Democracy goodbye...

Appoint a few more Scalias, kiss democracy goodbye

By Richard L. Hasen

Republican presidential candidates such as Senator Ted Cruz (R-Tex.) have pledged to appoint a justice like Antonin Scalia to the U.S. Supreme Court, if given the opportunity. Yet Scalia’s record on issues related to American democracy and elections was dismal — even when judged against the standards of the conservative Roberts court.

Placing a few more Scalias on the Supreme Court would likely put America’s current participatory democracy at risk.

Take money in politics. In 2010, the Roberts court, including Scalia, ruled in Citizens United v. Federal Election Commission that corporations, like individuals, have a First Amendment right to spend money independently in campaigns. Yet Scalia went further — he argued that people have a First Amendment right to contribute unlimited sums directly to candidates, which raised the stakes for undue influence. Scalia, like Justice Clarence Thomas, who often voted with him, would subject laws that limit campaign contributions to strict scrutiny. That means they would almost certainly fail in a constitutional challenge.

Next, consider the 1965 Voting Rights Act. The Roberts court, including Scalia, decided in Shelby County v. Holder (2013) that Congress no longer had the power to subject states with a record of intentional racial discrimination in voting to special federal oversight of their elections.

Scalia went further, however. He believed that Section 2 of the Voting Rights Act, which provides nationwide protection to racial and ethnic minorities to ensure they have a fair share of political power, should not apply to “vote dilution” claims.

This means that if Scalia had gotten his way, a jurisdiction with 60 percent white voters and 40 percent African American voters would be perfectly free to create legislative districts with all white-preferred representatives. Unless, that is, you could prove intentional racial discrimination, which is extremely difficult. He even remarked, at oral argument in the Shelby County case, that the Voting Rights Act is simply the “perpetuation of racial entitlement.”

Also on redistricting, Scalia led the way in arguing that courts should have no role in policing partisan gerrymandering — the intentional drawing of district lines to give a political party an excessive amount of political power in a state. The only thing that stopped Scalia from getting his way on the court was the opinion of Justice Anthony Kennedy. He essentially left the question open for new argument in a future case.

Perhaps most pernicious of all was Scalia’s opinion for three justices in the Supreme Court’s fractured 2007 decision, Crawford v. Marion County Elections Board. Crawford challenged the constitutionality of Indiana’s strict law requiring proof of voter identification at the polling place. Three justices, led by Justice David Souter, believed that the law violated the Equal Protection Clause and was unconstitutional. Three justices in the middle, led by Justice John Paul Stevens, and joined by Chief Justice John Roberts and Kennedy, ruled that the law itself was permissible when applied generally in Indiana. But that anyone who could show that they faced special burdens would be entitled to an “as applied” exemption from the law.

Scalia, for himself and Justices Samuel Alito and Thomas would have gone much further. To Scalia, if the law imposed little burden on most people, it was constitutional to apply it to everyone even if it could be shown that the law burdened some people a great deal. Like the homeless, for example, who might lack valid photo identification.

Scalia’s opinion here was remarkable for its willingness to tolerate great burdens on identifiable groups of voters — even in the absence of any evidence such laws were necessary to prevent fraud or promote voter confidence.

The list goes on. Scalia was in the minority in a decision ruling that a state supreme court justice could not hear a case involving a litigant who contributed millions of dollars to a “Super PAC” supporting the justice for office. The majority ruled that allowing the justice to participate violated the Due Process Clause because it would create an appearance that the judge might be impartial. But this appearance did not bother Scalia.

Scalia similarly dissented when the court decided last year that Florida’s legal rules preventing judicial candidates from personally asking for campaign contributions violated the First Amendment.

Perhaps most famously, Scalia was in the five-justice conservative majority deciding Bush v. Gore, the case that handed the disputed 2000 presidential election to Republican George W. Bush against Democrat Al Gore. Given that Scalia generally adhered to narrow readings of the Equal Protection Clause, he nonetheless signed onto a majority opinion that applied a novel, liberal reading of the clause to find a constitutional problem with the Florida vote count. When pushed on the issue years later in the many public forums at which he spoke, Scalia repeatedly told questioners, “Get over it.”

There was only one respect in which Scalia took a democracy-protecting position in election cases. Splitting with fellow conservative Thomas, Scalia was a strong believer in the value of disclosure of those funding U.S. elections. He famously wrote: “For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”

Ironically, this is the one case where Cruz might disagree with Scalia because the senator supports the right to undisclosed spending. Indeed, should Cruz win the 2016 presidential election, the next justice he appoints could be well to the right of Scalia on issues of democracy.

So, the nation would see that there is room to roll back voting rights even further than Scalia would have gone — or where the court has already gone.