Academic journal article Harvard Journal of Law & Public Policy

A Constitutional Outlier: Legitimacy as a State Interest and Its Implications in Election Law

Academic journal article Harvard Journal of Law & Public Policy

A Constitutional Outlier: Legitimacy as a State Interest and Its Implications in Election Law

Article excerpt

INTRODUCTION

A common theme throughout election law jurisprudence is the idea of legitimacy. As one scholar put it, "election law jurisprudence is preoccupied with appearances." (1) Whether one refers to it as legitimacy or appearances, the idea is the same: because elections undergird a functioning democracy, (2) people must have trust and confidence in those elections and their results. (3) Electoral legitimacy, while always important, is at the center of many important debates unfolding right now. James Clapper, the former director of national intelligence, has reported that intelligence agencies' assessment of Russian interference in the 2016 election "cast doubt on the legitimacy" of President Donald Trump's victory. (4) President Trump added an asterisk of his own to the 2016 election results when he claimed that he lost the popular vote because millions of undocumented immigrants voted against him. (5) In addition to the concerns about the 2016 election, the Supreme Court's campaign finance decision in Citizens United v. FEC (6) has resulted in worries about political corruption; one New York Times headline read "American Democracy Is Drowning in Money." (7) As with any important political debate, legitimacy and its appearance also matter in the Supreme Court. For example, in the oral argument in Gill v. Whitford (8) this Term, Chief Justice Roberts explicitly questioned whether hearing political gerrymandering claims would hurt the legitimacy of the Supreme Court. (9) In the Court's oral argument for Minnesota Voters Alliance v. Mansky, (10) also this Term, one of the advocates explicitly argued that speech restrictions in polling places could be justified in order to avoid a "perception problem." (11) Although there are many contexts in which legitimacy rears its head in election law, (12) this Note focuses on two: voter ID laws and campaign finance.

Using Crawford v. Marion County Election Board (13) and Buckley v. Valeo (14) as case studies, this Note will explore the Supreme Court's willingness to accept legitimacy as a government interest in voter ID and campaign finance regimes, respectively. Part I compares legitimacy justifications with public perception justifications in other constitutional contexts, concluding that the Supreme Court's embrace of these justifications in election law is in tension with its rejection of them in other First and Fourteenth Amendment contexts. Part II suggests that treating election law differently from other areas of constitutional law is not easily justified and warrants further discussion. Part III shows that the Court's consideration of legitimacy interests can lead to a lower standard of review, often resembling rational basis. Part IV argues that legitimacy justifications counter-intuitively give partisan actors ex ante incentives to damage electoral legitimacy. Part V contends that legitimacy justifications create a dangerous slippery slope for future election law cases. Part VI concludes that the Supreme Court should take a harder look at allowing public perceptions as a state interest in election law jurisprudence.

I. PUBLIC PERCEPTIONS IN FIRST AND FOURTEENTH AMENDMENT JURISPRUDENCE

The Supreme Court has generally declined to consider public perceptions as a state interest in its constitutional jurisprudence, leaving election law as an outlier in the doctrine. When evaluating Fourteenth Amendment claims, the Supreme Court generally uses three standards of review: strict scrutiny, intermediate scrutiny, and rational basis review. (15) The most exacting review is strict scrutiny, which is generally reserved for classifications based on race or national origin and laws affecting fundamental rights. (16) In order to withstand strict scrutiny, the government actor in question must prove that its actions serve a "compelling interest" and are "narrowly tailored" to that end. (17) At the other end of the spectrum is rational basis review, which applies to non-fundamental social and economic legislation and allows nearly any law to stand so long as there is a rational justification for the law, even if the justification is questionable or post-hoc. …

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