Gatekeeping vs. Balancing in the Constitutional Law of Elections: Methodological Uncertainty on the High Court
Elmendorf, Christopher S., Foley, Edward B., The William and Mary Bill of Rights Journal
This Essay examines the methodological upheaval created by the quartet of constitutional election law cases decided during October Term 2007. Prior to this Term, the ascendant analytic approach called for a threshold characterization of the burden on the plaintiff's rights, which characterization determined whether the court would apply strict scrutiny or lax, rational-basis-like review. The characterization was generally formal in nature. But in light of the Supreme Court's latest decisions, it is now open to a lower court adjudicating a First Amendment or Equal Protection challenge to an election law-absent a Supreme Court precedent squarely on point-(1) to engage in unmediated, all-things-considered balancing, focusing either on the overall reasonableness of the challenged law or on the reasonableness of exempting or otherwise accommodating the plaintiff or plaintiff-class; (2) to apply strict scrutiny after determining that the law (relative to some practicable alternative) has a large, demonstrable adverse impact on voting, political association, or the competitiveness of campaigns; (3) to apply strict scrutiny after identifying a facial attribute of the law itself that renders it suspect in the judge's eye; (4) to apply extremely deferential review because the law does not have attributes that the judge deems facially suspect and because the judge is leery of getting bogged down in empirical debates or indulging in the guess work of open-ended balancing; or (5) to reject the claim after positing that it raises questions about democratic fairness concerning which there is no discernable historical consensus. During October Term 2007, the Court vacillated among these approaches, while providing precious little guidance to lower courts about the circumstances that warrant one or another methodology. We suggest that the methodological pluralism in these decisions, coupled with a lack of explicit normative direction, may indicate that most Justices are approaching constitutional election law thinking less about doctrinal coherence or interpretive principle than about the instrumental consequences of their rulings for the system of government as a whole.
The Supreme Court has long thought that election law constitutes a distinctive constitutional domain, and that judge-made doctrine ought to account for the characteristics that distinguish this domain from others. There has, of course, been considerable evolution in what the Justices see as the domain's central distinguishing characteristics, and in what they understand to be the appropriate doctrinal response. In Justice Frankfurter's day, the dominant concern was the risk that judicial interventions with respect to the ground rules of political competition would come to be seen as partisan interventions, and that this would eviscerate the foundation of public support upon which judicial authority ultimately rests. 1 For Frankfurter and his allies, the appropriate response was to deem constitutional questions about the political process nonjusticiable except insofar as the text of the Constitution or an independent constitutional prohibition - one with more general applicability - makes avoidance untenable.2
The Warren Court famously rejected Frankfurter's solution to the public perceptions problem and ushered in a new era.3 The defining ideas were that the Constitution protects unenumerated political rights, and that laws burdening the exercise of such rights are presumptively unconstitutional and may be upheld only upon passing the exacting test of justification known as "strict scrutiny."4
The next transformation occurred in the early 1970s.5 The Court did not backtrack from the idea of a fundamental right to vote or a correlative right of ballot access for candidates, but it significantly qualified the notion that state-created impediments to the exercise of these rights are presumptively unconstitutional.6 Whereas the fact or appearance of judicial partisanship was the animating concern in Frankfurter's era, and political injustice was the Warren Court's dominant worry, the new era - which we'll call the Storer era - was marked by an appreciation of the sheer pervasiveness of election regulation, much of which seemed prima facie justifiable. …