Hobby Lobby and the Pathology of Citizens United

Four years ago, Citizens United v. Federal Election Commission held that for-profit corporations possess a First Amendment right to make independent campaign expenditures. In so doing, the United States Supreme Court invited speculation that such corporations might possess other First Amendment rights as well. The petitioners in Conestoga Wood Specialties Corp. v. Sebelius are now arguing that for-profit corporations are among the intended beneficiaries of the Free Exercise Clause and, along with the respondents in Sebelius v. Hobby Lobby Stores, that they also qualify as “persons” under the Religious Freedom Restoration Act (RFRA). Neither suggestion follows inexorably from Citizens United, and the role of the case in the pending disputes remains to be seen. Still, it seems fair to say that the Court’s fidelity to the concept of corporate personhood espoused in Citizens United will shape how it evaluates the pending religious liberty cases

Reviving the Right to Vote

Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly racialize fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. I am not convinced. This Article argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well have salutary effects. The argument is premised both on the belief that the Court was right to reject the recent challenges to partisan gerrymandering as well as the conviction that a workable principle to restrain the practice awaits implementation. This Article focuses on LULAC v. Perry, the most recent example of the sort of judicial decision about which election law scholars fret. Unable to articulate any constitutional problem with a blatant partisan gerrymander in Texas, the Supreme Court found traction under the Voting Rights Act (VRA) and held that a portion of that gerrymander diluted minority voting strength in the southwest portion of the state. More specifically, the Court held that Texas violated Section 2 of the Voting Rights Act when it displaced nearly 100,000 Latino residents from a congressional district in Laredo to protect the Republican incumbent they refused to support

Election Law\u27s Lochnerian Turn

This panel has been asked to consider whether the Constitution [is] responsible for electoral dysfunction. \u27 My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves

Enforcing the Fifteenth Amendment

This chapter examines efforts to enforce the Fifteenth Amendment in the period from United States v. Reese through Shelby County v. Holder. Reese and Shelby County expose the most rigorous stance the Court has employed to review congressional efforts to enforce the Fifteenth Amendment, while the years in-between show Congress and the Court working more in tandem, at times displaying remarkable indifference to blatant violations of the Fifteenth Amendment, and elsewhere working cooperatively to help vindicate the Amendment’s promise. Defying simple explanation, this vacillation between cooperation and resistance captures the complex and deeply consequential way concerns about federal power, state autonomy, institutional overreaching, and race-conscious decision-making of various sorts have coalesced at particular moments. The result is a narrative that shows both the progress that is possible when the Fifteenth Amendment is vigorously enforced and the damage that is done when it is not

Grutter\u27s Denouement: Three Templates from the Roberts Court

Precedent from the Roberts Court shows the Justices taking three distinct approaches to precedent they dislike. Each provides a template for the Court to criticize race-based affirmative action in higher education, as Fisher v. University of Texas at Austin is widely expected to do. Most narrowly, the Court might use Fisher to issue a warning, much like it did in 2009 when it sidestepped a constitutional challenge to the Voting Rights Act; under this approach, the opinion would spell out why the Justices think the diversity celebrated in Grutter v. Bollinger no longer provides sufficient justification for the use of race, but would nevertheless stop short of overturning Grutter. By contrast, the Court might use Fisher as a vehicle to overrule Grutter entirely; to do so, it might look to Citizens United v. FEC for instructions on how to disavow a governmental interest only recently upheld as sufficient justification for a challenged regulation. Finally, the Court might pursue a stance Justice Kennedy has charted in several opinions; under this approach, it would focus on means rather than ends in order to excise what the Court finds most objectionable about the admissions practices at the University of Texas

Federalism, Preclearance, and the Rehnquist Court

Lopez v. Monterey County is an odd decision. Justice O\u27Connor\u27s majority opinion easily upholds the constitutionality of a broad construction of section 5 of the Voting Rights Act (VRA) in language reminiscent of the Warren Court. Acknowledging the substantial \u27federalism costs resulting from the VRA\u27s federal intrusion into sensitive areas of state and local policymaking, Lopez recognizes that the Reconstruction Amendments contemplate this encroachment into realms traditionally reserved to the States. Justice O\u27Connor affirms as constitutionally permissible the infringement that the section 5 preclearance process by its nature effects on state sovereignty, and applies section 5 broadly, holding the statute applicable to a county\u27s nondiscretionary implementation of state law. This holding, Justice O\u27Connor insists, adds nothing of constitutional moment to the burdens that the Act imposes. Decided in 1999, Lopez stands in tension not only with a series of Rehnquist Court decisions circumscribing congressional authority to enforce the Reconstruction Amendments, but also with two other opinions interpreting section 5, Reno v. Bossier Parish (Bossier Parish 1), and Reno v. Bossier Parish (Bossier Parish I). These decisions, handed down in 1997 and 2000 respectively, narrowly construe the VRA\u27s preclearance provision and invoke federalism concerns as justification. Bossier Parish I holds that section 5 does not block implementation of voting changes that violate section 2 of the VRA, noting that the contrary construction would increase further the serious federalism costs already implicated by § 5. Bossier Parish II reads section 5\u27s purpose prong to proscribe retrogressive intent only, and not an intent to dilute or an invidious intent more generally, and strangely cites Lopez as support for its claim that the broader reading would exacerbate the \u27substantial\u27 federalism costs that the preclearance procedure already exacts. Left unexplained is why the Court understood the federalism costs implicated in the Bossier Parish cases to be preclusively high, while it viewed the costs at issue in Lopez to be the necessary and justifiable result of implementing the VRA. As part of this Symposium on The New Federalism, this Article will attempt an explanation. After providing a synopsis of the decisions in Lopez and the Bossier Parish cases, it evaluates several rationales for why the Court might have assessed the federalism costs so differently in each decision. The implementation of congressional intent fails as an explanation given that Congress appears to have intended the broad construction of section 5 in all three cases. Nor can the decisions be reconciled based on the principle that enforcement of the Fourteenth and Fifteenth Amendments warrants intrusion into state sovereign processes. Insofar as the Court read section 5 broadly in Lopez because it understood the statute to be enforcing a constitutional right, it should have likewise adopted broad readings in the Bossier Parish cases. So too, an understanding of the Constitution to mandate colorblindness lacks explanatory power given that all three decisions promote racially-informed decisionmaking. Finally, the view that the majority-minority district gives rise to a distinct, constitutionally-cognizable harm fails to explain the difference in approach because this view should have led the Court to adopt narrow constructions of section 5 in all three cases

Eight Months Later

Rick Hasen’s Election Meltdown provides a concise and scathing analysis of what ails the American electoral process. Rick identifies four “principal dangers”—namely, voter suppression, “pockets of incompetence” in election administration, “dirty tricks,” and “incendiary rhetoric” about stolen or rigged elections. He argues that these dangers have contributed to past dysfunctional elections and are sure to infect future ones. Election Meltdown closes with some proposals to temper the identified dangers so as to make voting less difficult and restore confidence in the electoral process

From Laredo to Fort Worth: Race, Politics and the Texas Redistricting Case

LULAC v. Perry held that Texas violated Section 2 of the Voting Rights Act when it displaced nearly 100,000 Latino residents from a congressional district in Laredo to protect the Republican incumbent they refused to support. At the same time, the Justices let stand the dismantling of a so-called “coalition” district in Fort Worth where African-American voters comprising a minority of the district’s population allegedly enjoyed effective control in deciding the district’s representative. Only Justice Kennedy supported the outcome in both Laredo and Fort Worth. His opinion marks the first time that he, or indeed a majority of the Justices, has identified a Section 2 violation in a merits case since Congress amended the statute in 1982. In so doing, Justice Kennedy posits a distinct conception of the role of race in the districting process, one that prohibits districts drawn to construct racially-defined political communities as well as districts that impair the political power of existing communities. This approach neither removes race from the decision-making calculus nor tempers its prominence, but instead channels its use to designated ends. The approach differs from that taken by the Chief Justice, who lamented this “sordid business, this divvying us by race,” but would have done nothing to restrain the institutions most responsible for doing so. Justice Kennedy’s opinion also demonstrates both how partisan gerrymandering shapes claims under the Voting Rights Act, and how the Act may provide a meaningful curb on such gerrymandering. LULAC specifically restrains the use of incumbency protection as a districting principle, at least insofar as its application dilutes the voting strength of a racial minority. More generally, LULAC ’s identification of racial vote dilution in Laredo but not in Fort Worth suggests a nascent conception of political harm to voters regardless of race when a political system is rigged to block competition. In other words, LULAC suggests that Justice Kennedy may find within the Voting Rights Act itself the standard he has been seeking for managing claims of partisan gerrymandering