Abstract
This is the last issue of the tenth volume of Election Law Journal. Fittingly, the articles in this issue address what are probably the two most important American election law decisions in recent memory: Bush v. Gore (2000) and Citizens United (2010). These cases may be seen as bookends on a tumultuous and exciting decade in the field. They also provide a useful jumping-off point for examining the important role that courts have played—and will likely continue to play—in shaping the processes of democracy.
In a sense, Bush v. Gore spawned this journal. In the wake of the controversy over the 2000 presidential election, our predecessor co-editors Dan Lowenstein and Rick Hasen, along with our publisher Mary Ann Liebert, Inc., recognized the demand for a specialized, peer-reviewed journal in the field. Bush v. Gore led to a renaissance of scholarly and public attention to election law, election administration, and election policy. Some expected that the equal protection holding of Bush v. Gore would lead to more election-related lawsuits, and perhaps the increasing judicialization of American elections. This prediction has partly come true—but only partly.
In this issue's first article, Professor Hasen takes a close look at election law cases decided by the Supreme Court in the decade after Bush v. Gore. His previous scholarship has traced the increase in lower court cases involving election disputes since 2000. The current article, however, finds something unexpected: a decrease in election law cases decided by the Supreme Court between 2001 and 2010. This represents a decline from the prior decade, both in terms of the number of cases (down from 54 to 30) and the percentage of the Court's docket (down from 6.3 to 4.2 percent). So even as election law litigation in the lower courts was rising, the Supreme Court was hearing fewer election cases. Why has this happened? After reviewing four possible explanations, including “Bush v. Gore fatigue,” Professor Hasen concludes that the main cause is probably the decreasing number of petitions—especially from liberal litigants—seeking review of election decisions. Professor Hasen finds some evidence that this is the result of the Roberts Court's more conservative complexion, especially with the replacement of Justice O'Connor by Justice Alito.
No recent decision more dramatically illustrates the consequences of this change in the Court's personnel than Citizens United. Just a few years earlier, in McConnell v. FEC (2003), the Rehnquist Court had upheld the Bipartisan Campaign Reform Act's prohibition on corporations funding electioneering communications from their treasuries, with Justice O'Connor providing the deciding vote. In Citizens United, the Roberts Court reversed course, overruling this aspect of McConnell in sustaining a facial challenge to the ban on corporate-funded electioneering.
One of the most important developments since Citizens United has been the increasing political activity of nonprofit organizations. The most conspicuous examples are corporate and union funded “SuperPACs” that emerged in 2010. Nonprofit political spending will surely continue apace in 2012. Citizens United opened the door for unlimited corporate and union support for nonprofit organizations that make independent expenditures—at least as a matter of campaign finance law. What remains unclear is the extent to which tax law limits the political activities of nonprofit organizations engaged in campaigns or other political activities. Election specialists must therefore take minors in tax law if we are to understand the implications of the rise in political activity by nonprofits and have an informed debate about possible reforms.
To assist us in this effort, we are fortunate to feature five articles in this issue by leading campaign finance and tax law experts, examining various aspects of the rise in political activity by nonprofits. We are equally fortunate that one of the authors, Lloyd Mayer of Notre Dame, graciously agreed to serve as guest co-editor for this special topic. Professor Mayer was instrumental in selecting the articles, editing them, and seeing them through to publication. It simply would not have been possible to publish these outstanding articles without his initiative and labor.
Professor Mayer has also written an introduction to this set of articles, entitled “Shadows & Light: Nonprofits and Politics in a Post-Citizens United World.” Because his introduction describes all five articles, we shall not do so here. We do, however, express our gratitude to the authors of these articles: Richard Briffault, Ellen Aprill, Lloyd Mayer, Donald Tobin, Nancy McGlamery, and Rosemary Fei. Every one of them contributes to our understanding of the role that nonprofits play in our political system and, we are confident, will advance the debate over what (if anything) should be done to regulate their activities.
The issue concludes with three book reviews. Helping to sustain the focus on election administration that Bush v. Gore inaugurated, Alex Keyssar reviews Alec Ewald's The Way We Vote, a book that provides a qualified defense of the United States' hyperdecentralized election system. Next, Ned Foley reviews Jay Weiner's This is Not Florida: How Al Franken Won the Minnesota Senate Recount, developing themes explored in Professor Foley's articles in our last two issues (The Lake Wobegone Recount in 10:2 and How Fair Can Be Faster in 10:3). Finally, Michael Pitts reviews Charles Bullock's Redistricting, a topic sure to occupy the attention of many election law scholars and practitioners in the years to come. With lingering uncertainty over the constitutionality of Section 5 of the Voting Rights Act after NAMUDNO v. Holder (2009), as well as the standard for partisan gerrymandering after Vieth v. Jubelirer (2003) and LULAC v. Perry (2006), redistricting may well turn out to be the big election law story of the current decade. Stay tuned for issue 20:4 to find out!