The recent Supreme Court rulings on voting rights and election transparency have once again highlighted the enormous power the judicial branch has over the country's electoral process.
Last week, the court's conservative majority upheld a pair of voting laws that tightened the rules in Arizona. In a separate ruling, the justices struck down California's law requiring charitable nonprofits to privately disclose their top donors to the state attorney general. Both cases could have larger implications for the future of American democracy.
Throughout history, the Supreme Court has played an integral role in shaping how voters are represented, ballots are cast and elections are financed. Here are seven landmark cases from the last six decades:
Reynolds v. Sims (1964)
In 1961, a group of Alabama voters challenged the apportionment of the state Legislature, arguing it violated the equal protection clause of the Fourteenth Amendment. At the time, Alabama required each county to have at least one representative and allowed as many senators as there were senatorial districts. This led to unequal representation due to large population discrepancies across the districts.
The Supreme Court ruled that legislative districts within a state must have substantially equal representation for all citizens. This ruling has ensured districts maintain even representation when redrawn each decade during redistricting.
Buckley v. Valeo (1976)
In an attempt to curb political corruption following the Watergate scandal, Congress established limits on election spending through the 1971 Federal Election Campaign Act. This case challenged whether those restrictions violated the First Amendment.
In 1976, the Supreme Court arrived at two conclusions with this case, making a distinction between contributions and expenditures. First, the justices determined that a limit on how much an individual can donate to political campaigns and candidates did not violate the First Amendment because it "served the government's interest in safeguarding the integrity of elections." However, the court also found that limits on expenditures by campaigns and candidates did violate the freedoms of speech and association because this practice does not necessarily enhance the potential for corruption in elections.
Also in this ruling, the court overturned FECA's disclosure requirement for independent expenditures made for the purpose of influencing federal elections. This established the two types of political advertising seen today: express advocacy and issue advocacy. Express advocacy ads require disclosure because they explicitly support or oppose a candidate. Issue advocacy ads, on the other hand, mention broad political topics, but not campaigns, and so disclosure is not required. However, there can be ambiguity between the two, leading to calls for more transparency of the wealthy special interests influencing elections.
Miller v. Johnson (1995)
Following the 1990 census, Georgia lawmakers redrew the state's election maps to create a third majority-Black district. However, the new district was so severely gerrymandered that it packed Atlanta's Black neighborhoods in with other Black communities 260 miles away along the Atlantic coast.
Voters in this distorted district challenged the map, arguing it was a racial gerrymander in violation with the equal protection clause of the Fourteenth Amendment. The Supreme Court ruled that the district did constitute a racial gerrymander. In some instances, the court held, a reapportionment plan may be so irregular that it cannot be rationally understood as anything but an effort to racially segregate voters.
Citizens United v. Federal Election Commission (2010)
The 2002 Bipartisan Campaign Reform Act barred electioneering communication — advertising run on broadcast, cable or satellite services and mentioning a candidate — within 60 days of a general election and 30 days of a primary. Citizens United, a conservative advocacy nonprofit, challenged this rule after its movie criticizing then-presidential candidate Hillary Clinton was blocked by the Federal Election Commission for airing too close to an election.
The Supreme Court struck down this provision of BCRA, ruling that corporate funding of independent political broadcasts cannot be restricted under the First Amendment. However, the court upheld the requirement that electioneering communication be subject to disclaimers and disclosure of sponsors.
More than a decade after the ruling, Citizens United v. FEC is often labeled as the ultimate antagonist of the democracy reform movement. Its harshest critics use the case as shorthand for a campaign financing system that gives a lopsided political advantage to the wealthiest individuals, corporations and other entities. But proponents, mostly conservatives, still hail the ruling as a major victory for free speech and political expression.
Shelby County v. Holder (2013)
In 2013, the Supreme Court struck down a key provision of the 1965 Voting Rights Act, known as preclearance. Prior to this ruling, certain states and counties with histories of racial discrimination had to get prior federal approval of their proposed changes to voting procedures. But the court found that this constraint, while appropriate in the past, was no longer necessary and placed an unconstitutional burden on states.
Since then, voting rights advocates claim the lack of preclearance has allowed state lawmakers to significantly roll back voting access. But others argue what remains of the Voting Rights Act is enough to protect against discriminatory laws.
McCutcheon v. Federal Election Commission (2014)
The Bipartisan Campaign Reform Act set a cap on the total dollars an individual could give to candidates, political parties and political action committees in a two-year election cycle. The law was intended to curb political corruption, but a decade after enactment, it was challenged for violating the First Amendment.
The Supreme Court ruled in 2014 that the aggregate limit failed to prevent corruption or meet the "rigorous" standard of review set by previous campaign finance cases, and therefore it was unconstitutional. There are still limits on how much an individual can give to a single candidate, party or committee, though.
This ruling opened up opportunities for wealthy donors to give to as many political entities as they want. It also led to the creation of joint fundraising committees — partnerships in which campaigns and party committees collect one large check from each donor and split the proceeds.
Rucho v. Common Cause (2019)
Two years ago, the Supreme Court ruled that cases involving partisan gerrymandering were not justiciable because the issue falls outside the purview of federal courts. The case was brought to the court after North Carolina's maps were challenged for constituting an illegal partisan gerrymander.
This ruling was seen as a massive setback for anti-gerrymandering advocates who had hoped the high court would intervene in extreme gerrymandering cases, such as the one in North Carolina. Now, it will be left up to state courts to decide when gerrymandering goes too far.
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The Supreme Court on Thursday dealt dual blows to voting rights and election transparency advocates.
In its final two opinions of the term, the court upheld two restrictive voting laws in Arizona and struck down a nonprofit donor disclosure rule in California. In both decisions, the justices ruled 6-3, along ideological lines.
Good-government groups decried both rulings, expressing concern over the larger implications they could have moving forward. The court's ruling in the Arizona case could make it harder to challenge potentially discriminatory voting rules, and eliminating California's donor disclosure rule could make it harder for the state to prevent fraud.
In Brnovich v. Democratic National Committee, the Supreme Court reversed a lower court ruling. The majority determined Arizona's laws limiting who can return ballots for another person and disqualifying ballots cast in the wrong precinct were not racially discriminatory.
The case took into consideration Section 2 of the 1965 Voting Right Act, a key provision that prevents voting practices or procedures that discriminate against minority groups. Voting rights advocates argued Arizona's laws banning third-party ballot collection — or what critics call "ballot harvesting" — and discarding ballots cast at the wrong precinct disproportionately affected Black, Hispanic and Native American voters.
Justice Samuel Alito, writing for the majority, stated that voters should expect to face some minor obstacles.
"Voting takes time and, for almost everyone, some travel, even if only to a nearby mailbox. Casting a vote, whether by following the directions for using a voting machine or completing a paper ballot, requires compliance with certain rules. But because voting necessarily requires some effort and compliance with some rules, the concept of a voting system that is 'equally open' and that furnishes an equal 'opportunity' to cast a ballot must tolerate the 'usual burdens of voting.'"
But, Alito wrote, certain "guideposts" should be taken into consideration, such as the size of the burden imposed by a challenged voting rule, the degree to which a voting rule departs from standard practice, the disparate impact a rule has on minority voters and the opportunities for voting provided by a state's entire voting system.
Alito also wrote that it was important to take into consideration the state's interests served by any voting rule in question. "One strong and entirely legitimate state interest is the prevention of fraud," he wrote.
Following the 2020 election, Republican state lawmakers have been pushing for stricter voting rules that they say will bolster election security and deter voter fraud, despite no widespread evidence of such malfeasance last year.
Republican National Committee Chairwoman Ronna McDaniel said in a statement that she saw this ruling as a "resounding victory for election integrity and the rule of law."
In the dissenting opinion, Justice Elena Kagan did not mince words, opining that the majority "writes its own set of rules," and that this decision undermines Section 2 of the Voting Rights Act.
"This is not how the Court is supposed to interpret and apply statutes. But that ordinary critique woefully undersells the problem," she wrote. "What is tragic here is that the Court has (yet again) rewritten — in order to weaken — a statute that stands as a monument to America's greatness, and protects against its basest impulses. What is tragic is that the Court has damaged a statute designed to bring about 'the end of discrimination in voting.'"
Good-government groups also blasted the ruling, saying it will make challenging and litigating other potentially discriminatory voting laws much more difficult.
"The justices stopped short of eviscerating the Voting Rights Act, but nevertheless did significant damage to this vital civil rights law and to the freedom to vote," Sean Morales-Doyle, acting director of the voting rights and elections program at the Brennan Center for Justice, said.
Damon Hewitt, president and executive director of the Lawyers' Committee for Civil Rights Under Law, said Thursday was "a shameful day, and a troubling one for voting rights."
"When the Supreme Court dismantled the preclearance provision of the Voting Rights Act eight years ago, it cited as part of its rationale that provisions of Section 2 of the Act were still available to protect voters," he said. "Now, the court has undercut the effectiveness of that important law."
RepresentUs CEO Josh Silver said this ruling emphasizes the need for congressional action: "The steady chipping away of voter protections underscores the urgent need for the national voting standards in the For the People Act."
Nonprofit donor disclosure
In Americans for Prosperity Foundation v. Bonta, the Supreme Court struck down California's law requiring charitable nonprofits to privately report the names and addresses of major donors to the state attorney general.
California argued its confidential disclosure requirement — which is similar to federal tax forms charities must send to the IRS — helped the state combat fraud and misuse of charitable contributions. The state has required such disclosure since 2010.
But the court's conservative majority sided with the two nonprofits that challenged the rule for violating the First Amendment. The Americans for Prosperity Foundation, founded by influential GOP megadonors Charles and David Koch, and the Thomas More Law Center, a conservative Catholic legal group, argued their donors could face potential harassment from the public because in the past California has failed to keep certain donor records private.
Chief Justice John Roberts wrote in the majority opinion that there is a "dramatic mismatch" between California's interest in preventing fraud and the sensitive donor information required to do so.
"The upshot is that California casts a dragnet for sensitive donor information from tens of thousands of charities each year, even though that information will become relevant in only a small number of cases involving filed complaints," Roberts wrote.
But the court's three liberal justices warned about the lasting implications of this ruling.
"Today's analysis marks reporting and disclosure requirements with a bull's-eye. Regulated entities who wish to avoid their obligations can do so by vaguely waving toward First Amendment 'privacy concerns,'" Justice Sonia Sotomayor wrote in the dissenting opinion.
While this case is about the reporting rules for charities and other tax-exempt organizations, good-government advocates were concerned this case could open the door for successful challenges to campaign finance transparency rules — or to the disclosure requirements for the millionaires, businesses and advocacy groups that spend exorbitant amounts to influence elections.
And while the justices did not call campaign finance disclosure into question with this ruling, the Campaign Legal Center said in a statement that the decision still "needlessly brushes aside precedent in favor of wealthy special interests — expanding an exemption originally reserved for marginalized groups to seven-figure donors hoping to insulate themselves from public criticism."
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The Georgia Republican Party and a conservative nonprofit have come under scrutiny for allegedly violating federal campaign finance law during the state's Senate runoff elections in January.
A pair of good-government groups, the Campaign Legal Center Action and Common Cause Georgia, filed a complaint Wednesday with the Federal Election Commission alleging that True the Vote, which says its mission to restore confidence in elections by combating voter fraud, illegally coordinated with the Georgia Republican Party ahead of the runoffs.
As a 501(c)(3) nonprofit corporation, True the Vote is prohibited from donating directly or indirectly to a political committee. Because it coordinated with the Georgia GOP, the complaint alleges, both parties violated campaign finance rules.
In December, True the Vote founder Catherine Engelbrecht announced in an email to supporters and in a press release that the Texas-based organization would assist the Georgia Republican Party with the runoffs. Her group helped with signature verification training, ballot curing support, a voter hotline, absentee ballot drop box monitoring and other election integrity initiatives.
Federal law prohibits corporations from making contributions — which include "coordinated expenditures" — to a political committee (other than a super PAC). The complaint alleges that the services True the Vote provided constitute expenditures and because they were done at the request of and in coordination with the state GOP, the activity amounts to prohibited in-kind contributions.
"It doesn't matter if True the Vote expressly urged voters to elect Republicans, the relevant legal question is whether True the Vote spent money 'in connection with an election' and coordinated that spending with the Georgia Republican Party," said Brendan Fischer, CLCA's director of federal reform. "The evidence shows that it did."
True the Vote did not immediately respond to a request for comment.
At the time the partnership was announced, Georgia Republican Party Chairman David Shafer wrote that he was grateful for True the Vote's help in fighting for election integrity. "The resources of True the Vote will help us organize and implement the most comprehensive ballot security initiative in Georgia history," he said in the press release.
While working with the Georgia GOP, True the Vote challenged the eligibility of more than 364,000 voters ahead of the runoffs, claiming those voters may have recently moved and therefore weren't eligible to vote. In response, Stacey Abrahm's voting rights group Fair Fight filed a lawsuit alleging True the Vote's challenge amounted to voter intimidation.
A federal judge ultimately denied Fair Fight's request to stop the challenge, but expressed "grave concerns" about True the Vote challenging hundreds of thousands of voters' eligibility so close to the runoffs.
CLCA and Common Cause Georgia went further, filing a complaint.
"Corporations are not supposed to act as arms of campaigns, and since coordinated spending is just as valuable to candidates and political parties as direct contributions, coordination between outside spenders and their preferred political party must be strictly policed and enforced," the groups wrote in their press release about the complaint.
It will now be reviewed by FEC staff attorneys, who will develop a report and recommendation to the six commissioners about whether there is reason to believe the law was violated.
But this won't likely be a quick process. While the complaint's review will only take a few months, it could sit in the FEC's backlog of pending cases for as long as two years, Fischer said, since the agency has been slow to move on such issues.
If the FEC fails to take action in a timely manner, CLCA and Common Cause Georgia could sue the agency in order to have the complaint addressed more expeditiously.
"This is a striking example where the violations were hiding in plain sight," Fischer said. "We hope and expect that the FEC would enforce the law here and penalize both True the Vote and the Georgia Republican Party for this unlawful coordinated activity."
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This is the fourth installment of an ongoing Q&A series.
As Democrats take power in Washington, if only tenuously, many democracy reform groups see a potential path toward making the American political system work better. In this installment, Meredith McGehee, executive director of Issue One, answers our questions about 2020 accomplishments and plans for the year ahead. Her organization works with Democrats, Republicans and independents to strengthen ethics laws, curb big money in politics and modernize elections, among other reforms. (Issue One owns, but is journalistically independent from, The Fulcrum.) McGehee's responses have been edited for clarity and length.
First, let's briefly recap 2020. What was your biggest triumph last year?
Issue One launched the Count Every Vote campaign that brought together the National Council on Election Integrity, a bipartisan group of political, government and civic leaders united around protecting the integrity of our elections. This campaign included more than $10 million in television, print and digital advertising to help ensure every American's vote was counted and to reassure Americans that the 2020 election was safe, secure, free, fair and transparent — which it was.
And your biggest setback?
Despite our efforts — as part of a push by a wide range of groups — we did not succeed in getting a second round of election funding from Congress for states and localities to administer the 2020 election. (The CARES Act, passed in March, did include $400 million, which Issue One, like many organizations, hoped would be a down payment on more funds to come.) After Congress deadlocked on a second bill that would have provided additional funding for election administration, private philanthropy and businesses stepped up to fill some of the gaps. These contributions prevented a nationwide election meltdown, but this is no way to run a country.
What is one learning experience you took from 2020?
The Jan. 6 riots and President Trump's role in fomenting anger and division remind us all we cannot take our democracy for granted. The people are more divided than ever and don't trust our institutions.
Now let's look ahead. What issues will your organization prioritize in 2021?
We'll be focused on strengthening election integrity and administration, responding to the weaknesses in executive branch ethics revealed over the last four years, combatting the corrosive influence of big money in our elections and increasing congressional capacity.
How will Democratic control of the federal government change the ways you work toward your goals?
Having Democrats control Congress and the White House both sets a different tone and changes who initiates the agenda, but it does not change the fact that any legislation has to go through the Senate. And passing legislation in the Senate will still require some modicum of bipartisan support, which is why Issue One will continue to build relationships with Democratic and Republican lawmakers in both chambers.
What do you think will be your biggest challenge moving forward? And how do you plan to tackle it?
The biggest challenge is imaging a path forward where the public believes its elected officials are working for them. That is why Issue One is advocating for reforms that bring sunlight to who is trying to influence our elections, inform the public about who is trying to sway their votes, prevent officials from enriching themselves and ensure that our elections are safe, secure and transparent.
Finish this sentence. In two years, American democracy will …
be stronger, thanks to the hard work of Democrats, Republicans and independents, who want to repair our broken political system and make it possible for all people in the United States to better participate in our system of government.
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