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Ciara Torres-Spelliscy

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The Walking Dead Supreme Court

Posted: 07/02/2013 2:35 pm

What does the Roberts Supreme Court have to do with "The Walking Dead"? Zombies.

Since 2006, Chief Justice John Roberts and his trusty sidekick, Justice Sam Alito, have been busy making zombies of good election laws -- removing just enough that they are rendered brain dead, and yet leaving just enough intact that the Supreme Court can claim it did no real harm because technically the law is still alive.

First Justice Roberts made a zombie of the federal campaign finance reform law known as McCain-Feingold in a little noticed case called Wisconsin Right to Life II (WRTL II) in 2007.

Now he has made a zombie of the Voting Rights Act (VRA) in the Shelby Co. v. Holder case by finding that Section 4's coverage formula is unconstitutional in light of current circumstances. This renders Section 5 preclearance a nullity. Section 5 is the brain that made the Voting Rights Act a functioning protector of minority voters across the land.

States that had a demonstrable history of racial discrimination had to check with the feds first before they changed their election laws so that DOJ or a court could confirm that the change would not strip minorities of their franchise on the sly. Just last year a court found Texas was violating the VRA with its redistricting during the preclearance process. Now that protection is gone.

Both decisions are clever. They give nods to values that all American hold dear like the anti-censorship strain of free speech protected by First Amendment in WRTL II and the equality in Shelby Co.

Just when the decision seems reasonable, the judicial scalpel comes out to vivisect Congress's handiwork. The Robert Court has undone the legislature's attempt to curb the corrupting influence of corporate money in politics (McCain-Feingold) and the legislature's attempt to protect the rights of all Americans to vote without local racially driven mischief (VRA).

Both of these laws (while admittedly not perfect) are attempts at a national level to strengthen our democratic process so that elections are free and fair for both candidates and voters. But the Court seems tone deaf to the grander vision animating these reforms: elections where smaller donors or single voters have a real voice -- an ideal where there really is one man one vote. Instead the Court uses legal formalism to elevate the rights of corporations to spend in elections and for states to get the first shot at mucking up election regs without any responsible supervision.

In McCain-Feingold, Congress tried to close loopholes where corporate money poured into federal elections by drawing bright lines for what counts as a "sham issue ad." But the Court made mincemeat of this bright line standard in WRTL II.

Again in Shelby Co. the Court took the lines Congress drew in Section 4's coverage formula and shredded them. Typically these types of definitional lines are legislative prerogatives which earn judicial deference. And it is worth noting that both McCain-Feingold and the VRA were passed by bipartisan coalitions. (Indeed McCain-Feingold's full name is the Bipartisan Campaign Reform Act of 2002). But these laws were undone 5-4 in an ideologically split Supreme Court.

Both decisions are bonanzas for litigation. WRTL II signaled that it was open season on campaign finance laws inviting a flood tide of legal challenges to laws across the nation. (One of those challenges turned into the reviled Citizens United case). Shelby Co. which takes away the prophylactic protection of preclearance, leaves it to plaintiffs to litigate over state and local level discrimination in elections after the fact under Section 2 of the VRA.

The end game for the Court seems to be an odd world where the only laws that get the Court's blessing are ones that make voting more difficult for vulnerable voters, and that make elections so pricey that only the independently wealthy or their friends can afford to run as candidates. These zombies created by the Supreme Court are dangerous for our democracy.

The only solace of Shelby Co. is that the Court didn't completely kill the VRA. Congress has an opportunity to revive the law by adopting an up to date coverage formula. Congress should not squander this opportunity. After all, in WRTL II's spawn Citizens United, the Court took a Congressional legislative response to limiting corporate money in politics off the table entirely--leaving new disclosure rules at the FEC, FCC and SEC and amending the Constitution as the last open doors for reform.

Ciara Torres-Spelliscy is an assistant professor of law at Stetson University College of Law where she teaches Constitutional and Election Law. She is the author of 'The SEC and Dark Political Money.'

 

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