Academic journal article Brigham Young University Law Review

The Supreme Court's Confused Election Law Jurisprudence: Should Competitiveness Matter?

Academic journal article Brigham Young University Law Review

The Supreme Court's Confused Election Law Jurisprudence: Should Competitiveness Matter?

Article excerpt


The Roberts Court handed down two election law decisions in its first Term. The decisions did not create significant change in the constitutional framework of election law. However, they did not leave a stable status quo, as the decisions, to a degree, contradict each other. In Randall v. Sorrell, six Justices struck down a Vermont campaign finance law but disagreed why it was unconstitutional.1 In League of Unitea Latin American Citizens v. Perry (LULAC), five Justices declined to sustain a partisan gerrymandering claim, but disagreed on whether such claims could even state a valid cause of action.2 Each lead opinion produced significant criticism from the concurring Justices, as well as vigorous dissents. The varied positions of the Justices suggest that the Court's temporary position on election law is unstable.

The rationales of Randall and LULAC exhibit a contradiction concerning electoral competitiveness. Justice Breyer's plurality opinion in Randall relied on the anticompetitive effects of the campaign finance law at issue to strike it down.3 However, Justice Kennedy's plurality opinion in LULAC ignored the anticompetitive effects of gerrymandering over the objections of the dissenters.4 It is difficult to see why electoral competitiveness should be important to the Constitution in one context but irrelevant in another, yet the Court's holdings yield just that result. Because electoral competitiveness involves important constitutional considerations, the Supreme Court should treat it consistently.

This Comment will explore the tension between these two decisions and the idea of electoral competitiveness as a factor in evaluating the constitutionality of election laws. Part II presents a brief survey of the degree and effects of electoral competitiveness in American politics. Part III gives a background on Supreme Court election law jurisprudence. Part IV examines Randall in depth, while Part V treats LULAC. Part VI analyzes the positions espoused by the Justices on the current Court and suggests possible directions that the Supreme Court could take to resolve the discrepancies in its electoral jurisprudence.


Despite the closeness of the last two presidential elections, American elections are not generally competitive. Gerrymandering5 has greatly reduced the degree of electoral competitiveness in the House of Representatives, as well as in many state legislatures.6 For example, American politics expert Michael Barone notes that the post-2000 Census redistricting cycle yielded "many bipartisan incumbent protection plans that left few seats at risk for either party."7 The 2002 elections resulted in a House of Representatives in which only 39 out of 435 members had won with less than 55 percent of the vote.8 After 2004, this dropped to 26 members.9 Only twenty-three House elections in 2004 had a margin of less than 10 percent between the winning candidate and the runner-up.10 While the 2006 elections were more competitive, election years of revolutionary change are the exception rather than the norm in American politics.11

The general lack of electoral competitiveness causes many problems. That only 6 percent of the elections for the House of Representatives in 2004 were particularly competitive is troubling since the Founders intended the House, with its frequent elections, to be the part of the Federal Government closest to and most representative of the voters. James Madison thought that the Constitution would ensure that the House would "have an immediate dependence on, and an intimate sympathy with, the people."12 Particularly ironic is his statement that "we cannot doubt that . . . biennial elections, under the federal system, cannot possibly be dangerous to the requisite dependence of the House of Representatives on their constituents."13 Today most Representatives are easily reelected if they want to stay in office. …

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