Edward B. Foley · December 2013
81 GEO. WASH. L. REV. 1836 (2013)
Anyone concerned that Bush v. Gore may have been unprincipled or at least insufficiently precise in its reasoning should have the same concern about the leading voting law case emanating from the 2012 presidential election, Obama for America v. Husted. That case is just as fact-specific in its holding as Bush v. Gore was. Moreover, both cases are signs of a pervasive problem in contemporary election law—namely, that the judicial evaluation of electoral rules under the prevailing Fourteenth Amendment jurisprudence is woefully indeterminate, as was also revealed in the Supreme Court’s 2008 decision in Indiana’s voter identification case, Crawford v. Marion County Election Board. When one attempts to put Crawford together with Bush v. Gore, as the lower courts attempted to do in Obama for America v. Husted and other voting related litigation in 2012, one is at a loss as to the specificity of the standard to apply to the facts of the pending case. This indeterminacy is especially problematic in election cases because it tempts judges to decide these politically fraught cases according to their own partisan preferences, rather than according to objectively discernible principles.
An alternative approach would be to have federal judges focus explicitly on the problem of partisanship. The new test of a voting procedure’s constitutionality under the Fourteenth Amendment would be whether it was imposed as an effort to tilt the electoral playing field in favor of a particular political party. One advantage of this new test is that it would substitute a relatively straightforward single inquiry—did the relevant arm of state government engage in improper partisan manipulation of the electoral process?—for the currently incommensurate balancing of electoral burdens and administrative benefits. Another advantage of this new test would be that by making federal judges more consciously (and, in their opinions, expressly) attuned to the risks of improper partisanship, it would increase the likelihood that federal judges would do a better job at policing their own temptations towards partisan rulings in high-stakes election cases.
