The Court has frequently been asked to weigh in on the complexities around one of America’s most important institutions: free and fair elections. As the dynamic of the Court’s liberal and conservative make-up has changed over the decades, the Court has swung back and forth between firm involvement and reluctance to assert jurisdiction. In this Election Report, Court expert Kenneth Jost explores the Court’s attitude toward election-related cases about race and voting, reapportionment and redistricting, and campaign finance.

Document Outline
Race and Voting
Reapportionment and Redistricting
Campaign Finance

The Constitution gives the states principal responsibility to determine the “times, places, and manners” of elections for federal office, subject to Congress’s power to “make or alter such regulations” (Art. I, sec. 4). Congress and eventually federal courts gained greater authority over state voting and election procedures with the ratification of the Fourteenth and Fifteenth Amendments after the Civil War.

The Fifteenth Amendment, ratified in 1870, specifically provides that “the right of citizens of the United States” is not to be “abridged” by the United States or any state “on account of race, color, or previous condition of servitude.” The Fourteenth Amendment, ratified in 1868, became an instrument of federal power over voting and election procedures much later through the broadly phrased provision prohibiting states from denying “to any person within its jurisdiction the equal protection of the laws.”

Both amendments included clauses authorizing Congress to enforce the provisions “through appropriate legislation.” Through the 19th and into the 20th century, the Supreme Court gave Congress only limited support in enforcing the amendments and acted on its own to protect voting rights only after a series of false starts.

The Court assumed a more activist role, however, beginning in the 1960s with a series of decisions enforcing the Equal Protection Clause by requiring state legislatures to apportion seats on the basis of equal population—the so-called “one person, one vote” standard. Congress also intervened more forcefully by enacting the Voting Rights Act of 1965, which broadly prohibited voting practices that discriminated on the basis of race. The law also required states or local jurisdictions with a history of racial discrimination in voting to obtain preclearance from the federal government for any changes in election laws or practices.

Through the 20th century, the Supreme Court exercised its power under the Voting Rights Act and its own precedents to superintend state elections somewhat closely. With the Court’s shift to the right in the 1990s and later in the 21st century, however, the Court retreated from its activist posture somewhat by reducing oversight of election procedures that limited some would-be voters’ access to voting. Most notably, the Court in 2013 effectively nullified the Voting Rights Act’s preclearance requirement in a 5–4 decision that found the law’s original formula for subjecting states or local jurisdiction to the requirement was outdated, and on that basis no longer enforceable.

In redistricting cases, the Court issued a series of decisions beginning in 1993 that limited somewhat the use of race in drawing legislative or congressional districts. The Court also confronted a series of test cases seeking to limit so-called partisan gerrymandering, the practice of drawing district lines deliberately to advantage one political party over another. In 2018, however, the Court held in a bitterly divided 5–4 decision that federal courts have no jurisdiction to entertain such claims.

The Court’s conservative majority adopted a more activist stance, however, toward state and federal campaign finance laws by invalidating on First Amendment grounds some laws seeking to limit the influence of money in federal elections through limits on campaign contributions or campaign spending. In the most controversial of those decisions, the Court in 2010 struck down parts of a federal campaign finance law that limited campaign-season spending on television advertising by individuals or independent groups. Later, the Court in 2014 struck down a campaign finance provision that limited the aggregate value of contributions an individual could make to congressional candidates in a single election cycle.

Race and Voting

With the abolition of slavery under the Thirteenth Amendment and the ratification of the Fifteenth Amendment, tens of thousands of African Americans registered to vote in southern states, but they faced physical intimidation from the white terrorist Ku Klux Klan and stiff resistance from Democratic state and local election officials. Congress acted to protect the former slaves’ rights by enacting the Enforcement Act of 1870, but the Supreme Court virtually nullified that law by ruling in 1876 that Congress had no power to prohibit private individuals from depriving citizens of their constitutional rights.

Two decades later, the Supreme Court began to use its power to curb some of the tactics that southern states deployed to prevent African Americans from voting. But many of the tactics persisted well into the 20th century until the Court and Congress moved more forcefully to outlaw obstacles to voting rights employed primarily against African Americans.

The Court’s two decisions in 1876, United States v. Reese and United States v. Cruikshank , provided legal cover for southerners bent on denying voting rights to the newly emancipated African Americans. In Reese, the Court reversed the Enforcement Act conviction of a Kentucky election official who refused an African American man’s effort to register to vote in a municipal election. The 7–2 decision, written by Chief Justice Morrison Waite, invalidated the Enforcement Act’s operative section on the ground that it did not repeat the Fifteenth Amendment’s words about “race, color, or previous condition of servitude.”

The Court’s 5–4 decision in Cruikshank, released the same day and also written by Waite, stemmed from violence in Louisiana’s hotly disputed gubernatorial election in 1872. Dozens of African Americans and several whites were killed in violence incited by white insurgents. Several of the insurgents involved in the so-called Colfax Massacre were convicted under the Enforcement Act provision that made it a federal crime for two or more people to conspire to deprive anyone of their constitutional rights—in this case, the First Amendment right to assemble and the Second Amendment right to bear arms. In reversing the convictions, Waite reasoned that neither of those rights was enforceable against private individuals and that victims had to look to state governments for protection.

Later, the Supreme Court gave legal cover to one widely adopted official policy aimed at preventing African Americans from voting: literacy tests. Mississippi adopted literacy tests, poll taxes, and so-called grandfather clauses in revising the state’s constitution in 1890, with the declared aim of preventing voting by African Americans. The constitution also barred unregistered voters from serving on juries. Henry Williams challenged the provisions after he was convicted for murder by an all-white jury. The Court’s unanimous decision in Williams v. Mississippi (1898) upheld his conviction. “The constitution of Mississippi and its statutes do not on their face discriminate between the races,” Justice Joseph McKenna wrote, “and it has not been shown that their actual administration was evil.”

The Court adopted a more skeptical attitude two decades later in striking down grandfather clauses—provisions that required would-be voters to show that their grandfathers had been registered voters, an impossible condition for African Americans. The 8–0 decision in Guinn v. United States (1915), written by Chief Justice Edward White, found Oklahoma’s grandfather clause “repugnant to the United States Constitution” because clearly intended to interfere with Fifteenth Amendment rights even if racially neutral on its face.

The Court eventually outlawed another widely adopted practice to limit voting rights for African Americans in the South: all-white Democratic Party primaries, in what was then a solidly Democratic region. Ruling in two cases from Texas— Nixon v. Herndon (1927) and Nixon v. Condon (1932)—the Court found the state had violated the Fourteenth Amendment by preventing African Americans from voting in Democratic primaries. The state’s Democratic Party responded by adopting a rule limiting membership in the party to whites. The Court’s unanimous ruling in Grovey v. Townsend (1935) sanctioned the practice on the ground that the rule was adopted by the political party itself, not the state.

Nine years later, the Court reversed itself and effectively outlawed the practice in an 8–1 decision in Smith v. Allwright (1944) by finding that the party was conducting the election in effect as an arm of the state under delegated authority from the state. The ruling helped spur a five-fold increase in the number of registered black voters in the South from 200,000 in 1940 to more than one million by 1952.

In a similar sequence of decisions, the Court initially upheld poll taxes before outlawing the practice in a decision three decades later. In the first of the rulings, the Court voted unanimously in Breedlove v. Suttles (1937) to find no constitutional violation in Georgia’s $1 poll tax imposed on all male inhabitants between ages 21 and 60 as a qualification to vote. The Court overruled that decision with its 6–3 ruling in Harper v. Virginia Board of Elections (1966). “Voter qualifications have no relation to wealth,” Justice William O. Douglas wrote for the majority. The decision came two years after ratification of the Twenty-Fourth Amendment, which outlawed poll taxes nationwide as a qualification to vote in federal elections.

Voting rights were a major focus of the civil rights revolution that was waged in courts and in the streets from the 1950s through the 1960s and culminated in enactment of the landmark Voting Rights Act of 1965, as passed by Congress and signed into law by President Lyndon B. Johnson. States unsuccessfully challenged the constitutionality of the law in a case that the Supreme Court decided, emphatically, less than a year after enactment. Chief Justice Earl Warren’s opinion for the Court in South Carolina v. Katzenbach (1966) upheld the law after citing “unremitting and ingenious defiance . . . . of the Fifteenth Amendment” in “certain parts of the country” and acknowledging Congress’s power “to use any rational means to effectuate the constitutional prohibition of racial voting discrimination.” The ruling also specifically upheld the formula that Congress used to identify states and local jurisdictions subject to the preclearance requirement.

The Court in the 1980s first weakened and then significantly strengthened the act’s role in helping to elect African Americans to political office. The 6–3 ruling in City of Mobile v. Bolden (1980) upheld the city’s use of at-large voting to elect the three city commissioners who wielded legislative and executive power over the state’s second largest city. Civil rights lawyers argued that at-large voting in the majority-white city prevented African Americans from electing their own favored candidate. In the central holding of the case, Justice Potter Stewart explained that "action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose".

Congress responded to the decision by amending the Voting Rights Act’s Section 2 to establish a “results” test, which prohibits any voting law that has a discriminatory effect whether or not intentionally enacted or maintained for a discriminatory purpose. President Ronald Reagan signed the amendments into law in on June 29, 1982. The Court interpreted the amendment in a seminal decision four years later that turned the law into a weapon against “vote dilution”—election practices that diminish the strength or effectiveness of a person’s vote.

The 7–2 decision in Thornburg v. Gingles (1986) listed three conditions to identify vote dilution in jurisdictions with a history of racially polarized voting. The so-called Gingles factors allow a jurisdiction to be found guilty of vote dilution under the act if a “politically cohesive” racial or language minority group is “sufficiently large and geographically compact to constitute a majority in a single-member district” and the majority “votes sufficiently as a bloc to enable it . . . usually to defeat the minority’s preferred candidate.”

The Gingles factors became significant benchmarks in litigation that emerged in the 1990s after the Court established limits on consideration of race in legislative district line-drawing. In one of the most significant follow-on decisions, the Court held in Bartlett v. Strickland (2009) that states are not required to create so-called crossover districts, in which minority voters comprise less than a majority but can elect candidates of their choice with some support from the racial or language majority group. Liberal justices dissented from the 5–4 ruling.

The Court further weakened the Voting Rights Act in another 5–4 decision, Shelby County v. Holder (2013), that effectively nullified the act’s preclearance section. Writing for the majority, Chief Justice John G. Roberts Jr. faulted Congress for failing to update the formula used in imposing the preclearance requirement despite significant changes in voter registration by African Americans since the 1960s. The failure to adjust the formula, Roberts concluded, violated what he called “the fundamental principle of equal sovereignty” of individual states. Writing for the four liberal justice in dissent, Justice Ruth Bader Ginsburg argued that the ruling failed to take account of what she called “second-generation” barriers to voting, including racial gerrymandering and at-large districts in racially polarized jurisdictions.

Five years earlier, the Roberts Court had turned away fears that new photo ID requirements for would-be voters enacted in several states could have disproportionate effects on the poor, including racial minorities, and the elderly. The 6–3 decision in Crawford v. Marion County Board of Election (2008) upheld an Indiana law requiring a government-issued photo ID to cast ballots. In the main opinion, Justice John Paul Stevens found that the law served the state’s legitimate interests in “deterring and detecting voter fraud.” The dissenters were Stevens’ usual allies in the Court’s liberal bloc: David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

Lower federal courts ruled some of the state voter ID laws unconstitutional on the ground that the burdens on voting rights outweighed the states’ claimed interests in preventing rarely-seen voter impersonation. The Supreme Court, however, continued to take a laissez-faire attitude. The justices declined in 2015 to hear a challenge to Wisconsin’s law. One year earlier, the Court had allowed Texas to use its strictest-in-the-nation voter ID law in the 2014 election despite a federal district court’s finding that the law discriminated against minority voters.

The Court similarly deferred to state election officials in a closely watched case brought by a civil rights group challenging Ohio’s plan to prune its voter registration rolls. The procedure called for removing voters who had not voted in recent elections and who had failed to respond to an official “change of residence” notice. The 5–4 ruling in Husted v. A. Philip Randolph Institute (2018), divided along conservative–liberal lines, found that the state had complied with provisions of two federal laws aimed at easing registration and cleaning up registration rolls because no voters were removed solely because they failed to vote in prior elections.

In another sign of deference to state election practices, the Court in 2018 allowed Texas to use legislative and congressional districting plans adopted with some changes after a federal district court had found the state guilty of racial gerrymandering and vote dilution in adopting maps in 2011 at the start of the decade. The Court’s 5–4 decision in Abbott v. Perez (2018) held that the federal appeals court in Texas was wrong to block the modified maps on the ground that the state had failed to show that the new plan had remedied the racial discrimination in the original maps. “Whenever a challenger claims that a state law was enacted with discriminatory intent, the burden of proof lies with the challenger, not the State,” Justice Samuel A. Alito Jr. wrote for the majority. In a strongly written dissent for the liberal bloc, Justice Sonia Sotomayor said the decision meant that “minority voters in Texas . . . will continue to be underrepresented in the political process” despite “undeniable proof of intentional discrimination.”

Reapportionment and Redistricting

The Supreme Court brought about a political revolution with its decisions in the 1960s forcing rural-dominated state legislatures to apportion seats by population under a “one person, one vote” standard that required virtual equal population among districts in both chambers of bicameral legislatures. Over time, the equal-population rule gave urban centers more influence in state legislatures and, through redrawing of congressional districts, in the U.S. House of Representatives as well.

The Supreme Court invited more difficult cases later, however, by entertaining challenges to the specific shape and political nature of district lines in redistricting plans drawn to satisfy the one person, one vote standard. The Court began in the 1990s to allow and rule in favor of challenges by white voters to so-called racial gerrymanders—district lines drawn to create majority-minority districts likely to elect minority group members to office. The Court also considered, but rejected, challenges to the more common practice of political gerrymandering: district lines drawn deliberately to advantage one political party over the other.

The Roberts Court has continued to closely inspect racially motivated line drawing in legislative and congressional districts, but in dramatic fashion in 2019 the Court in 2019 completely closed the door on political gerrymandering cases in federal courts. The ruling in a North Carolina case, Rucho v. Common Cause (2019), came one year after narrow rulings in two separate decisions that rejected a Democratic-backed challenge to a Republican gerrymander in one state, Wisconsin, and a Republican-backed challenge to a Democratic gerrymander in another, Maryland.

The Court had balked when the justices were first urged to intervene to correct population inequities in congressional districting in a case from Illinois. Justice Felix Frankfurter provided a critical vote in the 4–3 decision Colegrove v. Green (1946) in an opinion that warned against entering “this political thicket.” Sixteen years later, Frankfurter was one of the dissenters in the 6–2 decision in Baker v. Carr (1962) that recognized in a Tennessee case federal court jurisdiction to hear challenges to population inequities in legislative districting.

The partisan implications of reapportionment and redistricting cases were not immediately apparent, but a sharp divide emerged from the 1980s on between Democrats and their liberal allies on one side and Republicans and conservative groups on the other. On one hand, Democrats unsuccessfully challenged partisan gerrymandering in three Republican-controlled states—Indiana, Pennsylvania, and Texas—over a twenty-year period. Republicans, on the other hand, lent their support to white voters who succeeded in challenging racial gerrymanders in two states in the 1990s: North Carolina and Georgia.

Political gerrymanders The rulings in the political gerrymandering cases— Davis v. Bandemer (1986), Vieth v. Jubelirer (2003), and League of Latin American United Citizens v. Perry (2006)—foundered on the justices’ inability to agree on a judicially manageable standard for judging partisan line-drawing to be unconstitutionally excessive. Four conservative justices voted in the last of the cases to bar political gerrymandering cases altogether, but Justice Anthony M. Kennedy left the door open to future challenges in a pivotal opinion even while joining in the 5–4 decision to dismiss the case.

With Kennedy’s retirement in 2018, his successor, Justice Brett Kavanaugh, provided the critical fifth vote for the decision in his rookie term to bar federal courts from hearing political gerrymandering cases at all. Writing for the majority in Rucho v. Common Cause (2019), Chief Justice Roberts retraced the Court’s inability to settle on a standard for political gerrymandering cases before concluding bluntly that political gerrymandering claims “present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”

The 5–4 ruling ordered federal courts in North Carolina and Maryland to dismiss partisan gerrymandering cases for lack of jurisdiction. Democrats had challenged a congressional redistricting plan that helped Republicans gain a majority of North Carolina’s congressional delegation; Republicans had challenged a Democratic-drawn congressional map in Maryland that gave Democrats a tenuous majority in what had been one of the state’s two GOP districts.

Writing for her three liberal colleagues, Justice Elena Kagan wrote a strongly worded dissenting opinion that she emphasized by summarizing from the bench. She accused the majority of “nonchalance” toward increasingly sophisticated practices to draw district lines for particular partisan outcomes. “The practices challenged in these cases imperil our system of government,” Kagan wrote. “Part of the Court's role in that system is to defend its foundations. Nothing is more important than free and fair elections.” With a never-before-heard phrasing, Kagan closed by saying that she dissented “[w]ith respect but with deep sadness.”

Racial gerrymandering The Court opened the door to challenges to racial gerrymandering in a North Carolina case, Shaw v. Reno (1993), with a 5–4 decision that required the redrawing of a bizarrely-shaped congressional district drawn to combine African American neighborhoods in three separated municipalities. In its next ruling two years later, the Court divided by the same 5–4 majority in striking down a congressional districting plan from Georgia that created three majority-black districts. Kennedy’s opinion for the majority in Miller v. Johnson (1995) focused not on the shapes of the districts but on evidence that race was “the predominant factor motivating the legislature’s decision to place a significant number of persons within or without a particular district.”

The Court softened the impact of the decisions somewhat by holding in Easley v. Cromartie (2001) that plaintiffs in racial gerrymandering cases had to show that an alternative would be more consistent with “traditional districting principles” and bring about “significantly greater balance.” The 5–4 decision upheld North Carolina’s second attempt to redraw the congressional district that had been challenged in the 1993 case. In the new decision, Justice Stephen G. Breyer led a 5–4 majority that included three liberal colleagues and the moderate Justice Sandra Day O’Connor in finding no constitutional violation in the drawing of the district to include 47 percent minority population.

With O’Connor shifting sides, the Court split 5–4 with liberal justices in dissent in the next racial gerrymandering case. The ruling in Georgia v. Ashcroft (2003) allowed legislators to shift minority voters out of majority-minority districts if minority voters gained political influence in other districts. Six years later, the Court held in a North Carolina case, Bartlett v. Strickland (2009), that states have no obligation to create so-called crossover districts in which minority voters make up less than half the voting-age population but can elect candidates of their choice with help from white voters. The ruling left in place a redrawn legislative district that reduced the minority voting-age population to 39 percent of the district’s total population. Liberal justices were again in dissent in the 5–4 decision, as O’Connor’s successor, Justice Alito, provided a critical fifth vote for the decision.

The Roberts Court’s most recent decisions in racial gerrymandering cases show the conservative bloc’s continuing skepticism of racially motivated districting plans. The ruling in Bethune-Hill v. Virginia State Board of Elections (2017) found, on a 7–1 vote, that a legislative districting plan was improperly based on race even though it conformed to traditional districting principles. In the same year, the Court ruled in a North Carolina case, Cooper v. Harris , that the legislature violated minority voters’ rights by packing more minority voters into the challenged congressional district than needed to elect a candidate of their choice even though the state claimed their aim was to concentrate Democratic voters into the district to aid Republican candidates in adjoining districts.

Campaign Finance

Federal law sought to regulate and limit campaign contributions and campaign spending beginning in the early 20th century, but the laws were largely unenforced and widely disregarded for most of the century. Congress imposed quarterly reporting requirements on campaign spending and contributions in enacting the Federal Election Campaign Act in 1971. Three years later, Congress enacted a broader overhaul, the Federal Election Campaign Act Amendments in 1974, in the wake of the Watergate scandals.

The 1974 law established the bipartisan Federal Election Commission (FEC) as an independent agency charged with enforcing federal campaign finance laws. The law also established limits on individual campaign contributions, total campaign expenditures, and independent expenditures on behalf of “clearly identified” candidates. The law also established a system of partial public financing for presidential campaigns.

A constitutional challenge to the law led by New York’s Conservative Party senator James L. Buckley reached the Supreme Court for decision within two years of enactment. The Court’s complex decision in Buckley v. Valeo (1976) upheld major parts of the law but struck down others. The Court ruled that the limits on independent expenditures or overall campaign spending infringed on constitutionally protected speech, but upheld limits on campaign contribution as serving the government’s interest in preventing corruption. The ruling also upheld the public financing provisions.

In a significant decision two years later, the Court struck down a Massachusetts law that prohibited corporations from making contributions or expenditures “for the purposes of influencing or affecting the vote on any question submitted to the voters” except those ballot measures “materially affecting the property or assets of the corporation.” The 5–4 decision in First National Bank of Boston v. Bellotti (1978) found the law overly broad and unduly burdensome on First Amendment speech rights.

The ruling left open the possibility that corporations could be banned from contributing to political candidates in the interest of preventing corruption. Twelve years later, the Court settled that question for the time being by upholding Michigan’s ban on corporate contributions to political candidates in a 6–3 decision in Austin v. Michigan Chamber of Commerce (1990). Justice Anthony M. Kennedy, then in his first full term on the Court, led the three dissenters and two decades led the Court in overruling the decision.

Political debates and legal challenges over campaign financing continued through the 1990s and culminated eventually in the enactment of the Bipartisan Campaign Reform Act in 2002—widely known as the McCain-Feingold Act after its two principal Senate sponsors. The act sought to outlaw so-called “soft money” in federal campaigns by prohibiting national political parties, federal officeholders, and federal candidates from raising or spending funds outside the limits of the 1974 law. A second major provision required corporations, labor unions, or incorporated nonprofit groups to pay for campaign-related, election-time radio or television advertising via separate political action committees (PACs) rather than from their own treasuries.

The Court upheld both of those provisions in 2002 against a challenge led by Kentucky’s Republican senator, Mitch McConnell. The joint opinion by Justices Stevens and O’Connor McConnell v. Federal Election Commission (2003) found the “soft money” ban an appropriate way for Congress to try to prevent undue influence on federal officeholders. They also found the PAC financing requirement for “electioneering” to be an appropriate way for Congress to try to control “the virtual torrent of television-related election ads.”

The appointment of Chief Justice Roberts in September 2005 and the seating of Alito as O’Connor’s successor early in 2006 shifted the balance of power on the Court on campaign finance issues toward greater protection for First Amendment political speech rights. In his second full term, Roberts led the Court in limiting somewhat the McCain-Feingold limits on the financing of election-time media advertising. The 5–4 ruling in Federal Election Commission v. Wisconsin Right-to-Life (2007) exempted issue advertising unless the ad was “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

A year later, Alito led a 5–4 decision similarly divided along conservative–liberal lines in striking down a McCain-Feingold provision known as the “millionaire’s amendment.” The provision raised campaign contribution limits for candidates running against wealthy, self-financed candidates. Writing for the majority in Davis v. Federal Election Commission (2008), Alito agreed with congressional candidate Jack Davis that the provision infringed his right to engage in unlimited spending on his campaign from his own funds.

By this time, the Court had considered and ruled on laws in two states that set relatively low limits on campaign contributions—significantly lower than those set by federal law for federal elections. The 6–3 decision in Nixon v. Shrink Missouri Government PAC (2000) upheld the state’s newly enacted $1,000 limit on contributions to state candidates. Kennedy led the three dissenters. Six years later, however, the Court struck down as too low Vermont’s $400 cap on campaign contributions to state candidates; the state enacted the limit as part of a 1997 law that also imposed overall limits on spending by candidates for state office, in seeming defiance of the Buckley v. Valeo precedent. The 6–3 decision in Randall v. Sorrell (2006) found both provisions unconstitutional as infringing First Amendment political speech rights.

The Roberts Court excited supporters and opponents of campaign finance regulation alike with a sharply divided decision in 2010 that struck down a major provision of the McCain-Feingold law. Kennedy led the 5–4 ruling in Citizens United v. Federal Election Commission (2010) in overruling Austin and in striking down the act’s restrictions on direct corporate or union financing of election-time campaign advertising. “Government may not suppress political speech on the basis of the speaker’s identity,” Kennedy wrote for the conservative majority. In a dissent delivered from the bench, Stevens warned that the ruling could lead to “corporate domination of the airwaves” before an election.

Within a month after the decision, President Obama criticized the ruling in his State of the Union address to Congress, with several of the justices seated just below him. Democrats in Congress have called for overruling the decision by constitutional amendment, but those efforts have not borne fruit.

The Roberts Court dealt campaign finance reformers two more setbacks over the next four years. The 5–4 decision in Arizona Free Enterprise Club v. Bennett (2011) struck down a state ballot measure, known as the Clean Elections Act, that was designed to strengthen Arizona’s system of partial public financing for candidates for statewide offices. The law increased government funding for participating candidates if they were outspent by non-participating candidates. Roberts led the conservative bloc in finding that the law substantially burdened political speech without sufficient justification. Justice Elena Kagan led the liberal bloc in a dissent that she emphasized by summarizing from the bench.

Roberts again led a 5–4 majority in reaching back to strike down a limit on an individual’s aggregate election-cycle contributions to federal candidates that originated in the 1974 law and had been upheld in Buckley v. Valeo. The ruling in McCutcheon v. Federal Election Commission (2014) found the aggregate limits unconstitutional because too tenuously related to the government’s legitimate interest in preventing corruption or the appearance of corruption. In a significant separate opinion, Justice Clarence Thomas concurred in the judgment while also calling for the Court to reconsider its precedents upholding limits on campaign contributions as distinguished from impermissible limits on overall campaign spending.

The tensions between liberal and conservative justices in election-related cases flared in April 2020 when the Court was asked to step into a dispute from Wisconsin over a federal judge’s decision to extend absentee ballot voting by a few days in a statewide election because of the coronavirus pandemic. A record number of voters requested absentee ballots, seemingly because of social distancing guidelines to avoid crowds to help contain the highly contagious virus.

With a huge backlog of unanswered requests for ballots, the judge ordered election officials to accept absentee ballots even if mailed after the April 7 election. Wisconsin Republicans asked the Supreme Court to block the judge’s order, and the Court agreed in a 5–4 vote divided between the conservative and liberal blocs one day before the election. The five Republican-appointed conservatives issued an unsigned opinion criticizing the judge for changing procedures so close to the election, but Justice Ruth Bader Ginsburg issued a stinging dissent that criticized the majority for forcing voters unable to obtain absentee ballots to risk their health in order to cast ballots in person.

The vote in the Wisconsin election case divided along well established lines between the five Republican-appointed justices in the conservative bloc—Roberts, Thomas, Alito and the two Trump appointees, Neil Gorsuch and Brett Kavanaugh—and four Democratic-appointed justices in the liberal bloc—Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Barring any changes in personnel, the Court seemed likely to continue to play a reduced role in resolving election-related challenges at the state level even as voting-related disputes are increasing. The disputes divide in Congress and in the states along partisan lines, with Republicans favoring stricter procedures and Democrats calling for eased requirements for registering and voting.

Document Citation
Jost, K. W. (2020). Supreme court's shifting views on voting rights.
Document ID: rcookltr-1527-113160-2948753
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