Burdens on Casting Ballots ..............................................................................................87
C. Campaign-Free Zones Around Polling Places .................................................................88
Chapter 11 COUNTING THE VOTES
B. Constitutional Limits ........................................................................................................89
C. The Help America Vote Act .............................................................................................90
Chapter 12 REMEDYING ERRORS IN ELECTIONS
A. Introduction ......................................................................................................................93
B. Re-Votes and the Uniform Date for Federal Elections ....................................................93
D. State Remedies for Federal Elections ..............................................................................94
E. Public and Private Remedies
1. Federal Civil and Criminal Enforcement ....................................................................95
3. Remedies for the Wrongful Denial of the Right to Vote ............................................95
Authors’ Note on Recodification
Many of the statutes discussed in the Casebook have been reclassified into a new Title 52 of
the U.S. Code, entitled “Voting and Elections.” See Office of the Law Revision Counsel,
Editorial Reclassification: Title 52, United States Code, at:
http://uscode.house.gov/editorialreclassification/t52/index.html.
The citations in this Supplement reflect the recodification, but of course the original
Casebook retains the old citations. The forthcoming second edition of the Casebook will use the
new citations (sometimes adding them in brackets to court opinions that use the old citations).
Chapter 1
VOTING QUALIFICATIONS
B. Defining the Community and Excluding Outsiders
3. The Law-Breaking
Page 50. Replace Note 2 with the following:
In the years since Ramirez, more states have liberalized their laws and permitted (ex-)felons to
vote. Maine and Vermont even permit felons to vote during their periods of incarceration.
Recently, in 2007, Florida and Maryland changed their laws to permit most released felons to
regain their voting rights. And in 2014, Virginia made two changes that make it easier for felons
to become re-eligible to vote. Violent felons in that state used to have to wait five years before
they could petition to be eligible to vote, but that period has been reduced to three years. And
drug offenses have been reclassified as non-violent, so the waiting period does not apply at all
and Virginia’s drug felons can now petition for a restoration of their voting rights as soon as they
complete their prison time and pay court costs. See Larry O’Dell, Va. Gov. Changes Policy on
Felons’
Voting
Rights,
WASH.
TIMES
(Apr.
18,
2014),
at
http://www.washingtontimes.com/news/2014/apr/18/mcauliffe-alters-felons-voting-rightsprocedures/.
Some states, however, are moving in the opposite direction and making it more difficult for
felons to vote. Massachusetts and Utah recently disenfranchised currently incarcerated felons.
South Dakota has joined this counter-trend, extending its voting ban, which had prohibited
imprisoned felons and parolees from voting, to probationers as well. Further, in 2011, both
Florida and Iowa tightened their laws concerning the restoration of felons’ voting rights.
Whereas each had previously automatically restored the franchise to felons who had fulfilled all
the requirements of their sentences, now felons are required to petition individually for the
reestablishment of their voting rights.
Twelve states impose some form of voting restriction on felons even after they are no longer in
prison, on parole, or on probation, though these states vary in the particulars of their schemes.
One important difference is between the thirty-seven states that automatically restore felons’
rights after some period and the eleven that require felons to petition for the restoration of rights.
There other important differences as well. Arizona, for example, permanently disenfranchises
persons who have committed two felonies. Iowa disenfranchises people who have committed
“infamous” crimes, but it is not clear which crimes qualify. See Chiodo v. Section 43.24 Panel,
2014 Iowa Sup. LEXIS 41 (Iowa 2014). As an indication of how confusing the law can be in this
area, consider the breakdown of the Iowa Supreme Court justices in Chiodo: The plurality
opinion for three of the seven justices would hold that “infamous” crimes includes no
misdemeanors (such as a second offense for operating a vehicle while impaired, the aggravated
misdemeanor that was at issue in that case) and it includes only those felonies that suggest that
1
the felons would “tend to undermine the process of democratic governance through elections.”
Two other justices believed that “infamous” crimes should mean all felonies and no
misdemeanors. Another justice believed that the term included all felonies and some
misdemeanors as well. And the seventh justice was recused.
Between those states permanently disenfranchising all felons and those for which criminal
conviction does not affect voting rights at all, are the states that have adopted some temporary
exclusion of felons. Such measures include suspension of voting rights while the offender is in
prison, while the offender is in prison or on parole, and while the offender is in prison, on parole,
or on probation. Nebraska restores voting rights two years after felons’ release from prison,
parole, or probation. California bans felons from voting during their imprisonment and parole,
but it may be unclear whether certain offenders are “imprisoned.” Recently plaintiffs filed a
lawsuit challenging the secretary of state’s interpretation that “imprisoned” applied to felons who
are housed in county jails as well as those in state prisons. See Don Thompson, Group Sues
California, Wants Criminals To Be Able To Vote, THE REPORTER (Vacaville, Cal.) (Mar. 8,
2012), at http://www.sentencingproject.org/template/page.cfm?id=133. For summaries of states’
laws,
see
Sentencing
Project,
Felony
Disenfranchisement,
at
http://www.sentencingproject.org/template/page.cfm?id=133; Brennan Center for Justice,
Criminal
Disenfranchisement
Laws
Across
the
United
States,
at
http://www.brennancenter.org/sites/default/files/legacy/d/download_file_48642.pdf.
In addition to laws that have actually been enacted, there is a bewildering variety of laws that are
being considered by lawmakers in the several states. Consider this summary from 2012:
“South Dakota lawmakers have sent the governor a bill to block voting by felons on probation or
parole. However, legislators in New Jersey and New York are considering bills that would do the
opposite by letting parolees and probationers vote. Legislation pending in Tennessee would stop
requiring that convicts pay their restitution, court costs and child support before they can vote
again. But Washington state legislators are considering a bill that would add the same repayment
obligations that Tennessee may end. Some felons could vote absentee from their prison cells under
bills introduced in Hawaii and Tennessee. A South Carolina bill would block registered sex
offenders from voting at all. Lawmakers in New Jersey, New York and Pennsylvania could require
state officials to help offenders register to vote as they complete their incarceration, probation or
parole.”
Thompson, supra.
Page 51. Add to footnote 3:
See also Traci Burch, Did Disenfranchisement Laws Help Elect President Bush?: New Evidence
on the Turnout Rates and Candidate Preferences of Florida’s Ex-Felons, 34 POLITICAL
BEHAVIOR 1 (2012); Traci Burch, Turnout and Party Registration among Criminal Offenders in
the 2008 General Election, 45 LAW AND SOCIETY REV. 699 (2011); Alan Gerber et al., Felony
Status, Participation, and Political Reintegration: Results from a Field Experiment (working
paper 2013), available at http://huber.research.yale.edu/materials/44_paper.pdf; Vesla Weaver &
Amy E. Lerman, Political Consequences of the Carceral State, 104 AM. POL. SCI. REV. 817
(2010).
2
After assuming office, the Obama administration has continued its support for restoring felons’
voting rights. In 2014, Attorney General Holder “call[ed] upon state leaders and other elected
officials across the country to pass clear and consistent reforms to restore the voting rights of all
who have served their terms in prison or jail, completed their parole or probation, and paid their
fines.” Nicole Flatow, U.S. Attorney General: Time To Restore Voting Rights of Every Person
Who Has Completed Their [sic] Criminal Sentence, THINK PROGRESS (Feb. 11, 2014) at
http://thinkprogress.org/justice/2014/02/11/3277531/attorney-general-time-restore-voting-rightsperson-completed-criminal-sentence/.
Page 53. Add the following after Note 8:
8a. Some members of Congress have proposed legislation that would require states to reenfranchise convicted felons. Most proposals have received support overwhelmingly from
Democrats, but in 2014 Republican Rand Paul introduced a bill that would require states to
restore the voting rights of “non-violent” felons (a category that would be clarified by the
attorney general) one year after their release from prison or probation. Other proposals favored
by supporters of expanded voting rights for criminals do not carve out violent felons and do not
have the one-year delay. See Burgess Everett, Rand Paul Seeks To Expand Voting Rights to
Some Ex-Cons, POLITICO (June 22, 2014), at http://www.politico.com/story/2014/06/rand-paulvoting-rights-ex-felons-108156.html. Would such measures be constitutional ways of enforcing
the Fourteenth Amendment?
4. The Disinterested
Page 69. Insert the following after the second paragraph of Note 12:
The Supreme Court appears to have rejected Justice Black’s reasoning. In Arizona v. Inter
Tribal Council of Arizona, Inc., 570 U.S. __, 133 S. Ct. 2247 (2013), the Court held that
Arizona’s requirement that persons registering to vote present proof of citizenship was
preempted by a federal requirement in the National Voter Registration Act that states “accept and
use” a federal form which demanded no proof of citizenship. 52 U.S.C. § 20505. Arizona had
insisted that if the federal form prevented it from requiring such proof, it would be an
unconstitutional interference with the state power to determine voter qualifications. The Court
suggested that Arizona may well have been correct (see 133 S. Ct. at 2258-59 (“Arizona is
correct that it would raise serious constitutional doubts if a federal statute precluded a State from
obtaining the information necessary to enforce its voter qualifications.”), but that there was a
way to avoid the conflict: Arizona could demand that the Election Assistance Commission
amend the form to add a state-specific instruction telling Arizona registrants of the need to
present proof of citizenship.
For present purposes, the key question is the extent of Congress’s power to regulate the
registration process as part of its authority under the Elections Clause, U.S. CONST. art. I, § 4, cl.
1, to “make or alter . . . regulations concerning the “Times, Places and Manner of holding
Elections for Senators and Representatives.” Inter Tribal Council provided a bright-line rule:
“[T]he Elections Clause empowers Congress to regulate how federal elections are held, but not
who may vote in them.” 133 S. Ct. at 2257.
3
This rule, although consistent with the Clause itself, is inconsistent with the outcome in
Oregon v. Mitchell. Inter Tribal Council quoted approvingly from the dissent in Mitchell, which
argued that “[i]t is difficult to see how words could be clearer in stating what Congress can
control and what it cannot control. Surely nothing in these provisions lends itself to the view that
voting qualifications in federal elections are to be set by Congress.” 133 S. Ct. at 2258 (quoting
Mitchell, 400 U.S. at 210 (Harlan, J., concurring in part and dissenting in part)). Although Justice
Black’s opinion in Mitchell did conclude that Congress could invoke the Elections Clause to
require states to permit eighteen year-olds to vote, Inter Tribal Court brushed it aside: “That
result, which lacked a majority rationale, is of minimal precedential value here.” Inter Tribal
Council, 133 S. Ct. at 2258 n.8.
In Kobach v. United States Election Assistance Commission, 6 F. Supp. 3d 1252 (D. Kan.
2014), the district court followed the Supreme Court’s suggestion and held that the EAC was
required to include a proof-of-citizenship requirement among the state-specific instructions for
Kansas and Arizona on the NVRA form. The Tenth Circuit reversed, however, holding that the
EAC was “not compulsorily mandated to approve state-requested changes to the Federal Form.”
772 F.3d 1183 (10th Cir. 2014), cert. denied 2015 WL 1307634 (June 29, 2015).
Page 70. Insert the following after Note 12:
12a. States vary in their methods for selecting judges. Some states use the “Missouri
Plan,” or “merit selection,” one element of which is the use of commissions to screen potential
nominees. Details differ across states, but commonly the commission selects a certain number of
candidates, and the governor must choose from among the candidates approved by the
commission. The commission, therefore, has considerable power in the selection process.
The membership of the commissions is determined by a variety of methods in the states
using forms of the Missouri Plan, but lawyers—and in particular the organized bar—are
sometimes given disproportionate influence in the selection of commissioners. See Stephen J.
Ware, The Missouri Plan in National Perspective, 74 MO. L. REV. 751 (2009). Some states’
commissions, for example, have a certain number of members chosen by the organized bar; in
Kansas, a majority of the nine-member commission is elected by the bar. a
Does such a system violate the Equal Protection Clause, as interpreted in Kramer? See
Nelson Lund, May Lawyers Be Given the Power To Elect Those Who Choose Our Judges?
“Merit Selection” and Constitutional Law, 34 HARV. J.L. & PUB. POL’Y 1043 (2011). Cf.
Hellebust v. Brownback, 42 F.3d 1331 (10th Cir. 1994) (striking down Kansas’s procedure for
selecting members of the state’s Board of Agriculture because the procedure empowered
delegates from private agricultural associations to select members of the board).
Page 85. Add the following to footnote n:
For a similarly frivolous argument concerning candidates rather than voters, see Lindsay v.
Bowen, 750 F.3d 1061 (9th Cir. 2014) (rejecting the argument of a twenty-seven year-old who
claimed a constitutional right to be placed on the presidential ballot despite the Constitution’s
command that “[n]o Person except a natural born Citizen, or a Citizen of the United States, at the
a
The power granted to the bar may result in candidates approved by the commissions who are more ideologically
attuned to the interests of the organized bar than would be the case if the bar lacked such influence. See Brian T.
Fitzpatrick, The Politics of Merit Selection, 74 MO. L. REV. 675 (2009).
4
time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall
any Person be eligible to that Office who shall not have attained to the Age of thirty five Years,
and been fourteen Years a Resident within the United States”). U.S. CONST. art I, § 1, cl. 5.
5
Chapter 2
POLITICAL QUESTIONS
B. The Non-Justiciabilty of the Guarantee Clause
Page 116, insert the following after Note 1:
1a. While most cases seem to read Luther and Pacific States for the proposition that all legal
challenges on Guarantee Clause grounds are non-justiciable, that has not prevented
commentators from arguing that some current forms of direct democracy can violate the Clause.
See, e.g., Fred O. Smith, Due Process, Republicanism, and Direct Democracy, 89 N.Y.U. L.
REV. 582 (2014) (arguing that initiative process can violate the Guarantee Clause if it deprives
individuals of liberty or property); Jacob M. Heller, Note, Death by a Thousand Cuts: The
Guarantee Clause Regulation of State Constitutions, 62 STAN. L. REV. 1711 (2010) (arguing that
frequent use of the initiative in California arguably to micromanage what would otherwise be
legislative functions violates the Guarantee Clause); William R. Leinen, Note, Preserving
Republican Governance: An Essential Government Functions Exception to Direct Democratic
Measures, 52 WM. & MARY L. REV. 997 (2010) (making a similar argument).
C. “Well Developed and Familiar” Standards of Equal Protection
Page 156, add the following at the end of Note 1:
For an argument that the Court is right not to review partisan gerrymandering aggressively in
cases like Vieth, in part because the Court is not institutionally competent to decide the difficult
questions involved, and contrasting that to the purportedly easier case of Baker v. Carr itself, see
Luis Fuentes-Rohwer, Looking for a Few Good Philosopher Kings: Political Gerrymandering as
a Question of Institutional Competence, 43 CONN. L. REV. 1157 (2011).
Page 157, add the following at the end of Note 3:
For a similar critique of the Guaranty Clause, see Patrick A. Withers, Note, Pouring New Wine
Into Old Wineskins: The Guaranty Clause and a Federalist Jurisprudence of Voting Rights, 10
GEO. J. L. & PUB. POL’Y 185 (2012).
Page 157. Insert the following after Note 4:
4a. For a vigorous argument that the opinions in Vieth and earlier cases reveal that partisan
gerrymandering can have both positive and negative aspects, and that one of the former is that
such gerrymandering can be “constitutionally desirable” as a political safeguard of federalism,
6
see Franita Tolson, Partisan Gerrymandering as a Safeguard of Federalism, 2010 UTAH L. REV.
859. The author argues that the power to gerrymander congressional districts enables states to
ensure that congressional representatives are responsive to state interests.
Page 157. Insert the following at the end of Note 6:
For discussions of attempts to formulate apolitical redistricting processes, see Bruce E. Cain,
Redistricting Commissions: A Better Political Buffer?, 121 YALE L.J. 1808 (2012), and
Symposium, 5 DUKE J. CONST. L. & PUB. POL’Y 1 (2010) (contributions by Gerken, Buchler,
Huefner, Altman & McDonald, and Salling).
Page 158. Insert the following after Note 7.
7a. Following Vieth, lower courts have not found it easy to create or to apply judicially
manageable standards to regulate gerrymandering in congressional districts, see, e.g., Committee
For a Fair and Balanced Map v. Illinois State Board of Elections, 835 F. Supp. 2d 563 (N.D. Ill.
2011) (three-judge court) (per curiam) (rejecting as unmanageable proposed standard focusing
on both intent and effect to secure partisan advantage), or state legislative districts, see,
e.g., Radogno v. Illinois State Board of Elections, 2011 U.S. Dist. LEXIS 122053 (N.D. Ill.
2011) (three-judge court) (noting that Vieth and LULAC left law unclear, and holding that a
proposed standard based on the First Amendment, as suggested by Justice Kennedy in Vieth, was
unmanageable since redistricting does not restrict political expression or association), summarily
aff’d, 133 S. Ct. 103 (2012). See also Perez v. Perry, 2014 U.S. Dist. LEXIS 82115 (W.D. Tex.
2014) (three-judge court) (rejecting argument that partisan gerrymandering is unconstitutional).
Page 158. Insert the following at the end of Note 8:
Professor Pildes has concluded that “there is less evidence than one might think to suggest that
gerrymandered election districts, which might still be pernicious for any number of other
reasons, play a significant role in causing the rise of political polarization.” Richard H. Pildes,
Why The Center Does Not Hold: The Causes of Hyperpolarized Democracy in America, 99 CAL.
L. REV. 273, 307-08 (2011). Among other things, Pildes observed that non-gerrymandered
districts (such as for U.S. Senators) also have yielded less competitive elections, and that
members of Congress have been voting in increasingly polarized ways, whether or not they come
from competitive districts. For other work concluding that the effect of gerrymandering has been
overstated, see James B. Cottrill, The Effects of Non-Legislative Approaches to Redistricting on
Competition in Congressional Elections, 44 POLITY 32 (2012); Seth E. Masket et al., The
Gerrymanders are Coming! Legislative Redistricting Won’t Effect Competition or Polarization
Much, No Matter Who Does it, 45 PS: POL. SCI. & POL. 39 (2012).
7
Page 159. Add a new Note 11:
In 2015, the Court again reached the merits of a dispute that could have been considered nonjusticiable. Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S.
Ct. 2652 (2015), held that Arizona could, by initiative, vest redistricting authority in the
Commission even though the Constitution provided that “[t]he Times, Places, and Manner of
holding Elections for Senators and Representatives, shall be prescribed in each State by the
Legislature thereof.” U.S. CONST. art. I, § 4, cl. 1. The Court held that the Arizona Legislature
had standing to object to the loss of its redistricting power, but on the merits the Court held that
the constitutional term “Legislature” could include any body exercising the legislative power of
the state.
8
Chapter 3
ONE PERSON, ONE VOTE
B. The Constitutional Basis for One Person, One Vote
Page 192. Add the following after Note 9:
10. In distributing legislative seats, some states count prison populations as part of the
districts in which the prisons are located, even though the prisoners are not permitted to vote.
The effect is to give greater voting power to the others living in those districts, including prison
guards’ families, whose interests may not coincide with those of the inmates. By the same token,
the areas in which the inmates used to live are not granted the influence they would possess if the
prisoners were counted as residing in the last place they lived before imprisonment. Does this
practice violate one person, one vote? Does it matter that minority races are disproportionately
represented in prison populations and that prisons are often located in rural, mainly white, areas?
See Dale Ho, Captive Constituents: Prison-Based Gerrymandering and the Current Redistricting
Cycle, 22 STAN. L. & POL’Y REV. 355 (2011).
In Fletcher v. Lamone, __ U.S. __ (2012), 133 S. Ct. 29, summarily aff’g 831 F. Supp. 2d
887 (D. Md. 2011) (three-judge court), Maryland adopted a redistricting plan that counted
prisoners as residing at their last addresses before incarceration. The plan was challenged as
diluting minority communities’ voting strength (even though Maryland’s intent was to augment
it). The district court turned away the challenge, holding that Maryland could constitutionally
treat inmates as residing at their pre-prison addresses even if it did not accord similar treatment
to members of the military and students (who, as the court pointed out, presented different
situations from prisoners in that they could vote during their service and schooling). The
Supreme Court unanimously summarily affirmed.
C. Applying the Constitutional Standards: How Equal Is Equal
Enough?
Page 200. Add the following to the end of Note 3:
In Tennant v. Jefferson County Commission, 567 U.S. __, 133 S. Ct. 3 (2012), the Supreme
Court applied Daggett to uphold a West Virginia districting plan with a population variance of
0.79%. Alternative plans with smaller variations were considered, but none was effective at
achieving three of the state’s objectives: keeping counties intact, keeping incumbents in different
districts, and limiting population shifts from the previous districts. The Court approved each of
those objectives as “valid” and “neutral,” and applied a balancing test to hold that they sufficed
to justify the 0.79% population variance: “[G]iven the small ‘size of the deviations,’ as balanced
9
against ‘the importance of the State’s interests, the consistency with which the plan as a whole
reflects those interests.’ and the lack of available ‘alternatives that might substantially vindicate
those interests yet approximate population equality more closely,’ [the plan] is justified by the
State’s legitimate objectives.” Id. at 8 (quoting Daggett, 462 U.S. at 741).
10
Chapter 4
PRECLEARANCE UNDER SECTION 5 OF THE VOTING
RIGHTS ACT
B. Voting Standards, Practices, and Procedures
Page 235. Add the following after Note 2:
2a. You know from reading Chapter 3 that states must redraw districts at least every ten
years to account for population shifts reported in the census. Allen, however, held that changes to
voting procedures—including redrawn districts—may not go into effect until they have obtained
preclearance. As a result, covered jurisdictions find themselves between a rock and a hard place,
being constitutionally compelled to redraw districts but being unable to make such changes
effective until the preclearance process is complete.
Perry v. Perez, 565 U.S. __, 132 S. Ct. 934 (2012), presented such a dilemma. As a result of
the 2010 census, Texas (a covered jurisdiction) received four additional congressional districts
and was required to draw new district lines before the 2012 elections. The state passed a plan and
submitted it to the D.C. District Court for preclearance, but there the process stalled. Not only
was no timely decision on preclearance forthcoming, but the plan was challenged in a separate
suit as violating the Constitution and § 2 of the Voting Rights Act for allegedly diluting the
strength of minorities’ votes. That suit likewise would not be resolved in time to make whatever
adjustments would be required before the 2012 elections.
In reviewing the case, a nearly unanimous Supreme Court reaffirmed what it had earlier
written in Connor v. Finch, 431 U.S. 407 (1977)—that where a state’s existing districts have
been rendered unconstitutional by a subsequent census, a federal district court must itself draw
interim districts if the political process is unable to yield new districts on its own. Very well. But
what standards should the district court use in crafting an interim plan? In particular, what
consideration should be given to the plan that has been passed but that is awaiting preclearance?
The Court responded that even though such a plan may not have legal effect itself, it is an
“important starting point” for the district court to use in devising an interim plan. “It provides
important guidance that helps ensure that the district court appropriately confines itself to
drawing interim maps that comply with the Constitution and the Voting Rights Act, without
displacing legitimate state policy judgments with the court’s own preferences.” Perez, 132 S. Ct
at 941.
Recall, however, that the state’s new plan not only had not yet received preclearance; it had
also been challenged as violating § 2 and the Equal Protection Clause. If the district court simply
adopted the state’s plan, it could be giving effect to an illegal or unconstitutional plan. If, on the
other hand, the district court shied away from the state’s plan, it would be preventing a state’s
policies from having effect simply because of an allegation of illegality—an action that would
have federalism costs and would encourage the filing of meritless allegations in the future.
Further, it the district court itself were to decide for itself whether the state’s plan should be
precleared, it would be usurping the role assigned by the VRA to the D.C. District Court and the
Attorney General.
11
The Supreme Court’s answer was that the district court should peek at the merits of the
preclearance issue and any other challenges to the new districts, but should back away from
actually deciding their legality. In the Court’s words, “Where a State’s plan faces challenges
under the Constitution or §2 of the Voting Rights Act, a district court should still be guided by
that plan, except to the extent those legal challenges are shown to have a likelihood of success on
the merits.” Id. at 942. Similarly with regard to the preclearance issue, the state’s plan should
provide guidance to the district court except to the extent it contains elements “that stand a
reasonable probability of failing to gain § 5 preclearance. And by ‘reasonable probability’ this
Court means in this context that the § 5 challenge is not insubstantial.” Id.
Eight members of the Court joined the per curiam opinion; Justice Thomas concurred in the
judgment, arguing that § 5 was unconstitutional.
Page 235. Add the following after Note 4:
4a. Several states—including some covered jurisdictions—have recently passed laws
requiring voters to show identification (often photo identification) at the polls. Critics charge that
the laws disproportionately burden the elderly, the poor, and racial minorities. Nevertheless, the
Supreme Court upheld one such law against a facial challenge, see Crawford v. Marion County
Election Bd., 553 U.S. 181 (2008) [p. 1082]. The Bush Justice Department precleared Georgia’s
new photo-ID law in 2005, but the Obama Justice Department has denied preclearance to new
laws in South Carolina and Texas, causing those states to seek preclearance in the D.C. District
Court. Preclearance is pending for additional laws in Alabama, Mississippi, New Hampshire, and
Virginia. According to the Justice Department in the Texas case, minorities are less likely than
whites to possess IDs. Further, according to the Justice Department, obtaining an ID is likely to
be more burdensome for minorities, who disproportionately lack access to cars—especially in
counties not served by public transportation. Should such facts, if true, prevent those states from
adopting such laws? See Daniel P. Tokaji, If It’s Broke, Fix It: Improving Voting Rights Act
Preclearance, 59 HOW. L.J. 785 (2006). If voter-ID laws do produce a discriminatory effect
leading to denials of preclearance, does that affect the question of the VRA’s constitutionality?
C. Retrogression
Page 271: Add a new Note after Note 4:
4a. Under the 2006 amendments, how is one to determine whether a change in an election
law would have the effect of “diminishing [minorities’ ability] to elect their preferred candidates
of choice”? Alabama Legislative Black Caucus v. Alabama, 575 U.S. __, __, 135 S. Ct. 1257
(2015), involved a redistricting plan put in place by the Alabama legislature. In an attempt to
gain preclearance, the state attempted to ensure that the new plan not only preserved the number
of majority-minority districts, but also minorities’ voting strength within each majority-minority
district. For example, if a district under the previous plan was 70% minority, the line-drawers
attempted to ensure that the district would continue to be 70% minority. Otherwise, Alabama
feared, the new plan would diminish minorities’ voting strength. After all, as we have learned,
because not all eligible voters turn out, and because of crossover votes, a slim population
majority in a district hardly ensures that a group will be able to elect its candidates of choice.
12
Thus, a reduction of minority population from 70% to, say, 55% in a district could diminish the
minority’s ability to elect its candidates of choice, even as the number of majority-minority
districts was maintained.
The Supreme Court held that § 5 of the VRA was not so constraining. In the Court’s view,
the question of the diminishment of minority voting strength required a more “complex” analysis
than simply a comparison of the percentage of minorities in a district before and after the district
lines have been redrawn. Id. at 1273. Rather, it requires courts to “take account of all significant
circumstances” bearing on minorities’ voting power. id. Thus, while reducing the percentage of
minorities in a district might decrease that group’s ability to elect its preferred candidates, it
might not.
In dissent, Justice Thomas criticized the Court’s vague standard as “requir[ing] States to
analyze race even more exhaustively, not less, by accounting for black voter registration and
turnout statistics.” Id. at 1288 (Thomas, J., dissenting). Is Justice Thomas correct that “States
covered by § 5 have been whipsawed, first required to create ‘safe’ majority-black districts, then
told not to ‘diminis[h]’ the ability to elect, and now told they have been too rigid in preventing
and ‘diminishing’ of the ability to elect”? Id.
D. THE CONSTITUTIONALITY OF SECTION 5 REVISITED
Page 272: Replace the material from the heading through page 283 with the following:
We saw in Chapter 1 that the Supreme Court upheld § 5 against a constitutional challenge
shortly after the adoption of the Voting Rights Act. South Carolina v. Katzenbach, 383 U.S. 301
(1966) [p. 14]. The question of § 5’s constitutionality would return to the Court more than forty
years later, after Congress in 2006 reauthorized the VRA for another twenty-five years but
continued to use the same coverage formula that had been in place since 1975. Under that
formula, a jurisdiction would be subject to preclearance if it had used voting tests and it had less
than 50% voter registration or turnout in 1964, 1968, or 1972.
In Northwest Austin Municipal Utility District No. One v. Holder, 557 U.S. 193 (2009), the
utility district, located in Texas, complained that Congress could not constitutionally require
preclearance on the basis of an outdated coverage formula that rendered the state a covered
jurisdiction. The Court dodged the constitutional issue, instead holding that the district was
eligible to bail out of § 5’s preclearance obligations if it could show that it met the requirements
of 52 U.S.C. § 10303(a)(1): that within the preceding ten years it had not used a voting test, had
not been denied preclearance, and had not been found guilty of other voting rights violations.
Even though the case thus turned on the statutory bailout question, the Court warned that
Congress may have exceeded its constitutional power in passing the 2006 reauthorization:
* * * Things have changed in the South. Voter turnout and registration rates now approach parity.
Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at
unprecedented levels.
These improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a
monument to its success. Past success alone, however, is not adequate justification to retain the preclearance
13
requirements. It may be that these improvements are insufficient and that conditions continue to warrant
preclearance under the Act. But the Act imposes current burdens and must be justified by current needs.
The Act also differentiates between the States, despite our historic tradition that all the States enjoy “equal
sovereignty.” Distinctions can be justified in some cases. * * * But a departure from the fundamental principle
of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to
the problem that it targets.”
557 U.S. at 202-03. In 2013, the Court faced another constitutional challenge to preclearance,
this time by an Alabama county that was ineligible for bailout because it had been denied
preclearance within the prior ten years. The Court, therefore, was presented with the
constitutional question that it had avoided in Northwest Austin.
SHELBY COUNTY, ALABAMA v. HOLDER
Supreme Court of the United States
570 U.S. __, 133 S. Ct. 2612, 186 L. Ed. 2d 651 (2013)
CHIEF JUSTICE ROBERTS delivered the opinion of the Court [in which JUSTICE SCALIA,
JUSTICE KENNEDY, JUSTICE THOMAS, and JUSTICE ALITO joined].
The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary
problem. Section 5 of the Act required States to obtain federal permission before enacting any
law relating to voting—a drastic departure from basic principles of federalism. And § 4 of the
Act applied that requirement only to some States—an equally dramatic departure from the
principle that all States enjoy equal sovereignty. This was strong medicine, but Congress
determined it was needed to address entrenched racial discrimination in voting * * *. Reflecting
the unprecedented nature of these measures, they were scheduled to expire after five years.
Nearly 50 years later, they are still in effect; indeed, they have been made more stringent, and
are now scheduled to last until 2031. There is no denying, however, that the conditions that
originally justified these measures no longer characterize voting in the covered jurisdictions. By
2009, “the racial gap in voter registration and turnout [was] lower in the States originally covered
by § 5 than it [was] nationwide.” Northwest Austin Municipal Util. Dist. No. One v. Holder, 557
U.S. 193, 203-04 (2009). Since that time, Census Bureau data indicate that African-American
voter turnout has come to exceed white voter turnout in five of the six States originally covered
by § 5, with a gap in the sixth State of less than one half of one percent.
At the same time, voting discrimination still exists; no one doubts that. The question is
whether the Act’s extraordinary measures, including its disparate treatment of the States,
continue to satisfy constitutional requirements. As we put it a short time ago, “the Act imposes
current burdens and must be justified by current needs.” Northwest Austin, 557 U.S., at 203.
***
In 1965, the States could be divided into two groups: those with a recent history of voting
tests and low voter registration and turnout, and those without those characteristics. Congress
based its coverage formula on that distinction. Today the Nation is no longer divided along those
lines, yet the Voting Rights Act continues to treat it as if it were.
The Government’s defense of the formula is limited. First, the Government contends that the
formula is “reverse-engineered”: Congress identified the jurisdictions to be covered and then
came up with criteria to describe them. Under that reasoning, there need not be any logical
relationship between the criteria in the formula and the reason for coverage; all that is necessary
is that the formula happen to capture the jurisdictions Congress wanted to single out.
The Government suggests that [South Carolina v.] Katzenbach [383 U.S. 301 (1966)] [p. 14]
14
sanctioned such an approach, but the analysis in Katzenbach was quite different. Katzenbach
reasoned that the coverage formula was rational because the “formula . . . was relevant to the
problem”: “Tests and devices are relevant to voting discrimination because of their long history
as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that
widespread disenfranchisement must inevitably affect the number of actual voters.” 383 U.S., at
329, 330.
Here, by contrast, the Government’s reverse-engineering argument does not even attempt to
demonstrate the continued relevance of the formula to the problem it targets. And in the context
of a decision as significant as this one—subjecting a disfavored subset of States to “extraordinary
legislation otherwise unfamiliar to our federal system,” Northwest Austin, [557 U.S.,] at 211—
that failure to establish even relevance is fatal.
The Government falls back to the argument that because the formula was relevant in 1965, its
continued use is permissible so long as any discrimination remains in the States Congress
identified back then—regardless of how that discrimination compares to discrimination in States
unburdened by coverage. This argument does not look to “current political conditions,”
Northwest Austin, supra, at 203, but instead relies on a comparison between the States in 1965.
That comparison reflected the different histories of the North and South. It was in the South that
slavery was upheld by law until uprooted by the Civil War, that the reign of Jim Crow denied
African–Americans the most basic freedoms, and that state and local governments worked
tirelessly to disenfranchise citizens on the basis of race. The Court invoked that history—rightly
so—in sustaining the disparate coverage of the Voting Rights Act in 1966. See Katzenbach,
supra, at 308 (“The constitutional propriety of the Voting Rights Act of 1965 must be judged
with reference to the historical experience which it reflects.”).
But history did not end in 1965. By the time the Act was reauthorized in 2006, * * * largely
because of the Voting Rights Act, voting tests were abolished, disparities in voter registration
and turnout due to race were erased, and African–Americans attained political office in record
numbers. And yet the coverage formula that Congress reauthorized in 2006 ignores these
developments, keeping the focus on decades-old data relevant to decades-old problems, rather
than current data reflecting current needs.
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. To
serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be
singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the
past. We made that clear in Northwest Austin, and we make it clear again today. * * *
* * * The dissent [in attempting to justify the disparate coverage under § 4] relies on
“second-generation barriers,” which are not impediments to the casting of ballots, but rather
electoral arrangements that affect the weight of minority votes. That does not cure the problem.
Viewing the preclearance requirements as targeting such efforts simply highlights the
irrationality of continued reliance on the § 4 coverage formula, which is based on voting tests
and access to the ballot, not vote dilution. We cannot pretend that we are reviewing an updated
statute, or try our hand at updating the statute ourselves, based on the new record compiled by
Congress. Contrary to the dissent’s contention, we are not ignoring the record; we are simply
recognizing that it played no role in shaping the statutory formula before us today. * * *
There is no valid reason to insulate the coverage formula from review merely because it was
previously enacted 40 years ago. If Congress had started from scratch in 2006, it plainly could
15
not have enacted the present coverage formula. It would have been irrational for Congress to
distinguish between States in such a fundamental way based on 40–year–old data, when today’s
statistics tell an entirely different story. And it would have been irrational to base coverage on
the use of voting tests 40 years ago, when such tests have been illegal since that time. But that is
exactly what Congress has done. * * *
Our decision in no way affects the permanent, nationwide ban on racial discrimination in
voting found in § 2. We issue no holding on § 5 itself, only on the coverage formula. Congress
may draft another formula based on current conditions. Such a formula is an initial prerequisite
to a determination that exceptional conditions still exist justifying such an “extraordinary
departure from the traditional course of relations between the States and the Federal
Government.” Our country has changed, and while any racial discrimination in voting is too
much, Congress must ensure that the legislation it passes to remedy that problem speaks to
current conditions.
The judgment of the Court of Appeals is reversed.
It is so ordered.
JUSTICE THOMAS, concurring.
I join the Court’s opinion in full but write separately to explain that I would find § 5 of the
Voting Rights Act unconstitutional as well. * * *
While the Court claims to “issue no holding on § 5 itself,” its own opinion compellingly
demonstrates that Congress has failed to justify “current burdens” with a record demonstrating
“current needs.” By leaving the inevitable conclusion unstated, the Court needlessly prolongs the
demise of that provision. For the reasons stated in the Court’s opinion, I would find § 5
unconstitutional.
JUSTICE GINSBURG, with whom JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN
join, dissenting.
In the Court’s view, the very success of § 5 of the Voting Rights Act demands its dormancy.
Congress was of another mind. Recognizing that large progress has been made, Congress
determined, based on a voluminous record, that the scourge of discrimination was not yet
extirpated. The question this case presents is who decides whether, as currently operative, § 5
remains justifiable, this Court, or a Congress charged with the obligation to enforce the postCivil War Amendments “by appropriate legislation.” With overwhelming support in both
Houses, Congress concluded that, for two prime reasons, § 5 should continue in force, unabated.
First, continuance would facilitate completion of the impressive gains thus far made; and second,
continuance would guard against backsliding. Those assessments were well within Congress’
province to make and should elicit this Court’s unstinting approbation. * * *
Until today, in considering the constitutionality of the VRA, the Court has accorded
Congress the full measure of respect its judgments in this domain should garner. South Carolina
v. Katzenbach supplies the standard of review: “As against the reserved powers of the States,
Congress may use any rational means to effectuate the constitutional prohibition of racial
discrimination in voting.” 383 U.S., at 324. Faced with subsequent reauthorizations of the VRA,
the Court has reaffirmed this standard. E.g., City of Rome [v. United States], 446 U.S. [156,] 178
[(1980)]. Today’s Court does not purport to alter settled precedent establishing that the
dispositive question is whether Congress has employed “rational means.”
For three reasons, legislation reauthorizing an existing statute is especially likely to satisfy
16
the minimal requirements of the rational-basis test. First, when reauthorization is at issue,
Congress has already assembled a legislative record justifying the initial legislation. Congress is
entitled to consider that preexisting record as well as the record before it at the time of the vote
on reauthorization. This is especially true where, as here, the Court has repeatedly affirmed the
statute’s constitutionality and Congress has adhered to the very model the Court has upheld.
Second, the very fact that reauthorization is necessary arises because Congress has built a
temporal limitation into the Act. It has pledged to review, after a span of years (first 15, then 25)
and in light of contemporary evidence, the continued need for the VRA. b
Third, a reviewing court should expect the record supporting reauthorization to be less stark
than the record originally made. Demand for a record of violations equivalent to the one earlier
made would expose Congress to a catch–22. If the statute was working, there would be less
evidence of discrimination, so opponents might argue that Congress should not be allowed to
renew the statute. In contrast, if the statute was not working, there would be plenty of evidence
of discrimination, but scant reason to renew a failed regulatory regime.
This is not to suggest that congressional power in this area is limitless. It is this Court’s
responsibility to ensure that Congress has used appropriate means. The question meet for judicial
review is whether the chosen means are “adapted to carry out the objects the amendments have
in view.” Ex parte Virginia, 100 U.S. 339, 346 (1880). The Court’s role, then, is not to substitute
its judgment for that of Congress, but to determine whether the legislative record sufficed to
show that “Congress could rationally have determined that [its chosen] provisions were
appropriate methods.” City of Rome, 446 U.S., at 176–177. * * *
The 2006 reauthorization of the Voting Rights Act fully satisfies th[is] standard[.] * * *
I begin with the evidence on which Congress based its decision to continue the preclearance
remedy. The surest way to evaluate whether that remedy remains in order is to see if
preclearance is still effectively preventing discriminatory changes to voting laws. On that score,
the record before Congress was huge. In fact, Congress found there were more DOJ objections
between 1982 and 2004 (626) than there were between 1965 and the 1982 reauthorization (490).
All told, between 1982 and 2006, DOJ objections blocked over 700 voting changes based on
a determination that the changes were discriminatory. Congress found that the majority of DOJ
objections included findings of discriminatory intent and that the changes blocked by
preclearance were “calculated decisions to keep minority voters from fully participating in the
political process.” On top of that, over the same time period the DOJ and private plaintiffs
succeeded in more than 100 actions to enforce the § 5 preclearance requirements.
In addition to blocking proposed voting changes through preclearance, DOJ may request
more information from a jurisdiction proposing a change. In turn, the jurisdiction may modify or
withdraw the proposed change. The number of such modifications or withdrawals provides an
indication of how many discriminatory proposals are deterred without need for formal objection.
Congress received evidence that more than 800 proposed changes were altered or withdrawn
since the last reauthorization in 1982. Congress also received empirical studies finding that
DOJ’s requests for more information had a significant effect on the degree to which covered
jurisdictions “compl[ied] with their obligatio[n]” to protect minority voting rights.
Congress also received evidence that litigation under § 2 of the VRA was an inadequate
substitute for preclearance in the covered jurisdictions. Litigation occurs only after the fact, when
b
Although the preclearance provisions were reauthorized for twenty-five years, 52 U.S.C. § 10303(a)(7) provides
that “[t]he Congress shall reconsider the provisions of this section at the end of the fifteen-year period following the
effective date of the [2006] amendments * * *.” [-Eds.]
17
the illegal voting scheme has already been put in place and individuals have been elected
pursuant to it, thereby gaining the advantages of incumbency. An illegal scheme might be in
place for several election cycles before a § 2 plaintiff can gather sufficient evidence to challenge
it. And litigation places a heavy financial burden on minority voters. Congress also received
evidence that preclearance lessened the litigation burden on covered jurisdictions themselves,
because the preclearance process is far less costly than defending against a § 2 claim, and
clearance by DOJ substantially reduces the likelihood that a § 2 claim will be mounted. * * *
I turn next to the evidence on which Congress based its decision to reauthorize the coverage
formula in § 4(b). * * * By [2006], the formula had been in effect for many years, and all of the
jurisdictions covered by it were “familiar to Congress by name.” The question before Congress:
Was there still a sufficient basis to support continued application of the preclearance remedy in
each of those already-identified places? There was at that point no chance that the formula might
inadvertently sweep in new areas that were not the subject of congressional findings. And
Congress could determine from the record whether the jurisdictions captured by the coverage
formula still belonged under the preclearance regime. If they did, there was no need to alter the
formula. * * *
[E]ven after 40 years and thousands of discriminatory changes blocked by preclearance,
conditions in the covered jurisdictions demonstrated that the formula was still justified by
“current needs.” Northwest Austin, 557 U.S., at 203. * * * Although covered jurisdictions
account for less than 25 percent of the country’s population, * * * they accounted for 56 percent
of successful § 2 litigation since 1982. Controlling for population, there were nearly four times
as many successful § 2 cases in covered jurisdictions as there were in noncovered jurisdictions.
[F]urther[,] § 2 lawsuits are more likely to succeed when they are filed in covered jurisdictions
than in noncovered jurisdictions. From these findings—ignored by the Court—Congress
reasonably concluded that the coverage formula continues to identify the jurisdictions of greatest
concern. * * *
Congress was satisfied that the VRA’s bailout mechanism provided an effective means of
adjusting the VRA’s coverage over time. Nearly 200 jurisdictions have successfully bailed out of
the preclearance requirement, and DOJ has consented to every bailout application filed by an
eligible jurisdiction since the current bailout procedure became effective in 1984. The bail-in
mechanism has also worked. Several jurisdictions have been subject to federal preclearance by
court orders, including the States of New Mexico and Arkansas.
This experience exposes the inaccuracy of the Court’s portrayal of the Act as static,
unchanged since 1965. Congress designed the VRA to be a dynamic statute, capable of adjusting
to changing conditions. True, many covered jurisdictions have not been able to bail out due to
recent acts of noncompliance with the VRA, but that truth reinforces the congressional judgment
that these jurisdictions were rightfully subject to preclearance, and ought to remain under that
regime. * * *
For the reasons stated, I would affirm the judgment of the Court of Appeals.
Notes and Questions
1. The Court’s holding striking down the coverage formula is grounded in “the principle
that all States enjoy equal sovereignty”—a principle the Court deemed “highly pertinent in
assessing * * * disparate treatment of States” by Congress. Using that principle, the Court held
that the coverage formula could not stand unless the formula was at least a rational way of
identifying states where voting discrimination was the most problematic. Is it appropriate to
18
presume the unconstitutionality of laws that treat states differently? The dissent countered that it
is common to treat states differently, and that the presumption should apply only in the context in
which it was first developed—the entry of new states into the Union.
2. The United States argued that the coverage formula resulted in identifying states with
voting discrimination. The Court, however, held that it was not enough simply for the formula to
result in outcomes that make some sense; rather, the formula itself must be “relevan[t] * * * to
the problem it targets.” That is, even if the covered jurisdictions happen to be the ones where
voting discrimination is most prevalent currently, the voting data from 1964, 1968, and 1972 do
not have anything to do with that fact.
Why should this make any difference? If a state has a voting-discrimination problem, why
does it matter if Congress identified that state based on its history, the number of letters in the
state’s name, or the flip of a coin? Alternatively, would the constitutionality of § 5 be affected if
Congress had specified the covered jurisdictions by name rather than relying on the coverage
formula in § 4(b)? In other words, should it matter that the coverage formula relies on old data if
those data still identify jurisdictions for which discrimination continues to be a problem?
3. Is it appropriate for a court to defer to Congress’s judgment that the reason there have
been few recent instances of overt discrimination in covered jurisdictions is § 5’s deterrent
effect? The Court rejected the deterrence argument because it would render § 5 “effectively
immune from scrutiny; no matter how ‘clean’ the record of covered jurisdictions, the argument
could always be made that it was deterrence that accounted for the good behavior” (133 S. Ct. at
2627). The dissent argued that Congress’s conclusions should be evaluated deferentially under
the rational-basis test. Which side has the better of the argument? Would accepting deterrence
allow Congress to escape limits on its power, or (as the dissent charged) would failing to accept a
deterrence argument be “like throwing away your umbrella in a rainstorm because you are not
getting wet” (id. at 2650 (Ginsburg, J., dissenting))?
4. More generally, should Congress be able to assume that where there is smoke there is
fire? That is, if Congress cannot point to many constitutional violations (because, for example,
there is no showing of the jurisdiction’s discriminatory intent), should it nonetheless be able to
act on its belief that preclearance is necessary to prevent constitutional violations?
5. As mentioned above in Note 3, the dissent argued that the 2006 reauthorization should be
evaluated under the rational-basis test. The Court was not so clear about whether the rationality
standard or the congruence-and-proportionality standard from City of Boerne v. Flores was more
appropriate. Rather, the Court held that the law failed to meet even the rationality standard, and
so it was unnecessary to address whether a stricter standard might be more appropriate.
6. Would Congress have the power to apply the preclearance requirement throughout the
entire country?
7. Perhaps the most striking aspect of Shelby County is the Court’s refusal to engage in the
debate about the proof of voting discrimination in the covered jurisdictions. Whereas the dissent
at some length discussed Congress’s evidence about “second-generation” barriers, DOJ
objections, requests for more information, § 2 suits, and the like, the majority brushed off all
those statistics because they did not relate to the coverage formula that Congress used in § 4. Is
the Court correct to treat those data as beside the point? If Congress did update § 4 to rely on
current conditions, and if it used § 2 suits as an indication of those current needs, would
Congress be exceeding its power because § 2 violations (unlike constitutional violations) can be
proven without a showing of discriminatory intent?
19
8. With the demise of the coverage formula in § 4 of the VRA, the bail-in provisions of § 3
have assumed greater prominence. According to § 3, “[i]f in any proceeding instituted by the
Attorney General or an aggrieved person under any statute to enforce the voting guarantees of
the fourteenth or fifteenth amendment in any State or political subdivision the court finds that
violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred
within the territory of such State or political subdivision, the court, in addition to such relief as it
may grant, shall retain jurisdiction for such period as it may deem appropriate and during such
period” preclearance shall be required. 52 U.S.C. § 10302(c). See generally Travis Crum, Note,
The Voting Rights Act’s Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance,
119 YALE L.J. 1992 (2010).
Thus, § 3 permits a jurisdiction-by-jurisdiction identification of the places where
preclearance is required, rather than the wholesale approach of § 4, which involved application
of the formula struck down in Shelby County. Further, the decision whether to require
preclearance under § 3 belongs with the courts. So far, most jurisdictions to have been bailed-in
accepted that status through a consent decree. Only one jurisdiction—Arkansas—has been
bailed-in without such an agreement. See Jeffers v. Clinton, 740 F. Supp. 585 (E.D. Ark. 1990).
Note that the bail-in procedure requires a finding of a constitutional violation—not simply a
violation of the prophylactic guarantees of § 2, which protect minorities from laws that result in
an abridgement of their ability to elect their candidates of choice. This standard will make it
difficult for “aggrieved person[s]” to win a bail-in suit and requires the court to find intentional
discrimination. But while it may be difficult to force a state or political subdivision to be bailedin, perhaps it is not impossible.
Immediately after Shelby County was decided, intervenors in a case challenging redistricting
in Texas moved to have that state bailed-in. See Defendant-Intervenors’ Motion for Leave to File
Amended Answer and Counterclaim, Texas v. United States, No. 1:11-cv-1303 (D.D.C.) (July 3,
2013). The Department of Justice in a different case has joined in making the same argument.
See Statement of Interest of the United States with Respect to Section 3(c) of the Voting Rights
Act, Perez v. Texas, No. 5:11-cv-00360 (W.D. Tex.) (July 25, 2013); Charlie Savage & Adam
Liptak, Holder Wants Texas To Clear Voting Changes with the U.S., N.Y. TIMES (July 25, 2013),
available at http://www.nytimes.com/2013/07/26/us/holder-wants-texas-to-clear-voting-changeswith-the-us.html?_r=0. The movants have argued that because Texas had earlier been found to
have engaged in intentional discrimination in redistricting following the 2010 census, Texas v.
United States, 887 F. Supp. 2d 133, 161, 166 (D.D.C. 2012), it is the paradigmatic example of
the kind of jurisdiction that should be bailed-in. The cases are pending.
9. In response to Shelby County, some members of Congress have introduced a bill that
would amend the VRA’s coverage formula and effect other changes. The bill is referred to as the
Voting Rights Amendments Act of 2014, and both the bill and a summary are available at this
link: https://beta.congress.gov/bill/113th-congress/house-bill/3899. The new coverage formula is
based on a rolling fifteen-year calendar; states would be covered if they have committed five
federal voting-rights violations within the preceding fifteen years. Such a provision would
presently cover only four states: Georgia, Louisiana, Mississippi, and Texas. (Political
subdivisions would be covered if they have committed three federal statutory violations in the
same fifteen-year period.) This rolling fifteen-year calendar was designed to address the Shelby
County Court’s insistence that Congress must be able to point to current evidence – and not just
voting data from the 1964, 1968, and 1972 elections – to justify overriding the equal sovereignty
of states.
20
The amended coverage formula might not solve the VRA’s constitutional problems,
however. In the first place, as stated above, the coverage formula under § 4 of the proposed
amendment would be based on violations of federal statutory law, such as Section 2 of the VRA
– not merely violations of the Federal Constitution. Because those statutes sometimes prohibit
laws that have a discriminatory effect and not just those laws that are motivated by a
discriminatory purpose, states might be covered under the proposed VRA amendments without
having committed constitutional violations. In the second place, the amendments would expand
the bail-in provisions of Section 3 to permit jurisdictions to be covered on the basis of statutory
violations not necessarily indicative of discriminatory purpose.
21
Chapter 5
DISTRICTING BY RACE
E. Constitutional Constraints on Majority-Minority Districting
Page 393. Add a new Note after Note 4:
4a. As Hays implied, racial-gerrymandering claims under Shaw focus on particular districts;
it is not sufficient to claim that a state’s redistricting plan as a whole was infected with racial
considerations. Alabama Legislative Black Caucus v. Alabama, 575 U.S. __, __, 135 S. Ct. 1257,
1265 (2015).
Page 406. Add a new Note after Note 3:
3a. Under Miller v. Johnson, race cannot be the “predominant factor” in drawing district
lines. But “predominant” relative to what other factors? Suppose that a state redraws its districts
and considers race, but the one consideration that is given the most consideration is the need to
place equal numbers of voters in the districts. In such a situation, would equality of population be
the factor that “predominates”? No. The Court held in Alabama Legislative Black Caucus v.
Alabama, 575 U.S. __, __, 135 S. Ct. 1257, 1270 (2015), that “an equal population goal is not
one factor among others to be weighed against the use of race to determine whether race
‘predominates’”—even though, “in light of the Constitution’s demands, th[e] role [of population
equality] may often prove ‘predominant’ in the ordinary sense of that word.” “Rather, it
[population equality] is part of the redistricting background, taken as a given, when determining
whether race, or other factors, predominate in a legislator’s determination as to how equal
population objectives will be met.”
If population equality is not one of the considerations to be weighed against race to see which
“predominated” in a legislature’s redistricting decision, what considerations do qualify?
Alabama Legislative Black Caucus listed several: “‘compactness, contiguity, respect for political
subdivisions or communities defined by actual shared interests,’ incumbency protection, and
political affiliation.” Id. at 1270 (quoting Miller v. Johnson, 515 U.S. at 916 and citing Bush v.
Vera, 517 U.S. 952, 964, 968 (principal opinion by O’Connor, J.)). The difference with equality
of population, according to Alabama Legislative Black Caucus, is that the question under Shaw is
which factor or factors predominate “in determining which persons were placed in appropriately
apportioned districts.” 575 U.S. at __, 135 S. Ct. at 1271 (quoting Brief of the United States as
amicus curiae at 19) (some emphasis added by the Court)).
22
Chapter 6
THE ROLES AND RIGHTS OF POLITICAL PARTIES
C. Associational Rights of Parties
Page 483. Add a new Note 3:
3. In holding that parties have a right to endorse candidates in primary elections, the Court
necessarily conceived of parties of having an existence and a purpose independent of their
candidates. Such a conception matters not only in identifying and defining a party’s right to
association, but also in assessing the place of parties within campaign finance regulation. If
parties have the right to create and disseminate a message independent of state interference—the
basis of the right-of-association cases considered in this section—then we might expect to treat
parties’ campaign fund-raising and expenditures just as we would that of interest groups. On the
other hand, parties exist largely, if not completely, to elect their candidates. Certainly in the stage
between nomination and general election, parties are focused most intently on electing their
candidates, and so there is a great degree of overlap between the interests of the parties and those
of their candidates.
In Federal Election Commission v. Colorado Republican Federal Campaign Committee, 533
U.S. 431 (2001), the Supreme Court considered the constitutionality of the federal limit on
parties’ coordinated expenditures—expenditures, that is, that are coordinated with their
candidates. The Party argued that because the job of parties is to secure the election of its
candidates, parties are “joined at the hip” with their candidates. Accordingly, the parties argued,
coordinated expenditures should be viewed as appropriate and desirable, rather than as a source
of corruption.
In a 5-4 decision, the Court disagreed. The Court held that parties’ coordinated expenditures
could be limited because such expenditures did raise the risk of corruption—specifically, the risk
that parties would act as bagmen for special interests or wealthy donors who would give money
to parties with the expectation that their contributions would be funneled to the grateful
candidates. See id. at 452 (“[Parties] act as agents for spending on behalf of those who seek to
produce obligated officeholders.”). The Court noted that parties had the right to make unlimited
independent expenditures in support of its candidates, but that coordinated expenditures by
parties (like coordinated expenditures by other groups) could lead to the same kind of corruption
sought to be prevented by limits on contributions. In permitting coordinated expenditures to be
limited, did the Court place too little weight on parties’ rights to associate with their candidates?
Page 492. Add after Note 1:
1a. The Court noted that the “forced association” effected by blanket primaries “has the
likely outcome – indeed, in this case the intended outcome – of changing the parties’ message.”
That effect, which occurs in open primaries as well as blanket ones, is sometimes subtle and
sometimes dramatic. One of the dramatic episodes occurred in the 2014 Mississippi Republican
primary for U.S. Senate. The incumbent, Thad Cochran, succeeded in narrowly defeating his
more-conservative challenger, Chris McDaniel, by appealing to Democrats and in particular to
23
black Democrats, who turned out in record numbers. See Jonathan Weisman & Campbell
Robertson, Blacks Regain Sway at Polls in Mississsippi, N.Y. TIMES (June 25, 2014), at
http://www.nytimes.com/2014/06/26/us/politics/blacks-regain-sway-at-polls-inmississippi.html?_r=0.
Page 510. Add the following to Note 2:
The Ninth Circuit upheld Washington’s top-two primary against a constitutional challenge in
Washington State Republican Party v. Washington State Grange, 676 F.3d 784 (9th Cir.), cert.
denied 133 S. Ct. 110 (2012); see also Rubin v. Bowen, No. RG11605301 (Cal. Super. Ct. 2013),
available at http://electionlawblog.org/wp-content/uploads/11-Order-Amended-Corrected.pdf
(upholding California’s top-two primary). The court held that the manner in which Washington
implemented the primary was unlikely to lead to widespread voter confusion. In addition to the
ballot notation described above, the ballots contained the following notice: “READ: Each
candidate for partisan office may state a political party that he or she prefers. A candidate’s
preference does not imply that the candidate is nominated or endorsed by the party, or that the
party approves of or associates with that candidate.” Furthermore, the state mailed a notice to
voters and aired advertisements explaining the new ballots.
Page 510. Add a new Note 4:
4. Should states be able to use non-partisan ballots, which include no reference to the
candidates’ party affiliations? Should the state have to demonstrate an interest in promoting the
image of the officeholder as non-partisan? Does it matter whether the election is for judicial
office or for a “political” one? See Ohio Council 8 American Federation of State, County, and
Municipal Employees v. Brunner, 24 F. Supp. 3d 680 (S.D. Ohio 2014) (upholding Ohio’s nonpartisan ballot for judicial offices).
D. Third Parties, Independent Candidates, and Ballot Access
Page 547. Add a new note after Note 9:
9a. In North Carolina, groups that wish to qualify as new parties and to have their nominees
appear on the ballot must submit petitions by May 17 signed by 2% of the number of voters who
voted for governor in the last election. In Pisano v. Strech, 743 F.3d 927 (4th Cir. 2014), the
Fourth Circuit upheld North Carolina’s May 17 petition deadline against a challenge that it
unconstitutionally interfered with minor parties’ ability to nominate presidential candidates. The
court noted that the deadline left the parties with plenty of time – three and one-half years – in
which to gather the signatures. Minor parties complained, arguing that the deadline was
significantly in advance of the time when the major parties would choose their presidential
nominees at their conventions in August and September. Accordingly, argued the minor parties,
it was difficult to gather the signatures at such an early date because the public was not yet
paying attention to politics. The court rejected this argument, explaining that North Carolina’s
deadline occurred after that state’s primary, and so there was plenty of opportunity for the minor
parties to take advantage of the citizens’ political awareness during primary season.
24
Page 565. Add a new Note 4:
4. Timmons upheld a law limiting candidates to appearing on the ballot as the nominee of
only one party. May states forbid candidates from appearing on the ballot for more than one
office? Kentucky and Florida currently have such a law, and unless Kentucky’s is changed it
could present a problem for U.S. Senator (and potential 2016 presidential candidate) Rand Paul.
The statute, Ky. R.S. § 118.405, reads as follows: “No candidate’s name shall appear on any
voting machine or absentee ballot more than once, except that a candidate’s name may appear
twice if he is a candidate for a primary or a regular election and also a candidate to fill a vacancy
in the same office required to be filled at a special election, when the special election to fill a
vacancy is scheduled for the regular election day.” Paul’s term ends in January 2017.
Accordingly, the law might bar him from appearing on the ballot in the 2016 presidential
election as he is seeking reelection to the Senate. Kentucky Republicans are trying to change the
law, and they are arguing that the law bans candidates from appearing on the ballot for multiple
state offices.
It is relatively common for candidates to run for multiple offices. For example, Vice
President Biden was simultaneously elected to the vice presidency and reelected to the U.S.
Senate in 2008, and Paul Ryan, who attempted to unseat Biden in 2012, was reelected to the
House of Representatives despite losing his vice-presidential bid. Several states appear to have
followed Texas’s lead after the Lone Star State amended its law in 1960 to allow Lyndon
Johnson to pursue the vice presidency and reelection to the U.S. Senate. Delaware, curiously, is
considering changing its law to ban multiple candidacies, even as Kentucky is considering
loosening its restriction.
Regardless of the outcome of these legislative debates, should the government have the
power to bar multiple candidacies, even for state offices? For example, could a state prohibit a
state senator from simultaneously pursuing reelection and the governorship? Could it prohibit a
sitting judge from simultaneously running for reelection and pursuing a higher judicial office?
Could it prohibit a district attorney from simultaneously running for reelection and seeking to
become a judge? Aside from the constitutional question, are such bans good policy?
25
Chapter 7
TERM LIMITS
A. Introduction
Page 576. Add the following to Note a:
Nathaniel Birkhead, et al., The Impact of State Legislative Term Limits on the Competitiveness of
Congressional Elections, 38 POL. RES. Q. 842 (2010) (finding that state term limits have had
little impact on competitiveness of congressional elections, as the increased number of termedout state legislators who run for Congress is offset by other political factors); James Alt et al.,
Disentangling Accountability and Competence in Elections: Evidence from U.S. Term Limits, 73
J. POL. 171 (2011) (finding some differences in economic policies between term-limited and
reelection-eligible governors); Susan M. Miller, et al., Reexamining the Institutional Effects of
Term Limits in U.S. State Legislatures, 36 LEGIS. STUD. Q. 71 (2012) (arguing that the effect of
term limits will depend on, among other things, existing institutional power in the state as a
whole and in the legislature in particular).
B. The Constitutionality of Term-Limiting Members of Congress
Page 590. Insert the following after Note 6:
7. How does U.S. Term Limits apply to other state regulation of the election process for
federal office? For example, should it invalidate state laws that permit the recall of members of
Congress? For an affirmative answer to that question, see Committee to Recall Robert Menendez
v. Wells, 7 A.3d 720 (N.J. 2010). There, the New Jersey Supreme Court struck down a state
constitutional provision permitting the recall of any elected official representing New Jersey in
Congress. The Court held that the same federal constitutional analysis applied by U.S. Term
Limits leads to the conclusion that state recall provisions are not permissible. While many state
provisions—a few explicitly, and more implicitly—appeared to permit the recall of members of
Congress, and while there were apparently no cases directly on point, the court noted that the
consensus of scholarly commentary, as well as other authorities (e.g., opinions of state attorneys
general), both before and after U.S. Term Limits, was that such provisions were unenforceable.
26
Chapter 8
POLITICAL SPEECH
B. Defamation and the Problem of False Statements
Page 610. Add to the end of Note 3:
One state supreme court recently held that a plaintiff’s defamation action, based on political
advertising, failed because of lack of evidence of actual malice. Bertrand v. Mullin, 846 N.W.2d
884 (Iowa), cert. denied 135 S. Ct. 373 (2014).
Page 610. Insert the following Note after Note 3:
4. Proclaiming that campaigning for public office is “not for the thin-skinned or the fainthearted, to use two apropos clichés,” the court in Schatz v. Republican St. Leadership Comm.,
669 F.3d 50 (1st Cir. 2012), held that a unsuccessful candidate who filed a defamation action
against the opposing political party, based on allegedly false statements in political ads, failed to
allege actual malice by the defendants. The ads accused Schatz, a town selectman, of voting to
give $10,000 of taxpayers’ money to a “political organization.” The charge was true, but left out
details—such as the fact that voters had authorized the expenditure, which was for the purpose of
countering a school-consolidation measure—that would have made the expenditure appear less
sinister. Similarly, the ads accused Schatz of voting to cancel an Independence Day fireworks
display. The selectmen did in fact cancel the display, but Schatz voted the other way—a fact not
disclosed in the newspaper report on which the ad was based. The court conceded that the
complaint “used actual malice buzzwords,” Id. at 56, but failed adequately to allege facts to back
up those legal conclusions. See id. at 57-58. Given the rigor with which cases like Schatz apply
the actual-malice standard, how likely is this sort of defamation claim to succeed?
Page 617. Replace Public Disclosure Commission v. 119 Vote No! Committee and the Notes
that follow it with the following:
UNITED STATES v. ALVAREZ
Supreme Court of the United States
567 U.S. __, 2012 U.S. LEXIS 4879 (2012)
JUSTICE KENNEDY announced the judgment of the Court and delivered an opinion, in which
THE CHIEF JUSTICE [ROBERTS], JUSTICE GINSBURG, and JUSTICE SOTOMAYOR join.
Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played
hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he
lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new
ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005. 18 U.S.C.
§ 704. [Under the Act, anyone who “falsely represents himself or herself, verbally or in writing,
to have been awarded any decoration or medal authorized by Congress for the Armed Forces of
27
the United States” may be punished by a fine, six months’ imprisonment, or both. Violators who
claim to have won the Congressional Medal of Honor are subject to a heightened penalty—a
fine, one year’s imprisonment, or both.]
In 2007, respondent attended his first public meeting as a board member of the Three Valley
Water District Board. The board is a governmental entity with headquarters in Claremont,
California. He introduced himself as follows: “I’m a retired marine of 25 years. I retired in the
year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many
times by the same guy.” None of this was true. For all the record shows, respondent’s statements
were but a pathetic attempt to gain respect that eluded him. The statements do not seem to have
been made to secure employment or financial benefits or admission to privileges reserved for
those who had earned the Medal.
Respondent was indicted under the Stolen Valor Act for lying about the Congressional Medal
of Honor at the meeting. The United States District Court for the Central District of California
rejected his claim that the statute is invalid under the First Amendment. Respondent pleaded
guilty to one count, reserving the right to appeal on his First Amendment claim. The United
States Court of Appeals for the Ninth Circuit, in a decision by a divided panel, found the Act
invalid under the First Amendment and reversed the conviction. * * *
* * * [C]ontent-based restrictions on speech have been permitted, as a general matter, only
when confined to the few “historic and traditional categories [of expression] long familiar to the
bar.” Among these categories are advocacy intended, and likely, to incite imminent lawless
action; obscenity; defamation; speech integral to criminal conduct; so-called “fighting words”;
child pornography; fraud; true threats; and speech presenting some grave and imminent threat the
government has the power to prevent, although a restriction under the last category is most
difficult to sustain. These categories have a historical foundation in the Court’s free speech
tradition. The vast realm of free speech and thought always protected in our tradition can still
thrive, and even be furthered, by adherence to those categories and rules.
Absent from those few categories where the law allows content-based regulation of speech is
any general exception to the First Amendment for false statements. This comports with the
common understanding that some false statements are inevitable if there is to be an open and
vigorous expression of views in public and private conversation, expression the First
Amendment seeks to guarantee.
The Government disagrees with this proposition. It cites language from some of this Court’s
precedents to support its contention that false statements have no value and hence no First
Amendment protection. * * * These quotations all derive from cases discussing defamation,
fraud, or some other legally cognizable harm associated with a false statement, such as an
invasion of privacy or the costs of vexatious litigation. In those decisions the falsity of the speech
at issue was not irrelevant to our analysis, but neither was it determinative. The Court has never
endorsed the categorical rule the Government advances: that false statements receive no First
Amendment protection. Our prior decisions have not confronted a measure, like the Stolen Valor
Act, that targets falsity and nothing more.
Even when considering some instances of defamation and fraud, moreover, the Court has
been careful to instruct that falsity alone may not suffice to bring the speech outside the First
Amendment. The statement must be a knowing or reckless falsehood. The Government thus
seeks * * * to convert a rule that limits liability even in defamation cases where the law permits
recovery for tortious wrongs into a rule that expands liability in a different, far greater realm of
discourse and expression. That inverts the rationale for the exception. The requirements [sic] of a
28
knowing falsehood or reckless disregard for the truth as the condition for recovery in certain
defamation cases exists to allow more speech, not less. A rule designed to tolerate certain speech
ought not blossom to become a rationale for a rule restricting it. * * *
The probable, and adverse, effect of the Act on freedom of expression illustrates, in a
fundamental way, the reasons for the Law’s distrust of content-based speech prohibitions.
The Act by its plain terms applies to a false statement made at any time, in any place, to any
person. * * * Here the lie was made in a public meeting, but the statute would apply with equal
force to personal, whispered conversations within a home. The statute seeks to control and
suppress all false statements on this one subject in almost limitless times and settings. And it
does so entirely without regard to whether the lie was made for the purpose of material gain.
Permitting the government to decree this speech to be a criminal offense, whether shouted
from the rooftops or made in a barely audible whisper, would endorse government authority to
compile a list of subjects about which false statements are punishable. That governmental power
has no clear limiting principle. * * * Were this law to be sustained, there could be an endless list
of subjects the National Government or the States could single out. Where false claims are made
to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it
is well established that the Government may restrict speech without affronting the First
Amendment. But the Stolen Valor Act is not so limited in its reach. Were the Court to hold that
the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any
evidence that the speech was used to gain a material advantage, it would give government a
broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The
mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot
permit if free speech, thought, and discourse are to remain a foundation of our freedom. * * *
* * * The Government’s interest in protecting the integrity of the Medal of Honor is beyond
question. But to recite the Government’s compelling interests is not to end the matter. The First
Amendment requires that the Government’s chosen restriction on the speech at issue be “actually
necessary” to achieve its interest. There must be a direct causal link between the restriction
imposed and the injury to be prevented. * * * The Government points to no evidence to support
its claim that the public’s general perception of military awards is diluted by false claims such as
those made by Alvarez. * * *
[Further, t]he Government has not shown, and cannot show, why counterspeech would not
suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of
counterspeech, of refutation, can overcome the lie. Respondent lied at a public meeting. Even
before the FBI began investigating him for his false statements “Alvarez was perceived as a
phony.” Once the lie was made public, he was ridiculed online, his actions were reported in the
press, and a fellow board member called for his resignation. There is good reason to believe that
a similar fate would befall other false claimants. See Brief for Reporters Committee for Freedom
of the Press et al. as Amici Curiae 30-33 (listing numerous examples of public exposure of false
claimants). Indeed, the outrage and contempt expressed for respondent’s lies can serve to
reawaken and reinforce the public’s respect for the Medal, its recipients, and its high purpose.
The acclaim that recipients of the Congressional Medal of Honor receive also casts doubt on the
proposition that the public will be misled by the claims of charlatans or become cynical of those
whose heroic deeds earned them the Medal by right.
The remedy for speech that is false is speech that is true. This is the ordinary course in a free
society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the
straight-out lie, the simple truth. * * * The First Amendment itself ensures the right to respond to
29
speech we do not like, and for good reason. Freedom of speech and thought flows not from the
beneficence of the state but from the inalienable rights of the person. And suppression of speech
by the government can make exposure of falsity more difficult, not less so. Society has the right
and civic duty to engage in open, dynamic, rational discourse. These ends are not well served
when the government seeks to orchestrate public discussion through content-based mandates.
***
It is a fair assumption that any true holders of the Medal who had heard of Alvarez’s false
claims would have been fully vindicated by the community’s expression of outrage, showing as
it did the Nation’s high regard for the Medal. The same can be said for the Government’s
interest. The American people do not need the assistance of a government prosecution to express
their high regard for the special place that military heroes hold in our tradition. Only a weak
society needs government protection or intervention before it pursues its resolve to preserve the
truth. Truth needs neither handcuffs nor a badge for its vindication.
In addition, when the Government seeks to regulate protected speech, the restriction must be
the “least restrictive means among available, effective alternatives.” There is, however, at least
one less speech-restrictive means by which the Government could likely protect the integrity of
the military awards system. A Government-created database could list Congressional Medal of
Honor winners. Were a database accessible through the Internet, it would be easy to verify and
expose false claims. * * *
The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE BREYER, with whom JUSTICE KAGAN joins, concurring in the judgment.
I agree with the plurality that the Stolen Valor Act of 2005 violates the First Amendment.
But I do not rest my conclusion upon a strict categorical analysis. Rather, I base that conclusion
upon the fact that the statute works First Amendment harm, while the Government can achieve
its legitimate objectives in less restrictive ways.
In determining whether a statute violates the First Amendment, this Court has often found it
appropriate to examine the fit between statutory ends and means. In doing so, it has examined
speech-related harms, justifications, and potential alternatives. In particular, it has taken account
of the seriousness of the speech-related harm the provision will likely cause, the nature and
importance of the provision’s countervailing objectives, the extent to which the provision will
tend to achieve those objectives, and whether there are other, less restrictive ways of doing so.
Ultimately the Court has had to determine whether the statute works speech-related harm that is
out of proportion to its justifications. * * *
The statute before us * * * creates a significant risk of First Amendment harm. As written, it
applies in family, social, or other private contexts, where lies will often cause little harm. It also
applies in political contexts, where although such lies are more likely to cause harm, the risk of
censorious selectivity by prosecutors is also high. Further, given the potential haziness of
individual memory along with the large number of military awards covered (ranging from
medals for rifle marksmanship to the Congressional Medal of Honor), there remains a risk of
chilling that is not completely eliminated by mens rea requirements; a speaker might still be
worried about being prosecuted for a careless false statement, even if he does not have the intent
required to render him liable. And so the prohibition may be applied where it should not be
applied, for example, to bar stool braggadocio or, in the political arena, subtly but selectively to
30
speakers that the Government does not like. These considerations lead me to believe that the
statute as written risks significant First Amendment harm.
Like both the plurality and the dissent, I believe the statute nonetheless has substantial
justification. It seeks to protect the interests of those who have sacrificed their health and life for
their country. The statute serves this interest by seeking to preserve intact the country’s
recognition of that sacrifice in the form of military honors. To permit those who have not earned
those honors to claim otherwise dilutes the value of the awards. Indeed, the Nation cannot fully
honor those who have sacrificed so much for their country’s honor unless those who claim to
have received its military awards tell the truth. Thus, the statute risks harming protected interests
but only in order to achieve a substantial countervailing objective.
We must therefore ask whether it is possible substantially to achieve the Government’s
objective in less burdensome ways. In my view, the answer to this question is “yes.” * * * For
example, not all military awards are alike. Congress might determine that some warrant greater
protection than others. And a more finely tailored statute might, as other kinds of statutes
prohibiting false factual statements have done, insist upon a showing that the false statement
caused specific harm or at least was material, or focus its coverage on lies most likely to be
harmful or on contexts where such lies are most likely to cause harm.
* * * And an accurate, publicly available register of military awards, easily obtainable by
political opponents, may well adequately protect the integrity of an award against those who
would falsely claim to have earned it. And so it is likely that a more narrowly tailored statute
combined with such information-disseminating devices will effectively serve Congress’ end.
The Government has provided no convincing explanation as to why a more finely tailored
statute would not work. In my own view, such a statute could significantly reduce the threat of
First Amendment harm while permitting the statute to achieve its important protective objective.
That being so, I find the statute as presently drafted works disproportionate constitutional harm.
It consequently fails intermediate scrutiny, and so violates the First Amendment.
For these reasons, I concur in the Court’s judgment.
JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting. * * *
Congress passed the Stolen Valor Act in response to a proliferation of false claims
concerning the receipt of military awards. For example, in a single year, more than 600 Virginia
residents falsely claimed to have won the Medal of Honor. An investigation of the 333 people
listed in the online edition of Who’s Who as having received a top military award revealed that
fully a third of the claims could not be substantiated. When the Library of Congress compiled
oral histories for its Veterans History Project, 24 of the 49 individuals who identified themselves
as Medal of Honor recipients had not actually received that award. The same was true of 32
individuals who claimed to have been awarded the Distinguished Service Cross and 14 who
claimed to have won the Navy Cross. Notorious cases brought to Congress’ attention included
the case of a judge who falsely claimed to have been awarded two Medals of Honor and
displayed counterfeit medals in his courtroom; a television network’s military consultant who
falsely claimed that he had received the Silver Star; and a former judge advocate in the Marine
Corps who lied about receiving the Bronze Star and a Purple Heart.
As Congress recognized, the lies proscribed by the Stolen Valor Act inflict substantial harm.
In many instances, the harm is tangible in nature: Individuals often falsely represent themselves
as award recipients in order to obtain financial or other material rewards, such as lucrative
contracts and government benefits. An investigation of false claims in a single region of the
31
United States, for example, revealed that 12 men had defrauded the Department of Veterans
Affairs out of more than $1.4 million in veteran’s benefits. In other cases, the harm is less
tangible, but nonetheless significant. The lies proscribed by the Stolen Valor Act tend to debase
the distinctive honor of military awards. And legitimate award recipients and their families have
expressed the harm they endure when an imposter takes credit for heroic actions that he never
performed. One Medal of Honor recipient described the feeling as a “slap in the face of veterans
who have paid the price and earned their medals.”
It is well recognized in trademark law that the proliferation of cheap imitations of luxury
goods blurs the “‘signal’ given out by the purchasers of the originals.” In much the same way,
the proliferation of false claims about military awards blurs the signal given out by the actual
awards by making them seem more common than they really are, and this diluting effect harms
the military by hampering its efforts to foster morale and esprit de corps. Surely it was
reasonable for Congress to conclude that the goal of preserving the integrity of our country’s top
military honors is at least as worthy as that of protecting the prestige associated with fancy
watches and designer handbags.
Both the plurality and JUSTICE BREYER argue that Congress could have preserved the
integrity of military honors by means other than a criminal prohibition, but Congress had ample
reason to believe that alternative approaches would not be adequate. The chief alternative that is
recommended is the compilation and release of a comprehensive list or database of actual medal
recipients. If the public could readily access such a resource, it is argued, imposters would be
quickly and easily exposed, and the proliferation of lies about military honors would come to an
end.
This remedy, unfortunately, will not work. The Department of Defense has explained that the
most that it can do is to create a database of recipients of certain top military honors awarded
since 2001. 13
Because a sufficiently comprehensive database is not practicable, lies about military awards
cannot be remedied by what the plurality calls “counterspeech.” Without the requisite database,
many efforts to refute false claims may be thwarted, and some legitimate award recipients may
be erroneously attacked. In addition, a steady stream of stories in the media about the exposure
of imposters would tend to increase skepticism among members of the public about the entire
awards system. This would only exacerbate the harm that the Stolen Valor Act is meant to
prevent.
The plurality and the concurrence also suggest that Congress could protect the system of
military honors by enacting a narrower statute. The plurality recommends a law that would apply
only to lies that are intended to “secure moneys or other valuable considerations.” In a similar
vein, the concurrence comments that “a more finely tailored statute might . . . insist upon a
showing that the false statement caused specific harm.” But much damage is caused, both to real
award recipients and to the system of military honors, by false statements that are not linked to
any financial or other tangible reward. Unless even a small financial loss—say, a dollar given to
a homeless man falsely claiming to be a decorated veteran—is more important in the eyes of the
First Amendment than the damage caused to the very integrity of the military awards system,
there is no basis for distinguishing between the Stolen Valor Act and the alternative statutes that
the plurality and concurrence appear willing to sustain. * * *
13
In addition, since the Department may not disclose the Social Security numbers or birthdates of recipients, this
database would be of limited use in ascertaining the veracity of a claim involving a person with a common name.
32
Time and again, this Court has recognized that as a general matter false factual statements
possess no intrinsic First Amendment value. Consistent with this recognition, many kinds of
false factual statements have long been proscribed without “rais[ing] any Constitutional
problem.” Laws prohibiting fraud, perjury, and defamation, for example, were in existence when
the First Amendment was adopted, and their constitutionality is now beyond question.
We have also described as falling outside the First Amendment’s protective shield certain
false factual statements that were neither illegal nor tortious at the time of the Amendment’s
adoption. The right to freedom of speech has been held to permit recovery for the intentional
infliction of emotional distress by means of a false statement, see [Hustler Magazine, Inc. v.]
Falwell, [485 U.S. 46,] 56 [(1988)], even though that tort did not enter our law until the late 19th
century. And in [Time, Inc. v.] Hill, [385 U.S. 374,] 390 [(1967)], the Court concluded that the
free speech right allows recovery for the even more modern tort of false-light invasion of
privacy.
In line with these holdings, it has long been assumed that the First Amendment is not
offended by prominent criminal statutes with no close common-law analog. The most well
known of these is probably 18 U.S.C. § 1001, which makes it a crime to “knowingly and
willfully” make any “materially false, fictitious, or fraudulent statement or representation” in
“any matter within the jurisdiction of the executive, legislative, or judicial branch of the
Government of the United States.” Unlike perjury, § 1001 is not limited to statements made
under oath or before an official government tribunal. Nor does it require any showing of
“pecuniary or property loss to the government.” Instead, the statute is based on the need to
protect “agencies from the perversion which might result from the deceptive practices
described.”
Still other statutes make it a crime to falsely represent that one is speaking on behalf of, or
with the approval of, the Federal Government. See, e.g., 18 U.S.C. § 912 (making it a crime to
falsely impersonate a federal officer); § 709 (making it a crime to knowingly use, without
authorization, the names of enumerated federal agencies, such as “Federal Bureau of
Investigation,” in a manner reasonably calculated to convey the impression that a communication
is approved or authorized by the agency). We have recognized that § 912, like § 1001, does not
require a showing of pecuniary or property loss and that its purpose is to “maintain the general
good repute and dignity” of Government service. All told, there are more than 100 federal
criminal statutes that punish false statements made in connection with areas of federal agency
concern.
These examples amply demonstrate that false statements of fact merit no First Amendment
protection in their own right. It is true, as JUSTICE BREYER notes, that many in our society either
approve or condone certain discrete categories of false statements, including false statements
made to prevent harm to innocent victims and so-called “white lies.” But respondent’s false
claim to have received the Medal of Honor did not fall into any of these categories. * * *
Respondent’s claim, like all those covered by the Stolen Valor Act, served no valid purpose.
***
* * * [T]here are broad areas in which any attempt by the state to penalize purportedly false
speech would present a grave and unacceptable danger of suppressing truthful speech. Laws
restricting false statements about philosophy, religion, history, the social sciences, the arts, and
other matters of public concern would present such a threat. The point is not that there is no such
thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather
that it is perilous to permit the state to be the arbiter of truth.
33
Even where there is a wide scholarly consensus concerning a particular matter, the truth is
served by allowing that consensus to be challenged without fear of reprisal. Today’s accepted
wisdom sometimes turns out to be mistaken. * * *
Allowing the state to proscribe false statements in these areas also opens the door for the
state to use its power for political ends. Statements about history illustrate this point. If some
false statements about historical events may be banned, how certain must it be that a statement is
false before the ban may be upheld? And who should make that calculation? [T]he potential for
abuse of power in these areas is simply too great.
In stark contrast to hypothetical laws prohibiting false statements about history, science, and
similar matters, the Stolen Valor Act presents no risk at all that valuable speech will be
suppressed. The speech punished by the Act is not only verifiably false and entirely lacking in
intrinsic value, but it also fails to serve any instrumental purpose that the First Amendment might
protect. Tellingly, when asked at oral argument what truthful speech the Stolen Valor Act might
chill, even respondent’s counsel conceded that the answer is none. * * *
Notes and Questions
1. Note that the plurality and the dissent started from different premises. Justice Kennedy
treated categories of unprotected speech as limited exceptions to the general rule banning
content-based suppression of speech. Justice Alito, by contrast, treated those categories as
establishing the principle that false speech is worthy of protection only when attempts to ban it
would also suppress truthful speech. Which approach was more faithful to the Court’s
precedents?
2. Justice Breyer argued that the Stolen Valor Act chilled some “careless” speech, despite
its (imputed) mens rea requirement, because speakers might fear prosecution even if a conviction
would be impossible. (The plurality likewise cited the Act’s potential to chill speech as a reason
for striking it down.) If such a concern were taken seriously, would that require that we protect
defamatory speech made with “actual malice”?
3. Do you agree with Justice Breyer that the statute’s coverage was constitutionally
problematic because it applied “in family, social, or other private contexts, where lies will often
cause little harm”? When Alvarez was denied rehearing en banc by the Ninth Circuit, Chief
Judge Kozinski wrote a concurring opinion arguing that it was necessary to provide
constitutional protection for “the white lies, exaggerations and deceptions that are an integral part
of human intercourse.” United States v. Alvarez, 638 F.3d 666, 673 (9th Cir. 2011) (denying
reh’g en banc) (Kozinski, C.J., concurring). He then provided examples of such untruths:
We lie to protect our privacy (“No, I don't live around here”); to avoid hurt feelings (“Friday is my study
night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10
at poker”); to prevent grief (“The doc says you're getting better”); to maintain domestic tranquility (“She’s
just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for career advancement (“I’m
sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He
has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic
to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to
communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about
lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up
a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appearances
(“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve
got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein
Berliner”); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid
embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re
34
the greatest living jurist”); to save a dollar (“I gave at the office”); or to maintain innocence (“There are
eight tiny reindeer on the rooftop”).
Id. at 674-75. Are these statements harmless? After Alvarez, is there anything the legal system
can do to punish one who, for example, uses “she’s just a friend” to conceal a long-running affair
from his wife? More generally, should false campaign speech be entitled to any more—or any
less—protection than false speech about other topics?
4. [Retain Note 4 from page 626 of the text.]
5. Ohio’s ban on false statements made it to the Supreme Court in 2014, with the Court
deciding only the procedural question of whether certain advocacy groups had alleged sufficient
threat of harm to make their constitutional challenge justiciable. Susan B. Anthony List v.
Driehaus, 573 U.S. __ (2014). The challenged provision prohibited “[m]ak[ing] a false
statement concerning the voting record of a candidate or public official” and “disseminat[ing] a
false statement concerning a candidate, either knowing the same to be false or with reckless
disregard of whether it was false or not, if the statement is designed to promote the election,
nomination, or defeat of the candidate.”
In the Susan B. Anthony case, a panel of the Ohio Elections Commission concluded that there
was probable cause to believe that the group had violated the statute when it criticized an
incumbent congressman for “vot[ing] for a health care bill that includes taxpayer-funded
abortion.” The statement was literally true, as the congressman in question voted for the
Affordable Care Act, which does use tax dollars to pay for certain abortions, such as those that
are the result of rape. The statement might have been thought to be misleading, however, as
some people reading the statement might have inferred that the Act provided money for elective
abortions. Accordingly, it is possible that the group in that case could have won an as-applied
challenge to the law based on the statement’s literal truth.
More important for future cases, however, is whether the Ohio law is facially constitutional,
i.e., whether it could be applied even in cases where the speech in question is demonstrably false.
Do the facts of the Susan B. Anthony case change your idea of whether it is constitutional to have
a government agency assessing the truth or falsity of political speech?
6. The Alvarez plurality accepted longstanding limitations on political speech, including the
law of defamation approved by New York Times Co. v. Sullivan and its progeny. Should the
Court treat lies about ballot measures as analogous to defamation, or are they akin to the law
struck down in Alvarez? On the one hand, lies about ballot measures do not harm any individual
in the way that defamation harms the person defamed. On the other hand, perhaps statements
about ballot measures are unlikely to trigger the “counterspeech” that could inform the public
about the truth. See Rickert v. Public Disclosure Comm’n, 168 P.3d 826 (Wash. 2007) (striking
down a false-statements prohibition in candidate elections); Washington ex rel. Public
Disclosure Comm’n v. 119 Vote No! Comm., 957 P.2d 691 (Wash. 1998) (striking down a falsestatements prohibition concerning ballot measures).
In 281 Care Committee v. Arneson, 638 F.3d 621 (8th Cir. 2011), cert. denied 2012 U.S.
LEXIS 4909 (2012), the Eighth Circuit held that knowing or reckless false statements about
ballot questions were constitutionally protected in the absence of a compelling reason for their
suppression. (The court remanded for the application of strict scrutiny.) Id. at 636. The Supreme
Court denied certiorari the day after it decided Alvarez. Do 281 Care Committee and Alvarez
grant constitutional protection to campaign “dirty tricks”?
7. Problem. Because Justice Kennedy’s opinion garnered only four votes, Justice Breyer’s
opinion states the controlling rule. Thus, it is important to consider what other, narrower, statutes
35
banning false or misleading speech might survive Justice Breyer’s test of proportionality.
Consider the following questions, the first two of which were raised by Justice Breyer in a
portion of his opinion not reprinted here:
a. May a political organization be punished for infringing the trademark of a different
organization? See United We Stand America, Inc. v. United We Stand America New York,
Inc., 128 F.3d 86 (2d Cir. 1997).
b. May a state prohibit candidates from falsely claiming to be incumbents? See Hoy v.
Fox, 389 N.W.2d 446 (Mich. Ct. App. 1986).
c. May a state criminalize lies about the voting process that are designed to trick people
into staying away from the polls? See Richard L. Hasen, Has SCOTUS OK’d Campaign
Dirty
Tricks?,
Politico,
July
10,
2012,
http://www.politico.com/news/stories/0712/78342.html; Eugene Volokh, Freedom of
Speech and Knowing Falsehoods, Volokh Conspiracy, June 28, 2012,
http://www.volokh.com/2012/06/28/freedom-of-speech-and-knowing-falsehoods/.
D. Anonymous Speech
Page 686. Delete Note 3 and replace it with the following (moving Note 4 on page 687 to the
end of this case, and renumbering it as Note 6):
DOE v. REED
Supreme Court of the United States
561 U.S. 186, 130 S. Ct. 2811, 177 L. Ed. 2d 493 (2010)
CHIEF JUSTICE ROBERTS delivered the opinion of the Court [in which JUSTICE KENNEDY,
JUSTICE GINSBURG, JUSTICE BREYER, JUSTICE ALITO, and JUSTICE SOTOMAYOR join].
The State of Washington allows its citizens to challenge state laws by referendum. * * * This
case arises out of a state law extending certain benefits to same-sex couples, and a corresponding
referendum petition to put that law to a popular vote. [The referendum, R-71, appeared on the
November 2009 ballot. By a margin of 53% to 47%, the voters approved the law.] Respondent
intervenors invoked the [Washington Public Records Act (PRA)] to obtain copies of the petition,
with the names and addresses of the signers. Certain petition signers and the petition sponsor
objected, arguing that such public disclosure would violate their rights under the First
Amendment.
The course of this litigation, however, has framed the legal question before us more broadly.
The issue at this stage of the case is not whether disclosure of this particular petition would
violate the First Amendment, but whether disclosure of referendum petitions in general would do
so. We conclude that such disclosure does not as a general matter violate the First Amendment,
and we therefore affirm the judgment of the Court of Appeals. We leave it to the lower courts to
consider in the first instance the signers’ more focused claim concerning disclosure of the
information on this particular petition, which is pending before the District Court. * * *
The compelled disclosure of signatory information on referendum petitions is subject to
review under the First Amendment. An individual expresses a view on a political matter when he
signs a petition under Washington’s referendum procedure. In most cases, the individual’s
signature will express the view that the law subject to the petition should be overturned. Even if
36
the signer is agnostic as to the merits of the underlying law, his signature still expresses the
political view that the question should be considered “by the whole electorate.” Meyer v. Grant,
486 U.S. 414, 421 (1988) [p. 688]. In either case, the expression of a political view implicates a
First Amendment right. * * *
Respondents counter that signing a petition is a legally operative legislative act and therefore
“does not involve any significant expressive element.” It is true that signing a referendum
petition may ultimately have the legal consequence of requiring the secretary of state to place the
referendum on the ballot. But we do not see how adding such legal effect to an expressive
activity somehow deprives that activity of its expressive component, taking it outside the scope
of the First Amendment. * * *
We have a series of precedents considering First Amendment challenges to disclosure
requirements in the electoral context. These precedents have reviewed such challenges under
what has been termed “exacting scrutiny.” See, e.g., Buckley v. Valeo, 424 U.S. 1, 64 (1976) [p.
1064] (per curiam).
That standard “requires a ‘substantial relation’ between the disclosure requirement and a
‘sufficiently important’ governmental interest.” To withstand this scrutiny, “the strength of the
governmental interest must reflect the seriousness of the actual burden on First Amendment
rights.” Davis [v. Federal Election Comm’n, 554 U.S. 724, 744 (2008)] [p. 1007]. 1
Respondents assert two interests to justify the burdens of compelled disclosure under the
PRA on First Amendment rights: (1) preserving the integrity of the electoral process by
combating fraud, detecting invalid signatures, and fostering government transparency and
accountability; and (2) providing information to the electorate about who supports the petition.
Because we determine that the State’s interest in preserving the integrity of the electoral process
suffices to defeat the argument that the PRA is unconstitutional with respect to referendum
petitions in general, we need not, and do not, address the State’s “informational” interest.
The State’s interest in preserving the integrity of the electoral process is undoubtedly
important. * * * The State’s interest is particularly strong with respect to efforts to root out fraud,
which not only may produce fraudulent outcomes, but has a systemic effect as well: It “drives
honest citizens out of the democratic process and breeds distrust of our government.” Purcell v.
Gonzalez, 549 U.S. 1, 4 (2006) (per curiam); see also Crawford v. Marion County Election Bd.,
553 U.S. 181, 196 (2008) [p. 1082] (opinion of STEVENS, J.). The threat of fraud in this context
is not merely hypothetical; respondents and their amici cite a number of cases of petition-related
fraud across the country to support the point.
But the State’s interest in preserving electoral integrity is not limited to combating fraud.
That interest extends to efforts to ferret out invalid signatures caused not by fraud but by simple
mistake, such as duplicate signatures or signatures of individuals who are not registered to vote
in the State. That interest also extends more generally to promoting transparency and
accountability in the electoral process, which the State argues is “essential to the proper
functioning of a democracy.”
1
JUSTICE SCALIA doubts whether petition signing is entitled to any First Amendment protection at all. His
skepticism is based on the view that petition signing has “legal effects” in the legislative process, while other aspects
of political participation—with respect to which we have held there is a First Amendment interest—do not. That line
is not as sharp as JUSTICE SCALIA would have it; he himself recognizes “the existence of a First Amendment interest
in voting,” which of course also can have legal effect. The distinction becomes even fuzzier given that only some
petition signing has legal effect, and any such legal effect attaches only well after the expressive act of signing, if the
secretary determines that the petition satisfies the requirements for inclusion on the ballot. Petitions that do not
qualify for the ballot of course carry no legal effect.
37
Plaintiffs contend that the disclosure requirements of the PRA are not “sufficiently related”
to the interest of protecting the integrity of the electoral process. They argue that disclosure is not
necessary because the secretary of state is already charged with verifying and canvassing the
names on a petition, advocates and opponents of a measure can observe that process, and any
citizen can challenge the secretary’s actions in court. They also stress that existing criminal
penalties reduce the danger of fraud in the petition process.
But the secretary’s verification and canvassing will not catch all invalid signatures: The job is
large and difficult (the secretary ordinarily checks “only 3 to 5% of signatures”), and the
secretary can make mistakes, too. Public disclosure can help cure the inadequacies of the
verification and canvassing process.
Disclosure also helps prevent certain types of petition fraud otherwise difficult to detect, such
as outright forgery and “bait and switch” fraud, in which an individual signs the petition based
on a misrepresentation of the underlying issue. The signer is in the best position to detect these
types of fraud, and public disclosure can bring the issue to the signer’s attention.
Public disclosure thus helps ensure that the only signatures counted are those that should be,
and that the only referenda placed on the ballot are those that garner enough valid signatures.
Public disclosure also promotes transparency and accountability in the electoral process to an
extent other measures cannot. In light of the foregoing, we reject plaintiffs’ argument and
conclude that public disclosure of referendum petitions in general is substantially related to the
important interest of preserving the integrity of the electoral process.
Plaintiffs’ more significant objection is that “the strength of the governmental interest” does
not “reflect the seriousness of the actual burden on First Amendment rights.” According to
plaintiffs, the objective of those seeking disclosure of the R-71 petition is not to prevent fraud,
but to publicly identify those who had validly signed and to broadcast the signers’ political views
on the subject of the petition. Plaintiffs allege, for example, that several groups plan to post the
petitions in searchable form on the Internet, and then encourage other citizens to seek out the R71 signers.
Plaintiffs explain that once on the Internet, the petition signers’ names and addresses “can be
combined with publicly available phone numbers and maps,” in what will effectively become a
blueprint for harassment and intimidation. To support their claim that they will be subject to
reprisals, plaintiffs cite examples from the history of a similar proposition in California and from
the experience of one of the petition sponsors in this case.
In related contexts, we have explained that those resisting disclosure can prevail under the
First Amendment if they can show “a reasonable probability that the compelled disclosure [of
personal information] will subject them to threats, harassment, or reprisals from either
Government officials or private parties.” Buckley, supra, at 74; see also Citizens United [v.
Federal Election Comm’n], 558 U.S. __ , 130 S. Ct. 876 , 175 L. Ed. 2d 753 [(2010)] [p. 1075].
The question before us, however, is not whether PRA disclosure violates the First Amendment
with respect to those who signed the R-71 petition, or other particularly controversial petitions.
The question instead is whether such disclosure in general violates the First Amendment rights of
those who sign referendum petitions.
The problem for plaintiffs is that their argument rests almost entirely on the specific harm
they say would attend disclosure of the information on the R-71 petition, or on similarly
controversial ones. But typical referendum petitions “concern tax policy, revenue, budget, or
other state law issues.” Voters care about such issues, some quite deeply—but there is no reason
38
to assume that any burdens imposed by disclosure of typical referendum petitions would be
remotely like the burdens plaintiffs fear in this case.
Plaintiffs have offered little in response. They have provided us scant evidence or argument
beyond the burdens they assert disclosure would impose on R-71 petition signers or the signers
of other similarly controversial petitions. Indeed, what little plaintiffs do offer with respect to
typical petitions in Washington hurts, not helps: Several other petitions in the State “have been
subject to release in recent years,” plaintiffs tell us, but apparently that release has come without
incident.
Faced with the State’s unrebutted arguments that only modest burdens attend the disclosure
of a typical petition, we must reject plaintiffs’ broad challenge to the PRA. In doing so, we
note—as we have in other election law disclosure cases—that upholding the law against a broadbased challenge does not foreclose a litigant’s success in a narrower one. See Buckley, supra, at
74 (“minor parties” may be exempt from disclosure requirements if they can show “a reasonable
probability that the compelled disclosure of a party’s contributors’ names will subject them to
threats, harassment, or reprisals from either Government officials or private parties”); Citizens
United, supra, at __ (disclosure “would be unconstitutional as applied to an organization if there
were a reasonable probability that the group’s members would face threats, harassment, or
reprisals if their names were disclosed”). * * *
[Affirmed.]
JUSTICE BREYER, concurring.
In circumstances where, as here, “a law significantly implicates competing constitutionally
protected interests in complex ways,” the Court balances interests. Nixon v. Shrink Missouri
Government PAC, 528 U.S. 377, 402 (2000) [p. 843] (BREYER, J., concurring). * * * As I read
their opinions, this is what both the Court and JUSTICE STEVENS do. And for the reasons stated in
those opinions (as well as many of the reasons discussed by JUSTICE SOTOMAYOR), I would
uphold the statute challenged in this case. With this understanding, I join the opinion of the Court
and JUSTICE STEVENS’ opinion.
JUSTICE ALITO, concurring.
The Court holds that the disclosure under the Washington Public Records Act (PRA) of the
names and addresses of persons who sign referendum petitions does not as a general matter
violate the First Amendment, and I agree with that conclusion. Many referendum petitions
concern relatively uncontroversial matters, and plaintiffs have provided no reason to think that
disclosure of signatory information in those contexts would significantly chill the willingness of
voters to sign. Plaintiffs’ facial challenge therefore must fail.
Nonetheless, facially valid disclosure requirements can impose heavy burdens on First
Amendment rights in individual cases. * * * The possibility of prevailing in an as-applied
challenge provides adequate protection for First Amendment rights only if (1) speakers can
obtain the exemption sufficiently far in advance to avoid chilling protected speech and (2) the
showing necessary to obtain the exemption is not overly burdensome. With respect to the first
requirement, the as-applied exemption becomes practically worthless if speakers cannot obtain
the exemption quickly and well in advance of speaking. To avoid the possibility that a disclosure
requirement might chill the willingness of voters to sign a referendum petition (and thus burden a
circulator’s ability to collect the necessary number of signatures), voters must have some
assurance at the time when they are presented with the petition that their names and identifying
39
information will not be released to the public. The only way a circulator can provide such
assurance, however, is if the circulator has sought and obtained an as-applied exemption from the
disclosure requirement well before circulating the petition. Otherwise, the best the circulator
could do would be to tell voters that an exemption might be obtained at some point in the future.
Such speculation would often be insufficient to alleviate voters’ concerns about the possibility of
being subjected to threats, harassment, or reprisals.
Additionally, speakers must be able to obtain an as-applied exemption without clearing a
high evidentiary hurdle. We acknowledged as much in Buckley, where we noted that “unduly
strict requirements of proof could impose a heavy burden” on speech. 424 U.S., at 74.
Recognizing that speakers “must be allowed sufficient flexibility in the proof of injury to assure
a fair consideration of their claim,” we emphasized that speakers “need show only a reasonable
probability” that disclosure will lead to threats, harassment, or reprisals. Ibid. (emphasis added).
***
In light of those principles, the plaintiffs in this case have a strong argument that the PRA
violates the First Amendment as applied to the Referendum 71 petition.
* * * The widespread harassment and intimidation suffered by supporters of California’s
Proposition 8 provides strong support for an as-applied exemption in the present case. * * *
What is more, when plaintiffs return to the District Court, they will have the opportunity to
develop evidence of intimidation and harassment of Referendum 71 supporters * * *. For
example, plaintiffs allege that the campaign manager for one of the plaintiff groups received
threatening e-mails and phone calls, and that the threats were so severe that the manager filed a
complaint with the local sheriff and had his children sleep in an interior room of his home. * * *
As-applied challenges to disclosure requirements play a critical role in protecting First
Amendment freedoms. To give speech the breathing room it needs to flourish, prompt judicial
remedies must be available well before the relevant speech occurs and the burden of proof must
be low. In this case—both through analogy and through their own experiences—plaintiffs have a
strong case that they are entitled to as-applied relief, and they will be able to pursue such relief
before the District Court.
JUSTICE SOTOMAYOR, with whom JUSTICE STEVENS and JUSTICE GINSBURG join, concurring.
***
The Court today confirms that the State of Washington’s decision to make referendum
petition signatures available for public inspection falls squarely within the realm of permissible
election-related regulations. Public disclosure of the identity of petition signers, which is the rule
in the overwhelming majority of States that use initiatives and referenda, advances States’ vital
interests in “[p]reserving the integrity of the electoral process, preventing corruption, and
sustaining the active, alert responsibility of the individual citizen in a democracy for the wise
conduct of government.” * * *
On the other side of the ledger, I view the burden of public disclosure on speech and
associational rights as minimal in this context. As this Court has observed with respect to
campaign-finance regulations, “disclosure requirements . . . ‘do not prevent anyone from
speaking.’ ” Citizens United, 558 U.S., at __. When it comes to initiatives and referenda, the
impact of public disclosure on expressive interests is even more attenuated. While campaignfinance disclosure injects the government into what would otherwise have been private political
activity, the process of legislating by referendum is inherently public. To qualify a referendum
for the ballot, citizens are required to sign a petition and supply identifying information to the
40
State. The act of signing typically occurs in public, and the circulators who collect and submit
signatures ordinarily owe signers no guarantee of confidentiality. For persons with the “civic
courage” to participate in this process, the State’s decision to make accessible what they
voluntarily place in the public sphere should not deter them from engaging in the expressive act
of petition signing. Disclosure of the identity of petition signers, moreover, in no way directly
impairs the ability of anyone to speak and associate for political ends either publicly or privately.
Given the relative weight of the interests at stake and the traditionally public nature of
initiative and referendum processes, the Court rightly rejects petitioners’ constitutional challenge
to the State of Washington’s petition disclosure regulations. These same considerations also
mean that any party attempting to challenge particular applications of the State’s regulations will
bear a heavy burden. Even when a referendum involves a particularly controversial subject and
some petition signers fear harassment from nonstate actors, a State’s important interests in
“protect[ing] the integrity and reliability of the initiative process” remain undiminished, and the
State retains significant discretion in advancing those interests. Likewise, because the expressive
interests implicated by the act of petition signing are always modest, I find it difficult to see how
any incremental disincentive to sign a petition would tip the constitutional balance. Case-specific
relief may be available when a State selectively applies a facially neutral petition disclosure rule
in a manner that discriminates based on the content of referenda or the viewpoint of petition
signers, or in the rare circumstance in which disclosure poses a reasonable probability of serious
and widespread harassment that the State is unwilling or unable to control. Cf. NAACP v.
Alabama ex rel. Patterson, 357 U.S. 449 (1958). Allowing case-specific invalidation under a
more forgiving standard would unduly diminish the substantial breathing room States are
afforded to adopt and implement reasonable, nondiscriminatory measures like the disclosure
requirement now at issue. Accordingly, courts presented with an as-applied challenge to a
regulation authorizing the disclosure of referendum petitions should be deeply skeptical of any
assertion that the Constitution, which embraces political transparency, compels States to conceal
the identity of persons who seek to participate in lawmaking through a state-created referendum
process. With this understanding, I join the opinion of the Court.
JUSTICE STEVENS, with whom JUSTICE BREYER joins, concurring in part and concurring in the
judgment.
This is not a hard case. It is not about a restriction on voting or on speech and does not
involve a classic disclosure requirement. Rather, the case concerns a neutral, nondiscriminatory
policy of disclosing information already in the State’s possession that, it has been alleged, might
one day indirectly burden petition signatories. The burden imposed by Washington’s application
of the PRA to referendum petitions in the vast majority, if not all, its applications is not
substantial. And the State has given a more than adequate justification for its choice. * * *
[A]ny effect on speech that disclosure might have is minimal. The PRA does not necessarily
make it more difficult to circulate or obtain signatures on a petition, or to communicate one’s
views generally. Regardless of whether someone signs a referendum petition, that person
remains free to say anything to anyone at any time. If disclosure indirectly burdens a speaker,
“the amount of speech covered” is small—only a single, narrow message conveying one fact in
one place. And while the democratic act of casting a ballot or signing a petition does serve an
expressive purpose, the act does not involve any “interactive communication” and is “not
principally” a method of “individual expression of political sentiment.”
41
Weighed against the possible burden on constitutional rights are the State’s justifications for
its rule. In this case, the State has posited a perfectly adequate justification: an interest in
deterring and detecting petition fraud. 2 * * *
There remains the issue of petitioners’ as-applied challenge. * * * Any burden on speech that
petitioners posit is speculative as well as indirect. For an as-applied challenge to a law such as
the PRA to succeed, there would have to be a significant threat of harassment directed at those
who sign the petition that cannot be mitigated by law enforcement measures. 5 Moreover, the
character of the law challenged in a referendum does not, in itself, affect the analysis. Debates
about tax policy and regulation of private property can become just as heated as debates about
domestic partnerships. And as a general matter, it is very difficult to show that by later disclosing
the names of petition signatories, individuals will be less willing to sign petitions. Just as we
have in the past, I would demand strong evidence before concluding that an indirect and
speculative chain of events imposes a substantial burden on speech. * * *
Accordingly, I concur with the opinion of the Court to the extent that it is not inconsistent
with my own, and I concur in the judgment.
JUSTICE SCALIA, concurring in the judgment. * * *
* * * Our Nation’s longstanding traditions of legislating and voting in public refute the claim
that the First Amendment accords a right to anonymity in the performance of an act with
governmental effect. * * *
The filing of a [valid] referendum petition * * * has two legal effects: (1) It requires the
secretary to place the measure referred to the people on the ballot at the next general election;
and (2) it suspends operation of the measure, causing it only to have effect 30 days after it is
approved during that election. A voter who signs a referendum petition is therefore exercising
legislative power because his signature, somewhat like a vote for or against a bill in the
legislature, seeks to affect the legal force of the measure at issue. 2
Plaintiffs point to no precedent from this Court holding that legislating is protected by the
First Amendment. Nor do they identify historical evidence demonstrating that “the freedom of
speech” the First Amendment codified encompassed a right to legislate without public
disclosure. This should come as no surprise; the exercise of lawmaking power in the United
States has traditionally been public. * * *
Moreover, even when the people asked Congress for legislative changes—by exercising their
constitutional right to “to petition the Government for a redress of grievances”—they did so
publicly. The petition was read aloud in Congress. The petitioner’s name (when large groups
were not involved), his request, and what action Congress had taken on the petition were
2
Washington also points out that its disclosure policy informs voters about who supports the particular referendum.
In certain election-law contexts, this informational rationale (among others) may provide a basis for regulation; in
this case, there is no need to look beyond the State’s quite obvious antifraud interest.
5
A rare case may also arise in which the level of threat to any individual is not quite so high but a State’s disclosure
would substantially limit a group’s ability to “garner the number of signatures necessary to place [a] matter on the
ballot,” thereby “limiting [its] ability to make the matter the focus of statewide discussion.” Meyer v. Grant, 486
U.S., [at] 423.
2
The Court notes that “only some petition signing has legal effect.” That is true. Some petitions may never be
submitted to the secretary; they are irrelevant here, since they will never be subject to the PRA. But some petitions
that are submitted to the secretary may lack the requisite number of signatures. Even as to those, the petition signer
has exercised his portion of the legislative power when he signs the petition, much like a legislator who casts a
losing vote.
42
consistently recorded in the House and Senate Journals. Even when the people exercised
legislative power directly, they did so not anonymously, but openly in town hall meetings.
Petitioning the government and participating in the traditional town meeting were precursors
of the modern initiative and referendum. * * * Plaintiffs’ argument implies that the public nature
of these practices, so longstanding and unquestioned, violated the freedom of speech. There is no
historical support for such a claim.
Legislating was not the only governmental act that was public in America. Voting was public
until 1888 when the States began to adopt the Australian secret ballot. * * * Initially, the
Colonies mostly continued the English traditions of voting by a show of hands or by voice—viva
voce voting. * * *
Although there was variation, the election official would ordinarily compile a poll with the
name and residence of each voter, and the name of the candidate for whom he voted. To prevent
fraud, the Colonies in Rhode Island, New York, and New Jersey adopted the English rule that
“copies of the poll must be delivered on demand to persons who were willing to pay a reasonable
charge for the labor of writing them.” Some colonies allowed candidates to demand a copy of the
poll and required the legislature to examine the poll in a contested election. Thus, as in this case,
the government not only publicly collected identifying information about who voted and for
which candidate, it also disclosed that information to the public.
Any suggestion that viva voce voting infringed the accepted understanding of the pre-existing
freedom of speech to which the First Amendment’s text refers is refuted by the fact that several
state constitutions that required or authorized viva voce voting also explicitly guaranteed the
freedom of speech. Surely one constitutional provision did not render the other invalid.
Of course the practice of viva voce voting was gradually replaced with the paper ballot,
which was thought to reduce fraud and undue influence. There is no indication that the shift
resulted from a sudden realization that public voting infringed voters’ freedom of speech, and the
manner in which it occurred suggests the contrary. States adopted the paper ballot at different
times, and some States changed methods multiple times. * * *
The new paper ballots did not make voting anonymous. Initially, many States did not
regulate the form of the paper ballot. Taking advantage of this, political parties began printing
ballots with their candidates’ names on them. They used brightly colored paper and other
distinctive markings so that the ballots could be recognized from a distance, making the votes
public. * * *
It was precisely discontent over the nonsecret nature of ballot voting, and the abuses that
produced, which led to the States’ adoption of the Australian secret ballot. * * * But I am aware
of no contention that the Australian system was required by the First Amendment (or the state
counterparts). That would have been utterly implausible, since the inhabitants of the Colonies,
the States, and the United States had found public voting entirely compatible with “the freedom
of speech” for several centuries. * * *
Plaintiffs raise concerns that the disclosure of petition signatures may lead to threats and
intimidation. Of course nothing prevents the people of Washington from keeping petition
signatures secret to avoid that—just as nothing prevented the States from moving to the secret
ballot. But there is no constitutional basis for this Court to impose that course upon the States—
or to insist (as today’s opinion does) that it can only be avoided by the demonstration of a
“sufficiently important governmental interest.” And it may even be a bad idea to keep petition
signatures secret. There are laws against threats and intimidation; and harsh criticism, short of
unlawful action, is a price our people have traditionally been willing to pay for self-governance.
43
Requiring people to stand up in public for their political acts fosters civic courage, without which
democracy is doomed. * * *
JUSTICE THOMAS, dissenting. * * *
The expressive political activity of signing a referendum petition is a paradigmatic example
of “the practice of persons sharing common views banding together to achieve a common end.”
Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U.S. 290, 294 (1981)
[p. 825]. A referendum supported by only one person’s signature is a nullity; it will never be
placed on the ballot. * * * For these reasons, signing a referendum petition amounts to “political
association” protected by the First Amendment.
This Court has long recognized the “vital relationship between” political association “and
privacy in one’s associations,” NAACP v. Alabama ex rel. Patterson, 357 U.S., [at] 462, and held
that “[t]he Constitution protects against the compelled disclosure of political associations and
beliefs,” Brown v. Socialist Workers ’74 Campaign Comm. (Ohio), 459 U.S., [at] 91. This
constitutional protection “yield[s] only to a subordinating interest of the State that is compelling,
and then only if there is a substantial relation between the information sought and an overriding
and compelling state interest.” Id., at 91-92. Thus, unlike the Court, I read our precedents to
require application of strict scrutiny to laws that compel disclosure of protected First
Amendment association. Under that standard, a disclosure requirement passes constitutional
muster only if it is narrowly tailored—i.e., the least restrictive means—to serve a compelling
state interest.
Washington’s application of the PRA to a referendum petition does not survive strict
scrutiny.
Washington first contends that it has a compelling interest in “transparency and
accountability,” which it claims encompasses several subordinate interests: preserving the
integrity of its election process, preventing corruption, deterring fraud, and correcting mistakes
by the secretary of state or by petition signers.
It is true that a State has a substantial interest in regulating its referendum and initiative
processes “to protect the[ir] integrity and reliability.” But Washington points to no precedent
from this Court recognizing “correcting errors” as a distinct compelling interest that could
support disclosure regulations. And our cases strongly suggest that preventing corruption and
deterring fraud bear less weight in this particular electoral context: the signature-gathering stage
of a referendum or initiative drive. The Court has twice observed that “the risk of fraud or
corruption, or the appearance thereof, is more remote at the petition stage of an initiative than at
the time of balloting.” [Buckley v. American Constitutional Law Foundation, 525 U.S. 182], 203
[(1999)] (quoting Meyer v. Grant, 486 U.S., [at] 427). * * *
We should not abandon those principles merely because Washington and its amici can point
to a mere eight instances of initiative-related fraud. If anything, these meager figures reinforce
the conclusion that the risks of fraud or corruption in the initiative and referendum process are
remote and thereby undermine Washington’s claim that those two interests should be considered
compelling for purposes of strict scrutiny.
Thus, I am not persuaded that Washington’s interest in protecting the integrity and reliability
of its referendum process, as the State has defined that interest, is compelling. But I need not
answer that question here. Even assuming the interest is compelling, on-demand disclosure of a
referendum petition to any person under the PRA is “a blunderbuss approach” to furthering that
44
interest, not the least restrictive means of doing so. The events that prompted petitioners’
complaint in this case demonstrate as much.
As Washington explained during oral argument, after the secretary of state receives signed
referendum petitions, his “first step . . . is to take them to his archiving section and to have them
digitized. As soon as they’re digitized, they’re available on disks for anyone who requests them”
under the PRA. In this case, two organizations announced their intention to obtain the digitized
names and addresses of referendum signers and post them “online, in a searchable format.”
There is no apparent reason why Washington must broadly disclose referendum signers’
names and addresses in this manner to vindicate the interest that it invokes here. Washington
* * * could put the names and addresses of referendum signers into a similar electronic database
that state employees could search without subjecting the name and address of each signer to
wholesale public disclosure. The secretary could electronically cross-reference the referendum
database against the “statewide voter registration list” contained in Washington’s “statewide
voter registration database,” to ensure that each referendum signer meets Washington’s residency
and voter registration requirements. Doing so presumably would drastically reduce or eliminate
possible errors or mistakes that Washington argues the secretary might make, since it would
allow the secretary to verify virtually all of the signatures instead of the mere “3 to 5%” he
“ordinarily checks.”
An electronic referendum database would also enable the secretary to determine whether
multiple entries correspond to a single registered voter, thereby detecting whether a voter had
signed the petition more than once. In addition, the database would protect victims of “forgery”
or “ ‘bait and switch’ fraud.” In Washington, “a unique identifier is assigned to each legally
registered voter in the state.” Washington could create a Web site, linked to the electronic
referendum database, where a voter concerned that his name had been fraudulently signed could
conduct a search using his unique identifier to ensure that his name was absent from the
database—without requiring disclosure of the names and addresses of all the voluntary,
legitimate signers. * * *
Washington nevertheless contends that its citizens must “have access to public records . . . to
independently evaluate whether the Secretary properly determined to certify or not to certify a
referendum to the ballot.” * * * But Washington’s Election Code already gives Washington
voters access to referendum petition data. Under [Washington law], “[t]he verification and
canvass of signatures on the [referendum] petition may be observed by persons representing the
advocates and opponents of the proposed measure so long as they make no record of the names,
addresses, or other information on the petitions or related records except upon” court order. Each
side is entitled to at least two such observers[.] * * *
It is readily apparent that Washington can vindicate its stated interest in “transparency and
accountability” through a number of more narrowly tailored means than wholesale public
disclosure. Accordingly, this interest cannot justify applying the PRA to a referendum petition.
Washington also contends that it has a compelling interest in “providing relevant information
to Washington voters,” and that on-demand disclosure to the public is a narrowly tailored means
of furthering that interest. This argument is easily dispatched, since this Court has already
rejected it in [McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995)] [p. 668]. * * *
* * * People are intelligent enough to evaluate the merits of a referendum without knowing
who supported it. Thus, just as this informational interest did not justify the Ohio law in
McIntyre, it does not justify applying the PRA to referendum petitions. * * *
45
The difficulty in predicting which referendum measures will prove controversial—combined
with Washington’s default position that signed referendum petitions will be disclosed ondemand, thereby allowing anyone to place this information on the Internet for broad
dissemination—raises the significant probability that today’s decision will “inhibit the exercise
of legitimate First Amendment activity” with respect to referendum and initiative petitions. * * *
Notes and Questions
1. Justice Alito suggested that as-applied challenges, to be useful, must be handled on a
timely basis and should not face a “high evidentiary” hurdle. Justice Sotomayor countered that
courts should be “deeply skeptical” of any as-applied challenge, and Justice Stevens argued that
proving an as-applied challenge will be “very difficult” and should require “strong
evidence.” Which approach makes the most sense? If the Sotomayor/Stevens approach is correct
about the burdens facing an as-applied challenge, should the Court have been more willing to
make a facial determination of unconstitutionality?
2. In May of 2010, a few weeks before Doe was decided, a multi-jurisdictional drug task
force raided a “medical marijuana dispensary” near Tacoma, Washington, in the process seizing
numerous completed petitions for a ballot initiative that would “remove state civil and criminal
penalties for persons eighteen years or older who cultivate, possess, transport, sell, or use
marijuana” in the state. Supporters of the initiative claimed that police intended to intimidate
people out of signing petitions. Gavin Dahl, Seized Marijuana Legalization Petitions Missing,
RAW STORY, May 26, 2010, at http://rawstory.com/rs/2010/0526/case-marijuana-legalizationpetitions-seized-drug-raid/. After Doe, police can simply obtain information on petition
signatories through the Public Records Act. Would (should) a complaint based on such
actions meet the Alito standard for obtaining as-applied relief? The Sotomayor/Stevens standard?
Does this set of facts cause you to rethink your views on Doe?
3. Justice Scalia argued that disclosure statutes encourage “civic courage, without which
democracy is doomed.” Others, however, have expressed concern that there is little rational
reason for voters to engage in learning about political issues. See JAMES BUCHANAN &
GORDON TULLOCK, THE CALCULUS OF CONSENT: LOGICAL FOUNDATIONS OF A CONSTITUTIONAL
DEMOCRACY (1962). Buchanan and Tullock focused on the fact that any one person’s vote was
extremely unlikely to determine the outcome of an election, but it seems equally true that any
one person’s signature is unlikely to determine whether an initiative or referendum appears on
the ballot. Likewise, any one person’s financial contribution to a campaign is unlikely to
determine the outcome. Given the often tenuous incentives to participate in civic life, should we
demand that the minority who do participate also exhibit “civic courage” that goes beyond the
norm?
In the wake of California’s Proposition 8, which amended the state constitution to define
marriage as being between a man and a woman, there were many reports of harassment and
vandalism against supporters of the initiative. Relying on mandatory-disclosure laws, opponents
of the measure publicized the names and address of supporters, organized boycotts, and in some
cases published on the Internet maps to donors’ homes. Said one leader opposed to Proposition
8, “Years ago we would never have been able to get a blacklist that fast and quickly.” See
Bradley A. Smith, In Defense of Political Anonymity, 20 CITY J. 74, 77 (2010). Assuming that
private boycotts are a legitimate tool for attempting to create social change—indeed, one itself
protected by the First Amendment, see NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 46066 (1958), should the state nonetheless be constitutionally prohibited from compelling the
46
potential targets to disclose information that facilitates such boycotts and blacklists? Or is the
proper balance between providing voters with information and protecting voters from harassment
a classic matter for legislative balancing?
4. Justice Thomas argued that there are less restrictive means available for the state to fulfill
its anti-fraud goals. Yet some of these means, such as creating and maintaining a searchable
website, would cost the state money. In an era of tight state budgets, to what extent should leastrestrictive-means analysis take into account the financial costs to the state of providing a less
restrictive alternative?
5. On remand, the district court held that the names of petition-signers could be made
public. Doe v. Reed, 823 F. Supp. 2d 1195 (W.D. Wash. 2011). The court noted that by the time
of the decision some of the identities of the referendum’s supporters were publicly known, and
concluded that the plaintiffs had failed to show that those persons had been subject to
harassment. Plaintiffs sought an injunction against disclosure of their identities, but the
injunction was denied by the district court, the Ninth Circuit, and the Supreme Court, the last
over the dissent of Justice Alito, with Justice Kagan taking no part in the decision. 132 S. Ct. 449
(2011).
6. Is the act of signing a petition “speech”? Justice Scalia characterized it as a legislative act
and analogized petition-signing to “a vote for or against a bill in the legislature,” while the Court
suggested that acts having governmental effect could also be speech where they constitute “the
expression of a political view.” Nevertheless, in Nevada Commission on Ethics v. Carrigan, 564
U.S. __, 131 S. Ct. 2343 (2011), an eight-Justice majority, in an opinion written by Justice
Scalia, concluded that a vote in the legislature was not “speech” entitled to First Amendment
protection:
[A] legislator’s vote is the commitment of his apportioned share of the legislature’s power to the
passage or defeat of a particular proposal. The legislative power thus committed is not personal to the
legislator but belongs to the people; the legislator has no personal right to it. * * * In this respect, voting by
a legislator is different from voting by a citizen. While “a voter’s franchise is a personal right,” “[t]he
procedures for voting in legislative assemblies . . . pertain to legislators not as individuals but as political
representatives executing the legislative process.” Coleman v. Miller, 307 U.S. 433, 469-470 (1939)
(opinion of Frankfurter, J.).
* * * There are, to be sure, instances where action conveys a symbolic meaning—such as the burning
of a flag to convey disagreement with a country’s policies. But the act of voting symbolizes nothing. It
discloses, to be sure, that the legislator wishes (for whatever reason) that the proposition on the floor be
adopted, just as a physical assault discloses that the attacker dislikes the victim. But neither the one nor the
other is an act of communication. * * *
Even if it were true that the vote itself could “express deeply held and highly unpopular views,” the
argument would still miss the mark. This Court has rejected the notion that the First Amendment confers a
right to use governmental mechanics to convey a message. * * * [A] legislator has no right to use official
powers for expressive purposes.
564 U.S. at __-__, 131 S. Ct. at 2350-51.
Is the analysis in Carrigan consistent with Doe v. Reed? Justice Alito, who concurred in the
judgment on other grounds, thought not:
Voting has an expressive component in and of itself. * * * Just as the act of signing a petition is not
deprived of its expressive character when the signature is given legal consequences, the act of voting is not
drained of its expressive content when the vote has a legal effect. If an ordinary citizen casts a vote in a
straw poll on an important proposal pending before a legislative body, that act indisputably constitutes a
form of speech. If a member of the legislative body chooses to vote in the same straw poll, the legislator’s
act is no less expressive than that of an ordinary citizen. And if the legislator then votes on the measure in
47
the legislative chamber, the expressive character of that vote is not eliminated simply because it may affect
the outcome of the legislative process.
Id. at __, 131 S. Ct at 2355 (Alito, J., concurring in part and concurring in the judgment). The
Court responded that “[i]t is one thing to say that an inherently expressive act [i.e., signing a
petition] remains so despite its having governmental effect, but is altogether another thing to say
that a governmental act becomes expressive simply because the governmental actor wishes it to
be so.” Id.at __, 131 S. Ct. at 2351 (opinion of the Court). Further, “[a] legislator voting on a bill
is not fairly analogized to one simply discussing that bill or expressing an opinion for or against
it. The former is performing a governmental act as a representative of his constituents; only the
latter is exercising personal First Amendment rights.” Id. at __ n.5, 131 S. Ct. at 2351 n.5.
Should there be a constitutional right to anonymity in voting by “ordinary citizens,” i.e., to
the Australian ballot? Every state provides for secret balloting, but the Supreme Court has never
been asked to decide on its constitutional status. For what it is worth, John Stuart Mill argued
that except in rare circumstances, balloting should not be in secret. He believed that public
voting would encourage responsibility and accountability for one’s vote. See JOHN STUART MILL,
ON REPRESENTATIVE GOVERNMENT 323-29 (Everyman ed. 1993).
E. Circulation of Petitions
Page 701. Add to the end of Note 6:
In Empower Our Neighborhoods v. Guadagno, 2014 N.J. Super. Unpub. LEXIS 764 (N.J.
Super. Ct. 2014), the court noted that “circulating petitions is primarily a freedom of speech issue
and does not necessarily implicate the right to vote,” id. at *74, but nonetheless required, at least
temporarily, that petition-circulators be eligible to vote—i.e., that they be at least age eighteen
and state residents. The court argued that such a requirement might be based on the need to have
confidence in petition-circulators when they certify that they witnessed the signatures on the
petition and that they believe that the signatories are registered voters in the district. The court
struck down requirements that petition-circulators themselves be registered voters and that they
reside in the district.
6a. Does it abridge the First Amendment right of petition-circulators to require that each
section of an initiative petition contain the circulator’s name? In Chula Vista Citizens for Jobs
and Fair Competition v. Norris, 755 F.3d 671 (9th Cir. 2014), a divided panel of the Ninth
Circuit struck down such a requirement. The court held that the requirement failed exacting
scrutiny, noting that initiative proponents were already required to disclose their identities twice:
in filing with the city clerk a notice of intent to circulate a petition, and in publishing that notice
in a newspaper.
48
G. Public Employees
Page 722. Add the following to the end of Note 1:
In Lane v. Franks, 573 U.S. __, 134 S. Ct. 2369 (2014), the Court held that under Pickering and
Garcetti, a public employee’s sworn testimony under subpoena, outside the scope of his ordinary
job duties, is entitled to First Amendment protection.
I. Judicial Candidates’ Speech
Page 783. Add to end of Note 12:
For additional commentary on state judicial elections, from a variety of perspectives, see CHRIS
W. BONNEAU & MELINDA GANN HALL, IN DEFENSE OF JUDICIAL ELECTIONS (1999), reviewed in
Michael E. Solimine, Independence, Accountability, and the Case for State Judicial Elections, 9
ELECTION L.J. 215 (2010); JED HANDELSMAN SHUGERMAN, THE PEOPLE’S COURTS: PURSUING
JUDICIAL INDEPENDENCE IN AMERICA (2012); James J. Sample, Retention Elections 2.010, 46 U.
S.F. L. REV. 383 (2011); and Rebecca D. Gill, Beyond High Hopes and Unmet Expectations:
Judicial Selection Reforms in the States, 96 JUDICATURE 278 (2013).
Page 783. Insert the following after Note 13:
13a. Does recusal unconstitutionally burden the First Amendment rights of a candidate’s
supporters? Nevada Commission on Ethics v. Carrigan, 564 U.S. __, 131 S. Ct. 2343 (2011),
involved a state law requiring legislators to recuse themselves from voting on measures when
their private commitments would call into question their “independence of judgment.” The
Supreme Court held that the First Amendment right of free speech did not extend to casting a
legislative vote, but did not address whether the recusal provision unconstitutionally burdened
campaign speech.
In a concurring opinion, Justice Kennedy suggested that legislative recusal provisions may
well violate the constitutional rights of persons who offer their support to candidates:
As a general matter, citizens voice their support and lend their aid because they wish to confer the
powers of public office on those whose positions correspond with their own. That dynamic,
moreover, links the principles of participation and representation at the heart of our democratic
government. Just as candidates announce positions in exchange for citizens’ votes, Brown v.
Hartlage, 456 U.S. 45, 55-56 (1982) [p. 610], so too citizens offer endorsements, advertise their
views, and assist political campaigns based upon bonds of common purpose. These are the
mechanisms that sustain representative democracy.
564 U.S. at __, 131 S. Ct. at 2353 (Kennedy, J., concurring).
Nevertheless, Justice Kennedy suggested that requiring recusal of judges might be different:
The differences between the role of political bodies in formulating and enforcing public policy, on
the one hand, and the role of courts in adjudicating individual disputes according to law, on the
49
other, may call for a different understanding of the responsibilities attendant upon holders of those
respective offices and of the legitimate restrictions that may be imposed upon them.
Id. at __, 131 S. Ct. at 2353. See also id. at __ & n.3, 131 S. Ct. at 2349 & n.3 (opinion of the
Court) (noting that “[t]here are of course differences between a legislator’s vote and a judge’s,
and thus between legislative and judicial recusal rules,” and contrasting a judge’s vote while on
the bench (which is not part of the freedom of speech protected by the First Amendment) to his
or her “speech during elections” (which was held in Republican Party of Minnesota v. White to
be protected)).
Is Justice Kennedy’s proposed distinction between judges and legislators consistent with the
reasoning of Republican Party of Minnesota v. White?
Page 783. Delete Note 14 and replace it with the following:
In 2015, the Supreme Court revisited the First Amendment’s applicability to judicial
campaigns, emphatically concluding that judicial elections are not like those for “political”
offices. This time the issue was the constitutionality of an ethical canon prohibiting judicial
candidates from personally soliciting campaign funds.
WILLIAMS-YULEE v. FLORIDA BAR
Supreme Court of the United States
575 U.S. __, 135 S. Ct. __ (2015)
CHIEF JUSTICE ROBERTS delivered the opinion of the Court, except as to Part II. c
* * * In an effort to preserve public confidence in the integrity of their judiciaries, many * * *
States prohibit judges and judicial candidates from personally soliciting funds for their
campaigns. We must decide whether the First Amendment permits such restrictions on speech.
We hold that it does. Judges are not politicians, even when they come to the bench by way of
the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial
candidates like campaigners for political office. A State may assure its people that judges will
apply the law without fear or favor—and without having personally asked anyone for money.
***
I***
Canon 7C(1) [of the Florida Code of Judicial Conduct] governs fundraising in judicial
elections. The Canon, which is based on a provision in the American Bar Association’s Model
Code of Judicial Conduct, provides:
“A candidate, including an incumbent judge, for a judicial office that is filled by public election
between competing candidates shall not personally solicit campaign funds, or solicit attorneys for
publicly stated support, but may establish committees of responsible persons to secure and manage
the expenditure of funds for the candidate’s campaign and to obtain public statements of support
for his or her candidacy. Such committees are not prohibited from soliciting campaign
contributions and public support from any person or corporation authorized by law.”
c
JUSTICES BREYER, SOTOMAYOR, and KAGAN join this opinion in its entirety. JUSTICE GINSBURG joins all except
Part II. [-Eds.]
50
Florida statutes impose additional restrictions on campaign fundraising in judicial elections.
Contributors may not donate more than $1,000 per election to a trial court candidate or more
than $3,000 per retention election to a Supreme Court justice. Campaign committee treasurers
must file periodic reports disclosing the names of contributors and the amount of each
contribution.
Judicial candidates can seek guidance about campaign ethics rules from the Florida Judicial
Ethics Advisory Committee. The Committee has interpreted Canon 7 to allow a judicial
candidate to serve as treasurer of his own campaign committee, learn the identity of campaign
contributors, and send thank you notes to donors.
Like Florida, most other States prohibit judicial candidates from soliciting campaign funds
personally, but allow them to raise money through committees. According to the American Bar
Association, 30 of the 39 States that elect trial or appellate judges have adopted restrictions
similar to Canon 7C(1).
Lanell Williams-Yulee, who refers to herself as Yulee, has practiced law in Florida since
1991. In September 2009, she decided to run for a seat on the county court for Hillsborough
County, a jurisdiction of about 1.3 million people that includes the city of Tampa. Shortly after
filing paperwork to enter the race, Yulee drafted a letter announcing her candidacy. The letter
described her experience and desire to “bring fresh ideas and positive solutions to the Judicial
bench.” The letter then stated:
“An early contribution of $25, $50, $100, $250, or $500, made payable to ‘Lanell Williams-Yulee
Campaign for County Judge’, will help raise the initial funds needed to launch the campaign and
get our message out to the public. I ask for your support [i]n meeting the primary election fund
raiser goals. Thank you in advance for your support.”
Yulee signed the letter and mailed it to local voters. She also posted the letter on her campaign
Web site.
Yulee’s bid for the bench did not unfold as she had hoped. She lost the primary to the
incumbent judge. Then the Florida Bar filed a complaint against her [for violating] the ban on
personal solicitation of campaign funds in Canon 7C(1).
Yulee admitted that she had signed and sent the fundraising letter. But she argued that the
Bar could not discipline her for that conduct because the First Amendment protects a judicial
candidate’s right to solicit campaign funds in an election. The Florida Supreme Court * * *
publicly reprimanded [Yulee] and ordered [her] to pay the costs of the proceeding ($1,860).
II
* * * The parties agree that Canon 7C(1) restricts Yulee’s speech on the basis of its content
by prohibiting her from soliciting contributions to her election campaign. The parties disagree,
however, about the level of scrutiny that should govern our review.
* * * As we have long recognized, speech about public issues and the qualifications of
candidates for elected office commands the highest level of First Amendment protection. See Eu
v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223 (1989) [p. 478]. Indeed,
in our only prior case concerning speech restrictions on a candidate for judicial office, this Court
and both parties assumed that strict scrutiny applied. Republican Party of Minn. v. White, 536
U.S. 765, 774 (2002). * * * [W]e hold today what we assumed in White: A State may restrict the
speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling
interest.
51
III
* * * Canon 7C(1) advances the State’s compelling interest in preserving public confidence
in the integrity of the judiciary, and it does so through means narrowly tailored to avoid
unnecessarily abridging speech. This is therefore one of the rare cases in which a speech
restriction withstands strict scrutiny.
A
The Florida Supreme Court adopted Canon 7C(1) to promote the State’s interests in
“protecting the integrity of the judiciary” and “maintaining the public’s confidence in an
impartial judiciary.” The way the Canon advances those interests is intuitive: Judges, charged
with exercising strict neutrality and independence, cannot supplicate campaign donors without
diminishing public confidence in judicial integrity. * * * Simply put, Florida and most other
States have concluded that the public may lack confidence in a judge’s ability to administer
justice without fear or favor if he comes to office by asking for favors.
The interest served by Canon 7C(1) has firm support in our precedents. We have recognized
the “vital state interest” in safeguarding “public confidence in the fairness and integrity of the
nation’s elected judges.” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 889 (2009). The
importance of public confidence in the integrity of judges stems from the place of the judiciary in
the government. Unlike the executive or the legislature, the judiciary “has no influence over
either the sword or the purse; . . . neither force nor will but merely judgment.” The Federalist No.
78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered). The judiciary’s authority
therefore depends in large measure on the public’s willingness to respect and follow its
decisions. * * * It follows that public perception of judicial integrity is “a state interest of the
highest order.” Caperton, 556 U.S., at 889. * * *
The parties devote considerable attention to our cases analyzing campaign finance
restrictions in political elections. But a State’s interest in preserving public confidence in the
integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in
legislative and executive elections. As we explained in White, States may regulate judicial
elections differently than they regulate political elections, because the role of judges differs from
the role of politicians. 536 U.S., at 783; id., at 805 (GINSBURG, J., dissenting). Politicians are
expected to be appropriately responsive to the preferences of their supporters. Indeed, such
“responsiveness is key to the very concept of self-governance through elected officials.” The
same is not true of judges. In deciding cases, a judge is not to follow the preferences of his
supporters, or provide any special consideration to his campaign donors. * * * As in White,
therefore, our precedents applying the First Amendment to political elections have little bearing
on the issues here. * * *
* * * Moreover, personal solicitation by a judicial candidate “inevitably places the solicited
individuals in a position to fear retaliation if they fail to financially support that candidate.”
Potential litigants then fear that “the integrity of the judicial system has been compromised,
forcing them to search for an attorney in part based upon the criteria of which attorneys have
made the obligatory contributions.” A State’s decision to elect its judges does not require it to
tolerate these risks. The Florida Bar’s interest is compelling.
B
Yulee acknowledges the State’s compelling interest in judicial integrity. She argues,
52
however, that the Canon’s failure to restrict other speech equally damaging to judicial integrity
and its appearance undercuts the Bar’s position. In particular, she notes that Canon 7C(1) allows
a judge’s campaign committee to solicit money, which arguably reduces public confidence in the
integrity of the judiciary just as much as a judge’s personal solicitation. Yulee also points out
that Florida permits judicial candidates to write thank you notes to campaign donors, which
ensures that candidates know who contributes and who does not. * * *
* * * Canon 7C(1) raises no fatal underinclusivity concerns. The solicitation ban aims
squarely at the conduct most likely to undermine public confidence in the integrity of the
judiciary: personal requests for money by judges and judicial candidates. The Canon applies
evenhandedly to all judges and judicial candidates, regardless of their viewpoint or chosen means
of solicitation. And unlike some laws that we have found impermissibly underinclusive, Canon
7C(1) is not riddled with exceptions. Indeed, the Canon contains zero exceptions to its ban on
personal solicitation.
Yulee relies heavily on the provision of Canon 7C(1) that allows solicitation by a candidate’s
campaign committee. But Florida, along with most other States, has reasonably concluded that
solicitation by the candidate personally creates a categorically different and more severe risk of
undermining public confidence than does solicitation by a campaign committee. The identity of
the solicitor matters, as anyone who has encountered a Girl Scout selling cookies outside a
grocery store can attest. When the judicial candidate himself asks for money, the stakes are
higher for all involved. The candidate has personally invested his time and effort in the
fundraising appeal; he has placed his name and reputation behind the request. The solicited
individual knows that, and also knows that the solicitor might be in a position to singlehandedly
make decisions of great weight: The same person who signed the fundraising letter might one
day sign the judgment. This dynamic inevitably creates pressure for the recipient to comply, and
it does so in a way that solicitation by a third party does not. Just as inevitably, the personal
involvement of the candidate in the solicitation creates the public appearance that the candidate
will remember who says yes, and who says no.
In short, personal solicitation by judicial candidates implicates a different problem than
solicitation by campaign committees. However similar the two solicitations may be in substance,
a State may conclude that they present markedly different appearances to the public. Florida’s
choice to allow solicitation by campaign committees does not undermine its decision to ban
solicitation by judges.
Likewise, allowing judicial candidates to write thank you notes to campaign donors does not
detract from the State’s interest in preserving public confidence in the integrity of the judiciary.
Yulee argues that permitting thank you notes heightens the likelihood of actual bias by ensuring
that judicial candidates know who supported their campaigns, and ensuring that the supporter
knows that the candidate knows. Maybe so. But the State’s compelling interest is implicated
most directly by the candidate’s personal solicitation itself. A failure to ban thank you notes for
contributions not solicited by the candidate does not undercut the Bar’s rationale. * * *
Taken to its logical conclusion, the position advanced by Yulee and the principal dissent is
that Florida may ban the solicitation of funds by judicial candidates only if the State bans all
solicitation of funds in judicial elections. The First Amendment does not put a State to that allor-nothing choice. We will not punish Florida for leaving open more, rather than fewer, avenues
of expression, especially when there is no indication that the selective restriction of speech
reflects a pretextual motive.
53
C***
* * * Yulee concedes—and the principal dissent seems to agree—that Canon 7C(1) is valid in
numerous applications. Yulee acknowledges that Florida can prohibit judges from soliciting
money from lawyers and litigants appearing before them. In addition, she says the State “might”
be able to ban “direct one-to-one solicitation of lawyers and individuals or businesses that could
reasonably appear in the court for which the individual is a candidate.” She also suggests that the
Bar could forbid “in person” solicitation by judicial candidates. But Yulee argues that the Canon
cannot constitutionally be applied to her chosen form of solicitation: a letter posted online and
distributed via mass mailing. No one, she contends, will lose confidence in the integrity of the
judiciary based on personal solicitation to such a broad audience.
This argument misperceives the breadth of the compelling interest that underlies Canon
7C(1). Florida has reasonably determined that personal appeals for money by a judicial candidate
inherently create an appearance of impropriety that may cause the public to lose confidence in
the integrity of the judiciary. That interest may be implicated to varying degrees in particular
contexts, but the interest remains whenever the public perceives the judge personally asking for
money.
Moreover, the lines Yulee asks us to draw are unworkable. Even under her theory of the case,
a mass mailing would create an appearance of impropriety if addressed to a list of all lawyers
and litigants with pending cases. So would a speech soliciting contributions from the 100 most
frequently appearing attorneys in the jurisdiction. Yulee says she might accept a ban on one-toone solicitation, but is the public impression really any different if a judicial candidate tries to
buttonhole not one prospective donor but two at a time? Ten? Yulee also agrees that in person
solicitation creates a problem. But would the public’s concern recede if the request for money
came in a phone call or a text message?
We decline to wade into this swamp. The First Amendment requires that Canon 7C(1) be
narrowly tailored, not that it be “perfectly tailored.” The impossibility of perfect tailoring is
especially apparent when the State’s compelling interest is as intangible as public confidence in
the integrity of the judiciary. Yulee is of course correct that some personal solicitations raise
greater concerns than others. A judge who passes the hat in the courthouse creates a more serious
appearance of impropriety than does a judicial candidate who makes a tasteful plea for support
on the radio. But most problems arise in greater and lesser gradations, and the First Amendment
does not confine a State to addressing evils in their most acute form. Here, Florida has concluded
that all personal solicitations by judicial candidates create a public appearance that undermines
confidence in the integrity of the judiciary; banning all personal solicitations by judicial
candidates is narrowly tailored to address that concern. * * *
Finally, Yulee contends that Florida can accomplish its compelling interest through the less
restrictive means of recusal rules and campaign contribution limits. We disagree. A rule
requiring judges to recuse themselves from every case in which a lawyer or litigant made a
campaign contribution would disable many jurisdictions. And a flood of postelection recusal
motions could “erode public confidence in judicial impartiality” and thereby exacerbate the very
appearance problem the State is trying to solve. Moreover, the rule that Yulee envisions could
create a perverse incentive for litigants to make campaign contributions to judges solely as a
means to trigger their later recusal—a form of peremptory strike against a judge that would
enable transparent forum shopping.
As for campaign contribution limits, Florida already applies them to judicial elections. A
State may decide that the threat to public confidence created by personal solicitation exists apart
54
from the amount of money that a judge or judicial candidate seeks. Even if Florida decreased its
contribution limit, the appearance that judges who personally solicit funds might improperly
favor their campaign donors would remain. Although the Court has held that contribution limits
advance the interest in preventing quid pro quo corruption and its appearance in political
elections, we have never held that adopting contribution limits precludes a State from pursuing
its compelling interests through additional means. And in any event, a State has compelling
interests in regulating judicial elections that extend beyond its interests in regulating political
elections, because judges are not politicians.
In sum, because Canon 7C(1) is narrowly tailored to serve a compelling government interest,
the First Amendment poses no obstacle to its enforcement in this case. As a result of our
decision, Florida may continue to prohibit judicial candidates from personally soliciting
campaign funds, while allowing them to raise money through committees and to otherwise
communicate their electoral messages in practically any way. The principal dissent faults us for
not answering a slew of broader questions, such as whether Florida may cap a judicial
candidate’s spending or ban independent expenditures by corporations. Yulee has not asked
these questions, and for good reason—they are far afield from the narrow regulation actually at
issue in this case. * * *
* * * Judicial candidates have a First Amendment right to speak in support of their
campaigns. States have a compelling interest in preserving public confidence in their judiciaries.
When the State adopts a narrowly tailored restriction like the one at issue here, those principles
do not conflict. A State’s decision to elect judges does not compel it to compromise public
confidence in their integrity.
The judgment of the Florida Supreme Court is
Affirmed.
JUSTICE BREYER, concurring.
As I have previously said, I view this Court’s doctrine referring to tiers of scrutiny as
guidelines informing our approach to the case at hand, not tests to be mechanically applied. On
that understanding, I join the Court’s opinion.
JUSTICE GINSBURG, * * * concurring in part and concurring in the judgment.
I join the Court’s opinion save for Part II. As explained in my dissenting opinion in
Republican Party of Minnesota v. White, I would not apply exacting scrutiny to a State’s
endeavor sensibly to “differentiate elections for political offices . . ., from elections designed to
select those whose office it is to administer justice without respect to persons.” * * *
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
An ethics canon adopted by the Florida Supreme Court bans a candidate in a judicial election
from asking anyone, under any circumstances, for a contribution to his campaign. Faithful
application of our precedents would have made short work of this wildly disproportionate
restriction upon speech. Intent upon upholding the Canon, however, the Court flattens one settled
First Amendment principle after another.
I***
* * * I do not for a moment question the Court’s conclusion that States have different
compelling interests when regulating judicial elections than when regulating political ones.
55
Unlike a legislator, a judge must be impartial—without bias for or against any party or attorney
who comes before him. I accept for the sake of argument that States have a compelling interest in
ensuring that its judges are seen to be impartial. I will likewise assume that a judicial candidate’s
request to a litigant or attorney presents a danger of coercion that a political candidate’s request
to a constituent does not. But Canon 7C(1) does not narrowly target concerns about impartiality
or its appearance; it applies even when the person asked for a financial contribution has no
chance of ever appearing in the candidate’s court. And Florida does not invoke concerns about
coercion, presumably because the Canon bans solicitations regardless of whether their object is a
lawyer, litigant, or other person vulnerable to judicial pressure. So Canon 7C(1) fails exacting
scrutiny and infringes the First Amendment. This case should have been just that
straightforward.
II
The Court concludes that Florida may prohibit personal solicitations by judicial candidates as
a means of preserving “public confidence in the integrity of the judiciary.” It purports to reach
this destination by applying strict scrutiny, but it would be more accurate to say that it does so by
applying the appearance of strict scrutiny.
A
The first sign that mischief is afoot comes when the Court describes Florida’s compelling
interest. The State must first identify its objective with precision before one can tell whether that
interest is compelling and whether the speech restriction narrowly targets it. In White, for
example, the Court did not allow a State to invoke hazy concerns about judicial impartiality in
justification of an ethics rule against judicial candidates’ announcing their positions on legal
issues. The Court instead separately analyzed the State’s concerns about judges’ bias against
parties, preconceptions on legal issues, and openmindedness, and explained why each concern
(and each for a different reason) did not suffice to sustain the rule. [536 U.S.,] at 775–780.
In stark contrast to White, the Court today relies on Florida’s invocation of an ill-defined
interest in “public confidence in judicial integrity.” The Court at first suggests that “judicial
integrity” involves the “ability to administer justice without fear or favor.” * * * When the Court
explains how solicitation undermines confidence in judicial integrity, integrity starts to sound
like saintliness. It involves independence from any “possible temptation” that “might lead” the
judge, “even unknowingly,” to favor one party. When the Court turns to distinguishing in-person
solicitation from solicitation by proxy, the any-possible-temptation standard no longer helps and
thus drops out. The critical factors instead become the “pressure” a listener feels during a
solicitation and the “appearance that the candidate will remember who says yes, and who says
no.” But when it comes time to explain Florida’s decision to allow candidates to write thank-you
notes, the “appearance that the candidate . . . remember[s] who says yes” gets nary a mention.
And when the Court confronts Florida’s decision to prohibit mass-mailed solicitations, concern
about pressure fades away. More outrageous still, the Court at times molds the interest in the
perception that judges have integrity into an interest in the perception that judges do not solicit—
for example when it says, “all personal solicitations by judicial candidates create a public
appearance that undermines confidence in the integrity of the judiciary; banning all personal
solicitations by judicial candidates is narrowly tailored to address that concern.” This is not strict
scrutiny; it is sleight of hand.
56
B
The Court’s twistifications have not come to an end; indeed, they are just beginning. In order
to uphold Canon 7C(1) under strict scrutiny, Florida must do more than point to a vital public
objective brooding overhead. The State must also meet a difficult burden of demonstrating that
the speech restriction substantially advances the claimed objective. * * *
* * * The Court announces, on the basis of its “intuiti[on],” that allowing personal
solicitations will make litigants worry that “judges’ decisions may be motivated by the desire to
repay campaign contributions.” But this case is not about whether Yulee has the right to receive
campaign contributions. It is about whether she has the right to ask for campaign contributions
that Florida’s statutory law already allows her to receive. Florida bears the burden of showing
that banning requests for lawful contributions will improve public confidence in judges—not just
a little bit, but significantly, because “the Government does not have a compelling interest in
each marginal percentage point by which its goals are advanced.”
Neither the Court nor the State identifies the slightest evidence that banning requests for
contributions will substantially improve public trust in judges. Nor does common sense make
this happy forecast obvious. [J]udicial elections in America date back more than two centuries—
but rules against personal solicitations date back only to 1972. The peaceful coexistence of
judicial elections and personal solicitations for most of our history calls into doubt any claim that
allowing personal solicitations would imperil public faith in judges. Many States allow judicial
candidates to ask for contributions even today, but nobody suggests that public confidence in
judges fares worse in these jurisdictions than elsewhere. And in any event, if candidates’ appeals
for money are “characteristically intertwined” with discussion of qualifications and views on
public issues, how can the Court be so sure that the public will regard them as improprieties
rather than as legitimate instances of campaigning? In the final analysis, Florida comes nowhere
near making the convincing demonstration required by our cases that the speech restriction in
this case substantially advances its objective.
C
But suppose we play along with the premise that prohibiting solicitations will significantly
improve the public reputation of judges. Even then, Florida must show that the ban restricts no
more speech than necessary to achieve the objective.
Canon 7C(1) falls miles short of satisfying this requirement. The Court seems to accept
Florida’s claim that solicitations erode public confidence by creating the perception that judges
are selling justice to lawyers and litigants. Yet the Canon prohibits candidates from asking for
money from anybody—even from someone who is neither lawyer nor litigant, even from
someone who (because of recusal rules) cannot possibly appear before the candidate as lawyer or
litigant. Yulee thus may not call up an old friend, a cousin, or even her parents to ask for a
donation to her campaign. The State has not come up with a plausible explanation of how
soliciting someone who has no chance of appearing in the candidate’s court will diminish public
confidence in judges.
No less important, Canon 7C(1) bans candidates from asking for contributions even in
messages that do not target any listener in particular—mass-mailed letters, flyers posted on
telephone poles, speeches to large gatherings, and Web sites addressed to the general public.
Messages like these do not share the features that lead the Court to pronounce personal
solicitations a menace to public confidence in the judiciary. Consider online solicitations. They
avoid “the spectacle of lawyers or potential litigants directly handing over money to judicial
57
candidates.” People who come across online solicitations do not feel “pressure” to comply with
the request. Nor does the candidate’s signature on the online solicitation suggest “that the
candidate will remember who says yes, and who says no.” Yet Canon 7C(1) prohibits these and
similar solicitations anyway. This tailoring is as narrow as the Court’s scrutiny is strict.
Perhaps sensing the fragility of the initial claim that all solicitations threaten public
confidence in judges, the Court argues that “the lines Yulee asks [it] to draw are unworkable.”
That is a difficulty of the Court’s own imagination. In reality, the Court could have chosen from
a whole spectrum of workable rules. It could have held that States may regulate no more than
solicitation of participants in pending cases, or solicitation of people who are likely to appear in
the candidate’s court, or even solicitation of any lawyer or litigant. And it could have ruled that
candidates have the right to make fundraising appeals that are not directed to any particular
listener (like requests in mass-mailed letters), or at least fundraising appeals plainly directed to
the general public (like requests placed online). The Supreme Court of Florida has made similar
accommodations in other settings. It allows sitting judges to solicit memberships in civic
organizations if (among other things) the solicitee is not “likely ever to appear before the court
on which the judge serves.” And it allows sitting judges to accept gifts if (among other things)
“the donor is not a party or other person . . . whose interests have come or are likely to come
before the judge.” It is not too much to ask that the State show election speech similar
consideration.
The Court’s accusation of unworkability also suffers from a bit of a pot-kettle problem.
Consider the many real-world questions left open by today’s decision. Does the First
Amendment permit restricting a candidate’s appearing at an event where somebody else asks for
campaign funds on his behalf? Does it permit prohibiting the candidate’s family from making
personal solicitations? Does it allow prohibiting the candidate from participating in the creation
of a Web site that solicits funds, even if the candidate’s name does not appear next to the
request? More broadly, could Florida ban thank-you notes to donors? Cap a candidate’s
campaign spending? Restrict independent spending by people other than the candidate? Ban
independent spending by corporations? And how, by the way, are judges supposed to decide
whether these measures promote public confidence in judicial integrity, when the Court does not
even have a consistent theory about what it means by “judicial integrity”? For the Court to wring
its hands about workability under these circumstances is more than one should have to bear.
D***
* * * Canon 7C(1)’s scope suggests that it has nothing to do with the appearances created by
judges’ asking for money, and everything to do with hostility toward judicial campaigning. How
else to explain the Florida Supreme Court’s decision to ban all personal appeals for campaign
funds (even when the solicitee could never appear before the candidate), but to tolerate appeals
for other kinds of funds (even when the solicitee will surely appear before the candidate)? It
should come as no surprise that the ABA, whose model rules the Florida Supreme Court
followed when framing Canon 7C(1), opposes judicial elections—preferring instead a system in
which (surprise!) a committee of lawyers proposes candidates from among whom the Governor
must make his selection.
The Court tries to strike a pose of neutrality between appointment and election of judges, but
no one should be deceived. A Court that sees impropriety in a candidate’s request for any
contributions to his election campaign does not much like judicial selection by the people. One
cannot have judicial elections without judicial campaigns, and judicial campaigns without funds
58
for campaigning, and funds for campaigning without asking for them. When a society decides
that its judges should be elected, it necessarily decides that selection by the people is more
important than the oracular sanctity of judges, their immunity from the (shudder!) indignity of
begging for funds, and their exemption from those shadows of impropriety that fall over the
proletarian public officials who must run for office. * * * The prescription that judges be elected
probably springs from the people’s realization that their judges can become their rulers—and (it
must be said) from just a deep-down feeling that members of the Third Branch will profit from a
hearty helping of humble pie, and from a severe reduction of their great remove from the (ugh!)
People. (It should not be thought that I myself harbor such irreverent and revolutionary feelings;
but I think it likely—and year by year more likely—that those who favor the election of judges
do so.) In any case, hostility to campaigning by judges entitles the people of Florida to amend
their Constitution to replace judicial elections with the selection of judges by lawyers’
committees; it does not entitle the Florida Supreme Court to adopt, or this Court to endorse, a
rule of judicial conduct that abridges candidates’ speech in the judicial elections that the Florida
Constitution prescribes. * * *
I respectfully dissent.
JUSTICE KENNEDY, dissenting. * * *
With all due respect for the Court, it seems fair and necessary to say its decision rests on two
premises, neither one correct. One premise is that in certain elections—here an election to choose
the best qualified judge—the public lacks the necessary judgment to make an informed choice.
Instead, the State must protect voters by altering the usual dynamics of free speech. The other
premise is that since judges should be accorded special respect and dignity, their election can be
subject to certain content-based rules that would be unacceptable in other elections. In my
respectful view neither premise can justify the speech restriction at issue here. Although States
have a compelling interest in seeking to ensure the appearance and the reality of an impartial
judiciary, it does not follow that the State may alter basic First Amendment principles in
pursuing that goal. * * *
It is not within our Nation’s First Amendment tradition to abridge speech simply because the
government believes a question is too difficult or too profound for voters. If the State is
concerned about unethical campaign practices, it need not revert to the assumption that voters
themselves are insensitive to ethics. Judicial elections were created to enable citizens to decide
for themselves which judges are best qualified and which are most likely to “stand by the
constitution of the State against the encroachment of power.” The Court should not now presume
citizens are unequipped for that task when it comes to judging for themselves who should judge
them. * * *
* * * This law comes nowhere close to being narrowly tailored. And by saying that it
survives that vital First Amendment requirement, the Court now writes what is literally a
casebook guide to eviscerating strict scrutiny any time the Court encounters speech it dislikes.
On these premises, and for the reasons explained in more detail by JUSTICE SCALIA, it is
necessary for me to file this respectful dissent.
JUSTICE ALITO, dissenting.
I largely agree with what I view as the essential elements of the dissents filed by JUSTICES
SCALIA and KENNEDY. * * * Florida has a compelling interest in making sure that its courts
decide cases impartially and in accordance with the law and that its citizens have no good reason
59
to lack confidence that its courts are performing their proper role. But the Florida rule is not
narrowly tailored to serve that interest.
Indeed, this rule is about as narrowly tailored as a burlap bag. It applies to all solicitations
made in the name of a candidate for judicial office—including, as was the case here, a mass
mailing. It even applies to an ad in a newspaper. It applies to requests for contributions in any
amount, and it applies even if the person solicited is not a lawyer, has never had any interest at
stake in any case in the court in question, and has no prospect of ever having any interest at stake
in any litigation in that court. If this rule can be characterized as narrowly tailored, then narrow
tailoring has no meaning, and strict scrutiny, which is essential to the protection of free speech, is
seriously impaired. * * *
Notes and Questions
1. Are there sufficient reasons to distinguish between the First Amendment protection given
to financing judicial campaigns, on the one hand, and financing legislative or executive
campaigns, on the other? In both instances, restrictions on the funding would be justified by the
need to prevent the actuality or appearance of impropriety. But the Court appears to have a
different vision of impropriety for those different offices, as you will learn in the next Chapter.
The Court seems to accept that “political” officials will show a certain favoritism for their
supporters, while Williams-Yulee found a compelling interest in avoiding even the appearance
that judges would favor theirs.
2. Throughout this Chapter, we have explored several different areas of First Amendment
doctrine that have application in campaigns and elections. Should states be able to impose
greater restrictions on speech in those areas when judicial elections are involved? Would states,
for example, have a sufficiently compelling interest in protecting the appearance of judicial
integrity to allow them to permit judges to recover for defamatory falsehoods without satisfying
the actual-malice standard?
3. Problem. In the years since Republican Party of Minnesota v. White struck down the
announce clause, there has been much controversy about the constitutionality of other
restrictions on judicial campaign activity. Williams-Yulee is unlikely to resolve those
controversies. Are the following restrictions narrowly tailored to serve a compelling interest?
a. Laws prohibiting judicial candidates from identifying themselves as members of
political parties. See Carey v. Wotnitzek, 614 F.3d 189 (6th Cir. 2010); Siefert v.
Alexander, 608 F.3d 974 (7th Cir. 2010), cert. denied, 131 S. Ct. 2872 (2011);
Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005) (en banc) (on
remand from the Supreme Court).
b. Laws prohibiting judicial candidates from pursuing party endorsements. See
Republican Party v. White, supra.
c. Laws prohibiting judicial candidates from attending political gatherings. See id.
d. Laws prohibiting judicial candidates from speaking at political gatherings or speaking
on behalf of political organizations. See Bauer v. Shepard, 620 F.3d 704 (7th Cir.
2010), cert. denied, 131 S. Ct. 2872 (2011).
e. Laws prohibiting judicial candidates from holding party office.
f. Laws prohibiting judicial candidates from endorsing or opposing candidates for
public office. See Wersal v. Sexton, 613 F.3d 821 (8th Cir. 2010); Siefert, supra;
Bauer, supra.
60
3. The Ninth Circuit recently (but before Williams-Yulee) invalidated several provisions of
the Arizona Code of Judicial Conduct that restricted the speech of judicial candidates. Wolfson v.
Concannon, 750 F.3d 1145 (9th Cir. 2014). The court held that the provisions – which banned
the personal solicitation of campaign funds, as well as making speeches, raising funds, or
otherwise supporting or opposing another’s campaign – were not narrowly tailored to serve the
compelling interests in the actuality and appearance of an impartial judiciary. Interestingly, the
court invalidated several of the provisions only as applied to non-judge candidates, i.e., persons
running for judicial office but who were not incumbent judges. The court reasoned that the
speech prohibitions were not narrowly tailored ways of protecting the impartiality of the
judiciary when they applied to people who were not, and might never be, judges. The plaintiff,
Wolfson, was a non-judge candidate, and the court held that he could not challenge the rules as
applied to incumbent judges. See Wolfson v. Brammer, 616 F.3d 1045, 1064 (9th Cir. 2010). Are
such speech restrictions constitutional as applied to incumbent judges running for re-election?
4. Ohio statutes, dating to the Progressive Era, prohibit the inclusion of judicial candidates’
political party affiliations on Ohio’s nonpartisan general election ballot. Does that prohibition
violate the First Amendment rights of the candidate or of the party? A recent attack on the statute
was rejected in Ohio Council 8 American Federation of State, County, and Municipal Employees
v. Brunner, 24 F. Supp. 3d 680 (S.D. Ohio 2014). Is there a constitutional difference between (a)
laws prohibiting judicial candidates from announcing their partisan affiliations, (b) laws
prohibiting parties from endorsing their preferred judicial candidates, see Sanders County
Republican Central Comm. v. Bullock, 698 F.3d 741 (9th Cir. 2012), and (c) laws prohibiting
judicial candidates’ partisan affiliations from appearing on the ballot?
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Chapter 9
CAMPAIGN FINANCE
C. Limits on Contributions
Page 880. Add new note 7 and renumber current note 7 as note 8.
7. McCutcheon v. Federal Election Commission. In addition to limits on the size of
contributions to candidates, federal law and many states place limits on the size of contributions
that can be made to political parties and other political committees. The Supreme Court has
upheld these limits. See California Medical Association v. FEC, 453 U.S. 182 (1981) [p. 822].
Also, the Federal Election Campaign Act and many states impose an aggregate cap on the
amounts that individuals can give to support candidates and committees. A single, aggregate
limit on total contributions in a year was upheld in Buckley, 424 U.S. 1, 38 (1976) (per curiam)
[p. 797].
In the Bipartisan Campaign Reform Act, Section F, infra, Congress placed aggregate
limits on the amount that a donor could give to all candidate committees (currently $48,600) and
to all non-candidate committees (currently $74,600) in an election cycle. These are in addition to
the limits of $2600 that may be given to any one candidate committee, $32,400 to a single
national party committee, and $5000 to any other single political committee. Effectively, the
result is that a donor can make a maximum contribution to only two political party committees,
or 18 candidate committees.
In McCutcheon v. Federal Election Commission, 134 S.Ct. 1434 (2014), the plaintiffs
argue that these aggregate limits could not be justified by the government’s anti-corruption
interest. The plaintiffs argued that the limits on giving to any individual committee adequately
address the state’s interest, and that aggregate limits, by limiting the number of candidates and
committees with whom a donor can associate, burden First Amendment rights more heavily than
limits on giving to a particular candidate or committee. The FEC argued that the aggregate ban
was needed to prevent “conduit corruption,” in which a donor evades contribution limits by
contributing to several committees with unearmarked funds that are nonetheless knowingly
likely to go to particular candidates.
The court divided 5-4, with the same lineup of justices as in the Citizens United case four
year prior (but with Justice Kagan replacing the retired Justice Stevens in the dissent). The
controlling opinion d by Chief Justice Roberts explained:
In a series of cases over the past 40 years, we have spelled out how to draw the constitutional line
between the permissible goal of avoiding corruption in the political process and the impermissible desire
simply to limit political speech. We have said that government regulation may not target the general
gratitude a candidate may feel toward those who support him or his allies, or the political access such
support may afford. “Ingratiation and access ... are not corruption.” Citizens United v. Federal Election
Comm'n, 558 U.S. 310, 360 (2010). They embody a central feature of democracy—that constituents
d
Justice Thomas provided the fifth vote, concurring separately in the judgment, arguing that the Court should strike
down limits on contributions generally.
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support candidates who share their beliefs and interests, and candidates who are elected can be expected to
be responsive to those concerns.
Any regulation must instead target what we have called “ quid pro quo ” corruption or its appearance.
See id., at 359. That Latin phrase captures the notion of a direct exchange of an official act for money.
See McCormick v. United States, 500 U.S. 257, 266, 111 S.Ct. 1807 (1991). “The hallmark of corruption is
the financial quid pro quo : dollars for political favors.” Federal Election Comm'n v. National Conservative
Political Action Comm., 470 U.S. 480, 497 (1985). Campaign finance restrictions that pursue other
objectives, we have explained, impermissibly inject the Government “into the debate over who should
govern.” [Arizona Free Enterprise Club’s Freedom PAC v.] Bennett [131 S.Ct. (2011).] And those who
govern should be the last people to help decide who should govern.* * *
Buckley held that the Government's interest in preventing quid pro quo corruption or its appearance
was “sufficiently important,” * * * so that the interest would satisfy even strict scrutiny. … [However] we
must assess the fit between the stated governmental objective and the means selected to achieve that
objective. Or to put it another way, if a law that restricts political speech does not “avoid unnecessary
abridgement” of First Amendment rights, Buckley, 424 U.S., at 25, it cannot survive “rigorous” review.
Because we find a substantial mismatch between the Government's stated objective and the means
selected to achieve it, the aggregate limits fail even under the “closely drawn” test. * * *
An aggregate limit on how many candidates and committees an individual may support through
contributions is not a “modest restraint” at all. The Government may no more restrict how many candidates
or causes a donor may support than it may tell a newspaper how many candidates it may endorse.
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, even if all contributions fall within the
base limits Congress views as adequate to protect against corruption. The individual may give up to $5,200
each to nine candidates, but the aggregate limits constitute an outright ban on further contributions to any
other candidate (beyond the additional $1,800 that may be spent before reaching the $48,600 aggregate
limit). At that point, the limits deny the individual all ability to exercise his expressive and associational
rights by contributing to someone who will advocate for his policy preferences. A donor must limit the
number of candidates he supports, and may have to choose which of several policy concerns he will
advance—clear First Amendment harms that the dissent never acknowledges.
It is no answer to say that the individual can simply contribute less money to more people. To require
one person to contribute at lower levels than others because he wants to support more candidates or causes
is to impose a special burden on broader participation in the democratic process. And as we have recently
admonished, the Government may not penalize an individual for “robustly exercis[ing]” his First
Amendment rights.
The First Amendment burden is especially great for individuals who do not have ready access to
alternative avenues for supporting their preferred politicians and policies. In the context of base
contribution limits, Buckley observed that a supporter could vindicate his associational interests by
personally volunteering his time and energy on behalf of a candidate. Such personal volunteering is not a
realistic alternative for those who wish to support a wide variety of candidates or causes. Other effective
methods of supporting preferred candidates or causes without contributing money are reserved for a select
few, such as entertainers capable of raising hundreds of thousands of dollars in a single evening. * * *
[W]hile preventing corruption or its appearance is a legitimate objective, Congress may target only a
specific type of corruption—“quid pro quo” corruption. As Buckley explained, Congress may permissibly
seek to rein in “large contributions [that] are given to secure a political quid pro quo from current and
potential office holders.” 424 U.S., at 26. In addition to “actual quid pro quoarrangements,” Congress may
permissibly limit “the appearance of corruption stemming from public awareness of the opportunities for
abuse inherent in a regime of large individual financial contributions” to particular candidates. Id., at 27;
see also Citizens United, 558 U.S., at 359 (“When Buckley identified a sufficiently important governmental
interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro
quo corruption”).
Spending large sums of money in connection with elections, but not in connection with an effort to
control the exercise of an officeholder's official duties, does not give rise to such quid pro quo corruption.
Nor does the possibility that an individual who spends large sums may garner “influence over or access to”
elected officials or political parties. Id., at 359, 130 S.Ct. 876. And because the Government's interest in
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preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption,
the Government may not seek to limit the appearance of mere influence or access.
Justice Breyer wrote for the dissent:
The plurality’s first claim—that large aggregate contributions do not “give rise” to “corruption”—is
plausible only because the plurality defines “corruption” too narrowly. The plurality describes the
constitutionally permissible objective of campaign finance regulation as follows: “Congress may target
only a specific type of corruption—‘quid pro quo’ corruption.” It then defines quid pro quo corruption to
mean no more than “a direct exchange of an official act for money”—an act akin to bribery. It adds
specifically that corruption does not include efforts to “garner ‘influence over or access to’ elected officials
or political parties.” Moreover, the Government's efforts to prevent the “appearance of corruption” are
“equally confined to the appearance of quid pro quo corruption,” as narrowly defined. In the plurality's
view, a federal statute could not prevent an individual from writing a million dollar check to a political
party (by donating to its various committees), because the rationale for any limit would “dangerously
broade[n] the circumscribed definition of quid pro quo corruption articulated in our prior cases.”
This critically important definition of “corruption” is inconsistent with the Court's prior case law (with
the possible exception of Citizens United, …). It is virtually impossible to reconcile with this Court's
decision in McConnell [v. FEC, 540 U.S. 93 (2003)], upholding the Bipartisan Campaign Reform Act of
2002 (BCRA). And it misunderstands the constitutional importance of the interests at stake. In fact,
constitutional interests—indeed, First Amendment interests—lie on both sides of the legal equation.
In reality, as the history of campaign finance reform shows and as our earlier cases on the subject have
recognized, the anticorruption interest that drives Congress to regulate campaign contributions is a far
broader, more important interest than the plurality acknowledges. It is an interest in maintaining the
integrity of our public governmental institutions. And it is an interest rooted in the Constitution and in the
First Amendment itself.
Consider at least one reason why the First Amendment protects political speech. Speech does not exist
in a vacuum. Rather, political communication seeks to secure government action. A politically oriented
“marketplace of ideas” seeks to form a public opinion that can and will influence elected representatives.
This is not a new idea. Eighty-seven years ago, Justice Brandeis wrote that the First Amendment's
protection of speech was “essential to effective democracy.” Whitney v. California, 274 U.S. 357, 377,
(1927) (concurring opinion). Chief Justice Hughes reiterated the same idea shortly thereafter: “A
fundamental principle of our constitutional system” is the “maintenance of the opportunity for free political
discussion to the end that government may be responsive to the will of the people.” Stromberg v.
California, 283 U.S. 359, 369 (1931) (emphasis added). In Citizens United, the Court stated that “[s]peech
is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.”
The Framers had good reason to emphasize this same connection between political speech and
governmental action. An influential 18th-century continental philosopher had argued that in a
representative democracy, the people lose control of their representatives between elections, during which
interim periods they were “in chains.” J. Rousseau, An Inquiry Into the Nature of the Social Contract 265–
266 (transl. 1791).
The Framers responded to this criticism both by requiring frequent elections to federal office, and by
enacting a First Amendment that would facilitate a “chain of communication between the people, and
those, to whom they have committed the exercise of the powers of government.” J. Wilson, Commentaries
on the Constitution of the United States of America 30–31 (1792). This “chain” would establish the
necessary “communion of interests and sympathy of sentiments” between the people and their
representatives, so that public opinion could be channeled into effective governmental action. The
Federalist No. 57, p. 386 (J. Cooke ed. 1961) (J. Madison); accord, T. Benton, 1 Abridgement of the
Debates of Congress, from 1789 to 1856, p. 141 (1857) (explaining that the First Amendment will
strengthen American democracy by giving “ ‘the people’ ” a right to “ ‘publicly address their
representatives,’ ” “ ‘privately advise them,’ ” or “ ‘declare their sentiments by petition to the whole body’
” (quoting James Madison)). Accordingly, the First Amendment advances not only the individual's right to
engage in political speech, but also the public's interest in preserving a democratic order in which collective
speech matters.
What has this to do with corruption? It has everything to do with corruption. Corruption breaks the
constitutionally necessary “chain of communication” between the people and their representatives. It
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derails the essential speech-to-government-action tie. Where enough money calls the tune, the general
public will not be heard. Insofar as corruption cuts the link between political thought and political action, a
free marketplace of political ideas loses its point. That is one reason why the Court has stressed the
constitutional importance of Congress’ concern that a few large donations not drown out the voices of the
many. * * *
That is also why the Court has used the phrase “subversion of the political process” to describe
circumstances in which “[e]lected officials are influenced to act contrary to their obligations of office by
the prospect of financial gain to themselves or infusions of money into their campaigns.” NCPAC, 470
U.S., at 497. See also Federal Election Comm’n v. National Right to Work Comm., 459 U.S. 197, 208,
(1982) (the Government's interests in preventing corruption “directly implicate the integrity of our electoral
process” (internal quotation marks and citation omitted)). See generally R. Post, Citizens Divided:
Campaign Finance Reform and the Constitution 7–16, 80–94 (forthcoming 2014) (arguing that the efficacy
of American democracy depends on “electoral integrity” and the responsiveness of public officials to
public opinion).
The “appearance of corruption” can make matters worse. It can lead the public to believe that its
efforts to communicate with its representatives or to help sway public opinion have little purpose. And a
cynical public can lose interest in political participation altogether. See Nixon v. Shrink Missouri
Government PAC, 528 U.S. 377, 390, (2000) (“[T]he cynical assumption that large donors call the tune
could jeopardize the willingness of voters to take part in democratic governance”). Democracy, the Court
has often said, cannot work unless “the people have faith in those who govern.” United States v.
Mississippi Valley Generating Co., 364 U.S. 520, 562 (1961).
The upshot is that the interests the Court has long described as preventing “corruption” or the
“appearance of corruption” are more than ordinary factors to be weighed against the constitutional right to
political speech. Rather, they are interests rooted in the First Amendment itself. They are rooted in the
constitutional effort to create a democracy responsive to the people—a government where laws reflect the
very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects. Given
that end, we can and should understand campaign finance laws as resting upon a broader and more
significant constitutional rationale than the plurality's limited definition of “corruption” suggests. We
should see these laws as seeking in significant part to strengthen, rather than weaken, the First Amendment.
To say this is not to deny the potential for conflict between (1) the need to permit contributions that pay for
the diffusion of ideas, and (2) the need to limit payments in order to help maintain the integrity of the
electoral process. But that conflict takes place within, not outside, the First Amendment's boundaries.
Notice that Justice Breyer’s dissent shifts the paradigm: for Justice Breyer, the First
Amendment is not about preserving individual liberty from government encroachment, but about
enabling the government to create a more efficient “marketplace of ideas” that will “secure
government action.” This conception of the Amendment as a “collective” right is radically
different from that of the majority. The majority sees incumbent officeholders as “the last
people” we should trust to regulate political speech. What ramifications flow from each view?
Who has the better argument?
F. The Bipartisan Campaign Reform Act and its Aftermath
Page 1051, add to note 1, second paragraph, delete last sentence and replace with:
In Bluman v. Federal Election Commission, 800 F. Supp. 2d 281 (D.D.C. 2011), summarily aff’d
132 S.Ct. 1087 (2012), a three-judge panel of the U.S. District Court upheld Congress’s
prohibition on both expenditures and contributions by non-resident aliens. The Court did not rely
on the anti-corruption rationale of Buckley, but rather on the grounds that foreign citizens may be
denied political rights available to U.S. citizens, including the right to vote and to hold public
office.
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Page 1053. Insert the following after Note 6:
7. Does Citizens United undercut the rationale for restricting direct corporate
contributions to candidates? The case that it does is at least superficially appealing. If, as Citizens
United says (p. 1020), “government cannot restrict political speech based on the speaker’s
corporate identity,” then one might question the justification for the outright prohibition on
corporate contributions to candidates. Does a $2600 contribution from a corporation really offer
more opportunity for quid pro quo exchange than a $2600 contribution from that corporation’s
CEO? Similarly, the Court’s opinion noted that due to the costs and burden of maintaining a
political action committee, “fewer than 2000 of the millions of corporations in this country have
PACs” (p. 1018). If PACs are an inadequate substitute for corporate expenditures, should the
Court extend this reasoning to hold that PACs are an inadequate substitute for most corporations
to make contributions?
Apparently not. William Danielczyk was criminally prosecuted for, inter alia, using
straw donors to contribute corporate funds to a campaign. Danielczyk argued that after Citizens
United, a complete ban on corporate contributions was unconstitutional. The Court of Appeals,
however, upheld the ban, and the Supreme Court denied certiorari. Are there justifications for
banning corporate contributions that are not present in considering corporate expenditures?
United States v. Danielczyk, 683 F.3d 611 (4th Cir. 2012), cert denied 133 S. Ct. 1459 (2013).
Recall that Buckley held that a limit on independent expenditures was a greater First Amendment
burden than a limit on contributions, and that contributions posed a greater danger of corruption
than independent expenditures. Are these considerations enough to justify the difference? Is
there an equal-protection claim? Should Congress have to treat all potential donors and spenders
alike? Consider Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990) [p. 944],
which held that the state could differentiate in its treatment of corporations, unions, and the
press, and California Medical Association v. FEC, 453 U.S. 182 (1981) [p. 822], which upheld
distinctions in the treatment of partnerships and corporations.
8. In Western Tradition Partnership v. Bullock, 271 P.3d 1 (Mont. 2011), the Montana
Supreme Court upheld the Montana’s ban on independent corporate expenditures. The court
interpreted Citizens United not to hold that a prohibition on independent expenditures was per se
unconstitutional, but only that such a prohibition must be justified by the record. The court then
relied on the following history as establishing a sufficiently compelling state interest to justify
the ban:
Examples of well-financed corruption abound. In the fight over mineral rights between entrepreneur F.
Augustus Heinze and the Anaconda Company, then controlled by Standard Oil, Heinze managed to control
the two State judges in Butte, who routinely decided cases in his favor. The Butte judges denied being
bribed, but one of them admitted that Anaconda representatives had offered him $250,000 cash to sign an
affidavit that Heinze had bribed him.
In response to the legal conflicts with Heinze, in 1903 Anaconda/Standard closed down all its
industrial and mining operations (but not the many newspapers it controlled), throwing 4/5 of the labor
force of Montana out of work. Its price for sending its employees back to work was that the Governor call a
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special session of the Legislature to enact a measure that would allow Anaconda to avoid having to litigate
in front of the Butte judges. The Governor and Legislature capitulated and the statute survives.
W.A. Clark, who had amassed a fortune from the industrial operations in Butte, set his sights on the
United States Senate. In 1899, in the wake of a large number of suddenly affluent members, the Montana
Legislature elected Clark to the U.S. Senate. Clark admitted to spending $272,000 in the effort and the
estimated expense was over $400,000. Complaints of Clark’s bribery of the Montana Legislature led to an
investigation by the U.S. Senate in 1900. The Senate investigating committee concluded that Clark had
won his seat through bribery and unseated him. The Senate committee “expressed horror at the amount of
money which had been poured into politics in Montana elections . . . and expressed its concern with respect
to the general aura of corruption in Montana.” * * *
After the Anaconda Company cleared itself of opposition from Heinze and others, it controlled 90% of
the press in the state and a majority of the legislature. By 1915 the company, after having acquired all of
Clark’s holdings as well as many others, “clearly dominated the Montana economy and political order . . .
[and] local folks now found themselves locked in the grip of a corporation controlled from Wall Street and
insensitive to their concerns.” Even at that time it was evident that industrial corporations controlled the
state “thus converting the state government into a political instrument for the furthering and
accomplishment of legislation and the execution of laws favorable to the absentee stockholders of the large
corporations and inimical to the economic interests of the wage earning and farming classes who constitute
by far the larger percentage of the population in Montana.”
In 1900 Clark himself testified in the United States Senate that “[m]any people have become so
indifferent to voting” in Montana as a result of the “large sums of money that have been expended in the
state. . . .” This naked corporate manipulation of the very government (Governor and Legislature) of the
State ultimately resulted in populist reforms that are still part of Montana law. In 1906 the people voted to
amend the state Constitution to allow for voter initiatives. Not long thereafter, in 1906 this new initiative
power was used to enact reforms including * * * the Corrupt Practices Act, part of which survives as [the
statute] at issue in this case.
271 P.3d at 23-28 (citations omitted).
Read this history closely. How relevant is it to the constitutionality of the ban on independent
corporate expenditures? Do its examples—bribery of judges and legislators, control of
newspapers (which are exempt from the Montana prohibition on corporate expenditures), use of
economic power to close factories, and allegations of legislative dominance a decade after the
state prohibited corporate expenditures—support application of the Montana statute on
independent campaign expenditures as necessary to prevent corruption? Do they demonstrate
that corporate spending poses a threat of corruption, or do they fail to support the notion that
corporate spending in campaigns corrupts the legislature? Does it make a difference to your
thinking that during this period of alleged corporate domination, the state passed the reforms
mentioned in the last quoted paragraph, including the ban on corporate political spending?
Could the statute be interpreted as an effort to by anti-Anaconda forces to improve their
political position by limiting opposition speech? See Robert G. Natelson, Montana’s Supreme
Court Relies on Erroneous History in Rejecting Citizens United 8 (Center for Competitive
Politics 2012). According to Natelson:
Montana activists have a long history of adopting campaign finance “reforms”—even obviously
unconstitutional ones—to promote their political agendas. Section 13-35-227 was just one example.
Another arose in 1975, when “progressives” successfully banned corporate spending on ballot issues. A
federal appeals court struck down the ban as unconstitutional. In 1996, they convinced the voters to pass I125—yet another ban on corporate spending in ballot issue campaigns. The purpose was to prevent mining
companies from defending themselves against an anti-mining initiative (I-137), to be offered at the
following general election. Two federal courts invalidated I-125.
During oral argument on the Western Tradition case, the Montana justices communicated that they
were deeply concerned about how corporate contributions might change electoral results—particularly in
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their own elections, where corporate money has heretofore been locked out and financing dominated by
trial lawyers.
The U.S. Supreme Court, in a one page per curiam opinion, summarily reversed, 5-4, in
American Tradition Partnership v. Bullock, 567 U.S. ____, 132 S. Ct. 2490 (2012). The Justices
split along the same lines as in Citizens United.
Recall that in Citizens United, the Court wrote, “independent expenditures, including those
made by corporations, do not give rise to corruption or the appearance of corruption.” Is this an
evidentiary judgment by the court, or a statement of what constitutes a “compelling government
interest” for purposes of First Amendment law? Consider that in American Tradition
Partnership, the Court did not discuss any of the evidence that the Montana court found
persuasive, writing only, “[t]he question presented in this case is whether the holding of Citizens
United applies to the Montana state law. There can be no serious doubt that it does. Montana’s
arguments in support of the judgment below either were already rejected in Citizens United or
fail to meaningfully distinguish that case.”
9. Super PACs and Non-Profits. Citizens United is often credited (or blamed) for the creation
of what the Federal Election Commission recognizes as “Independent Expenditure Committees”
but what have become colloquially known as “Super PACs.” A Super PAC is simply a PAC,
subject to the same organizational and reporting requirements as any other PAC. However, Super
PACs make only independent expenditures—they do not contribute to parties, candidates, or
traditional PACs. As a result, Super PACs are permitted to receive contributions from any
source, including corporations and unions, in any amount, without limit.
Super PACs are actually not a direct creation of Citizens United, but rather of a Court of
Appeals case, SpeechNow.org v. Federal Election Commission, 599 F.3d 686 (D.C. Cir. 2010).
In SpeechNow, an unincorporated group of individuals challenged the $5000 personal limit on
contributions to a political committee as applied to a committee that only made independent
expenditures. The plaintiffs argued that if it were not corrupting for a single individual to finance
independent expenditures without limit, it could not be corrupting if that same individual joined
with others to make such expenditures. The Court of Appeals, relying heavily on Citizens United
(decided just six days before oral argument in SpeechNow) ruled for the plaintiffs, and the
government chose not to appeal. Since then, SpeechNow has largely been accepted as the law in
all jurisdictions. Thus the two cases are interlocking: Citizens United holds that, as a matter of
law, independent expenditures are not corrupting; SpeechNow, relying on that ruling, therefore
allows speakers to pool their resources, without limit, to make independent expenditures; and
Citizens United in turn permits corporations and unions to join in those pooling efforts.
Despite some popular perception to the contrary, the substantial majority of contributions to
Super PACs have come from individuals, not corporations or unions. See Adam Lioz & Blair
Bowie, Election Spending 2012: Post-Election Analysis of Federal Election Commission Data
(Nov. 9, 2012), http://www.demos.org/publication/election-spending-2012-post-electionanalysis-federal-election-commission-data (finding just 11 percent from business, five percent
from unions, and an additional 14 percent from sources that include a mix of union, corporate,
and individual money). Super PACs, however, are not the only way that persons can join
together to speak. Non-profit “social welfare” organizations operating under § 501(c)(4) of the
Internal Revenue Code, such as the NAACP Voter Education Fund, the Sierra Club, or the
National Rifle Association, may also make independent expenditures. The same is true for trade
associations organized under § 501(c)(6) of the Code, such as the U.S. Chamber of Commerce.
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These organizations can accept corporate and union contributions as well as individual
contributions.
However, if political activity becomes the group’s primary activity, it triggers two
consequences: first, the group or organization could become a “political committee” as defined
by the Federal Election Campaign Act, and thus subject to the full organizational and reporting
requirements of the Act. Second, the group would jeopardize or lose its tax status—it would
presumably be forced to reorganize under Section 527 of the Internal Revenue Code, the section
used by political organizations. For political purposes, the major consequence of being
reclassified under Section 527 is that such a group must publicly disclose its donors, either
through the FEC reporting system (if it qualifies as a “political committee” under the Federal
Election Campaign Act, meaning it makes $1000 or more in express advocacy expenditures or
takes in more than $1000 in contributions for that purpose) or otherwise through the IRS. Nonprofits and trade associations operating under Section 501(c) can keep the identity of their donors
and members confidential.
What constitutes an organization’s “primary purpose” has never been clearly resolved.
Generally, most experts in the field assume an organization must simply devote less than half its
resources to political activity to avoid that designation. But note further that lobbying does not
count as political activity for making this determination. Thus a group can devote substantial
sums to campaigning, and most or all the rest of its budget to lobbying. For a concise
introduction to these issues, see Donald B. Tobin, The Rise of 501(c)(4)’s in Campaign Activity:
Are They as Clever as They Think?, Election Law@Moritz, Oct. 5, 2010, at
http://moritzlaw.osu.edu/electionlaw/comments/index.php?ID=7667.
The end result after Citizens United and various other decisions and statutes was that, as the
2012 campaign began, political organizers had several types of organizations available to them:
a. Traditional PACs: Traditional PACs register with the FEC and report all donors over
$200. They may make contributions to candidates and party committees, or make
independent expenditures. They may be (and at the federal level are) subject to limits on the
size of contributions they may receive, and the source of those contributions (no corporate or
union money). Examples include Emily’s List Political Action Committee and Microsoft
Political Action Committee.
b. Super PACs: Super PACs are subject to the same registration and reporting
requirements as traditional PACs, but may only make independent expenditures. They may
accept contributions without limit from individuals, corporations, and unions. Examples
include American Crossroads, formed by Republican strategist Karl Rove, and Priorities
USA, a Super PAC formed to help re-elect President Obama.
c. Non-PAC 527s: A non-PAC 527 is an organization that is deemed by the IRS to have
political activity as its primary purpose, but does not qualify as a “political committee” under
FEC regulations. This comes about when the organization engages in “electioneering
communications” or other political messages that do not include “express advocacy” (which
is needed to trigger “committee” status under FECA, per Buckley) but are deemed
sufficiently political by the IRS, which uses a broader definition of “political activity,” to be
ineligible for 501(c)(4) status. The organizations are not subject to contribution restrictions
but must publicly disclose their donors through the Internal Revenue Service, and cannot
engage in “express advocacy” communications. They may not contribute directly to parties
or candidates. Such organizations, including Swift Boat Veterans for Truth and MoveOn.org
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in the 2004 presidential campaign, were popular in the past, but have declined in use since
the advent of Super PACs. MoveOn has in recent years disbanded its 527 arm.
d. 501(c)(4) and (c)(6) organizations: These organizations cannot make direct
contributions to candidates, but may make independent expenditures so long as those
expenditures do not become their primary purpose. They do not have to disclose their donors
to the public. The NAACP Voter Education Fund and the National Rifle Association are
examples of non-profits operating under Section 501(c)(4); the U.S. Chamber of Commerce
is a trade association operating under Section 501(c)(6).
It is possible for one umbrella organization to operate any combination of the above forms of
organizations. For example, a 501(c)(4) non-profit group may establish a traditional PAC to
contribute to directly to candidates, a Super PAC to make independent expenditures, and also
make limited expenditures from its general treasury, allowing some donors to remain
confidential, provided it keeps the various funds separate. See Carey v. Federal Election
Commission, 791 F. Supp. 2d 121 (D.D.C. 2011).
9. Problem: Dick and Jane have approached you on behalf of an informal group of fifteen or
so anti-war activists who gather each weekend to picket and pass out anti-war literature. The
group wants to buy radio ads and put up billboards urging the defeat of their incumbent
congressman, Hank Manley, whom they believe has been too supportive of the war. “We don’t
want to pull any punches,” they tell you. “We want these ads to be hard hitting.” To be effective,
they believe they need to raise at least $120,000. The members of their informal group are
middle class professionals—teachers, college professors, a yoga instructor, some small business
owners and a few stay-at-home parents, and they doubt they can raise the $120,000 from within
the group. But Jane has talked about their plans with her friend Joe Rich, a wealthy entrepreneur.
Rich told Jane he would be willing to contribute up to $150,000 to help defeat Manley. However,
since one of his companies has a number of government contracts, he doesn’t want to upset
Manley, who, if re-elected, might use his office to try to harm his government business. For tax
purposes, he would also prefer to make the contribution through one of his corporations, if
possible. (All his companies are privately held). How would you advise Dick and Jane to
proceed?
10. In the 2011-2012, the Federal Election Commission reported that independent
expenditures accounted for approximately 18.2 percent of total federal political spending, or
$1.27 billion of $6.98 billion. Federal Election Commission, Summary of Campaign Activity of
2011-12
Election
Cycle,
Apr.
19,
2013,
revised
March
27,
2014,
http://www.fec.gov/press/press2013/20130419_2012-24m-Summary.shtml.
70
G. Public Financing of Campaigns
Page 1059. Replace McCommish v. Brewer with the following case:
ARIZONA FREE ENTERPRISE CLUB’S FREEDOM CLUB PAC
v. BENNETT
Supreme Court of the United States
564 U.S. __, 131 S. Ct. 2806 (2011)
CHIEF JUSTICE ROBERTS delivered the opinion of the Court [in which JUSTICE SCALIA, JUSTICE
KENNEDY, JUSTICE THOMAS, and JUSTICE ALITO join]. * * *
The Arizona Citizens Clean Elections Act, passed by initiative in 1998, created a voluntary
public financing system to fund the primary and general election campaigns of candidates for
state office. All eligible candidates for Governor, secretary of state, attorney general, treasurer,
superintendent of public instruction, the corporation commission, mine inspector, and the state
legislature (both the House and Senate) may opt to receive public funding. Eligibility is
contingent on the collection of a specified number of five-dollar contributions from Arizona
voters, and the acceptance of certain campaign restrictions and obligations. Publicly funded
candidates must agree, among other things, to limit their expenditure of personal funds to $500;
participate in at least one public debate; adhere to an overall expenditure cap; and return all
unspent public moneys to the State.
In exchange for accepting these conditions, participating candidates are granted public funds
to conduct their campaigns. In many cases, this initial allotment may be the whole of the State’s
financial backing of a publicly funded candidate. But when certain conditions are met, publicly
funded candidates are granted additional “equalizing” or matching funds.
Matching funds are available in both primary and general elections. In a primary, matching
funds are triggered when a privately financed candidate’s expenditures, combined with the
expenditures of independent groups made in support of the privately financed candidate or in
opposition to a publicly financed candidate, exceed the primary election allotment of state funds
to the publicly financed candidate. During the general election, matching funds are triggered
when the amount of money a privately financed candidate receives in contributions, combined
with the expenditures of independent groups made in support of the privately financed candidate
or in opposition to a publicly financed candidate, exceed the general election allotment of state
funds to the publicly financed candidate. A privately financed candidate’s expenditures of his
personal funds are counted as contributions for purposes of calculating matching funds during a
general election.
Once matching funds are triggered, each additional dollar that a privately financed candidate
spends during the primary results in one dollar in additional state funding to his publicly
financed opponent (less a 6% reduction meant to account for fundraising expenses). During a
general election, every dollar that a candidate receives in contributions—which includes any
money of his own that a candidate spends on his campaign—results in roughly one dollar in
additional state funding to his publicly financed opponent. In an election where a privately
71
funded candidate faces multiple publicly financed candidates, one dollar raised or spent by the
privately financed candidate results in an almost one dollar increase in public funding to each of
the publicly financed candidates.
Once the public financing cap is exceeded, additional expenditures by independent groups
can result in dollar-for-dollar matching funds as well. Spending by independent groups on behalf
of a privately funded candidate, or in opposition to a publicly funded candidate, results in
matching funds. Independent expenditures made in support of a publicly financed candidate can
result in matching funds for other publicly financed candidates in a race. The matching funds
provision is not activated, however, when independent expenditures are made in opposition to a
privately financed candidate. Matching funds top out at two times the initial authorized grant of
public funding to the publicly financed candidate. * * *
An example may help clarify how the Arizona matching funds provision operates. Arizona is
divided into 30 districts for purposes of electing members to the State’s House of
Representatives. Each district elects two representatives to the House biannually. In the last
general election, the number of candidates competing for the two available seats in each district
ranged from two to seven. Arizona’s Fourth District had three candidates for its two available
House seats. Two of those candidates opted to accept public funding; one candidate chose to
operate his campaign with private funds.
In that election, if the total funds contributed to the privately funded candidate, added to that
candidate’s expenditure of personal funds and the expenditures of supportive independent
groups, exceeded $21,479—the allocation of public funds for the general election in a contested
State House race—the matching funds provision would be triggered. At that point, a number of
different political activities could result in the distribution of matching funds. For example:
•
•
•
•
•
•
If the privately funded candidate spent $1,000 of his own money to
conduct a direct mailing, each of his publicly funded opponents would
receive $940 ($1,000 less the 6% offset).
If the privately funded candidate held a fundraiser that generated $1,000 in
contributions, each of his publicly funded opponents would receive $940.
If an independent expenditure group spent $1,000 on a brochure expressing
its support for the privately financed candidate, each of the publicly
financed candidates would receive $940 directly.
If an independent expenditure group spent $1,000 on a brochure opposing
one of the publicly financed candidates, but saying nothing about the
privately financed candidate, the publicly financed candidates would
receive $940 directly.
If an independent expenditure group spent $1,000 on a brochure supporting
one of the publicly financed candidates, the other publicly financed
candidate would receive $940 directly, but the privately financed candidate
would receive nothing.
If an independent expenditure group spent $1,000 on a brochure opposing
the privately financed candidate, no matching funds would be issued.
A publicly financed candidate would continue to receive additional state money in response to
fundraising and spending by the privately financed candidate and independent expenditure
72
groups until that publicly financed candidate received a total of $64,437 in state funds (three
times the initial allocation for a State House race).
Petitioners in this case, plaintiffs below, are five past and future candidates for Arizona state
office—four members of the House of Representatives and the Arizona state treasurer—and two
independent groups that spend money to support and oppose Arizona candidates. They filed suit
challenging the constitutionality of the matching funds provision. The candidates and
independent expenditure groups argued that the matching funds provision unconstitutionally
penalized their speech and burdened their ability to fully exercise their First Amendment rights.
* * * The District Court entered a permanent injunction against the enforcement of the
matching funds provision, but * * * the Court of Appeals reversed the District Court. * * *
Although the speech of the candidates and independent expenditure groups that brought this
suit is not directly capped by Arizona’s matching funds provision, those parties contend that their
political speech is substantially burdened by the state law in the same way that speech was
burdened by the law we recently found invalid in Davis v. Federal Election Comm’n, 554 U.S.
724 (2008) [p. 1007]. In Davis, we considered a First Amendment challenge to the so-called
“Millionaire’s Amendment” of the Bipartisan Campaign Reform Act of 2002. Under that
Amendment, if a candidate for the United States House of Representatives spent more than
$350,000 of his personal funds, [his opponent] was permitted to collect individual contributions
up to $6,900 per contributor—three times the normal contribution limit of $2,300. The candidate
who spent more than the personal funds limit remained subject to the original contribution cap.
***
In addressing the constitutionality of the Millionaire’s Amendment, we acknowledged that
the provision did not impose an outright cap on a candidate’s personal expenditures. We
nonetheless concluded that the Amendment was unconstitutional because it forced a candidate
“to choose between the First Amendment right to engage in unfettered political speech and
subjection to discriminatory fundraising limitations.” Id., at 739. * * *
The logic of Davis largely controls our approach to this case. Much like the burden placed on
speech in Davis, the matching funds provision “imposes an unprecedented penalty on any
candidate who robustly exercises [his] First Amendment right[s].” Under that provision, “the
vigorous exercise of the right to use personal funds to finance campaign speech” leads to
“advantages for opponents in the competitive context of electoral politics.” Ibid.
Once a privately financed candidate has raised or spent more than the State’s initial grant to a
publicly financed candidate, each personal dollar spent by the privately financed candidate
results in an award of almost one additional dollar to his opponent. That plainly forces the
privately financed candidate to “shoulder a special and potentially significant burden” when
choosing to exercise his First Amendment right to spend funds on behalf of his candidacy. If the
law at issue in Davis imposed a burden on candidate speech, the Arizona law unquestionably
does so as well.
The penalty imposed by Arizona’s matching funds provision is different in some respects
from the penalty imposed by the law we struck down in Davis. But those differences make the
Arizona law more constitutionally problematic, not less. First, the penalty in Davis consisted of
raising the contribution limits for one of the candidates. The candidate who benefited from the
increased limits still had to go out and raise the funds. He may or may not have been able to do
so. The other candidate, therefore, faced merely the possibility that his opponent would be able
to raise additional funds, through contribution limits that remained subject to a cap. And still the
Court held that this was an “unprecedented penalty,” a “special and potentially significant
73
burden” that had to be justified by a compelling state interest—a rigorous First Amendment
hurdle. 554 U.S., at 739-740. Here the benefit to the publicly financed candidate is the direct and
automatic release of public money. That is a far heavier burden than in Davis.
Second, depending on the specifics of the election at issue, the matching funds provision can
create a multiplier effect. In the Arizona Fourth District House election previously discussed, if
the spending cap were exceeded, each dollar spent by the privately funded candidate would
result in an additional dollar of campaign funding to each of that candidate’s publicly financed
opponents. In such a situation, the matching funds provision forces privately funded candidates
to fight a political hydra of sorts. Each dollar they spend generates two adversarial dollars in
response. Again, a markedly more significant burden than in Davis.
Third, unlike the law at issue in Davis, all of this is to some extent out of the privately
financed candidate’s hands. Even if that candidate opted to spend less than the initial public
financing cap, any spending by independent expenditure groups to promote the privately
financed candidate’s election—regardless whether such support was welcome or helpful—could
trigger matching funds. What is more, that state money would go directly to the publicly funded
candidate to use as he saw fit. That disparity in control—giving money directly to a publicly
financed candidate, in response to independent expenditures that cannot be coordinated with the
privately funded candidate—is a substantial advantage for the publicly funded candidate. That
candidate can allocate the money according to his own campaign strategy, which the privately
financed candidate could not do with the independent group expenditures that triggered the
matching funds.
The burdens that this regime places on independent expenditure groups are akin to those
imposed on the privately financed candidates themselves. Just as with the candidate the
independent group supports, the more money spent on that candidate’s behalf or in opposition to
a publicly funded candidate, the more money the publicly funded candidate receives from the
State. And just as with the privately financed candidate, the effect of a dollar spent on election
speech is a guaranteed financial payout to the publicly funded candidate the group opposes.
Moreover, spending one dollar can result in the flow of dollars to multiple candidates the group
disapproves of, dollars directly controlled by the publicly funded candidate or candidates.
In some ways, the burden the Arizona law imposes on independent expenditure groups is
worse than the burden it imposes on privately financed candidates, and thus substantially worse
than the burden we found constitutionally impermissible in Davis. If a candidate contemplating
an electoral run in Arizona surveys the campaign landscape and decides that the burdens
imposed by the matching funds regime make a privately funded campaign unattractive, he at
least has the option of taking public financing. Independent expenditure groups, of course, do
not.
Once the spending cap is reached, an independent expenditure group that wants to support a
particular candidate—because of that candidate’s stand on an issue of concern to the group—can
only avoid triggering matching funds in one of two ways. The group can either opt to change its
message from one addressing the merits of the candidates to one addressing the merits of an
issue, or refrain from speaking altogether. Presenting independent expenditure groups with such
a choice makes the matching funds provision particularly burdensome to those groups. And
forcing that choice—trigger matching funds, change your message, or do not speak—certainly
contravenes “the fundamental rule of protection under the First Amendment, that a speaker has
the autonomy to choose the content of his own message.” 6 * * *
6
The dissent sees “chutzpah” in candidates exercising their right not to participate in the public financing scheme,
74
Arizona * * * correctly points out that our decision in Davis focused on the asymmetrical
contribution limits imposed by the Millionaire’s Amendment. But that is not because—as the
State asserts—the reach of that opinion is limited to asymmetrical contribution limits. It is
because that was the particular burden on candidate speech we faced in Davis. And whatever the
significance of the distinction in general, there can be no doubt that the burden on speech is
significantly greater in this case than in Davis: That means that the law here—like the one in
Davis—must be justified by a compelling state interest.
The State argues that the matching funds provision actually results in more speech by
“increas[ing] debate about issues of public concern” in Arizona elections and “promot[ing] the
free and open debate that the First Amendment was intended to foster.” In the State’s view, this
promotion of First Amendment ideals offsets any burden the law might impose on some
speakers.
Not so. Any increase in speech resulting from the Arizona law is of one kind and one kind
only—that of publicly financed candidates. The burden imposed on privately financed candidates
and independent expenditure groups reduces their speech; “restriction[s] on the amount of money
a person or group can spend on political communication during a campaign necessarily reduces
the quantity of expression.” Buckley [v. Valeo], 424 U.S. [1], 19 [(1976)] [p. 797]. Thus, even if
the matching funds provision did result in more speech by publicly financed candidates and more
speech in general, it would do so at the expense of impermissibly burdening (and thus reducing)
the speech of privately financed candidates and independent expenditure groups. This sort of
“beggar thy neighbor” approach to free speech—“restrict[ing] the speech of some elements of
our society in order to enhance the relative voice of others” is “wholly foreign to the First
Amendment.” Id., at 48-49. 7 * * *
The State also argues, and the Court of Appeals concluded, that any burden on privately
financed candidates and independent expenditure groups is more analogous to the burden placed
on speakers by the disclosure and disclaimer requirements we recently upheld in Citizens United
[v. Federal Election Comm’n, 130 S. Ct. 876 (2010)] [p. 1075] than to direct restrictions on
candidate and independent expenditures. This analogy is not even close. A political candidate’s
disclosure of his funding resources does not result in a cash windfall to his opponent, or affect
their respective disclosure obligations. * * *
The State contends that if the matching funds provision truly burdened the speech of
privately financed candidates and independent expenditure groups, spending on behalf of
privately financed candidates would cluster just below the triggering level, but no such
phenomenon has been observed. That should come as no surprise. The hypothesis presupposes a
privately funded candidate who would spend his own money just up to the matching funds
threshold, when he could have simply taken matching funds in the first place.
while objecting that the system violates their First Amendment rights. The charge is unjustified, but, in any event, it
certainly cannot be leveled against the independent expenditure groups. The dissent barely mentions such groups in
its analysis, and fails to address not only the distinctive burdens imposed on these groups—as set forth above—but
also the way in which privately financed candidates are particularly burdened when matching funds are triggered by
independent group speech.
7
The dissent also repeatedly argues that the Arizona matching funds regime results in “more political speech,”
but—given the logic of the dissent’s position—that is only as a step to less speech. If the matching funds provision
achieves its professed goal and causes candidates to switch to public financing, there will be less speech: no
spending above the initial state-set amount by formerly privately financed candidates, and no associated matching
funds for anyone. Not only that, the level of speech will depend on the State’s judgment of the desirable amount, an
amount tethered to available (and often scarce) state resources.
75
Furthermore, the Arizona law takes into account all manner of uncoordinated political
activity in awarding matching funds. If a privately funded candidate wanted to hover just below
the triggering level, he would have to make guesses about how much he will receive in the form
of contributions and supportive independent expenditures. He might well guess wrong.
In addition, some candidates may be willing to bear the burden of spending above the cap.
That a candidate is willing to do so does not make the law any less burdensome. If the State
made privately funded candidates pay a $500 fine to run as such, the fact that candidates might
choose to pay it does not make the fine any less burdensome. * * *
It is clear not only to us but to every other court to have considered the question after Davis
that a candidate or independent group might not spend money if the direct result of that spending
is additional funding to political adversaries. The dissent’s disagreement is little more than
disagreement with Davis.
The State correctly asserts that the candidates and independent expenditure groups “do not
. . . claim that a single lump sum payment to publicly funded candidates,” equivalent to the
maximum amount of state financing that a candidate can obtain through matching funds, would
impermissibly burden their speech. The State reasons that if providing all the money up front
would not burden speech, providing it piecemeal does not do so either. And the State further
argues that such incremental administration is necessary to ensure that public funding is not
under- or over-distributed.
These arguments miss the point. It is not the amount of funding that the State provides to
publicly financed candidates that is constitutionally problematic in this case. It is the manner in
which that funding is provided—in direct response to the political speech of privately financed
candidates and independent expenditure groups. And the fact that the State’s matching
mechanism may be more efficient than other alternatives—that it may help the State in “finding
the sweet-spot” or “fine-tuning” its financing system to avoid a drain on public resources—is of
no moment; “the First Amendment does not permit the State to sacrifice speech for efficiency.”
The United States as amicus contends that “[p]roviding additional funds to petitioners’
opponents does not make petitioners’ own speech any less effective” and thus does not
substantially burden speech. Of course it does. One does not have to subscribe to the view that
electoral debate is zero sum to see the flaws in the United States’ perspective. All else being
equal, an advertisement supporting the election of a candidate that goes without a response is
often more effective than an advertisement that is directly controverted. And even if the publicly
funded candidate decides to use his new money to address a different issue altogether, the end
goal of that spending is to claim electoral victory over the opponent that triggered the additional
state funding.
Because the Arizona matching funds provision imposes a substantial burden on the speech of
privately financed candidates and independent expenditure groups, “that provision cannot stand
unless it is ‘justified by a compelling state interest.’”
There is a debate between the parties in this case as to what state interest is served by the
matching funds provision. The privately financed candidates and independent expenditure
groups contend that the provision works to “level[] electoral opportunities” by equalizing
candidate “resources and influence.” The State and the Clean Elections Institute counter that the
provision “furthers Arizona’s interest in preventing corruption and the appearance of
corruption.” * * *
We have repeatedly rejected the argument that the government has a compelling state interest
in “leveling the playing field” that can justify undue burdens on political speech. In Davis, we
76
stated that discriminatory contribution limits meant to “level electoral opportunities for
candidates of different personal wealth did not serve “a legitimate government objective,” let
alone a compelling one. 554 U.S., at 741. And in Buckley, we held that limits on overall
campaign expenditures could not be justified by a purported government “interest in equalizing
the financial resources of candidates.” 424 U.S., at 56. After all, equalizing campaign resources
“might serve not to equalize the opportunities of all candidates, but to handicap a candidate who
lacked substantial name recognition or exposure of his views before the start of the campaign.”
Id., at 57.
“Leveling electoral opportunities means making and implementing judgments about which
strengths should be permitted to contribute to the outcome of an election,” Davis, supra, at
742—a dangerous enterprise and one that cannot justify burdening protected speech. * * *
[S]uch basic intrusion by the government into the debate over who should govern goes to the
heart of First Amendment values.
“Leveling the playing field” can sound like a good thing. But in a democracy, campaigning
for office is not a game. It is a critically important form of speech. The First Amendment
embodies our choice as a Nation that, when it comes to such speech, the guiding principle is
freedom—the “unfettered interchange of ideas”—not whatever the State may view as fair.
As already noted, the State and the Clean Elections Institute disavow any interest in “leveling
the playing field.” They instead assert that the “Equal funding of candidates” provision serves
the State’s compelling interest in combating corruption and the appearance of corruption. But
even if the ultimate objective of the matching funds provision is to combat corruption—and not
“level the playing field”—the burdens that the matching funds provision imposes on protected
political speech are not justified.
Burdening a candidate’s expenditure of his own funds on his own campaign does not further
the State’s anticorruption interest. Indeed, we have said that “reliance on personal funds reduces
the threat of corruption” and that “discouraging [the] use of personal funds[] disserves the
anticorruption interest.” Davis, supra, at 740-741. That is because “the use of personal funds
reduces the candidate’s dependence on outside contributions and thereby counteracts the
coercive pressures and attendant risks of abuse” of money in politics. Buckley, supra, at 53. The
matching funds provision counts a candidate’s expenditures of his own money on his own
campaign as contributions, and to that extent cannot be supported by any anticorruption interest.
We have also held that “independent expenditures . . . do not give rise to corruption or the
appearance of corruption.” Citizens United. “By definition, an independent expenditure is
political speech presented to the electorate that is not coordinated with a candidate.” Id. The
candidate-funding circuit is broken. The separation between candidates and independent
expenditure groups negates the possibility that independent expenditures will result in the sort of
quid pro quo corruption with which our case law is concerned. Including independent
expenditures in the matching funds provision cannot be supported by any anticorruption interest.
We have observed in the past that “[t]he interest in alleviating the corrupting influence of
large contributions is served by . . . contribution limitations.” Id., at 55. Arizona already has
some of the most austere contribution limits in the United States. Contributions to statewide
candidates are limited to $840 per contributor per election cycle and contributions to legislative
candidates are limited to $410 per contributor per election cycle. Arizona also has stringent
fundraising disclosure requirements. In the face of such ascetic contribution limits, strict
disclosure requirements, and the general availability of public funding, it is hard to imagine what
marginal corruption deterrence could be generated by the matching funds provision.
77
Perhaps recognizing that the burdens the matching funds provision places on speech cannot
be justified in and of themselves, either as a means of leveling the playing field or directly
fighting corruption, the State and the Clean Elections Institute offer another argument: They
contend that the provision indirectly serves the anticorruption interest, by ensuring that enough
candidates participate in the State’s public funding system, which in turn helps combat
corruption. We have said that a voluntary system of “public financing as a means of eliminating
the improper influence of large private contributions furthers a significant governmental
interest.” Buckley, supra, at 96. But the fact that burdening constitutionally protected speech
might indirectly serve the State’s anticorruption interest, by encouraging candidates to take
public financing, does not establish the constitutionality of the matching funds provision. * * *
The flaw in the State’s argument is apparent in what its reasoning would allow. By the
State’s logic it could grant a publicly funded candidate five dollars in matching funds for every
dollar his privately financed opponent spent, or force candidates who wish to run on private
funds to pay a $10,000 fine in order to encourage participation in the public funding regime.
Such measures might well promote participation in public financing, but would clearly suppress
or unacceptably alter political speech. How the State chooses to encourage participation in its
public funding system matters, and we have never held that a State may burden political
speech—to the extent the matching funds provision does—to ensure adequate participation in a
public funding system. Here the State’s chosen method is unduly burdensome and not
sufficiently justified to survive First Amendment scrutiny. * * *
The judgment of the Court of Appeals for the Ninth Circuit is reversed.
It is so ordered.
JUSTICE KAGAN, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join,
dissenting. * * *
The majority contends that the matching funds provision “substantially burdens protected
political speech” and does not “serv[e] a compelling state interest.” But the Court is wrong on
both counts. * * *
* * * Arizona’s matching funds provision does not restrict, but instead subsidizes, speech.
The law “impose[s] no ceiling on [speech] and do[es] not prevent anyone from speaking.”
Citizens United. * * * By enabling participating candidates to respond to their opponents’
expression, the statute expands public debate, in adherence to “our tradition that more speech,
not less, is the governing rule.” Id. What the law does—all the law does—is fund more speech. 2
***
[Petitioners] are making a novel argument: that Arizona violated their First Amendment
rights by disbursing funds to other speakers even though they could have received (but chose to
spurn) the same financial assistance. Some people might call that chutzpah.
Indeed, what petitioners demand is essentially a right to quash others’ speech through the
prohibition of a (universally available) subsidy program. Petitioners are able to convey their
ideas without public financing—and they would prefer the field to themselves, so that they can
speak free from response. To attain that goal, they ask this Court to prevent Arizona from
funding electoral speech—even though that assistance is offered to every state candidate, on the
same (entirely unobjectionable) basis. And this Court gladly obliges.
2
And the law appears to do that job well. Between 1998 (when the statute was enacted) and 2006, overall candidate
expenditures increased between 29% and 67%; overall independent expenditures rose by a whopping 253%; and
average candidate expenditures grew by 12% to 40%.
78
If an ordinary citizen, without the hindrance of a law degree, thought this result an upending
of First Amendment values, he would be correct. That Amendment protects no person’s, nor any
candidate’s, “right to be free from vigorous debate.” Indeed, the Amendment exists so that this
debate can occur—robust, forceful, and contested. * * * And this is no place more true than in
elections, where voters’ ability to choose the best representatives depends on debate—on charge
and countercharge, call and response. So to invalidate a statute that restricts no one’s speech and
discriminates against no idea—that only provides more voices, wider discussion, and greater
competition in elections—is to undermine, rather than to enforce, the First Amendment. 4 * * *
* * * According to the Court, the special problem here lies in Arizona’s matching funds
mechanism, which the majority claims imposes a “substantia[l] burde[n]” on a privately funded
candidate’s speech. Sometimes, the majority suggests that this “burden” lies in the way the
mechanism “diminish[es] the effectiveness” of the privately funded candidate’s expression by
enabling his opponent to respond. At other times, the majority indicates that the “burden” resides
in the deterrent effect of the mechanism: The privately funded candidate “might not spend
money” because doing so will trigger matching funds. Either way, the majority is wrong to see a
substantial burden on expression. 5
Most important, and as just suggested, the very notion that additional speech constitutes a
“burden” is odd and unsettling. * * *
But put to one side this most fundamental objection to the majority’s argument; even then,
has the majority shown that the burden resulting from the Arizona statute is “substantial”? I will
not quarrel with the majority’s assertion that responsive speech by one candidate may make
another candidate’s speech less effective; that, after all, is the whole idea of the First
Amendment, and a benefit of having more responsive speech. See Abrams v. United States, 250
U.S. 616, 630 (1919) (Holmes., J., dissenting) (“[T]he best test of truth is the power of the
thought to get itself accepted in the competition of the market”). And I will assume that the
operation of this statute may on occasion deter a privately funded candidate from spending
money, and conveying ideas by that means. My guess is that this does not happen often: Most
political candidates, I suspect, have enough faith in the power of their ideas to prefer speech on
both sides of an issue to speech on neither. But I will take on faith that the matching funds
provision may lead one or another privately funded candidate to stop spending at one or another
moment in an election. Still, does that effect count as a severe burden on expression? By the
measure of our prior decisions—which have upheld campaign reforms with an equal or greater
impact on speech—the answer is no.
4
The majority argues that more speech will quickly become “less speech,” as candidates switch to public funding.
But that claim misunderstands how a voluntary public financing system works. Candidates with significant financial
resources will likely decline public funds, so that they can spend in excess of the system’s expenditure caps. Other
candidates accept public financing because they believe it will enhance their communication with voters. So the
system continually pushes toward more speech. That is exactly what has happened in Arizona, see n.2, supra, and
the majority offers no counter-examples.
5
The majority’s error on this score extends both to candidates and to independent expenditure groups. Contrary to
the majority’s suggestion, nearly all of my arguments showing that the Clean Elections Act does not impose a
substantial burden apply to both sets of speakers (and apply regardless of whether independent or candidate
expenditures trigger the matching funds). That is also true of every one of my arguments demonstrating the State’s
compelling interest in this legislation. But perhaps the best response to the majority’s view that the Act inhibits
independent expenditure groups lies in an empirical fact already noted: Expenditures by these groups have risen by
253% since Arizona’s law was enacted. See n. 2, supra.
79
Number one: Any system of public financing, including the lump-sum model upheld in
Buckley, imposes a similar burden on privately funded candidates. Suppose Arizona were to do
what all parties agree it could under Buckley—provide a single upfront payment (say, $150,000)
to a participating candidate, rather than an initial payment (of $50,000) plus 94% of whatever his
privately funded opponent spent, up to a ceiling (the same $150,000). That system would
“diminis[h] the effectiveness” of a privately funded candidate’s speech at least as much, and in
the same way: It would give his opponent, who presumably would not be able to raise that sum
on his own, more money to spend. And so too, a lump-sum system may deter speech. A person
relying on private resources might well choose not to enter a race at all, because he knows he
will face an adequately funded opponent. And even if he decides to run, he likely will choose to
speak in different ways—for example, by eschewing dubious, easy-to-answer charges—because
his opponent has the ability to respond. Indeed, privately funded candidates may well find the
lump-sum system more burdensome than Arizona’s (assuming the lump is big enough). Pretend
you are financing your campaign through private donations. Would you prefer that your
opponent receive a guaranteed, upfront payment of $150,000, or that he receive only $50,000,
with the possibility—a possibility that you mostly get to control—of collecting another $100,000
somewhere down the road? Me too. That’s the first reason the burden on speech cannot
command a different result in this case than in Buckley.
Number two: Our decisions about disclosure and disclaimer requirements show the Court is
wrong. Starting in Buckley and continuing through last Term, the Court has repeatedly declined
to view these requirements as a substantial First Amendment burden, even though they
discourage some campaign speech. * * * Like a disclosure rule, the matching funds provision
may occasionally deter, but “impose[s] no ceiling” on electoral expression.
The majority breezily dismisses this comparison, labeling the analogy “not even close”
because disclosure requirements result in no payment of money to a speaker’s opponent. That is
indeed the factual distinction: A matching fund provision, we can all agree, is not a disclosure
rule. But the majority does not tell us why this difference matters. Nor could it. The majority
strikes down the matching funds provision because of its ostensible effect—most notably, that it
may deter a person from spending money in an election. But this Court has acknowledged time
and again that disclosure obligations have the selfsame effect. If that consequence does not
trigger the most stringent judicial review in the one case, it should not do so in the other.
Number three: Any burden that the Arizona law imposes does not exceed the burden
associated with contribution limits, which we have also repeatedly upheld. * * * Rather than
potentially deterring or “diminish[ing] the effectiveness” of expressive activity, these limits stop
it cold. Yet we have never subjected these restrictions to the most stringent review. * * *
The majority thinks it has one case on its side—Davis v. Federal Election Comm’n—and it
pegs everything on that decision. But Davis relies on principles that fit securely within our First
Amendment law and tradition—most unlike today’s opinion. * * *
* * * In Davis, the candidate’s expenditure triggered a discriminatory speech restriction,
which Congress could not otherwise have imposed consistent with the First Amendment; by
contrast, in this case, the candidate’s expenditure triggers a non-discriminatory speech subsidy,
which all parties agree Arizona could have provided in the first instance. In First Amendment
law, that difference makes a difference—indeed, it makes all the difference. * * *
But what of the trigger mechanism—in Davis, as here, a candidate’s campaign expenditures?
That, after all, is the only thing that this case and Davis share. If Davis had held that the trigger
mechanism itself violated the First Amendment, then the case would support today’s holding.
80
But Davis said nothing of the kind. * * * Indeed, Davis explained that Congress could have used
that mechanism to activate a non-discriminatory (i.e., across-the-board) increase in contribution
limits; in that case, the Court stated, “Davis’ argument would plainly fail.” Id., at 737. 8 The
constitutional infirmity in Davis was not the trigger mechanism, but rather what lay on the other
side of it—a discriminatory speech restriction. * * *
For all these reasons, the Court errs in holding that the government action in this case
substantially burdens speech and so requires the State to offer a compelling interest. But in any
event, Arizona has come forward with just such an interest, explaining that the Clean Elections
Act attacks corruption and the appearance of corruption in the State’s political system. * * *
* * * The Clean Elections Act, the State avers, “deters quid pro quo corruption and the
appearance of corruption by providing Arizona candidates with an option to run for office
without depending on outside contributions.” And so Arizona, like many state and local
governments, has implemented public financing on the theory (which this Court has previously
approved), that the way to reduce political corruption is to diminish the role of private donors in
campaigns. 11
And that interest justifies the matching funds provision at issue because it is a critical facet of
Arizona’s public financing program. The provision is no more than a disbursement mechanism;
but it is also the thing that makes the whole Clean Elections Act work. [P]ublic financing has an
Achilles heel—the difficulty of setting the subsidy at the right amount. Too small, and the grant
will not attract candidates to the program; and with no participating candidates, the program can
hardly decrease corruption. Too large, and the system becomes unsustainable, or at the least an
unnecessary drain on public resources. But finding the sweet-spot is near impossible because of
variation, across districts and over time, in the political system. Enter the matching funds
provision, which takes an ordinary lump-sum amount, divides it into thirds, and disburses the last
two of these (to the extent necessary) via a self-calibrating mechanism. That provision is just a
fine-tuning of the lump-sum program approved in Buckley—a fine-tuning, it bears repeating, that
prevents no one from speaking and discriminates against no message. But that fine-tuning can
make the difference between a wholly ineffectual program and one that removes corruption from
the political system. 12 If public financing furthers a compelling interest—and according to this
8
Notably, the Court found this conclusion obvious even though an across-the-board increase in contribution limits
works to the comparative advantage of the non-self-financing candidate—that is, the candidate who actually
depends on contributions. Such a system puts the self-financing candidate to a choice: Do I stop spending, or do I
allow the higher contribution limits (which will help my opponent) to kick in? That strategic choice parallels the one
that the Arizona statute forces.
11
The majority briefly suggests that the State’s “austere contribution limits” lessen the need for public financing, but
provides no support for that dubious claim. As Arizona and other jurisdictions have discovered, contribution limits
may not eliminate the risk of corrupt dealing between candidates and donors, especially given the widespread
practice of bundling small contributions into large packages. For much this reason, Buckley upheld both limits on
contributions to federal candidates and public financing of presidential campaigns. Arizona, like Congress, was
“surely entitled to conclude” that contribution limits were only a “partial measure,” and that a functional public
financing system was also necessary to eliminate political corruption. In stating otherwise, the Court substitutes its
judgment for that of Arizona’s voters, contrary to our practice of declining to “second-guess a . . . determination as
to the need for prophylactic measures where corruption is the evil feared.” Federal Election Comm’n v. National
Right to Work Comm., 459 U.S. 197, 210 (1982) [p. 832].
12
For this reason, the majority is quite wrong to say that the State’s interest in combating corruption does not
support the matching fund provision’s application to a candidate’s expenditure of his own money or to an
independent expenditure. The point is not that these expenditures themselves corrupt the political process. Rather,
Arizona includes these, as well as all other, expenditures in the program to ensure that participating candidates
81
Court, it does—then so too does the disbursement formula that Arizona uses to make public
financing effective. The one conclusion follows directly from the other.
* * * Less corruption, more speech. Robust campaigns leading to the election of
representatives not beholden to the few, but accountable to the many. The people of Arizona
might have expected a decent respect for those objectives.
Today, they do not get it. * * *
Notes and Questions
1. Was the Court correct that “[t]he logic of Davis” controlled the outcome of this case?
2. Under the Arizona law, a candidate who had agreed to participate in the public funding
program could have matching funds triggered for his opponent by the spending of an outside
group, over whom the candidate had no control, and whose message he may dislike or even find
unhelpful. Similarly, in a multi-candidate primary or race in which only one candidate was
privately funded, independent expenditures supporting that candidate could trigger matching
funds for each of his participating opponents, thus releasing more money to be spent against the
favored candidate than the amount of the expenditure for that candidate. In such a situation,
would you advocate that your client, a grassroots organization, make an independent expenditure
in the race?
Did the dissent adequately account for the burdens on speech caused by the state’s use of
independent expenditures in the matching-funds formula? If Arizona’s matching funds had been
triggered only by spending of the privately financed candidate (i.e., had ignored independent
expenditures), should the result have been different?
3. Justice Kagan argued that Arizona’s interest in distributing matching funds was not the
equalization of resources per se, but rather encouraging candidates to opt-in to the publicfinancing system by promising the candidates the funds necessary to wage competitive races.
Encouraging participation in the public-financing system, in turn, was tied to the traditional anticorruption interest. Is this meaningfully different from the equality argument, or is it simply a
back-door way of promoting equality in anti-corruption garb? Justice Kagan previously clerked
for Justice Marshall, who authored the Court’s opinion in Austin v. Michigan State Chamber of
Commerce, 494 U.S. 652 (1990) [p. 944]. Many believe that that case, subsequently overruled by
Citizens United, itself used anti-corruption language to mask an equality rationale for limiting
corporate expenditures in candidate races.
4. The Arizona law limited the matching funds to twice the initial grant. Which candidates,
do you suppose, were most affected by the cap on matching funds? In other words, how would
the cap affect which candidates were burdened by those matching funds? Should the cap have
affected the constitutionality of the law?
5. Whose speech is limited or suppressed by the Arizona matching funds provision? Is
anyone’s? Does the majority adequately address the dissent’s principle argument-that no one’s
speech is being limited, the government is simply providing more avenues for speech? If not, is
there another reason to be concerned about government financing of electoral expenditures that
may be lurking in the background? See Bradley A. Smith, Separation of Campaign & State, 81
GEO. WASH. L. REV. 2038 (2013).
receive the funds necessary to run competitive races—and so to attract those candidates in the first instance. That is
in direct service of the State’s anti-corruption interest.
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H. Mandatory Disclosure of Contributions and Expenditures
Page 1080. Add the following at the end of the page:
Note on Disclosure of Political Spending
In the wake of Citizens United, we have observed a great deal of confusion about what
campaign spending must disclosed. This Note reviews the current disclosure regime for different
types of organizations, and some of the issues that follow from the disclosure regime.
First, recall that while the Court has upheld disclosure of political contributions and
spending, it has not granted the legislature carte blanche in this area. Buckley [p. 1070] restricts
disclosure to candidates and political committees, the latter defined as groups that make direct
contributions to candidates or make expenditures for communications containing “express
advocacy.” In McConnell [p. 1072], the Court approved an extension of disclosure to funding for
“electioneering communications.” And in Citizens United, the Court wrote, “With the advent of
the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the
information needed to hold corporations and elected officials accountable for their positions and
supporters.” 130 S. Ct. at 916.
At the same time, beyond the limits on disclosure outlined in Buckley, the Court has upheld
an individual’s right to speak anonymously about ballot issues in McIntyre v. Ohio Elections
Commission, 514 U.S. 334 (1995) [p. 668]; the right to circulate petitions without publicly
identifying oneself, Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182
(1999) [p. 691]; the right to picket and organize boycotts anonymously, Talley v. California, 362
U.S. 60 (1960); and the right to keep lists of members and donors anonymous, NAACP v.
Alabama, 357 U.S. 449 (1958). Additionally, the Court has exempted groups from disclosure for
reasons of actual and probable harassment by government or private actors, see Brown v.
Socialist Workers ’74 Campaign Committee, 459 U.S. 87 (1982) [p. 659]. But it has required
actual evidence of such harassment, though the justices seem to disagree as to how serious the
threat must be. See Doe v. Reed, 561 U.S. ___, 132 S. Ct. 449 (2011) [Supp. p. 26].
The permissible and actual boundaries of disclosure have been further confused by ad hoc
statutes and the effort, in some cases, to use tax-exempt status as a tool to force disclosure.
Additionally, of course, disclosure rules for candidate and party committees and ballot
committees will vary from state to state. However, most states follow the basic contours of
federal law, with the major difference typically being the thresholds that trigger mandatory
disclosure.
What a group or organization must disclose largely depends on its form of organization and
the nature of its activities.
1. Candidate committees, political parties, and political action committees (“PACs”).
These overt campaign organizations are subject to the greatest disclosure. At the federal level,
they must disclose all donors in excess of $200 in aggregate giving. Many states have much
lower thresholds, see, e.g., Florida Stat. Title IX § 106.7(4)(a)(1) (2011) (requiring reporting of
all contributions regardless of size). They also must file detailed reports on expenditures, by
category and vendor. During election years reports are typically filed monthly, though
expenditures or contributions close to the election can trigger added reporting requirements,
often demanding reporting with 48 hours. See 2 U.S.C. §§ 432-434.
83
2. Super PACs. Super PACs are subject to the same organizational and reporting
requirements as regular PACs. It has been argued, however, that if a non-profit membership
corporation contributes to a Super PAC, voters would know that the non-profit funded the Super
PAC, but may not know who funded the non-profit. See Trevor Potter, Five Myths About Super
PACs, Washington Post, p. B2, April 15, 2012. It is unclear, however, how great a concern this
should be. Non-profit organizations have long been able to engage in limited political activity
without disclosing their donors or membership, see NAACP v. Alabama, and have long done so.
(Scripts of NAACP Voter Education Fund ads from 2000, for example, are available from
Democracy in Action, at http://www.gwu.edu/~action/ads2/adnaacp.html (accessed June 29,
2012).)
One example that is suggested as demonstrating the need for greater disclosure by Super
PACs is the case of W. Spann, LLC. The corporation was formed in March of 2011 and
dissolved in July of that year. In between, its only business appears to have been donating $1
million to a Super PAC. Dan Eggen, Mystery Firm’s $1M Donation to Pro-Romney PAC Raises
Concern Over Transparency, WASH. POST, p. A2, Aug. 4, 2011. However, within 3 days the
creator of W. Spann LLC was known—Edward Conard, a long-time supporter of presidential
candidate Mitt Romney who was apparently advised by his estate planning attorney. Michael
Isikoff, Firm Gives $1 Million to Pro-Romney Group, Then Dissolves, MSNBC, Aug. 4, 2011,
available at http://www.msnbc.msn.com/id/44011308/. Federal law prohibits contributions in the
name of another, which has been interpreted to include reimbursing or advancing the money for
a contribution. 2 U.S.C. § 441f; 11 C.F.R. § 110.4. Knowing this, was the contribution from W.
Spann LLC legal? Based on what you have heard about Citizens United, why would an attorney
not experienced in campaign finance law think that this was legal? Hint: Consider this passage
from a leading reform organization blog: “Citizens United created an environment in which it is
perfectly legal for a shell non-profit corporation to engage in election-related spending on behalf
of a hidden interest.” Lisa Rosenberg, Citizens United Decision Could Lead to Foreign Interests
Influencing US Elections, Sunlight Foundation Blog, Mar. 13, 2012, available at
http://sunlightfoundation.com/blog/2012/03/13/citizens-united-decision-could-lead-to-foreigninterests-influencing-us-elections/. In light of 2 U.S.C. § 441f, is that a correct statement of the
law? Could such comments create incorrect public perceptions of what the law allows?
3. Non-PAC 527s. By having a primary purpose of engaging in political activity, but
avoiding express advocacy, a group qualifies as a Non-PAC 527, named for section 527 of the
Internal Revenue Code, under which political committees operate. “527s” were a popular vehicle
for campaign organizers in the 1990s through the election of 2004 because they could raise
unlimited contributions from individuals, corporations, and unions. Because these groups did not
make direct campaign contributions or engage in “express advocacy,” they were exempt from the
FECA’s political committee disclosure provisions, per Buckley. In 2000, Congress required these
organizations to disclose their donors to the Internal Revenue Service, or else pay taxes on
undisclosed receipts. Pub. L. No. 06t-230 (2000). Non-PAC 527s have declined dramatically in
use since SpeechNow.org. v. Federal Election Commission permitted the creation of Super
PACs, and Citizens United made it possible for unions and corporations to fund express
advocacy communications.
4. Non-Profit Organizations. Non-profit organizations operating under 26 U.S.C.
§§ 501(c)(4) (“social welfare organizations”) and (c)(6) (“business leagues”) may engage in
political activity so long as that does not become their primary purpose. They further escape
regulation as political committees under the FECA pursuant to Federal Election Commission v.
84
Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) [p.936]. Thus these groups must file
reports with the FEC when they make political expenditures, but they do not need to disclose
who contributed to the organization unless the contributions were made to fund specific ads,
which is rare. See 2 U.S.C. § 434(c)(1). Due to a quirk in the law, however, even though they do
not need to disclose donors when making independent expenditures (i.e., expenditures for
express advocacy), these non-profits must disclose the names of individual donors when making
“electioneering communications” (broadcast ads mentioning a candidate without express
advocacy within 60 days of a general election or 30 days of a primary). See 2 U.S.C. § 434(f);
Van Hollen v. FEC, 2012 U.S. App. LEXIS 10333 (D.C. Cir. 2012).
As noted above, the Supreme Court has long held that such organizations may not generally
be required to disclose their members and financial supporters. NAACP v. Alabama, supra;
NAACP v. Button, 371 U.S. 415 (1963); Bates v. City of Little Rock, 361 U.S. 516 (1960). In
recent years a number of conservative organizations have complained about harassment,
vandalism, and boycott based on compelled disclosure. See, e.g., Mitch McConnell, When
Disclosure Threatens Free Speech, WASH. POST, p. A15, June 23, 2012; Bradley A. Smith, In
Defense of Political Anonymity, 20 CITY J. 74 (2010); Doe v. Reed, 132 S. Ct. 449 (2011) [Supp.
p. 26].
NAACP v. Alabama, Button, and Bates each concerned efforts of southern state and local
governments to obtain or publicly reveal membership and donor lists of civil rights organizations
in the 1950s and 1960s. Are concerns about harassment as relevant today? Should these
precedents merely be considered as-applied challenges, unique to their time and place but with
little relevance to today’s disclosure debates?
Note that in addition to the disclosures mentioned above, all broadcast ads and most print ads
must also contain a disclosure notice stating the name of the individual or organization paying
for the ad. Additionally, Federal Communication Commission regulations require broadcasters to
maintain a “political file” that tracks all political ad buys, which is available for public
inspection. 47 C.F.R. § 73.1212. However, while these reveal who bought the ad, they will not
necessarily inform the listener or viewer as to who contributed the funds used by the
organization to purchase the ad. Is this added information necessary? Does it rise to the level of a
“compelling government interest”?
In addition to theoretical and constitutional issues about who should be compelled to disclose
their political spending, and when, there are practical issues that make it much easier to call for
disclosure than to devise a system that effectively informs the public. Consider the following
problem, which is based on a real-world model of political activity.
Problem. In December 2012, the Acme Widget Company contributes $100,000 to the North
American Chamber of Business (“NACB”). It makes another such payment in December of
2013. The NACB has a budget of $50 million annually, with thousands of member companies. In
March 2014, the NACB transfers $600,000 to the State Chamber of Business. The State
Chamber of Business is independent from NACB, but NACB often works with various state
groups, and transfers the $600,000 as part of a program in which it agrees to match money raised
by state organizations to help elect pro-business candidates. The State Chamber of Business had
raised $600,000 for political activity from 157 member companies over the previous six months.
In raising the money, it did not state any specific races in which it planned to spend money or
make endorsements, and of course donors gave up all rights to the money contributed. In June
2014, the State Chamber of Business transfers $1.1 million to Moving Our State Forward, a
501(c)(4) established by the State Chamber in 1999 to conduct lobbying, public education, and
85
political activity. The State Chamber normally uses Moving Our State Forward as its primary
vehicle for political action. In July 2014, Moving Our State Forward transfers $500,000 to the
State Business Alliance, a Super PAC organized in February 2014 by various business groups in
the state. The State Business Alliance receives donations from several other trade and business
associations and companies, and has a total budget of $2.8 million for 2014. In September 2014,
the State Business Alliance makes a $100,000 television ad buy attacking Congresswoman
Banks. What should be disclosed?
86
Chapter 10
AT THE POLLS
B. Burdens on Casting Ballots
Page 1096. Add the following after Note 8:
8a. Since the start of 2011, thirteen states—Alabama, Arkansas, Kansas, Mississippi, New
Hampshire, North Carolina, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas,
Virginia, and Wisconsin—have enacted voter-ID laws or amended existing laws to increase ID
requirements to register or to vote. (Pennsylvania’s law was struck down in state court,
however.) A total of thirty-four states have enacted laws requiring some form of identification to
vote, with thirty-one of those states having voter-ID laws that are currently in effect.
Note that these laws differ in important details, such as the acceptable forms of identification,
whether a photo-ID is required or whether a non-photo-ID will suffice, and whether a voter
without ID can cast a ballot after signing an affidavit at the polling place. A useful catalogue of
states’ laws by the National Conference of State Legislatures is available at
http://www.ncsl.org/default.aspx?tabid=16602.
Lower-court challenges to many of the new laws—some based on state law and others based
on federal law—have reached varying results. Compare, e.g., Democratic Party of Georgia v.
Perdue, 707 S.E.2d 67 (Ga. 2011) (upholding Georgia’s law) and Frank v. Walker, 768 F.3d 744
(7th Cir. 2014) (upholding Wisconsin’s—and overturning a district-court judgment striking it
down), cert. denied 135 S. Ct. 1551 (2015) with Applewhite v. Commonwealth, 2014 WL 184988
(Pa. Commw. Ct. 2014) (striking down Pennsylvania’s law). Arkansas’s law was struck down by
a lower court, but the Arkansas Supreme Court vacated that judgment on procedural grounds.
See Arkansas State Board of Election Commissioners v. Pulaski County Election Commission,
433 S.W.3d 904 (Ark. 2014).
Additionally, the new voter-ID legislation has led to controversy surrounding the Voting
Rights Act’s preclearance requirement. The Department of Justice granted preclearance to some
states’ laws, including those in New Hampshire and Virginia. DOJ initially denied South
Carolina’s application, but the D.C. District Court granted preclearance after South Carolina
offered an interpretation that gutted the law of most of its significance. South Carolina v. United
States, 898 F. Supp. 2d 30 (D.D.C. 2012). Under this interpretation, voters can continue to use
non-photo voter registration cards, as long as they provide a reason for not having a photo ID.
The D.C. District Court denied Texas’s request for preclearance of its photo-ID law. See Texas v.
Holder, 888 F. Supp. 2d 113 (D.D.C. 2012), vacated and remanded 570 U.S. __, 133 S. Ct. 2886
(2013).
With the Supreme Court’s invalidation of the preclearance coverage formula in § 4 of the
VRA in Shelby County, Alabama v. Holder, 570 U.S. __, 133 S. Ct. 2612 (2013), it appears that
preclearance will no longer be an obstacle for the formerly covered jurisdictions. North Carolina,
portions of which had been covered under the formula struck down in Shelby County, has
attempted to take advantage of that decision to enact a new voter-ID law, but the Justice
Department has filed suit to stop it. DOJ is alleging that North Carolina’s voter-ID law is
intentionally discriminatory and thus unconstitutional. See Josh Gerstein, Justice Department
87
Challenges North Carolina Voter ID Law, POLITICO (Sept. 30, 2013), at
http://www.politico.com//story/2013/09/justice-department-north-carolina-voter-id-law97542.html.
As noted in this Supplement (pages 14-15, Note 8), there is a move to use VRA § 3 to bail-in
some of the formerly covered jurisdictions, and DOJ’s suit against North Carolina asks for bailin as well as for the invalidation of the photo-ID law. See id. To the extent such efforts are
successful, preclearance will again be required for the areas bailed-in.
8b. In Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. __, 133 S. Ct. 2247 (2013),
the Supreme Court considered an Arizona law that required voters to present proof of citizenship
upon registration. The Court held that the law was pre-empted by the National Voter Registration
Act, 52 U.S.C. § 20505(a)(1), because the Arizona law imposed an additional registration
requirement beyond completion of the federal form that, according to the NVRA, states must
“accept and use.”
While thus an apparent victory for challengers of such laws, the full story is much more
favorable to states. The Court opined that Congress’s power to regulate the times, places and
manner of federal elections does not include the power to decide “who may vote in [those]
elections.” (slip op. at 13). And the government conceded that the federal form should require
sufficient information to permit state officials to determine if applicants satisfy state-law
qualifications for registration. Accordingly, Arizona cannot require proof of citizenship in
addition to the requirements listed on the federal form, but Arizona can likely demand that the
federal form add a proof-of-citizenship requirement to its list of materials that prospective
Arizona registrants must provide.
C. Campaign-Free Zones Around Polling Places
Page 1112. Add the following to the end of Note 8:
Cf. Jeremy A. Blumenthal & Terry L. Turnipseed, The Polling Place Priming (PPP) Effect: Is
Voting in Churches (or Anywhere Else) Unconstitutional?, 91 B.U. L. REV. 561 (2011)
(suggesting that polling places may affect voting behavior, and offering absentee and
convenience voting as a solution).
88
Chapter 11
COUNTING THE VOTES
B. Constitutional Limits
Page 1133. Add the following to Note 5:
In Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652
(2015), the Court considered the meaning of “Legislature” in a different provision of the
Constitution: the Elections Clause of Article I, which provides that “[t]he Times, Places, and
Manner of holding Elections for Senators and Representatives, shall be prescribed in each State
by the Legislature thereof.” U.S. CONST. art. I, § 4, cl. 1. In Arizona State Legislature, the Court
held that “Legislature” could include an independent districting commission, and in so holding
the Court adopted a much more expansive interpretation of “Legislature” than Chief Justice
Rehnquist did in Bush v. Gore.
Page 1134. Add the following to Note 7:
For a suggestion that the uproar over Bush v. Gore may have led the Court to be reticent to
decide election law cases in general, or may have caused some litigants to be reticent to seek
review in the Court, see Richard L. Hasen, The Supreme Court’s Shrinking Election Law Docket,
2001-2010: A Legacy of Bush v. Gore or Fear of the Roberts Court?, 10 ELECTION L.J. 325
(2011).
Page 1134. Add the following to Note 8:
For discussions of the use of ADR techniques to resolve election-law disputes, see Symposium,
Taking the Vote: Facilitating Disputed Election Processes Through ADR, 27 OHIO ST. J. ON
DISP. RESOL. 281 (2012) (contributions by Foley, Douglas, Bellman, Green, and Batra); Erin
Butcher-Lyden, Note, The Need for Mandatory Mediation and Arbitration in Election Law
Disputes, 25 OHIO ST. J. ON DISP. RESOL. 531 (2010).
Page 1135. Add a new Note 9 after Note 8:
9. While plaintiffs invoking Bush v. Gore do not always prevail, the seeming dormancy of
the case (see Note 7) can be overstated. Consider two elections in the Fall 2010 cycle. In one,
U.S. Senator Lisa Murkowski was defeated in the Republican primary, but successfully retained
her office, running as an independent write-in candidate in the general election. The losing
candidate, who prevailed in the primary, thereafter filed suits in state and federal court to
challenge some of the write-in votes for Murkowski, on the basis of spelling errors regarding her
name. The Alaska Supreme Court rejected the challenges, holding state statutes did not require
exact spellings, and that no more lenient standard for counting write-in votes (as compared to
optical scanners) was used, so Bush v. Gore was not implicated. Miller v. Treadwell, 245 P.3d
89
867 (Alaska 2010). A few days later, the federal court also rejected the challenge on similar
equal-protection grounds. Miller v. Treadwell, 736 F. Supp. 2d 1240 (D. Alaska 2010). The court
held that (1) the Alaska Supreme Court in its decision had not violated the Elections Clause by,
in effect, amending state statutes to allow misspelled write-in ballots to be accepted, since it
rendered an acceptable interpretation of a “poorly drafted state statute,” and (2) unlike Florida in
Bush v. Gore, the Alaska authorities used uniform standards in counting write-in ballots.
In another case, an unsuccessful candidate in a juvenile-court election sued in federal court,
alleging due process and equal protection violations in the review and counting of provisional
ballots that were cast in the wrong precincts due to poll-worker errors. The federal court initially
ordered state officials to undertake a review of the ballots and the counting process. In the
meantime, the successful candidate and a voter sued in the Ohio Supreme Court, and obtained a
declaration that any provisional ballots cast improperly, even due to poll-worker error, should
not be counted under state law. State ex rel. Painter v. Brunner, 941 N.E.2d 782 (Ohio 2011).
Not long afterwards, the federal-court litigation culminated in a lengthy decision by the Sixth
Circuit, Hunter v. Hamilton County Bd. of Elections, 635 F.3d 219 (6th Cir. 2011), which held
that the plaintiff stated a cause of action and remanded for further proceedings. While
acknowledging that federal courts should not interfere in “garden variety” election disputes, this
case presented a “non-frivolous impairment of federal rights.” Among other things, the court
held that since there was evidence that the local board of elections had “treated some miscast
provisional ballots more favorably than others,” the plaintiff might prevail under Bush v. Gore.
The court further held that the Ohio Supreme Court’s resolution of state-law issues in Painter
did not resolve the federal constitutional issues, in part because those claims were not squarely
presented to the state court. It also held that it was unnecessary to address any arguments
regarding the state-wide casting of ballots. A concurring judge was not confident that equalprotection violations under Bush v. Gore had been stated because, as he saw it, there might be
rational reasons to have treated different groups of improperly cast provisional ballots
differently. After remand, the district court held that the Equal Protection Clause required that all
of the provisional ballots be counted. 850 F. Supp. 2d 795 (S.D. Ohio 2012). The court-mandated
recount resulted in the plaintiff winning the election by 74 votes. Dan Horn, Longest Election in
County History Finally Decided, Cincinnati.com (May 18, 2012).
In the 2012 election cycle, other courts addressed how the equal-protection principles of
Bush v. Gore might affect state election processes. See, e.g., Northeast Ohio Coalition for the
Homeless v. Husted, 696 F.3d 580 (6th Cir. 2012) (per curiam) (addressing disparate treatment
of deficient provisional ballots, including those cast in the wrong precinct due to poll worker
error); SEIU v. Husted, 698 F.3d 341 (6th Cir. 2012) (per curiam) (state need not count
provisional ballots cast in the wrong polling place, even if due to poll-worker error); Obama for
America v. Husted, 697 F.3d 423 (6th Cir. 2012) (state could not give only military and overseas
voters preferential treatment regarding early absentee voting).
C. The Help America Vote Act
Page 1144. Add the following to end of Note 2:
Distinguishing Sandusky as concerning § 302 of HAVA, a later court held there was no private
right of action under § 301. Crowley v. Nevada, 678 F.3d 730 (9th Cir. 2012). For an argument
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that, notwithstanding Ohio Republican Party v. Brunner, private rights of action should play a
greater role in the enforcement of federal rights in election cases, see Daniel P. Tokaji, Public
Rights and Private Rights of Action: The Enforcement of Federal Election Laws, 44 IND. L. REV.
113 (2010).
Page 1145. Add the following to end of Note 3:
For further discussion of HAVA, related statutes, and voter registration in general, see
PRESIDENTIAL COMMISSION ON ELECTION ADMINISTRATION, THE AMERICAN VOTING
EXPERIENCE: REPORT AND RECOMMENDATIONS OF THE PRESIDENTIAL COMMISSION ON ELECTION
ADMINISTRATION (2014), available at www.supportthevoter.gov (arguing in favor of a variety of
reforms to voting process, including online voter registration, expanded pre-Election Day voting,
and certification for new voting technology); MARTHA KROPF & DAVID C. KIMBALL, HELPING
AMERICA VOTE: THE LIMITS OF ELECTION REFORM (2011) (analysis of HAVA); Kathleen Hale &
Ramona McNeal, Election Administration Reform and State Choice: Voter Identification
Requirements and HAVA, 38 POL’Y STUD. J. 281 (2010) (studying how some states have adopted
various forms of voter-identification laws that exceed the federal minimum imposed by HAVA);
Charles Stewart III, Voting Technologies, 14 ANN. REV. POL. SCI. 353 (2011) (analyzing voting
methods adopted by states in light of HAVA and other factors, and concluding that “attention to
election technologies by political scientists is still only in its infancy”); PEW Center on the
States, Inaccurate, Costly, and Inefficient (Feb. 2012) (survey and critical examination of
accuracy of state voting registration); and Symposium on Tenth Anniversary of HAVA, 12
ELECTION L.J. 111-240 (2013).
Page 1145. Add the following to the end of Note 4:
A federal appeals court held that Florida violated the NVRA when it conducted a program in
2012 to remove suspected non-citizens from voter rolls within 90 days of a federal election. See
Arcia v. Florida Sec’y of State, 746 F.3d 1273 (11th Cir. 2014). For a general overview of
various federal statutes that regulate state voting administration, see Jennifer Nou, SubRegulating Elections, 2013 SUP. CT. REV. 135.
Page 1145. Add a new Note 5 after Note 4:
5. In Arizona v. Inter Tribal Council of Arizona Inc., 570 U.S. __, 133 S. Ct. 2247 (2013),
the Supreme Court considered the preemptive effect of the NVRA’s mandate in 52 U.S.C.
§ 20505 that states “accept and use” the federal voter-registration form for elections to federal
office. The form does not require evidence of citizenship, only that the applicant aver that he is a
citizen. Arizona required that applicants using the form must also present documentary evidence
of citizenship. A majority of the Court, in an opinion by Justice Scalia, held that requirement
preempted by the NVRA. The Court held that while the “accept and use” language of the NVRA
might be subject to different interpretations, the “fairest reading of the statute is that a stateimposed requirement of evidence of citizenship not required by the Federal Form” is inconsistent
with the mandate.
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The Court noted that the Elections Clause, Art. I, § 4, cl.1, imposes upon states the duty to
prescribe the time, place and manner of elections to the House and Senate, while conferring
power upon Congress to alter or supplant those regulations, including those dealing with
registration. The Clause thus “empowers Congress to regulate how federal regulations are held,
but not who may vote in them.” Because that Clause “necessarily displaces some element of a
pre-existing legal regime erected by” a state, the Court held that the traditional presumption
against interpreting federal statutes to preempt state laws did not operate when Congress
legislated under the Elections Clause. The Court allowed that Arizona could request the federal
Election Assistance Commission to alter the Federal Form to include additional information.
Justices Thomas and Alito dissented, the former on the basis that the Elections Clause, properly
understood, permits states to determine whether voter qualifications have been satisfied, and the
latter on the basis that a presumption against preemption had not been satisfied.
For litigation following-up the Inter Tribal decision, see Kobach v. United States Election
Assistance Comm’n, 772 F.3d 1183 (10th Cir. 2014), cert. denied 2015 WL 1307634 (June 29,
2015), holding that Arizona and Kansas could not obtain a court order forcing the EAC to add
language requiring documentary proof of citizenship to each state’s instructions on the federal
voter registration form. The court held that the states failed to advance proof that registration
fraud in the use of the federal form prevented the states from enforcing their voter qualifications.
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Chapter 12
REMEDYING ERRORS IN ELECTIONS
A.
Introduction
Page 1149. Add the following to the end of Note a:
RICHARD L. HASEN, THE VOTING WARS: FROM FLORIDA TO THE NEXT ELECTION MELTDOWN
(2012); Joshua A. Douglas, Procedural Fairness in Election Contests, 88 IND. L.J. 1 (2013).
Page 1150. Add to the end of the Introduction:
In 2010 the American Law Institute undertook a project, Principles of Election Law: Resolution
of Election Disputes, to develop procedures for recounts and resolution of disputes over the
counting of ballots after they have been cast, and the casting of ballots by means other than the
traditional polling place on election day. Steven F. Huefner & Edward B. Foley, The
Judicialization of Politics: The Challenge of the ALI Principles of Election Law Project, 79
BROOK. L. REV. 1915 (2014).
B.
Re-Votes and the Uniform Date for Federal Elections
Page 1160. Add the following to the end of Note 3:
In Putter v. Montpelier Public School System, 697 A.2d 354 (Vt. 1997), the plaintiff brought a
federal claim under 42 U.S.C. § 1983 in state court, arguing that an election on a school bond
was tainted by public officials spending public funds in favor of the proposal. Even assuming
that there was impropriety, the court held that a new election was not appropriate, citing the high
standard for relief found in federal cases.
Page 1161. Add the following to the end of Note 6:
Some studies of early voting indicate less than dramatic shifts in the number of voters. See, e.g.,
Barry C. Burden et al., Election Laws, Mobilization, and Turnout: The Unanticipated
Consequences of Election Reform, 58 AM. J. POL. SCI. 95 (2014) (concluding that election-day
registration had a positive effect on turnout, while early voting, when implemented by itself, was
associated with lower turnout); Joseph D. Giammo & Brian J. Brox, Reducing the Costs of
Participation: Are States Getting a Return on Early Voting?, 63 POL. RES. Q. 295 (2010)
(concluding that forms of early voting ultimately have little effect on turnout, and merely offer
93
additional convenience for those already inclined to vote). See also Symposium, Time Shifting
the Vote: The Quiet Revolution in American Elections, 10 ELECTION L.J. 73-164 (2011).
Page 1161. Insert a new Note 7:
7. The Court in Arizona Inter Tribal Council of Arizona, Inc., 570 U.S. __, 133 S. Ct. 2247
(2013), addressed the scope of congressional and state powers under the Elections Clause. For a
summary, see this Supplement’s Note 5 to page 1145 of the Casebook.
D. State Remedies for Federal Elections
Page 1190. Add the following to the end of Note 3:
For further discussion of the proper judicial role in election-law litigation, see James B. Cottrill
& Terri J. Perritti, Gerrymandering from the Bench: The Electoral Consequences of Judicial
Redistricting, 12 ELECTION L.J. 261 (2013); The Role of Judges in Election Law, 159 U. PENN. L.
REV. PENNUMBRA 273 (2011) (debate between Daniel P. Tokaji and Allison R. Hayward).
Page 1190. Add the following to the end of Note 5:
For a debate over the descriptive accuracy and the normative desirability of Professor Hasen’s
“Democracy Canon,” compare Christopher S. Elmendorf, Refining the Democracy Canon, 95
CORNELL L. REV. 1051 (2010), with Richard L. Hasen, The Benefits of the Democracy Canon
and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 CORNELL L REV. 1173 (2010).
For differing judicial perspectives on whether merely substantial, as opposed to strict,
compliance with state voting requirements is appropriate, see, e.g., Miller v. Treadwell, 245 P.3d
867 (Alaska 2010) (holding that it was proper to count misspelled write-in votes because state
election statutes should be construed in favor of voter enfranchisement); State ex rel. Painter v.
Brunner, 941 N.E.2d 782 (Ohio 2011) (holding that provisional ballots cast in the wrong
precincts due to poll-worker error should not be counted, given the “plain language” of the
relevant state statutes, which “are mandatory and must be strictly complied with”). Cf. Hunter v.
Hamilton County Bd. of Elections, 635 F.3d 219, 243-44 (6th Cir. 2011) (suggesting without
holding that the construction of state statutes in Painter may violate the Due Process Clause,
because to “disenfranchise citizens whose only error was relying on poll-worker instructions
appears to us to be fundamentally unfair”).
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E. Public and Private Remedies
1. Federal Civil and Criminal Enforcement
Page 1190. Add the following to the end of footnote c:
Joshua A. Douglas, The Procedure of Election Law in Federal Courts, 2011 UTAH L. REV. 433.
Page 1191. Add the following to the end of first full paragraph:
Daniel P. Tokaji, Public Rights and Private Rights of Action: The Enforcement of Federal
Election Laws, 44 IND. L. REV. 113 (2010) (arguing in favor of private rights of action).
Page 1190. Insert a new Note 6 after Note 5:
6. For in-depth case studies of the Coleman v. Franken litigation, see two articles by
Edward B. Foley: The Lake Wobegone Recount: Minnesota’s Disputed 2008 U.S. Senate
Election, 10 ELECTION L.J. 129 (2011), arguing that it can serve as a particularly useful case
study on the promises and pitfalls of absentee voting, and How Fair Can Be Faster: The Lessons
of Coleman v. Franken, 10 ELECTION L.J. 187 (2011), developing a set of procedures to ensure
impartial and speedy resolution of state-wide election disputes.
3. Remedies for the Wrongful Denial of the Right to Vote
Page 1218. Insert a new Note 4 after Note 3:
4. Much as courts have been reluctant to order new elections under Bell v. Southwell, courts
have often (though not always) been reluctant to order injunctive relief for plaintiffs under Roe.
Compare Warf v. Bd. of Elections of Green County, 619 F.3d 553 (6th Cir. 2010) (noting the
principles of Roe, but refused to intervene after a state court declared all absentee votes invalid
(amounting to 11% of all votes), in an election for a county clerk, since state precedent was
followed and there was no fundamental unfairness), with Hunter v. Hamilton County Bd. of
Elections, 635 F.3d 219 (6th Cir. 2011) (noting deference to state authorities shown in cases like
Warf, but stating that allegations by the plaintiff, an unsuccessful candidate in an election for a
county juvenile court, regarding the allegedly unequal treatment of different batches of miscast
provisional ballots, suggested a “non-frivolous impairment of federal rights,” and that federalcourt intervention was appropriate); Northeast Coalition for the Homeless v. Husted, 696 F.3d
580 (6th Cir. 2012) (per curiam) (state improperly disqualified provisional ballot cast in wrong
precinct due to poll-worker error).
95