The Supreme Court reaches an intellectual impasse over Election Laws

Lost in the Political Thicket

THE SUPREME COURT'S MOST RECENT VOTING RIGHTS DECISION, Vieth v. Jubelirer, suggests that the court has reached an intellectual dead end in election law. The justices' inability to resolve the case cleanly is unwelcome news in light of the presidential election. With the last election marred by Bush v. Gore, one of the most controversial decisions in the court's history, the country is already aware of how risky it is for the court to intervene in the electoral process without the guidance of a workable analytic framework.

Both Bush v. Gore and Vieth are part of a story that began four decades ago. The court has long tried to use a conventional individual rights framework to resolve election-related claims that are really about the structure of the political process. An individual rights framework is suitable for addressing a concrete and personal harm, such as the disenfranchisement of a voter blocked from the polls by an illegal tax or a literacy test. But the framework does not provide adequate tools for resolving other types of election law cases, including the claim in Vieth challenging the fairness of a redistricting plan. As a result, the court now finds itself mired in a doctrinal holding pattern.

If the justices don't radically change course, we face two unappealing prospects. Either the court will withdraw from the field, leaving the fate of our democracy to self-interested legislators, or it will render more incoherent opinions that do as much harm as good. Fortunately, there are better options. Either the court should develop a new way to decide election law cases, or voters and their representatives should create nonpartisan institutions to regulate the electoral process, thus relieving the court of the need to police the politicians who now make the rules. While these solutions may seem abstract this late in the election season, their consequences are tangible. Factors that could determine the outcome of this election (including where and how George Bush and John Kerry spend money, and whether Ralph Nader gets on most state ballots) depend a great deal on how we have regulated—or have failed to regulate—the democratic process in the past.

more...

Lost in the Political Thicket

Maybe they just want us to think they can't resolve this case so we will all feel it is out of their control and let thing get really ungly after Nov 2